National Green Tribunal
Shallesh Singh vs Hotel Holiday Regency on 3 January, 2019
Bench: Adarsh Kumar Goel, K. Ramakrishnan
Item Nos. 1 to 11 Court No. 1
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
Original Application No. 176/2015
(M.A. No. 1332/2015)
&
Original Application No. 59/2012
(M.A. No. 34/2016 & M.A. No. 190/2016)
&
Original Application No. 108/2013
(M.A. No. 489/2015)
&
Original Application No. 179/2013
(M.A. No. 866/2014 & M.A. NO. 644/2015)
&
Appeal No. 67/2015
(M.A. No. 652/2015)
And
Original Application No. 484/2015
(M.A. No. 155/2017, M.A. No. 567/2017
& M.A. No. 927/2017)
And
Original Application No. 327/2018
(M. A. No. 1282/2018)
And
Original Application No. 115/2017
(M.A. No. 442/2017)
And
Original Application No. 411 of 2018
And
Original Application No. 613/2017
And
Original Application No. 614/2017
Shailesh Singh Respondent(s)
Versus
Hotel Holiday Regency, Moradabad & Ors. Applicant(s)
With
Legal Aid, National Green Tribunal Bar Association
Applicant(s)
Versus
NCT of Delhi & Ors. Respondent(s)
With
Raj Hans Bansal Applicant(s)
Versus
Ministry of Water Resources & Ors. Respondent(s)
With
Apex Chambers of Commerce and
Industries of N.C.T. of Delhi & Ors. Applicant(s)
Versus
Govt. of NCT Delhi & Ors. Respondent(s)
With
Vikrant Tongad Applicant(s)
1
Versus
Union of India & Ors. Respondent(s)
With
Shailesh Singh Applicant(s)
Versus
Hotel The Oberoi Amarvilas & Ors. Respondent(s)
With
Shailesh Singh Applicant(s)
Versus
Panchsheel Buildtech Pvt. Ltd. & Ors. Respondent(s)
With
Shailesh Singh Applicant(s)
Versus
Central Ground Water Board & Ors. Respondent(s)
With
M/s A-One Mineral Water Industry Applicant(s)
Versus
Central Ground Water Authority & Ors. Respondent(s)
With
Mohd. Javed Asghar Applicant(s)
Versus
M/s Upper Ganges Sugar and Industries Ltd.
(Distillery Unit) & Ors. Respondent(s)
With
Mohd. Javed Asghar Applicant(s)
Versus
State of U.P. & Ors. Respondent(s)
Hearing concluded on: 18.12.2018
Order uploaded on: 03.01.2019
CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE S.P. WANGDI, JUDICIAL MEMBER
HON'BLE MR. JUSTICE K. RAMAKRISHNAN, JUDICIAL MEMBER
HON'BLE DR. NAGIN NANDA, EXPERT MEMBER
For Applicant(s): Mr. Raj Pajwani, Senior Advocate and Mr.
Rahul Choudhary, Advocate (In O.A. Nos.
59/2012 & 108/2013)
Ms. Preeti Singh, Mr. S. Porwal, Mr. Shivam
Jaiswal, Advocates (In O.A. Nos. 176/2015,
484/2015, 327/2018 & 115/2017)
Mr. Amrendra Kumar Dubey, Advocate (O.A.
No. 411/2018
For Respondent (s): Ms. Sakshi Popli, Advocate for DJB (O.A. No.
59/2012)
Mr. Sumeet Pushkarna, Mr. Devanshu,
Advocates with Mr. Sudhir Chauhan, E.E.,
Delhi Jal Board (O.A. No. 108/2013)
Mr. Ajay Jain, Advocate for GNCTD
Mr. Ardhendumauli Kumar Prasad, Mr.
Shashank Saxena, Ms. Diksha Gera, Mr.
Amritesh Raj, Advocates for CGWA
Mr. Pradeep Mishra, Mr. Daleep Dhyani,
Advocates for UPPCB
Ms. Sakshi Popli, Advocate for NDMC
Mr. Amit Tiwari, Mr. Rohit Pratap Singh,
Advocates for State of UP
2
Dr. Sandeep Singh, Mr. Vinay Pal, Advocates
for State of UP (O.A. No. 327/2017
Mr. Sumeer Sodhi, Advocate
Mr. Rahul Khurana Advocate for Mr. Anil
Grover, Advocate
Mr. Arvind Kr. Pandey, Proxy Counsel for Ms.
