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CHAPTER V

ENVIRONMENT PROTECTION AND LEGISLATIVE OBLIGATION

5.1. THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

The Water Act was enacted for the purpose of prevention and control of pollution of water. It came into being at a time when the country was already on the path of industrialisation and urbanisation. The need was keenly felt for treatment of domestic and industrial effluents, before they were discharged into rivers and streams. Pollution of

streams, rivers and other watercourses reduced the availability of potable water. In addition, it caused deterioration in the quality of vegetation and other living creatures in water. Water pollution as defined in The Water (Prevention and Control of Pollution) Act, 1974‘ means ―such 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, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a 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 plants or of aquatic organisms‖ . There are numerous sources of water pollution. The most important of them are industrial effluents, municipal sewage, waste from agricultural practices, etc. The Industrial effluents contain both organic and inorganic hazardous chemicals. When discharged through the sewage system, the industrial effluents poison the biological purification mechanisms of sewage treatment. In most of the cities and towns municipal sewage are not treated before discharges into the waterways. Since population growth is increasing the quantity of sewage generated is also increasing. The common organic materials found

in Municipal sewage are soaps, synthetic detergents, fatty acids, proteinous matters such as amines, amino acids, amides and amino sugars. In addition it also contains numerous micro organisms, some of which may be pathogenic in character. Modern agricultural practices also contribute its might to the water Pollution. Plant nutrients (fertilizers), insecticides and pesticides are introduced into watercourses by agricultural practices. To solve the problems caused by water pollution legally, the Parliament enacted a Statute in the year 1974 called ―The Water (Prevention and Control of Pollution) Act.

The objects of ‘The Water (Prevention and Control of Pollution) Act, 1974’ are1 :

• To provide for the prevention and control of water pollution; • To maintain or restore wltolesomeness of water; • To establish pollution control boards; and

• To confer on pollution control boards powers and functions relating to prevention and control of water pollution.

1 See Preamble, of the Water (Prevention and Control of Pollution) Act, 1974.

CHAPTER V - ENVIRONMENT PROTECTION AND LEGISLATIVE OBLIGATION

Definitions.—Section 2 of The Water (Prevention and Control of Pollution) Act, 1974‘

provides definitions for words like Board, Central Board, Member, Occupier, Outlet, Pollution, Prescribed, Sewage effluent, Sewer, State Board, State Government, Stream, Trade Effluent.

According to Section 2(e) of the Water Act, 1974, the word ―Pollution‖ is defined as ―such-

―contamination of water; or alteration of the physical, chemical or biological properties of

water; or discharge of any sewage or trade effluents or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to create a 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 plants or of aquatic organisms‖.

‘Sewage Effluent means effluent from any sewerage system or sewage disposal works and includes sullage from open drains.2

‘Trade Effluent includes any liquid, gaseous 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 domestic sewage.

The word ‘Stream’ is defined in Section 2(j) to ―include - • River • Water course (whether flowing or for the time being dry)

• Inland water (whether natural or artificial) • Sub-terranean waters

• Sea or tidal waters to such extent, or as the case may be, to such point as the State Government may, by notification in the official gazette, specify in

this behalf.

Constitution of Central Pollution Control Board.—The Central Pollution Control Board shall consist3 of the following members, namely—

• A full time Chairman

• Not more than 5 Officials as representatives of Central Government.

• Not more than 5 persons from amongst the Members of the State Boards, of whom not exceeding 2 shall be from Members representing the Local Authorities.

• Not more than 3 Members to represent the interest of agriculture, fishery or industry or trade or any other interest which in the opinion of the Government, ought to be represented.

• 2 persons to represent the companies or corporations owned, controlled or managed by the Central Government.

• A full time Member Secretary possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution

control.

2 Section 2(g), Id. 3 Section 3(2), Id

CHAPTER V - ENVIRONMENT PROTECTION AND LEGISLATIVE OBLIGATION

The Central Government nominates all the above members.

Constitution of State Pollution Control Board.—The State Pollution Control Board comprises4 of the following Members, namely.

• A Chairman

• Not more than 5 officials as representatives of State Government.

• Not more than 5 persons from amongst the Members of the Local Authorities functioning within the State.

• Not more than 3 members to represent the interest of agriculture, fishery or

industry or trade or any other interest which in the opinion of the Government, ought to be represented.

• 2 persons to represent the companies or corporations owned, controlled or managed by the State Government.

• A full time Member Secretary possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control.

The State Government nominates all the above members. The Members of the Board other than Member Secretary shall hold office for a period of 3 years from the date of his nomination. A Member of the Board is also eligible for re-nomination.

In State of Manipur v. Chandam Manihar Singh5 the Supreme Court held that a casual

vacancy in the State Pollution Control Board shall be filled by a fresh nomination and the person nominated to fill the vacancy shall hold the office only for the remainder of the term of the member in whose place he was nominated to hold office. This observation was

made by the Supreme Court in a SLP relating to the appointment and removal of Manipur State Pollution Control Board Chairman.

Constitution of Joint Pollution Control Board (JPCB).—Section 13 of the Water Act provides for the Constitution of Joint Boards. This Section provides for constitution of two types of Joint Boards. One is a Joint Board created by agreement between two or more governments of contiguous States. The second is a Joint Board created by agreement between the Central Government (in respect of one or more Union Territories) and one or more governments of State contiguous to such Union territory or Union

territories.

In the case of a Joint Pollution Control Board constituted in pursuance of an agreement between two or more governments of contiguous States, the Board shall consist of the following Members:

• A full time Chairman to be nominated by the Central Government

• Two officials from each of the participating States to be nominated by the

concerned participating State Government to represent that government.

4 Section 4(2), Id.

5 (1999) 7 SCC 503.

CHAPTER V - ENVIRONMENT PROTECTION AND LEGISLATIVE OBLIGATION

• One person to be nominated by each of the participating State government

from amongst the Members of the Local Authorities functioning within the State concerned.

• One non-official to be nominated by each of the participating State governments to represent the interest of agriculture, fishery or industry or trade in the State concerned or any other interest which, in the opinion of the participating State government, is to be represented.

• Two persons to be nominated by the Central government to represent the companies or corporations owned, controlled or managed by the participating State governments.

• A full time Member Secretary, possessing qualification, knowledge and

experience of scientific, engineering or management aspects of pollution control to be appointed by the Central government.

In the case of a Joint Pollution Control Board (JPCB) constituted in pursuance of an agreement between the Central Government (in respect of one or more Union territories) and one or more governments of States contiguous to such Union territory or Union territories, the Board shall consist of the following Members:

• A full time Chairman to be nominated by the Central Government.

• Two officials to be nominated by the Central Government from the participating Union territory oi each of the participating Union territories as the case may be, and two Officials to be nominated from the participating State or each of the participating States, as the case may be by the concerned participating government.

• One person to be nominated by the Central Government from amongst the Members of the Local Authorities functioning within the participating Union territory or each of the participating Union territories, as the case may be and one person to be nominated, from amongst the members of the Local

Authorities functioning with in the participating State or each of the participating States, as the case may be by the concerned participating State government.

• One non-official to be nominated by the Central Government and one person to be nominated by the participating State government to represent the interest of agriculture, fishery or industry or trade in the Union territory or the State concerned or any other interest which, in the opinion of the Central government or of the State government is to be represented.

• Two persons to be nominated by the Central government to represent the companies or corporations owned, controlled or managed by the Central government and situate in the participating Union territory or territories and two persons to be nominated by the Central government to represent the companies or corporations owned, controlled or managed by the participating State governments.

• A full time Member Secretary, possessing qualification, knowledge and experience of scientific, engineering or management aspects of pollution control to be appointed by the Central government.

Functions of the Central Pollution Control Board (CPCB).—Section 16 of the Water Act has enumerated the functions of the Central Pollution Control Board. The

main function of the CPCB shall be to promote cleanliness of streams and wells in different areas of the States. Apart from this, the CPCB may perform all or any of the following functions:

1. Advise the Central Government on matters relating to the prevention and control of water pollution.

2. Co-ordinate the activities of the State Pollution Control Boards (SPCB) and resolve dispute among them.

3. Provide technical assistance and guidance to the SPCBs, carryout and

sponsor investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution.

4. Plan and organise the training of persons engaged in programs for the

prevention, control or abatement of water pollution.

5. Organise comprehensive programs regarding prevention and control of water pollution through mass media.

6. Collect, compile and publish technical and statistical data relating to water pollution and measures devised for effective prevention and control of water pollution and prepare manuals, codes or guides relating to treatment and disposal of sewage and trade effluents and disseminate information

connected therewith.

7. Lay down, modify or annul the standards for a stream or well.

8. Plan and execute a nationwide program for prevention, control and

abatement of water pollution.

9. Establish or recognise laboratory or laboratories to enable the CPCB to perform the above functions and,

10. Perform such other functions as may be prescribed.

Functions of the State Pollution Control Board (SPCB).—Section 17 of the Water Act has laid down a list of functions to be performed by the SPCB. The functions are:

1. To plan a comprehensive program for prevention, control or abatement of

pollution of streams and wells in the State.

2. To advise the State Government on matters relating to prevention, control or

abatement of water pollution.

3. To collect and disseminate information relating to prevention, control or abatement of water pollution.

4. To encourage, conduct and participate in investigations and research

relating to prevention, control or abatement of water pollution.

5. To collaborate with the CPCB in organising the training of persons engaged in programs relating to prevention, control or abatement of water pollution.

6. To inspect sewage or trade effluents, works and plants for the treatment of

sewage and trade effluents and to review the plans, specifications or other data relating to plants set up for the treatment of water in connection with the grant of any consent as required by the Water Act.

7. To lay down, modify or annul effluent standard for the sewage and trade

effluents and for the quality of receiving waters and to classify the waters of the State.

8. To evolve economical and reliable methods of treatment of sewage and trade effluents.

9. To evolve methods of utilisation of sewage and suitable trade effluents in

agriculture.

10. To evolve efficient methods of disposal of sewage and trade effluents on land.

11. To lay down standards of treatment of sewage and trade effluents to be

discharged into in any particular stream.

12. To make, vary or revoke any order for the prevention, control or abatement of discharges of wastes into streams or wells and requiring any person concern to construct new systems for the disposal of sewage and trade effluents or to modify, alter or extend any such existing system or to adopt

such remedial measures as are necessary for prevention, control or abatement of water pollution.

13. To lay down effluent standards to be complied with the persons while discharging sewage or sullage.

14. To establish or recognise laboratory or laboratories to enable the Board to perform the above functions efficiently.

15. To advise the State Government with respect to the location of any industry

the carrying on of which is likely to pollute a stream or well.

16. To perform such other functions as may be prescribed or as may, from time

to time be entrusted to it by the Central Board or the State Government.

In O.K. Joshi v. State of U.P.6 the Supreme Court directed the State to set up a monitoring committee to oversee the functioning of the Government agencies responsible for prevention and control of water pollution viz., the Pollution Control Board.

In State of M.P. v. Kedia Leather & Liquor Ltd.7 the averments led to the conclusion

that the State Pollution Control Board was neither taking any action nor inspecting the various industries discharging pollutants in contravention of the provisions of the Water Act. The Supreme Court condemned the negligent attitude of the SPCB in discharging its statutory functions and held that the SPCB should discharge its statutory functions without any directions from the Court. The Court also observed that if the SPCB were

6 (1999)9 SCC 578. 7 (2001)9 SCC 605.

not discharging its functions, then no purpose would be served in maintaining such a Statutory Board. The Supreme Court also gave a direction to the Chief Secretary of M.P and the Chairman of the SPCB to identify and take appropriate action against the officers of the Board, who were responsible for the failure. This is a case where the Sub-Divisional Magistrate of the area concerned served orders in terms of Section 133 of the Criminal Procedure Code directing the respondents who owned industrial units to close their industries on the allegation that serious pollution was created by discharge of effluents from their respective factories and thereby a public nuisance was caused.

The State Government is empowered to supersede the CPCB, if at any time, the State Government is of the opinion that the SPCB has persistently failed to perform its functions prescribed by the Water Act.

Powers of the Central Government.—The Central Government is empowered by Section 18 of the Water Act to give directions in writing to the Central Pollution Control Board with respect to the carrying out of the functions by the CPCB. Such directions given by the Central Government in writing shall bind the CPCB.

The CPCB in turn may give directions to the State Pollution Control Board and such

directions given in writing shall bind the SPCB. If the Central Government is of the opinion that the SPCB has defaulted in complying with the directions given by the CPCB and as a result of such default a grave emergency has arisen, the Central Government may direct the CPCB to perform any of the functions of the SPCB in relation to such area for such period and for such purpose as may be specified in the

order.

The Central Government is also empowered to supercede the Central Board and Joint Boards for such period not exceeding one year, if at any time the Central Government is of the opinion that the CPCB or the JPCB has persistently made default

in the performance of the functions prescribed under the Water Act or that circumstances exist which render it necessary in the public interest to do so .

Section 63 of the Water Act empowers the Central Government to make rules to provide for all or any of the following matters:

1. The terms and conditions of the service of members of CPCB.

2. The intervals, the time and the place at which the meetings of the CPCB shall be held and the procedure to be followed at such meetings.

3. The fees and allowances to be paid to such members of committees of the CPCB.

4. The manner in which and purpose for which the persons may be associated with the CPCB and the fees and allowances payable to such persons.

5. The terms, conditions and service of the Chairman and the Member Secretary of CPCB.

6. Conditions subject to which a person may be appointed as Consulting Engineer to CPCB.

7. The powers and duties to be exercised and performed by the Chairman and

the Member Secretary of the CPCB.

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8. The form of the report of the CPCB analyst.

9. The form of the report of the Government analyst.

10. The form in which and the time within which the budget of the CPCB may be prepared and forwarded to the Central Government.

11. The form in which the Annual Report of the CPCB may be prepared.

12. The form in which the accounts of the CPCB may be maintained.

13. The manner in which notice of intention to make a complaint shall be given

to the CPCB or officer authorised by it.

14. Any other matter relating to CPCB including the powers and functions of CPCB in relation to Union Territories.

In exercise of the powers conferred by Section 63 of the Water Act, the Central

Government after consultation with the CPCB has enacted ―the Water (Prevention and Control of Pollution) Rules, 1975‖.

Powers of the State Government. — The State Government is empowered by Section 19 of the Water Act to restrict the application of the Water Act to certain areas. If the State Government is of the opinion, after consultation with the SPCB or on the recommendations of the SPCB, that the provisions of the Water Act need not be applied to the entire State then it may notify in the Official Gazette and restrict the application of this Act to such area or areas as may be declared therein as water pollution, prevention and control area and thereafter the provisions of the Water Act shall apply only to such areas.

The State Government is also empowered by Section 19 to alter any water pollution,

prevention and control area and to define a new water pollution, prevention and control area. The State Government is conferred with the powers to give directions in writing to the State Pollution Control Board. In case if there is inconsistency between the directions given by the State Government and by the CPCB, the matter shall be referred to the Central Government for its decision.

