Madras High Court
P.Senthil Kumar vs The Union Of India on 27 January, 2023
Author: Anita Sumanth
Bench: Anita Sumanth
W.P.No.14655 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.01.2023
CORAM :
The HONOURABLE DR.JUSTICE ANITA SUMANTH
W.P.No.14655 of 2011
and M.P.Nos.1,2,4 and 5 of 2011
P.Senthil Kumar .. Petitioner
vs
1.The Union of India,
Rep. By its Secretary,
Ministry of Water Resources,
New Delhi.
2.The Chief Engineer,
Public Works Department,
Water Resources Organization,
State Ground and Surface
Water Resources Data Centre,
Taramani, Chennai – 600 113.
3.The District Magistrate / District Collector,
Tiruppur, Tiruppur District.
4.The Inspector of Mines,
Tiruppur, Tiruppur District.
5.M/s.Maruthi Distilers P Ltd.,
Rep. By Mr.E.Mohan Kumar,
S/o. L.P.S.Elangovan,
18/380, Kongu Nagar,
Muthur Road, Vellakoil,
Kangayam Taluk,
Tiruppur District. .. Respondents
https://www.mhc.tn.gov.in/judis
1/17
W.P.No.14655 of 2011
Petition filed under Article 226 of the Constitution of India praying
to issue a writ of certiorarified mandamus calling for the records relating to
the order dated 06.07.2009 made in proceedings No.21-4 (126) /SECR /
CGWA / 2009-119 on the file of the 1st respondent, quash the same and
consequently directing the respondents 1 to 4 herein not to permit the 5th
respondent to establish and operate the packated drinking water unit at
S.F.No.664/A, Nadupalayam, Mettupalayam Village, Kangayam Taluk,
Tiruppur District by over exploiting the ground water for commercial
purpose by causing detrimental to the ground water table in the light of the
decision reported in 2009 (3) CTC 412 (SC).
(Prayer amended vide order dated 21.12.2022 made in MP.3/2011 in WP
14655/2011 by ASMJ)
For Petitioner : Mr.S.Shrish
for Mr.N.Manokaran
For Respondents : Mr.B.Vijay
Additional Government Pleader
for R1 to R4
Mr.Sriram
for Mr.K.Govi Ganesan
for R5
ORDER
The petitioner claims to be a resident engaged in active cultivation in SF Nos. 659, Nadupalayam, Mettupalayam Village, Kangayam Taluk. This writ petition has been filed in the year 2011, the petitioner lamenting the exploitation of ground water resources in Kangayam Taluk, Tiruppur District by entities engaged in commercial exploitation of water for packaged drinking water units.
https://www.mhc.tn.gov.in/judis 2/17 W.P.No.14655 of 2011
2. The prayer was for a direction to the official respondents i.e., R1 to R4 not to permit R5 which is one M/s. Maruthi Distilers Pivate Limited from operating the packaged drinking water unit at SF No.664/A, Nadupalayam, Mettupalayam Village, Kangayam Taluk, Tiruppur District (R5/offending unit).
3. In the course of hearing initially, the respondents had brought to light the approval granted by the Tamil Nadu Ground Water Authority for setting up of R5 packaged drinking water unit and hence the prayer was amended to a writ of certiorarified mandamus challenging approval dated 06.07.2009 granted by the Central Ground Water Authority (CGWA) that reads thus:-
“Sub : No Objection for withdrawal of ground water in respect of M/s Maaruthi Distilers Pvt Ltd., for the packaged drinking water unit at Village Mettupalayam, Block Vellakoil, Taluka Kangayam, District Tirupur, Tamil Nadu – reg.
Sir, Kindly refer to your letter-dated 22.05.2009 on the above-cited subject. As the above mentioned site falls in 'Safe Category' area on ground water resource considerations, Central Ground Water Authority has no objection for the proposed withdrawal of 37 m/day of ground water in respect of M/s. Maaruthi Distrilers Pvt Ltd., for the packaged drinking water unit at Village Mettupalayam, Block Vellakoil, Taluka Kangayam, https://www.mhc.tn.gov.in/judis 3/17 W.P.No.14655 of 2011 District Tirupur, Tamil Nadu.
