LAW MANTRA THINK BEYOND OTHERS (National Monthly Journal, I.S.S.N 2321 6417)

Water Pollution Control Mechanism and Implementation of Water Pollution Schemes

in India

Introduction

Water is a basic need for the survival of human beings and is part of right to life and human

rights as enshrined in Article 21 of the Constitution of India. The resolution of UNO in 1977 to

which India is a signatory, during the United Nations Water Conference resolved

unanimously, inter-alia, as under:

All people, whatever their stage of development and their social and economic conditions, have

the right to have access to drinking water in quantum and of a quality and equal to their basic

needs.1

The United Nation also emphasized the importance of purity of water when it proclaimed on

10th November, 1980 International Drinking Water Supply and Sanitation Decade. India

is also a signatory to this Declaration. Thus, the right to access to drinking water is

fundamental to life and there is a duty on the State under Article 21 to provide clean drinking

water to its citizen.2

In State of Orissa v. Government of India,3 J. Katju ., opined that the right to get water is a part

of life guaranteed by Article 21 of the Constitution. It is a gift of nature. Human hand cannot

be permitted to convert this bounty into a curse, oppression. Right to life is guaranteed in any

civilized society, inter alia, right to water and decent environment. These are basic human

rights known to any civilized society.4

1 Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664 at 767., also Hinch Lal Tiwari v. Kamla Devi, (2002) 6 SCC 496; Atma Linga Reddy v. Union of India, (2008) 7 SCC 788 at 799-800. 2 A.P. Pollution Control Board (II) v. M.V. Nayudu, (2001) 2 SCC 62 at 69. 3 (2009) 5 SCC 492 at 505. 4 Delhi Water Supply & Sewage Disposal Undertaking v. State of Haryana, (1996) 2 SCC 572 at 573; Chameli Singh v. State of U.P, (1996) 2 SCC 549; M.K. Balakrishnan (2) v. Union of India, (2009) 5 SCC 511 at 513-514.

Water pollution is one of the major problems facing humanity. Industrialization, urbanization,

increase in human population are responsible for water pollution. Some of the important

sources are as follows:

Industrial Wastes: Industrial waste or trade effluent includes any liquid or solid

substance, which is discharged from any premises used for carrying on any industry,

operation or process or treatment and disposal system other than the domestic sewage.

It is a common practice that a large number of industries, which are located on the

banks of the rivers, discharge their untreated effluent into the river and thus pollute the

river water.

Domestic Wastes: Nearly 75% of the water pollution is due to the sewage and domestic

wastes. Sewage generally includes biodegradable pollutants like human faecal matter,

animal waste and many organic compounds such as carbohydrates, protein, fats, urea

etc.

Insecticides and Pesticides: The farmers use large amount of insecticides and

pesticides. Due to rain or irrigation these insecticides and pesticides either pollute the

neighbouring fresh water lakes, rivers or ponds or they also percolate down and affect

the underground water.

Thermal Pollution: Heat from power plants, industries, automobiles, and hot summers

which raises the temperature of water to a harmful level is called thermal pollution.

Radioactive Wastes: Wastes generated from atomic reactors contain different kind of

radioactive isotopes, are very harmful for the plants and animals living in water.

The Water (Prevention and Control of Pollution) Act 1974

After the Stockholm conference on Human Environment on June, 1972, it was considered

appropriate to have uniform law all over country for broad Environment problems endangering

the health and safety of our people as well as of our flora and fauna. The Water (Prevention &

Control of Pollution) Act, 1974 is the first enactment by the Parliament in this direction. This is

also the first specific and comprehensive legislation institutionalizing simultaneously the

regulatory agencies for controlling water pollution. The Pollution Control Board at the Centre

and in the State came into being in terms of this Act.

According to the Article 51 A (g) it is the fundamental duty of every citizen of India to protect

and improve the natural environment included Forest, Lakes, Rivers and Wildlife and to have

compassion for living creatures.

Water Act is enacted with the aim of prevention and control of Water Pollution in India.

Pollution means contamination of water or such alteration of the Physical, Chemical or

Biological properties of water or such discharge of any sewage or trade effluent or of any other

liquid, gas and Solid substance into water (whether directly or indirectly) as may be the case or

is likely to create nuisance or render such water harmful or injurious to public health or safety

or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and

health of animals or plant or of aquatic organizations.

