K.V,.R.Murthy *[1]

Though  industrialisation is considered as the 'yardstick for measuring the progress and civilisation of a country, it should not be forgotten that it is a source of environmental degradation.  To strike a workable compromise between the .need for industrial progress and healthy eco-system,  Various legislations have been introduced by nations which are environmentally conscious.  India is not an exception Indian parliament has made a few legislations to check,  prevent and control environmental pollution viz., Water (prevention and Control of Pollution) Act, 1974; Air (Preventions and Control of Pollution) Act, 1901; and Environment (Protection) Act, 1906.  Although these legislations prophecies to proscribe acts of environmental depredation generally, it in fact falls short of this goal, for the preventive aspect did not receive due attention.  This paper tries to argue that notwithstanding the emergency power[2] given to the Boards under the existing pollution control legislations which are limited to undoing the harm already done, the Boards are completely powerless in arresting apprehended pollution.

Air Act and Water Act, as originally enacted, contain no provision conferring power on the Boards enabling them to take necessary action against the person causing pollution in excess of prescribed standards. In the absence of a statutory prescription conferring such power these Boards were unable to restrain the person causing such pollution. Warning letters inducing compliance may not give positive results in all the cases. In such situations, these Boards had only two options, either to bring this matter before the court for its decision or to give up. More often, these Boards were inclined not to approach the court because of incidental difficulties involved therein. Establishing the mens rea on the part of the polluter, producing substantial evidence to prove the guilt, costs and the time involved are the factors contributed to the Board’s apathy.

Realizing these difficulties and with a view to removing the handicaps hitherto experienced by the Boards, Air Act and Water Act were amended in 1987 and 1980 respectively. Even before these amendments, as if the existing legislations were not enough to control environmental hazards the Central Government came forthwith Environment (Protection) Act, 1906.  The Act took a holistic conception of the entire gamut of environmental protection[3] Following the innovative changes in the Environment (Protection) Act, the Water Act and the Air Act were subsequently amended. Boards are now empowered to issue binding directions to any person, officer or authority[4] . The power to issue directions include the power to direct-

(a) the closure, prohibition or regulation of any industry, operation or process, or

(b) the stoppage or regulation of supply of . electricity, water or any other service[5]

Undoubtedly, this power to give directions serve as a potent weapon in the arsenal of these Boards in controlling pollution.  However, when it comes to the preventive aspect it is doubtful whether this power can be of any assistance in taking immediate measures with a view to preventing the possible pollution,

The Board's power to issue binding directions is not an absolute power as it has to be exercised in' accordance with the provisions of the enactment.  These enactment's expressly laid down that these powers of the Boards should be exercised 'subject to the provisions of the Act*.  These words 'subject to the provisions of the Act* raise some questions.  It suggests that Boards cannot use this power in all circumstances.  It is circumscribed by other provisions of the enactment.  If any other provision of the enactment requires the Boards to follow a different procedure, the Board has to follow that procedure only.  Doth Air Act and Water Act provides a procedure to be fallowed by the Boards in cases of apprehended pollution[6] .  In cases of "apprehended : pollution these Boards have to move the court not inferior to that of presidency Magistrate or Magistrate of First Class for an order restraining  the person whose activity is likely to result in or cause pollution .  It is necessary that Board should obtain the court's order authorising it for taking necessary preventive or remedial measures. Now the question is, if the Board fails to obtain the court's order, is it possible for the Boards to issue directions, suo motu against persons whose activities ,"in its opinion,  may likely cause pollution or even to take preventive measures?

This, it is submitted, is not possible within the frame-work of the enactments, as the Boards hands are tied by some procedural technicalities'.  We, therefore, suggest that these technicalities be eschewed, in order to ensure effective, efficient and economic functioning of the Board regarding apprehended pollution.

 The requirement that Boards should first approach the court in case of apprehended pollution taints the reputation of the Boards as a self contained and compact expertised  body entrusted with pollution control work.  This obvious fact would effect the psyche of the Board consequently hampering their individuality in its decision-making.  Against this contention it has been argued by various academics that  the judicial mind of the court will check the arbitrary use of this enormous power conferred on the Board.  But this may not be true since the Board as it is originally envisaged is a compact, expert body having vast knowledge of the. technicalities involved in the environmental protection, a knowledge which may be quite lacking with the courts.

As we are aware,  judicial adjudicatory process is a time consuming and dilatory exercise.  Obtaining the order from the court before checking the apprehended pollution may ultimately defect the purpose of the Act and the Board’s action would then be a cry in the wilderness.

Therefore, it is necessary that the Board should be given the power to take immediate action without waiting for the court's order.  It will  e more functionally dynamic if the Board is given the direct central to check the apprehended pollution by issuing binding

directions, orders or instruction.