The Law
The Indian Legislature has enacted Water (Prevention and Control of Pollution) Act, 1974 for the prevention, and control of water pollution and maintaining or restoring of wholesomeness of water. But it seems that the same is not sufficient for properly safeguarding the rights of the people.
Rivers
Rivers are the main sources of drinking water. While considering a pollution in river "Gomati" a tributary of Ganga, the Supreme Court of India has observed that courts cannot afford to lightly deal with cases involving pollution of air and water. The courts will share the parliamentary concern on escalating pollution level of our environment. Those who discharge noxious polluting effluents into streams may be unconcerned about the enormity of the injury which it inflicts on the public health at large, the irreparable impairment it causes on the aquatic organisms , the deleteriousness it imposed on the life and health of animals . Courts should not deal with prosecution in a causal or routine manner and refused to quash the prosecution proceedings initiated for discharging toxic effluents in river.
State Government decided to acquire a pond for converting the land so as to build a hostel. Rajasthan HC interfering with the matter observed that it is matter concerning deprivation of basic requirement and right of villagers to have access to water shortage by natural source. Land not available for allotment as it directly affects ecological balance and also affects right of villagers adversely to claim areas to rain water stored in natural reservoir which is part of right to life, the court observed.
SC always used to monitor the implementation of its orders issued so as to curtail the water pollution. Noticing that the water quality of Yamuna river has improved the court had granted an industry time to pay the pollution fine. Instead of giving notice to all the industries, SC directed the Government of India to publish in newspapers general notice requiring such industries to file their affidavits before the Court by January, 15, 1992 stating steps taken to comply with Court's order dated 9th September 1985
No conflict with existing laws
The Criminal Procedure Code , 1973 empowers the Judicial Magistrate to pass orders for removal of nuisance. After the coming into force of the Act, a Magistrate has passed an order requiring a company from discharging the effluents. A contention was taken that the power enabling the Magistrate to abate nuisance has been impliedly repealed by the provisions not repealed by Water (Prevention and Control of Pollution) Act. The Kerala HC rejecting the contention held that Pollution Control Act and the Criminal Procedure Code are "special and general laws". One deals with pollution and the other deals with maintenance of law and order. They are amenable to simultaneous obedience, and there is nothing irreconcilable in them, according to the Court.
Supreme Court has the occasion to note the casual disposal of a petition concerning water pollution by the Madras High Court. The Madras HC disposed of the writ petition on the basis of the report by the Pollution Control Board . Supreme Court was of the view that the High Court failed to appreciate the true significance of the matter regarding the need to arrest the unabated pollution, which had become a health hazard and environmental enemy because of the discharge of effluents fro the distillery into Bhavani River and adjoining area. High Court fell in error to dispose of the writ petition merely on the consent of the Pollution Control Board. Further, the Supreme Court remanded the writ petition to the High Court to consider the NEERI report. In matters involving public interest requiring an in-depth examination by the High Court should not be disposed of merely on the consent of the State Pollution Control Board and that such matter should be disposed of after obtaining expert opinion, the court observed.
Water sharing dispute between states is common in certain parts of the country. In the matter concerning the sharing of Kaveri water the court has issued directions to the Tribunal to look into all the objections raised by the State.
Drinking Water Supply
Supply of pure drinking water is the statutory duty of the Municipal Corporation and the supply of such water has to be ensured to every citizen, observed by the Supreme Court while dealing with a PIL.. In a situation, where the interest of the community is involved, the individual interest must yield to the interest of the community or the general public.
Drinking water is one of the main problem in Delhi, the capital city. The court found that reason is non-release of sufficient drinking water by Haryana. Supreme Court intervened and issued directions.
But when the release of water for irrigation purpose was questioned, the Andhra Pradesh HC has held that it is for the State Government to decide as to how the existing available water may have to be utilized and managed. It requires expertise. Undoubtedly , it would be a matter of choice by way of policy decision, if taken by the State cannot be interfered with by the High Court merely because there is possibility of an alternative policy choice.