Trade effluent includes any liquid or solid substance which is discharged from any premises

used for carrying on any industry operation or process or treatment and disposal system, other

domestic sewage. This Act aims at establishment of Central and State Pollution Control Board

at the central level and also at state level for each state and giving powers to the members so as

to enable them to carry out the purposes of the Act. Board is having 17 members to carry out

the said purposes and the functions of the Board.

(a) To Plan a comprehensive program for the prevention Control or abatement of pollution of

streams and wells.

(b) To advise the State Government on any matters concerning the prevention, Control or

abatement of water pollution.

(c) To collect and disseminate information relating to the water pollution and prevention,

control or abatement thereof.

(d) To encourage, conduct and participate in investigations and research relating to problems of

water pollution, prevention, control or abatement of water pollution.

(e) To inspect sewage or trade effluents, works and plants for the treatment of sewage and trade

effluents and to review plans, specifications or other data relating to plant set up for the

treatment of water, works for the purification thereof and the system for the disposal of sewage

or trade effluents or in connection with the grant of any consent as required by this act.

(f) Lay down, modify or annual effluent standards for the sewage and trade effluents and for

the quantity of receiving water (not being) water in an inter-state stream) resulting from the

discharge of effluents and to classify waters in the state.

(g) To evolve economical and reliable methods of treatment of sewage and trade effluents,

having regard to the peculiar conditions of soils, climate and water resources of different

region and more especially the prevailing flow characteristics of water in streams and wells,

which render it impossible to attain even the minimum degree of dilution and other such

functions.

Section 25/26 of the Water Act says that no industry or operator process or any treatment and

disposal system can be established without the previous consent of the State Board and no

industry or process can discharge sewage or trade effluent into a stream or well or sewer or

land in excess of the standards & without the consent of the Board whoever contravenes the

provisions of section 25 or section 26 of the Water Act shall be punishable with imprisonment

for term which shall not be less than one and half year but which may extend to six years with

fine under section 43/44 of the Water Act.

The industry can make an appeal if aggrieved against the orders of the Board under section 28

of the Water Act. The Board can issue directions for closure of industry & disconnection of

electricity in case of persistent defiance by any polluting industry under section 33-A of the

Water Act.

The Water (Prevention and Control of Pollution) Act, 1974 represents one of Indias first

attempts to deal with an environmental issue comprehensively.

Objectives:

This specialized legislative measure is meant to tackle one facet of environmental pollution.5

The fundamental objective of the Act is to provide clean drinking water to the citizens.6 Its

other main objectives are:

1) To provide for the prevention and control of water pollution and maintaining or

restoring of wholesomeness of water.

2) To establish Central and State Boards for prevention and control of water pollution.

3) To provide for conferring on and assigning to such Boards of powers and functions

relating thereto and for matters connected therewith.

4) To provide penalties for the contravention of the provisions of the Act.

5) To establish Central and State water-testing laboratories to enable the Board to assess the extent of pollution, lay down standards and establish guilt or default.

5 Stells Silk Ltd v State of Karnataka, AIR 2001 Kant. 219 at 224 6 A.P Pollution Control Board v M.V. Nayudu, (2001) 2 SCC 62

In State of Manipur v Chandam Manihar Singh7, the Supreme Court held that under Section 5

the term of office of a member of a Board, which would include the Chairman as laid down by

section 4(2)(a) of the Act, would be three years from the date of nomination.

In Akhil Bharat Goseva Sangh v State of Andhra Pradesh8, it was held that mere fact that

member of the State Pollution Control Board were scientific experts, would not itself satisfy

the requirements of Section 4 unless the qualifications as prescribed were otherwise held by the

members.

Powers and Functions of Boards

Central Board (Section 16): The main function of Central Board is to promote cleanliness of

streams and wells in different areas of the States. It should also advise the Central Government

on matters concerning prevention and control of water pollution. Co-ordinate the activities if

the State Boards and resolve dispute among them. Collect, compile and publish technical and

statistical data relating to water pollution and establish laboratories for analysis of water

samples, of any sewage or trade effluent.

State Board (Section 17): The functions of State board include planning a comprehensive

program for the prevention, control or abetment of water pollution. It should also advise the

State Government on matters concerning prevention and control of water pollution. Also

collect information and conduct investigation of various causes of water pollution. Thereafter

lay down effluent standards to be compiled with by persons while discharging sewage.

