The Water (Prevention and Control of Pollution) Act, 1974

1. Background and application

Water is a State subject, so Parliament passed the Act under Article 252 after resolutions by twelve State legislatures. It applies to the States that adopted it (now all States) and to the Union territories. Its object is the prevention and control of water pollution and the maintaining or restoring of the wholesomeness of water. “Pollution” is defined in section 2(e) (see the Unit I note). “Stream” (s.2(j)) includes rivers, watercourses, inland water, subterranean waters, and sea or tidal waters to the extent notified.

2. The Pollution Control Boards

Central Pollution Control Board (s.3): constituted by the Central Government. It consists of a full-time chairman with special knowledge or experience of environmental protection, up to five officials of the Central Government, up to five members of the State Boards, up to three non-officials representing agriculture, fishery, industry or other interests, two persons representing companies or corporations owned by the Central Government, and a full-time member-secretary.

State Pollution Control Board (s.4): constituted by the State Government, with a chairman (whole-time or part-time) with knowledge of environmental protection, nominated by the State Government in the manner prescribed by the Central Government (words added in 2024); up to five officials of the State Government; up to five members of local authorities; up to three non-officials representing agriculture, fishery, industry, trade or other interests; two persons representing State-owned companies or corporations; and a full-time member-secretary with qualifications in pollution control. Each Board is a body corporate. The Karnataka State Pollution Control Board is constituted under this section; it is also the State Board under the Air Act (s.4 of that Act).

3. Functions

Central Board (s.16). Its main function is to promote cleanliness of streams and wells in different areas of the States. In particular: advise the Central Government; co-ordinate the State Boards and resolve disputes among them; give technical assistance and sponsor research; train personnel; run mass-media programmes; collect and publish data and prepare manuals and codes; lay down standards for a stream or well in consultation with the State Government; plan a nation-wide programme; and establish or recognise laboratories. In the Union territories it exercises the State Board's powers.

State Board (s.17). The functions to list (August 2024 asked for them):

• plan a comprehensive programme for the prevention, control or abatement of pollution of streams and wells in the State and secure its execution;
• advise the State Government;
• collect and disseminate information, conduct and encourage research, and organise training and mass education;
• inspect sewage and trade effluents and treatment plants, and review plans for treatment and disposal systems in connection with the grant of consent;
• lay down, modify or annul effluent standards for sewage and trade effluents and for the quality of receiving waters, and classify the waters of the State;
• evolve economical methods of treatment, of using sewage and effluents in agriculture, and of disposal on land;
• make, vary or revoke orders for the prevention of discharge of waste into streams or wells, or requiring treatment systems;
• establish or recognise laboratories, and advise on the location of industries likely to pollute.

4. Powers

• Information (s.20), and entry and inspection (s.23).
• Samples (s.21), below.
• Prohibition (s.24): no person shall knowingly cause or permit any poisonous, noxious or polluting matter, determined according to the Board's standards, to enter any stream, well, sewer or land.
• Consent (ss.25 and 26): no person shall, without the previous consent of the State Board, establish any industry, operation or process or treatment and disposal system likely to discharge sewage or trade effluent into a stream, well, sewer or land, or bring into use a new or altered outlet, or begin a new discharge. Consent may be granted with conditions or refused with reasons, and may be reviewed or withdrawn (s.27). In practice there are two stages: consent to establish and consent to operate. Since 2024 the Central Government may exempt categories of industrial plants from consent (proviso to s.25(1)) and issue guidelines on the grant of consent (s.27A).
• Appeal (s.28) within thirty days to the appellate authority constituted by the State Government, then revision by the State Government (s.29), and appeal to the NGT under s.16 of the NGT Act.
• Emergency measures (s.32): where polluting matter is present in a stream or well because of an accident or unforeseen event, the Board may itself remove it, remedy the damage, and issue orders restraining the discharge.
• Application to court (s.33): where the Board apprehends that a stream or well is likely to be polluted, it may apply to a Metropolitan Magistrate or Judicial Magistrate of the first class to restrain the person.
• Directions (s.33A), inserted in 1988: the Board may issue any directions in writing to any person, officer or authority, including the closure, prohibition or regulation of any industry and the stoppage of electricity or water supply. Appeal lies to the NGT (s.33B).

