DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY,

VISAKHAPATNAM, A.P. (INDIA)

WATER POLLUTION & ENVIRONMENTAL-RELATED LAWS

ENVIRONMENTAL LAWS

MR. ABHISHEK KUMAR

SANJAY SINGH RATHORE

ROLL NO. 201295 & 7TH SEM.

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INTRODUCTION
The Indian constitution recognizes the basic fundamental right of its citizens; the right to a
clean and healthy environment. Article 21 of the constitution insists that no person shall be
deprived of his/her life or personal liberty except according to the procedure laid down by law.
By this article, the Supreme Court of India in the case of Subhash V State of Bihar held that the
Right to Environment is a fundamental right of every citizen in India as included in the right to
live. The ruling states that the State has the responsibility to protect the environment as laid
down under the Article 51-A (g) of the Constitution of India. In other words, the Supreme Court
underscores the fact that environmental rights indeed are human rights and they constitute
everything from civil, political, economic, and social rights of people and communities in
general. This link is inseparable.
Water is cradle of life. It is a basic human need and a finite life support system. To protect this
precious resource, one needs a stringent enforcement system meant for its conservation,
sanitation and supply. Environmental laws are meant to set standards for what people and
institutions must do to control or prevent environmental pollution including water. After
enactment it becomes the job of the central and state governments to make sure that those who
are subject to these environmental protection laws know what they must do to comply. In this
case, we have designated central and state institutions called the Central and State Pollution
Control Boards respectively. Their primary role is the enforcement of the Environmental
Protection Act (EPA) and its constituent statutory frameworks dating back to the Post
Stockholm environmental laws such as the Water (Prevention and Control of Pollution) Act of
1974 .
This research work endeavors to explore into the evolution and development of the legal
aspects of water pollution and its environment-related laws. The second objective is to highlight
the structural arrangements and functioning of the pollution control boards and the persistent
challenges that they face in enforcing the laws of the land aimed at environmental protection.
Certain provision of The Water Cess Act 1977 have also been discussed as this act paves the
way for the funding of the works of the pollution boards under The Water (Prevention and
Control of Pollution) Act of 1974.
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FRAMEWORK OF THE WATER ACT

The Water (Prevention and Control of Pollution) Act of 1974 is a complex statute which has
been in effect for over two decades. Many features of the Act have challenged in the courts. In
this section we discuss the framework of the Water act and analyze major issues including the
scope of judicial relief authorized by the constitutional challenges to the Act, liability of
corporate officers, and funding of the administration of the Act.
The Water Act of 1974 represented one of India's first attempts to deal comprehensively with an
environmental issue. Parliament adopted minor amendments to the Act in 1978 and revised the
Act in 1988 to more closely conform to the provisions of the Environment (Protection) Act of
1986.
Water is a subject in the State List under the Constitution. 1 Consequently Water Act, a central
law, was enacted under Article 252(1) of the Constitution, which empowers the Union
Government to legislate in a field reserved for the states, when two or more State Legislatures
consent to a central law. All the states have approved implementation of the Water Act as
enacted in 1974.2
The Water Act establishes a Central and state pollution control boards. The Central board
may advise the Central Government on water pollution issues, coordinate the activities of state
pollution control boards, sponsor investigations and research relating to water pollution, and
develop a comprehensive plan for the control and prevention of water pollution. 3 The Central
board also performs the functions of a state board for the union territories. In conflicts between
a state board and the Central board, the Central board prevails. Since 1982, the Central board
has been attached to the Union Government's Department of Environment, Forests, and
Wildlife.
The Water Act is comprehensive in its coverage, applying to streams, inland waters,
subterranean waters, and sea or tidal waters. Standards for the discharge of effluent or the

1
2
3

Entry 17, List II, Seventh Schedule.

However, the 1988 amendment has yet to be adopted by all the states.
Section 16 of the Water Act 1974.