In M.C Mehta v Union of India9, the tanneries were discharging effluent in Ganga and they

were not setting up a primary treatment plant in spite of being asked to do so several years.

They did not put up their appearance before the Supreme Court to express rheir willingness to

take appropriate steps to establish the pre-treatment plant. In view of these circumstances the

Court directed them to stop working their tanneries.

In Sureshwar D. Sinha v Union of India10, the Deputy Secretary, Ministry of Environment had

stated before the Court that 2005 could be treated as cut-off point for cleaning of Yamuna in

Delhi. The Court questioned the statement and why should the pollution continue till 2005.11

7 (1997) 7 SCC 503 8 (2006) 4 SCC 162 9 A.I.R 1988 SC 1037 10 (2000) 8 SCC 368 11 Also see AQFM Yamuna v Central Pollution Control Board (2000) 9 SCC 440

In Ramji Patel v Nagrik Upbhokta Marg Darshak Manch12, a PIL was filed before the High

Court alleging that dairy owners were storing cattle dung and waste of dairy products near the

main drinking water pipeline which was contaminating the pure water. Supreme Court directed

the Central Pollution Control Board to submit a report as to prevent altogether the possibility of

contamination and pollution of potable water carried through the pipeline.

In State of M.P v Kedia Leather & Liquor Ltd.13, the State Board was neither taking any action

nor inspecting various industries discharging pollutants in contravention of the provisions of

the Act. The Supreme Court deprecated the negligence shown by the Board in discharging its

statutory functions and held that the Board is expected to carry out its functions without

directions being issued by the court in that regard.

Prevention and Control of Water Pollution

Chapter V of the Act contains different provisions for prevention and control of water

pollution. The State Government has power to restrict the application to certain areas. For the

purpose of performing its functions under the Act, the State Board has power to obtain

information through surveys, gauge and keep records of flow or volume and other

characteristics of streams and wells. It also has power to take samples of effluents from any

water body for the purpose of examination and analysis.

In Delhi Bottling Co. Pvt. Ltd. V Central Board for the Prevention and Control of Pollution14,

the Board took a sample of the trade effluents from a bottling companys discharge stream. The

Board got the trade effluent analyzed and found that it did not conform to the requirements of

their consent order granted to the company. The Court held that the sample was not taken in

strict compliance and was not admissible in evidence. Thus, decided in the favor of the

Company.

In Abdul Hamid v Gwalior Rayon Co.15, the Court pointed out that Section 21 of the Act were

meant for protection of the industries and industrialists ensuring a proper balance between the

conflicting claims of the nations industrial progress and the hazards to the citizens.

Section 23 of the Act confers the power of entry and inspection on the State Boards for

performing its functions. These is also extended for examining plant, record, register,

documents etc and seize such objects if it forms evidence against commission of offence

12 (2000) 3 SCC 29 13 (2001) 9 SCC 605 14 AIR 1996 Del. 152. 15 (1998) CrLJ 2013

punishable under the Act. Section 24 prohibits use of stream or well for disposal of polluting

matter by knowingly permitting any poisonous, noxious or substance impeding proper flow of

the water of the resource. Section 25 provides restrictions on establishment of new outlets

which is likely to cause discharge sewage or trade effluent into water bodies.

In Narula Dyeing and Printing Works v Union of India16, it was held that a mere consent order

issued by the State Board under Section 25 doesnt entitle the applicant to discharge trade

effluents into stream and it is incumbent upon the applicant to comply with the conditions

mentioned consent order.

In Mahabir Soap and Godakhu Factory v Union of India17, the consent to the continuation of

the factory was refused by the State Board on the ground that the factory is located in a

populated area and there has been a public complaint on pollution caused by the factory.

In M.C Mehta v UOI18, the Supreme Court held that the financial capacity of the tanneries

should be considered as irrelevant while requiring them to establish primary treatment plants.

In Vijayanagar Educational Trust v KSPC Board Bangalore19, it was held that if a person is

already discharging any sewage or trade effluent before the commencement of the Act, he must

seek the consent of the State Board within the prescribed time as per Section 26 of the Act.

In T.N Godavarman v Union of India20, it was held that where there are multiple sources of

pollution, it is permissible to regulate them step by step, one at a time and it is not open to the

court to tell the government as to which sources should be prioritized.