5. Sample collection: section 21

August 2024 asked for the provisions and procedure on collection of samples. The result of analysis of a sample of sewage or trade effluent is not admissible in evidence in any legal proceeding unless sub-sections (3) to (5) are followed:

• serve on the occupier or his agent, then and there, a notice in the prescribed form of the intention to have the sample analysed;
• in the presence of the occupier or agent, divide the sample into two parts;
• place each in a container, marked, sealed and signed by the person taking the sample and by the occupier or agent;
• send one container forthwith to the laboratory established or recognised by the State Board (or the Central Board in a Union territory); and, on the occupier's request, send the second to the State Water Laboratory under s.52 (or the Central Water Laboratory under s.51);
• if the occupier wilfully absents himself after notice, the sample is sealed and signed by the person taking it alone and sent for analysis, the analyst is told in writing of the absence, and the cost of analysis is recoverable from the occupier (s.21(4)); if the occupier is present but does not ask for the sample to be divided, it is sealed and signed by the person taking it and sent to the Board's laboratory (s.21(5)).

Reports of the analysts follow under ss.22 and 54. The Environment (Protection) Act has a similar code in s.11, and the Air Act in s.26 (with the State Air Laboratory under s.28).

6. Penalties and offences after the 2024 amendment

The Water (Prevention and Control of Pollution) Amendment Act, 2024 (Act 5 of 2024, assented 15 February 2024) replaced most of the penal provisions with penalties.

• s.41: failure to comply with directions under s.20; s.41A: failure to comply with orders under s.32(1)(c), court directions under s.33(2) or directions under s.33A; s.42: obstruction, damage to Board property, failure to give information; s.43: contravention of s.24; s.44: tampering with a meter or monitoring device; s.45A: residuary. Each carries a penalty of not less than ten thousand rupees, extending to fifteen lakh rupees, with an additional ten thousand rupees a day for continuing contravention.
• s.45B: the penalties are imposed by an adjudicating officer of the rank of Joint Secretary to the Government of India or Secretary to the State Government, after hearing; the penalty is in addition to compensation under ss.15 and 17 of the NGT Act. s.45C: appeal to the NGT within sixty days, on deposit of 10% of the penalty. s.45D: penalties go to the Environmental Protection Fund under the 1986 Act.
• s.45E: what remains criminal. Failure to comply with ss.25 or 26 (operating without consent) is punishable with imprisonment of one and a half to six years and fine, rising to two to seven years if it continues for a year after conviction; failure to pay a penalty within ninety days is punishable with imprisonment up to three years or fine up to twice the penalty. Companies and their officers in charge are liable under s.45E(4) and (5).
• s.48: a contravention by a Government department makes the Head of the Department liable to a penalty of one month's basic salary, unless he proves lack of knowledge or due diligence; an officer whose neglect caused it is similarly liable. Old s.47 (offences by companies) is omitted.
• s.49: cognizance only on a complaint by the Board or its authorised officer, the adjudicating officer, or a person who has given sixty days' notice; trial by a Metropolitan Magistrate or Judicial Magistrate of the first class.

On company liability under the old s.47, see U.P. Pollution Control Board v. Modi Distillery, 1987 INSC 199, (1987) 3 SCC 684: the company's officers cannot escape prosecution because the complaint misdescribed the company; the defect was curable and the Court asked Boards to draft complaints with care.

How this is examined

August 2024: define water pollution and explain the functions of the State Board. Sample collection and offences by Government departments appear as alternatives. For the Boards question, give s.2(e), the composition under s.4 and the functions under s.17 in a list, then the consent and directions powers. Always add one paragraph on the 2024 amendment and its limited territorial reach; an answer that still says every offence carries imprisonment is out of date in the Union territories and adopting States.