The State Government is empowered to supercede the SPCB for a period, not exceeding one year, if at any time, the State government is of the opinion that the SPCB has persistently failed to perform its functions prescribed by the Water Act or that

circumstances exist which render it necessary in public interest to do so . In G. S. Oberoi v. State of Punjab8, the Court held that the order of the State

Government superseding the SPCB and removing the Chairman from office was valid since, the State Government issued the orders after forming opinion on materials available and on the basis of report prepared in context of complaints received from various quarters that the Board was not properly administered and its activities were contrary to public interest. The Court further held that giving of notice or opportunity of

hearing to the Board or its Chairman and members was not necessary. In RA. Goel v. Union of India The Haryana Chamber of Commerce and Industry through its Chairman made a complaint to the Commissioner and Secretary to the

8 AIR 1998 P&H 67.

Government of Haryana Departments of Industries and Environment complaining against the non-compliance of the Government policy by the Board. The grievance made therein, was, even though the Government had decided that no NOC would be required to be obtained by a small scale industrial unit except by 17 categories of highly polluting industries identified by the Government of India and 19 categories of highly polluting industries identified by the Board and despite an earlier decision of the Board to the same effect, the regional offices of the Board were issuing notices to various small scale industrial units to obtain consent under the Water Act and under

S.21 of the Air (Prevention and Control of Pollution) Act, 1981. This is in spite of those units neither falling in the 17 types of highly polluting industries nor in the 19 types of polluting industries as identified by the Board. The Chamber requested the State Government to issue instructions to the Board to implement the Government orders and the Government industrial policy and save the small scale industrial units from harassment being caused by this whimsical action of the Board and a copy of this complaint was forwarded to the Board for its comments. To this the Member Secretary of the Board informed the State Government that they had no right to issue such administrative orders as no such orders could be issued in

infringement of the Water Act and the Air Act and also the Environment Protection Act. Consequently Commissioner of Industries sent recommendation for superseding the Board. Against this recommendation for superseding the board, this case came up for hearing. The court held that a detailed perusal of the files of the two departments of the Government leaves no room for doubt that the action of the State Government in superseding the Board was not actuated by any mala fide intentions but was governed purely by the interest of the State for promoting its industrial growth. Thus the order

of superseding passed by the State Government would not be illegal. It was with a view to attract small scale industries and to give impetus to them that the Government at its highest level had decided not to ask for NOCs from them except from the 36 highly polluting industries identified by the Government of India and the Board. The conduct of the Board in insisting for such NOCs from all the industries was against Government policy, which was bound to adversely affect industrial growth in the State. This was leading to discontent in the industry and the Government was receiving numerous complaints against the Board. The Government was, thus,

justified in forming an opinion that circumstances existed which necessitated superseding of the Board. When the State Government on examination of the material available with it, came to the conclusion that circumstances existed which render it necessary in public interest to supersede the Board, the court observed that it is not necessary to issue any show cause notice either to the Board or to any member thereof. The Parliament has by necessary implication excluded the principles of natural justice when the Board is to be superseded in public interest for valid reasons.

The State Government is empowered by Section 64 of the Water Act to make rules for carrying out the purposes of this Act and for providing for all or any of the following matters:

1. The terms and conditions of service of the members of the SPCB

2. The time and place of meetings of the SPCB and the procedure to be

followed.

3. The fees and allowances to be paid to such members of the committees of

the SPCB.

4. The manner in which and the purposes for which the persons may be associated with the SPCB.

5. The terms and conditions of service of the Chairman and the Member

Secretary of the SPCB.

6. The conditions subject to which a person may be appointed as a Consulting Engineer to the SPCB.

7. The powers and duties to be exercised and discharged by the Chairman and

the Member Secretary of the SPCB.

8. The form of notice to be served by the person taking sample of any sewage or trade effluent, on the person in charge of the plant or vessel or in occupation of the place, of his intention to have it analysed.

9. The form of the report of the SPCB analyst.

10. The form of the report of the Government analyst. 11. The form of application for consent of the SPCB.

12. The manner in which inquiry may be made in respect of an application for

obtaining consent of the SPCB and the matters to be taken into account in granting or refusing such consent.

13. The form and manner in which appeals may be filed, the fees, payable in

respect of such appeals and the procedures to be followed by the Appellate Authority in disposing of the appeals.

14. The form in which and time within which the Budget of the SPCB may be prepared and forwarded to the State Government.

15. The form in which annual report of the SPCB may be prepared.

16. The form in which the accounts of the SPCB may be maintained.

17. The manner in which a notice of intention to make a complaint shall be given to the SPCB or officer authorised by it.

18. Any other matter, which may be prescribed.

In exercise of the powers conferred by Section 64 of the Water (Prevention and Control of Pollution) Act, 1974, the Governor of Tamil Nadu, after consultation with

the Tamil Nadu Pollution Control Board has made ―the Tamil Nadu Water (Prevention and Control of Pollution) Rules, 1983‖.

Powers of the Central Pollution Control Board.—The CPCB is vested with the following powers:

1. The Central Pollution Control Board is empowered by Section 18 of the

Water Act to give directions to the State Pollution Control Boards.

2. The CPCB has powers to perform any of the functions of the SPCB in case of non-compliance of any directions given by the CPCB.

3. The CPCB is empowered to issue directions under Section 33A to direct:

a)The closure, prohibition or regulation of any industry, operation or process; or

b) The stoppage or regulation of supply of electricity, water or any

other service

Powers of the State Pollution Control Board.—The State Pollution Control

Board (SPCB) has the following powers conferred on it by the Water Act:

1. Power to obtain information (Section 20) 2. Power to take samples of effluents for analysis (Section 21) 3. Power of entry and inspection (Section 23)

4. Power to impose restriction on new outlets and new discharges (Section 25)

5. Power to refuse or withdraw consent for establishment of any industry, etc. (Section 27)

6. Power to carry out certain works (Section 30)

7. Power to carry out emergency operations in case of pollution of stream or

well (Section 32).

8. Power to make application to courts for restraining apprehended pollution of water in streams or wells (Section 33).

9. Power to give directions (Section 33A).

1. Power to obtain information (Section 20).—

For the purpose of enabling the SPCB to perform the functions prescribed by the Water Act, it may survey any area and keep records of the flow or volume and other characteristics of a stream or well. The SPCB is empowered to give directions requiring any person who is abstracting water from any such stream or well or is

discharging sewage or trade effluent into any such stream or well, to give such information as to the abstraction or the discharge in the form prescribed. The SPCB is also empowered to give directions to any person in charge of any establishment where any Industry, operation or process, or treatment and disposal system is carried out, to furnish all information regarding the construction, installation or operation of such establishment or of any disposal system or of any extension or addition thereto in such establishment.

In case of failure to comply with directions given under Section 20, the offender

shall be liable for imprisonment, which may extend up to 3 months or with fine up to Rs. 10000/- or with both. If the failure continues then the offender is liable for an additional fine, which may extend to Rs.5000/- for every day during which such failure continues.

2. Power to take samples of effluents for Analysis (Section 21).—

The SPCB or any officer authorised by the SPCB shall have power to take samples of water from any stream or well or samples of any sewage or trade effluent, for the purpose of analysis. Section 21 of the Water Act also lays

down the procedure for taking samples of effluents. The procedure is:

The Officer authorised by the SPCB shall serve a notice declaring the intention to take the sample for analysis, then and there, on the person in charge of or having control over the plant or vessel or in occupation of the place (Occupier).

If the occupier willfully absents himself, the person taking the

sample shall inform the government analyst in writing about the willful absence of the occupier or his agent.

If the occupier is present, then the sample collected shall be divided into two parts in the presence of the occupier or his agent.

The person taking the sample shall place it in a container which

shall be marked and sealed and signed by both the person taking the sample and the occupier or his agent.

After sealing and signing the container, the person taking the

sample shall send one container to the laboratory established by the SPCB.

On the request of the occupier or his agent, the person taking the

sample shall send the second container to the State Water Laboratory established by the State Government.

In Delhi Bottling Co v. Central Board for the Prevention and Control of Water

Pollution the Delhi9 High Court held that the officials of the Board were not justified in getting the sample analyzed from a laboratory recognized by the Board instead of from the laboratory of the Delhi Administration without complying with the requirements of Section 21(5). That being so the conclusion that the petitioners were discharging effluents in the stream, which were likely to cause pollution, was held not sustainable.

3. Power of entry and inspection (Section 23).;—Any person empowered by the

SPCB shall have their right to enter any place at any time for the purpose of—

Performing any of the functions of the SPCB entrusted to him;

Determining whether the provisions of the Water Act, the rules

made thereunder, or any notice, order, direction given is complied with or not;

Examining any plant, record, register, document or any material

object or for conducting a search of any place in which he has reason to believe that an offence under this Act or rules made thereunder is being committed and for seizing any such plant, record, register, document or other material object if he has

reason to believe that it may furnish evidence of the commission

9 AIR 1986 Delhi 152 (154).

of an offence punishable under the Water Act or the rules made there under.

However, the search or seizure shall be made in accordance with the procedure

prescribed under Section 94 of the Code of Criminal Procedure, 1973. Cr.P.C. section 94.

3. Power to impose restriction on new outlets and new discharges (Section25)-

Section 25 of the Water Act prohibits persons from—

• Establishing or taking any steps to establish any industry, operation or

process or any treatment and disposal system or an extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land, without the previous consent of the SPCB.

• Bringing into use any new or altered outlets for the discharge of sewage,

without the previous consent of the SPCB.

• Beginning to make any new discharge of sewage without the previous consent of the SPCB.

An application for consent of the SPCB shall be made in such form and shall be

accompanied by such fees-as may be prescribed. On receipt of the application, the SPCB may make such inquiry, as it may deem fit.

The SPCB after making such inquiry, as it may deem fit may grant its consent subject to certain conditions, which will be valid for such period specified by the SPCB in the

consent order. The SPCB may also refuse to grant consent for reasons to be recorded in writing. The application for consent shall be disposed of within a period of four months. If the SPCB do not either grant or refuse consent within a period of 4 months from the date of application then it will be presumed that consent has been accorded without any conditions.

In Narula Dyeing & Printing Works v. Union of India10 the Court held that obtaining a consent order from the SPCB does not mean that the industry is entitled to discharge trade effluents into stream. It is incumbent upon the industry to comply with all the

conditions prescribed in the Consent order within the stipulated time limit. Failure to fulfill the conditions will result in the lapse of the consent.

In A. P. Pollution Control Board II v. M.V. Nayudu11 the argument of the industry was that the since the building permission was given by the Local Authority and permission for conversion of land use was given by the Collector, the principle of ―promissory estoppel‖ applied to the facts of this case and the SPCB could not refuse NOC. The Court referred to Section 25 (1) which reads as follows: ―Section 25(1):

Subject to the provisions of this section, no person shall, without the previous consent of the State Board - (a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension of additional thereto...‖ The Court held that ―the prohibition now extends even to ‗establishment‘ of the industry or taking of steps for that process and therefore before consent of the Pollution Board is obtained, neither can the industry be established nor any steps can be taken to establish

10 AIR 1995Guj. 185. 11 (2001) 2 SCC 64.

it.‖ The Court further held that since the action of the industry being contrary to the provisions of the Act, no equities can be claimed and that there could be no estoppel against the statute.

In Vijayanagar Education Trust v. Karnataka State Pollution Control Board12 the issue was when there is a threat of non-negligible danger to the environment, whether deemed consent is applicable in such cases even after the expiry of 120days. The petitioner Trust, with a view to establish a medical college on the banks of Kumudavathi River applied for consent on November 27, 1999. Till February 9, 2000 when the SPCB

wrote a letter to the petitioner to coordinate with and organize a site inspection nothing had transpired. Later, the SPCB, which was all the while silent on this aspect, woke up after the publication of an article in Indian Express, on May 28, 2000 stating, ―The construction of the medical college is likely to pollute the Kumudavathi River, which is located near the proposed construction. Kumudavathi flows into the Thippegondanahalli reservoir and there is every likelihood of pollution as this reservoir is one of the major sources of drinking water to Bangalore City‖ and issued an order dated June 9, 2000 refusing to grant permission to establish a medical college. On the

aspect of deemed consent under clause 7 of Section 25, the Court observed that the consent referred to in this section shall be deemed to have been given on three conditions: Firstly Consent shall not have been given or refused earlier; Secondly A period of four months ought to have expired after making of the application; Thirdly The application should be complete in all respects.

On an application establishing that these three factors do exist in favour of the applicant, it would have to be deemed that the permission was given unconditionally, immediately on the expiry of the four months.

4. Power to refuse or withdraw consent for establishment of any industry, etc.,

(Section 27).—The SPCB shall not grant its consent for the establishment of any industry, operation or process etc. unless the industry, operation or process etc. is so established as to comply with all the conditions imposed by the Board.

The SPCB may from time to time review any condition and may require the person to

whom the consent is granted to make reasonable variation of such condition or the SPCB may revoke any such condition.

In Narula Dyeing & Printing Works v. Union of India13 the Court held that obtaining a consent order from the SPCB does not mean that the industry is entitled to discharge

trade effluents into stream. It is incumbent upon the industry to comply with all the conditions prescribed in the Consent order within the stipulated time limit. Failure to fulfill the conditions will result in the lapse of the consent.

In Mahabir Soap and Godakhu Factory v. Union of India14 the State Pollution Control Board refused consent to the continuation of industry on the ground that factory is located in the populated area and there was a public complaint. It was held that the reasons cited by the SPCB are in conformity with the object of the Act. The Court further held that the refusal is in the discretion of the SPCB and it is not for the Court to

go into the propriety of reasons and substitute its own opinion in place of the decision of the SPCB.

12 AIR 2002 Kant 123.

13 AIR 1995 Guj. 185.

14 AIR 1995 Ori.218.

Any person, who is aggrieved by an order, made by the SPCB under Section 25 or

Section 27 may prefer an appeal to the appellate authority constituted by the State Government, within 30 days from the date on which the order is communicated to him.

In A. P. Pollution Control Board v. M. V. Nayudu the court held that there is an

immediate need that in all the States and Union Territories, the Appellate Authorities under Section 28 of the Water Act, 1974 and Section 31 of the Air Act, 1981 or other rules there is always a judge of the High Court, sitting or retired and a scientist or group of scientists of high ranking and experience, to help in the adjudication of disputes relating to environment and pollution.

5. Power to carry out certain works (Section 30).—

In cases where the SPCB has granted consent subject to certain conditions and such

conditions require such person to execute any work in connection therewith, the person is expected to carry out those works to fulfill the conditions under which the consent was granted. If the person fails to execute any work in connection with the fulfillment of the conditions imposed by the SPCB, then the SPCB shall serve a notice on the person requiring him to execute the work within the time period prescribed in the notice. In spite of the notice if the person on whom the notice is served fails to execute the work to comply with the conditions, the SPCB may itself execute such work and all expenses incurred by the SPCB for the execution of the

aforesaid work together with interest will be recovered by the SPCB from the person concerned as arrears of land revenue.

