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127 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.4 128 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 .14 129 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.19 130 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. 131 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 132 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 133 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 134 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 135 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 136 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. 137 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 46 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. 138 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 139 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 140 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 141 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) 142 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 143 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 144 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. 145 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 146 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 147 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 148 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, 149 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. 150 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; 153 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. 155 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. 156 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. 157 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. _____________________