Download 127 CHAPTER VI ROLE OF GROUND WATER IN PROVIDING

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CHAPTER VI
ROLE OF GROUND WATER IN PROVIDING SAFE DRINKING WATER
Introduction
In India, nearly 80% of rural water supply and 50% of the urban industrial water
supply demand is met from ground water resources.1Ground water is formed when rain
water percolates through soil and enters underground reservoirs called aquifers. Many
areas rely on ground water for their drinking water supply. If aquifers become polluted
for any reason, the ground water may become undrinkable, and nearby surface water can
also get contaminated as polluted ground water migrates out of the aquifer.2Water is the
most essential commodity for all living beings on earth and is inevitable for numerous
economic activities. While advancement of modern civilization has greater needs for
using more and more water in cultivation, hectic industrial production and increased
domestic, urban and commercial activities, new techniques have been adopted for
effectively abstracting ground water from very deeper levels and in very huge quantity.
Easiness to drill, ability to extract water from deeper levels and no problem of constant
maintenance to keep the sides from collapsing have made a big rush for borewells despite
the considerable cost of borewell and submersible pump and also the risk of failure to
locate the aquifer.3 As a result, the demand for ground water is ever increasing in the
present century. The ground water is increasingly polluted by seepages, contamination of
soil, hazardous wastes and chemicals and by continuous over extraction and exploitation
of ground water resources.4
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The pursuit of water rights is in fact the pursuit of a human right.5 The laws
dealing with ground water rights depends on the corpus juris of water law which is
grounded on water rights.6
Under the
Constitution, the legislative competence over water supply,
irrigation and canals, drainage, embankments, water storage and water power is vested in
the states.7The states have exclusive power to regulate ground water. While some
northern states experience it’s under utilization, most southern states have had bitter
experiences of unsustainable use and the adverse consequence thereof.8
In cases where a state has not enacted laws on ground water management, it
is the common law read with the Indian Easements Act, 1882 which prevails9 in adopting
the land ownership doctrine of water rights approach, the country is not conforming to
the constitutional goals. With the development of new technologies for the extraction of
ground water, there arise great difficulties in applying the older law. Not only the
principle of sustainable development and distributive justice are sidelined, but the
right to safe drinking water, which is an aspect of right to life, is also
sidelined.10Moreover, privatization and commercialization of ground water have shown
clear and considerable tendency of over-exploitation because the withdrawal is not
confined to the owner’s domestic use. This is mainly because our country is following the
common law approach of land ownership doctrine11in the sphere of ground water rights.
The doctrine would imply that ground water belongs to the owner of the land, 12but in the
language of the law, the term ‘land’ includes water.13In fact ground water is recognized
as a chattel attached to the land .14
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Further common law contemplates a distinction between underground
percolating water15and underground running stream.16The general rule is that percolating
water constitute the part and parcel of the land in which they are found, and accordingly,
belongs to the owner of such land. There is a right of use as it passes, but there is no
ownership in the absolute sense.
17
It belongs to the overlying owner in a limited sense,
that is, he has the unqualified right to capture and control it in the quantity desired and
with an immunity from liability to his neighbours for doing so.
As a consequence , one has no right of action against another, who by sinking
wells on his own land draws off, and appropriates underground percolating water which
would otherwise have flowed into the former’s well or stream. This is when an act is
done with improper or malice motive, a case of damnum absque injuria
18
will arises.
Thus as far as percolating water is concerned, every land owner through whose land
water is percolating has an absolute right to use the same and can extract as much as he
desires leaving his neighbour’s well dry though the latter was the prior user of such
water. The common law principle is recognized by the Indian Easement Act. Law confers
riparian rights when ever the course of the stream is known and defined and it does not
matter whether the stream is on the surface of the land or underground. Thus as far as the
ground water is concerned the riparian doctrine applies and every owner of the land
through which the water flows has the full right to use it.
Under the archaic principle it may seem that only landowners can enjoy ground
water and the landless and the tribals who often have only community rights over land
may enjoy any right over groundwater. The common law rule has been carried to excess
in protecting the land owner in the use of waters underlying the land.19
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Accordingly, taking into account the dangers posed by the colonial principle
and in the light of water being a basic human right, 20 the same should find no place in
modern legal system. To sustain life it is imperative that all have an equal access to water
resources. Accordingly, the need of the hour is to build a new regime of ground water
rights so as to provide a basis on which laws seeking to regulate and control the
exploitation of ground water resources are to rest.
The severity of the problem demands ruthless application of legal control in
ground water management. While strict monitoring of ground water abstraction separates
water right from the right of land ownerships, the system of equitable distribution of
water resource enables attainment of social and economic justice in water use. To
understand practicability, sustainability and efficiency of the new legal concepts in the
sphere of water management, it is appropriate here to have a comparative study of legal
position in U.K and United States.
In U.K, according to the land ownership doctrine, every land owner through
whose land the water is percolating has an absolute right in the same.21Water Act, 1945,
was enacted containing provisions controlling the abstraction of underground water22.
Exemptions are provided in cases of abstraction of water for domestic purpose and
experimental boring. In 1963 Water Resource Act was enacted conferring full state
ownership on ground water. It incorporated the system of licensing to ensure that the use
of reasonable, beneficial and did not lessen the supply of prior appropriators.23Similarly,
wells up to 20m depth are exempt from permits as it is believed that the water in the
wells up to that depth is easily replenished through natural firms.
