Water Act, 1974 | Environmental Law - CLAT PG PDF Download

Introduction

• Water pollution occurs when the pollution load exceeds the natural regenerative capacity of a water resource.
• In India, around 70 percent of surface water sources, like rivers and lakes, are polluted, with groundwater pollution also on the rise.
• Pollution makes water scarce not due to quantity but due to quality concerns.
• Sources of water pollution are:
  • Point sources: Like untreated industrial effluents and domestic sewage.
  • Non-point sources: Such as agricultural runoff.
• Water pollution can also stem from encroachments, sand mining, religious activities, and waste dumping.

Provisions in the Constitution of India

• The Constitution of India does not explicitly mention water pollution. However, the Supreme Court has interpreted Article 21 to include the right to a pollution-free water environment.
• Directive Principles of State Policy, such as improving public health(Article 47) and protecting the environment(Article 48-A), are relevant to water pollution.
• Article 51-A(g) identifies the protection and improvement of the natural environment, including lakes and rivers, as a fundamental duty of every citizen.
• Water, sanitation, and public health fall under the State List, giving state governments the power to manage these subjects.
• The 73rd and 74th Constitutional Amendments in 1992 established local governing bodies, allowing states to delegate functions related to water, sanitation, and public health to these bodies.

Salient Features of the Water (Prevention and Control of Pollution) Act, 1974

The Water Act was enacted by the Central Government under Article 252 of the Constitution, despite the subject of water being under the State List.
The main objectives of the Water Act include:

• Preventing and controlling water pollution.
• Maintaining or restoring the wholesomeness of water.
• Establishing pollution control boards.
• Confering powers and functions to the boards for pollution prevention and control.
• "Pollution" is defined as the contamination or alteration of water's physical, chemical, or biological properties, which can create a nuisance or render the water harmful to public health or various legitimate uses.
• The Water Act establishes the Central Pollution Control Board (CPCB) at the national level and State Pollution Control Boards (SPCBs) or Pollution Control Committees at the state or union territory level to achieve the Act's objectives.

Composition of the Central Pollution Control Board (CPCB)

• The CPCBis composed of:
  • A full-time chairman with expertise in environmental protection or related fields.
  • Up to five officials nominated by the Central Government.
  • Up to five members from State Boards, nominated by the Central Government.
  • Up to three non-officials representing interests like agriculture, fishery, or industry.
  • Two representatives from Central Government-owned companies.
  • A full-time member-secretary with expertise in pollution control.
• The CPCB is a body corporate with perpetual succession, a common seal, and the ability to sue or be sued.

Constitution of State Pollution Control Boards (SPCBs)

• A chairman with expertise in environmental protection or related fields.
• Up to five officials representing the State Government.
• Up to five members from local authorities within the State.
• Up to three non-officials representing interests like agriculture, fishery, or industry.
• Two representatives from State Government-owned companies.
• A full-time member-secretary with expertise in pollution control.
• The State Board is a body corporate with perpetual succession and the ability to sue or be sued.
• In Union territories, the CPCB exercises the powers and functions of a State Board. The CPCB may delegate its powers and functions to specified persons or bodies in Union territories.

Disqualifications for Board Membership

• No person can be a member of a Board if they are adjudged insolvent, declared of unsound mind, convicted of an offence involving moral turpitude, or convicted under the Water Act.
• Members with a direct or indirect interest in firms related to the manufacture or sale of machinery for sewage or trade effluent treatment, or those with contracts with the Board or Government for sewerage schemes or treatment plant installations, are disqualified.
• Members can be removed for abusing their position in a manner detrimental to the public interest, with a reasonable opportunity to show cause against removal.
• Joint boards may be constituted for multiple state governments or Union territories.

Functions of the Central Pollution Control Board (CPCB)

• Promoting cleanliness of streams and wells in various areas of the States.
• Advising the Central Government on water pollution prevention and control matters.
• Coordinating activities of State Boards and resolving disputes among them.
• Providing technical assistance and guidance to State Boards.
• Planning and organizing training programs for personnel engaged in water pollution prevention and control.
• Organizing mass media programs on water pollution prevention and control.
• Collecting, compiling, and publishing technical and statistical data on water pollution and control measures.
• Setting, modifying, or annulling standards for streams or wells in consultation with State Governments.
• Planning and executing a nation-wide program for water pollution prevention, control, or abatement.
• Performing any other functions as prescribed.

