various statues for protection of environment

ENVIRONMENT LAW PROJECT REPORT

ENVIRONMENTAL LAW:

ANALYSING THE MAJOR

INDIAN STATUTES.

“Only after the last tree has been cut down. Only after the last river has been poisoned. Only after the last fish has been caught. Only then will you find that money cannot be eaten.”

― Cree Indian Prophecy

Compiled by: Submitted to:

Pankhuri Arora (58/11) Ms. Sabina Salim

Rupali Parmar (66/11)

Rishab Gupta (71/11)

Date of Submission: 24th April, 2015

CONTENT TABLE

Water Pollution and The Law in India With Reference to The

Water (Prevention and Control of Pollution) Act, 1974

Air Pollution And The Law In India With Reference To The Air

(Prevention And Control Of Pollution) Act, 1981

Noise Pollution and the Law in India

Environment Protection Act, 1986

Environmental Law: Analysing the Major Indian Statutes

LIST OF CASES

1) A.P. Pollution Board Case (2001) 2 SCC 62

2) K.K. Nandi v. Amitabha Bannerjee 1983 Cr.L.J. 1479

3) M.C. Mehta v. Kamal Nath and Others (1997) 1 SCC 388

4) M.C. Mehta v. Union of India AIR 1988 SC 1037

5) M.C. Mehta v. Union of India AIR 1988 SC 1115

6) Pollution, Kawadiar, Trivandrum v. the Gwalior Rayon Silk Manufacturing Member-

Secretary, Kerala State Board for Prevention & Control of Water (Weaving)

Company, Ltd, Kazhikod AIR 1986 Kerala 256

7) Rajasthan State Electricity Board v. The CESS Appellate Committee AIR 1990 SC

2060

8) Subash Kumar v. State of Bihar AIR 1991 SC 420

9) Tehri Bandh Virodhi Sangarsh Samiti and others v. The State of Uttar Pradesh and

others 1990 SCR, Supl. (2) 606

10) U.P. PCB v. Mohan Meakins Ltd. AIR 2000 SC 1456

11) U.P. Pollution Control Board v. M/S. Modi distillery AIR 1988 SC 1128

12) Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715

13) Vijay Singh Punia v. Rajasthan State Board for Prevention and control of Water

Pollution A.I.R. 2003 Raj. 286 at pp. 286,287,296,297

14) M.C. Mehta v. Union of India and others, AIR 1997 I SC 734

15) MC Mehta v. Union of India, (2002) 2 SCC 356.

16) Murli Deora v. Union of India, AIR 2002 SC 40 207

17) AFD & C Ltd v. Orissa State Pollution Control Board, AIR 1995 Ori. 84


ACKNOWLEDGMENT

The success and final outcome of this project required a lot of guidance and assistance from

many people and we are extremely fortunate to have got this all along the completion of our

project work. Whatever we have done is only due to such guidance and assistance and we

would not forget to thank them.

We respect and thank Ms. Sabina Salim, for giving us an opportunity to do the project work

on the topic “Major Indian Statutes In Indian Law” The topic had been so well dealt in the

class room that our class notes helped us a lot to complete this project in time.

We are thankful to and fortunate enough to get required help from our friends, library staff

and our family while we were working on this project.


WATER POLLUTION AND THE LAW IN INDIA WITH

REFERENCE TO THE WATER (PREVENTION AND

CONTROL OF POLLUTION) ACT, 1974


“By means of water we give life to everything.”

The Koran, Book of the Prophets 21:30

INTRODUCTION

Comprising over 70% of the Earth’s surface, water is undoubtedly the most precious

natural resource that exists on our planet.1 Without the seemingly invaluable compound

comprised of hydrogen and oxygen, life on Earth would be non-existent: it is essential for

everything on our planet to grow and prosper.

In the words of the United Nations Development Programme (UNDP), water is

‘the stuff of life and a basic human right’.2

Thus, water is an essential element for life – including human life – on earth and as a result

is a core concern in law. From a legal perspective, the UNDP rightly emphasises the

importance of the human right dimension of water. Yet, in practice, water law is made up

of a number of elements comprising a human right dimension, as well as economic,

environmental or agricultural aspects. In particular, historically, one of the central

concerns of water law has been the development of principles concerning access to and

control over water. The Apex Court of India well knows the importance of environment

and points out the following Six Wholesome Principles:

All human beings have the fundamental right to unpolluted environment, pollution

free water and air.

The State is obligated to preserve and protect the environment.

It is mandatory for the State and its agencies, to conceive, anticipate prevent and

attack the cause of environmental degradations.

1 Only 2.5% of all the water on earth is fresh, and only a fraction of that is accessible. According to various estimates, each of us requires about 50 liters of water per day for drinking, cooking, bathing and other basic human needs. See Kluger, Jeffery and Dorfman, Andera. ‘The Challenge We Face”, TIME, September 2, 2002, at p. 38.

2 United Nations Development Programme, Human Development Report 2006 – Beyond Scarcity: Power, Poverty and the Global Water Crisis 1 (New York: UNDP, 2006).


The industry cannot be permitted to continue, as a matter of right, in case it creates

pollution.

The polluter must meet the cost of repairing environment and ecology and pay

reparation to those, who have suffered because of the pollution, caused by him.

Considerations of economy cannot prevail over concerns for environment and ecology.3

Drinking water is directly essential for human life. Water is also indirectly essential, for

instance, as an indispensable input in agriculture. Yet, despite the central role that water

has always played in sustaining life, human lives and human economies, the development

of formal water law has been relatively slow and often patchy. At the domestic level,

colonial legislation first focused on the regulation of water for economic reasons, for

instance, through the development of legislation concerning irrigation and navigation.

Over the past few decades, increasing water pollution and decreasing per capita

availability have led to the development of other measures such as water quality regulation

and an emphasis on water delivery, particularly in cities, as well as environment-related

measures. Yet, water law remains largely sectoral to-date. At the international level, water

regulation first focused mostly on navigation in international watercourses. It has

progressively evolved to encompass issues concerning the sharing of international waters.

International water law has, however, not yet reached the stage where it provides an

overall regime for the regulation of water uses.4

ANCIENT INDIAN’S WATER JURISPRUDENCE

Preservation of nature is as old as civilization itself. There is evidence that the people in

Harappa and Mohenjodaro were nature-worshippers, and that the forces of nature were

treated with reverence and piety. The ancient and medieval Indians placed great emphases

on the purity of environment. Strict religious orders were in vogue against polluting the

watercourses like public wells and rivers. Yaganas were often performed to purify the air

by burning fragrant materials. Rivers were considered to be sacred. These practices in the

3Vijay Singh Punia v. Rajasthan State Board for Prevention and control of Water Pollution A.I.R. 2003 Raj. 286 at pp. 286,287,296,297

4 Cullet, Philippe, Water Law in India: Overview of Existing Framework and Proposed Reforms, INTERNATIONAL ENVIRONMENTAL LAW RESEARCH CENTRE, Working Paper (2007), http://www.ielrc.org/content/w0701.pdf (last accessed on 14-04-2015)


context in which they were carried on, significantly differed from the concept of purity of

environment we are today striving to maintain. As the inherent nature of pollution itself

has undergone a tremendous change, today pollution is no more viewed from the point of

any religious order of sacredness, but is looked upon as a scientific and technological

phenomenon. It emerges from the industrialization and urbanization. The answer to its

cure definitely does not lie in any religious order or rite; but in self-restraint and adoption

of better scientific and technological devices. The major off shoots of environmental

pollution are: Water, Air and Noise. All these three are so inter-linked and sometimes, so

overlapping that one cannot be controlled without controlling the other.5

Manu writes in, ‘The laws of Manu’,

“And from light as it transforms itself come the waters, which are traditionally

known to have the quality of taste; and from the waters comes earth, with the

quality of smell. This is the creation in the beginning.”6

There are also innumerable prohibitions against the defilement of water, including a bar on

urinating in water,7 throwing any other bodily fluids or excrement into the rivers.8 Years

later too wrote at length about conservation of nature in his treatise, the Arthashastra. He

wrote about the duty of state in maintaining forests, preserving sources of water, and

protecting wildlife. Many Ashokan edicts also spell out rules and guidelines for the use

and preservation of natural resources.9

In contemporary India, water law is made of different components. It includes

international treaties, federal and state acts. It also includes a number of less formal

arrangements, including water and water-related policies as well as customary rules and

regulations. This project maps out the relevant legal framework concerning water in India.

WATER POLLUTION

5 Varma, Vikas, Legal Control of Water Pollution in India (January 2006), http://works.bepress.com/vikasvarma/2 (last accessed on 13/04/2015)

6 Ch.1 Verse 78. See The Laws of Manu ( Wendy Doniger and Brian Smith Trans., 1991), at p. 11

7 Ch., Verses 46-49, at p. 78.

8 Ch. Verse56, at p. 79.

9 Rosencranz, Armin & Divan, Shyam, ‘Environmental Law and Policy in India’, OXFORD UNIVERSITY PRESS, 2nd Edn, New Delhi, 2001, at pp. 24-25.


“The unconscionable industrialization, the unpardonable deforestation and

inhuman extermination, of living species betray an exploitative brutality and anti-

social appetite for profit and pleasure which is incompatible with humanism and

conservationism. Today a bath in the Yamuna and Ganga is a sin against bodily

health, not a salvation for the soul, so polluted and noxious are these holy waters

now.”

-Justice V.R.Krishna Iyer10

Water Pollution is a phenomenon that is characterized by the deterioration of the quality of

land water (rivers, lakes marshes and ground water) or sea water as a result of various

human activities. Water Pollution is any physical or chemical change in water that can

adversely affect organisms. It is a global problem, affecting both the industrial and

developing nations.

Following are the eight major types of water pollutants:

Oxygen demanding wastes (domestic sewage, animal manure and some industrial

waste)

Disease causing agents (bacteria, virus & parasites)

Inorganic chemicals & minerals (acids, salts and toxic metals)

Organic chemicals (pesticides, plastics, detergents, industrial wastes and oils)

Plant nutrients (nitrates and phosphates)

Segments (soils, silt and other solids from land erosion)

Radioactive substances

Heat (from industrial and power plant cooling water)

The main sources of water pollution are:

Sewage and Domestic wastes

10 Krishna Iyer, Environmental Pollution and the Law, 1984 at p. 95 quoted in Chaterjee, Benimadhab, ‘Implementation problems and Perspectives’, 2002, at p. 9.


Industrial effluents

Agricultural discharges

Fertilizers

Detergents

Toxic metals

Siltation

Thermal pollutants

Radioactive materials11

WATER LAWS IN CONTEMPORARY INDIA

Clean water is sine qua non for human existence. Its importance as an industrial perquisite

cannot be ruled out for any industrial nation. In India, since the advent of codified law due

importance has been given to clean water. The Indian Penal Code (IPC), the first penal

statute passed by the British Government as early as in 1860 contains comprehensive

provisions to restraint the occurrence of pollution of water. Section 277 of the Code

provides:

“Whoever voluntarily corrupts or fouls the water of any public spring, reservoir so

as to render it less fit for the purpose for which it is ordinarily used, shall be

punished with imprisonment of either description for a term which may extend to

three months, or with fine which may extend to five hundred rupees, or with

both.”12

This section renders a person liable for public nuisance if he voluntarily fouls the water of

a public spring or reservoir, so as to render it less fit for which it is ordinarily used. A

similar provision is embodied in the Northern India Canal and Drainage Act of 1873.