An inhabitant of Agra town had filed a writ petition in the year 1992, alleging therein that the supply of drinking water in Agra city is extremely polluted, the water being contaminated, filthy and totally unhealthy for human consumption. It was also averred in the said petition that notwithstanding several legislations, conferring power and duty on different agencies .For supply of drinking water, providing adequate sewerage and drainage system and measures for disposal of solid waste in city of Agra . The Court directed the State Government to appoint a monitoring committee.
Threat to the drinking water sources in the Lakshadweep island was brought to the notice of the Kerala HC. A technically viable scheme consistent with natural constraints must be evolved the Court observed. .To decide on the modalities, the matter should receive a final look at the hands of the ministries of the Government, according to the Court.
The short supply of water in Lakshadweep again came to the notice of the Kerala HC. The court found that large scale withdrawal with electrical and mechanical pumps depleting the water sources causing seepage or intrusion of saline water from Arabian Sea . The Court observed that the Executive Government has onerous responsibilities in the matter of providing civic amenities. Over exploitation of water sources has to be contained. Environmentalists and Scientists in other disciplines have indicated the importance of water management in the present day. Perhaps water management will be one of the biggest challenges in the opening decades of the next century. With changes in the way of life, even a basically conventional society, may go in for modern means and make use of pumps to draw water from private wells, the court observed.
In Kerala State the Government has constituted a separate authority (Kerala Water Authority), for supplying drinking water to the residents. But still the drinking water supply has not improved. The matter was brought to the notice of the High Court. The Court relying on the provisions of the Kerala Municipalities Act, 1994 held that every Municipality is duty bound to supply clean drinking water to its people.
Water Pollution
Immersion of Ganesha Idols on religious festivals, like Vinayaga Chathurthi , has also come to the scrutiny of the Madras HC. It is complained that idols made by plaster of Paris and other idols made of any other chemicals and immersing such idols in Sea, Rivers and other Water Resources causes pollution. The authorities thereafter took steps to prevent the water pollution being caused by the immersion of such idols and court satisfied with the steps closed the matter
In public interest litigation alleging that a distillery had been discharging beyond its premises untreated effluents, chemical wastes and sewage, thereby contaminating the water resources and by polluting environment, the Patna HC permitted the said distillery company to restart its manufacturing provokes with adequate safeguards in terms of a scheme framed by the HC on the basis of Experts Committees report. HC directed that in case it comes to light at any person has contracted any ailment the cause of which can be directly related to the effluent discharged by the distillery, the company shall have to bear all expenses of his treatment and the question of awarding suitable compensation to the victim may also be considered.
When due to contamination of water death in beggars home took place, the Dehli HC has intervened. Action was taken against the culprits. Therefore the court issued direction to complete the proceedings and disburse compensation.
The Andhra Pradesh Government has banned the location of industries within 10 kms radius of a reservoir from which water is used by the general public . Subsequently certain industries were granted exemption. The matter was taken up before the SC. Interfering with the granting of exemption the Court directed the State to identify the industries which are located within 10 kms radius of the lakes and to prevent pollution to the drinking water in these two reservoirs
A good judgment was made by the Rajasthan HC while considering the pollution being created by the factories carrying on the business of dyeing and printing of cloth discharging toxic substances in water used for agriculture, drinking , etc. HC directed industries, state and its agencies to set up common effluent treatment plant so that effluents cannot be discharged into canals. Six principles can be culled out from Arts.21, 48-A and 51-A(g) and various judicial pronouncements, the court explained, (1) All human beings have fundamental right to unpolluted environment, pollution-free water and air, (2) State is obliged to preserve and protect environment (3) It is mandatory for State and its agencies , to conceive, anticipate, prevent and attack causes of environmental degradations . (4) Industry cannot be permitted to continue as a matter of right, in case it creates pollution (5) Polluter must meet cost of repairing environment and ecology and pay reparation to those, who have suffered because of pollution caused by him (6) Considerations of economy cannot prevail over concerns for environment and ecology.