Functions of the State Pollution Control Board (SPCB)

• Planning a comprehensive program for prevention, control, or abatement of pollution in streams and wells.
• Advising the State Government on water pollution matters.
• Collecting and disseminating information on water pollution and prevention measures.
• Conducting research on water pollution issues.
• Collaborating with the CPCB in training programs and mass education on water pollution.
• Inspecting sewage and trade effluent treatment facilities.
• Laying down, modifying, or annulling effluent standards and quality standards for receiving waters.
• Developing methods for sewage and trade effluent treatment specific to regional conditions.
• Establishing standards for treatment of sewage and trade effluents before discharge into specific streams.
• Advising on the location of industries that may pollute streams or wells.
• Performing other functions as prescribed or assigned by the CPCB or State Government.

Note: The SPCB may establish or recognize laboratories for efficient performance of its functions, including analysis of water samples from streams, wells, sewage, or trade effluents.

S. 18 Powers to Give Directions

(1) In carrying out its functions under this Act:

• (a) The Central Board must follow any written directions from the Central Government.
• (b) State Boards must adhere to written directions from the Central Board or the State Government.

Provided that if a direction from the State Government conflicts with one from the Central Board, the issue will be escalated to the Central Government for resolution.

(2) If the Central Government believes that a State Board is failing to comply with directions from the Central Board, and this failure has led to a serious emergency requiring immediate action in the public interest, it can order the Central Board to take over specific functions of the State Board in a designated area for a specified time and purpose.

(3) When the Central Board takes over functions of a State Board as per a direction in subsection (2), any expenses incurred by the Central Board can be recovered from the State Board with interest, if the State Board has the authority to recover such expenses. This recovery will be treated as arrears of land revenue or public demand.

(4) To clarify, any directions to a State Board to perform its functions in a specific area under subsection (2) do not prevent the State Board from performing its functions in other areas of the State or from carrying out other functions in the same area.

S. 20 Power to Obtain Information

• For the purpose of enabling a State Board to perform the functions conferred on it by or under this Act, the State Board or any officer empowered by it in that behalf, may make surveys of any area and gauge and keep records of the flow or volume and other characteristics of any stream or well in such area, and may take steps for the measurement and recording of the rainfall in such area or any part thereof and for the installation and maintenance for those purposes of gauges or other apparatus and works connected therewith, and carry out stream surveys and may take such other steps as may be necessary in order to obtain any information required for the purposes aforesaid.
• A State Board may give directions requiring any person who in its opinion is abstracting water from any such stream or well in the area in quantities which are substantial in relation to the flow or volume of that stream 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 at such times and in such form as may be specified in the directions.
• Without prejudice to the provisions of sub-section (2), a State Board may, with a view to preventing or controlling pollution of water, give directions requiring any person in charge of any establishment where any industry, operation or process, or treatment and disposal system is carried on, to furnish to it 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 and such other particulars as may be prescribed.

S. 21 Power to Take Samples of Effluents and Procedure to be Followed in Connection Therewith

(1) A State Board or any officer empowered by it in this behalf shall have power to take for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well.

(2) The result of any analysis of a sample of any sewage or trade effluent taken under sub-section (1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub-sections (3), (4) and (5) are complied with.

(3) Subject to the provisions of sub-sections (4) and (5), when a sample (composite or otherwise as may be warranted by the process used) of any sewage or trade effluent is taken for analysis under sub-section (1), the person taking the sample shall

• (a) serve on the person in charge of, or having control over, the plant or vessel or in occupation of the place (which person is hereinafter referred to as the occupier) or any agent of such occupier, a notice, then and there in such form as may be prescribed of his intention to have it so analysed;
• (b) in the presence of the occupier or his agent, divide the sample into two parts;
• (c) cause each part to be placed in a container which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent;
• (d) send one container forthwith,
• (i) in a case where such sample is taken from any area situated in a Union territory, to the laboratory established or recognised by the Central Board under section 16; and
• (ii) in any other case, to the laboratory established or recognised by the State Board under section 17;
• (e) on the request of the occupier or his agent, send the second container,
• (i) in a case where such sample is taken from any area situated in a Union territory, to the laboratory established or specified under sub-section (1) of section 51; and
• (ii) in any other case, to the laboratory established or specified under sub-section (1) of section 52.