Anushuya Salwan, Advocate for DSIIDC (O.A.
No. 179/2013)
Mr. Arvind Kr. Pandey, Proxy Counsel for Mr.
Moni Cinmoy, Advocate for DSIIDC (O.A.
No. 65/2015)
Mr. Narender Pal Singh, Advocate with Mr.
Dinesh Jinda, Law Officer, DPCC
Ms. Ranjana Roy Gawai, Advocate for TPDDL
Ms. Deep Shikha Bharati, Advocate for State
of UP (O.A. No. 613/2017 & 614/2017)
Mr. Pawan Upadhyay, Mr. Ankit Vij,
Advocates
Mr. Anil Kaur, Ms. Kapil Kaur, Ms. Diksha,
Advocates for Raddisson Blue
Mr. L.K. Bhushan, Ms. Adity, Advocates
Mrs. Sharmila Upadhyay, Mr. Krishna,
Advocates for CPCB (O.A. No. 327/2018)
Mr. Rohit Singh with Jasvinder Kaur, Mr.
Vishal Mittal, Advocates
Mr. Rajkumar, Advocate for CPCB
Mr. Satish Kumar, Mr. V. Senthil Kumar, Mr.
Theerthe Gowda N.M., V. Elangovan,
Advocates for CPCB (O.A. No. 613/2017
Priyadarsni Gopal, Advocate
Ms. Antima Bazaz, Dr. Yashpal Singh,
Advocates
Ms. Shalini Sati Prasad, Advocate
Ms. Priyanka Swami, Ch. Nounihal Singh,
Advocates for GNN
Mr. Bipin Kumar, Advocate
Mr. Rachit Mittal, Ms. Tanvi Aggarwal,
Advocates for GDA
Mr. Ravinder Kumar, Advocate
Mr. R. Chandrachud, Mr. Nitin Thukra,
Mr. Karan Sharma, Advocates for Noticee No.
1
Mr. Manish Sharma, Ms. Jigyasa, Deepti
Rajpal, Mr. Ninad Dogra, Advocates for
Noticee No. 2
Mr. Ranvir Singh, Advocate for Noticee No. 3
Mr. Alok Sangwan, Mr. Ram Bhardwaj, Mr.
Sunny Kadiyan, Advocates for Noticee No. 4
Mr. Pinaki Mishra, Senior Advocate with Mr.
Sanjeet, Mr. Utkarsh, Advocates for DLF
Mr. Arjun Nanda, Adv. for Noticee No. 6
Mr. Himanshu Tyagi, Mr. Gautam Sharma,
Advocates for Noticee No. 9
Mr. Dabesh Panda, Mr. Anshuman Ray,
Advocates for Noticee No. 10
M. Salim, Advocate for Noticee No. 11
Mr. Ameya Vikram Mishra, Advocate for
Noticee No. 12
Mr. Raghav Pandey, Advocate for Noticee No.
21
Mr. Karan Chandhiok, Ms. Swati Seth,
Advocates and Mr. Debojyoti Sengupta, for
Noticee No. 23
Mr. Ashish S. Kulshrestha, Advocate for
UPSIDC
3
ORDER
1. Ground water conservation which is the issue for consideration in this case, has attained significance on account of fast depletion of ground water in recent years. Fast depletion of ground water is acknowledged in studies.1 Ground water depletion is serious cause of concern for human well being.
2. As per publication of NITI Ayog, India is placed at 120th amongst 122 countries in water quality index. Most states have achieved less than 50% of the total score in augmentation of groundwater resources, highlighting a growing national crisis. 54% of India's ground water wells are decreasing in levels and 21 major cities across the country are expected to run out of ground water by 2020. Almost none of the States have built the infrastructure required to recharge groundwater in over exploited and critical areas. Several States such as U.P., Bihar, Rajasthan etc. have not put in place any regulatory framework for managing the groundwater. These states produce 20-30% of India's agricultural output and groundwater accounts for 63% of all irrigation water. Therefore, unsustainable extraction in these states also poses a significant food security risk for the country.2
3. About 60% of the irrigation needs, 85% of rural drinking water needs and 50% of urban water needs are met through ground water. The CGWB has categorised the areas into the following on the basis of availability of ground water resources:
Safe (<=90%, No decline in water levels) 1 https://www.researchgate.net/publication/26736936_Satellite_Based_Estimates_of_Groundwater_Depletion_in_In dia 2 Composite Water Management Index: A Tool for Water Management, June 2018, Niti Aayog in association with Ministry of Water Resources, Ministry of Drinking Water and Sanitation and Ministry of Rural Development 4 Critical (>70% and <=100%, decline in water levels) Semi- (<100%, decline in water levels) critical Over- (>100%, decline in water levels) exploited
4. As per another survey, India extracts most ground water. Globally, 25% of total annual global annual water is extracted in India. The extraction level is going up continuously3.
