The Water Act, 1974 – Notes

the-water-act-notes

Water is an essential element of human living. It is very useful only when it is unpolluted. It is in short supply since 97% of world’s water constitutes seawater, which is unfit for consumption. Polluted or contaminated water is injurious to health. In order to prevent and control the pollution of water, the Indian Parliament passed the Water Act, 1974. The main purpose of the Water Act, as enshrined in its preamble is:

  • To prevent and control the pollution of water;
  • To maintain and restore the wholesomeness of water;
  • The establishment of Boards for prevention and control of water pollution; and
  • To confer on such Boards, powers to prevent and control water pollution and to maintain or restore the wholesomeness of water.



As the above objects pertain to State List, the Parliament has no power to legislate in this regard except under Arts. 249, 250 and 252. However, the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal passed a resolution under Art. 252(1), requesting the Parliament to enact a law for prevention and control of water pollution. Consequently, the Parliament passed the Water Act in 1974.

Salient Features of the Water Act:

The Water Act comprises of 64 sections divided into 8 Chapters. Chapter-I deals with Preliminary aspects. Chapter-II deals with Central and State Boards for Prevention and Control of Water pollution. Chapter-Ill deals with Joint Boards. Chapter-IV contains powers and Functions of Boards. Chapter-V deals with Prevention and Control of Water Pollution. Chapter-VI contains the provisions relating to Funds, Accounts and Audit. Chapter-VII lays down Penalties and Procedure. Chapter-VIII contains the Miscellaneous Provisions.

Section-I speaks about the short title, application and commencement of the Water Act. Section 2 defines: (a) Board, (b) Central Board, (c) Member, (d) Occupier, (e) Pollution, (g) Sewage effluent, (h) State Board, (i) State Govt., (k) Trade effluent etc.

(d) Occupier: in relation to any factory or premises means the person who has control over the affairs of the factory or the premises and includes, in relation to any substance; the person in possession of the substance.

(e) Pollution: means such 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, gaseous or solid substance into water whether directly or indirectly as may, or is likely to create a 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 plants or of aquatic organisms.

g) Sewage effluent: means effluent from any sewerage system or sewing disposal works and includes sullage from open drains.

Boards for Prevention and Control of Water Pollution:

Chapter-II of the Water Act containing Sections 3 to 12 deals with the constitution of the Central and State Water Pollution Boards, Service Conditions of the members, the constitution of various committees etc.



Central Pollution Control Board: Constitution and functions

Constitution or the Central Pollution Board:

Section 3 of the Water Act, provides for the constitution of Central Board. The Central Govt. within 6 months from the commencement of the Water Act, by notification in Official Gazette, may appoint, constitute a Board called as the Central Pollution Control Board in the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura, West Bengal and in the Union Territories. It exercises such powers and functions as provided for under the Water Act (Sec. 3(1)).

According to Sec. 3(2), the Central Board shall consist of:

  1. A full-time Chairperson, an expert in environmental matters, nominated by the Central Government;
  2. Such number of officials not exceeding five to be nominated by the Central Govt. to represent the Central Govt.;
  3. Not more than five members, nominated by the Central Govt. from amongst the members of the State Boards, of whom not exceeding two from amongst the members representing local authorities;
  4. Not exceeding three members, nominated by the Central Govt. to represent the interests of agriculture, fishery or industry or trade or any Other interest;
  5. Two persons to represent companies or corporations, owned, controlled or managed by the Central Govt. (to be nominated by the Central Govt.);
  6. A full-time member-secretary, possessing qualifications, knowledge and experience of scientific engineering or management aspects as pollution control to be appointed by the Central Govt.

            The Central Board shall be a body corporate by the same name, having perpetual succession and a common seal with power subject to the provisions of the Water Act.