6. Power to carry out emergency operations in case of pollution of stream or well (Section 32).—

If it appears to the SPCB that any poisonous, noxious or polluting matter is present in any stream or well or on land by reason of discharge of such matter in such stream or well or on such land or as entered into that stream or well due to any accident or other

unforeseen act or event, the SPCB may for reasons recorded in writing carry out certain emergency operations for all or any of the following purposes:

• Removing that matter from the stream or well or on land and disposing it off in such manner as the Board considers appropriate;

• Remedying or mitigating any pollution caused by its presence in the stream or well;

• Issuing orders immediately restraining or prohibiting the persons concerned from discharging any poisonous, noxious or polluting matter into the stream

or well or on land or from making insanitary use of the stream or well.

7. Power to make application to courts for restraining apprehended pollution of water in streams or wells (Section 33).—

If the SPCB apprehends that the water in any stream or well is likely to be polluted by reason of the disposal or likely disposal of any matter in such stream or well or in sewer, or on any land, or otherwise, the SPCB may make an application to a court not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate for restraining the person

who is likely to cause such pollution from causing such pollution.

In Maharaja Shri Umaid Mills v. State of Rajasthan15 the Petitioner was a public

limited company running a textile mill. The industrial effluent of the mill was being discharged in the Bandi River. The SPCB filed an application under Section 33 of the Act expressing its grave apprehension that the untreated disposal of sewerage and trade effluent containing noxious poisons will pollute the stream and wells in the area. The Prayer was to restrain the industry from causing such pollution. The Chief Judicial Magistrate followed the procedure prescribed under Order 39 Rules 1 and 2 CPC since it was an injunction matter. However the application was dismissed for non-appearance of

the SBCB. Thereafter the PCB filed an application for setting aside the earlier order and restoration of the application. The CJM by following the procedure under order 9 CPC restored the case and set aside its earlier order. Against this order the present writ petition was filed. The Rajasthan High Court held that ―Sec.33 of the Act is analogous to and pari materia with Section 133 of the CrPC and serves the same problems. Both these provisions though in different legislations are intended to curb the evil of public nuisance. Both provide preventive measures and function side by side. Section 33 is a social piece of legislation and provides a remedial measure and makes a provision for

remedial action being taken where there is an apprehension that the water in any stream or well is likely to be polluted on account of disposal or likely disposal of trade effluent in such stream or well. The proceedings under section 33 can be instituted in the court of Metropolitan Magistrate or a Judicial Magistrate and after being satisfied the Magistrate can make any order as he deems fit restraining the person concern from polluting water in any stream or well.‖ The Court further held that ―Section 33 intends to arrest the damage and repair it and to take preventive measures to check the pollution of each water resources. Non-compliance of the injunction issued under this section entitles criminal prosecution and conviction. The learned Magistrate was not right in adopting

the procedure for the adjudication of the application which is applicable to the injunction application under order 39 Rules 1 and 2 CPC.

In Sukhna Paper Mills v. State of Punjab16 the Punjab and Haryana High court held that where a decision issued by the court is not complied with, the Court can authorize

the court to undertake removal or disposal of the matter in such manner as may be specified by the Court for desisting pollution of water in any stream or well.

8. Power to give Directions (Section 33A).—The SPCB may, in exercise of its powers and performance of its functions under the Water Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions. The power to issue directions includes the power to direct:

• the closure, prohibition or regulation of any industry, operation or process;

or

• the stoppage or regulation of supply of electricity, water or any other service.

In Ambuja Petro Chemicals v. AP Pollution Control Board17 the petitioner was

manufacturing chemicals and on 11/12/1995 and on 3/1/1996 the officers of the

15 AIR 1998 Raj. 9. 16 AIR 1997 AP 41. 17 1996 AIHC 2795.

respondents SPCB inspected the factory premises of the petitioner. The petitioner was issued with a notice alleging inter alia that effluent sample discloses the values are in excess of the standards prescribed by the Board. It was also alleged that the petitioner was not lifting the effluents for final treatment and disposal. The petitioner submitted his reply to the notice and the Board considered the same. Thereafter, the Board issued the proceedings for the closure of the unit, which was impugned in the writ petition. While dismissing the writ petition the Andhra Pradesh High Court opined inter alia, that the order passed by the SPCB directing the closure of the industry is ―shockingly

disproportionate and excessively severe‖. However the Court said that it was always open to the Petitioner Industry to comply with the directions issued by the SPCB and fulfill the requirement of standards and approach the SPCB for restarting its industrial activities and the same shall have to be considered by the Board on its own merits.

In Associated Traders v. State of West Bengal18 the Calcutta High Court held that before passing an order of closure the SPCB should give the industry an opportunity to take ay remedial measures for the purpose of prevention of pollution. The Court relied on Rule 34 of the Water Rules, 1975 and held inter alia as follows: ―Under sub-rule 6 of Rule 34 of the Water Rules, 1975, Central Board can pass appropriate direction under

Section 33A of the Act without providing an opportunity to the person concerned, but that can be done only when the Board is of the opinion that in view of the likelihood of a grave injury to the environment it is not expedient to provide such an opportunity to file petition against the proposed action.‖ The Court further relied on Rule 34 and opined that ―As per Rule 34, before stating the final decision of the closure of the aforesaid foundry of the petitioner certainly he should have been given an opportunity to file petition to the proposed action of the Board and also an opportunity to take any remedial measures for the purpose of prevention of pollution, if that is possible before passing of

the order of closure.‖ The Court directed that ―since the respondents have passed the impugned order under both the Acts (namely Water and Air) the best way to resolve disputes is by specifying clearly the nature of pollution, whether water or air or both are polluted by running of the foundry after due consideration thereof and by giving an opportunity to the petitioner to take all the necessary remedial measures for the purpose of preventing such pollution.

In Mandu Distilleries v. M.P Pradushan Niwaran Mandal19 the High Court quashed

the order of closure made by the SPCB on the grounds that there was denial of principles of natural justice and violation of procedural safeguards. The Court also pointed out that the grounds stated in the show-cause notice and the basis of order of closure were not the same.

In Re: Bhavani River Shakthi Sugars Ltd.20 the Supreme Court upheld the order of

closure made by the SPCB. The facts of this case are: The Pollution Control Board issued directions to the Sugar Industry for proper treatment of the effluents and for ensuring proper storage of effluents in lagoons. Due to noncompliance of the conditions prescribed by the SPCB the effluents reached the River Bhavani and polluted its water. Since the industry did not take any remedial steps despite enough time granted by the

PCB, the SPCB order the closure of the industry.

18 1996 AIHC 2795.

19 AIR 1995 MP 57.

20 (1998) 2 SCC 601.

In M.C. Mehta v. Union of India21 (Calcutta Tanneries Case) the Supreme Court upheld the order of closure of Tanneries made by the Board since the Tanneries in Calcutta were operating in violation of the provisions of the Water Act as well as environment (Protection) Act, 1986.

In Stella Silks v. State of Karnataka22 the High Court upheld the order of closure made by the SPCB. This writ petition was filed by a limited company which carried on certain manufacturing activity of silk fabrics. It was contended by the petitioner that in the course of its manufacturing activity, the petitioner‘s unit, also having a dyeing unit,

was used for the purpose of dyeing the silk fabrics. In the activity of dyeing, water was extensively used and quite naturally, in the process, water gets contaminated and the petitioner has to get rid of this contaminated water. It appears, that the petitioner sought the consent of the Pollution Control Board under the Water Act and the same was granted with conditions for compliance. However, it appears, the petitioner having not complied with various conditions that had been imposed on it by the Board in the matter of discharging pollutants from its factory premises, particularly, discharge of contaminated water, had been put on notice by the Pollution Control Board to take

remedial steps immediately and in the alternative, the Board was constrained to pass appropriate orders in this regard. A show notice was issued with certain directions under sec. 33-A of the Act directing the Management of the petitioner industry to close down the industrial operation or process forthwith until further orders and with further directions to the Chairman/ Secretary of the Karnataka Electricity Board to stop the power supply to the industry forthwith and until further orders and for cancellation of the license that had been granted by the Government of Karnataka and for such other allied actions. The petitioner henceforth moved a writ of certiorari to quash the same. The main contention of the petitioner was that they had not been adequate opportunity

of being heard, and hence this order has violated the principles of natural justice. They also pleaded that if the Hon‘ble Court grants 2 or 3 weeks time, they would take steps and care to bring the effluent treatment plant in conformity with the norms and standards laid down by the PCB. More over the company is a 100% EOU employing more than 400 persons in the industry, hence the order could affect a growing concern. The Court observed that the interest of a particular person or a particular industry is not the concern with which the Act has been enacted by the legislature. It is for the protecting the interest of society and for ensuring the ecological preservation of nature such

enactments are made. When persons like the petitioner flout the various provisions of the Act and conditions imposed there under only for their own private benefits, such acts cannot be entertained. More so, in the instant case, the conduct of the petitioner has been far from bona fide and being one of continuing to flout the orders passed by the Judiciary and violating its own undertakings filed before the Court and continue to run the industry even without any enabling power or order in their favour in as much as on and after 18/8/1999 there was no interim orders which enabled the petitioner to continue the industry. Nevertheless, the petitioner has continued to run the industry, continued to

pollute the environment by discharging contaminated water. The Court held that the petition had no merits and does not deserve any indulgence at their hands. Though the Court held that the conduct of the Board officials definitely does not entitle them for award of any costs, costs were imposed more as a measure of deterrent on the persons

21 (1997) 2 SCC 411. 22 AIR 2001 kant. 219.

like the petitioner who not only abuse the process of Court with false and frivolous causes, but also flout with impunity the undertakings given before the Court.

Penalties.—

Statutory provisions under Sections 41 to 50 deal with penalty and procedure where violation of the provisions of this Act have taken place. The Act does not prescribe same penalty for different Acts of violation. It lays down different penalties.

1. Failure to comply with directions.—Whoever fails to comply with any direction under Sections 20 (2) or (3) within such time as may be specified in the direction shall, on conviction be punishable with imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees or with both and in case failure continues, with an additional fine which may extend to five thousand rupees for

every day during which such failure continues after the conviction for the first such failure.23

Similarly, whoever fails to comply with any order issued under Section 32 (1) (c) or Section 32 or Section 33-A, shall in respect of each failure and on conviction, be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine which may extend to five thousand rupees for every day during which such failure continues after the conviction

for the first such failure.24 If the failure continues beyond a period of one year after the date of conviction, the offender shall, on conviction, be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine.25

2. Penalty for certain acts (Section 42).—(1) Whoever—

(a) destroys, pulls down, removes, injures or defaces any pillar, post or stake fixed in

the ground or any notice or other matter put up, inscribed or placed by or under the authority of the Board; or obstructs any person acting under the orders or directions of the Board from exercising his powers and performing his functions under this Act; or damages any work or property, belonging to the Board, or officer or other employee of the Board. fails to furnish any information required of him for the purposes of this Act; or fails to intimate the occurrence of any accident or other unforeseen act or event under Section 31 to the Board and other authorities or agencies as required by that section; or

(b) in giving any information which he is required to give under this Act, knowingly or willfully makes a statement which is false in any material particular; or

(c) for the purpose of obtaining any consent under Section 25 or Section 26, knowingly or willfully makes a statement which is false in any material particular, shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to one thousand rupees or with both.26

(2) Where a person is required to use a meter or gauge or other measure or monitoring

device, any person who knowingly or willfully alters or interferes with that device so as

23 Section 41 (1) 24 Section 41 (2) 25 Section 41 (3) 26 Section 42 (1)

to prevent it from monitoring or measuring correctly, shall be punishable with

imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both27

3. Penalty for contravention of provisions of Section 24.—Whoever

contravenes the provisions of Section 24, i.e., prohibition on use of stream or well for disposal of polluting matter etc, shall be punishable with .imprisonment for a term which shall not be less than one year and six months, but which may extend to six years and with fine28.

4. Penalty for contravention of Section 25 or Section 26.—Whoever contravenes the provisions of Section 25, i.e. restrictions imposed on new outlets and new discharges or Section 26, provisions relating to existing discharge of sewage or

trade effluent, shall be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine29.

5. Enhanced penalty after previous conviction [Section 45]—If any person who has been convicted of any offence under Sections 24, 25 and 26 is again found guilty of an offence involving a contravention of the same provision he, on second every subsequent conviction be punishable with imprisonment for a term which shall not be less than two years, but which may extend to seven years and with fine. But no cognizance shall be taken of any conviction made more than two years before the

commission of the offence which is being punished.

6. Penalty for contravention of certain provisions of the Act [Section 45-A]—Provision has been made that whoever fails to comply with any order or direction given under this Act, for which no penalty is elsewhere provided under this Act, shall be punishable with imprisonment which may extend to three months or with

fine which may extend to ten thousand rupees or with both and in case of a continuing contravention or failure, with an additional fine which may extend to five thousand rupees for every day during which such contravention or failure continues after conviction for the first such contravention or failure.

7. Offences by Companies.—Section 47 (1) lays down that wherever an offence

is committed by a company, every person who at the time the offence was committed was incharge of and responsible to the company for the conduct of the business of the company, as well as the company shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly. But no person shall be liable to punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

In U.P. Pollution Control Board v. Modi Distillery,30

there was pollution by the industrial unit resulting in prosecution of Chairman, Managing Director and other

Directors of the Company. There was willful default on the part of industrial unit in furnishing details. Consequently, the name of the company thereof was wrongly

27 Section 42 (2) 28 Section 43 29 Section 44 30 AIR 1988 SC 1128.

described in the complaint. It was held by the Supreme Court that this cannot be the

ground for quashing the complaint against the Chairman and others.

However, if the offence is committed by a company and it is proved that the offence was committed with the consent or connivance of or is attributable to any neglect on the part of any Director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.31

8. Offences by Government Departments.—Where any offence has been committed by any Government Department, the Head of the Department

shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished. However, he shall not be liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the Commission of such offence32.

9. Who can make complaint—Cognizance of Offences.—No Court shall take cognizance of any offence under this Act unless the complaint is made by— a Board or any officer authorised in this behalf by it; or any person who has given notice of not less than sixty days, in the prescribed manner, of the alleged offence and of his intention to make a complaint to the Board or the authorised officer. The Trial

Court must not be inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of first class.

Where a notice has been given by any person, the Board shall, on demand by such person, make available relevant reports in its possession to that person. But the Board may refuse to make any such report available to such person, if the same is, in its opinion, against public interest.33

It shall be lawful to any Judicial Magistrate of first class or for any Metropolitan Magistrate to pass a sentence of imprisonment for a term exceeding two years or of fine exceeding two thousand on any person convicted of an offence punishable under this

Act.34

10, Publication of names of offenders.—

If any person convicted of an offence under this Act commits a like offence afterwards, it shall be lawful for the Court before which the second or subsequent conviction takes place, to cause ‗the offenders‘ name and place of residence, the offence and penalty imposed, to be published at the offender‘s expense in such newspaper or in such other manner as the Court may direct and the expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable

in the same manner as a fine35.