5. Depletion of ground water not only creates crisis for drinking water in absence of inadequate surface water being available in certain areas where there may be drought conditions, but also affects e-flow in rivers and can also increase salinity in soil.
6. The grievance of the applicants in the present applications is that there is fast depletion of ground water in NOIDA and Greater NOIDA, District Gautam Budh Nagar, U.P. There is large scale extraction of groundwater by various construction companies. Directions relating to the water harvesting are not complied with. No measures are properly adopted to stop the fast depleting ground water levels.
7. The Hon'ble Supreme Court considered the issue of ground water conservation and regulation vide the judgement in M.C Mehta v. Union of India and Ors (1997) 11 SCC 312. Direction was issued for constitution of Central Ground Water Authority (CGWA) to regulate the subject of conservation of underground water. The said regulatory body was to exercise powers under Section 5 of the Environment (Protection) Act, 1986 to regulate, control and manage drawal of ground water in the country. The main object for the constitution of the Board as an authority was to regulate the indiscriminate boring and withdrawal of 3 https://www.thehindu.com/news/cities/mumbai/the-alarming-levels-of-indias-groundwater /article19253949.ece 5 underground water in the country which was needed urgently. The mandate of the authority was to issue necessary regulatory directions with a view to preserve and protect the underground water resources.
8. Based on survey by CGWA, certain areas have been declared as over exploited, critical and semi-critical areas (OCS). According to the applicants, the Central Ground Water Authority constituted in pursuance of the order of the Hon'ble Supreme Court failed to check the unregulated extraction of ground water for commercial purposes including packaging water, use of ground water by builders and hotels for swimming pool etc.
9. The fact that recharge is not taking place is acknowledged by categorization of OCS areas. In OCS areas, unregulated extraction of ground water further adds to the problem. There is nothing to show improvement in water tables in OCS areas on account of efforts or policies of the CGWA calling for review to achieve the goal of ground water conservation. There is a dire need for strict regulatory regime in OCS areas and not to permit use of ground water except for drinking water purposes where supply of drinking water is not otherwise available. Mere making of provision for recharge, without recharge actually happening will not justify grant of any permission for extraction of ground water on such impractical conditions.
10. This Tribunal considered the matter in the last six years on various occasions. It was noted in the order dated 23.04.2015 that ground water level has gone down in NOIDA by 15 mtrs. between 2007-2014. On 26.07.2018, it was noted that even apart from NOIDA, Greater NOIDA, Delhi and NCR, the 6 situation in OCS region calls for stringent regulation for ground water extraction.
11. Reference was made to order dated 28.08.2018 in O.A No. 176/2015, Shailesh Singh v. Hotel Holiday, Regency Moradabad & Ors., directing the Ministry of Water Resource (MoWR), Government of India, in consultation with the Ministry of Environment, Forest and Climate Change (MoEF&CC) and Ministry of Agriculture (MoA), to review the existing mechanism for effective conservation of ground water resources in OCS. It was directed that the policy framework must include monitoring mechanism by way of provision for coercive measures, consistent with the mandate in the judgement of the Hon'ble Supreme Court of India in M.C Mehta (supra).
12. In the said order the Tribunal noted that:
"11. Availability of groundwater resources as on 31.03.2009 is on CGWA website. 802 over-exploited units, 169 critical units, 523 semi-critical units have been notified for regulation. Authorized officers have been nominated. The guidelines provide that permission to extract groundwater is not given in such areas for any purpose other than the drinking water. The permission is given only if Water Supply Department is not able to supply such water. The NOC is granted subject to conditions laid down in the guidelines. In non-notified areas, NOC is granted for new industries or for expansion, subject to the conditions relating to recycle/re- use.