Section 30 provides that where the Board has imposed any conditions on any person while

granting consent which requires the person to execute any work and on failure of which the

Board itself may execute it after giving notice to the concerned person and may recover

expenses incurred during the execution. Under Section 42 it is the duty of the person In charge

to intimidate to the State Board occurrence of any incident wherein accidently any polluting

matter entered the water body.21

As per Section 32, the Board has powers to take emergency measures in case of pollution of

stream or well if due to any accident or unforeseen act or event poisonous substance has

16 AIR 1995 Guj 185 17 AIR 1995 Ori 218 18 AIR 1988 SC 1037 19 AIR 2002 Kant 123 20 (2006) 5 SCC 47 21 Bal Kishan v Union of India, (1994) 3 SLJ (CAT 440)

entered the water. It may carry out any such operation for the removal and disposing off the

mattered and issue orders restraining or prohibiting the person concerned discharging such

noxious matter. Under Section 33, the Board has pore to make application to courts for

restraining apprehended pollution of water in streams and wells. Section 33-A gives the power

to the Board to give directions such as (1) closure, prohibition or regulation of any industry,

operation or process, or (2) the stoppage or regulation of supply of electricity, water or any

other service.

In Maharaja Shri Umaid Mills Ltd, Pali v State22, it was held that the proceeding under section

33 of the Water Act is criminal in nature. Therefore, if the complaint under S.33 is dismissed

then restoration of the same under Cr.P.C is not permissible.

In Mandu Distilleries Pvt. Ltd. V M.P Pradushan Niwaran Mandal23, the directions were given

but the Board for stoppage of production of the industry. However, the grounds stated in the

show-cause notice and basis of the order was not same. There was also denial of principles if

natural justice and consequent violation of inbuilt procedural safeguards. The Court quashed

this order.

In Ambuja Petrochemicals Ltd. V A.P Pollution Control Board24, the effluent treatment plant

of the industry was not in operation. Partially treated effluent was being discharged causing

water pollution in the tank resulting in danger to public life. Court upheld the State Boards

direction of the closure of the industry.

In Re: Bhavani River Sakthi Sugars Ltd25, the industry did not comply with some of the

directions given by the Pollution Control Board regarding proper storage and treatment of

effluents in the lagoons. . Court upheld the State Boards direction of the closure of the

industry.

Similarly in Stella Silks Ltd v State of Karnataka26, the industry was violating various

provisions of the Act and conditions imposed there under for its own benefit. It also flouted

orders of the court . The Board ordered for the closure of the industry. The Court upholding

this dismissed the petition of the company with cost of Rs 5000/-

22 AIR 1998 Raj 9 23 AIR 1995 M.P, 57 24 AIR 1997 AP 41 25 (1998) 2 SCC 601 26 AIR 2001 Kant. 219

The Environment (Protection) Act

The Environment (Protection) Act of 1986 clearly extends to water quality and the control of

water pollution. Section 2(a) of the Act defines the environment to include water and the

interrelationship which exists among and between water and human beings, other living

creatures, plants, micro-organisms, property. The Act authorises the Central Government to

establish standards for the quality of the environment27 and for emission or discharge of

environment pollutants from any source.28 The Ministry of Environment and Forests has

published Environment (Protection) Rules establishing general standards and industry-based

standards for certain types of effluent discharge.29 The ministry has not yet promulgated rules

establishing ambient inland water quality standards though state boards must have regard to the

assimilative capacity of receiving bodies.30 In 1997, the Maharashtra pollution control board

pioneered the development of ambient norms for fresh water bodies.31 However, these norms

do not have statutory sanction and serve only to guide industry in selecting a suitable location.

The Environment Act includes a citizens Initiative provision32 and a provision authorising the

Central Government to issue direct orders to protect the environment.33 The Central

Government may delegate specified duties and powers under the Environment Act to any

officer, state government, or other authority.34 For example, the power to issue directions under

section 5 has been delegated to the state governments and the power of entry and the right to

take samples under sections 10 and 11 have been delegated to various officers.