Besides, all the Municipalities Acts contain general provisions, which empower the

municipalities to control pollution of water in their respective territories. All these statutes,

11 Khitoliya, R.K., Environment Protection and the Law (2009) at 123-25.

12 The Indian Penal Code, 1860, Sec. 277.


however, had limited application. For example section 277 of I.P.C. did not apply to river

pollution and private wells. Even the tortious remedy against polluter confined only to

private nuisance, which could create a cause of action for an injunction, damages or both.

These legal provisions thus could not prove efficacious against the spread of pollution that

began to occur as a result of India’s rapidly growing population, accompanied by

increasing hazards of domestic and industrial needs with the recent added array of

agricultural pesticides and insecticides which have further aggravated the problem of water

pollution.

Consequently, certain states began to feel that need of foreclosing the rapid growth of

pollution of their water resources by passing special laws. In 1953 the State of Orissa took

a lead by passing the Orissa River Pollution Prevention Act. Maharashtra, one of the most

industrialized and densely populated states came out with a much more comprehensive

statue: Maharashtra Prevention of Water Pollution Act, 1969. But as in the case of general

statutes, like IPC, these statutes too failed to keep pace with the expanding needs of

industrialization and urbanization. Therefore, the feeling began to strengthen that water

pollution has become a national problem which can be tackled only at national level.

Keeping this in view it was thought expedient not to depend on the efforts of individual

states but to centralize the whole scheme of water pollution control. But this could be done

only after having successful recourse to articles 249 and 250 of the Constitution. Because

under the Constitution ‘water’ constitutes a state subject on which the states enjoy the

exclusive power to legislate; except in the case of regulation and development of inter-

state rivers and river valleys to which only the Central Government is empowered to

legislate by virtue of entry 56 of the union list of the Seventh Schedule. This formed the

basis for the enacting a comprehensive statue to prevent and control water pollution in

India called; The Water (Prevention and Control of Pollution), Act, 1974 (herein after

referred to as the ‘Act’).

THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

History of enactment


"Water" being a "state subject", the Parliament can exercise the power to legislate on

"water" only under articles 249 and 252 of the Constitution of India. In pursuance of

article 252(1) of the Constitution, resolutions were passed by all Houses of the

Legislatures of the States of Assam, Bihar, Madhya Pradesh, Gujarat, Haryana, Himachal

Pradesh, Jammu and Kashmir, Karnataka, Kerala, Rajasthan, Tripura and West-B0engal to

the effect that the matters relating to prevention and control of water pollution should be

regulated by the Parliament by law. Accordingly the Parliament enacted the Water

(Prevention and Control of Pollution) Act, 1974. The Water Act represents one of India's

first attempts to deal with an environmental issue comprehensively. The Water Act was

first amended in 1978. It was again amended in 1988 to conform to the provisions of the

Environment (Protection) Act, 1986.13

Main Object of the Act

The main aim and object of the Act of 1974 is 'to maintain or restore the wholesomeness

of water and to prevent, control and abate water pollution'. To achieve these objectives,

the Act has provided various chapters which are very comprehensive. The fundamental

objective of the act is to provide clean drinking water to the citizens.14 The other main

objectives are:

i) To provide for the preservation and control of water pollution, and the maintaining or

restoring of wholesomeness of water.

ii) To establish Central and State Boards for the prevention and control of water pollution.

iii)To provide for conferring on and assigning to such Boards powers and functions relating

thereto and for matters connected therewith.

iv)To provide penalties for the contravention of the provisions of the Water Act.

v) To establish Central and State water-testing laboratories to enable the Board to assess the

extent of pollution, lay down standards and establish guilt or default.

Analysing the Important Aspects of the Act

13 Nishtha Jaswal & Paramjit S. Jaswal, Environmental Law, 3rd Edn. (2013)

14 A.P. Pollution Control Board (II) v. M.V. Nayudu (2001) 2 SCC 62 at 79


In view of sub-section 2(e) read with Sections 17 and 18 of this Act, the fundamental

objective of the statute is to provide clean water to citizens. The definition of water

pollution in the act is a very comprehensive definition and covers all the changes in

physical, chemical or biological properties of water. The definition also covers the rise in

the temperature of water and discharge of radioactive substances in the water. The Act has

used two terms in relation to water pollution- stream and well. The 'stream' here includes

(a) river, (b) water courses (whether flowing or for the time being dry), (c) inland water

(whether natural or artificial), (d) subterranean water (underground water), (e) Sea or tidal

water.15

This is the Act that established the Central and a State Board and also the authority and

power to constitute as many committees as it feels essential to carry out specific functions

for it. The Act specifically prohibits “any poisonous, noxious or polluting matter’ into any

stream or well. Consent from the State Board is required for any type of new discharge

into any new stream or well. This also includes consent for “temperature” discharges as

done by cooling tower users. In general, this means that a State consent or permit is

required for all types of intake and/or discharge of any type of liquid or water either from a

running stream or well.

The functions and powers of Joint Boards are similar to those of State Board as to promote

cleanliness of water and to prevent pollution. Various measures have been taken for

prevention of water pollution in India. The municipal bodies are entrusted with the control

of solid wastes through treatment plants, throughout the country. Despite all these efforts,

the massive problem of water pollution still remains unabated.

Under these rules, “effluent standards to be complied with by persons while causing

discharge of sewage or sullage or both” have been specified. Standards for small scale

industries have been specified separately.

Penalties for non-compliance with the permit or polluting in any way are imprisonment for

three months and fine of Rs.10,000 (One US Dollar equals about thirty six Indian Rupees)

or fine up to Rs. 5,000 per day of violation or both plus any expenses incurred by the

15 Prasoon Agrawal, Critical Analysis of Water (Prevention and Control) Act, 1974, November, 2012, INTERNATIONAL INDEXED & REFERRED RESEARCH JOURNAL, http://www.ssmrae.com/admin/images/54c835cf71cc4c76ce5a2b8691a21ccf.pdf (Last accessed on 16-04-2015)


Board for sampling, analysis, inspection etc. These penalties can also be imposed for

“obstructing any person acting under the orders or direction of the Board” or for “damages

to any work or property of the Board.”

There are penalties also which extend up to seven years plus other monetary fines for other

similar offenses. Any “director, manager, secretary or other officer of the company may

also be deemed to be guilty” if proved that the offense occurred with their “consent or

connivance.” In case of the government, department head could be held liable.16

Critical Analysis of the Provisions in Water Act: How Far Effective

It is often argued that our enforcement mechanism is very weak although the laws are very

well drawn up. But, a careful analysis of the laws may reveal their inherent deficiencies

which are closely linked to lapses in enforcement. There are many shortcomings in the

provisions of the Water Act, 1974, which can be mentioned under different heads:

1. Definitional shortcomings:

a) First, in the Preamble itself which only speaks of “prevention and control of water

pollution” and not “total prohibition of water pollution”.

b) Secondly, in the term ‘outlet’,17 it is not clear whether intention to pollute water is a

prerequisite for application of this Act.

c) Thirdly, the definition of ‘pollution’18 does not include ‘pollution of water due to its

radiological disintegration.

d) Fourthly, the definition of the term ‘Stream’19 does not include ‘rain water’, thereby

giving right to pollute the rain water.

e) Fifthly, some very relevant and important terms like pollutants, toxic pollutants, discharge

of pollutants etc. are not defined.

2. Shortcomings Regarding Fines and Punishments:

a) Possible offences are not specifically defined and also the punishments prescribed are not

applicable to for all probable violations.

16 Harish C. Sharma, Pollution Control Acts and Regulations of India, PETROLEUM BAZAAR, http://www.petroleumbazaar.com/Admin%5CActsandControls%5CPollution_control_act.pdf (Last accessed on 16-04-2015).

17 See Sec. 2 (dd) of The Water Act, 1974.

18 See Sec. 2 (e) of The Water Act, 1974.

19 See Sec. 2 (j) of The Water Act, 1974.


b) Punishments mentioned on the Act are not such as to give a deterrent effect. Punishment is

provided only if violation is committed “knowingly”. It is not provided for “negligent”

acts20 of the polluter.

c) The Fines prescribed are also small and also, imprisonment as a punishment is not

compulsory in all cases of violations.21

3. Procedural Shortcomings

a) As per the legal provision for penal action against the polluters, the State Pollution Control

Board has to file a case before the lower court for action against a polluting unit and the

"onus of proof" is vested with the Board In a good number of cases where decisions are

taken, the polluters have been given the benefit of doubt because of technical reasons as

the Boards could not adequately meet the "onus of proof".

b) Yet another legal lacunae faced by the Pollution Control Boards relates to prosecution

against public servants. According" to the provisions of Sec. 197 of the Cr.

P.C., permission from the Government is required for prosecution of such persons and

more often than not it becomes difficult for the Boards to take legal action against them.

c) The Central Pollution Control Board can issue directions to the State Boards, which are

binding on them. However, at the same time, the Act makes it obligatory for the Boards to

comply with the directions of the concerned State Governments. There are occasions when

the directions of two authorities are not mutually complementary and, at times, totally

contradictory!22

d) The key person for enforcement of this Act is the Chairman of the State Pollution Control

Board who should be professionally qualified and appointed on a full time basis. However,

the Act does not stipulate such requirement.23 Several State Pollution Control Boards are

headed by part-time Chairmen without requisite qualifications and experience. Also, the

Member Secretaries of the Pollution Control Boards are often drawn either from

administrative service or even forest service, who, do not have the requisite technical

background in pollution control. As a result, it becomes difficult for them to provide

proper leadership and guidance to their sub-ordinates.

20 There is no concept of absolute liability under The Water Act, 1974 See section 24 of The Water Act, 1974.

21 See Sec. 24, 25 and 26 of Water Act, 1974.

22 See Sec. 18 of The Water Act, 1974.

23 See Sec. 4(2) (a) of The Water Act, 1974.


4. Shortcomings with respect to Institutional framework.

a) The Pollution Control Boards are hardly equipped with the necessary wherewithal to cope

up with these daunting tasks. Professional manpower and laboratory infrastructure for

pollution monitoring are the basic requirements for effective functioning of the pollution

control machinery.

b) The inadequacy in our enforcement mechanism is evident from a comparison with other

countries. In USA, the Environment Protection Agency (EPA) has more than 10,000

employees while the Central Pollution Control Board (CPCB) in India has to make it with

less than 500 personnel.

c) The Pollution Control Boards are expected to function as statutory autonomous bodies.

But, in reality, the Boards cannot function in such a manner for various reasons including

over-dependence on the Government for their existence. For effective functioning, the

Pollution Control Boards should have the autonomy and over-ridding powers to enforce

the laws.

d) The Pollution Control Boards are expected to receive funds from the Government

exchequer for their Plan and Non-plan expenditure. But, several State Governments have

curbed and even totally stopped the "grants-in-aid" to the Boards.

