Central Water Laboratory:

Central water laboratory can be established under Section 51 of the Water Act. The Central Government may, by notification in the Official Gazette,  can establish a Central Water Laboratory; or specify any laboratory or institute as a Central Water Laboratory, to carry out the functions entrusted to the Central Water Laboratory under this Act.

The Central Government may, after consultation with the Central Board, make rules prescribing – the functions of the Central Water Laboratory; the procedure for the submission to the said laboratory of samples of water or of sewage or trade effluent for analysis or tests, the form of the laboratory’s report thereon and the fees payable in respect of such report; and such other matters as may be necessary expedient to enable that laboratory to carry out its functioning.

Collection of Sample:

Chapter V of the Act, consisting of Sections 19 to Sections 33-A, provides for ‘the prevention and control of water pollution. Section 19 empowers the State Government to restrict the application of the Act to a certain area(s) after consultation with or on the recommendation of the State Board. The provisions of the Act shall apply, in such situation, to such declared area(s) only. The State Government may alter any such area whether by way of extension or reduction under Article 19(3).

Any person empowered by a State Board has a right to enter any place for the purpose of performing any of the functions of the Board entrusted to him and for the purpose of examining any plant, record, register, document or any other material object. The person may conduct a search of any place in which he has reason to believe that an offence under the Water Act has been or is being or is about to be committed. He may seize such plant, record, register, document or other material objects if it furnishes evidence of the commission of an offence punishable under the Act.

The State Board or its officer can take sample for analysis 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 stream or well. Such sample however, is admissible in evidence in any legal proceeding only if the procedure provided in subsections (3), (4) and (5) of section 21 are complied with.

The processor requires-

1. a prior notice to the occupier, indicating intention to take sample;
2. in the presence of the occupier or his agent, division of the sample into two parts;
3. each sample be placed in a container, marked, sealed and signed by both, the person taking the sample and the occupier or his agent;
4. one of the samples be sent forthwith to the laboratory established or recognized under section 16 or 17, as the case may be.
5. on the request of the occupier, the second part of the sample be sent to the laboratory established or specified under sections 51 ( 1) or 52( 1) as the case may be.

In case the occupier wilfully absents himself during the process of taking the sample, the person who has taken the sample is required to inform the Government analyst in writing about the wilful absence of the occupier or his agent (Section 22).

The sample so collected and sent is required to be analysed by the central, state or any recognised laboratory and the report has to be sent to the Board and occupier or his agent. Such report can be produced before a court of law in a legal proceeding if required (Section 23).

A major amendment in the Act was done in 1988 by virtue of which the Act now prohibits a person to establish any industry, operation or process or any treatment and disposal system or any extension or addition thereto, without the previous consent of the State Board, if it is likely to discharge sewage or trade effluent. Similarly a person cannot, without the previous consent of the State Board, bring into use any new or altered outlet for the discharge of sewage or begin to make any new discharge of sewage.

Penalties:

Failure to comply with directions given under section 20(2) or (3) by the State Board.

Imprisonment for a term which may extend to three months or fine up to Rs. 1 0,000 or both.

In case the failure continues, an additional fine up to Rs. 5000 for every day during which such failure continues. (Section 41(1))

Non- compliance with any order issued under section 32(1) (e) by State Board or any direction issued by a Court under section 33(2) of the Act or any direction issued under section 33A by .the Board.

Imprisonment for a term, not less than one year and six months but which may extend to six years with fine. In case failure continues, with additional fine up to Rs. 5000 for every day during which such failure continues. If the failure continues beyond a period of one year after first conviction, imprisonment for a term not less than two years which may be extended to seven years and fine. (Section 41(2)).

Certain acts, mentioned under section 42(i)(a)-(g):

Imprisonment for a term which may extend to three months or fine up to Rs.10,000 or both. (Section 42(1)).

Wilful alteration of the monitoring device.

Imprisonment up to three months or fine up to Rs. 1,000 or both. (Section 42(2)).

Contravention of provisions of sections 24 of the Act:

Imprisonment for a term not less than one year and six months but which may extend to six years and fine. (Section 43).