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quality of the receiving waters are not specified in the Act itself. Instead, the Act enables state
boards to prescribe these standards.4
The Act provides for a permit system or 'consent' procedure to prevent and control water
pollution. The Act generally prohibits disposal of polluting matter in streams, wells and sewers
or on land in excess of the standards established by the state boards. 5 A person must obtain
consent from the state board before taking steps to establish any industry, operation or process,
any treatment and disposal system or any extension or addition to such a system which might
result in the discharge of sewage or trade effluent into a stream, well or sewer or onto land. 6The
state board may condition its consent by orders that specify the location, construction and use of
the outlet as well as the nature and composition of new discharges. The state board must
maintain and make public a register containing the particulars of the consent orders. The Act
empowers a state board, upon thirty days notice to a polluter, to execute any work required
under a consent order which has not been executed. The board may recover the expenses for
such work from the polluters.
Other functions of the state boards specified by the Water Act include: (1) planning a
comprehensive program for prevention, control, and abatement of water pollution in the state;
(2) encouraging, conducting, and participating in investigations and research of water pollution
problems; (3) inspecting facilities for sewage and trade effluent treatment; and (4) developing
economical and reliable methods of treatment of sewage and trade effluents. 7 The Act gives the
state boards the power of entry and inspection to carry out their functions. 8 Moreover, a state
board may take certain emergency measures if it determines that an accident or other
unforeseen event has polluted a stream or well. These measures include removing the
pollutants, mitigating the damage, and issuing orders to the polluter prohibiting effluent
discharges.
The 1988 amendment introduced a new section 33A which empowers state boards to issue
directions to any person, officer or authority, including orders to close, prohibit or regulate any
industry, operation or process and to stop or regulate the supply of water, electricity or any
4

Section 17(g). The Environment (Protection) Act of 1986 gives the Central Government
similar authority to establish water quality and effluent standards throughout India.
5
Section 24.
6
Section 25. Section 26 requires that persons releasing water pollutants prior to the
adoption of the Water Act must also meet the consent requirements of section 25.
7
Section 17.
8
Section 23.

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other service. Prior to the adoption of section 33A, a state board could issue direct orders to
polluters under section 32 of the Act. A state board, however, could only exercise this power if
the pollution arose from any accident or other unforeseen act or event. Moreover, a state board's
authority to issue orders under section 32 was limited to orders directed to the polluter, not to
government officials or other parties. The state boards can also apply to courts for injunctions to
prevent water pollution under section 33 of the Act. Under section 41, the penalty for failure to
comply with a court order under section 33 or a direction from the board under section 33A is
punishable by fines and imprisonment.
The amendments also increased the power of the Central board relative to the state boards.
Under section 18 of the Act, the Central Government may determine that a state board has
failed to comply with Central board directions and that because of this failure an emergency has
arisen. The Central Government may then direct the Central board to perform the functions of
the state board.
The 1988 amendments modified section 49 to allow citizens to bring actions under the
Water Act. Now a state board must make relevant reports available to complaining citizens,
unless the board determines that the disclosures would harm 'public interest'. Previously, the Act
allowed courts to recognize only those actions brought by a board, or with a previous written
sanction of a board.