Powers and Functions of Central Board:

The main function of the Central Board shall be to promote cleanliness of streams and wells in the State. According to Sec.16 (1), the Central Board may perform all or any one of the following functions:-

  • To advise the Central Govt. on any matter, concerning prevention and control of water pollution;
  • Coordinate the activities of the State Boards and resolve disputes among them;
  • Provide technical assistance and guidance to the State Boards, carry out and sponsor investigations and research for prevention and control of water pollution;
  • Plan and organise the training of persons engaged in programmes for the prevention, control or abatement of water pollution;
  • Organise through mass media a comprehensive programme for prevention and control of water pollution;
  • Perform such of the functions of any State Board as may be specified in an order made under Sec. 18(2);
  • To collect statistical data relating to water pollution and to take necessary steps for its effective prevention;
  • Lay down, modify or annul in consultation with the State concerned the standards for a stream or well;
  • Plan and cause to be executed, a nationwide programme for the prevention, control or abatement of water pollution;
  • Perform such other functions as may be prescribed (Sec. 16(2)).

In addition to the above, the Board may also establish or recognise laboratories for analysis of samples of water from any stream or well (Sec. 16(3)).



STATE POLLUTION CONTROL BOARD’s

(Constitution, Powers and Functions)

Constitution or State Pollution Control Boards:

Section 4 of the Water Act, 1974 provides for the constitution of State Pollution Control Boards. The State Govt. shall (with effect from such date as it may deem fit) by notification in the Official Gazette appoint, constitute a State Pollution Control Board, to exercise the powers conferred on and perform the functions assigned to that Board under the Water Act (Sec. 4(1)).

According to Sec. 4(2) Of the Water Act, a State Board shall consist of the following members, namely:-

  1. A Chairperson, nominated by the State Govt. having special knowledge and practical experience in environmental matters. He may be either whole-time or part member of the State Board;
  2. Not more than five members to be nominated by the State Govt. to represent the State Govt.;
  3. Not more than five members to be nominated by the State Govt. from amongst the members of the local authorities functioning within the State;
  4. Non-official members, not exceeding three to be nominated by the State Govt. to represent the interests of agriculture, fishery or industry or trade or any other interest, which in the opinion of the State Govt. ought to be represented;
  5. Two persons, nominated by the State Govt. to represent the companies or corporations owned, managed or controlled by the State Govt.;
  6. A full-time member-secretary, possessing qualifications, knowledge and experience of scientific engineering or management aspects of pollution control, to be appointed by the State Govt.

However, no State Board shall be constituted for any Union Territory in respect of which the Central Board shall exercise the powers and perform the functions of a State Board.

Term of Office:

Except for Member/Secretary, the members hold office for a term of three years from the date of nomination and is eligible for renomination.

Meetings:

According to sec. 8, the Board shall meet at least once in three months.

Appointment of Committees:

Section 9 empowers the Board to constitute/appoint as many committees as it may think fit.

Functions of the State Board:




The provisions relating to functions of a State Board are laid down in Sec.17 of the Water Act, which is as follows:

  1. To plan a comprehensive programme for the prevention, control or abatement of pollution of streams and wells in the State and to secure the execution thereof;
  2. To advise the State Govt. on any matter concerning the prevention, control or abatement of water pollution;
  3. To collect and disseminate information relating to water pollution and the prevention, control or abatement thereof;
  4. To encourage, conduct and participate in investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution;
  5. To collaborate with the Central Board in organising the training of persons engaged or to be engaged in programmes relating to prevention, control or abatement of water pollution and to organise mass education programmes relating thereto;
  6. To inspect sewage or trade effluents works and plants for the treatment of sewage and trade effluents and to review plans specification or other data relating to plants set up for the treatment of water, works for the purification thereof and the system for the disposal of sewage or trade effluents or in connection with the grant of any consent as required by the Water Act.
  7. To lay down, modify or annul effluent, standards for the sewage and trade effluents for the quality of receiving waters (not being water in an interstate stream) resulting from the discharge of effluents and to classify waters of the State;
  8. To evolve economical and reliable methods of treatment of sewage and trade effluents, having regard to the peculiar conditions of soils, climate and water resource of different reasons and more especially the prevailing flow characteristics of water in streams and wells which render it impossible to attain even the minimum degree of dilution;
  9. To evolve methods of utilisation of sewage and suitable trade effluents in agriculture;
  10. To evolve efficient methods of disposal of sewage and trade effluents on land, as are necessary on account of the predominant conditions of scant stream flows that do not provide for the major part of the year the minimum degree of dilution;
  11. To lay down standards of treatment of sewage and trade effluents to be discharged into any particular stream taking into account the minimum fair-weather dilution available in that stream and the tolerance limits of pollution permissible in the water of the stream, after the discharge of such effluents;
  12. To make, vary or revoke any order:
    • For the prevention, control or abatement of discharges of waste into streams or wells;
    • Requiring any person concerned to construct new systems, for the disposal of sewage and trade effluents or to modify, alter or extend any such existing system or to adopt such remedial measures as are necessary to prevent, control or abate water pollution;
  1. To lay down effluents standards to have complied with persons while causing the discharge of sewage or sullage or both and to lay down, modify or annul effluent standards for the sewage and trade effluents;
  2. To advise the State Government with respect to the location of any industry the carrying on of which is likely to pollute a stream or well;
  3. To perform such other functions as may be prescribed or as may, from time to time, be entrusted to it by the Central Board or the State Government (Section 17(1)).