Contravention of section 25 or section 26 of the Act:

Imprisonment for a term not less than one year and six months but which may extend to six years and fine. (Section 44).

If any person who has been convicted of any offence under sections 24, 25 or 26 is again found guilty of an offence involving a contravention of the same provision, on the second and on every subsequent conviction, is punishable with imprisonment for a term not less than two years but which may extend to seven year and fine. (Section 45).

Contravention of any provision of Water Act or non-compliance with any order or direction given under the Act, for which no penalty has been elsewhere provided in the Act:

Imprisonment which may extend to three months or fine which may extend to ten thousand rupees or both, and in the case of a continuing contravention or failure, 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. (Section 45 A).

Other Measures:

The Act provides along with penalty another deterrent measures for the habitual offender i.e., the publication of the offender’s name, place of residence, the offence and penalty imposed, at the offender’s expense in newspapers or in any other manner as the court may direct. (Section 46).

When an offence under the Water Act has been committed by any Department of Government, the Head of the Department is deemed to be guilty of the offence and is liable to be punished. But 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, he can be absolved of his liability. (Section 48)

Section 47 of the Water (Prevention and Control of Pollution) Act, 1974 incorporates the principle of vicarious liability. This section provides that where an offence against this act has been committed by a company, every person who, at the time when 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 and shall be liable to be proceeded against and punished accordingly.

In U.P. Pollution Control Board v. Mohan Meakins Ltd., (2000) 3 SCC 745 case, Uttar Pradesh Pollution Control Board initiated proceedings against the manager and director of liquor processing company for discharging pollutants into river Gomati and raising pollution level in the same. The Supreme Court held that action against the manager and director of the company was rightly initiated under the water act. It was further held that Courts could not afford to deal lightly with cases involving water pollution.

Relevance of Section 24:

To promote the proper implementation of the Act, Section 24 of the Act imposes a duty upon a person to refrain from allowing any poisonous or noxious matter, as determined by the standards laid down by the Central Pollution Control Board, into any stream or sewer or on the land. Another duty imposed by this Act upon the person is that no person shall, knowingly enter into any stream in a manner so as to impede the flow of water or in any other way causes pollution of water. According to this Section, any person who violates or contravenes with the provision of this Section shall be made liable to be punished with imprisonment of one year and six months which may extend up to six years.

However, it is also provided that a person shall not be guilty of the above offences by reason only having done any of the following acts, namely

(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.

Appeals:

The Act provides for the provision of appeal for any person aggrieved by an order of the State Board under Section 28 of the Act. The aggrieved person may prefer an appeal within 30 days to the appellate authority constituted by the State Government. The appellate authority can, after giving an opportunity of hearing to the appellant and the State Board, dispose off the appeal expeditiously. While doing so the authority can – (a) annul any condition; (b) substitute any condition; (c) continue the condition without change; or (d) reasonably change the condition.

In A.P. Pollution Control Board v. Prof M V. Nayudu, AIR 1999 SC 812 case, the Supreme Court has suggested amendment in section 28 of the Water Act in view of difficulty, which might be faced by the Appellate authority in deciding complex environmental issues. Jagannadha Rao, J. has emphasized this immediate need in the following words – There is also an immediate need that in all the States and Union Territories, the appellate authorities under section 28 of the Water· (Prevention and Control of Pollution) Act, 1974 and section 31 of the Air (Prevention and Control of Pollution) Act, 1981 or’ other rules there is always a Judge of the High Court, sitting or retired, and a scientist or a group of scientists of high ranking and experience, to help in the adjudication of disputes relating to the environment and pollution. An amendment to existing notifications under these Acts can be made for the present. “

Cognizance of offences:

According to Section 49, no court shall take cognizance of any offence under this Act except on a complaint made by (a) a Board or any officer authorized in this behalf by it; or (b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Board or officer authorized as aforesaid, and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

Protection of action taken in good faith:

Article 59 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.

Indian Legal System > Civil Laws > Environmental Laws > The Water (Prevention and Control of Pollution) Act, 1974 > A Mechanism for Control of Water Pollution

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