(4) When a sample of any sewage or trade affluent is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent, a notice under clause (a) of sub-section (3) and the occupier or his agent wilfully absents himself, then,

• (a) the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of clause (e) of sub-section (3) and such person shall inform the Government analyst appointed under sub-section (1) or sub-section (2), as the case may be, of section 53, in writing about the willful absence of the occupier or his agent; and
• (b) the cost incurred in getting such sample analysed shall be payable by the occupier or his agent and in case of default of such payment, the same shall be recoverable from the occupier or his agent, as the case may be, as an arrear of land revenue or of public demand:

Provided that no such recovery shall be made unless the occupier or, as the case may be, his agent has been given a reasonable opportunity of being heard in the matter.

(5) When a sample of any sewage or trade effluent is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent a notice under clause (a) of sub-section (3) and the occupier or his agent who is present at the time of taking the sample does not make a request for dividing the sample into two parts as provided in clause (b) of sub-section (3), then, the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of clause (d) of sub-section (3).

S. 23 Power of Entry and Inspection

(1) Subject to the provisions of this section, any person empowered by a State Board in this behalf shall have a right at any time to enter, with such assistance as he considers necessary, any place—

• (a) for the purpose of performing any of the functions of the Board entrusted to him;
• (b) for the purpose of determining whether and if so in what manner, any such functions are to be performed or whether any provisions of this Act or the rules made there under of any notice, order, direction or authorization served, made, given, or granted under this Act is being or has been complied with;
• (c) for the purpose of examining any plant, record, register, document or any other material object or for conducting a search of any place in which he has reason to believe that an offence under this Act or the rules made there under has been or is being or is about to be 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 of an offence punishable under this Act or the rules made there under

Provided that the right to enter under this sub-section for the inspection of a well shall be exercised only at reasonable hours in a case where such well is situated in any premises used for residential purposes and the water thereof is used exclusively for domestic purposes.

S. 24 Prohibition on Use of Stream or Well for Disposal of Polluting Matter, etc

(1) Subject to the provisions of this section,

• (a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any stream or well or sewer or on land]; or
• (b) no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences.

S. 25 Restrictions on New Outlets and New Discharges

(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 or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereinafter in this section referred to as discharge of sewage); or
• (b) bring into use any new or altered outlet for the discharge of sewage; or
• (c) begin to make any new discharge of sewage:

Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988 (53 of 1988), for which no consent was necessary prior to such commencement,

• (a) constructing, improving or maintaining in or across or on the bank or bed of any stream any building, bridge, weir, dam, sluice, dock, pier, drain or sewer or other permanent works which he has a right to construct, improve or maintain;
• (b) depositing any materials on the bank or in the bed of any stream for the purpose of reclaiming land or for supporting, repairing or protecting the bank or bed of such stream provided such materials are not capable of polluting such stream;
• (c) putting into any stream any sand or gravel or other natural deposit which has flowed from or been deposited by the current of such stream;
• (d) causing or permitting, with the consent of the State Board, the deposit accumulated in a well, pond or reservoir to enter into any stream.

(3) The State Government may, after consultation with, or on the recommendation of, the State Board, exempt, by notification in the Official Gazette, any person from the operation of sub-section (1) subject to such conditions, if any, as may be specified in the notification and any condition so specified may by a like notification be altered, varied or amended.

(4) The State Board may

• (a) grant its consent referred to in sub-section (1), subject to such conditions as it may impose, being conditions as to the point of discharge of sewage or as to the use of that outlet or any other outlet for discharge of sewage;
• (ii) in the case of a new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the discharge or new discharge is to be made; and
• (iii) that the consent will be valid only for such period as may be specified in the order, and any such conditions imposed shall be binding on any person establishing or taking any steps to establish any industry, operation or process, or treatment and disposal system