12. It is further pointed out that as per order of this Tribunal dated 15.04.2015 in the case of 'Krishan Kant Singh Vs. Union of India', this Tribunal issued directions for fresh guidelines and draft of such guidelines is issued w.e.f. 16.11.2015. As per para 8 of the guidelines, all existing industries who have not obtained NOC would apply to CGWA. In the said guidelines, it is mentioned that 162 areas have been notified for regulation but more areas can be 7 notified periodically. There are 1071 over-exploited units, 217 critical units and 697 semi-critical units. NOC is to be granted for drinking and domestic purposes only in the notified area. In non-notified areas, it is granted for industries, for infrastructure and mining."
13. It was noted that the Environment (Protection) Act, 1986 had an overriding effect as held in M.C Mehta (supra) and no State Legislation could override the Environment (Protection) Act, 1986. Thus, the mandate of CGWA was to override any State regulatory framework. Doing so was the right of CGWA coupled with the duty for achieving the object of the Environment (Protection) Act, 1986.
14. On 12.11.2018, the matter was further considered. After making reference to the 2012 Guidelines issued by the CGWA and draft guidelines dated 16.11.2015, the Tribunal noted following points:
i. CGWA was repeatedly disowning its responsibility on the plea that regulation of ground water was a State subject, contrary to the mandate in the judgement of the Hon'ble Supreme Court in M.C Mehta (Supra).
ii. CGWA was failing to regulate drawal of ground water in OCS on the ground that it had not issued a notification except for some areas, and without such notification, there was no need for regulating extraction of ground water even in OCS. iii. Extraction of ground water for commercial purposes was being allowed in OCS just by a mechanical condition that the ground water will be recharged, without ensuring compliance of such condition.
iv. Underground water was being allowed to be extracted for illegal constructions, bottling plants, swimming pools etc. without any 8 impact study or effective steps for rain water harvesting for recharge of the ground water.
v. CGWA was repeatedly taking the plea that charges were being collected for permitting drawal of underground water for commercial purposes in OCS against the Precautionary Principle, Sustainable Development as well as Inter- generational Equity Principles.
vi. Difficulties of agriculturists needed to be addressed in a phased manner by persuading the agriculturists to switch over to less water consuming crops and to consider use of treated sewage water instead of extraction of fresh underground water, wherever viable.
vii. Untreated effluents are not to be discharged in the water.
15. Affidavit of Member CGWA, Ministry of Water Resources, has been filed before this Tribunal on 14.12.2018 in compliance of the earlier orders. The affidavit refers to orders dated 22.10.2018, 29.08.2018, 12.11.2018 in O.A.No. 59 of 2012 in Vikrant Kumar Tongad vs. Union of India & Ors., order dated 28.8.2018 and 28.08.2018 in O.A No. 176/2015, Shailesh Singh v. Hotel Holiday, Regency Moradabad & Ors. It further states that utilizable water in India is 1137 BCM which comprises of 690 BCM of surface water and 447 BCM of replenishable ground water resources. In the year 2009, about 2700 BCM of ground water was available in deeper aquifers, below the zone of water level fluctuations. Thus, ground water over exploitation is recommended to be restricted to sustainability of ground water by annual replenishment in order to facilitate long term sustainability of ground water. It is further stated that per year extraction is 253 BCM which is 25% of the global ground water extraction. Out of total 6,584 9 assessment units, 1,034 fall in over-exploited category (where extraction is more than 100%of recharge), 253 fall in critical category (where extraction is 90-100% of the recharge), 681 fall under semi-critical category (where extraction is 70-100% of the recharge) and 4,520 are under safe category (where extraction is 90% of the recharge). About 90% extraction is for agricultural purposes, 10% for drinking, domestic and industrial purposes. Industrial use is 5%. Model building bye-laws 2016 include the provision of rain water harvesting in all new buildings on plots of 100 sq. mtrs. and above. Entire storm water is to be captured for water harvesting through suitable structures in all public and open spaces of more than 500 sq. mtrs. Buildings having minimum discharge of 10,000 liters and above are required to have waste water recycling system for horticulture purposes. 