11. Members, officers and servants of Board to be public servants

31 Section 47 (2) 32 Section 48 33 Section 49 (2) 34 Section 49 (3) 35 Section 46

All members, officers and servants of Board when acting or purporting to act in

pursuance of any of the provisions of this Act and the rules made thereunder shall be deemed to be public servants within the meaning of Section 21 of the Indian Penal Code.

12. Offences by Companies and by Government Departments.—

Where an offence under the Water Act has been committed by the Company

(Company means any body corporate, and includes a firm or other association of individuals), every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence.

In UP Pollution Control Board v. Mohan Meakins Ltd. 36 the Special Leave Petition

before the Supreme Court was related to the discharge of trade effluents by an industrial unit in river Gomathi, a tributary of Ganga. The directors of the company in this case were guilty of offence under Section 43 of the Water Act. On the submission made by the council for the company to discharge the directors of the Company on the grounds of lapse of a long time the Court observed that lapse of such long period cannot be a reason to absolve the respondents from the trial. The Court observed that the discharge of noxious polluting effluents into streams inflicts injury on the public health at large and causes irreparable impairment on the aquatic organisms and imposes deleterious effect

on the life and health of animals. The Court said that it couldn‘t deal with the prosecution of the offences under this Act in a casual routine manner. The Court in their order set aside the impugned judgment of the High Court and directed the lower Court to proceed with the trial and dispose with the same as expeditiously as possible.

Where any Department of Government has committed an offence under the Water Act, the Head of the Department shall be deemed to be guilty of the offence.

Cognizance of offences.—No Court inferior to that of the Metropolitan Magistrate or a Judicial Magistrate shall try any offence punishable under the Water Act.

The Metropolitan Magistrate or Judicial Magistrate shall take cognizance37 of any offence under the Water Act only when the complaint is made by—

1. the Board or any officer authorised in this behalf;

2. any person who has given notice of not less than 60 days to the Board or officer authorised declaring his intention to make a complaint.

Notwithstanding anything contained in Section 29 of the Code of Criminal

Procedure, 1973, it shall be lawful for any Judicial Magistrate or any Metropolitan Magistrate to pass a sentence of imprisonment for a term exceeding 2 years or of fine exceeding Rs.2000/- on any person convicted of an offence punishable under the Water Act.

When any individual makes a complaint, the Board shall on demand by such person,

make available to that person, the relevant reports in its possession. However, the Board

36 AIR 2000 SC 1456.

37 Section 49, Id.

may also refuse to make any such report available to such person, if the same is, in its

opinion, is against the public interest. In Pravinbhai J. Patel v. State of Gujarat38 the Court found that hundreds of

industrial units were engaged in large-scale pollution and had made little or no effort to comply with the law. ‗Neither the industry, which causes pollution, nor the government nor the GPCB nor the GIDC have paid more than lip service to the Environmental laws. ...It will not be wrong to say that the continued violation of the law by the industrial units has become a habit and condoning it by the governmental authorities, a practice.‘ The Court was dismayed by the role of the enforcement agencies: ‗since 1980, till today

not a single unit or person has been convicted of having violated any of the pollution laws. In fact, not in a single case have the prosecution proceedings... been completed.‘ Later in the judgment the court observed that government ‗has abetted or collaborated with the industry in breaking the law...‘ and that the GPCB had neglected its duties despite citizen complaints.

Bar of Jurisdiction of Civil Courts.—Section 58 of the Water Act has barred the

jurisdiction of the Civil Courts to entertain any suit or proceeding in respect of any

matter which an Appellate Authority constituted under the Water Act is empowered by or under this Act to determine. The Section also provides that ―no injunction shall be granted by any court or authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Water Act.‖

In Sreenivasa Distilleries v. Thyagarqjan39 a suit was filed by the plaintiff, praying

for a permanent injunction restraining the defendants from letting out noxious effluents

into the river. The defendant raised an objection that the suit was not maintainable in

view of Section 58 of the Act. The Court held that ―Section 58 enacts two prohibitions.

Firstly not to entertain any suit or proceeding 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 baring the

jurisdiction of a Civil Court. The Section is intended to preserve the statutory protection

given to the Boards untouched by civil Actions. Now, the present action is only to

prevent the defendant from polluting water. But this suit 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 the authorities constituted under the Act. Hence, I am

of the view that Section 58 does not prohibit the Jurisdiction of the Civil Court to

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

Section 59 of the Water Act provides that ―No suit or other legal proceedings shall lie

against the Government or any officer of Government or any member or officer of a

Board in respect of anything which is in good faith done or intended to be done in

pursuance of this Act or the rules made thereunder.‖

38 1995 (2) Guj.L. Rep 1210 39 AIR 1986 AP 328.

The 1988 amendment of the Water Act –

The 1988 amendment of the Water Act brought crucial changes that merit scrutiny. First

is the provision for coercive measures discussed earlier.40 Next is the change relating to

prosecution. It is an improvement over the past practice where a court could take

cognisance of such complaint only with the permission of the board. Currently, the court

can admit a complaint if the person has already given the board 60 days‘ notice of his

intention to make the complaint.41 The mandatory notice period has its merits and

demerits.

Provisions Powers and Functions

The Water Act shows that many functions allotted to the boards are of a deliberative,

advisory, investigating and research oriented nature.42 The power of the state pollution

control board to make, vary or revoke an order for prevention, control or abatement of

water pollution, includes an order relating to construction, modification, alteration, or

extension of a disposal system and remedial measures necessary to prevent, control or

abate water pollution. Till the amendment in the year 1988, the board could not exercise

coercive powers of its own for bringing the delinquent to obedience, except in case of an

emergency. Undoubtedly, this added new vigour and dynamism to the functioning of

the board and in most cases it has helped to avoid the situation where the board has had

to wait for an order from the magistrate‘s court for restraining a person likely to cause

pollution. By issuing binding and coercive directions, the board can take timely and

speedy action to check apprehended pollution. This power is to be exercised subject to

the provisions of the Water Act, and to any directions from the Central Government.

Structure- The nature of representation of interests in the board raises a doubt as to whether the board will be in a position to act in tune with the legislative expectations. Manifestly, there is excessive official representation in the composition of the board. One fails to see the rationale, as to why an agency intended to make decisions on water quality standards be staffed with interests such as agriculture, fishery, industry or other interests. Public sector companies or corporations may themselves be polluters or potential polluters. There is no reason why their representatives should have a berth on the board. Doubts

have also been raised as to whether the board would be in a position to function effectively and independently when it takes decisions against the interests of the government.43 This is so because besides complete control over its nominees, the

40 Water (Prevention and Control of Pollution) Act 1974, s 33A, explanation.

41 Ibid, s 49. 42Water (Prevention and Control of Pollution) Act 1974, ss 16 and 17. Also see P Leelakrishnan, 'Statutory Control Environmental Pollution', Cochin University Law Review, 1980, p 141, at p 156.

43 NS Chandrasekharan, 'Structure and Functioning of Environmental Protection Agency: A Fresh Look' in P Leelakrishnan, Law

and Environment, 1992, p 151, at p 157.

government is at liberty to remove them from office, disqualify them or even supersede

the board.44 Such an overtly indiscriminate action may be a remote possibility in a democratic country, where the people are vigilant and the rule of law is respected. However, in the state of Punjab and Haryana the board was superseded. Further, the contributions to the deliberations of the board by the representatives of the local bodies is not clear. The decision whether consent should be given and under what conditions it should be given is a matter that warrants expert knowledge in the maintenance of the wholesomeness of water. Experts can effectively help in the evolution of objective standards. The expertise and experience essential for environmental decision-making

are lacking in the composition of the board as it is overshadowed with interest representation. This is likely to make the board weaker when they find themselves in a difficult position to take and implement independent decisions.

Procedure- An application for consent is deemed to have been granted unconditionally if nothing is heard from the board within a period of four months of making the application.45 In support of this legal fiction for deemed consent, the champions of ‗development‘ may

say that initiatives for new industries or for expansion of existing industries should not be sacrificed on account of the inefficiency and lethargy of pollution control agencies. This provision for deemed consent, prima facie biased in favour of the polluters, is not in conformity with the need for tailoring environmental standards at the design stage. However, when the board becomes grossly negligent and neglects an application for consent for a long time, the genuine applicants will be put to great disadvantage46 and difficulties if their projects are delayed. Avoidance of this situation might have been the rationale behind the legal fiction. The position stands in stark contrast to the British law,

where in an identical situation, if nothing is heard from the authority within three months, the application would be deemed to have been refused.47

Even though the state pollution control board imposes conditions on the nature and composition, temperature, volume or rate of discharge of the effluents when it grants consent,48 the applicants are not aware of these conditions, as the register of conditions is not accessible to them. Perusal is restricted to persons interested in, or affected by, an outlet of effluents in the land or premises or to any other persons authorised by him. However, under the British law, it is the duty of the consent granting authority to make available the registers for inspection by the public free of charge, at all reasonable hours,

and to afford reasonable facilities for obtaining, on nominal fees, copies of entries in the register.49 If the conditions are imposed to reduce the ill-effects of discharge, there is no reason why the register is not open to the public. Access to the register facilitates access to justice. Besides being an invincible check against possible arbitrariness and discrimination on the part of the authorities, access to the register will enable the public

44 Ibid.

45 Water (Prevention and Control of Pollution) Act 1974, s 25(70).

46 See Vijayanagar Education Trust v KSPC, Bangalore AIR 2002 Kant 123. The petitioners desired to construct a medical college

and a hospital. Their application for consent was continued on the next page

47 Control of Pollution Act 1974, s 34(1). Similar is the case of granting licence for waste management under the Environmental

Protection Act 1990 of United Kingdom. Section 36(9) of that Act lays down a four month period after which the licence is deemed

to have been refused. 48 Water (Prevention and Control of Pollution) Act 1974, s 25(4).

49 Control of Pollution Act 1974, s 41(2)(a) and (b); Environmental Protection Act 1990, ss 20(7), 64(6), 95(4) and 122(2); Water

Resources Act 1991, s 190.

to compare the conditions imposed by the board in identical cases and provide for

vigilance against violation. It will render members of the general public an opportunity to challenge the reasonableness of the conditions before any judicial, administrative or democratic forum in an effective and meaningful way.

5.2. AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981

The whole eco-system of this planet (Earth) took many millions of years to develop into

its present form. The reproduction of its various components like air, water, soil, etc. at favourable rates helps it to maintain the delicate balance of its eco-system. But the nature of the air, water and soil in this biosphere is constantly being changed through their inter-action with living things. Man‘s activities have now acquired the potential of artificially due to development of technology, scientific advancement, growth in population and industrialisation to disturb the delicate balance of biosphere. Introduction of large amounts of pollutants into the biosphere causes serious problems for the life on earth.

Air Pollution may be described as the imbalance in the quality of air, which causes ill effects. Air Pollutants are those materials that exist in such concentrations so as to cause unwanted effects. Different types of pollutants are continuously emitted into the atmosphere but is removed by the self-purification process of air. When the rate of

pollution exceeds and when the self-purifying capacity decreases, accumulation of pollutants in the air causes serious health problems not only to human beings but also to other living creatures. Air pollutants can be broadly classified into two groups. One is gaseous pollutant and the other is particulate pollutant.

Gaseous pollutants include substances that are gaseous in nature at normal temperature

and pressure. Of all the gaseous pollutants, the primary gaseous pollutants are carbon monoxide, sulphur dioxide, hydrogen sulphides, hydrogen fluoride, hydrogen chloride, oxides of nitrogen, hydrocarbon etc.

Particulate pollutants consist of both solid and liquid particles. They vary in size,

ranging from 0.01 micron to 20 microns50. Some of the common particulate pollutants present in the atmosphere dust, fume, mist, spray, smoke, etc.

The most important component of the biosphere is atmospheric air without which nobody can survive. It is a common heritage of mankind to be preserved, conserved and enjoyed by all nations and people. Therefore, it is the duty and legal obligation of all

nations to maintain its air free from pollution for human use. This ‗atmospheric ocean‘ is boundary free. Pollution of air may cause adverse effect hundreds of miles away in another area. The cause and effect phenomenon may also cross the national frontiers and may thus assume international dimension.

Sources of Air Pollution - The man made sources of air pollution are many of which,

the primary sources are stationary combustion, transportation, industrial process and solid waste disposal process. Stationary combustion process results in emission of particulate pollutants, such as fly ash and smoke, and also gaseous pollutants like oxides

50 Manivasakam N. Environmental Pollution (National Book Trust, India) p. 12.

of sulphur and nitrogen. Automobile exhausts release smoke and to a certain extent, lead

particles. Smoke is primarily produced due to the incomplete combustion of carbonaceous materials. Smoke contains gaseous pollutants like carbon monoxide, hydrocarbons and oxides of nitrogen. Due to increasing industrialization and industrial processes almost all types of air pollutants are released into the atmosphere. Cement industries, steel industries and thermal power plants are the major polluting industries where it is generally reported that it is very difficult to control the emission of pollutants. Solid waste disposal is yet another major contributor to the atmospheric pollution especially in urban areas. Backyard burning and open burning of solid waste

comprising of plastic materials results in emission of smoke and gaseous pollutants which are highly carcinogenic.

Effects of Air Pollution- Air Pollution causes many adverse effects on human health, on animals, on plants, on

materials and on atmosphere itself. Air pollution affects the respiratory system of human beings through both gaseous and particulate pollutants causing severe damage to

it. Lung cancer, bronchitis, emphysema (enlargement of air vesicles of the lungs) and asthma are some of the chronic disease due to exposure to polluted air. Unburned hydrocarbons cause lung cancer and lead emitted from automobile exhausts is a cumulative poison, which is dangerous, particularly to children since it can cause brain damage. Similarly air pollution also causes many diseases which adversely affects the animals especially, the domestic animals. Air pollution also causes a lot of damage to the vegetation. Air pollution also affects property and materials. The increased combustion of fossil fuels and oil has increased the carbon dioxide concentration in the

atmosphere in recent years. Carbon dioxide absorbs heat strongly and the radioactive cooling effect of the earth gets decreased. This results in the raise in the earth‘s surface temperature.

To combat the problems created as a result of air pollution legally, the Parliament of India enacted a Statute in the year 1981called ‗the Air (Prevention and Control of Pollution) Act, 1981.

Object of Air Act- The objects of Air (Prevention and Control of Pollution) Act,

1981 [Act No. 14 Of 1981] are:

1. to provide for the prevention of air pollution, 2. for control of air pollution, 3. for abatement of air pollution, 4. for the establishment of Pollution Control Boards,

5. for conferring and assigning, powers and functions on such Boards; and

6. to implement the decisions taken at the United Nations Conference on the Human Environment held in Stockholm in June, 1972, in which India participated, to take appropriate steps for the preservation of the natural

resources of the earth which, among other things, include the preservation of the quality of air and control of air pollution.