The State Board may, like Central Board, establish, or recognise a laboratory or laboratories to enable the Board, to perform its functions under this section efficiently; including the analysis of samples of water from any stream, or well or of samples of any sewage or trade effluents (Section 17(2)).

Joint Boards: Constitution and powers

Constitution of Joint Boards:

Section 13 of the Water Act, 1974 provides for the constitution of Joint Boards. According to Section 13(1), two or more Govts. of contiguous States by an agreement can constitute a Joint Board for the States concerned. Similarly, a Joint Board may be constituted by the Central Govt. (in respect of one or more Union Territories) and one or more Govts. of States contiguous to such Union Territory or Union Territories. In such a case, the participating Union Territory or Union Territories and the State or States shall have to enter into an agreement. This Joint Board shall function in the States of which are participating and Union Territories as the case may be. The agreement shall have to be published in the Official Gazette of the participating States or/and Union Territory or Union Territories.

Constitution of Joint Boards:

Section 14 provides for the composition of the Joint Boards. A Joint Board constituted according to an agreement entered by the participating States and/or Union Territories. It shall consist of the following members:

  1. A full-time chairman, being a person having special knowledge or practical experience in respect of matters relating to environmental protection or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the Central Government;
  2. Two officials from each of the participating states to be nominated by the concerned participating State Governments to represent the Government;
  3. One person to be nominated by each of the participating State Govt. from amongst the members of the Local Authorities functioning within the State concerned;
  4. One non-official to be nominated by each of the participating State Govts. to represent the interest of agriculture, fishery or industry or trade-in the State concerned or any other interest which, in the opinion of the participating State Government, is to be represented;
  5. Two persons to be nominated by the Central Govt. to represent the Companies or Corporations owned, controlled or managed by the participating State Governments;
  6. A full-time Member/Secretary, possessing qualification, knowledge and experience of scientific, engineering or management aspects of pollution control to be appointed by the Central Government. The same procedure is followed in the case of a member participating from a Union Territory. The Central Govt. nominates its officials on behalf of the participating Union Territories.

Functions and Powers of Joint Board:

The functions and powers of the Joint Board are similar to those of the State Board.

PENALTIES AND PROCEDURE

Sections 41 to 50 of Chapter-VII of the Water Act, 1974 lay down the provisions relating to penalties and procedure for violation of the provisions under the Water Act as stated hereunder:-

  1. Failure to comply with directions under Section 20(2) or (3) or order issued under Section 33(2) or Section 33A: Section 41(1) lays down that whoever fails to comply with any direction given under Section 20(2) or (3) on conviction, he shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees or with both and in the case the failure continues, with an additional fine which may extend to ten thousand rupees or with both and in the case the failure continues, with an additional fine which may extend to five thousand rupees for every day during which failure continues after the conviction for the first such failure.

Section 41 (2) provides that whoever fails to comply with any order issued under Section or Section 33(2) or Section 33A shall, in respect of each failure and on conviction, be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and which fine and in case the failure continues, with an additional fine which may extend to five thousand rupees for every day during which such failure continues after the conviction for the first such failure.

Section 41 (3) mandates that if the failure continues beyond a period of one year after the date of conviction, the offender shall, on conviction, be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine.