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In the United States, as the regulation of water right is a state subject, different
legal concepts may be found in different states depending upon rainfall, which recharges
the underground water resources. In seventeen states of arid climate in the Western
America, prior appropriation doctrine is followed either with or without modification for
reasonable use.24The basic concept of the doctrine of prior appropriation is that the land
owner has no inherent rights to use these sources is based on priority in time of beneficial
use, as compared to others using the same source and may be lost after the use ceases. In
brief, it believes in ‘prior in time, prior in right’. However, prior appropriation doctrine is
recently clubbed with priority of purposes of water consumption. According to the rule,
new appropriation from same water resource is permissible if it is for the superior
use.25In Forebell v. The City of New York 26it was held that it was not a reasonable use to
take ground water from beneath land and sell it for irrigation of distant lands to the
detriment of adjoining land over laying the water bearing beds.
Environmental aspects
Water has a natural level underground known as the water table. It droughts the
water table drops, in heavy rain it raises and is drained away by rivers into the sea. So,
there is a natural reservoir of water under our feet.27Thus water is an inevitable part of
environment question naturally arises whether environmental rights could preserve
ground water.
Groundwater, the only source of water which is stable than any other source is
increasingly coming under threat because of greater demand, pollution and
mismanagement. Excessive withdrawals of groundwater, pollution and mismanagement
can deprive future generation of these natural resources. It might lead to drying up of
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wells and land subsidence. It is often believed that groundwater is relatively free from
pollutants and may be used for drinking, domestic and industrial purposes. But once an
aquifer gets contaminated, remedial measures may be extensive and even impossible,
because ground water is invisible and danger to it is often disregarded.
One of the most important causes for ground water pollution is unplanned
development without adequate attention to sewage and waste disposal. With increase of
human and life stock population, the quantum of waste produced increases tremendously.
The estimated annual waste production from these sources is around 2000 million tons.
Unsystematic use of synthetic fertilizers coupled with improper water management
practices have resulted in deterioration of ground water quality in many parts of the
country. In case of industrial units, effluent in most areas are discharged into pits open
ground thus allowing to move to low lying depressions resulting in groundwater
pollution.28Thus, pollution of groundwater is a serious environmental problem which
calls for immediate attention of planners.
.
Once the ground water becomes polluted, it takes years to remove or even dilute
the pollutant because the natural dilution is slow. Artificial flushing is expensive and
treatment is impracticable.29Ozone holes might be sewn; global warming may be
controlled, but damaged ground water could never be rectified.30In view of the severity of
the problem the existing laws need a fresh look. It is essential to develop a new approach
towards ground water abstraction taking into account the environmental aspects. 31
As ground water is the primary source of water for domestic use in rural areas,
the rights should be seriously dealt with. The human right recognition to water helps in
the conservation of natural resources. An approach would help to clarify that in ground
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water management; control of over extraction of the natural resource should be
preserved. In the context of acute water crisis and in equities faced by the nation in the
matter of ground water allocation, the same should belong to the public at large, who in
turn entrust it to the state for safe and proper protection.32The state should be treated only
as a trustee and has to use the trust property for the benefit of the beneficiary, viz., the
general Public.33Thus ground water resources are to be vest with the state with the same
being conditioned by the doctrine of public trust.34 The public trust doctrine ensures
greatest happiness to greatest number of people.
Laws on Ground Water in India
Even in England, the country of its origin, land ownership doctrine has been
discarded. In USA, which follows more or less the common law, it has been drastically
modified to meet the compelling circumstances. However, it is rather unfortunate that
change has occurred in India. India lacks comprehensive legislative measures to regulate
and control ground water abstraction. A radical reformation of law is imperative to make
economic management of ground water effective.
Considering the need for regulating abstraction of ground water and enabling
equitable use of ground water in 1970, the Ministry of Irrigation, Government of India,
prepared a model ground water (Control and Regulation) Bill for the guidance of State
legislature36, Under the Constitution the legislative entry, ‘water, that is to say, water
suppliers, irrigation and canals, drainage, water storage and water power…’is conferred
upon the states as per entry 17, List II of the VII Schedule. Since law relating to water is
under the exclusive domain of states, the Union Government can only guide and direct.
The 1970 Bill empowered the ground water, if state government to establish a ground
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water authority. The government can notify an authority for regulating extractions or use
of both of it is of the opinion that it is expedient to so regulate in the interest of the
general public. Existing ground water owners are also required to obtain permission for
extraction of ground water from the authority. The authority must look into the purpose
which the water is sought to be used and the availability of water before granting
permission. The author is vested with discretionary powers.37 The main defect of the Bill
was the lack of an integrated approach to the problem of ground water development and
management. In 1976, State of Gujarat passed a law providing for the licensing of wells
by amending the Bombay Irrigation Act, 1879. The main strategy of the Model Bill 1970
was the introduction of the licensing system by the ground water authority, which would
notify any area for the ground water control. The State of Gujarat adopted the Bill, 1970
with some modifications. In order to enable the ground water for drinking and house hold
purposes and for irrigating small farms, it exempted wells up to the depth of 45m from
the licence requirement.
Later in 1976, the Ministry of Irrigation Government of India prepared the
Model Irrigation Bill, in collaboration with the Indian Law Institute.38Though the Bill
made some random references to control and management abstraction, it was primarily
aimed at regulating use and abstraction of ground water in irrigation programmes. It is
distressing to find that the bill has nothing to do with the general regulation of excessive
withdrawal of ground water. quality due to industrial, mining and oil refinery activities.
Permit system was made compulsory for regulating the sinking of wells.
A fresh look on water policy was adopted in 1987 by the high powered
committee consisting of Chief Ministers and concerned Ministers under the chairmanship
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of late Shri. Rajiv Gandhi.39 The policy adopted by the committee spoke of the need for
the national use of ground water resources. According to the policy statement,
exploitation of ground water should be so regulated so as not to exceed the recharge
possibilities and to ensure social equality.