Meaning of Air Pollution- Sec. 2(b) of the Air Act defines Air Pollution as ―the

presence in the atmosphere of any air pollutant‖.

To understand Air pollution better, one should know, what is ‗air pollutant‘? Sec. 2(a)

of the Air Act defines air pollutant as ―any solid, liquid or gaseous substance [including

noise] present in the atmosphere in such concentration as may be or tend to be injurious

to human beings or other living creatures or plants or property or environment‖.

Authorities under the Air Act- The Central Pollution Control Board constituted

under section 3 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974)

shall exercise the powers and perform the functions of the Central Pollution Control

Board for the prevention and control of air pollution under the Air Act.

The State Pollution Control Board constituted by the State Government under section

4 of the Water Act shall exercise the powers and perform the functions of the State

Board for the prevention and control of air pollution under the Air Act.

In any State in which the Water (Prevention and Control of Pollution) Act, 1974 (6 of

1974), is not in force, the State Government shall, constitute a State Pollution Control

Board for the Prevention and Control of Air Pollution.

POWERS AND FUNCTIONS OF CENTRAL AND STATE POLLUTION

CONTROL BOARDS

Functions of the Central Pollution Control Board.—Section 16 of the Air Act has

enumerated a list of functions to be discharged by the Central Pollution Control Board.

The main functions of the Central Pollution Control Board shall be:

1. To improve the quality of air and

2. To prevent, control or abate air pollution in the country.

Apart from improving the quality of air and preventing, controlling and abating air

pollution in the country, the Central Board may discharge the following functions:

1. Advise the Central Government on any matter concerning the improvement

of the quality of air and the prevention, control or abatement of air pollution;

2. Plan and cause to be executed a nation-wide program for the prevention,

control or abatement of air pollution;

3. Co-ordinate the activities of the State Boards and resolve disputes among

them;

4. Provide technical assistance and guidance to the State Boards,

5. Carry out and sponsor investigations and research relating to problems of air

pollution and prevention, control or abatement of air pollution;

6. Plan and organise the training of persons engaged or to be engaged in

programs for the prevention, control or abatement of air pollution;

7. Organise through mass media a comprehensive program regarding the

prevention, control or abatement of air pollution;

8. Collect, compile and publish technical and statistical data relating to air

pollution and the measures devised for its effective prevention, control or

abatement;

9. Prepare manuals, codes or guides relating to prevention, control or

abatement of air pollution;

10. Lay down standards for the quality of air;

11. Collect and disseminate information in respect of matters relating to

air pollution;

12. Perform such other functions as may be prescribed;

13. Establish or recognise laboratories to enable the Central Board to perform its

functions under this section efficiently;

14. Delegate any of its functions under this Act generally or specially to any of

the committees appointed by it;

15. Do such other things and perform such other acts, as it may think nec-

essary for the proper discharge of its functions and generally for the

purposes of carrying into effect the purposes of this Act.

Functions of the State Pollution Control Board.—

Section 17 of the Air Act enumerates the functions of the State Pollution Control Board.

According to Section 17, the functions of the State Pollution Control Board shall be:

1. To plan a comprehensive programme for the prevention, control or abatement

of air pollution and to secure the execution thereof;

2. To advise the State Government on any matter concerning the prevention,

control or abatement of air pollution;

3. To collect and disseminate information relating to air pollution;

4. To collaborate with the Central Board in organising the training of persons

engaged or to be engaged in programs relating to prevention, control or abate-

ment of air pollution;

5. To organise mass-education program relating to prevention, control or

abatement of air pollution;

6. To inspect, at all reasonable times, any control equipment, industrial plant or

manufacturing process;

7. To give, by order, such directions to such persons as it may consider neces-

sary to take steps for the prevention, control or abatement of air pollution;

8. To inspect air pollution control areas at such intervals as it may think neces-

sary, assess the quality of air therein and take steps for the prevention, control

or abatement of air pollution in such areas;

9. To lay down, standards for emission of air pollutants into the atmosphere

from industrial plants and automobiles or for the discharge of any air

pollutant into the atmosphere from any other source whatsoever not being a

ship or an aircraft: Provided that different standards for emission may be laid

down under this clause for different industrial plants having regard to the

quantity and composition of emission of air pollutants into the atmosphere

from such industrial plants;

10. To advise the State Government with respect to the suitability of any premises

or location for carrying on any industry which is likely to cause air pollution;

11. In AP Gunnies Merchants Association v. the Government of AP51 traders in

gunny bags were asked to shift from their present location to a much safer

location, as their activity contributed to air pollution in the thickly populated

area of Maharajguni. The petitioners claimed audi alteram partem rule, which

was not complied with before the order to shift was issued and hence the order

is against the principles of natural justice. Since the business carried on by the

petitioners is endangering the lives of the people living in the area, more

particularly the traders and the public in general as also the workers engaged

therein, the Court was of the opinion that no fault could be found in impugned

order which directs the shifting of the business from a thickly populated area

to a safer place to avoid air and environmental pollution. It also cannot be said

that the officers while issuing the orders had failed to comply with the rule of

fair hearing, as they were implementing the directions as in the

Environmental Protection Act issued by the concerned ministry.

12. May establish or recognise a laboratory or laboratories to enable the State

Board to perform its functions under this section efficiently.

13. To perform such other functions as may be prescribed or as may, from time to

time, be entrusted to it by the Central Board or the State Government;

14. To do such other things and to perform such other acts as it may think nec-

essary for the proper discharge of its functions and generally for the purpose

of carrying into effect the purposes of this Act. In K. Muniswamy Gowda v.

State of Karnataka52 the petitioner sought an appropriate writ or direction

51AIR 2001 AP453.

52 AIR 1998 Kant 281.

against the owner of the rice mill for shutting down the rice mill, which was

functioning next to the residence of the petitioner and was causing health

hazards by emitting husk and dusts in the entire atmosphere surrounding the

area, resulting in the violation of the fundamental right of the petitioner as

well as the pollution control laws. It was submitted before the Court that the

Karnataka SPCB had granted exemption to rice mills from the provisions of

the Water Act and Air Act on the basis of instructions issued by the State

Governments. It was held by the High Court that a plain reading of Section 18

(1) (b) of the Air Act unquestionably manifest that the State Board shall be

bound by only such directions issued by the State Government which pertain

to the discharge of functions assigned to the SPCB under section 17 of the Air

Act. It is also amply clear that neither the State Government can issue any

directions which have no nexus with the functions assigned to the Board nor

the Board is bound to follow any such directions. The Parliament has not

vested any discretion with the State Board to grant exemption to any

industrial plat or class of plants. There is no provision in the Air Act, which

empowers the Board to keep any Industrial plant out of the purview of the Act

if it causes air pollution. Accordingly the notification of SPCB granting

exemption to the rice mills from the provisions of Water Act and Air act was

held to be ultra vires its powers and functions.

The Supreme Court in Assam Pollution Control Board v. Mahabir Coke In-

dustry53 held that the authorities under the Act in whom the Parliament had

reposed confidence must be made answerable if they are guilty of dereliction

of duties. In this case the industry was ordered to close down for

non-compliance of standards prescribed by the board. It was directed that the

industry should confirm to the required standard and inform the Court. The

three experts who submitted the inspection report indicated that the emission

level of suspended particulate matter from the industry confirm to the

stipulated standard where as the facts appeared otherwise. The Court directed

for issue of show cause notice against them.

Powers of the Central Government.—

Under Sec. 18 the Central Government is vested with the powers to give such directions

to the Central Pollution Control Board, those are necessary for the performance of its

functions. In M.C. Mehta v. Union of India the Supreme Court issued time-bound orders

for the supply of CNG fuel and phasing out of diesel buses to contain Air Pollution. The

Union of India was directed to give priority to transport sector for purposes of allocation

53 (2000) 9 SCC 344.

of CNG. The Government of National Capital Territory of Delhi was directed to phase

out 800 diesel buses per month. The Union of India was also directed to prepare scheme

containing the schedule for supply of CNG to other polluted cities of India and to frame

a financing scheme for taxis and diesel bus-owners.

Powers of the State Government.—Under Sec. 19 the State Government has the Power to declare air pollution control areas and to prohibit the use of any fuel, appliance or burning of any material in any air pollution control area, as detailed below: (1) The State Government may, after consultation with the State Board, declare any

area or areas within the State as air pollution control area or areas for the purposes of this Act; (2) The State Government may, after consultation with the State Board,

(a) Alter any air pollution control area whether by way of extension or reduction;

(b) Declare a new air pollution control area in which may be merged one or more existing air pollution control areas or any part or parts thereof;

(3) If the State Government, after consultation with the State Board, is of opinion that the use of any fuel, other than an approved fuel, in any air pollution control area or part thereof, may cause or is likely to cause air pollution, it may, prohibit the use of such fuel in such area or part thereof; (4) The State Government may, after consultation with the State Board, direct that, no appliance, other than an approved appliance, shall be used in the premises situated in an air pollution control area; (5) The State Government may, after consultation with the State Board, prohibit the

burning of any material in such area or part thereof. In Animal Feeds Dairies and Chemical Ltd. V. Orissa State Pollution Control

Board54 the Orissa High Court held that the State Government alone is empowered under Section 19 of the Act to declare a pollution control area and to prohibit the use of fuels causing air pollution. The Court held that the SPCB couldn‘t issue such directions. In Orissa State Prevention and Control of Pollution Board v. Orient Paper Mills55, the Supreme Court held that ―even if the State Government has not framed under S. 54(2) (k) Rules prescribing the manner in which an area is to be declared as air pollution control area, the State Government is empowered to declare

any area within the State as an Air Pollution Control Area by notification in the Official Gazette. It may, however, be after consultation with the Board and in the manner as may be prescribed. Absence of rules will not render the Act inoperative. The Act under Section 19 vests the State Government with power to notify any area, in an official gazette, as Air Pollution Control Area, but it cannot be said that exercise of such power is solely dependent upon framing of the rules prescribing the manner in which an area may be declared as Air Pollution Control Area.

Section 19 say‘s such manner as may be prescribed and not in the manner

prescribed‘ or ‗in the prescribed manner‘. The expression used leaves some lever or

54 AIR 1995 Ori. 84. 55 AIR 2003 SCW 1463.

play in the working of the provision. The manner is dependent upon ‗as‘ may be

prescribed, if it is not prescribed, there is no manner available such as to be followed. The meaning of the word ‗as‘ takes colour in context with which it is used and the manner of its use as prefix or suffix etc. There is no rigidity about it and it may have the meaning of a situation of being in existence during a particular time or contingent, and so on and so forth. That is to say something to happen in a manner, if such a manner is in being or exists, if it does not, it may not happen in that manner. Therefore, the reading of S. 19 makes it clear that manner of declaration is to be followed ‗as may be prescribed‘ i.e. ‗if any‘ prescribed. Thus, in case manner is not

prescribed under the Rules, there is no obligation or requirement to follow any, except whatever the provision itself provides viz. Section 19 in the instant case which is also complete in itself even without any manner being prescribed. Merely by absence of Rules, the State would not be divested of its powers to notify in Official Gazette any area declaring it to be air pollution control area. In case, however, the Rules have been framed prescribing the manner, undoubtedly the declaration must be in accordance with such rules. The power which vests in an authority would not cease to exist simply for the reason that the rules have not been framed or the manner

of exercise of the power has not been prescribed. So far S. 54 of the Act is concerned it only enumerates the subjects on which the State Government is entitled to frame rules.‖

Under Sec. 20 the State Government has the power to give instructions to the

concerned authority in charge of registration of motor vehicles under the Motor Vehicles Act, 1939, to comply with such instructions for ensuring standards for emission from automobiles, as laid down by the State Pollution Control Board.

Powers of the Central Pollution Control Board.—Under Sec. 31 A, the Central Pollution Control Board may, in the exercise of its powers and performance of its

functions under this Act, issue any direction in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions. The power to issue any direction includes the power to direct—

(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) the stoppage or regulation of supply of electricity, water or any other

service.

Powers of the State Pollution Control Board.—The State Pollution Control Board is conferred with certain very important powers like;

1. Power to grant, refuse and cancel consent;

2. Power to make application to cope for retraining persons from causing

pollution;

3. Power to take certain remedial measures to mitigate the emission of air pollutants;

4. Power of entry and inspection;

5. Power to obtain information;

6. Power to take samples of air or emission etc;

7. Power to issue directions.

1. Power to Grant/Refuse/Cancel/Consent.—

Sec. 21 of the Air Act provides that no person shall establish or operate any industrial plant in an air pollution control area, without the consent of the State Pollution Control Board. The SPCB may on receipt of the application for consent and after making such inquiry may grant the consent subject to certain conditions for a period specified in the order or may refuse consent. The SPCB also has the power to cancel such consent before the expiry of the period for which it was granted if the conditions subject to which such

consent were granted are not fulfilled. While granting consent the SPCB may impose the following conditions:

1. Control equipment as specified and approved by the SPCB shall be installed and operated in the premises where the industry is carried on or proposed to be carried on;

2. The existing control equipment shall be altered or replaced in accordance with the directions of the SPCB;

3. The Control equipment referred above shall be kept in good running

condition always;

4. Chimneys shall be erected in such premises as specified by the SPCB;

5. Such other conditions the SPCB may specify in this behalf.

Due to technological development or otherwise, if the SPCB is of the opinion that all or any of the conditions stated above requires to be changed then after giving an opportunity to the industry has the powers to change all or any of the above conditions.

It is also provided that if a person to whom consent is granted by the SPCB transfers his interest to any other person then such other person shall be bound by the conditions prescribed by the SPCB.

In case of canceling consent before the expiry of the period or in case of refusing

consent a reasonable opportunity of being heard shall be given to the person concerned.

In M.S. Chattisgarh H.L. Industries v. Special Area Development Authority56 the

court upheld the order of refusal of consent by the State Pollution Control Board. In this case, the SPCB refused permission to start a hydrated lime factory near a Government college and a hospital.

2. Power to make Application to Court for restraining persons from causing Air Pollution.—When the SPCB apprehends that emission of any air pollutant in excess of the standards laid down by the SPCB is likely to occur it may make an application under Sec.22A to a Metropolitan Magistrate or Judicial Magistrate Court for restraining such person from emitting such air pollutant.

3. Power to take remedial measures to mitigate the emission of Air Pollut-ants.—Under Sec.23, any person, who is in charge of a premises from where emission of air pollutants is in excess of the standards prescribed, has a duty to

56 AIR 1989 MP 82.

intimate to the State Pollution Control Board. Sec. 23 also confers power on the

SPCB to take necessary remedial measure to mitigate the emission of air pollutants in excess of the standards laid down by it.

On receipt of such application the court may make such order as it deems fit. But if the Court makes an order for restraining such persons from discharging or causing or permitting to discharge the emission of any air pollutant the Court may - (a) direct such person to desist from taking such action as is likely to cause emission; (b) authorize the Board, if the above direction is not complied with by such person to whom a direction is issued, to implement the direction in such manner as may be

specified by the Court. All the expenses incurred by the Board in implementing the direction of the court shall be recoverable from such person as land revenue or of public demand.