The villagers of Andhra Pradesh has approached the HC against the proposal of the authorities to assign the land abutting/adjacent to an Irrigation Tank which is being used by many. The court directed the District Collector to look into their grievances and the judgments rendered by the SC and HC.
Delhi HC had the occasion to consider the discharge of trade effluents by a soft drinking manufacturing company. The HC has found that the samples of water has not been taken in accordance with law and set aside the order of the Magistrate passed against the industry restraining them from discharging effluents.
Rajasthan HC while considering factories carrying on business of dying and printing of cloth discharging toxic substance in water used for agriculture , drinking , etc Court directed industry, State and its agencies to set up common effluent treatment plant so that effluents are not discharged in canals.
Gujarat HC has held that mere consent order issued by the State Board does not entitle the industry to discharge trade effluents into street and its is incumbent upon the applicant to comply with the conditions mentioned in the consent order, as also to put up the effluent treatment plants within the time prescribed in the order. HC has held that failure in complying with the requirements of putting up effluent treatment plant results in lapse of consent.
Water Pollution being generated by a Sugar Factory was considered by the SC. The factory undertaken before the Court that effluent treatment plant instruments would be fixed before it began operation in the next season. Therefore the court directed the State Pollution Control Board to ensure that the effluents are treated before the unit restarted and the boiler was replaced within a time-frame.
The A.P. Pollution Control Board is directed not to allow the20 highly polluting industries which have been notified by the Central Government as falling within the purview of Industrial Licensing, to come up within the vicinity or catchments area of Durgam Cheruvu lake. Such a direction was issued in public interest so as to protect the water body.
Despite two rivers, Ganga and Jamuna, the people of Allahabad are not getting water to drink. . The HC to look into the matter of water pollution the Allahabad HC directed the formation of a committee consisting of Magistrate, Senior Advocates and bureaucrats, etc. as members the matter seriously and immediately. The right to get water is part of life guaranteed under Art.21 of the Constitution, but a large section of the citizens of Allahabad are being deprived of this right. Without water the people are bound to die in large number due to dehydration and heat stroke and in fact many have died already
To curb the water pollution in Nainital lake SC has issued directions. Multi-storied group housing and commercial complexes have to be banned in the town area of Nainital . Building of small residential house in flat areas however, could be permitted. Offence of illegal felling of trees could be made cognizable. Fragile nature of Ballia Revine has to be reduced. SC also set up a monitoring committee.
In another occasion SC had the occasion to consider the an Interim petition seeking relief of water by Karnataka State which was dismissed by Cauvery Water Disputes Tribunal .A preliminary objection was raised as to the effect that the SC has no right to consider the validity of the order passed by the Tribunal. It has been held by the SC that it is the ultimate interpreter of the provisions of the inter-State Water Disputes Act, 1956 and has an authority to decide the limits, powers and the jurisdiction of the Tribunal constituted under the Act. Court has not only the power but obligation to decide as to whether the Tribunal has any jurisdiction or not under the Act, to entertain any interim application till it finally decides the dispute referred to it.
The validity of a scheme framed under the Water Parambikulam Aliyar Project (Regulation of water supply) Act, 1993 for supplying water for agricultural purpose was considered by the SC. Considering change in circumstances over a period of ten years a new procedure was enacted for more equitable distribution of water . Thus, there was valid basis for enactment of impugned Act . It was held that such an enactment cannot be regard as arbitrary.
SC has issued direction to close a slaughter house when it is revealed from inspection that t there is no arrangement for drainage of effluent or treatment of effluent . Solid waste is disposed of in the vicinity. Stench can be felt even from 500 meters away. Court directed that till steps are taken to make the new slaughter house operational.
Closure of Industries
The power to order closure of industry is to be used with caution. An Industry commenced production after obtaining requisite licences, permissions from various statutory authorities including consent from the Pollution Control Board. On the apprehension that there was likely to be a grave injury caused to surrounding environment , establishment was ordered to be closed without hearing the industry. The order was passed in violation of the principles of natural justice, but also in contravention of mandatory requirement of rule 4 (3b) of the Environment Protection Rules, the Karnataka HC observed.