The Model Bill 1992 envisaged establishment of a ground water authority by
states, which was to be a multimember bureaucratic and technocratic body. The authority
was to recommend to the state governments in matters of notification of any area for the
control and regulation of ground water extraction if it is of the public interest. The
authority has the power to cancel a permit, if it was obtained by misrepresentation.
Persons carrying on the business of sinking of wells were obligated to register by
furnishing necessary information. Penal provisions against the wrong doers are also
mentioned in the bill.
The Model Bill, 1996 introduced notable changes like express provisions to
bring the authority under the control of the government. Before issuing permit, the
authority was to consider additional factors such as spacing of ground water resources,
provision for appeal against the decision of the authority etc.
The draft Ground Water (Development and Protection) Rules, 1998 proposed
under the Environmental Protection Act, 1986 had as its avowed object the regulation of
indiscriminate boring and withdrawal of ground water in the country and its protection
and preservation. It contemplated the constitution of the Central ground water authority
consisting of a chairperson and its functions included notifying areas for the protection
and conservation of ground water pollution and depletion, regulating construction of
borewells, recommending norms for ground water allocation for various purposes and
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prioritizing them. A distinct feature of the draft rules was that it aimed to deal with the
problem of deterioration of ground water due to industrial, mining and oil refinery
activities. Permit system was made compulsory for regulating and sinking of wells.
In 2001, a revised draft, viz, Ground water (Development, Protection and Management)
Rules, 2001 was framed to improvise the 1998 rules. An important feature was that it
avoided blanket provision for bringing the whole territory of India under its application
and provided that the rules shall apply to an area, process or activity declared as ‘notified’
from time to time anywhere in the country.40 The 2005 draft rule followed the approach
of command and control40a.
The National Water Policy, 2002 emphasized importance to the concept of
ground water management and conservation.41
While accessing these model bills, there are following shortcomings:1. None of the draft rules has adopted the policy of declaring ground water as a
state subject.
2. Except in the Gujarat Act, none of the other schemes has made provisions
relating to controlling of wastage of water and confining the purpose of uses.
3. No provision is made in any of the measures to obligate the ground water
authority or the state to launch programmes for promoting ground water resources
by various cheap and easy methods of recharge during surplus.
4. None of the measures treat the problem of management of ground water along
with that of surplus water.
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5. The legislative measures have made no effort in attaining the goal of equitable
distribution of means of production so as to subserve the common good of the
country.
Judicial response
Judicial activism on the right to life under Art.21 of the Constitution has shown
some potentiality to check exploitation of ground water in extreme cases like salination
and depletion of ground water.
The Kerala High Court in F.K.Hussain v. Union of India42 held that, “the right
to sweet water and the right to free air, are attributes of right to life, for, these are the
basic elements which sustain life itself.” The court acted upon the report of an expert
body appointed by it and directed a ceiling on the withdrawal, application of safe guard
measures, harvesting of rain water and salination of water for conserving the ground
water resource.
The Kerala High Court in Attakoya Thangal v. Union of India43controlled
excessive withdrawal of ground water by the rich farmers in Lakshadweep.44This case is
indeed remarkable for the stress it laid on the quality management since it recognized the
need to maintain the quality of water in its pristine form.45The switch over from ground
water right to a facet of right to life is a significant judicial contribution.
In Puttappa Talwar v. Deputy Commissioner Dharwad
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Bharuka J., ruled
that right to life under Art.21 included the right to dig wells for the purpose of drawing
ground water either for drinking or cultivation and the right could be regulated only by
law and not by administrative authorities.
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In Venkatagiriappa v. Karnataka Electricity Board
47
the court held that
right to life could be held to include right to have water for drinking purposes without
which right to life could be enjoyed at all. The right to have sub soil water for irrigation
and business purposes may at the most amount to the right conferred under Art.300A.48
The Supreme Court in S.Jaganath v. Union of India 49ordered the closure of
shrimp farms established in the coastal zone or which restored to withdrawal of ground
water for aqua culture. This meant that the right to ground water for commercial purposes
could be claimed as a part of right to life.
A leading case with regard to ground water pollution is Indian Council for
Enviro Legal Action v. Union of India 50popularly known as Bichhari case, which in fact
opened new vistas as far as developing water quality rights in ground water were
concerned. Justice Jeevan Reddy while delivering the judgment, held that the polluting
industries were absolutely liable to compensate the harm caused to villagers in the
affected area and to the under ground water. The Polluter Pays Principle was accepted as
a universally sound principle.
In the matter of conservation of ground water, M.C.Mehta v. Union of
India51 is a land mark decision. Here the falling levels of ground water (from 4m to 8m)
in Delhi were brought to the notice of the apex court and appropriate remedy was sought.
The Court asked an NGO, NEERI to investigate and report. The latter recommended (1).
Establishing a Central Water Resource Management for coordination and implementation
of activities on ground water conservation; (2). Preparation of medium and long term
national use plans of ground water in relation to agriculture, human settlement and
industrial establishments; (3). Periodical review of ground water and surface water levels
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and quality; (4). Ensuring minimum flow in rivers to protect vital ecological interests;
(5). Increased application of traditional knowledge and methods of water conservation;
(6). Protecting and augmenting natural and man made wetlands; (7). Use of rain water
harvesting methods; and (8). Afforestation in the catchment areas with a target of 33%
forest cover.
Acting on this the Court directed the Union Government to constitute a
central ground water board and to legally regulate indiscriminate boring and withdrawal
of ground water in the country. However, the legislative incompetence of the Union to
bring a national law on the subject coupled with inaction and hesitations on the part of
states have obstructed the growth of law in the area.