Nuisance Law and Water Pollution

Public Nuisance Actions under the Code of Criminal Procedure

In the landmark Ratlam Municipality Case,35 the Supreme Court did not considered the effect

of the Water Act on the availability of injunctive relief under section 133. There is a

27 Section 3(2)(iii) 28 Section 3(2)(iv) 29 Schedule I and Schedule VI, Environment (Protection) Rules. Industry-based standards override general standards. 30 Annexure I, Schedule VI, Environment (Protection) Rules. In 1988, the minister issued water quality standards for coastal waters. Entry 86, Schedule I, Environment (Protection) Rules. 31 Maharashtra Pollution Control Board, Classification of River Water & Guidelines for Location of Industrial Activity (1997). 32 Section 19(b) 33 Section 5 34 Section 23 35 AIR 1980 SC 1622

divergence of judicial opinion of this issue. Initially the Kerala High Court in Tata Tea ruled

that a court could not entertain a section 133 action to abate water pollution, even where the

state board was remiss. According to this view, the Water Act was a complete code to prevent

water pollution and impliedly repealed the provisions of section 133 of the Criminal Procedural

Code in so far as they relate to the prevention and control of water pollution.36

In Nagarjuna Paper Mills Ltd. V. Sub-Division Magistrate,37 the Andhra Pradesh High Court

established a less stringent rule, taking the position that section 133 injunctive relief was

available as long as it did not interfere with an order of a state pollution control board issued

under the Water Act. The court noted that the magistrates decision to issue an order for

injunctive relief was based on a report submitted by the superintendent engineer of pollution

control board itself, which stated that water pollution from the paper mills was harming people

and cattle. This view was also adopted by a division bench of Kerala High Court in Krishna

Paniker v Appukutan Nair,38 overruling the contrary opinion expressed in Tata Tea.39 However

without considering Panickers Case, the Karnataka High Court in 1997 followed Tata Tea,40

then quickly retreated,41 preferring the approach of the Andhra Pradesh High Court.

Injunctive Relief under Common Law

A private party who suffers and unreasonable interference with the enjoyment of his or her

property, may bring a common law action to restrain the polluter. The following case,

considers whether section 58 of the Water Act bars the jurisdiction of the civil courts to

entertain private nuisance suits.

Sreenivasa Distilleries v. Thyagarajan42

Section 58 enacts two prohibitions. Firstly, not to entertain any suit or proceedings in respect of

any matter which the appellate authority constituted under the Act is empowered to determine.

Secondly, no injunction shall be granted in respect of any action taken by any authority under

the act in pursuance of the provisions of the Act. This is the only provision barring the

jurisdiction of a Civil Court. This section is intended to preserve the statutory protection given

36 Tata Tea Ltd. V. State of Kerala 1984 KER. L.T. 645. 37 1987 CRI. L.J. 2071. 38 1993 (1) KER. L.T. 771 39 Supra note 14. 40 Executive Apparel Processor v. The Taluka Executive Magistrate 1997 (4) KAR. L.J. 181. 41 Harihar Polyfibres v. Sub-Divisional 42AIR 1986 AP 328

to the boards untouched by the civil actions. Now, the present action is only preventing the

defendant from polluting water. But this section is not directed to annul any orders passed by

the authority constituted under this Act. Now it is admitted that no orders are passed under the

Act, and, therefore, any order passed by the Civil Court will not take away the jurisdiction of

authorities constituted under the Act. Hence, Section 58 does not prohibit the jurisdiction of the

Civil Court to entertain any suit or proceeding restraining the defendant to cause pollution.

Riparian Rights and Water Pollution

A riparian owner is one who has title to land adjacent to a natural stream. The Indian legal

system has recognised the right of riparian owners to unpolluted waters at least since the

adoption of Indian Easements Act 1882. Under Sec. 7 of that Act every riparian owner has the

right to the continued flow of the waters of a natural stream in its natural condition without

obstruction or unreasonable pollution.

The legal system also recognises a common law riparian right to unpolluted water. This

common law right is rarely invoked in contemporary litigation concerning water pollution. The

Supreme Court, however, revived this doctrine in M.C. Mehta v. Union of India

(Municipalities) by stating:

In common law the Municipal Corporation can be restrained by an injunction in an action

brought by a riparian owner who has suffered on account of the pollution of the water in a river

caused by the Corporation by discharging into the river insufficiently treated sewage from

discharging such sewage into the river.43

The Ganga Action Plan

Amidst great fanfare in 1985, the Government of Indian announced an ambitious new plan for

cleaning up Ganga river. A newly created Ganga Authority, headed by Prime Minister, is

ultimately responsible for the rivers restoration. The eight-member authority includes the

Central Governments planning and environmental ministers and the chief ministers of the

states through which the Ganges flows.