Where there were violations of various provisions of Act and conditions imposed there under by industry for its benefit and the industry also flouted orders of the Court and violated its own undertakings given before the Court. Industry being run without enabling power or order in its favour polluting the environment by discharging contaminated water, the order for closure of industry was not liable to be interfered with, the Karnataka HC held.
When civil court was approached seeking injunction from letting noxious fluids into river a contention was taken that it is not maintainable. Andhra Pradesh HC has held that Sec.58 of the Water Act does not prohibit the jurisdiction of a Civil Court to entertain any suit or proceedings restraining the defendant to cause pollution. The section is intended to preserve the statutory protection given to the Boards untouched by Civil actions. The present action is only preventing the defendant from polluting water. But the said action is not directed to annul any orders passed by the authority constituted under the Act.
AP HC had the occasion to quash an order passed by the State Pollution Control Board. When the effluent treatment plant of the industry was found not to be operating, an order was passed by the industry to close down the industry. The HC has held that the order is disproportionate and excessive severe.
A question arose before the Bombay HC that if the offence under the Water Act is being committed by a Government company whether sanction is necessary to lodge a complaint ? . The court has held that no sanction for their prosecution necessary even if such companies falls within the meaning "State" under Art.12 of the Constitution of India. Plea that offences are technical because petitioners subsequently had taken steps to comply with directions of the Board, not a ground for quashing complaint, the Court added.
If the offence is committed by a Company it is not necessary to state specifically that the M. Director was in charge of the affairs of the company. Patna HC has held that the section does not mandate the incorporation of the allegation that the offence was committed with the consent or connivance or was attributable to the neglect on the part of the Chairman, Director or General Manager of the Company in the complaint itself.
Functioning of the Pollution Control Board
The appointment of Secretary who does not possess a degree in engineering or a degree in science has been challenged before the HC . The Karnataka HC has held that the Government in its wisdom may as for as possible appoint persons with engineering/scientific qualification for the post of member secretary for better working as member secretary .
The Water (Prevention and Control of Pollution) Act, 1974 empowers the State Government to supercede the Board if the Board makes persistent default in performance of its duty imposed in public interest . The cases of mal-functioning and misfeasance fall with the ambit of Sec. 62 (1)(b) and Sec.47 (1) (b) of the Act. The preliminary report submitted by enquiry officer shows that the decision taken by the Chairman and the members of the Board were favourable to those industries which were guilty of water and air pollution and therefore the Board acted against the interest of the public, the Punjab and Haryana HC held.
In another case before the P&H HC , it was complained that State has superseded the Board without any reason. On the basis of a complaint from the Industries that even though the Government has decided that no NOC would be required to be obtained by a small scale industrial unit, the Board objected to it. In that circumstances the State has superseded the Board. The HC upheld the decision that the Govt. was justified in forming an opinion that circumstances existed which necessitated suppression of the Board.
Offences under the Act
AP HC had the occasion to quash an order passed by the State Pollution Control Board. When the effluent treatment plant of the industry was found not to be operating, an order was passed by the industry to close down the industry. The HC has held that the order is disproportionate and excessive severe.
A question arose before the Bombay HC that if the offence under the Water Act is being committed by a Government company whether sanction is necessary to lodge a complaint ? . The court has held that no sanction for their prosecution necessary even if such companies falls within the meaning "State" under Art.12 of the Constitution of India. Plea that offences are technical because petitioners subsequently had taken steps to comply with directions of the Board, not a ground for quashing complaint, the Court added.
If the offence is committed by a Company it is not necessary to state specifically that the M. Director was in charge of the affairs of the company. Patna HC has held that the section does not mandate the incorporation of the allegation that the offence was committed with the consent or connivance or was attributable to the neglect on the part of the Chairman, Director or General Manager of the Company in the complaint itself.