The facts of Chaitanya Pulverising Industry v. Karnataka State Pollution Control Boara57 are: when the Air Act 1981 came into force, certain area was declared by the State Government as ―air pollution control area‖ and the industry of the petitioner (pulverizing dolomite stones) was situated in the said area. As per Section 21(2) of the Air Act, the owners of the existing industries were required to apply for obtaining

the consent of the Board. The petitioner did not apply for consent. On inspection, it was found that the industry of the petitioner had not set up the air pollution control device. Since the people living in that area complained about the emission of dust from the industry, the SPCB ordered the closure of the Industry under Section 23 of the Air Act. The petitioner challenged the order of Board on the ground that the ―remedial measures‖ contemplated under Section 23 (2) of the Air Act does not include the closing down of the industries. Upholding the argument of the petitioner the High Court held that the Air Act provided for measures, which are preventive in

nature, in those cases where the industries are to be established. Where, in case of industries already established it insists on obtaining the consent of the Board. Thus, it makes the industry amenable to the administrative control of the Board. The Court was of the view that direction to close down the industry on the ground that it had not obtained the consent of the Board was illegal. In the view of the Court, the ―remedial measures‖ contemplated under Section 23 (2) of the Air Act must be understood to mean those measures which mitigate the emission of the air pollution. The Air Act was amended in the year 1987 and the amendment came into effect from 1.4.1988. After the amendment the Board has been vested with the power to restrain any

person from causing pollution and the Board is empowered to issue directions to any person or authority to close, prohibit or regulate any industry, operation or process.

4. Power of entry and inspection.—Under Sec. 24, any person empowered by the SPCB shall have a right to enter any place at all reasonable times for five main purposes:—

1. For performing any of the functions of the SPCB;

2. For determining whether any notice, order, direction made is being

complied with or not;

57 (1999) 7 SCC 522.

3. For examining and testing any control equipment, industrial plant,

record, register, document or any other material object; 4. For conducting a search of any place in which there is reason to believe

that an offence under the act is being or about to be committed;

5. For seizing any control equipment, industrial plant, record, register, document or any other material object which may furnish evidence of the commission of an offence under the Act.

Every person operating any control equipment or any industrial plant shall render

all assistance to the person carrying out search and seizure. If he willfully delays or obstructs such search or seizure he shall be guilty of an offence under the Act and punishable under Sec. 38 with imprisonment for a term which may extent to 3 months or with fine which may extend to Rs. 10,000/-(Rupees Ten Thousand) or with both.

All search and seizure made under this section shall be in accordance with the procedure laid down under Sec. 94 of the Code of Criminal Procedure.

5. Power to obtain information.—For carrying out the functions entrusted to the

SPCB it may call for any information like types of air pollutants, level of emission, etc., from the occupier or any other person carrying on any industry or operating any control equipment or industrial plant. The officials of the SPCB also have right to inspect the premises for verifying the correctness of such information.

6. Power to take samples of Air or Emission.—Any officer empowered by the

SPCB shall have the power to take samples of air or emission from any chimney, flue or duct or any other outlet in such a manner as prescribed under Sec. 26 of the Air Act.

When a person collects sample of emission, he shall follow the following pro-cedure:—

1. Serve on the occupier or his agent a notice;

2. Collect sample of emission in the presence of the occupier or his agent;

3. Place the sample in a container which shall be marked and sealed and signed both by the person taking the sample and the occupier or his agent;

4. Send the container without delay to the laboratory established or rec-ognized by the SPCB.

In case if the occupier or his agent willfully absents himself the person taking the

sample shall collect the sample and place it in a container which shall be marked and sealed and signed by the person taking the sample. The person collecting the sample shall inform the government analyst in writing, about the willful absence of the occupier of his agent or about the refusal to sign the container.

7. Power to give directions.—

In exercise of its powers and functions, the SPCB is empowered by Sec. 31A to issue any directions in writing to any person and such person shall be bound to comply with such directions. Under this Section, the power to issue directions includes the power to direct—

1. The closure, prohibition or regulation of any industry, operation or pro-

cess; or

2. The stoppage or regulation of supply of electricity, water or any other service.

A very important decision to understand the scope of Section 31A is the decision of

the Gauhati High Court in Mahabir Coke Industry v. Pollution Control Board.58 Mahabir Coke operated its coke factory with a consent issued under the Water Act by the Assam Board. On 12th May 1993, twelve years after the passage of the Air Act, the state government declared the whole of the State as a ‗air pollution control area‘ under Section 19 and thus extended application of the Act to Assam. Initially, the firm failed to apply for consent under the Air Act ad submitted its application in

August 1995, after receiving a show cause notice from the Board. In September 1995, the Board refused consent on the ground that the factory was emitting ‗black smoke‘ and no preventive measures were being taken to control the emissions. The Board alleged that the firm had failed to control emissions for the past two years and directed the unit to shut down until antipollution measures were adopted. The firm informed the Board that two out of three ovens had the necessary anti-pollution devices and in respect of the third unit, orders were placed and the equipment would be installed in six months. In the first week of November 1995, the Board monitored

the air quality in the locality and thereafter issued an order under Section 31A of the Air Act, directing Mahabir Coke to close down its manufacturing units. The single judge of the Gauhati High Court rejected the writ petition, which was carried in appeal to the division bench. Reviewing the provisions of the Air Act, the division bench held that the appellant ought to have applied for consent and that its failure to do so clearly amounted to a breach of the provisions of the Act. Nevertheless, the division bench allowed the appeal, permitting Mahabir Coke to run its factory. The appellate court found that the State Board had failed to prescribe the emission

standards under Section 17 (1) (g). The court found that the emission standards had not been issued under the Air Act; the State Board did not have a recognized laboratory to analyze emissions and lacked the equipment to measure emissions. When the Board relied on a notification dated 11th July 1996 which declared that the Assam Board would follow the CPCB standards issued from time to time, the High Court held that the notification could not be relied upon since it was issued after the closure notice dated 11.11.1995. The court also rejected the board‘s attempt to support its order on the basis of National Ambient Air Quality Standards. The Court held that in the absence of standards and a chemical examination of the composition

of the smoke emitted by the firm, it was not open to the Board to issue a closure notice merely because a thick black smoke was spewing out from the factory chimney. The Division Bench also observed that a direction by the Board under Section 31A may be issued only where the Central Government has first issued a direction in that behalf. There is a opinion that the judgment is ―marred by a misconstruction of Section 31 A.‖ According to that opinion, a Central Government direction is not a condition precedent for the issue of a direction by the State Board;

58 AIR 1998 Gau 10.

CHAPTER V - ENVIRONMENT PROTECTION AND LEGISLATIVE OBLIGATION

38

but where the Board issues a direction, any such direction is ‗subject to‘ overriding Central Government orders.

In Gopinath Pvt Ltd. v. Department of Environment59 the petitioner ran an iron

casting business in a residential premise without obtaining consent from the Pol-lution Control Board under the provisions of Air Act. Relying on its power to issue ‗any directions in writing to any person, officer or authority‘ in the performance of its functions under the Air Act, the respondent directed the magistrate to seal the

offending unit. Quashing the direction, the High Court held that though Section 31A enabled the Board to direct ‗closure‘ or discontinuance of the objectionable activity, sealing the unit and preventing access was unauthorized.

In Jadav Soap Works v. Union of India60 the SPCB arrived at the findings that the petitioner industry was emitting high black smokes, which have been creating hazards to the inhabitants of the locality and that the black smokes were being emitted without taking any preventive steps to control at source crating hazard in that area. The SPCB issued a notice to the industry for the closure of the industry.

However no record was produced before the court to show how the pollution Control Board came to the conclusion before issuing the notice for the closure of the industry. Hence the court held that the whole action of the Board was arbitrary and highhanded exercise of power and the court quashed the impugned notice.

Penalties.—Under the Air Act, Sections 37, 38 and 39 prescribes penalties. Section 37 prescribes punishment for failure to comply with the provisions of Section 21 or 22 or with the directions issued under Section 31 A. Hence,

1. if a person establishes or operates any industrial plant in an air pollution

control area without the previous consent of the State Board (Sec.21); or

2. if any person operating any industrial plant in any air pollution control area discharges or cause or permit to be discharged the emission of any air pollutant in excess of the standards laid down by the SPCB (Sec.22); or

3. if any person fails to comply with the directions given by the Pollution Control Boards under section 31A (directions to close, prohibit or

regulate any industry, operation or process; or to stop or regulate supply of electricity, water or any other services);

he shall be punishable with imprisonment for a term not less than 1 year and six months, which may extend up to six years with fine.

In case the failure continues, he shall be punishable with an additional fine, which may extend to 5000 rupees for every day during which the failure continues.

Sec. 37 further provides that if the failure continues beyond a period of one year

after the date of conviction, the offender shall be punishable with imprisonment for a

59 1998(72)DEL.L.T.536.

60AIR 2000 Gau. 47.

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term which shall not be less than 2 years but which may extend to 7 years and with fine.

Offences by Companies and by Government Departments.—

Where an offence under the Air Act has been committed by the Company

(Company means any body corporate, and includes a firm or other association of individuals), every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company shall be deemed to be guilty of the offence. However, if the person liable to be punished proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence, he will not be made liable for any punishment under the Ac61t .

Where any Department of Government has committed an offence under the Air Act, the Head of the Department shall be deemed to be guilty of the offence. However, if the Head of the Department proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the com-mission of such offence, he shall not be made liable to punishment under the Act62.

Cognizance of offences.—No Court inferior to that of the Metropolitan Mag-istrate or a Judicial Magistrate Court shall try any offence punishable under the Air Act.

The Metropolitan Magistrate or Judicial Magistrate Court shall take cognizance63

of any offence under the Air Act only when the complaint is made by—

1. the Board or any officer authorised in this behalf;

2. any person who has given notice of not less than 60 days to the Board or officer authorised declaring his intention to make a complaint.

When any individual makes a complaint, the Board shall on demand by such

person, make available to that person, the relevant reports in its possession. How-ever, the Board may also refuse to make any such report available to such person, if the same is, in its opinion, is against the public interest.

Bar of Jurisdiction of Civil Courts.—Section 46 of the Air Act has barred the jurisdiction of the Civil Courts to entertain any suit or proceeding in respect of any matter which an Appellate Authority constituted under the Air Act is empowered by or under this Act to determine. The Section also provides that ―no injunction shall be

granted by any court or authority in respect o f any action taken or to be taken in pursuance of any power conferred by or under this Act.‖

61 Section 40, Id.

62 Section 41, Id.

63 Section 43, Id.

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From the above discussion it is clear that prevention and control of air pollution has been given primary importance in the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection) Act, 1986. Some of the provisions provided

in the Air Pollution Control Act already exist in the local Municipal Acts in a slightly different form, of prevention or suppression of nuisance with the aim of combating pollution at the local level. The 1981 Act covers all sources of pollution such as industries, transport, automobiles, domestic fuel and is directed against highly polluting industries like those of textile, power plants, iron and steel, cement, engineering, coal, chemical, fertilizer, etc. In the light of sources and effects of air pollution and prevention and controlling provisions of various enactments following suggestions have been stipulated for its effective control :

1. Air pollution caused by domestic source can be controlled by the use of smokeless fuel. For this purpose high-efficiency wood-stoves, gobar gas plants and solar cookers can be used in place of fire wood.

2. Air Pollution caused by second and third source, i.e., mobile vehicles and industry can be controlled by two methods –

Firstly Control on generation of pollutants: Generation of pollutants can be

controlled by making Temporary changes in the use of raw materials;

Operational control; and Change in the equipment for a better one.

Secondly Arrest of emissions can be achieved by using methods to reduce

the concentrations of a pollutant by destroying or collecting the pollutant

before it is emitted from the stack, e.g., burning destroys organic vapours,

hydrogen sulphide, etc., use of after burners for automobile exhausts,

filters, training devices, etc. The control of pollution at source is preferable

to Natural Dilution Method under which appropriate heights for the

chimney are used in order to keep the ground level concentrations within

the prescribed limits. Short-term pollution in an isolated industrial unit can

be solved through the latter method.

3. The Central Board as such does not include a person who has a special or

practical knowledge on the prevention and control of air pollution. For

tackling the environmental problems relating to air pollution it is desirable

that person having special knowledge in matters relating to air pollution be

added in the Central Board. The same can be suggested for the State Boards

constituted under the Water Pollution Act.

4. Moreover, the members in the Board represent the Government, local

authorities, industries, government undertakings, State Boards, etc. At

present the composition of the Boards does not include persons having

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special knowledge of law. In this connection it is suggested that legally

trained persons should be appointed in the Air Pollution Control Boards so

that the machinery can be brought into action.

5. At present there are no arrangements to orient and train the existing staff in

the municipal bodies for the purpose of undertaking conscious pollution

control measures. Failure of Smoke Nuisance Inspectors to achieve much is

a pointer to this direction. There is a need to equip the personnel suitably to

enable them to take in time the effective decisions.

6. In India, the energy sources should be increased to meet the emerging

demand of the nation. For this purpose Hydro-electric plants, nuclear plants,

natural energy sources like sun, tide of sea may be increased. In future these

energy producing sources will provide the cheapest and pollutant free fuel.

7. To meet the pollution problem sufficient amount is required in the annual

budget of the governments. For all the suggested measures heavy amount is

needed. Money is required to improve our environment because pollution is

directly connected with the energy.

8. Without the backing of the public opinion laws are of little avail. An aware

and informed people can play a positive role in promoting environment

pollution programmes and also help supplement official efforts to check the

dangerous increase in the level of air pollution. In this direction, common

man should be given education so that he can make his individual

contribution towards control of pollution. Therefore, it is very important to

arouse civic consciousness by introducing the subject of environmental

issues in educational institutions; through newspapers, periodicals, radio,

television, internet etc.

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5.3. NOISE POLLUTION AND LEGAL CONTROL

CONCEPT OF NOISE POLLUTION –

Generally speaking noise means any unwanted or unpleasant sound. Sound is a type of energy which is propagated as a series of pressure waves in air. Much of the waste energy is at once dissipated in form of heat but a small proportion of it takes

very little energy to produce a loud noise. A mechanical disturbance in gases, fluids or solids is sound. The word noise is derived from the Latin word ―nausea‖. Noise is defined to mean ―sound which is undesirable by recipient‖ 64 . Encyclopedia Britannica defines noise as ―undesired sound‖. Encyclopedia Americana defines noise as ―unwanted sound‖. Psychologist defines the term noise in terms of its psychological harmful effects on human beings. For example, Harrell defines noise as ―an unwanted sound which increases fatigue and under some industrial conditions it causes deafness‖. Blum defines noise as ―a distracter and therefore interfering with

efficiency‖. According to J.Tiffin, ―noise is a sound which is disagreeable for an individual and which disturbs the normal way of an individual‖65.