5. Other Lacunas

a) There is no system of compulsory public hearing

b) There is no specific provision in the Act for Public Participation, for better implementation

of the Act.

c) There are no provisions in the Act for fixing up standards of quality and targets for

eradication of pollution.

d) State government has the power24 to limit the application of this Act to a particular area in

a state. But this power in most of the cases is used arbitrarily.25

6. Conflict with The Environment Protection Act, 1986

In response to Stockholm Conference, India enacted The Environmental (Protection) Act,

1986 and the corresponding Environmental (Protection) Rules, 1986. This Act is a general

enactment empowering the Central Government to ‘prevent, control and abate

24 See Section 19 of the Environmental (Protection) Act, 1986.

25 See A.P. pollution Board Case [2001] 2 SCC 62.Where despite declaring a particular area as water prone area , state govt. later allowed certain industrial set up in that area by limiting the application of Water Act, 1974. However, this was struck down by the A.P. High Court.


environmental pollution.’26 As the ambit of the Act includes water resources, its provisions

extend to the streams, lakes, rivers etc. and a citizen has recourse to the mechanism under

the EP Act.27

Under Section 49 of the WaterAct the public can approach the court on violation of the

Act. However, like in the EPA the usefulness of this provision is debatable since only the

authorized Government officials can collect the samples. Though the State Board is to

make available relevant reports to the complaining citizens, it can refuse to do so if it

thinks that the disclosures would harm "public interest".28

The Act was amended in 1988 and the penal provisions of the Act were brought in line

with the 1987 amendments to the Air Act. The penal provisions as discussed earlier are in

practice ineffective. Also there is the question of conflict that may arise when both the

Water Act and the Environment (Protection) Act come into play together.

JUDICIAL APPROACH TO CONTROL OF WATER POLLUTION

In environmental litigations, the anxiety of the courts is to find out appropriate remedies

for the environmental protection is given much importance. In legal sense, pollution of

water means a departure from a normal sense. The normal sense denotes unaffected or

least affected physical and biological conditions of water for human activities. These are

some of the cases where the judiciary has interpreted the cases for the benefit and

prevention of environment and water pollution.

Pollution, Kawadiar, Trivandrum v. the Gwalior Rayon Silk Manufacturing Member-

Secretary, Kerala State Board for Prevention & Control of Water (Weaving) Company,

Ltd, Kazhikod29

The Cess Act grants rebates in the cess payable to those who had installed a plant for the

treatment of sewage or trade effluent. The Company claimed that it had installed a

26 Section 3.

27 However in case of any conflict between Water Act and EP Act, the former will prevail over the later as former being specific legislation.

28 The Energy and esource Institute, Review of the Existing Environmental Norms Concerning Power Sector, TERI Report No. 99 pg. 64, CENTRAL ELECRICITY REGULATORY COMMISSION, http://cercind.gov.in/chapter1.pdf (Last accessed on 16-04-15)

29 AIR 1986 Kerala 256


treatment plant and was therefore entitled to a rebate. This claim was declined. The

legality of the levy of cess was thereupon challenged in the writ petitions. The present writ

appeals are taken against the findings of the Judge in the writ petitions. If the plant

installed is one, which gives a satisfactory treatment of the trade effluent, rebate could be

given under Section 7 of the Cess Act so long as the treatment of the effluent is effective

from the point of view of the Pollution Act. The Court was also of the view that the

question involved is not a mere interpretation of a section of a statute but has larger

overtones with a direct nexus to the life and health of the people. A reference to a treaty,

protocol or convention is permissible while interpreting laws, which have a link or

background with such document. The Court surveyed recent international action in the

area of environmental protection, including the 1972 United Nations Conference on the

Human Environment, and national measures to develop environmental legislation and said

that these had a direct connection with the enactment of the comprehensive Pollution Act,

which the Court could not disregard.

U.P. Pollution Control Board v. M/S. Modi distillery30

Modi Distillery situated at Modi Nagar, Ghaziabad was engaged in the manufacture of

industrial alcohol and was discharging highly noxious effluents into the Kali River in

contravention of a statutory requirement to obtain a permit from the Pollution Control

Board. The issue before Court was whether the Chairman, Vice Chairman, Managing

Director and Members of the Board, were liable to be proceeded against under Section 47

of the Water (Prevention and Control of Pollution) Act in the absence of a prosecution of

the Company owning the industry. The Court held that on a combined reading of sub

sections (1) and (2) of Section 47 of the Act, it had no doubt that the Chairman, Managing

Director, and members of the Board of Directors of Messers Modi Industries Limited, the

Company owning the plant in question, could be prosecuted for having been in charge of

and responsible to the company for the business of the industrial unit and could be deemed

guilty of the offence for which they are charged.

Tehri Bandh Virodhi Sangarsh Samiti and others v. The State of Uttar Pradesh and

others31

30 AIR 1988 SC 1128

31 1990 SCR, Supl. (2) 606


A Petition was field in the SC under Article 32 of the Indian Constitution. The petitioners

prayed that the Union of India, State of Uttar Pradesh and the Tehri Hydro Development

Corporation be restrained from constructing and implementing the Tehri Hydro Power

Project and the Tehri Dam. The main grievance of the Petitioners was that in preparing the

plan for the project the safety aspects have not been adequately taken into consideration. It

was asserted that as the area in which the dam is to be constructed is prone to earthquakes,

the construction of the dam would pose a serious threat to the life, ecology and the

environments of the entire northern India. The Court stated that it does not possess the

requisite expertise to render any final opinion on the rival contentions of the experts. The

Court can only "investigate and adjudicate the question as to whether the Government was

conscious to the inherent danger as pointed out by the Petitioners and applied its mind to

the safety of the dam. We have already given facts in detail which show that the

Government has considered the question on several occasions in the light of the opinion

expressed by the experts". In view of the material on record, the Court did not find any

good reason to issue a direction restraining the respondents from proceeding with the

implementation of the project and accordingly, the petition was dismissed. Writ Petition

(Civil) No.725/1994, "And Quite Flows Maili Yamuna” Vs Central Pollution Control

Board & Ors. In this case the Central Pollution Control Board was filing Monitoring

Reports in compliance of the Hon’ble Supreme Court. The Central Pollution Control

Board submitted its monitoring report on water quality on River Yamuna at Palla, Agra

Canal and at Okhla. Besides river Yamuna the Central Board also monitor the drains at the

point prior to discharge into the river Yamuna for assessing the wastewater quality and

pollution load. The Central Board is monitoring the river Yamuna for its water quality at

five locations along with 25 drains in compliance of the orders of the Hon’ble Supreme

Court and have submitted results of 71 rounds of monitoring since 1999. Pollution in

Western Yamuna Canal: The Western Yamuna Canal is the source of raw water for

drinking purposes for capital city Delhi. Earlier, the Central Pollution Control Board has

received several complaints from Delhi Jal Board regarding bad quality of raw water in

Westen Yamuna Canal and thereby ordered closure of Haiderpur and Nangloi water works

for several hours. The officials of the Central Board conducted a survey of the pollution

sources of Western Yamuna Canal. The survey revealed that the pollution in Western

Yamuna Canal is caused due to the industries located in Yamuna Nagar, Haryana and also

from the Municipal Council Yamunagar and Jagadhari (Sewage Treatment Plants). On the


basis of the survey the Central Board has issued directions under Section 5 of the

Environment (Protecting) Act, 1986 to the industries located in the Yamuna Nagar,

Haryana. The Industries have filed Writ Petitions in the Punjab & Haryana High Court at

Chandigarh and got stay orders against the directions issued by the Central Board. The

Central Board has filed status of the Western Yamuna Canal in the Supreme Court of India

vide its affidavit, dated 15.10.2003 the Hon’ble Court on 15.4.2004 directed that the

reports of the Central Pollution Control Board and Haryana State Pollution Control Board

be sent to the Committee in the Ministry of Environment & Forests for examination. The

matter is under consideration of the said Committee.32

M.C. Mehta v. Union of India33

This is a famous case of Ganga water pollution case. River Ganga is noted for its historical

significance and religious importance and is considered most sacred by the Hindus in

India. A number of cities, towns and villages belonging to U.P, Bihar, West Bengal etc are

located on the banks of the river. Thus, the Ganga water got polluted as industrial wastes,

chemical effluents, human excrete etc are being discharged into the river. Further, a

number of dead bodies are being thrown into the river at Kasi with a belief that the dead

persons could go to heaven directly since they consider Kasi as holy place and the river as

sacred. This Ganga water was polluted in different ways with huge quantities of effluents.

The Supreme Court in this case directed that whenever applications for licenses to

establish new industries are made such applications should be refused unless adequate

provision has been made for the treatment of trade effluents flowing out of the factories

and that immediate action should be taken against the existing industries if they are found

responsible for pollution of water.

The Petitioner filed a writ petition in the Supreme Court for the prevention of nuisance

caused by the pollution of the River Ganga by tanneries and soap factories on the banks of

the river, at Kanpur. The petition was entertained as public interest litigation to enforce the

statutory provisions that impose duties on the Municipal Authorities and the Boards

constituted under the Water Act. The Supreme Court issued several directives to the

Kanpur Municipal Corporation to prevent and control pollution of the River Ganga at 32 A. Usha, Water Pollution-Judicial Response, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=955227 (Last accessed on 16-04-15)

33 AIR 1988 SC 1115


Kanpur. While making its order the Court observed that nuisance caused by the pollution

of the River Ganga was widespread and was a serious public nuisance. On account of

failure of authorities to carry out these statutory duties for several years, the water in the

River Ganga at Kanpur has become so polluted that the people either for drinking or

bathing can no longer use it. The Court also pronounced that what they have stated in this

case applies mutatis mutandis to all other Mahapalikas and Municipalities that have

jurisdiction over areas through which the River Ganga flows, and ordered that a copy of its

judgment be sent to all such institutions. The Court also expressed the view that "having

regard to the need for protecting and improving the environment which is considered a

fundamental duty under the Constitution, it is the duty of the Central Government to direct

all educational institutions to teach at least one hour a week lessons relating to the

protection and improvement of the natural environment including forests, lakes, rivers, and

wild life in the first ten classes"

M.C. Mehta v. Union of India34

Public interest litigation was filed requesting the court to prevent tanneries, which were

polluting the River Ganga, from operating until they installed primary effluent treatment

plants. The court passed the order accordingly. The Court in its judgement quoted the

following passages from the United Nations Conference of the Human Environment held

in 1972 in Stockholm: "Both aspects of man's environment, the natural and the man made,

are essential to his well being and the enjoyment of basic human rights - even the right to

life itself. The protection and improvement of the human environment is a major issue

which affects the well being of peoples and economic development throughout the world,

it is the urgent desire of the peoples of the whole world and the duty of all governments."

"What is needed is an enthusiastic but calm state of mind and intense but orderly work...To

defend and improve the human environment for present and future generations has become

an imperative goal...Achievement of this environmental goal will demand the acceptance

of responsibility by citizens and communities and by enterprises and institutions at every

level." The Court, while ordering the closure of certain tanneries observed that it was

conscious that the closure of the tanneries might bring unemployment.

Rajasthan State Electricity Board v. The CESS Appellate Committee35

34 AIR 1988 SC 1037


The Appellant established a thermal power station on the banks of River Chambal, which

consume water drawn from the river for cooling of the plant. The appellant filed an appeal

under Section 13 of the Water (Prevention and Control of Pollution) Cess Act 1977 in

respect of the cess claimed for a particular period. The appellate authority holding that the

appellant was not entitled to a rebate dismissed the appeal. Following the dismissal of

successive appeals and petitions, the appellant appealed to the Supreme Court challenging

the dismissal of the petitions by the Divisional Bench of the Court of Appeal. The

Supreme Court remitted the matter to the Assessing Authority for re assessment of the cess

and gave further directions, which the Authority was required to comply with. The Court

said that Section 25(1) has nothing to do with a plant installed for the treatment of effluent,

although the grant of consent to a new outlet can be conditional on the existence of a plant

for the satisfactory treatment of effluents, to safeguard against pollution of water in the

stream.