SCOPE OF JUDICIAL RELIEF UNDER THE WATER ACT

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Judicial opinion concerning the scope of section 33 of the Water Act is divided. In the following
excerpt from the Pondicherry Papers Ltd. Case, the doctrines invoked by the Madras High
Court in its ruling that courts have broad powers to fashion orders under section 33.
PONDICHERRY PAPERS LTD. v CENTRAL BOARD FOR PREVENTION AND
CONTROL OF WATER POLLUTION 9
[The Central board, acting as a state board for Pondicherry, applied to a magistrate's court under
Section 33 of the Water Act seeking an injunction restraining a paper company from
discharging effluent until the company constructed a water treatment plant as required by the
conditions of the board's consent orders. The magistrate issued an injunction. The company
filed a motion to quash the injunction on the grounds that a magistrate does not have the
authority under Section 33 to order compliance with a consent order.]
Relevant part of the order
The next question is what the powers of the Magistrate are when such an application is made.
Sub-section (3) deals with these powers. The Court may make an order restraining the
petitioner from polluting the water in any stream or well and in doing so, it may in that order
direct the petitioner to desist from taking such action as is likely to cause pollution, or, as the
case may be, remove from such stream or well such matter, or it can authorize the Board [to do
so] under sub-section 3(ii). As has been held in Sub Divisional Officer, Faizabad v Shambhoo
Narian Singh (AIR 1970 SC 140) it is well recognized that where an Act confers a jurisdiction it
impliedly also grants the power of doing all such acts or employing such means as are
essentially necessary to its execution, but before implying the existence of such a power, the
Court must be satisfied that the existence of that power is absolutely essential for the discharge
of the power conferred and not merely that it is convenient to have such a power.
In Dr. Indiremani Dyarelai Gupta v Nathu 10it has been held [that] to judge whether legally a
power could be vested in a statutory body, the proper rule of interpretation is that unless the
nature of the power was such as to be inconsistent with the purpose for which the body was
created, or unless the particular power was contra indicated by any specific provision of the
Act, any power which furthers the provision of the Act, could be legally conferred.
9

Madras High Court Cri.M.P.No. 4662 and 4663 of 1978 March 21, 1980
(1963(1) SCR 721)

10

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The Water (Prevention and Control of Pollution) Act is a social welfare legislation, enacted
for the purpose of prevention of pollution of water and for maintaining or restoring
wholesomeness of water. Therefore, the Act has to be strictly enforced and
every effort should be made to carry out the true intent of the legislation. On these principles,
the Magistrate has to act when an application is filed under Section 33 and it would be for him
to determine according to the circumstances of the case what order he should pass in order to
give effect to the provisions of the Act and to remove the pollution or prevent it.
The Madras High Court clearly found that based on the doctrines of implied powers and
strict enforcement of public welfare legislation, courts have broad powers to fashion injunctive
relief under section 33 of the Water Act. The Allahabad High urt implicitly adopts this view.11
When we compare this approach with that of the Delhi high Court in the following excerpt. The
Central board has issued consent orders to a bottling company on the condition that the
company build a water treatment plant. The company failed to build the plant and was polluting
a nearby river with its effluent. The board obtained an injunction under section 33 restraining
the company from polluting and ordering the company to build the treatment plant. The
company Challenged the injunction in the Delhi High Court.
DELHI BOTTLING CO. PVT. LTD. v CENTRAL BOARD FOR THE PREVENTION AND
CONTROL OF WATER POLLUTION 12
ORDER:
The learned Magistrate also took note of the fact that the petitioners had not erected any
treatment plant as per Cl.5 of the consent order. [Petitioner's counsel] submitted that there was
no absolute obligation on the part of the petitioners to erect a separate treatment plant so long as
they were not discharging the effluents contrary to the parameters as provided in the consent
order. Be that as it may, the true interpretation of the impugned order is that restraint order has
been passed against the petitioners restraining them from discharging their effluents in the
stream which do not conform to the quality as per the standards prescribed by the Board in its
consent order and thereby causing pollution of the stream. We cannot read between the orders
11

Sir Shadi Lal Enterprises Ltd. V. Chief Judicial Magistrate, Saharanpur 1990 CRI LJ. 522.