'Mission Water Conservation' has been introduced by the Ministry of Agriculture, Government of India. Inter- Ministerial Committee has been constituted under the chairmanship of the Secretary, Ministry of Water Resources, Government of India. The Ministry is also carrying out training programme and Information, Education & Communication (IEC) activities for awareness. The Department of Land Resources is implementing water-shed development projects. Certain States have taken initiatives including Punjab Preservation of Subsoil Water Act, 2009 which ban early sowing of paddy nursery and transplantation of saplings. Maharashtra Groundwater (Development and Management) Act, 2009 prohibits drilling of deep wells within for agriculture or industrial usage, pumping of ground water for deep well of depth of 60 mtrs. or more. The CGWA has issued advisories and it requires taking of NOC for ground water withdrawal but the agriculture section is not subjected to ground water regulation on account of socio- 10 economic implications. The steps taken by the CGWA include directions for rooftop rain water harvesting systems, ground water recharge measures along the National highways, State national highways, railway tracks, etc., artificial recharge in over-exploited areas, large and medium industries using ground water to take up the ground water conservation measures. CGWA imposes condition while granting NOC for withdrawal of ground water in States/UTs which do not have functional ground water authorities. NOCs are granted online in a user- friendly manner. Industries in safe category are exempted from NOC but in OCS areas, condition for grant of NOC is rain water harvesting/ground water recharge measures and NOCs are denied in over-exploited areas. Non-water intensive industries drawing ground water up to 100 m3/day are exempted from NOC in critical areas, non-water intensive industries drawing up to 50 m3/day are exempted from NOC. (In over-exploited areas, non-water intensive industries are exempted which are drawing ground water up to 25 m3/day. Permitted water extraction is restricted to 60% of the proposed recharge. Ground water extraction should not be exceed 1,500m3/day for each unit. In semi-critical areas, ground water extraction is restricted to 200% and 100% of proposed recharge for non- water intensive and water intensive industries respectively. In critical areas, ground water extraction is permitted up to 100% and 50% of proposed recharge for non-water intensive and water intensive industries respectively. In over-exploited areas, ground water extraction is permitted up to 50% of the proposed recharge). Till 2015, existing industries were not required to seek any NOC. In compliance of order of the Tribunal dated 15.04.2015, existing industries were brought within the purview of NOC with effect from 16.11.2015.
11
16. We may now refer to the Notification dated 12.12.2018, issued by the Ministry of Water Resources, River Development and Ganga Rejuvenation under Section 3(3) of the Environment (Protection) Act, 1986. Some of the striking salient features of the notification are as follows:
i. Exemption of individual households to draw ground water from single dug well/bore well/tube well through delivery pipe of upto 1" diameter and certain other categories, even if there is an existing supply of drinking water.
i. Beyond the said exemption, ground water withdrawal can be permitted on the basis of NOC where water supply is not adequate subject to certain conditions. ii. Infrastructural projects including water supply agencies can be allowed to get NOC and the said industries are in Annexure-VI i.e.:
Indicative List of Infrastructure projects Residential apartment Residential township Office building School College University Industrial Area (Drinking use) SEZ (Drinking use) Metro Station Railway Station Bus Depot Airport Seaport Highway infrastructure Fire station Warehouse Business Plaza Malls & Multiplex Hospitals Nursing Homes Water Park/ Theme Park/Amusement Park Resort Hotel/ Restaurant/ Food Plaza Holiday home/Guest house Banquet Hall/ Marriage Gardens IT Complex Logistics & Cargo Clubs Trade Centre 12 iii. Other industries can be granted NOC through energized means including industrial mining/infrastructure projects, industries mining projects and infrastructure projects requiring dewatering or use of ground water for construction.
17. Relevant provisions in the impugned notification are quoted for ready reference:-
"2.1 Exemption
1. The following categories of users shall be exempted from obtaining NOC for ground water abstraction:
(i) All users drawing/proposing to draw ground water through non-energized means (bucket & rope, hand pump, mhote etc.)