The Central pollution control board has produced an Action Plan for the Prevention of

Pollution of the Ganga as a guide for steps in the cleanup. The government has established as

inter-department steering committee to formulate detailed components of this Plan and to

administer and monitor implementation of the Plan. A Ganga Project Directorate is included

43 AIR 1988 SC 1115.

within the Department of Environment to appraise and clear projects prepared by field level

agencies, release funds, and coordinate long-term activities under the Action Plan.

The Ganga Action is based on a comprehensive survey of the Ganga Basin carried out by the

Central board. About 80 per cent of the pollution in the river is caused by raw sewage

discharged directly into the river. The first phase of the Ganga Action Plan focuses on

construction of an extensive network of self-sustaining sewage treatment plants in the cities

along the Ganga River as the first measure to reduce pollution. Most of the physical

infrastructure for intercepting, diverting and treating municipal sewage has been created,44

though the efficacy of these schemes remains uncertain.45 In the second phase, the Plan

envisages establishing similar facilities along the Gangas major tributaries, including the

Yamuna and Gomti. The Central Government has also initiated an ambitious scheme to

replicate the Ganga model for cleaning up polluted stretches elsewhere in the country through a

National River Conservation Plan (NRCP).

Ganga Pollution Cases

The Ganga Pollution Cases are the most significant water pollution cases to date. In 1985,

M.C. Mehta, an activist Supreme Court advocate, filed a writ petition under Article 32 of the

Constitution. Among other things, the petition was directed at the Kanpur Municipalitys

failure to prevent waste water from polluting the Ganga. Mehta asked the court to order the

governmental authorities and tanneries at Jajmau near Kanpur to stop polluting the Ganga with

sewage and trade effluents.

The ensuing litigation involved hundreds of polluters and the Supreme Court noticed the action

as a representative action under Order 1, Rule 8 of the Code of Civil Procedure. The main

issue was the pollution of river ganga even after more than two decades after the enactment of

the water act.

In M.C Mehta v. Union of India (Kanpur Tanneries)46 the court issued direct orders to cease

operations. Similarly in M.C. Mehta v. Union of India (Municipalities)47 the Supreme Court

retained jurisdiction in Municipalities to review the steps taken by all the mahapalikas and

municipalities along the Ganges in Uttar Pradesh to control water pollution.

44 Ministry of Environment and Forests, Government of India, Annual Report: 1997-98 (1998) 45 Shankar, Purifying the Ganga in Down to Earth, 30 September 1992, p.25 and Banerji, Change at Last in Down to Earth, 28 February 1998, p. 20. The second article quotes a UK study suggesting some improvement In the water quality. 46 AIR 1988 SC 1037 47 AIR 1988 SC 1115

Judicial Initiatives in Gujrat

In early 1995, under the stewardship of Chief Justice B.N. Kirpal the Gujrat High Court

embarked on a crusade against industrial pollution. Gujrat has large chemical and textile

industries which have thrived at the cost of the environment. As the High Court discovered,

untreated effluents from scores of units had blighted agricultural fields around Ahmedabad

city. In Pravinbhai J. Patel v. State of Gujrat48 the court was dealing with extensive loss

suffered by the farmers on account on account of damage to crops from contaminated surface

water. The court accepted the loss estimated at Rs 28,34,000 by a team of government official,

directed the State Government to deposit the full amount (less contributions from industry) in

court to enable distribution to the farmers; and ordered the state to recover the entire amount

from industry.49

Lakes

Many of Indias fresh water lakes are imperilled by civic and development pressures.50 In the

case of M.C. Mehta v. Union of India (BADKHAL & SURAJKUND LAKES)51 the Supreme

Court attempts to stem the rot by framing ad hoc regulations to preserve two lakes in Haryana.

Groundwater

In many parts of India, industry, agriculturists and municipalities are increasing their

dependence on groundwater resources. For the user this is an attractive option since the source

is continuous (unlike monsoon fed river streams), the water is generally clean and the user

need not depend on external agency for the supply. The rights to the underground water are

attached to the land and hence land owners may draw on the ground water and use it as if it

were their own private property.52 According to Chhatrapati Singh this private ownership

regime is inequitable because it leaves out all the landless and tribals who do not enjoy private

ownership.