Subash Kumar v. State of Bihar36

Herein the Petitioner filed a public interest petition in terms of Article 32 of the

Constitution, pleading infringement of the right to life guaranteed by Article 21 of the

Constitution, arising from the pollution of the Bokaro river by the sludge/slurry discharged

from the washeries of the Tata Iron and Steel Company Limited (TISCO). It was alleged

that as a result of the release of effluent into the river, its water is not fit for drinking

purposes or for irrigation. The Respondents established that TISCO and the State Pollution

Control Board had complied with the statutory requirements, and that the Petitioner was

motivated by self-interest. The Court observed that Article 32 is designed for the

enforcement of fundamental rights. The right to life enshrined in Article 21, includes the

right to enjoyment of pollution-free water and air for the full enjoyment of life. If anything

endangers or impairs the quality of life, an affected person or a person genuinely interested

in the protection of society would have recourse to Article 32. Pubic interest litigation

envisages legal proceedings for vindication or enforcement of fundamental rights of a

group of persons or community that are not able to enforce their fundamental rights on

account of their incapacity, poverty or ignorance of law. However, public interest litigation

cannot be resorted to satisfy a personal grudge or enmity. Personal interest cannot be

35 AIR 1990 SC 2060

36 AIR 1991 SC 420


enforced through the process of Court under Article 32 in the garb of public interest

litigation. Since the instant case was motivated by self-interest, it was accordingly

dismissed.

Vellore Citizens Welfare Forum v. Union of India37

In Vellore Citizens Welfare Forum case, the Supreme Court was approached by the

petitioner to issue directions against the tannery pollution caused by the discharge of

untreated effluents in Vellore area in Tamilnadu. The untreated effluents affected the

agricultural lands, groundwater and health of the local people. The Court delivered a

landmark judgement in this case and directed the tanneries to set up effluent treatment

plants. About 20the quantum of compensation to be awarded to the affected people in the

area. The court has for the first tim0 tanneries, which failed to establish effluent treatment

plants, were closed in the interest of the public. The court directed the central government

to constitute an authority under Environmental (Protection) Act, 1986 to deal with

polluting industries. The result, the Loss of Ecology Commission was set up to assess e

invented ‘pollution fine’ against the tanneries that devastated the area. In this case, the

Supreme Court adopted the international principles such as precautionary principle,

polluter pays principle and the concept of sustainable development as part of law of the

land. The Court also suggested that the Madras High Court set up a Green Bench to deal

with environmental cases exclusively.38

M.C. Mehta v. Kamal Nath and Others39

In the impugned case, the Court took notice of an article which appeared in the Indian

Express stating that a private company "Span Motels Pvt. Ltd.", to which the family of

Kamal Nath, a former Minister of Environment and Forests, had a direct link, had built a

motel on the bank of the River Beas on land leased by the Indian Government in 1981.

Span Motels had also encroached upon an additional area of land adjoining this leasehold

area, and this area was later leased out to Span Motels when Kamal Nath was Minister in

1994. The motel used earthmovers and bulldozers to turn the course of the River Beas,

37 AIR 1996 SC 2715

38 L. Pushpa Kumar, CPREEC, Environment Law in India, Part III, C.P.R. ENVIRONMENT EDUCATION CENTRE, http://www.cpreec.org/143.htm (Last accessed on 18-05-2015)

39 (1997) 1 SCC 388


create a new channel and divert the river's flow. The course of the river was diverted to

save the motel from future floods. Here the constitutional provisions i.e., Article 21 and 32

and Forest Conservation Act of 1980 were applied.

The Supreme Court of India in this case decided that the prior approval for the additional

leasehold land, given in 1994, is quashed and the Government shall take over the area and

restore it to its original condition. Span Motels will pay compensation to restore the

environment, and the various constructions on the bank of the River Beas must be

removed and reversed. Span motels must show why a pollution fine should not be

imposed; pursuant to the “polluter pays” principle. Regarding the land covered by the

1981 lease, Span Motels shall construct a boundary wall around the area covered by this

lease, and Span Motels shall not encroach upon any part of the river basin. In addition, this

motel shall not discharge untreated effluents into the river. This ruling is based on the

public trust doctrine, under which the Government is the trustee of all natural resources,

which are by nature meant for public use and enjoyment. The Court reviewed the public

trust cases from the United States and noted that under English common law this doctrine

extended only to traditional uses such as navigation, commerce and fishing, but expressed

doubts as to how the doctrine is now being extended to all ecologically important lands,

including freshwater, wetlands and riparian forests.

Corporate Liability under the Water Act

The water Act has extended the liability for violations committed by companies to certain

corporate employees and officials and to heads of govt. Departments.40 The judiciary has

time and again held this provision of the Act.

K.K. Nandi v. Amitabha Bannerjee41

Discussing the liability of a manager, the Calcutta High Court in the impugned case held

that a person designated as a manager of a company is prima facie liable under Sec. 47.

The court observed that whether or not such person was in fact the overall in-charge of the

affairs of the factory and whether or not he had any knowledge of the violations of the Act,

are questions of fact to be determined at the stage of trial.

40 Sec. 47-48.

41 1983 Cr.L.J. 1479


U.P. PCB v. Mohan Meakins Ltd.42

The Apex Court made it clear that the directors/managers/partners would also be held

responsible if they were responsible for construction of the plant, for the treatment of

highly polluting and toxic effluents and will be prosecuted and punished under the Act.43

CONCLUSION

The Water Act is a very useful act in the present scenario. This Act is successful in

controlling the water pollution to a large extent at the Central and State level. Formation of

CPSB and SPCB has made a vast difference in terms of checking the pollution and

controlling it. There are still some lacunas that are present inside this act and which we can

infer from the above stated case laws. The need is to make this Act more powerful and

applicable. The Act gives the power to central and state government to take actions against

those who pollute the water and use it unnecessary. There is also a procedure to prescribe

for penalties and compensations. The Act has served a very useful in controlling the

pollution of water and it has to be strengthened more, for its future implications.

There Judicial Activism forged new tools and devised new remedies and with public

interest litigation, the Supreme Court has refashioned its institutional role to readily

enforce rights of the people and even impose positive obligations on the State. The

environmental justice in India owes to the higher judiciary. And the higher judiciary plays

a rather stalwart role owing to its unique position and power,44 and due to the

circumstances of inefficiency within the executive and the existence of a skeletal

legislative framework.45

42 AIR 2000 SC 1456

43 Jain, Ashok K., Law and Environment, 3rd Edn. (2005) at 127-128

44 Upendra Baxi has commented on the Indian Supreme Court as the most powerful court of the world. Upendra Baxi, “The Travils of Stare Decisis in India”, Butterworths, Included in the Legal Theory Course Material, Compiled by Prof.Krishna Deva Rao (for internal circulation) GNLU, (Feburary 2006)

45 S.P.Sathe opinion that the Indian parliaments have stopped legislating in the last two decades. S.P.Sathe, “Extracts from Judicial Activism in India”, Included in THE LEGAL THEORY COURSE MATERIAL, Complied by Prof.Krishna Deva Rao (for internal circulation) GNLU, (February 2006).


AIR POLLUTION AND THE LAW IN INDIA WITH

REFERENCE TO THE AIR (PREVENTION AND

CONTROL OF POLLUTION) ACT, 1981


“Nature never did betrayThe heart that loved her.”

― William Wordsworth

It is well known that the earth does not belong to man but man belongs to the earth.

Whatever befalls the earth befalls the residents of the earth. To reap joy and lead a healthy

life, one needs to have a clean and healthy environment all around. But man has been

destroying that very environment very selfishly without taking its care. This has lead to

some drastic environmental damages which have forced us to think again about our

activities.

Air is the most essential requirement of human survival. Access to clean air, amongst many

others, is a prerequisite for public well‐being. Since the industrial revolution in the early

1800s, the use of renewable and non‐renewable natural resources has led to large socio‐economic growth across the world. In the past century, its use has vastly improved life

expectancy, education, income and living standards. During the same period, their use has

also resulted in a three‐fold increase in our population. Sustaining an ever‐increasing

population with a demand for an improved quality of life has meant that these resources are

being used at unprecedented rates, an act that has polluted our atmosphere. Simply, it has

been an inevitable externality associated with providing goods and services to a material

society fuelled by human needs.

Air pollution is the emission of gaseous and particulate pollutants into the atmosphere

resulting from human activities, which have the potential to, directly or indirectly, affect

human health and well being. Apart from human health, air pollutants also influence the

earth’s climate, damage vegetation, reduce visibility, induce material degradation and

impair the ecosystem.

DEFINING AIR POLLUTION

According to WHO, Air Pollution is the presence in the outer atmosphere of substances or

contaminants put there by man, in quantities and concentrations and of duration as to cause


http://www.goodreads.com/author/show/64845.William_Wordsworth

any discomfort to a substantial number of inhabitants of a district which are injurious to

public health or to human, plant or animal life or property or which interfere with the

reasonable comfortable enjoyment of life and property throughout the state or throughout

the territories or areas of state.

The presence in air, beyond certain limits, of various pollutants discharged through

industrial emissions and from certain human activities connected with traffic, heating, use

of domestic fuel, refuse incineration, etc., has a detrimental effect on the health of the

people as also on animal life, vegetation and property.

The major sources of air pollution are fuels, coal, petroleum and industries. Listed

below are the major air pollutants and their sources:

Carbon monoxide (CO) is a colourless, odourless gas that is produced by the

incomplete burning of carbon-based fuels including petrol, diesel, and wood. It is

also produced from the combustion of natural and synthetic products such as

cigarettes. It lowers the amount of oxygen that enters our blood. It can slow our

reflexes and make us confused and sleepy.

Carbon dioxide (CO2) is the principle greenhouse gas emitted as a result of human

activities such as the burning of coal, oil, and natural gases.

Chlorofluorocarbons (CFC) are gases that are released mainly from air-

conditioning systems and refrigeration. When released into the air, CFCs rise to the

stratosphere, where they come in contact with few other gases, which leads to a

reduction of the ozone layer that protects the earth from the harmful ultraviolet rays

of the sun.

Lead is present in petrol, diesel, lead batteries, paints, hair dye products, etc. Lead

affects children in particular. It can cause nervous system damage and digestive

problems and, in some cases, cause cancer.

Ozone occurs naturally in the upper layers of the atmosphere. This important gas

shields the earth from the harmful ultraviolet rays of the sun. However, at the

ground level, it is a pollutant with highly toxic effects. Vehicles and industries are


the major source of ground-level ozone emissions. Ozone makes our eyes itch, burn,

and water. It lowers our resistance to colds and pneumonia.

Nitrogen oxide (NOx) causes smog and acid rain. It is produced from burning fuels

including petrol, diesel, and coal. Nitrogen oxides can make children susceptible to

respiratory diseases in winters.