(ii) Individual households drawing/proposing to draw ground water from a single dug well/ bore well/ tube well through delivery pipe of upto 1" diameter.
xx.............................xx...........................xx 2.2.1 Individual households:
Individual houses drawing/proposing to draw ground water through more than one functional bore well/ tube well / dug well or drawing ground water through delivery pipe of more than 1" diameter from a single ground water abstraction structure shall be required to seek NOC for ground water withdrawal under this category.
xx...............................xx...........................xx 2.2.2 Infrastructure projects /industries/ mining projects / public water supply agencies / others requiring water only for drinking & domestic use An indicative list of infrastructure projects to be considered under this category is given in Annexure VI. NOC for ground water withdrawal for drinking and domestic purpose only for infrastructure projects/ industry/ mining projects/ water supply agencies / others.
xx.................................xx...........................xx 2.3 Industrial /Mining/ Infrastructure projects All industries / mining / infrastructure projects, whether existing / new/ under expansion and drawing/ proposing to draw ground water through energized means shall need to obtain NOC for ground water withdrawal from Central Ground Water Authority.
xx................................xx...........................xx 2.3.1 Industries 13 NOC to industries shall be granted only for such cases where government agencies are not able to supply the desired quantity of water.
xx.................................xx...........................xx 2.3.2 Mining Projects All existing as well as new mining projects need to obtain NOC for mine dewatering and / or ground water withdrawal through wells, if any, from Central Ground Water Authority.
xx.................................xx...........................xx 2.3.3 Infrastructure projects requiring dewatering or use of ground water for construction New infrastructure projects/ residential buildings may require dewatering during construction activity and/or use ground water for construction. In both cases, applicants shall seek NOC from CGWA before commencement of work.
xx.................................xx...........................xx 2.4 Agricultural Sector Agriculture sector is the backbone of the Indian economy. Since livelihood of farmers is dependent on agriculture, they shall be exempted from obtaining NOC for ground water withdrawal from the CGWA. Concerned State Departments (Agriculture / Irrigation / Water Resources) shall be required to undertake suitable demand and supply side measures to ensure sustainability of ground water sources.
xx.................................xx...........................xx 2.5 Abstraction of Saline/ contaminated ground water Abstraction of saline/ contaminated ground water for use by industries dewatering by infrastructure / mining projects including those located in over- exploited areas would be encouraged.
xx.................................xx...........................xx 2.6 Water Conservation Fee (WCF) ..............all ground users would have to pay WCF based on quantum of ground water extraction as per details given below.
xx.................................xx...........................xx I. Drinking & Domestic use II. Packaged drinking water units drawing more than 50 m3 per day/ soft drinks/ breweries/ distilleries III. Packaged Drinking Water units (drawing less than 50 m3 per day) and other industries IV. Mining / infrastructure dewatering projects xx.................................xx...........................xx
5. Delegation of powers to monitor compliance of NOC Conditions 14 Central Ground Water Authority has appointed the District Magistrate/ District Collector / Sub Divisional Magistrates of each Revenue District and Regional Directors of CGWB through Public Notice as Authorized officers, who have been delegated the power to monitor compliance, check violations and seal illegal wells, launch prosecution against offenders etc. including grievance redressal related to ground water. In cases of violation such as illegal ground water withdrawal, the District Magistrate/ District Collector/ Sub Divisional Magistrate, subject to his/her satisfaction, shall ensure discontinuation of the same by the seizure of drilling rig, sealing of tube well/ bore well if so constructed and also disconnection of electricity supply to the energised well."
18. We have heard the learned Counsel for the parties.
19. Mr. Panjwani, learned Senior Counsel, appearing for some of the applicants, submitted that the MoWR has clearly acted contrary to the mandate of the judgement of the Hon'ble Supreme Court in M.C Mehta (Supra) as well as orders of this Tribunal requiring regulation of ground water, particularly for the OCS areas. The CGWA cannot surrender its responsibility on the ground that the States which had their own regulation need not be regulated by CGWA. In, the revised guidelines, the situation has been made worst by liberalizing the regime of control against extraction of ground water in OCS areas even for commercial/industrial purposes. There is no study undertaken of the likely impact for such liberalization on the ground water resources and there is no projected estimation as to how the revised policy will result in better conservation of ground water which is necessary for compliance of the Precautionary Principle, Sustainable Development Principle as well as Inter-generational Equity Principles. It seems that the revised policy is a sort of knee jerk reaction in response to observations of this Tribunal. It appears that MoWR has not undertaken any strength, weakness, opportunities and threats (SWOT) analysis to ascertain the weaknesses of old policy and 15 the threat scenarios it offers. It is silent on robust institutional mechanism on surveillance and monitoring of its ground implementation. It rather abdicates its authority in form of delegation to field units without any checks and balances to regulate ground water extraction, on scientific lines and environmentally sustainable manner. Despite stating that the guidelines shall be applicable Pan-India, the notification does not cover the States of Kerala, Karnataka, Andhra Pradesh, Telangana, West Bengal, Arunachal Pradesh, Himachal Pradesh, Jammu & Kashmir and the UT of Delhi. The serious flaws pointed out are:
i. Liberally permitting extraction of ground water and justifying the same on the plea that charges have been prescribed even in OCS areas for commercial/industrial purposes. ii. Liberally permitting extraction of ground water on the ground that condition was imposed for rain water harvesting without any data of effective compliance of such conditions or even possibility of this being done.