The aforesaid discussion reveals the fact that though our law relating to
ground water rights is traceable to the common law principles; the present position has to
be seen in the background of contributions made by the judiciary, which has supplied
new dimension to ground water rights. From the Indian Easements Act, 1882 to the draft
National Water policy, 2012 nothing has been specially done to deal with the ground
water rights. Even the Constitution has failed to mention ‘ground water’ in the legislative
lists. This forced the judiciary to step in through the instrumentality of Art.21 to give
shape to the new water rights jurisprudence.
Position in the State of Kerala
Kerala is a lush green south western state, meaningfully termed as God’s own
country. It receives a good amount of monsoon and is endowed with thick forests,
plantations and a number of rivers, backwaters and lakes. Over the year’s
industrialization, urbanization and massive use of ground water for soft drink industries
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have posed serious problems for ground water management. The common law principles
read with the Easement Act were found to be inadequate.
Though piped water schemes had started in Kerala way back in 1914, till date
only 54% of the rural population and 79 % of the urban population have been provided
with the same52. In fact the percentage or rural population covered by water supply
schemes is much lower than the coverage in most other Indian states. The time has
reached to examine whether the much acclaimed democratic decentralization experiment
initiated in Kerala had any impact on ground water conservation and management
especially in the light of the overwhelming rural populace depending exclusively on
ground water for their basic needs.
After the enactment of the 73rd Amendment of the Constitution, creation of
local self - governments acquired a mandatory character, with states required to pass new
legislation. Like most states, Kerala also went in for a comprehensive enactment to
facilitate decentralization, so as to crystallize the Gandhian idea of gramaswaraj. With the
enactment of Kerala Panchayati Raj Act, 1994 all major developmental activities have
been earmarked as responsibilities of panchayati raj institutions.53 In order to achieve the
same, the grama sabha, the fourth tier of decentralized power structure was converted
into pulsating institution with freedom to formulate and implement local level need based
developmental programmes. Drinking water supply schemes have been identified as most
important sector for initiating schemes under the decentralized planning.
Till the commencement of the people’s initiative, the Kerala Water Authority
(KWA) was the sole agency for execution of water supply schemes throughout Kerala.
But it was not found to be fruitful. Accordingly, local bodies were empowered to take up
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small water supply schemes covering a single panchayat with the technical assistance of
KWA54.
Though Section 218(1) of the Kerala Panchayati Raj Act, 1994 vests all public
water courses including those used by the public not being private property in the village
panchayat, the panchayats have not played any significant role in the conservation and
management . This does not mean that panchayats have not done anything in this regard.
Though they have made significant contributions with regard to rain water harvesting and
implementation of piped water supply schemes, thus providing some sort of relief to the
drinking water problems of the people, the approach with regard to water conservation
and management particularly that of ground water was far from satisfactory. However,
piped water supply failed to deliver of the trend turned to tapping ground water.55 This
becomes evident when one examines the physical achievements attained by the
panchayats during the annual plans from 1997-2000 under the ninth plan during which
32, 503 wells were dug.56 However, panchayats have not played any significant role in
ground water conservation. This may be so because none of the powers conferred on the
panchayats by virtue of the relevant rules have any direct bearing on ground water
conservation. Perhaps the sole exception is Rule of the Kerala Panchayat Raj (Public or
Private Water springs, Ponds, Wells and other Waterways Regulation of Use and
Prohibition) Rules, 1996.57
Again it is the panchayat which is empowered to deal with the burial of dead
bodies by virtue of the Kerala Panchayati Raj (Burial and Burning Grounds) Rules,
199858, and the Kerala Panchayat Raj (Burial of Unclaimed corpses and Carcasses)
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Rules, 1996. Unfortunately, the rules are silent about the harmful effects which
unscientific disposal of bodies can pose on ground water.59
Though panchayats have power for solid waste disposal the rules fail to take into
account the important of leaching on ground water caused by such wastes. Thus it
becomes clear that these rules are insufficient as they only peripherally deal with the
issues of ground water management and conservation.
Kerala’s experiment with democratic decentralization through people’s
planning has been hailed as an ideal model in developmental aspects. However, one has
to concede that it failed in water conservation especially that of ground water as the
campaign gave priority to augmenting piped water supply in rural areas. This is
attributable to the lack of vision of the initiators of the campaign who failed to appreciate
the positive role that panchayats could play in ground water conservation. In fact the
Kerala Ground Water (Control and Regulation) Act, 2002 has failed to assign the
panchayats any role in ground water conservation and management. This is a serious
lacuna of the Act, and is to be remedied. Hence it is imperative that the prime importance
be given in generating public awareness on the need to conserve and manage ground
water.
The Kerala Ground Water (Control and Regulation) Act, 2002
Where water is to be used for various purposes, dependence on ground water
has increased in the state nowadays. Studies in this regard show that excessive
consumption has been the reason for regular lowering of ground water level in certain
areas of the state. Therefore, the Government was satisfied that it is necessary to protect
ground water and regulate its exploitation and consumption. In addition to this, the
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Central Government has pointed out the necessity of considering seriously about
legislation by state governments for regulation of excessive consumption of ground
water.