48 1995 (2) GUJ.L.REP 1210 49 The estimate of Rs 28,34,000 (1995(6) SCALE 578) was revised to Rs. 1,39,09,737 (1996(5) SCALE 412). The state government was directed to deposit the larger amount as well. 50 Narendra. Kolleru Lake: The Broken Mirror and Vania, Pulicat Lake: The Salt of Earth in Down to Earth, 31 December 1993 at 26 and 32 51 (1997) 3 SCC 715 52 Singh, Water Rights and Principles of Water Resources Management, 39 (1991)

Since exploitation of the groundwater has a bearing on the users fundamental right to life

under Article 21 of the Constitution, her right to dig bore wells cannot be restricted by an

executive fiat. This right may be restricted or regulated only by an Act of the legislature.53

There is no national statute regulating groundwater resources and apart from Gujrat none of the

states have legislated in this field. The Gujrat amendments to Bombay Irrigation Act

introduced a licencing procedure for sinking tube wells and prohibited the sinking of tube wells

beyond a depth of 45 meters.54

Until the Supreme Court judgment in M.C. Mehta v. Union of India,55 the Union Government

was of the view that central legislation may not be permissible since Water was a state

subject under Schedule VII of the Constitution. It state would need to introduce separate

legislation to regulate and control groundwater resources and to assist the states, a model bill

was circulated in 1970. The Supreme Court, however, expressed a prima facie view that Art.

253 of the Constitution and the provisions of the Environment (Protection) Act of 1986 (EPA)

empowered the Centre to regulate groundwater exploitation. The courts observations were

made on an application filled by M.C. Mehta urging the Central Government to constitute a

national authority under Sec. 3(3) of the EPA to insure that groundwater resources are

managed sustainably. Noting the recommendations made by the National Environment

Engineering Research Institute, Nagpur, the Supreme Court directed the Union Ministry of

Environment and Forest to constitute the Central Ground Water Board as an authority under

Sec. 3(3) of the EPA to regulate the indiscriminate exploitation of underground water in a

country.

53 Puttappa H. Talavar v. Deputy Commissioner AIR 1998 KAR 10. 54 Supra note 117. 55 1997 (11)SCC 312.

Conclusion

Water is one of the most crucial elements in developmental planning of India for the 21st

century. The growth of urban megalopolises, increased industrial activity and dependence of

the agricultural sector on chemicals and fertilizers has resulted in the overcharging of the

carrying capacity of the water bodies to assimilate and decompose wastes. Several ambitious

legal and institutional measures and projects like the Water Pollution Act, Pollution Control

Boards, and the National River Action Plan have yielded no significant results. There is a need

to bring about a perceivable shift in philosophy and address water problems to meet the

demands of a growing population by improving efficiency, prioritizing the water demand

sector-wise, and adopting policies and practices that check resource degradation. The judicial

interpretation in India helped evolve the fundamental right to water, in which its Supreme

Court decided that it will be implied in Article 21, including the right to a clean environment to

sustain life. In addition, the Supreme Court has applied the "precautionary principle" to prevent

the potential pollution of drinking water sources during industrial development, and issued an

order to polluters to clean up water sources and coastlines.

The waters of Ganges, once considered to be sacred, is the most polluted in India due to large

scale discharge of sewage and industrial effluents into it. The earlier attempts to regulate and

control pollution of water resources by application of criminal provisions of nuisance did prove

to be vital only up to some extent. Fast urbanization, industrialization and steep demand for

water have led to serious problems of water quality degradation. There is a fluctuating trend of

water quality attributed to the flow conditions in the river which depend on rainfall and water

abstraction. In view of water scarcity in the basin, it is very important that no wastewater be

discharged into the river. There is an urgent need to augment water availability in the basin by

rainwater collection, water conservation and environmental flow determination in various

segments of the river affected by water abstraction.

With emphasis on industrialization and globalization, the shift towards economic development

has taken priority over environmental issues. However, due to the large scale water scarcity

almost all the States are alarmed and concerned to provide safe and clean water to their citizens

as its endeavour towards realizing the fundamental rights of its citizens.

By:- Sauro Broto Dutta And Gargi Agrawal, 2nd Year, B.A LL.B(Hons.) Symbiosis Law School, Noida