12

AIR 1986 DEL 152

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that a direction has been given to erect a treatment plant. Such a direction is also perhaps not
envisaged by the provisions of S.33 (1) of the Act. [Section] 33(1) only provides for the passing
of a restraint order by the court against the Company for ensuring stoppage of apprehended
pollution of water in the stream in which trade effluents of the Company are discharged. I,
therefore, need not go into the question as to whether the petitioners' non-erection of a
treatment plant was such an act on which the impugned order was justified. The restraint order
is also not based on that footing. For the non-erection of the treatment plant the Board has the
power to launch prosecution against the defaulting Company under the provisions of S.41 of the
Act.
***
CONSTITUTIONAL CHALLENGES TO SECTION 33 RESTRAINING ORDERS
A tactic of the polluters to avoid the restraining orders under section 33 is a motion to quash the
order on the grounds that the Water Act violates the fundamental right to carry on a trade or
business guaranteed by Article 19(1)(g) of the Constitution of India.
The Rajasthan High Court balanced the interests protected by the Water Act against the
competing interests protected by Article 19(1)(g) in the following case. A lower court had
issued a restraining order against textile companies that were discharging effluents after the
expiration of consent orders from the state and Central boards. The companies filed writ
petitions in the Rajasthan High Court challenging the validity of the restraining order.
AGGRAWAL TEXTILE INDUSTRIES v STATE OF RAJASTHAN 13
ORDER:
[Petitioners' counsel] has vehemently argued that the problem of prevention of water pollution
is a problem of vast magnitude and it wouldnt be beyond the means of an individual to prevent
or control the pollution resulting from an industry set up by him and that the prohibition
contained in Section 24 of the Act would result in complete closure of the business of the
petitioners and that it would thus result in imposing unreasonable restrictions to carry on their
trade and business. I am unable to accept the aforesaid contention.... It is true that the
prevention and control of pollution of water may involve expenditure beyond the means of a
particular individual carrying on any particular industry and it may require co-operation
amongst various units and ... the local authorities to effectively prevent and control such
13

Rajasthan High Court S.B.C. Writ Petition No. 1375/80 March 2,1981

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pollution. The Act also envisages that one of the functions of the State Board is to plan a
comprehensive program for the prevention, control or abatement of pollution of streams and
wells in the State and to secure the execution thereof and to evolve economical and reliable
methods of treatment of sewage and trade effluent, having regard to the peculiar conditions of
soils, climate and water resources of different regions. But, this does not mean that an
individual, while exercising his right to carry on his trade or business, is free to pollute the
source of supply of water to other citizens, and thereby cause harm to the interest of the general
public. It cannot be disputed that pollution of water is a very serious hazard for the health of the
general public, and the provisions of the Act which seek to provide for the prevention and
control of water pollution and maintaining or restoring the wholesomeness of water are enacted
in the interest of the general public.
The question which next arises for consideration is, whether the aforesaid restriction that has
been placed by Section 24 of the Act is an unreasonable restriction. ... [S]ub- section (2) of
Section 24 enables a person to cause or permit a trade effluent to enter into a stream provided
the consent of the State Government is obtained. Sections 25 and 26 of the Act make provisions
for the grant of consent by the State Board for discharging any sewage or trade effluent into a
stream or well. Section 28 provides for an appeal against an order made by the State Board
under Sections 25 and 26, and a further right of revision is conferred under Section 29 of the
Act. This shows that the Act contains adequate provisions for grant of consent by the State
Board as well as provisions for appeal and revision against the orders passed by the State Board
so as to enable a person to carry on his trade or business after obtaining the consent of the State
Board. It is, therefore, not possible to hold that Section 24(1) imposes unreasonable restrictions
on the right of the petitioners to carry on their trade or business.

CRIMINAL LIABILITY UNDER THE WATER ACT

The water act establishes criminal penalties of fines and imprisonment for noncompliance with
section 33 orders, section 20 directions concerning information, section 32 emergency orders
and section 33A directions issued by a state board.14Polluters violating the act are also subject to