In these circumstances, the Government considered it necessary to enact a
special legislation to protect ground water and for regulation and control of its
exploitation and consumption. Thus the Kerala Ground Water (Control and Regulation)
Act, 2002 was enacted which applied to the whole state of Kerala. The preamble refers to
the continued tendency of indiscriminate extraction and its conservation.60 It also
employs the command and control method as exclusive policy authorizing the
Government to constitute the Kerala Ground Water Authority.61
Based on the Authority’s recommendations the Government may declare in
public interest any area as notified area for regulating extraction and use of ground
water.62Any person intending to sink tubewell into a pumping well has to obtain a permit
from the Authority.63All existing ground water users are required to apply for and get
registration certificate for their wells within 120 days from the date of constitution of the
Authority.64 The Act also enables the Authority to alter the conditions of permit or
registration certificate and even cancel the same. Provision for appeal against Authority’s
action in an appeal and the Authority’s power to inspect, inquire, call for information,
take and preserve sample of soil and water, search and seizure have been provide for.65
The
Act also
provides for protection
of public drinking
water
sources.66Application for such permission shall be in such form and accompanied by fees
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fixed by the Authority. If the Authority is satisfied that the digging of such well shall not
adversely affect the public drinking water sources, permission will be granted to dig the
well for the purpose of drinking water. But if such decision of the permission is not
communicated to the applicant by the Authority within 90 days, from the date of
application the permission shall be deemed to have been granted.67
The Authority also has the power to take necessary steps for preventing ground
water pollution due to sewage or deposit of waste material.68 The Act criminalizes the
violation of the statutory provisions and prescribes penalties.69
The Act does not provide for anything that controls the privatization of ground
water. Once the approval from the authority is obtained, the user can use water for
whatever purpose he likes.
On a closer analysis, the Act, does not comply with recommendations put
forward in NWP, 2002. The shortcomings lie on its exclusive reliance on the command
and control model without providing for the people’s participation either directly or
through the panchayats and the NGOs. Other drawbacks include the failure to consider
management of surface and ground water in an integrated manner; non inclusion of the
role of the electricity board and financial agencies in assisting the controlling functions of
the Authority, effective implementation of rain water harvesting, which has great scope in
Kerala and lack of effective steps against sand mining and water mining which have an
adverse impacts on ground water. Though these are certain drawbacks, there are certain
positive aspects. The advantages include better composition of the Authority,
prioritization of drinking water purpose and exemption of small farmers and domestic
users from regulation procedure in ground water management.
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As a result, of these shortcomings the Kerala State Water Policy, 2007 has put
forward certain recommendations for the preservation and management of ground
water.70
The preservation and management of ground water has been clearly discussed
in Perumatty Gram Panchayat v. State of Kerala and in Hindustan Coco-cola Beverages
Pvt Ltd v. Perumatty Grama panchayat. The Plachimada Coco Cola Victims Relief and
Compensation Claims Special Tribunal Bill, 2011 to secure for the inhabitants of
Plachimada in Palakkad district compensation for the ecological damage caused by the
Coco cola unit that used to function in the village. The Bill sets for the Constitution of
three member tribunal to be chaired by a person in the rank of district judge and having
an administrative member as an expert member. The tribunal while passing an order
applies the principle of sustainable development, precautionary principle and polluter
pays principle. Once compensation is awarded the company shall deposit the entire award
amount with the tribunal. All appeals against the tribunal’s decision would lie with the
High Court. The Bill was passed by the Kerala Assembly and was sent to the Union
Home Ministry, which later forwarded it to other ministries – Ministry of Agriculture,
Ministry of Law and Justice, Ministry of Rural Development and Ministry of Water
Resources. The Home Ministry revealed that the Union ministry for Environment and
Forest despite receiving several reminders from the former had not submitted its
comments till October 20, 2011. While MoEF has not given much importance to the bill
the Home Ministry too failed to follow cabinet guidelines for disposal of State
Legislative Assembly matters which says that the ministries should submit the
observations within six weeks. If the feed back is not received within stipulated time, the
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concerned ministry will be responsible. Within six weeks the home ministry received
comments only from the ministry of Rural Development, Ministry of Law and Justice and
Ministry of Agriculture, None of them objected the bill but it failed to receive comments
from MoEF, Ministry of Water resources and Ministry of Food Processing. On the one
hand the Home Ministry gave little importance to the Plachimada Tribunal Bill, on the
other it acted promptly on the legal opinion sent by Coco cola Private Ltd and sent the
bill back to Kerala Legislative Assembly seeking explanation. One of the objections
raised by the Home Ministry is with regard to the legislative competency of the state to
set up a tribunal when National Green Tribunal was present. Coca-Cola objected the Bill
by saying that the compensation should be paid through the National Green Tribunal.
Since water is a state subject, state is having full power to set up a tribunal
when it is found that the existing tribunal is not competent to deal the case. Here also the
issue cannot be debated in National Green Tribunal because the National Green Tribunal
Act requires the petition for compensation to be filed within 5 years with a grace period
of 6 months. But the most critical damage to ground water and toxic contamination
caused by the Coca-Cola company at Plachimada occurred between 2000 and 2004. It is
more than five years and so the National Green Tribunal cannot be used to redress the
problem.
For the conservation and management of ground water it is essential to
consider whether there should be preservation of ground water. The English experience
suggests that for effective management of ground water vesting of ownership of surface
water and ground water in the state is essential. No doubt, absolute control by state on
this matter would enable to regulate the extent, method and purposes of exploitation of
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ground water. The object of prevention of over exploitation may be obtained by the
system of licensing, regulation of hours of pumping with the assistance of State
Electricity Board, recording the discharge of ground water by pump through metering the
outflow and periodical supervision about abstraction. In the present circumstances these
measures are preferable for controlling the over extraction of ground water. Perhaps
public opinion will not favourably respond to splitting of water right from land
ownership. Water is the most important thing that makes the land profitable. Hence water
management through licensing and regulation should be adopted for preservation and
management of ground water.
Conclusion
The foregoing discussion centred on ground water conservation and
management strategies analyzed from the stand point of quantity and quality aspects
reveals that the legal regime in Kerala with regard to ground water resource management
does not further the concept of sustainable development of the resource. Though the state
may seem to have a huge ground water potential as the same is not being used in a proper
manner, the fact remains that the overwhelming majority depend on ground water for
drinking and basic domestic needs. India has followed the traditional principles of
absolute land ownership right over ground water which has silently tolerated over
exploitation of ground water and has blocked the conservation and equitable distribution
of water. So legislations which have been formulated by different states should be in such
a manner as to preserve ground water for attaining the social justice.