Suspended particulate matter (SPM) consists of solids in the air in the form of

smoke, dust, and vapour that can remain suspended for extended periods and is also

the main source of haze which reduces visibility. The finer of these particles, when

breathed in can lodge in our lungs and cause lung damage and respiratory problems.

Sulphur dioxide (SO2) is a gas produced from burning coal, mainly in thermal

power plants. Some industrial processes, such as production of paper and smelting

of metals, produce sulphur dioxide. It is a major contributor to smog and acid rain.

Sulphur dioxide can lead to lung diseases.

AIR POLLUTION IN INDIA

In India, air pollution is wide spread in urban areas due to rapid increase in urban

population, unplanned urban development and high demands for transport, energy and other

infrastructural facilities. The legislative control and judicial response to the magnitude of

air pollution and its gravity will be discussed herein.

Air pollution surveys toady point out that majority of air pollution in cites is due to

automobile emissions. Each day around 1000 vehicles are added on the roads of Delhi and

Bombay taken together. The AIIMS hospital in Delhi has stated that due to the lead in

fuels, dangerous levels of lead are found in the blood of young children in Delhi exposing

them to various serious health problems. No doubt in recent years much attention has been

paid to emission levels and cleaner fuels and these matters are receiving very positive

response from various high courts and the Supreme Court.

It is because of such awareness that mass transit systems like elevated rail lines in Chennai,

the subway in Kolkata and the Metros in Delhi are being promoted on large level. But still

these steps are too little and too late, unable to keep in pace with our population rate.

Compared to private vehicles the growth rate in manufacture of buses in the country is still


very less. Poor infrastructure and limited capacity have forced urban users to shift to private

modes of transportation .which in turn increase the emission amount and congestion on the

roads.

Air pollution in India can broadly be attributed to rapid industrialization, energy

production, urbanization, commercialization, and an increase in the number of motorized

vehicles. Vehicles are a major source of pollutants in cities and towns. Apart from the sheer

numbers, other factors contributing to the increasing vehicular pollution in urban areas

include the types of engines used, age of vehicles, density of traffic, road conditions, and

the status of automotive technologies and traffic management systems.

Some of the steps to reduce air pollution are as follows:

Vehicular pollution control in metropolitan cities and other cities deserves top

priority. Strategies which need to be adopted include the promotion of public

transport and mass rapid transport systems together with traffic planning and

management.

In addition, taxes on fuels and vehicles, stringent emission norms and fuel quality

specifications, promotion of cleaner fuels such as CNG, replacement of two-stroke

engines, and a strengthening of the inspection and maintenance system.

Measures to be taken to control industrial air pollution include promotion of cleaner

technologies, strengthening of emission standards, introducing economic incentives,

and strengthening of the monitoring and reporting system.

A comprehensive urban air quality management strategy should be formulated using

information related to urban planning, ambient air quality, an emission inventory,

and air quality dispersion models.

Strengthening the monitoring network and institutional capabilities would facilitate

an improvement in the enforcement mechanism

Use of cleaner fuels such as LPG in households would reduce indoor air pollution.

Epidemiological studies should be undertaken to develop dose-response

relationships, which will help in developing appropriate air quality standards


Economic instruments need to be put in place to encourage industries to adopt

cleaner technologies and other conservation practices and to discourage the over-

utilization of natural resources.

AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981

The legislature enacted Air (Prevention and Control of Pollution) Act, 1981 for the

prevention, control and abatement of air pollution. This enactment was on the basis of the

decision taken at the UN Conference on the Human Environment held in Stockholm in

June, 1972. Government also enacted Air (Prevention and Control of Pollution) Rules, 1981

so as to implement the enactment. The Air pollution control and environment protection in

general is a comprehensive project that requires concerted efforts by government at all

levels. For the purpose of efficient and effective enforcement of this law, it is necessary to

set up an Adjudicatory Body which should consist of legal as well as technical experts.

Awareness and education of the masses and stricter law enforcement remains the key to

success.

The Air (Prevention and Control of Pollution) Act 1981 (Air Act) was enacted on the lines

of the provisions of the Water Act. The Act is an instrument of the legislature which has

been enacted in order to keep a check on the pollution spread in the air, the grievance

redressal system that needed to be established and the formation of State Pollution Control

Board and the Central Pollution Control Board which give out certain guidelines and limits

that are allowed by an industry.

Few of the significant provisions under the Act are as follows:

Section 2 of the Act deals with definitions. Some of the important ones are:

“Air pollutants” is defined as any solid, liquid or gaseous substance [including

noise] present in the atmosphere in such concentration as may be or tend to be

injurious to human beings or other living creatures or plants or property or

environment.

“Air Pollution” means the presence in the atmosphere of any pollutant.


“Emission” means any solid, liquid or gaseous substance coming out of any

chimney, duct or flue or any other outlet.

“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.

Section 3 and 4 of the Act lay down that CPCB and SPSB respectively shall be the same as

have been constituted under the Water (Prevention and Control of Pollution) Act, 1974.

Section 5 also provides for a constitution of SPCB in states where it does not already exist.

Section 6 lay down that the Central Board can exercise the powers and functions of SPCB

in Union Territories. The members of the SPCB shall hold office for a period of 3 years and

their tenure may be terminated in the situations mentioned in Section 7.

According to Section 10, the board has to compulsorily meet once in three months. This is

an important provision in the respect that it has been incorporated to ensure that adequate

safeguards are taken at regular and not prolonged intervals.

Chapter III of the Act elucidates the powers and functions of the Boards. The main function

of Central Board, under Section 16, is to improve the quality of air and to prevent, control

or abate air pollution in the country. The board may also advise the Central Government,

plan and execute nation-wide programmes, co-ordinate the SPCBs, organise and train

personnel, collect, compile and publish statistical data, and most importantly, lay down

standards for the quality of air.

Section 17 lays down the functions of SPCB and their relation with the respective State

Government. But the SPCB have to lay down standards for emission of air pollutants in

consultation with CPCB.

Chapter IV lays down the methods to be adopted in order to prevent and control air

pollution. The State Government may, after consultation with the SPCB and by notification

in the official gazette, declare air pollution control areas, prohibit the use of any fuel in such

areas and prohibition of burning of any material other than fuel.46 Under Section 20, they

may set standards for emissions from automobiles and Section 21 empowers them to put

restrictions on use of certain Industrial Plants.

46 Section 19.


Section 22A further empowers them to restrain a person from causing air pollution by

operation of an industrial plant or other reasons, by making an application to a court not

inferior to a court of Metropolitan Magistrate of JMFC. Any person can also be empowered

to enter premises during reasonable hours to gather information, inspect, take samples of air

pollutants, etc. Section 28 lays down that State Air Laboratories may also be constituted

which will analyse these samples.

An appeal under Section 31 from an order of the SPCB shall lie to the Appellate Authority

consisting of 3 persons appointed by the State Government.

Contributions to the SPCB can be made by Central Government as it deems fit. The Board

shall also have its own fund which shall be paid for by the Central Government 47, and may

also borrow money in the form of loans or issue of bonds from the Central or State

Governments48.

In case of failure to comply with the provisions of the Act, a person can be imprisoned for a

minimum 1 year 6 months extendable up to 6 years with fine, and the continuance of the

failure may lead to fine of 5 thousand rupees per day, and beyond 1 year may lead to

imprisonment from 2-7 years with fine.49 Section 38 lays down certain acts and the

specified penalties for the same. Section 40 says that in case of companies, the persons

responsible in charge of the company shall be held responsible. Thus, artificial persons are

also covered by the Act.

Section 42 extends protection to the Board and its members in respect of any action taken

in good faith. The Cognizance of offences under Section 43 by the court can also be made

by either the board or its members, or any other person who has given a notice of at least 60

days to make a complaint of an offence.

Chapter VII of the Act also lays down various provisions for dissolution of the Boards by

the Central or State Government, as the case may be, if the Board is not performing its

functions as elaborated under the act.

47 Section 33.

48 Section 33A.

49 Section 37.


JUDICIAL APPROACH TOWARDS CONTROLLING AIR

POLLUTION

In India the environmental law has seen considerable development in the last few decades.

Most of the principles under which environmental law works in India were developed

within this period. The development of the laws in this area has seen a considerable share of

initiative by the Indian judiciary, particularly the higher judiciary, consisting of the

Supreme Court of India, and the High Courts of the States. The role of the administration,

although a critical factor in the success of any environmental management programme, has

seen its share of problems of scale and definition. The essence of the existing law relating

to the environment has developed through legislative and judicial initiative.

In recent years, the judiciary has played a prominent role in environment protection. A

series of judgment in relation to stringent vehicle emission norms, fuel quality, phasing out

of vehicles and shifting of hazardous industries have provided a great deal of momentum to

improve air quality. Judicial reaction towards prevention of pollution is encouraging. Be it

under penal law, torts, constitution or special statutes. The right to healthy environment and

healthy and fresh air is identified as part of the right to life under Article 21 of the

constitution.

The developments that followed the Supreme Court’s order in 1998 which required all

buses in Delhi to convert to Compressed Natural Gas (CNG) are well known. At the time,

there was significant criticism of this order on the ground that it would be too costly for

both the Delhi Transport Corporation (DTC) and private-operators to buy CNG vehicles,

thereby affecting the large number of people who depend on public transport. As the

deadline for implementation drew close in 2002, there was some inconvenience caused to

the general public on account of limited CNG supplies – but in the long-run the measure

has succeeded in reducing the air pollution levels. This only goes to show that sometimes

judges must make unpopular decisions in order to pursue the long-term objective of

protecting the right to a clean environment.

Environmental Jurisprudence in India made a beginning in the mid-seventies when

Parliament enacted the Water (Prevention and Control of Pollution) Act, 1974. But soon,

there was a quantum leap with the amendment of our Constitution in 1976 and


incorporation of Article 48-A in the Directive Principles of State Policy and Article 51- A

(g) in the Fundamental Duties of every citizen of India. Both these Articles unequivocally

provide for protection and improvement of the environment. Inevitably, Parliament enacted

the Air (Prevention and Control of Pollution) Act, 1981 and the Environment (Protection)

Act, 1986. With this core group of three enactments, a modest beginning was made by

Parliament. Unfortunately, soft laws were enacted (and they continue to remain so) at a

time when strong legislation was critical for environmental conservation.

Other important cases are:

THE TAJ TRAPEZIUM CASE

M.C. Mehta v. Union of India and others, AIR 1997 I SC 734

The precautionary principle came to be directly applied in this case for protecting the Taj

Mahal from air pollution. Expert studies proved that emissions from coke/coal based

industries in the Taj Trapezium (TTZ) had damaging effect on the Taj. The Agra foundries,

chemical and hazardous industries and the refinery at Mathura were the major source of

damage to the Taj. The affluents and waste of these industries led to the creation of Acid

Rain, which had a corroding effect on the gleaming white marble of Taj. Industrial and

refinery emissions, brick kilns, vehicular traffic and generator sets were primarily

responsible for polluting the ambient air around the Taj Mahal. Thus some preventive steps

were required urgently to prevent further pollution. Looking at this, the National

Environment Engineering Research Institute (NEERI) gave its ‘over view report’ regarding

the status of air pollution around the Taj.