14

Section 41

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criminal penalties.15 The 1998 amendments to the water act increased the penalties for these
offences, bringing them into line with the 1987 amendments to the Air act.
Section 47 of the water act extends liability for violations committed by companies to certain
corporate employees and officials. The act also extends liability for violation to the heads of
government departments.16
The following commentary17 discusses the liability of corporate officials and employees under
the water act- Section 47 of the water pollution act contains the usual provision to the effect
that where an offence under the act has been committed by a company, every person, who at the
time of the commission of the offence, 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.
Under the proviso to the section, such company official is exempt from punishment, if he
proves that the offence had been committed without his knowledge, or that he had exercised all
due diligence to prevent the commission of such offence . Company officials may well like to
bear in mind that statutory provisions making company officials liable are contained in almost
every Central Act that is enacted in recent times. In a way, such provisions impose a fictional
liability on the company officer.
The provision usually runs in two sub-sections. The first sub-section provides - as does
section 47 of the Water Pollution Act that every person who is in charge of and responsible to
the company for the conduct of the affairs of the company 'is liable' for the offence (in addition
to the company), unless he can prove that the offence had been committed without his
knowledge or that he had exercised all due diligence to prevent its commission. The second
sub-section usually provides that where an offence (under the relevant Act) has been committed
by a company, and it proved that the offence is due to the connivance of or attributable to any
neglect on part of any director, manager, secretary or other officer of the company, then such
director, manager, secretary or other officer shall also be deemed to be guilty of the offence and
shall be liable to be proceeded against and punished accordingly. This sub section, it may be
noted, is not confined to a person 'in charge' of the company responsible for its affairs. It applies
to every officer of the company, however small may be. But his connivance or neglect has to be
15
16
17

Section 43 & 44
Section 48
Bakshi; Corporate Executives and the Pollution Law, (1986) 2 Comp. L.J. 61

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proved. In this sense, its scope is narrow. But in another respect, the scope is wide, inasmuch as
it does not require actual participation or mental support of the officer. In the context of
pollution law and offences under such laws, such a provision in the Act would mean that if a
companys production manager or technical director has been remiss in ensuring that the
pollution regulations have been strictly complied with, then he would become punishable for
the relevant offence under the Act. He may be miles away from the scene of the offence and
may not have sanctioned its commission. He might even have been unaware of it. And yet, he
would become criminally liable. Willfully permitting the offence is not necessary in the Water
Pollution Act; though such was the shape of the provision in some earlier Central Acts imposing
criminal liability on corporate officials.

THE WATER CESS ACT

Parliament adopted the Water Cess (Prevention and Control of Pollution) Act of 1977 to
provide funds for the Central and state pollution control boards. The Act empowers the Central
Government to impose a cess on water consumed by industries listed in Schedule I of the Act.
Specified industries and local authorities are subject to the cess if they use water for purposes
listed in Schedule II of the Act, which includes: (l) industrial cooling, spraying in mine pits, or
'boiler feed'; (2) domestic purposes; (3) processing which results in water pollution by
biodegradable water pollutants; or (4) processing which results in water pollution by water
pollutants which are not easily biodegradable or are toxic. A rebate of twenty-five per cent of
the cess is given to complying industries and authorities.
Many companies challenged imposition of the cess, claiming that they were not within the
specified industries.
ANDHRA PRADESH STATE BOARD FOR PREVENTION AND CONTROL OF WATER
POLLUTION v ANDHRA PRADESH RAYONS LTD.18
SABYASACHI MUKHARJI, J.: * * *