Noise is one of the undesirable outcomes of technological development. Noise is described as ― an invisible but insidious form of pollution‖66. Noise as a harmful pollutant is being recognised as a great nuisance affecting the quality of life espe-cially in urban areas. There prevails a view that ―traditionally we are a pollution loving nation‖67. ―We pollute air by bursting crackers on Dussehra, Diwali and on the occasions of marriages and other festivals. ... We are equally fond of noise

pollution. God men‘s voice must be heard by all everyone, day and night, and our Ratjagas, Akhandpaths and Azan must use loudspeakers and amplifiers; no one should be deprived from hearing God‘s and Godman‘s voice - and Gods too are far away beyond the hell and heaven. Our voice must reach to them, otherwise our spiritual needs will remain unministered. We are not less noisy in our secular matters. Our marriage and burial processions must be accompanied by bands, twists and Bhangras‖ .

There are numerous sources of noise pollution and the sources may be classified as

industrial and non-Industrial. Industry is the primary source of noise pollution. Non-Industrial sources like transportation, use of amplifiers and loud speakers, etc. also significantly contribute to the noise pollution.

64 Report of the committee on the problem of noise, (Wilson Committee), U.K, July 1963.

65 See Chhatwal et al, encyclopaedia of environmental pollution and its control, Vol. Ill (1989) p.2.

66 David Hughes, Environmental law (Butterworth, London) p. 310.

67 Paras Diwan, “Environmental Protection: Issues and Problems”, in Paras Diwan (ed.) Environmental

Protection - Problems, Policy Administration and law, p. 14.

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EFFECTS OF NOISE POLLUTION

Ecologically speaking, when unwanted sound is released into the atmosphere it is called as ―Noise Pollution.‖ It is one of the serious threats to the quality of our environment. The generation of unreasonable sound within the environment is considered a form of pollution as it lowers the quality of life. These several ways in which excessive noise can effect people adversely are as follows. (i) On Hearing.— Continuous exposure to noise levels much above 100 dB has an adverse effect on hearing ability within a fairly short time. Many workers who are exposed to the noise of jet aircraft or very noisy workshops for even moderate periods soon develop detectable hearing defects. Today it has become the practice

for workers in these situations to be equipped with ear protectors. (ii) On Mental and Physical Health.—Most of the people complain that noise makes them mentally or physically ill and thus reduces their working efficiency. Experiments have confirmed these claims. (iii) On Communication.—External sounds can interfere with conversation and use of the telephone, as well as the television programmes. It can thus affect the efficiency of offices, schools and other places where communication is of vital importance. The maximum accepted level of noise under such conditions is 55 dB,

70 dB is considered very noisy. (iv) On Psychology and Physiology.—Psychological effects, include the high level of noise, causes of many behavioral changes among humans as well as animals. Unwanted noise very often causes annoyance, irritation and fatigue which result into low performance, low efficiency and frequent errors. Further, high frequency of high level noise may cause tension in muscles‘, nervous irritability and strain and neurotic mental disorder.

Physiological effects include annoyance, irritation anxiety, strains and stresses

caused by noise pollution may cause changes in hormone content of blood which in turn may introduce changes in human bodies. Noise pollution of various sorts may cause high blood pressure, heart diseases dilation of pupils of the eyes, diminution of gastric secretion, neuromuscular tension, nervousness, stomach and intestinal diseases such as ulcer etc. Sudden very high level noise caused by s6nic booms or explosion may lead to termination of pregnancy.

In Sayeed Maqsood Ali v. The State of M.P68 the Court observed that in these

days, the problem of noise pollution has become more serious with the increasing trend towards industrialization, urbanization and modernization and is having many evil effects including danger to health. It may cause interruption of sleep affect communication, loss of efficiency, hearing loss or deafness, high blood pressure depression, irritability, fatigue, gastrointestinal problems, allergy, distraction, mental stress and annoyance etc., This also affects animals alike. The extent of damages

68 AIR 2001 MP 220.

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depends upon the duration and the intensity of the noise. This was the case concerning noise pollution caused by using loudspeaker in a Dhar-mashala run by the State, which is located in the vicinity of the hospitals and educational institutions.

In view of the totality of circumstances, the High Court directed that the respondent should not let out the premises to such persons or associations or organization that have not obtained permission from the competent authorities with regard to the use of loudspeakers/ public address systems. The concerned authorities shall see to it that no function is carried out in violation of the Noise Rules, 2000 and if anybody is found to be violating the rules, proper step should be taken to book him as per law. All efforts are to be made that majesty of law is honoured by one and all and collective does not suffer from any individual aberration.

STEPS TO COMBAT NOISE POLLUTION

(i) International Noise Control Measures.—International and European Community laws lay down certain norms in respect of noise pollution control. There has been much concern of international law in particular with aircraft noise issues. The principal Standards Setting body is the International Civil Aviation Organisation (ICAO) which was set up under the Chicago Convention of 1944.

Article 9 of the Chicago Convention acts as international legal basis for regulation

of aircraft noise. This has been supplemented numerous times and the provisions are known collectively as Annex 16 of the Chicago Convention which since 1981 has borne the title ―environmental protection‖, while a committee on Aviation Environmental Protection (CEAP) was set up in 1983 for the purpose of keeping Annex 16 under regular review so that signatory states can consider amending its terms to take account, for example, of enhanced noise abatement technologies. The European Community (E.C.) formally took action on noise for the first time in its Second Action Programme in 1977 though there had been some antecedent

measures. The E.C. has relied on noise standards set up by other international bodies such as I.C.A.O. and historically has also tendered to follow the paths of compromising national standards. European noise standards normally harmonise ambient noise levels as well as noise standards for individual generators of noise. Now E.C. has noise standards on: the permissible sound levels and exhaust systems for motor vehicles, motorcycles, tractors, construction plants, aircraft and household appliances.69

The developed countries enacted specific legislation to control noise pollution. In

England, noise pollution is legally controlled by several legislations especially Noise Abatement Act of 1960. In United States, noise pollution is, inter alia, controlled by Noise Pollution and Abatement Act of 1979.

(ii) Indian Noise Control Measures.—In Indian perspective, there is no law to deal exclusively with the problem of noise pollution. However, there are provisions

69 David Hughes, Environmental Law (Butterworths 1991) p. 344.

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in various legislations to abate and control noise pollution.

(1) Constitution of India.—Article 21 of the Constitution of India enshrines protection of life and personal liberty. It declares that no person shall be

deprived of his life or personal liberty except according to procedure established by law. The Indian Judiciary has expanded the scope of Article 21and the right to decent and wholesome environment is treated as part of right to life guaranteed under Article 21. The right to wholesome environment obviously includes the right to noise free environment.

Article 39 (e) which is a directive principle of State policy directs the State that health and strength of workers, men and women, and the tender aged children are not abused and that citizens are not forced by economic necessity to enter avocations

unsuited to their age or strength. Article 48-A of the Constitution imposes duty on every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures. The citizens are duty bound to improve the environment and make it noise free.

The mandate of the Constitution is clear that the State as well as the individuals shall make all efforts to make environment free of the noise pollution.

(2) Criminal Law.—

Provisions in Sections 269 to 294 of the Indian Penal Code deal with various forms of nuisance. But nuisance caused by noise is specifically dealt with in the Penal Code. Section 290 of the Code deals with punishment for those cases of nuisance which have not been covered specifically under the provisions of the Code. It lays down that whoever commits a public nuisance in any case not otherwise punishable by this Code, shall be punished with fine which may extend to two hundred rupees. Nuisance caused by noise pollution is covered in Section 290 of the Indian Penal

Code. The punishment for noise pollution should be enhanced. Section 133 of the Criminal Procedure Code empowers the Executive Magistrate to order the removal of nuisance including the nuisance caused by noise pollution.

In addition, Railways Act, Motor Vehicles Act along with its Rules, Factories Act and Aircraft Act contain provisions dealing with the control of noise pollution. Rule 5.5 of the Motor Vehicles Rules 1940 contains description of horn so as to control noise pollution. Rule 5.6 indicates the form of silencer so as to prevent noise pollution, Rule 5.9 provides that every vehicle shall be so constructed and

maintained as not to cause excessive noise when in motion. The Aircraft Act contains certain provisions to control pollution but there is no specific provision to deal with noise pollution. Even the Factories Act does not contain a specific provision to protect the workers from noise pollution. It is notable that Section 11 of the Factories Act seeks to protect the workers from nuisance, which, of course, includes noise pollution.

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(3) The Environment (Protection) Act, 1986.—

The Environment (Protection) Act, 1986 was passed under Article 253 of the

Indian Constitution in the wake of Bhopal tragedy. The statement of objects and reasons contained in the Act makes it clear that the purpose of the Act is to implement the decisions taken at the United Nations Conference on Human Environment held at Stockholm in June 1972 in which India actively participated. The Environment (Protection) Act is designed to supplement the existing laws as regards pollution by providing in general for environmental protection and to fill in the gaps in the regulation of major environmental hazards .

The provision in Section 2 (a) of the Act lays down that the ―environment‖

includes water, air and land and the inter-relationship which exists among and between water, air and land and human beings, other living creatures, plants, micro-organism and property. Environmental pollutant, according to Section 2 (b), means any solid, liquid or any gaseous substance present in such concentration as may be, or tend to be injurious to environment. Under Section 2(c), environmental pollution means presence in the environment of any environmental pollutant. It is notable that noise is not covered in the definition of environmental pollutant which includes solid, liquid or gaseous substances only. Sound is not a substance but is a

propagation of pressure waves, excess presence of which is called noise pollution. However, the narrow scope of Section 2(b) is brought out in Section 6 (2) (b) which refers to noise pollution. It lays down that Central Government may, by notification in the Official Gazette, make rules prescribing the maximum allowable limits of concentration of various environmental pollutants including noise for different areas. In this way, the Environmental Protection Act deals with inter alia the problem of noise pollution.

The 1987 amendment of the Air Act extends the provisions of the Air Act to

increased penalties, citizens suits and the issuance of injunction by Magistrates to prevent noise pollution. Noise Pollution is included in air pollution.

(4) Law of Torts.—

Noise pollution, ipso facto, is not actionable under the Law of Torts. But, it becomes actionable if it amounts to nuisance for which an action for the tort of nuisance would be maintainable. If the noise does not amount to nuisance, the

plaintiff remains without remedy. The inadequacies of the existing laws to deal with noise pollution make it clear that there is urgent need for a separate Central legislation to control the menace of noise pollution which is in no way less harmful than water or air pollution. Noise pollution disturbs person in his normal work. It causes distraction, annoyance, and torture to scholars, students, tired, old or sick persons. It may even cause serious health problems like impaired hearing, high blood pressure and nervous break-down. The extent of damage depends upon the duration

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and intensity of the noise causing pollution.

(5) Noise Pollution (Regulation and Control) Rules, 2000.—

The Central Government in exercise of powers conferred on it under the Environment (Protection) Act, 1986 has made Noise Pollution (Regulation and Control) Rules, 2000. It seeks to lay down wide and broad standards for air in respect of noise for different areas /divisions. These Rules are to be read with Rule 5 of Environment (Protection) Rules, 1986 made under Environment (Protection) Act, 1986.

In Rabin Mukherjee v. State of West Bengal70 The Calcutta High Court recognized the nuisance created by noisy electric and air horns used in buses and trucks and directed the transport authorities to strictly enforce the provisions of the Motor Vehicles Act and the Bengal Motor Vehicle Rules which restricted the use of loud and shrill horns.

In P. A. Jacob v. Superintendent of Police71 The Kerala High Court held that the

Fundamental right to freedom of speech guaranteed under Article 19 (1) (a) did not include the right to use a loudspeaker. The court held that apart from the right to be let alone, freedom from aural aggression, Article 21 of the Constitution of India guarantees freedom from tormenting sounds.

In Dr. Y.T.Oke v. State of Maharashtra72 The Bombay High Court declined to permit the use of loudspeakers beyond 11.30 pm during the Ganesh festival and

Navarathri celebrations. The Court held that nobody can object to Navarathri festival or any festival for that matter. These festivals can be enjoyed even without the use of loudspeakers. The court pointed out that religious ceremony nowhere provides that on religious festival days loudspeaker is a must without which festivals cannot be observed. The Court directed the state to protect silent sufferers like students, old, infirm and others who are not interested.

Birangana Religious Society v. State of West Bengal73 was a writ petition filed by

a religious organisation, which was aggrieved by the Government‘s refusal to permit microphones and loudspeakers during daily poojas and other religious activities. The Calcutta High Court held that, one can practice, profess and propagate religion as guaranteed under Article 25(1) of the Constitution, but that is not an absolute right and it cannot be said that a citizen should be coerced to hear anything which he does not like or which he does not require. The High Court recognized the Right to leisure, Right to sleep and Right not to hear of citizens and upheld the order of the

70 AIR 1985 Cal. 222

71 AIR 1993 Kerl.

72 W.P No. 1732/1995 Bombay High Court.

73 (1996) 100 CWN 617.

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Government prohibiting the use of loudspeakers between 9 p.m. and 7 a.m. The Court directed the Government to take steps to see that the sound generated in the temples, mosques, churches or gurudwaras, etc., does not flow beyond the vicinity of

such religious place. It also directed the authorities to calibrate and seal the apparatus amplifying the sound so that the noise does not exceed the prescribed limit.

In Burrabazar Fire works Dealers v. Commissioner of Police74 the firework dealers approached the Court for relief against the Police for not permitting sale of crackers, which emanated noise exceeding 65 decibels. The High Court declined

relief since it held that no person had a right to manufacture or sell fireworks that created sound beyond the levels prescribed by the Environment Protection Rules. On appeal to the Supreme Court the Supreme Court approved the view of the High Court. It is to be noted that after this judgment the Ministry of Environment and Forest amended the Schedule I of the Environment Protection Rules by introducing noise standards for crackers that allow noise levels up to 125 decibels.

In Moulana Mufti Syed Barkati v. State of West Bengal75 the petitioner challenged

the restriction on use of loudspeakers imposed by the State between 9 00pm and 7.00 am as violative of freedom of religion. The petitioner claimed that ‗Azan‘ which was integral to Islam was required to be called 5 times a day through loudspeakers. The Calcutta High Court dismissed the petition, holding that the use of loudspeakers was a technological development and was not a part of Islam.

In Church of God (Full Gospel) In India v. K.K.R Majestic Colony Association76 the Appellant is the Church of God located at K.K.R Nagar, Madavaram, Chennai. It has a prayer hall for the Pentecostal Christians and is provided with musical instruments such as drum set, triple gango, guitar, etc., The respondent (K.K.R Majestic Colony Welfare Association) filed a criminal O.P before the High Court of

Madras for a direction to the authorities (Superintendent of Police and inspector of Police) to take action on the basis of the letter issued by the joint Chief Environmental Engineer of the Tamil Nadu Pollution Control Board. In the High Court it was contended by the church that the petition was filed with an oblique motive in order to prevent a religious minority institution from pursuing its religious activities and the court cannot issue any direction to prevent the church from practicing its religious beliefs. The High court directed the church to take necessary steps to bring down the noise level by keeping the speakers at a lower level.