As a result, in this landmark case, Supreme Court directed to follow suggestions and

recommendations of NEERI, of shifting the polluting industries to an area outside TTZ and

setting up of the green belt development plan around the Taj Mahal to save it from the

effect of air pollution. The Supreme Court observed that:

“The main function of the central pollution control board and the state board is to improve

the quality of air and prevent, control and abate air pollution in the country. In many cases,

environmental protection means something more than the preservation of the habitat. It

may cover protection of historical monuments and cultural heritage. Pollution may


gradually efface such monuments into extinction. The supreme court hardly had any

hesitation to interfere in such instances.”

The court observed that the atmospheric pollution in TTZ has to be eliminated at any cost.

They stated that not even one percent chance can be taken when-human life apart-the

preservation of a prestigious monument like Taj is involved. They further stated that “the

environmental measures must anticipate, prevent and attack the causes of environmental

degradation. The “onus of proof” is on an industry to show that its operation with the aid of

coke /coal is environmentally benign. It is rather proved beyond doubt that the emissions

generated by the use of coke/coal by the industries in TTZ are the main polluters of ambient

air.

In a similar case to control air pollution in Delhi, in M.C. Mehta v. Union of India50 and

Others, Known as Industrial Closure and Relocation case, the apex court ordered the

shifting, relocation and closure of certain industries.

SMOKING IN PUBLIC PLACE

In Murli Deora v. Union of India51 and others, while prohibiting smoking in Public Places,

the Apex court stated that, “Fundamental right guaranteed under Article 21 of the

Constitution of India provides that no one shall be deprived of his life without due process

of law. A non-smoker who is affected by various diseases including lung cancer, or of heart

problem, only because he is required to go to public places, he is indirectly being deprived

of his life without due process of law.”

Realising the gravity of the situation and considering the adverse effect of smoking on

smokers and passive smokers, the Supreme Court directed and prohibited the smoking in

Public Places and issue directions to the Union of India, State government as well as the

union territory to take effective steps to ensure prohibiting smoking in public places.

CNG VEHICLES IN DELHI

MC Mehta v. Union of India, (2002) 2 SCC 356.

50 AIR 1996 SC 2231

51 AIR 2002 SC 40 207


For the people living in Delhi, pollution from thousands of automobiles was a real health

hazard. Supreme Court took the step to reduce this pollution on many occasions. Among

the various attempts, the decision relating to conversion of diesel vehicles to compressed

natural gas (CNG) vehicles merit scrutiny.

In MC Mehta v. Union of India52, the attention of the court was focused on the delay to

convert diesel vehicles to CNG by the central government, thereby frustrating the orders of

the Supreme Court in MC Mehta v. Union of India53. The plea of the central government

that there is shortage of CNG supply as a major chunk of it went to the industrial sector was

met with the following observation by the court,

‘Not only is there no shortage of CNG as far as the transport sector is concerned, but even

if there be such a shortage, if crude oil can be imported and supplied to the refineries for

manufacture of petrol and diesel, there is no reason why CNG, if need be, cannot be

imported, so that it ensures less pollution.’

The court categorically declined to give any blanket extension of its directions contained in

the aforesaid order. However, in public interest and with a view to mitigate the sufferings of

the commuter public in general and school children in particular, the court made certain

relaxations.

CONSENT OF THE BOARD

In AFD & C Ltd v. Orissa State Pollution Control Board54, Orissa high court looked into

the different parameters of the directing power under the Air Act. In this case, the secretary

of the board issued a direction under s. 31- A of the Air Act to close down the petitioners

cattle and poultry feed factory, and to shift the same to an isolated place.

The measures are remedial and that is the reason why in case of an established industry,

consent of the board is insisted upon. However, the board can issue such direction within

the ambit of section 31A only on being satisfied that the industry in question emits “air

pollutant” by which there has been “air pollution”. There needs to be finding to the effect

that there has been emission of air pollutant. 52 (2002) 2 SCC 356

53 (1998) 6 SCC 63

54 AIR 1995 Ori. 84


Such a finding only can clothe the jurisdiction of the Board to issue any direction. In the

absence of any finding that the petitioner’s factory emits any air pollutant as defined in

section 2 (a) of the act, it was not within the jurisdiction of the board to issue the direction

to shift or close down the industry in exercise of power under s. 31-A of the Air Act. The

court quashed the direction for the closure.

SHORTCOMINGS

India still follows inadequate and outdated environmental laws. Further, various factors that

contribute towards poor implementation of environmental laws in India, are:

Lack of appropriate skills amongst the law enforcement agencies.

Inadequate infrastructural facilities.

Lack of proper understanding of environmental laws.

Lack of coordination among the law enforcement authorities and officers.

Jurisdictional conflicts.

No initiatives are being taken to recruit law officers who possess knowledge, skills

and understanding of environmental issues and laws.

The tendency to centralize the decision making power and bureaucratized structure

hampers the process of proper law enforcement. The political and bureaucratic

intervention in day to day activities of the law enforcement authorities affects and

curbs their professional competence and efficiency.

There are many provisions in the Air Act that are outstanding and promise to reduce air

pollution, like every citizen of India is vested with the locus standi to file petition with

respect to air pollution matters. However there are also few lacunas in the Act. These are:

It does not make any provision relating to abrupt escape of lethal gases and is

restricted in approach, as it is applicable only in areas designated as Air Pollution

Control Areas. It talks about the ways to control air pollution but not prevent it.

According to this act, SPCB is required to lay down emission standards for

Industries and automobiles. But in practise it is done by Police and SPCB does not


have any controlling authority over police and police cannot control pollution.

Therefore, this act does not have any integrated approach.

The Act also does not provide for compensated expedient remedy for the disaster

and hence fails in this aspect.

This act does not create any new liability or any new right. This is a negative point

in relation to individual or group of individual victims.

There are no provisions relating to monitoring and control of airborne concentration

of pollutants at the source as well as in the work room. The statutes also do not

prescribe the precautions to be taken to protect workers against harmful airborne

substance.

The Act suffers from almost same shortcomings as that of the Water Act. It does not

set time limit and prescribes negligible penalties and is silent on the rights of the

third parties.

‘Light pollution’ caused by high intensity signboards, neon advertisements and their

jamming light effects are not covered by the Act.

The Act does not talk about “pollution through the medium of air”. Hence, noxious

odours as are emitted by some industries, like breweries, leather industries etc., are

not covered under the Act.

The Act grants discretion to each State Govt. to designate particular areas as “air

pollution areas” within which the provision relating to regulations of pollutants

discharges through permit system are to be applicable. It seems that polluters

located outside such air pollution control areas cannot be subjected to regulations of

pollution or be prosecuted for violations of standards laid by the State Boards.

The prevention and control of air pollution has been given as an additional or

secondary duty of the (Water) Pollution Boards. This under-rates the importance to

control air pollution as there remains a tendency to attach greater importance to the

primary function.


The Air Act like the Water Act does not provide for an integrated approach to check

pollution, as the local and municipal bodies which are armed with statutory powers

for ensuring environmental purity, have not been integrated into the national and

State level enforcement machinery.

CONCLUSION

The Air Act is a good legislation and has shown the right path to be pursued in the direction

of prevention and control of air pollution. Nevertheless, the Act requires some amendments.

The Act should ask for public input, views and suggestions with regard to controlling and

preventing air pollution. It should extensively provide for creating awareness about the

subject in urban as well as rural set ups. The SPCBs should be granted special rights and be

allowed to take suo moto action against the polluter.

The need of the hour is to act immediately and push for stricter laws for cleaning the air we

breathe. The vehicles should be made to comply with the Euro IV or Bharat Stage IV norms

all over India and not just the few selected cities. The industries emitting pollutants in the

air should be dealt with strictly. Also the pre-requisite of setting up every industry should

be a promise to sticking to environment friendly operations. The technology in all the

appliances such as air conditioners, refrigerators etc. should be eco-friendly only.

When we throw it away, we must think again, after all there is no away.


NOISE POLLUTION AND THE LAW IN INDIA


INTRODUCTION

With the advancement of science and technology at an unprecedented pace, the urban

centers of today’s world have evolved not just in size but also in terms of the living

conditions provided by them. This has brought about an increasing new awareness about

the noise pollution, which has become a part of our day-to-day lives. Studies have been

conducted to trace the amount of damage caused by the noise from various natural as well

as man-made sources, especially traffic. In fact, noise has come to be associated with the

mental, physical, emotional and psychological well-being of an individual, be it human

beings or even animals. In legal terms, noise can be considered as an assault on an

individual. Apparently, this is a potential hazard to the provisions of sound living

conditions and needs to be checked at planning, administrative and judicial level.

Earlier, the noise pollution was confined to a few special areas like factory or mill, but

today it engulfs every nook and corner of the globe, reaching its peak in urban areas.

However, the noise pollution’s most apparent victims of today are the residents in the

neighbourhood of airports. It has many sources, most of which are associated with urban

development: road, air and rail transport; industrial noise; neighbourhood and recreational

noise. A number of factors contribute to problems of high noise levels. These are, firstly,

increasing population, particularly where it leads to increasing urbanization and urban

consolidation activities associated with urban living generally leading to increased noise

levels and secondly, increasing volumes of road, rail and air traffic.

Although noise is a significant environmental problem, it is often difficult to quantify

associated costs. An OECD report in 1995 on the social costs of land transport identified

four categories of impact from transport noise55:

a) Productivity losses due to poor concentration, communication difficulties/fatigue due to

insufficient rest;

b) Health care costs to rectify loss of sleep, hearing problems or stress;

55 http://epa.nsw.gov.au/soe/ch1/16.htm#ch1.htm.OECD 1995


c) Lowered property values;

d) Loss of psychological well-being.

MEANING

The word ‘noise pollution has no where been defined in the Central Legislative Act.

However, the word ‘Noise’ has been derived from Latin term, ‘nausea’ and can be defined

as “unwanted sound, a potential hazard to health and communication dumped into

environment without regard to adverse effect it may have on unwilling ears.”56

Encyclopedia Britannica defines noise as, “In acoustics, noise can be defined as any

undesired sound. According to this definition, a sound of church bells may be music to

some and noise to others. Usually, noise is a mixture of many tones combined in a non-

musical manner.”57

The term ‘Pollution’ is defined in section 2(c) of Environment Protection Act, 1986 as

‘presence of any environmental pollutant in environment.”

Section 2 (b) defines environmental pollutant to mean any solid, liquid or gaseous

substance present in such concentration as may be, or tend to be injurious to environment.

Thus, Noise Pollution may mean disturbance produced in our environment by undesirable

sound of various kinds.

EFFECTS OF NOISE POLLUTION:

Effects of noise depend upon sound’s pitch, frequency and the time pattern and length of

exposure. Therefore, depending upon the intensity and the duration of the noise levels,

noise has both auditory and non-auditory effects.

Auditory Effects:

(a) Temporary Hearing loss- It is a reversible physiological phenomenon. Temporary

loss of hearing occurs when the ear is exposed for a short duration to excessive

56 Re. Noise Pollution Case (AIR 2005 SC 3136)

57 Encyclopaedia Britannica, Vol. 16 at 556.


noise or when the ear is exposed for a short duration to excessive noise or when ear

is exposed to the noise at damaging intensities for a sufficiently long period of time.