  1. Penalty for certain other acts: Section 42(1) provides that whoever:
    • Destroys, pulls down, removes, injures or defaces any pillar, post or stake fixed in the ground or any notice or other matter put up, inscribed or placed by or under the authority of the Board, or
    • Obstructs any person acting under the orders or directions of the Board from exercising his powers and performing his functions under the Water Act; or
    • Damages any work or property, belonging to the Board; or
    • Fails to furnish to any officer or other employees of the Board any information required by him, for the purpose of the Water Act; or
    • Fails to intimate the occurrence of an accident or other unforeseen act or event under Section 31 to the Board and other authorities or agencies as required by that section; or
    • In giving any information which, he is required to give under the Water Act, knowingly or wilfully makes a statement which is false in any material particulars; or
    • For the purpose of obtaining any consent under Section 25 or Section 26 knowingly or wilfully makes a statement which is false in any material particulars shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees.

Section 42(2) mandates that where a person is required to use a metre or gauge, or monitoring device and he uses the device so as to prevent it from monitoring or measuring correctly, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both.

  1. Penalty for contravention of provisions of Section 24: Section 43 declares that whoever contravenes the provisions of Section 24, shall be punishable with imprisonment for a term which shall not be less than one year and six months, but which may extend to six years and with fine.
  2. Penalty for contravention of Section 25 or Section 26: Section 44 provides that whoever contravenes the provisions of Section 25 or Section 26, shall be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine.

Section 45 lays down enhanced penalty for violation of Sections 25 and 26 after conviction, on the second and every subsequent conviction to be punishable with imprisonment for a term which shall not be less than two years, but which may extend to seven years and with fine. But no cognizance shall be taken of any conviction made more than two years before the commission of the offence which is being punished.

  1. Penalty for contravention of certain provisions of the Water Act: Section 45-A lays down that whoever fails to comply with any order or direction given under the Water Act, for which no penalty is elsewhere provided in the Water Act, shall be punishable with imprisonment which may extend to three months or with fine which may extend to ten thousand rupees or with both and in case of a continuing contravention or failure, with 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.
  2. Offences by Companies: Section 47(1) lays down that where an offence is committed by a company, every person who at the time 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 liable to be proceeded against and punished accordingly. But no person shall be liable to punishment 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.

Section 47(2) provides that if the offence is committed by a company and it is proved that the offence was committed with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officers of the company, such director, manager, secretary or another officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

  1. Offences by Government Departments: Section 48 provides that where an offence has been committed by any Government Department, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to proceed against and punished. But he shall not be liable to any punishment 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.

 

MISCELLANEOUS

Sections 51 to 61 of Chapter- VIII of the Water Act lay down the miscellaneous provisions relating to (1) Central Water Laboratory; (2) State Water Laboratory; (3) Analysts and their report etc.

Central Water Laboratory: (Section 51):

  1. The Central Government may, by notification in the Official Gazette:
    • 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 the Water Act.
  1. 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;
    • Such other matters as may be necessary or expedient to enable that laboratory to carry out its functioning.

State Water Laboratory:

Like the Central Government the State Government may by notification in the Official Gazette:

  • Establish a State Water Laboratory; or
  • Specify any laboratory or institute as a State Water Laboratory to carry out the functions entrusted to the State Water Laboratory under the Water Act. (Sec. 52(1)).

The State Government may after consultation with the State Board make rules prescribing:

  • The functions of the State Water Laboratory;
  • The procedure for the submission to the said laboratory of samples of water or of sewage or trade effluent for analysis or test, the form of the laboratory’s report thereon and the fee payable in respect of such report;
  • Such other matters as may be necessary or expedient to enable that laboratory to carry out its functions (Sec. 52(2)).

Analysts and their report:

Section 53(1) empowers the Central Government and Section 53(2) empowers a State Government to appoint such persons as it thinks fit by notification in the Official Gazette as Government Analysts. They will have the qualifications prescribed by the Government. Their function is to analyse the samples of water or of sewage or trade effluent, sent to them. Sub-section (3) of Section 53 enables the Central Board as well as a State Board to appoint with the prior approval of the Central Government or State Government such persons as it thinks fit to be Board analysts for the purpose of analysis of samples of water or of sewage or trade effluent. A Board Analyst must also possess such qualifications as may be prescribed.

Any document purporting to be a report signed by a Government Analyst or a Board Analyst may be used as evidence of the facts stated therein in any proceeding under the Water Act. (Sec. 54).

Also Read: The Air Act

 

 

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