Aggrieved by the said order this appeal was filed by the church. The questions involved in this appeal are in a country having multiple religions and numerous communities or sects, whether a particular community or sect of that community can claim right to add to noise pollution on the ground of religion? Whether beating of drums or reciting of prayers by use of microphones and loudspeakers so as to disturb the peace or tranquility of neighbourhood should be permitted? The Court held that

74 AIR 1998 Cal. 121 75 AIR 1999 Cal. 15. 76 AIR 2000 SC 2773

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―undisputedly no religion prescribed that prayers should be performed by disturbing the peace of others. Nor does it preach that they should be through voice amplifiers or beating of drums. In our view, in a civilized society in the name of religion

activities which disturb old or infirm persons, students or children having their sleep in the early hours or during day time or other persons carrying on other activities cannot be permitted...‖ The Supreme Court while dismissing the appeal observed that ―in the present case, the contention with regard to the rights under Article 25 or 26 of the Constitution which are subject to ‗public order, morality and health‘ are not required to be dealt with in detail mainly because ... no religion prescribes or preaches that prayers are required to be performed through voice amplifiers or by beating of drums. In any case if there is such practice, it should not adversely affect the right off others including of that of being not disturbed in their activities.‖

In Free Legal Aid Cell v. Government of NCT of Delhi77 the grievance of the petitioners was that the results of display of fireworks are prime cause of concern and impact on health of adults as well as children. Noise pollution is caused due to use of high-sounding explosive fireworks and other blaring sound production devices and

the effect of the same results in pollution in sound, which is hazardous. It is also submitted that because of indiscriminate use of loudspeakers, noise pollution has become a routine affair affecting mental as well as physical health of citizens. The High Court directed that the Government should implement the noise norms strictly in letter and spirit. The High Court suggested the following: 1. Separate courts regarding noise pollution may be established; 2. All district magistrates should be empowered to issue prohibitory orders under Section 144 of CrPC to limit the hours for the use of loudspeakers; 3. to make the subject of environmental protection

compulsory in schools and colleges and also in the universities; 4. Both Central and State Governments must work together to enact legislative measures to prevent the fast growing menace; 5. Use of firecrackers in religious festivals, marriages processions etc.; shall be properly regulated. The court further held that it shall be the duty of the area SDMs to see that noise control rules are strictly adhered to and any default in this regard will be treated as misconduct, liable for disciplinary action besides action for disobeying court.‘

In Shobana Ramasubramanyam v. Chennai Metropolitan Development Authorit78 two writ petitions were heard together and it alleged sound pollution and vibration

because of the operation of the heavy machinery used for digging during pile foundation. Direction was sought against the builder not to carry on any piling foundation activities on their site so as not to cause environmental pollution to he nearby residents of Sriram Colony in Abiramapuram, Chennai. The plea of the petitioners is to ask the construction workers to use environment friendly devices and to adopt safer and pollution free equipments. The Court appointed Commissioners to inspect and report. The Commissioners reported that the noise level was in excess of

77 AIR 2001 Delhi 455. 78 AIR 2002 Mad 125.

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any standard and disturbing the conscience of the neighbourhood. The Assistant Engineer, TNPCB too, recommended that the present system of piling be avoided as the site is amidst a cluster of buildings. The High Court held that the petitioners were

complaining about excessive noise right from the beginning, but the authorities turned a deaf ear to their cause and hence their approach to the judiciary is substantial. There is no other option for the Court except to close and restrain the activities of the foundation by using the pile driven system. Instead, the work could be carried on by bore driven technique or any method that generated less noise.

5.4. OTHER PROVISIONS TO COUNTER ENVIRONMENT POLLUTION

THE GROUNDWATER (DEVELOPMENT AND PROTECTION) RULES, 1998-

The Central Groundwater Authority, with a view to regulate indiscriminate boring and withdrawal of ground water in the country and to issue necessary regulatory directions with a view to protect and preserve ground water, has made the rules

called The Groundwater (Development and Protection) Rules, 1998 in exercise of the powers conferred by sections 6 and 25 of the Environment (Protection) Act 1986. These rules shall be applicable to the following specific aspects/cases:

Extraction of groundwater for any use, except for drinking and domestic

purposes and matter connected therewith.

Clearance of well construction

Pumping of groundwater within limits laid by the authority.

Planning and implementation of projects for enhancing recharge of

groundwater.

Reassessment of ground water resources as per directions of the authority.

Performance of business of drilling of wells

Sale of groundwater

Registration of ground water abstraction structures

Supply of data on demand on the structure, pumping and use of ground water.

Management of groundwater in coastal aquifers

Clearance of solid and liquid waste disposal sites

Clearance for setting up groundwater based industries

Conservation and artificial recharge of groundwater including roof top run

off harvesting and storm water recharge etc.

Degradation in quality of groundwater on account of groundwater ex-

traction. Under these rules ―Groundwater‖ is defined to mean ―the water existing in aquifers beneath the ground surface or discharged from below the ground surface on the earth or rivers.‖

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Functions of central ground water authority- The Central Groundwater Authority is conferred with the following functions:

Notifying areas for the protection and conservation of groundwater from

pollution and depletion.

Regulating construction of wells, bore wells, tube wells, and any other

groundwater abstraction structure.

Issuing of guide lines for conservation of groundwater

Give directions for re-circulation of water in industry including hotel,

tourism and related areas.

Issue directions for the protection groundwater consequent to human

interference in natural processes.

Promulgate directions for monitoring the behaviour of groundwater

system and quality regime.

Formulate guidelines for augmenting groundwater recharge, conservation

of water using rooftop and storm runoff.

Technical clearance of scheme by the State Governments, financial and

other agencies.

Issue guidelines for maintenance of ground water levels at minimum depth, below ground, in different areas.

Issue directions and take measures for the implementation of the above guidelines and all matters considered relevant in this connection.

Formulate and issue guidelines for data collection and setting up of information centers at various levels.

Recommend norms for the allocation of groundwater for various sub-sectoral uses like domestic, irrigation and industry and suggest inter-se

priorities.

Issue directions for the identification and monitoring of groundwater vulnerable areas.

Issue directions for the control of wastage of water in artesian wells. The rules provide for the grant of permit to extract and use groundwater in an area79

and also for the registration of existing users80. The rules prohibit the carrying on of the business of sinking of wells without permission from government. It also provides for recharge and reuse of surplus monsoon run off.81

NATIONAL GREEN TRIBUNAL ACT 2010 The National Green Tribunal has been established on 18th October 2010 under the

79 Rule 7, The Groundwater (Development And Protection) Rules, 1998

80 Rule 8, id.

81 Rule 14, id.

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National Green Tribunal Act 2010 for effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to environment and

giving relief and compensation for damages to persons and property and for matters connected therewith or incidental thereto. It is a specialized body equipped with the necessary expertise to handle environmental disputes involving multi-disciplinary issues. The Tribunal shall not be bound by the procedure laid down under the Code of Civil Procedure, 1908, but shall be guided by principles of natural justice. The Tribunal‘s dedicated jurisdiction in environmental matters shall provide speedy environmental justice and help reduce the burden of litigation in the higher courts. The Tribunal is mandated to make and endeavour for disposal of applications or

appeals finally within 6 months of filing of the same. Initially, the NGT is proposed to be set up at five places of sittings and will follow circuit procedure for making itself more accessible. New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four place of sitting of the Tribunal.

Origin of the National Green Tribunal During the Rio De Janeiro summit of United Nations Conference on Environment

and Development in June 1992, India vowed the participating states to provide judicial and administrative remedies for the victims of the pollutants and other environmental damage. There lie many reasons behind the setting up of this tribunal. After India‘s move with Carbon credits, such tribunal may play a vital role in ensuring the control of emissions and maintaining the desired levels. This is the first body of its kind that is required by its parent statute to apply the ―polluter pays‖ principle and the principle of sustainable development. This court can rightly be called ‗special‘ because India

is the third country following Australia and New Zealand to have such a system.

Members- The sanctioned strength of the tribunal is currently 10 expert members and 10 judicial members although the act allows for up to 20 of each. The Chairman of the tribunal who is the administrative head of the tribunal also serves as a judicial member. Every bench of the tribunal must consist of at least one expert member and one judicial member. The Chairman of the tribunal is required to be a serving or retired Chief Justice of a High Court or a judge of the Supreme Court of India.

Members are chosen by a selection committee (headed by a sitting judge of the Supreme Court of India) that reviews their applications and conducts interviews. The Judicial members are chosen from applicants who are serving or retired judges of High Courts. Expert members are chosen from applicants who are either serving or retired bureaucrats not below the rank of an Additional Secretary to the Government of India (not below the rank of Principal Secretary if serving under a state government) with a minimum administrative experience of five years in dealing with environmental matters. Or, the expert members must have a doctorate in a related

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field.

Jurisdiction-

The Tribunal has Original Jurisdiction on matters of ―substantial question relating to environment‖ (i.e. a community at large is affected, damage to public health at broader level) & ―damage to environment due to specific activity‖ (such as pollution). However there is no specific method is defined in Law for determining ―substantial‖ damage to environment, property or public health. There is restricted access to an individual only if damage to environment is substantial. The powers of tribunal related to an award are equivalent to Civil court and tribunal may transmit any order/award to civil court have local jurisdiction. The Bill specifies that an application for dispute related to environment can be filled within six months only

when first time dispute arose (provide tribunal can accept application after 60 days if it is satisfied that appellant was prevented by sufficient cause from filling the application). Also Tribunal is competent to hear cases for several acts such as Forest (Conservation) Act, Biological Diversity Act, Environment (Protection) Act, Water & Air (Prevention & control of Pollution) Acts etc. and also have appellate jurisdiction related to above acts after establishment of Tribunal within a period of 30 days of award or order received by aggrieved party. The Bill says that decision taken

by majority of members shall be binding and every order of Tribunal shall be final. Any person aggrieved by an award, decision, or order of the Tribunal may appeal to the Supreme Court within 90 days of commencement of award but Supreme Court can entertain appeal even after 90 days if appellant satisfied Supreme Court by giving sufficient reasons.

Orders On sand mining Reaffirming February 27, 2012, Supreme Court‘s order banning any kind of mining

of minor minerals, including sand, without environmental clearance from the Union Ministry of Environment and Forests, the NGT on 5 August 2013 issued a restraint order against all sand mining activity being carried out across the country without environmental clearance. The bench comprising justices Swatenter Kumar, U. D. Salvi, S. N. Hussain, and experts, D. K. Agarwal and Ranjan Chatterjee said that removal of minerals from river beds is posing a serious threat to the flow of rivers, survival of forests upon river banks and most seriously to the environment of river banks, especially those of the Yamuna, Ganga, Chambal, Gaumti and Revati rivers.

The NGT bench also observed that ―majority of persons carrying out mining activity of removing mineral from the river bed have no licence to extract sand; they also have not obtained clearance from Ministry of Environment and Forests or the State Environment Impact Assessment Authority (SEIAA) at any stage in terms of the Environment (Protection) Act, 1986 (EP Act, 1986) as well as Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) act, 1974. While the bench initially restrained illegal sand mining on the beds and banks of rivers Yamuna, Ganga, Hindon, Chambal, Gomti, amongst others, but later

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modified its order saying the issue of illegally removing sand has nationwide implications . On August 14, 2013, The National Green Tribunal (NGT) decided to set up an expert committee on illegal sand mining to carry out any orders that it may

pass in future and to prepare a comprehensive report on the issue. The committee will also carry out a comprehensive zoning and mapping to delineate areas where mining could be permitted and to what extent. The tribunal specifically banned beach sand mining in the coastal States citing specific instances of State of Tamil Nadu - where 2,30,000 tonnes beach sand mineral has been quarried in Vaippar village without permission of any Government Authority and State of Kerala. We have seen that in spite of the serious effects of noise, on human body there is no specific and detailed legislation to control the noise pollution in India. Even the

available provisions in various branches of law are inadequate, unscientific and vague ones. In most of the developed countries specific legislations have been made and scientific methods have been invented to control noise pollution. In England ―Noise Abatement Act, 1960‖ and now ―Control of Pollution Act, 1974‖ (Part III of the Act deals with noise pollution and the Act replaces the Noise Abatement Act, 1960) takes care of noise pollution there. In India, there is Central Legislation on the control of water and air pollution in the form of ―The Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981‖, but

there is none so far as noise pollution is concerned. In India also there is an urgent need that Central Government should pass legislation for the control of noise pollution without undue delay. It is true that noise free living are the dreams of the day but noise pollution can be controlled by following measures :

a. The present rules of law of torts can sufficiently protect the victims of

noise pollution, provided the courts interpret the rules liberally in favour

of the claimant in the light of the changing circumstances. The courts

may now have no difficulty in treating noise pollution as such, as a

branch of legal duty actionable under the law in view of the fundamental

duty of every citizen to protect and improve the natural-environment,

enshrined in Article 51A-(g) of the Constitution of India.

b. The aircrafts Act, 1934 contains no provision for the control of noise

pollution. In this regard it is suggested that aerodromes be constructed far

away from the residential areas of a city in order to protect residences

from the noise created by frequent take off and lending.

c. Railways Act, 1890 is also without noise control provisions. Noise

pollution caused by railway engines can be reduced if steam engines are

replaced by electric/diesel engines and welded tracks are used for

running the trains. Railway tracks should not pass through residential

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areas and especially a lot of annoyance can be reduced if shunting

operations are done far away from residential areas.

d. No doubt, Motor Vehicles Act, 1939 provides certain restrictions on

noise produced by horns and it also requires a silencer to be fitted with

every motor vehicle but it has failed to mention the limit of noise which a

vehicle may be entitled to produce. Therefore, this limit be prescribed.

Punishment should be provided for the non-use of silencers and proper

horns. Restrictions should also be imposed for the irregular and

unnecessary use of pressure horns by the drivers of automobiles. An

effort should also be made to manufacture better automobile engines

with low noise. Planting trees on sides of the roads or making banks on

their sides can defuse the noise made by the traffic.

e. Industrial laws are devoid of specific noise pollution control provisions

except Factories Act, 1948. Therefore, specific provisions should be

incorporated to protect workers from noise pollution. The workers

should be provided with ear defenders and insulation be made there.

f. To control noise pollution public awakening and participation is

essential. In India, most of the persons are unaware of disastrous effects

of noise pollution and their control. Noise pollution as part of

environmental education should be made compulsory and wide publicity

should be given by Television, Radio and Newspapers, etc.

g. Loudspeakers and other noise producing activities should be completely

banned (except in emergencies) during sleeping hours for better future

and less annoyance.

h. Special bonus or tax relief should be given to those people who want to

insulate their factories or who want to manufacture low noise machinery.

i. Formation of ‗noise free zones‘ around all schools, colleges, hospitals,

telephone-exchanges etc. is the easiest and cheapest way to control noise

pollution. Further, noise abatement zones should also be formed where

noise pollution is very high to reduce it to the optimum minimum.

j. Above all, there is need for comprehensive executive and legislative will

power to control noise pollution.