(b) Permanent Hearing Loss- it is an irreversible loss of hearing and is caused by either

prolonged noise exposure of high intensity noise or it may be caused when the

intensity of the noise is more than 140 db. When a stage is reached at which hearing

loss no longer returns to the original level, it is called noise induced hearing loss or

permanent threshold shift.

Non- Auditory Effects:

These include the following:-

(a) Annoyance

(b) Effect on communication

(c) Loss of efficiency

(d) Disturbance in sleep

(e) Effect on Cardiovascular System

(f) Effects on the nervous system

(g) Hormonal effects

(h) Effects on reproductive system

(i) Increase in still birth rates and birth defects

(j) Other health hazards including effects on skin and digestive system.

CONTROL OF NOISE POLLUTION

With the crossing of danger point for noise pollution, there is a dire need to take some

preventive and protective measures for its control. These measures include non-legislative

and Legislative measures.

Non-Legislative Measures:

(a) Proper designing and fabricating silencing devices and their proper use in jet planes,

aircraft engines, trucks, cars, motor cycles, home appliances, etc.

(b) Plantation of trees like Neem, Ashoka, which absorb sound vibrations to a great extent,

on both sides of the roads, around hospitals, libraries, etc reduce the menace of noise

pollution.


(c) Use of loudspeakers and amplifiers should be restricted to a fixed intensity and hours of

the day.

(d) Noise polluting factories, industries, bus stands, railways and vehicular traffic should

be directed away or located far from the human dwelling and educational locations.

(e) General awareness should be developed among the people to sound through various

means of communication so that there is minimum noise pollution in the environment.

(f) The District Administration and the Statutory Bodies like state Pollution Control Board

should work out the modalities to prevent catastrophic effect of noise pollution by

insuring strict compliance with the statutory provisions.

Legislative Measures:

Law is a regulator of the human conduct and thus through legislative means; we can

regulate the human conduct to reduce the man made causes of noise pollution. Different

countries of the World have enacted different legislations to control noise pollution. Till

very recently there was no specific law in India to deal with the problem of noise pollution.

Although the Environment Protection Act, 1986 empowers the Central Government to

frame rules prescribing the maximum possible limits of noise in different areas, it took

more than a decade before rules were framed. In February 2000, the Noise Pollution

(Regulation and Control) Rules were frames.

(a) Law of Torts and Noise Control. -Noise in India is actionable under the law of

torts. Under this, if noise affects a person’s comfort then it would amount to nuisance

and appropriate relief available either in the form of damages or by of injunction would

be given. In the case of Dhanna Lal v. Chittar Singh,58 the High Court of Madhya

Pradesh summarized the law relating to nuisance caused by noise pollution as follows:-

Constant noise, if abnormal or unusual, can be actionable nuisance if it interferes with

personal comfort.

The standard of comfort is actual local standard and not the ideal or absolute standards.

The right to commit a private nuisance can, in certain circumstances, be acquired either

by prescription or by the authority of a statute.

Actual and adequate relief would be granted if injunction as damages in monetary

terms cannot afford plaintiff’s adequate relief.

58 AIR 1959 M.P. 240.


(b) Criminal Law and Noise Pollution.-

1) Indian Penal Code- Provisions under Sec. 268 of the Indian Penal Code, 1860,

noise is actionable as “public nuisance” and thus there is a criminal liability of a

person relating to his illegal omission resulting in common injury, annoyance,

danger to public at large. People who by any offensive means corrupt the air or by

any means cause loud and continued noise and thereby cause injury or annoyance to

those dwelling in the neighborhood in respect of their health or comfort and

convenience or living are liable to prosecution for causing public nuisance. Noise

nuisance can also be punishable under the provisions of Sec. 290 of the code, which

prescribes a punishment, which may extend to two hundred rupees, for those cases

of nuisance not specifically covered under the Code. Neither the right to make

noise can be acquired by prescription nor can it be accepted as a defence to a charge

of nuisance.

In the case of Kirori Mal Bishamber Dayal v. State of Punjab,59 the learned High

Court, while expressing the opinion about nuisance of trade and business, held:-

Liberty to carry on any trade does not create any right to do so if trade or

bisiness desires another person of reasonable and comfortable use of his

property.

To determine whether a trade is nuisance or not can be determined only

after taking into consideration several factors.

Particular Trade or business may be lawful to start with but becomes

nuisance by reasons of changed circumstances such as growth of population.

Nuisance action under the penal code is a poor remedy as it is nominally punitive

rather than preventive or compensatory.

2) Criminal Procedure Code- Provisions under the Sec. 133 of the Criminal Procedure

Code, 1973 the Magistrate has the power to make conditional order requiring the

person causing nuisance including that of noise to remove such nuisance.

As such there is no direct provision to control noise pollution but chapter X, Part B

containing Section 133-143 and Part C containing section 144 provide effective and

speedy remedy for preventing and controlling public nuisance.

59 AIR 1958 Punjab 11.


In Dwarka Prasad v. B.K. Roy,60 the Calcutta High Court considered the problem

of noise pollution under section 133 of the Cr. P.C. in this case, the petitioner was

running ice-making machinery in a shop. The respondents, who were living next to

the place where the machine was running, alleged that the noise generated by

working of the machine constituted a public nuisance. However, the owner denied

the allegation. The Magistrate passed an order under section 133 restraining the

petitioner from working this machine for a certain period. The Court of Session

confirmed the said order. In the revision petition before the High Court it was held

that no nuisance existed and therefore, section 133 had no application because there

was no evidence to show the existence of nuisance and the evidence of some

witnesses was the evidence of opinion and therefore not admissible.

(c) Police Act, 1861 and Noise Control. - The Police Act, 1861 also deals with noise

pollution and punishment thereof. Under Sec. 30 of the Act, District Superintendent or

Assistant District Superintendent of Police are authorized to direct the conduct of all

assemblies and processions on public roads or in the public streets or

thoroughfares. They can prescribe the routes by which and the times at which such

processions may pass. Under the same section, the above-mentioned police offices are

also empowered to regulate the extent to which music may be used in the streets on

festivals and ceremonies.

Provisions Sec. 32 of the Act, (on conviction before a Magistrate), provides for a

penalty of a fine not exceeding two hundred rupees, for violation of the conditions of

any license for the use of music or for the conduct of assemblies and processions,

issued by the district Superintendent or Assistant District Superintendent of Police.

(d) Aircraft Act, 1934 and Noise Control. -The impact of civil aviation on the environment

is evident in the rising public concern regarding noise, which is most irritating and the

most responsible element for the rising opposition to further growth of aviation. The

concern over the increasing noise levels from aircrafts has been appreciated by the

world aviation community.

Under the Indian Aircraft Act, 1934 causing willful damage or injury is

actionable. Although there is no specific provision relating to control of noise pollution

from aircrafts but under the rule making powers confirmed by Sec. 8 (A) of Aircraft

Act, 1934 and its supersession of the Indian Aircrafts (Public Health) rules, 1946

60 AIR 1950 Cal. 349


Government can make rules to control noise pollution for safeguarding health. Noise

restriction regulations and safety regulations are incorporated in the Aircrafts Rules.

(e) Motor Vehicles Act and Noise Control. -The Motor Vehicles Act, 1939 under Sections.

20, 21j, 41, 68, 681, 70, 91 and 111A empowered the State Government to frame rules

regulating equipment and maintenance of motor vehicles and trailers. Without

prejudice to the generality of the foregoing powers, rules, under Sec. 70 may be made,

governing any of the following matters either generally in respect of motor vehicles or

trailers or in respect of motor vehicles or trailers of a particular class or in particular

circumstances, namely:

(i) The reduction of noise emitted or caused by vehicles;

(ii) Prohibiting the carrying of appliances likely to cause annoyance or danger;

(iii) The periodical testing and inspection of vehicles by prescribed authorities; and

(iv) The use of trailer with motor vehicles.

It is noteworthy that Motor Vehicles Rules made by various states do not contain any

effective control measures to control the noise pollution. To a certain extent, use of

'horns' and silencers is regulated by the rules. The Rules certainly are directed at

curbing the noise but despite their presence the menace and the open violation of the

Rules still persists due to inadvertence shown by the state in their effective

implementation.

The Motor Vehicles Act, 1939 has been repealed by the newly enacted Act of 1988.

(f) Factories Act, 1948 and Noise Control. -The Factories Act, 1948 does not contain a

specific provision of noise control while it has been found in a number of cases that

high intensities, high frequencies and intermittency of noise are the factor of annoyance

for the workers. Such situations not only cause physical and psychological damages

but also impair workers efficiency resulting into their giving low production and

causing dissatisfaction practically to all. Section 11 of the Factories Act, 1938 provides

protection from noise by making it obligatory on the part of an occupier for keeping

every factory clean and free from any drain, privy or other nuisance. The use of word

'nuisance' in Section 11 may include noise. Under section 89of the Act, noise induced

hearing loss is mentioned as a notifiable disease and it is the duty of manager and


medical practitioner to report it to the authorities if any worker contacts any such

disease.

(g) The Air (Prevention and Control of Pollution) Act, 1981 and Noise Control. -Prior to

the 1987 amendments to the Air Act, 1981, the Act did not include in its gamut the

regulation of noise pollution. But after the 1987 Amendments noise has been

recognized as an air pollutant. The amended Sec. 2 (a) now defines 'air pollutant' to

“mean any solid liquid or gaseous substance including noise present in the atmosphere

in such concentration as may be or tend to be injurious to human beings or other living

creatures or plants or property or environment”. Hence the 1987 Amendment to the Air

Act now specifically extends the provision of Air Act, including increased penalties

citizen's suits and the issuance of injunctions by Magistrates, to control noise pollution.

The Central and the State Boards now exercise the powers and functions under

Sections 16 and 17 of the Air Act, respectively with regard to the prevention and

control of noise pollution including the laying down of noise standards. In pursuance

of the powers conferred under Sec. 16, the Central Pollution Control Board has laid

down noise standards during the reporting years.

(h) Constitution of India and Noise Control. - Apart from that Art. 21 of the Constitution

of India, which guarantees right to life, which includes right to a healthy life61, the

Constitution enshrined the directive principles in Articles 48A and 51A (g) dealing

specifically with protection and improvement of environment. These are as under:

Article 51 A (g)-”to protect and improve the natural environment including forest,

lakes, rivers and wildlife and to have compassion for living creatures”.

Article 48A- “Protection and improvement of environment and safeguarding of forests

and wildlife- The State shall endeavor to protect and improve the environment and to

safeguard the forests and wildlife of the country.”

Article 19 (1) (g) provides the freedom to all citizens to practice any profession or to

carry any occupation, trade or business. But the said freedom is not absolute. No person

shall carry on any profession, occupation, trade or business if it causes nuisance,

including noise, to other persons or to public at large.

NOISE POLLUTION (REGULATION AND CONTROL) RULES 2000:

61 T. Damodhar Rao v. Municipal Corporation, Hyderabad, (AIR 1987 A.P. 171)


The Central Government, in exercise of the powers under sections 3(2), 6(2) and (1) and

25 of the Environment Protection Act, 1986, read with section 5 of the Environment

Protection Rules, 1986, enacted the Noise Pollution (Regulation and Control) Rules, 2000,

which came into force on July, 14, 2000.

Objective- The increasing noise levels in public places from various sources such as

industrial activities, generator sets, loudspeakers, etc have disastrous impact on human

health and psychological well being of the people. Therefore, it is considered necessary to

regulate and control noise pollution.