Traditionally, dug wells met the drinking water needs and river streams and
ponds met irrigation and other needs of the rural people in the states. Now after the
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introduction of the piped water supply schemes in rural areas the old Panchayat wells and
other local bodies are being neglected. Ground water below the land surface being
invisible, the common man could not judge its availability in terms of depth of ground
water table and availability. Due to the absence of any pricing mechanism and strict
regulation, indiscriminate water exploitation, its wastefed utilization is continued. A new
approach is essential for the governance and conservation of ground water resources in
every state is necessary. The participation of every sector of people is essential for the
management of ground water resource in the state and it is essential for adopting various
water conservation techniques and to ensure their adaptability in local conditions. The
approach to ground water quality protection and enhancement varies not only between
states but also within them. Within our country, different agencies have differing
responsibilities for ground water quality protection. This gives an impression that ground
water quality protection in India is inconsistent. It is important that ground water
management and conservation should be clearly marked and managed.
Suggestions
Following suggestions are ventured to strive towards conservation and optimum
use of ground water with social justice.
1. The law governing ground water under Indian Easements Act shall be
modified by comprehensive state legislation which makes an integrated approach of
managing surface and ground water, conservation and development of ground water,
fixation of priorities of use and prevention of waste and pollution of ground water.
2.
Such legislation should establish a system of licensing and registration for
sinking of wells by conferring discretionary power upon the ground water authority,
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which should be an expert body consisting of qualified persons from the concerned fields.
The licensing procedure has to be just and there shall be provision for an appeal to a state
ground water body.
3.
While granting licence, the interests of possible and existing competent users shall
be taken into consideration. Further, exemption from licensing requirement in case of
sinking wells, borewells for domestic purposes may be considered as reasonable, looking
to the quantum and purpose of use. However the exemption should be only up to 20m
depth.
4.
Stringent measures shall be taken to prevent the wastage of water because of
negligent use of water by manufacturers and users.
5.
Legal check should be introduced to regulate the sale of ground water to the
multinational corporations.
6.
Though augmentation of ground water resources is necessary more importantly
the stress should be on the effective utilization of the available resource. Here greater
emphasis should be on the quality, and the precautionary principle should be effectively
implemented. The Water Act, 1974, should be suitably amended so as to make it more
effective with respect to ground water pollution.
7.
Integrated management of water resources as contemplated by the National Water
Policy, 2002 is absolutely essential. Many ground water laws like the Kerala Ground
water (Control and Regulation) Act, 2002 have failed to take note of this vital aspect. So
certain legal regulations are to be made in this subject.
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8.
Traditional water conservation strategies are to be adopted through people’s
participation.
151
References:
1. Burchi.S. National Regulation for Ground Water – Options, Issues and
Perspectives, Law Books Edition, New Delhi, 1(1999).
2. Julie Stauffer, The Water Crisis – Constructing Solutions to Fresh Water
pollution, Zen Books, London, 130(1998).
3. D.Duba and W.M.Palmquist, Ground water development in Hard Rocks of
Karnataka State, Department of Mines and Ecology, Government of Karnataka,
11(1995).
4. Sanjay Upadhyaha and Vidhesh Upadhyaha, Water Laws, Air laws and the
Environment, Law Books Edn, New Delhi, (2002), p.35.
5. Chhatrapati Singh, ‘Water Rights and principles of water Resource management’,
Journal of Indian law Institute, 1992, p.14.
6. Chhatrapati Singh, ‘Water Rights in India’, Journal of Indian law Institute, 1992,
p.8.
7. Constitution of India, Sch.VII, List II, Entry 17.
8. P.Ishwar Bhatt, ‘A Comparative study of Ground water Law and Policy in South
India, Indian Juridical Review, (2004), p.25.
9. Section 7(g) of the Indian Easements Act states as, ‘The right of every owner of
land to collect and dispose within his own limits of all water under the land which
does not pass in a defined channel…”.The term ‘collect and dispose’ all water
under the land suggest that a person by extraction of percolating ground water
may even drain so much water that his neighbour may be left without any
percolating ground water even though the latter was prior user of such water,
10. In Shajimon Joseph v. State of Kerala (2007 (1) KLT 1) the court held that right
to safe drinking water is apart of right to life and it is the duty of the authorities to
provide it to the citizens.
11. Section 49(2), Halsbury’s Law of England, 4th Edition, 1997, p.85-87.
12. Alice Jacob and S.N.Singh, Law relating to Irrigation, New Delhi. (1972), p.13.
13. See, Earl Jowitt, The dictionary of English Law, (1959), p.1059. Land in its
restricted sense means soil, but in its legal acceptation in its generic term,
comprehends every species of ground, soil, and earth with indefinite extent
upwards, it extends downwards to the globe’s centre.
152
14. Under the Transfer of Property Act, the right to ground water could be transferred
only if the dominant heritage i.e., land was transferred.
15. Percolating water refers to water which may eventually find their way by force of
gravity to some water course or other body of water with whose water it mingle
and thereby loose their identity as percolating water. See, S.V. Ciriacy- Wantamp
et al., Water and Water Rights, (1967), p.320.
16. An under ground stream is defined as water that passes through or under the
surface in a definite channel. Ibid at p.322.
17. See Mulayam Patel Basavana Gowd v. Lakka Narayana Reddy (AIR 1931 Mad
284, 297, There is a dispute between th ryots of two ryotwari villages lying on the
opposite banks of a river about utilizing the water for second crop cultivation.