18

AIR 1989 SC 611

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[T]he question which is sought to be raised in this petition is whether the respondent Andhra
Pradesh Rayons Ltd. which is manufacturing Rayon Grade Pulp, a base material for
manufacturing of synthetics or man-made fabrics is an industry as mentioned in Schedule I of
the Water (Prevention and Control of Pollution) Cess Act, 1977 for the purposes of levy on
Water Cess under the Act.
***
Specified industry is one which is mentioned in Schedule I which is as follows:
7. Chemical industry.
17. Textile industry.
18. Paper industry.
15. Processing of animal or vegetable products.... '
***
Before us it was sought to be canvassed that Rayon Grade Pulp is covered either by Item
NO.7 which is chemical industry or Item No. 10 which is textile industry or Item No. 11 which
is paper industry. We are unable to accept the contention.
It has to be borne that this Act with which we are concerned is an Act imposing liability for
cess. The Act is fiscal in nature. The Act must, therefore, be strict: construed in order to find out
whether a liability is fastened on a particular industry The subject is not to be taxed without
clear words for that purpose; and also that every Act of Parliament be read according to its
natural construction of words. The purpose of the Act is to realize money from those whose
activities lead pollution and who must bear the expenses of the maintenance and running of the
State Board. It is a fiscal provision and must, therefore, not only be literally construed but be
strictly construed.... [W]e find nothing to warrant the conclusion that Rayon Grade Pulp is
included in either of the industries as canvassed on behalf of the petitioner here .
KERALA STATE BOARD FOR PREVENTION AND CONTROL OF WATER POLLUTION
v GWALIOR RAYON SILK MANUFACTURING (WEAVING) COMPANY LTD.19
ORDER:

19

AIR 1986 KER 256

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The Cess Act is not to be read in vacuum or in a manner dissociated with the Water Pollution
Act. The learned single Judge [in the lower court] felt that the Cess Act could be viewed in
isolation . That is evident from the following observation contained in the judgment:
The purpose of the Pollution Act is to control water pollution; but the purpose of the Cess Act is
to levy and collect a cess, i.e., a tax for a special administrative purpose. You cannot make rules
under the Cess Act to achieve the purposes of another Act. [Emphasis supplied by the court.]
***
In Saraswati Sugar Mills v Haryana State Board 20 the Supreme Court strictly construed the
entry covering processing of animal or vegetable products industry to exclude the manufacture
of sugar from sugar cane.

CONCLUSION
After the Stockholm Conference in June 1972, it was considered appropriate to have a uniform
law across the country to deal with broader environment problems endangering the health and
safety of people as well as of the countrys flora and fauna. The Water(Prevention and Control
of Pollution) Act, 1974(the Water Act) was the first enactment by the Parliament in this
direction. This was also the first specific and comprehensive legislation institutionalizing
simultaneously the regulatory agencies for controlling water pollution. The Pollution Control
Boards at the Centre and the States came into being in terms of this Act. The Water Act was
enacted with the aim of preventing and controlling water pollution in India. Pollution has been
20

AIR 1992 SC 224. In view of this judgment, Kisan Sahakari Mills v State of Uttar Pradesh
AIR 1987 ALL 298 and Travancore Sugars & Chemicals Ltd. v Pollution Control Board 1990
(2) KER.L.T. 924 are no longer good law. The strict construction test was reiterated by the
Supreme Court in a 1995 decision reported at Bihar State Pollution Control Board v Tata
Engineering & Locomotive Co. Ltd. 1998 (8) SCC720.