iii. Having exempted categories in OCS areas for purposes other than drinking water, including swimming pools, commercial and industrial uses. Reference has been made to the statistics to show deteriorating status of conservation of water and crises of access to water being available to the common man, as well as its requirement for ensuring e-flow in the rivers.
20. It is clear from the above that, rather than laying down stricter norms for extraction of ground water for commercial purposes and putting in place a robust institutional mechanism for surveillance and monitoring, extraction of ground water has been liberalized adding to the crisis unmindful of the ground situation and likely impact it will have on environment. No data 16 has been furnished to justify the policy reversal by way of uncontrolled liberalized drawal of groundwater in OCS areas.
21. The provisions of the impugned notification show that drawal of ground water has been, for all practical purposes, made unregulated in all areas, including the OCS areas.
22. The so called regulation is illusory. The so called conditions are incapable of meaningful monitoring, as shown by past experience also.
23. The water conservation fee virtually gives licence to harness ground water to any extent even in OCS areas.
24. There is no institutional mechanism to monitor removal and replenishment of ground water.
25. Delegation provision is virtual abdication of authority.
26. There is no check on injection of pollutants in the ground water in the impugned notification. There is no provision with regard to check on water quality and its remediation, if there is contamination.
27. We are satisfied that the Notification dated 12.12.2018 tested on the Precautionary Principle, Sustainable Development as well as Inter-generational Equity Principles is unsustainable in law and instead of conservation of ground water which is necessary for providing access to drinking water in OCS areas, as well also other needs of environment, including sustenance of rivers and other water bodies, it will result in fast depletion of ground water and damage to water bodies and will be destructive of the fundamental right to life under Article 21 of the Constitution of India.
28. Accordingly, the impugned Notification may not be given effect to in view of serious shortcomings as pointed above so that an 17 appropriate mechanism can be introduced consistent with the needs of environment.
29. The MoEF&CC is directed to constitute an Expert Committee by including representatives from IIT Delhi, IIT Roorkee, IIM Ahmedabad, CPCB, NITI Ayog and any other concerned agency or department to examine the issue of appropriate policy for conservation of ground water with a robust institutional mechanism for surveillance and monitoring with a view to enhance access to ground water for drinking purposes in OCS areas by way of appropriate replenishment practices which can be properly accounted and measured for as well as to sustain the floodplains of rivers in terms of e-flows and other water bodies. The MoEF & CC and MoWR may finalize the issue of subject remain inter-se with regard to ground water reserve and its quality.
30. The Committee may be constituted in two weeks and report of the Committee may be furnished to the MoEF &CC and this Tribunal in two months by e-mail at [email protected].
31. The Committee may also indicate the projection of its impact study in light of projected data for the next 50 years (in phased manner with action plan for each decade). Thereafter, fresh guidelines be issued by the concerned Ministry and the report furnished to the Tribunal on or before 30.04.2019.
32. The CPCB may constitute a mechanism to deal with individual cases of violations of norms, as existed prior to Notification of 12.12.2018, to determine the environment compensation to be recovered or other coercive measures to be taken, including prosecution, for past illegal extraction of ground water, as per 18 law. All the matters relating to illegal extraction of ground water by individuals are disposed of with these directions.
33. The Expert Committee report, the new policy and challenge to orders of authorities, if any, will be considered on the next date. The matter be put up for above consideration in the first week of May, 2019.
Adarsh Kumar Goel, CP S.P. Wangdi, JM K. Ramakrishnan, JM Dr. Nagin Nanda, EM January 03, 2019 Original Application No. 176/2015 (M.A. No. 1332/2015) and other connected matters AK 19