Here water was obtained by digging spring channels in the dry bed of the river
from points which were fixed by custom.
18. A loss or damage without injury. Herbert Broom, Broom’s Legal Maxims,
(1993). Ratanlal and Dhirajlal, The Law of Torts, (1992), p.15.
19. Water companies may purchase lands solely for the purpose of abstracting
percolating water from it for sale without being liable for the destruction of other
wells in the neighbourhood. This was preciously what happened in the Palakkad
District of Kerala, where Coke’s water mining has parched the lands of more than
2000 people residing within 1.2 miles of the factory. The adivasis launched an
agitation against the bottling plant of the Hindustan Coco cola Beverages Pvt.Ltd.,
established in 1998 in an approximate 40 acre plot which was previously multi
cropped paddy field. On an average about 85 carry loads of beverage products,
viz., Miranda, Thumps up, Coco-cola and each land containing 550-600 cases and
each case containing 24,300ml bottles leave the factory premise every day.
Moreover, sixty bore wells have been sunk in the factory premises extracting 15,
00,000 litres of water. Moreover the processing activities have generated a large
quantity of contaminated water which ahs lead to severe contamination of ground
water. In Perumatty Grama Panchayat v. State of Kerala (2004) 1KLT 731
Justice Balakrishnan Nair held that the under ground water belongs to the public.
The State and Instrumentalities should act as the trustees of the great wealth. The
state has the duty against excessive extraction and the inaction of the state in this
regard will tantamount to infringement of right to life under Art.21 of the Indian
Constitution.
20. In Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664, 767 wherein
the Court held : ‘Water is the basic need for the survival of the human beings an d
is part of right to life and human rights enshrined in Article 21 of the Indian
Constitution.’
21. In Acton v. Blundell, ‘….that the person who owns the surface may dig therein
and apply all that is there found to his own purposes at his free will and pleasure;
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and that if, in the exercise of such right he intercepts or drains off the water
collected from the under ground springs to his neighbour’s well, this
inconvenience to his neighbour cannot become the ground of action…’.
22. Under section 14 of the Water Act, 1945 the Minister for Housing and Local
Government was empowered to declare any area as controlled area if he was
satisfied that special measures for the conservation of water was necessarily in the
public interest. See, Halsbury’s law of England, Vol.39, (962), p.154.
23. F.O.C.Hodges, ‘Control of Abstraction of Water by Law’, Proceedings of
International Symposium on Development of Ground Water Resources, Madras.
(1973), p.21.
24. Roger J.M.De Weist, Geo Hydrology, (1965), p.154.
25. Raphal G.Kazmann, Modern Hydrology, (1965), p.204.
26. 164 N.Y.552.
27. Rosalind Malcolm, A Guide to Environmental Law, (1994), p.170.
28. P.S.Prabhadevi, ‘Groundwater – The Invisible Resource’, 1:5 The People’s
Movement, (2004), p.54.
29. P.G.Kurup, ‘Quality Management of Coastal Aquifers: Legal Control’, p.2 in a
paper presented at National Seminar on Law and Environment, 14-17 March,
1990, School of Legal Studies, CUSAT, Cochin.
30. Brij Kishore, ‘Under Ground water Pollution’, Science Express, Supplement to
Indian Express, (April 10, 1990), p.3.
31. K.V.Ramanamurthy, ‘Ground Water Utilization – Need for Legal Control’,
Cochin University Law Review, (1991), p.75.
32. In Pazha Karuppiah v. State of Tamil Nadu AIR (1997) Mad 144, 155, the
drinking water needs of the people of the people of Karaikudi town was being met
from a ground water resource which was almost 3000 years old. In 1987 the
Government formulated a scheme to take water from the resource to Tiruputtar
town. Later taking into account the demands of the people of Karaikudi the
government dropped the scheme. It was renewed after seven years into the present
dispute. The court held that the ground water resources to vest in the government
which in turn only formulate any scheme in order to apply the same not only to
the habitants of the area where the ground water was located, but also to the
inhabitants in th neighbouring districts, Accordingly, the court directed the
Government to review the scheme afresh and taking the water needs of the people
of Karaikudi into consideration.
154
33. M.C.Mehta v. Kamal Nath (1997) 1 SCC 388, 413.
34. In M.P.Rambabu v. District Forest Officer AIR 2002 SC 256 wherein it was held
that deep under ground water belong to the state in the sense that doctrine of
public trust extend thereto, Holder of the land has only a right of user and cannot
ask any action or do any deeds as a result where of the right of others is affected.
Even the right of use is confined to the purpose for which the land is held by him
and not for any other purpose.
35. Joseph L.Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention’, 68 Michigan Law Review, (1978), p.478.
36. S.N.Jain, ‘Legal Aspects of Ground Water Management’, 23 Journal of Indian
Law Institute, (1981), p.186.
37. Since the factors that shall be taken into consideration are clearly laid don and the
frame work of the measure is clear about the purpose of regulation, it is not
possible to conclude that the discretionary power is uncanalised. See P.Ishwar
Bhat, ‘Over Exploitation of ground water and Silence of the Law: An Analysis of
the Indian Problem with some suggestions’, Paper presented in a National
Seminar conducted by the Department of Studies in Law, Mysore (1991 at p.7.
38. Supra n.36 at p.187.
39. See, ‘Environment and Administration’, Indian Journal of Public Administration,
(1989), p.327.
40. It means that the Central Ground Water Authority after taking into consideration
the problematic position regulating ground water in any area, process or activity
can bring them under legal control.
40a. The Model Ground Water (Control and Regulation) Bill, 2005 mandates the:
A. Periodical Assessment of ground water potential on a scientific basis,
considering quality of water available and economic viability. B.
