The Water (Prevention &

Control of Pollution) Act,1974

Introduction
The Water Act is a complex statute which

has been in effect for over two decades.

Many features of the Act have been
challenged in the courts.
The Act represented the first attempt to
deal
comprehensively
with
an
environmental issues.
Parliament adopted minor amendments to
the Act in 1978 and revised the Act in 1988
to more closely conform to the provisions of
the Environmental Protection Act of 1986.

Water is subject to state list under the

Constitution.
(Entry 17 List II 7th Schedule)
The Water Act, a central law was enacted
under Art.252(1) of the Constitution, which
empowers the Union Govt. to legislate in a
field reserved for the states, where two or
more State Legislatures consent to a
central law. All the states have approved
implementation of the Water Act as enacted
in 1974.

The Water Act establishes a central and state

pollution control board.

The central board may advise the Central Govt.
on water pollution issues, co-ordinate the
activities of state pollution control board,
sponsor investigation & research relating to
water pollution & develop a comprehensive
plan for the control and prevention of the water
pollution.
Since 1982, the central board has been
attached to the Union Governments Dept. of
Environment, Forest 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 quality of the receiving
water was not specified in the Act itself.
Instead the Act enables state boards to
prescribe these standards. {sec. 17(g)}
The Act provides for a permit system or
consent procedure to prevent and control
water pollution.

The Act generally prohibits disposal of

polluting matters in stream, wells, sewer,

or on land in excess of the standards
established by the state board.
The Act empowers the state board upon
thirty days notice to a polluters, 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.

The 1988 amendment introduced a new

section 33 A which empowers state board

to issue direction to any person, officers or
authority, including orders to close,
prohibit or regulate any industry, operation
or process and to stop or regulate the
supply of water and electricity or any other
service.
The state board can also apply to the
courts for injunctions to prevent water
pollution under sec 33 of the Act.

Executive Apparel Processors v Taluka Executive

Magistrate, 1997 (4) KAR.L.J. 181.

Faced with an obstinate industry that refused to
obey its closure order under sec.33A, the state
board directed the deputy commissioner to seize
the
unit
and
secure
compliance.
The
commissioners office moved the respondentMagistrate , who ordered closure. In revision
Karnataka High Court quashed the magistrates
order holding the board had no power to get its
closure executed through the deputy commissioner
but could initiate penalty proceeding under sec.41.

Pravinbhai

J Patel v State of Gujarat

1995(2) GUJ.L.R. 1210,1216.
Gujarat Govt. has not passed a resolution
under Art.252(1) of the Constitution
making the amendment of 1988 applicable
to the state. The result is that neither
section 33A nor some of the important
amendments made in the Parent Act have
been extended to Gujarat. The High Court
urged the state govt. to quickly remove the
lacuna.

Almitra Patel v Union of India 1997(6) SCALE 12

(SP).
Sec 25 of the water Act obliges municipal bodies to
obtain the consent of the state board before
discharging sewage from new outlet. Sec.26
requires municipal bodies to secure consent in
respect of the sewage which were existed at the
time when the Act was brought into force. Despite
of this provisions have been in the statute books,
many local bodies have neglected their obligation,
prompting the Supreme Court to direct Central &
State Board to ensure compliance by the
municipalities.

Delhi Bottling Co. Pvt.Ltd. V Central Board for the

prevention and control of pollution, AIR 1986 DEL

152.
The Central Board took a sample of trade effluent
from a bottling companys discharge stream. The
board analyzed the sample and determined that
the trade effluent did not conform to the
requirements of the consent order granted to the
company. The board sued under sec.33 and the
magistrates court issued a injunction requiring
the company to establish a treatment plant.
The Honble court set aside the magistrates order.

Dayabhai

Solanki v Kashiram Textiles

Mills Pvt.Ltd. 1994(2)GUJ.L.R.1166.
The Gujarat High Court also share the
view that provision of sec 21 relating to
sampling are mandatory and must be
substantially complied with by the
prosecuting
board.
However
where
polluters does not make any request for
part of the sample drawn after due notice,
the magistrate ought to frame charges.