Rule 3- Ambient Air Quality Standards in Respect of Noise for Different Areas- These have

been specifies in the schedule as follow:

Industrial Area- 75 db (daytime), 70db (night time)

Commercial Area- 65 db (daytime), 55db (night time)

Residential Area- 55db (daytime), 45db (night time)

Silence Zone- 50db (daytime), 40db (night time).

Daytime- 6am to 9pm; Night time- 9pm to 6 am.

Silence zone is an area comprising not less than 100 mts around hospital,

educational institution, courts, religious places, or any other area declared by

competent authority.

The state has the duty to categorize silence zones areas.

Rule 4- Responsibility for Enforcing Noise Pollution Control Measure- State Pollution

Control Board in consultation with Central Government may compile, collect, publish

technical and statistical data relating to noise pollution and devise measures to check it.

Rule 5- Restriction on Use of Loudspeakers/Public Address System- a loudspeaker can only

be used after obtaining written permission from authority. No loudspeakers can be used at

night except in closed premises for communication like conferences, etc. But state

Government may permit the use at night during cultural or festival occasions, but not

exceeding 15 days in one calendar year.

Rule 7- Complaints to Be Made to Authorities- if noise levels exceed ambient noise

standards by 10db or more in any area, any person can make a complaint to the authority.


Rule 8- Power to Prohibit, etc Continuation of Music Sound or Noise- If the authorities are

satisfied that it in necessary to give directions in order to give directions in order to prevent,

annoyance, disturbance, discomfort and injury or risk of annoyance, disturbance discomfort

and injury, may issue written directions to regulate and control noise pollution.

JUDICIAL APPROACH-

Public Interest Litigation for combating Noise Pollution and ensuring compliance with

permissible noise levels have come from 1950’s but it is only till recent years that courts

have delivered judgments which are pro active as well as progressive.

Way back in 1952, the Bombay High Court, in State of Bombay v Narasu Appa Mali62,

asked authorities to regulate the use of loudspeakers during night when the Ganesh and

Navratri festivals were being celebrated. The Court ordered the strict implementation of

Environmental Acts, ruling that the means of celebration of festivals must not disturb the

peace and tranquility of the neighborhood.

In Dhanna Lal v. Thakur Chittar Singh,63the plaintiff’s house was at a distance of8-9 feet

from the flour-mill belonging to the defendant. The plaintiff alleged that the mill caused

unreasonable and abnormal sounds, causing the occupants of the house a lot of trouble and

thus amounted to nuisance. The defendant, however, took the defence that he had sought

permission and license from the Municipal Committee and thus the noise, however

unreasonable, does not amount to actionable claim. The High court clarifying the

distinction between Public and Private Nuisance held that the reasonable noise comes under

private nuisance and to be actionable it must be a real interference with the comfort or

convenience of the living according to the standards of average man.

In GIDC Housing Association v. Gujarat64, a writ petition filed by the residents of a

housing association complaining about noise pollution caused by an iron and steel factory,

the Gujarat High Court considered ‘who came first’. According to this rule a person who

goes to a place of nuisance cannot complain unless the nuisance began afterward. Since the

housing colony was within the industrial estate and was established after the factory was

62 AIR 1952 Bom 82.

63 Supra note 4.

64 AIR 1997 Guj 221


functioning, the court held that the residents had come to the place of nuisance, hence

cannot complain.

In P A Jacob v. S. V. Kottayam65, the petitioner sought permission to use loudspeakers at a

public meeting where he proposed to denounce the practice of orthodox Christian Sects

which barred its members from marrying outside denomination. When the sub-inspector of

police withdrew the permission apprehending that petitioner’s view may cause public

disorder, the petitioner approached Kerala High Court claiming that his fundamental right

to speech and expression was violated. Court held:

The right under article 19(1)(a) does not include right to use loud speakers or sound

amplifiers.

Right to speech implies right of silence and it implies freedom to not to listen and

not to force to listen.

Right to life comprehends right to safe and healthy environment, including safe air

quality and safe from noise.

In Church of God (Full Gospel) in India v. KKR Majestic Colony Welfare Association and

others66, the appellant was the Church of God (Full Gospel) (Church for short) located at

K.K.R. Nagar, Madhavaram High Road, Chennai. It has a prayer hall for the Pentecostal

Christians and is provided with musical instruments such as drum set, triple gango, guitar

etc. Respondent, KKR Majestic Colony Welfare Association (Welfare Association for

short) made a complaint to the Tamil nadu Pollution Control Board (hereinafter referred to

as the Board) stating therein that prayers in the Church were recited by using loudspeakers,

drums and other sound producing instruments which caused noise pollution thereby

disturbing and causing nuisance to the normal day life of the residents of the said colony.

In the High Court, it was contended by learned counsel for the Church that the petition was

filed with an oblique motive in order to prevent a religious minority institution from

pursuing its religious activities and the Court cannot issue any direction to prevent the

Church from practicing its religious beliefs. It was also submitted that the noise pollution

was due to plying of vehicles and not due to use of loudspeakers, etc.

65 AIR 1993 Ker 1

66 AIR 2000 SCC 282


Lower Court held that the welfare association was justified in its demands. The Court

directed the SP as well as the Inspector to take necessary steps to cut down on noise

pollution by taking action against vehicles that caused noise and to keep the speakers of the

Church at a lower level.

Impugned by this order the Church moved to the Supreme Court. After considering the

various contentions, the Court observed that no rights in an organized society can be

absolute. Enjoyment of ones rights must be consistent with the enjoyment of rights also by

others. Further, it is to be stated that because of urbanization or industrialization the noise

pollution may in some area of a city/town might be exceeding permissible limits prescribed

under the rules, but that would not be a ground for permitting others to increase the same by

beating of drums or by use of voice amplifiers, loudspeakers or by such other musical

instruments and, therefore, rules prescribing reasonable restrictions including the rules for

the use of loudspeakers and voice amplifiers framed under the Madras Town Nuisance Act,

1889 and also the Noise Pollution (Regulation and Control) Rules, 2000 are required to be

enforced . Hence, the High Court has rightly directed implementation of the same. In the

result, the appeal was dismissed.

In Re: Noise Pollution case67, one Anil K. Mittal, an engineer by profession moving the

Court pro bono public. The immediate provocation for filing the petition was that a 13 year

old girl was a victim of rape. Her cries for help sunk and went unheard due to blaring noise

of music over loudspeaker in the neighborhood. The victim girl, later in the evening, set

herself ablaze and died of 100% burn injuries. The petition complains of noise created by

the use of the loudspeakers being used in religious performances or singing bhajans and the

like in busy commercial localities on the days of weekly offs. Best quality hi-fi audio

systems are used. Open space, meant for use by the schools in the locality, is let out for use

in marriage functions and parties wherein merry making goes on with hi-fi amplifiers and

loudspeakers without any regard to timings. Modern residents of the locality organize

terrace parties for socializing and use high capacity stereo systems in abundance. The

petitioner sought to invoke the writ jurisdiction of this Court so that there may not be

victims of noise pollution in future.

In this case, the Supreme Court issued the following directions:-

67 Supra note 2.


i. The Department of Explosives may divide the firecrackers into two categories-

sound emitting and colour/light emitting firecrackers.

ii. There shall be complete ban on bursting firecrackers between 10pm and 6 am.

iii. The noise level at the boundary of the Public place, where loudspeakers are being

used shall not exceed 10 dB above the ambient noise standards or 75 dB, whichever

is less.

iv. No ne shall beat a drum or Tom-tom or blow a trumpet or beat or sound any

instrument or use any sound amplifier at night except in public emergency.

v. The peripheral noise level of privately owned sound system shall not exceed by

more than 5 dB than the ambient air quality standards specified for the area.

vi. No horns shall be allowed to use at night in residential area, except in exceptional

circumstances.

vii. There is need for creating general awareness towards the hazardous effects of noise

pollution. For this purpose, the need to add a suitable chapter in the textbooks of

children to sensitize them, role of a Resident Welfare Association and service clubs,

and special public awareness campaigns in anticipation of festivals, events and

ceremonial occasions has been emphasized.


BIBLIOGRAPHY

BOOKS REFERRED

1) Jain, Ashok K., Law and Environment, 3rd Edn. (2005).2) Khitoliya, R.K., Environment Protection and the Law (2009).3) Nishtha Jaswal & Paramjit S. Jaswal, Environmental Law, 3rd Edn. (2013).4) Rosencranz, Armin & Divan, Shyam, ‘Environmental Law and Policy in India’, OXFORD

UNIVERSITY PRESS, 2nd Edn, New Delhi, 2001.5) The Laws of Manu (Wendy Doniger and Brian Smith Trans., 1991).

ARTICLE/JOURNALS/NEWS-ITEMS REFERRED

1) Cullet, Philippe, Water Law in India: Overview of Existing Framework and Proposed Reforms, INTERNATIONAL ENVIRONMENTAL LAW RESEARCH CENTRE, Working Paper (2007), http://www.ielrc.org/content/w0701.pdf

2) Kluger, Jeffery and Dorfman, Andera. ‘The Challenge We Face”, TIME, September 2, 2002.3) Krishna Iyer, Environmental Pollution and the Law, 1984 at p. 95 quoted in Chaterjee, Benimadhab,

‘Implementation problems and Perspectives’, 2002.4) Prasoon Agrawal, Critical Analysis of Water (Prevention and Control) Act, 1974, November, 2012,

INTERNATIONAL INDEXED & REFERRED RESEARCH JOURNAL, http://www.ssmrae.com/admin/images/54c835cf71cc4c76ce5a2b8691a21ccf.pdfHarish C. Sharma, Pollution Control Acts and Regulations of India, PETROLEUM BAZAAR, http://www.petroleumbazaar.com/Admin%5CActsandControls%5CPollution_control_act.pdf

5) Pushpa Kumar, CPREEC, Environment Law in India, Part III, C.P.R. ENVIRONMENT EDUCATION CENTRE, http://www.cpreec.org/143.htm

6) S.P.Sathe opinion that the Indian parliaments have stopped legislating in the last two decades. S.P.Sathe, “Extracts from Judicial Activism in India”, Included in THE LEGAL THEORY COURSE MATERIAL, Complied by Prof.Krishna Deva Rao (for internal circulation) GNLU, (February 2006).

7) The Energy and esource Institute, Review of the Existing Environmental Norms Concerning Power Sector, TERI Report No. 99 pg. 64, CENTRAL ELECRICITY REGULATORY COMMISSION, http://cercind.gov.in/chapter1.pdf

8) United Nations Development Programme, Human Development Report 2006 – Beyond Scarcity: Power, Poverty and the Global Water Crisis 1 (New York: UNDP, 2006).

9) Upendra Baxi has commented on the Indian Supreme Court as the most powerful court of the world. Upendra Baxi, “The Travils of Stare Decisis in India”, Butterworths, Included in the Legal Theory Course Material, Compiled by Prof.Krishna Deva Rao (for internal circulation) GNLU, (Feburary 2006)

10) Usha, Water Pollution-Judicial Response, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=955227Varma, Vikas, Legal Control of Water Pollution in India (January 2006),

http://works.bepress.com/vikasvarma/2


http://works.bepress.com/vikasvarma/2

various statues for protection of environment

Documents

Transcript of various statues for protection of environment