Regulation of exploitation of ground water resources so that the extraction
does not exceed recharge. C. Development of ground water projects to
augment supplies. D. Integrated and coordinated development of surface
water and ground water so that they are used conjunctively.
41. Recommendations made by the National Water Policy, 2002 in para 7 are as
follows:
1. There should be periodical reassessment on a scientific basis of ground
water potential taking into consideration the quality of water available and
economic visibility.
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2. Exploitation of Ground water resources should be regulated as not to
exceed the recharging possibilities as also to ensure social equity.
3. Integrated and co-ordinate development of surface water, ground water and
their conjunctive use should be envisaged right from the project planning
stage and should form an integral part of the subject.
4. Over exploitation of ground water should be avoided bear the coast to
prevent ingress of sea water into sweet water aquifers.
42. AIR 1990 Ker.321 In this case excessive withdrawal of ground water by local
authorities of Lakshadweep in order to cater to the demands of increasing
population by use of modern ground water technology was challenged as
considerably depleting the ground water resources.
43. 1990 (1) KLT 580.
44. The facts disclose that even though potable water, especially ground water
resources in the Lakshadweep islands, is limited the administration evolved a
scheme to augment the water supply by digging wells and extracting ground water
by using pumps. Accordingly the court stressed the need to introduce a system of
effective monitoring at all levels to control over exploitation of ground water
resources.
45. Even though the Water Prevention and Control of Pollution Act, 1974 deal with
the ground water pollution under Section 33, but a offence is committed only if
the person knowingly causes or permits any poisonous material to dissolve into
the ground water.
46. AIR 1998 Kar.10
47. 1999(4) Kar.L.J.482
48. Right to property as a legal right.
49. AIR 1997 SC 811.
50. 1996 (3) SCC 212. In this case ‘H’ acid which was banned in the western
countries was manufactured by Rogue Industries like Silver Chemicals and Jyothi
Chemicals situated in the Bichhari village of Rajasthan, It led to the release of
high toxic effluents which extensively seeped and percolated deep into the earth
polluting the aquifers and every thing that came into contact with it. In fact, water
in the wells and streams in the village turned dark and dirty rendering it unfit for
human consumption. Though the industries were closed down since 1989, the
consequence of their action remained. An inspection team which visited the area
in 1992 opined that the extent of pollution to ground water was do great and the
entire aquifer has been polluted.
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51. 1997 (11) SCC 312.
52. Administrative Report (2009-2010), Kerala Water Authority, Government of
Kerala
53. Article 243G of the Indian Constitution and Entry 11, Eleventh Schedule deals
with the drinking water.
54. The KWA, an autonomous agency is responsible for the distribution of water and
also for the collection and disposal of waste water in the State. See, Preamble to
the Kerala Water Supply and Sewerages Act, 1986.
55. K.Suja and N.M.Nayar, ‘Stepping out of paradox’, in Anil Agarwal et al., Making
Water Everybody’s Business, (2001), p.209.
56. Report of the Physical Achievements made by People’s Planning (1997-2000),
Kerala Legislature.
57. The rule empowers the Panchayat to regulate or prohibit the bathing of animals,
washing of clothes, or other things and fishing of ponds, wells and other water
ways, both public and private, within the Panchayat area on the ground of public
health.
58. As per Rule 3(1) of the said Rule, 1998, any panchayat shall if no sufficient
provision exists with the previous sanction of the District Collector, provide land
to be used as burial or burning grounds by meeting the expenditure form the
Panchayat fund.
59. Even the Kerala Municipality Act, 1994 contains elaborate provisions detailing
the procedure to be compiled in disposing of the dead. Otherwise it would affect
the ground water and result in contamination of ground water. (Section 483-492
of the Act, 1994).
60. It defines ground water as the water that exists below the surface of the earth at
any location or particular category of location, See Section 2(1)© of the Kerala
Ground Water (Control and Regulation) Act, 2002.
61. Section 3. It is to be a multi member body consisting of Secretary to the Water
Resource Department, Finance Secretary and Secretary to the Local Self
Government and eight members nominated by the Government. Nominated
members should include two MLAs, a water resource expert and environmental
activist, a public man, a woman, a Scheduled Caste/ Tribe member, a member of
the Grama panchayat and a member of the Municipal Council.
62. Section 6(1) of the Act, 2002.
63. Section 7 of the Act, 2002.
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64. Section 8 of the Act, 2002.
65. Section 24 and 25 of the Act, 2002.
66. Section 10 of the Act, 2002. No person other than any drinking water scheme
implemented by the Government or local bodies shall, without the permission of
the authority be allowed to dig well for any purpose within 30m from any
drinking water source from where water is pumped for public purpose. (Section
10(1)).
67. Section 10(3) of the Act, 2002.
68. Section 15 of the Act, 2002.
69. Section 21 of the Act, 2002. There exist two penalties. (1) If the owner or the user
of the well contravenes any of the provisions of the Act he shall be punishable
with fine which may be extended to Rs.500/- for the first instance and Rs.1000/for the second instance. (2) If the user or the owner of he well conducts nay
unauthorized digging which contravenes the provisions of the Act, or obstructs th
authorities in exercising the powers,, shall be punishable with fine of Rs,2000/and six months imprisonment which may extend to Rs 10000/- for the second and
subsequent instances.
70. The Government will hand over all drinking water supply schemes except the
larger ones to the local governments. Kerala Water Authority is now
concentrating on major water supply schemes. Kerala Rural Water Supply
Associations (KRWSA) focuses on water supply schemes for small communities.
Local governments are carrying out schemes based on traditional sources and rain
water harvesting; and ground water department is focusing on drilling of bore
wells and providing hand pumps.
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