In

a rare departure, the Patna High Court

indulges Shivshankar Chemical Industries Pvt.
Ltd an ethyl alcohol manufacturer located closed
to Rajpura Village near Bhagalpur. In breach of
its consent, Shivshankar failed to establish a
Effluent Treatment Plant (ETP). When the
consent lapsed, the board refused to extend it,
compelling the co. to shut down its distillery. The
distillery challenged the refusal under Art.226
before High Court, where its case was heard
along with a public interest litigation complaining
against the harmful discharges from the factory.

The High Court permitted Shiv Shankar to

restart its production on the condition that

it adopted various interim measures until
the ETP became operational. In effect
High Court Directed the board to extend
its consent on the terms imposed on the
polluters. Further to safeguard the
villagers, the court directed the co. to bear
medical expenses of any person suffering
due to the effluents.

 Narula Dyeing and Printing Works v Union Of India AIR

1995 GUJ 185,191.

A strong pro environment judgment where Justice
Abhichandani of the Gujarat High Court repelled the
challenge to closure orders issued by the state govt.
under sec.5 of Environment Protection Act,1986.
Narula dyeing was releasing untreated effluents in to
the Kharicut canal for over a decade, though its 12 yr
old consent required the firm to set up a treatment
plant within 6 months. Stressing the importance of the
conditions in the consent relating to the nature,
composition, temperature, volume, rate of discharge
etc. of the industrial effluent. The court held that mere
fact that consent order obtained by petitioner can not
insulate them against the requirement of putting ETP
and complying with the standards of tolerance limits
prescribed.

The Water Act regulates water pollution

through a system of Command and

control
Effluent
discharge
standards
are
established and the persons whose
discharges exceed the standards are
subject to fines and imprisonment.

Constitutional Challenges
A tactic of polluters to avoid restraining orders under

sec.33 is a motion to quash the order on the ground

that the water Act violates the fundamental right to
carry on trade or business guaranteed by Art.19(1)
(g) of the Constitution of India.
In Agrawal Textile Industries v State of Rajasthan
Rajasthan High Court balanced the interest protected
by the Water Act against the competing interest
protected by Art.19(1)(g).
A lower court had issued a restraining order against
textile companies that were discharging effluents
after the expiration of consent orders from the state
& central boards.

The

company filed writ petition in

Rajasthan High Court challenging the
validity of restraining order.
Sec.28 provides for an Appeal against an
order made by the State Board under
sec.25 & 26. and further right of revision is
conferred under sec.29 of the Act. This
shows that the Act contain adequate
provisions for grant of consent by the state
board as well as provision of appeal &
revision against the order passed by the
board so as to enable a person to carry on
his trade or business after obtaining the

It is therefore not possible to hold that sec 24(1) imposes

unreasonable restrictions on the right to carry on their

trade or business.
Another major challenge to sec.33 restraining order is
the contention that Ex parte restraining order issued
against polluters violate principles of natural justice.
A pre decisional hearing must be granted to the polluters
before a court issues a sec.33 restraining order.
This rule of fair play may be relaxed however in the case
of an emergency, such as where the effluent discharged
poses a imminent threat/danger to public health.
Megha Shyam Sharma v State of Uttar Pradesh 1985
ALL.L.J.1195.

In Gujarat water Pollution Control Board v Kohinoor

Dyeing and Printing Works 1993(2) GUJ.L.R.

The Gujarat High Court has suggested a number of
measures to ensure the pollution related cases are
disposed off expeditiously.
1.Board officials should take effective steps for
services of summons.
2. prepare cases thoroughly,
3. resist adjournment,
4. seek exemplary cost to deter the accused,
5. vigorously pursue appeals in higher courts.