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defined under the Water Act as, the contamination of water or such alteration of the physical,
chemical or biological properties of water or such discharge of any sewage or trade effluent or
of any other liquid, gas and solid substance into water (whether directly or indirectly) as may be
the case or is likely to create nuisance or render such water harmful or injurious to public health
or safety or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the
life and health of animals or plant or of aquatic organizations.
Prevention Measures
The Water Act provides for a permit system similar to the one available under the Air Act to
prevent and control water pollution. The Water Act prohibits disposal of polluting materials in
streams (which includes subterranean waters), rivers, wells, sewers, 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, in excess of the standards established by the Central
Pollution Control Board. Under the provisions of the Water Act a person must obtain consent
from the State Pollution Control Board before taking any steps to establish any industry,
operation or process, any treatment and disposal or any extension or addition to such a system
which might result in the discharge of sewerage or trade effluents into a stream, well or sewer
or onto land. The application to the State Pollution Control Board must be made under Rule 32
of the Water (Prevention and Control of Pollution) Rules, 1975in Form XIII. The application
requires specification of the type as well as quantity of the effluent. The applicant is also
required to attach a list of raw materials and chemicals used per month. In the event there is a
change in the raw materials used as well as the nature or quantity of the effluent, a fresh consent
would be required. Under the Water Act, the State Pollution Control Board has the power to
issue directions to any person, officer or authority, including orders to close, prohibit or regulate
any industry, operation or process and to stop or regulate the supply of water, electricity and
any other service. The Powers and functions of the Central Pollution Control Board and the
State Pollution Control Boards under the Water Act are similar to those under the Air Act,
except in that they have greater powers in respect of certain matters specifically enumerated
under the Air Act which have not been mentioned under the Water Act.
Penalties
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Sections 43 and 44 of the Water Act provide that whoever causes discharge of any poisonous,
noxious, or polluting matter into any stream or well or sewer or on land or establishes any
industry without the previous permission of the State Pollution Control Board may be punished
with a fine and imprisonment for a minimum term of one year and six months and a maximum
term of six years. It must be noted that the Water Act provides for certain exceptional
circumstances under which a person may discharge polluting material in a water body, such as:
1. Constructing, improving and 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;
2. 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;
3. Putting into a stream, any sand or gravel or other natural deposit which has flowed from or
been deposited by the current of such stream;
4. Causing or permitting, with the consent of the State Board, the deposit accumulated in a well,
pond or reservoir to enter into any stream.
In case of offences committed by corporations, the Water Act specifies that in the event any
offence is committed by a company, every person who was directly in the charge of and
responsible for the conduct of the business of the company (at the time the offence was
committed) together with the company shall be liable to be proceeded against and

punished

accordingly. However, it also provides that no person shall be held guilty in the event it is
proved that the offence was committed without the knowledge of such person or despite
exercising all due diligence to prevent the commission of such offence. The scope of Section47
of the Water Act was discussed at length by the Patna High Court in Mahmud Ali v. State of
Bihar And Another.21 Looking at the scheme of Section 47, the Court said that Section 47(1)
creates a deeming legal fiction whereby every person who is in charge of or responsible to the
company for the conduct of its business becomes automatically guilty of the offence committed
by such a company and is liable to be proceeded against and punished accordingly. No other
overt act or direct commission of the offence by such a person is necessary barring the factum
of being in charge of the company or responsible thereto for the conduct of its business.
21

AIR 1986 Pat 133

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Once the allegation is levelled or established, then by a fiction of the law every person in charge
of and responsible to the company for the conduct of its business is, in the eye of law, deemed
to be as guilty of the offence as the primal offending company. However, this strict rule is
tempered and softened by the Proviso to Section 47(1).This lays down that such a person may
wriggle out of the liability if he proves that the offence was committed without his knowledge
or that he exercised all due diligence to prevent the commission of the offence. The burden of
proof is clearly laid upon such a person and it is thus plain that the proviso is a rule of evidence
that reverses the ordinary mandate of criminal liability that the burden of establishing the
offence lies on the prosecution.
The Water Cess (Prevention and Control of Pollution) Act of 1977 was adopted by the
parliament to provide funds for the Central and state pollution control boards. The Act
empowers the Central Government to impose a cess on water consumed by industries.

BIBLIOGRAPHY
Books:
1. Shyam Diwan and Armin Rosencranz, Environmental Law and Policy in India, Cases,
Materials and Statutes, 2nd ed., 2008, Oxford.
2. P. Leelakrishnan, Environmental Law in India, 3rd, 2008, Lexis Nexis.
3. Dr. Sukanta K. Nanda, Environmental Law, Reprint 2007, Central Law Publishing.
4. S. C. Shastri, Environmetntal Law, 3rd ed., 2008, Eastern Book Company.

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Dictionaries:
1. Blacks Law Dictionary
2. Concise Law Dictationary, Lexis Nexis

Statutes:
1. Environment (Protection) Act of 1986
2. The Water (Prevention and Control of Pollution) Act of 1974

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