The High Court also directed the

subordinate court
not to adjourn cases,
to record the plea of the accused without
delay,
To ensure that all the witnesses are
examined at the earliest,
To adopt a pro active role/approach so that
the object of the water Act are attained.

Criminal Liability
The Water Act establishes criminal penalties of fines and

imprisonment for non compliance with sec.33, sec 20

directions concerning information , sec 32 emergency
orders and sec 33 A direction issued by the state board.
The 1988 amendments to the Act increased the penalties
for these offences.
Sec.47 of the Water Act extend liability for violation
committed by companies to certain corporate employees
and officials. The Act also extends liability for violation to
heads of govt. dept. when dept. has committed a
violation, unless the head of the dept. can prove that the
offence was committed without his knowledge or that he
exercised all due diligence to prevent the same.

Medwin Hospitals v State of AP 1999 (2) ANDH.L.T.471.

discuss

the liability of corporate officials and

employees under the Water Act
In Uttar Pradesh Control Board v Modi Distillery, AIR
1988 SC 1128.
The supreme Court reversed an order quashing a
prosecution under sec.44 of the Water Act. (Penalty for
contravention of section 25 or section 26.Whoever
contravenes the provisions of section 25 or section 26
shall be punishable with imprisonment for a term
which shall not be less than 1[one year and six
months] but which may extend to six years and with
fine.)

The Corporate officials sought to quash the

prosecution on the ground that under

sec.47 corporate officials could not be
prosecuted if the company was not also
prosecuted.
In this case the officials had failed to
respond to the boards request for
information concerning the corporation.
The Supreme Court also found that the
technical flaw in the complaint could be
easily removed by having the matter
remitted to the chief judicial magistrate
with a direction to call upon the state board

The Courts attitude is clearly expressed in

the following opinion,

it would be a travesty of justice if the big
business of Messrs Modi Industries Limited
is allowed to defeat the prosecution
launched and avoid facing the trial on a
technical flaw which is not incurable for
their alleged deliberate and willful breach
of the provisions contained in sec. 25 &
26.

U.P. Pollution Control Board v Mohan Meakins Ltd

2000(2) SCALE 532.

The case had languished in the lower courts for 16
years. The Supreme court revived a prosecution against
the company and its directors, that had been
erroneously quashed by the session court.
Those who discharge noxious polluting effluents into
streams may be unconcerned about the enormity of the
injury which it inflict on the public health at large, the
irreparable impairment it causes on the aquatic
organisms, the deleteriousness it imposes on the life
and health of animals. So the Court should not deal with
prosecution for offences under the Act in casual or
routine manner.

K.K.Nandi v Amitabh Bannerjee 1983 CRI.L.J.1479.

The Calcutta High Court rejected a motion to quash a

prosecution against the manager of a beer Company.

The Court ruled that a person designated as manager of
a company is prima facie liable under sec.47 of the Act.
J.S.Huja v State 1990 ALL.L.J. 41.
The Allahbad High Court considered an application to
quash a complaint filed by the U. P. Pollution Control
Board. Since the company was discharging the effluents
without obtaining the consent, the board prosecuted the
secretary and director of the company alleging that they
were responsible for the conduct of day to day business
of the co. and were guilty of the omission.

The applicant pleaded that since they had

retired and in any event not responsible to

the company for the conduct of the
business. The High Court rejected the
application holding that disputed question
of fact can not be looked under sec 482.
(Saving of inherent powers of High Court.
Nothing in this Code shall be deemed to
limit or affect the inherent powers of the
High Court to make such orders as may be
necessary to give effect to any order under
this Code, or to prevent abuse of the
process of any Court or otherwise to secure

Haryana State Board v Jai Bharat Woolen

Finishing Works, 1993 FOR.L.T. 101.

One of the few reported decision in a case
where the board successfully prosecuted
the polluters.
Most State pollution Control Boards have
enjoyed little success in bringing to books
violators under pollution control laws. But
systemic changes might improve the
success rate.