However, taking into consideration the adverse effect of the ground water withdrawal that may arise on long term basis, the firm / industry is advised to implement Rain Water Harvesting and Conservation measures, Recycling and Re-use of water and Monitoring of the ground water levels in and around the area as per the hydrogeological investigation report. The data may be submitted to this office for perusal.
The NOC is valid till the area remains under Safe Category on ground water resource consideration, or, for a period of five years from the date of issue of this letter, whichever is earlier.”
4. When the matter had come up before me, after a long hiatus, I had on 21.12.2022, passed the following order:-
The prayer of the petitioner is for a mandamus directing official respondents being R1 to R4 not to permit R5, a company, to establish and operate a packaged drinking water unit in S.F.No.664/A, Nadupalayam, Mettupalayam Village, Kangayam Taluk, Tiruppur District.
2. It is the case of the 5th respondent that he does not engage in drawal of water from S.F.No.664/A but that he draws water from S.F.No.663 in the same area, which constitutes his patta land. There is thus a dispute on facts.
3. That apart, G.O.No.43 dated 24.10.2018 which deals with the https://www.mhc.tn.gov.in/judis 4/17 W.P.No.14655 of 2011 estimation of ground water resources of Tamil Nadu and the categorization of firkas as, over exploited, critical, semi-critical, safe and saline, has classified Kangayam Taluk as 'over exploited'.
4. The question that would then arise is whether at all R5 is entitled to exploit ground water for commercial purposes, even if the land where such activities are carried on, constitute patta land.
5. Mr.B.Vijay, learned Additional Government Pleader for R2 to R4, whose name shall be printed in the cause-list (Registry is directed to delete the description of the parties), shall depute an official either today or tomorrow, to inspect the properties at S.F.Nos.663 and 664/A in Nadupalayam, Mettupalayam Village, Kangayam Taluk, Tiruppur District, to confirm
(i) whether the petitioner is the patta holder of the latter land,
(ii) confirm if there are any arrangements therein (in either S.F.Nos.663 and 664/A) for exploitation of commercial water and file a status report.
6. The State will also confirm the ramifications of ground water exploitation for commercial purposes, in land that has been classified as 'over exploited' / 'critical' and whether there are punitive measures in place for the same.
7. List on 04.01.2023. Let the status report be filed on or before https://www.mhc.tn.gov.in/judis 5/17 W.P.No.14655 of 2011 03.01.2023 with an advance copy served to the petitioner.
5. Status report has been filed by the respondents and objections thereto, as well. The respondents have categorized three units in Kangeyam Taluk including R5 unit as being engaged in commercial ground water exploitation. The details adumbrated are as follows:-
Sl.No Firm name and Village/ Firka/ Category Type of Purpose Status Date of Address Taluk Structure NOC issued & Quantity in litres per day (LPL) 1 Podaran Foods Palaya kottai Semi Critical Bore Well Food The firm has 02.08.201 India Private Village/ (as per GO processing obtained 8 50,000 Limited, U-1, Nathakadaiyur 113 dated unit- Ground Water LPD No6/110-8, Firka / 9.6.2016) Beverages clearance Malapalayam, Kangayam from Chief (Renewed Chitampalayam, Taluk Engineer SG& every Palayakottai, SWRDC year) Nathakadaiyur,Tiru ppur – 638 108.
2 Maaruthi Distilleries Nadu palayam Safe (NOC Bore Well Packaged The firm has 20.08.202 No 18/380, Village / Obtained Drinking obtained 0 Kongu Nagar, Vellakoil from CGWB) Water Ground Water 37,000 Maruthi Road, Firka/ Company Clearance Vellakoil, Tiruppur – Kangayam (NOC) from LPD 638 111 Taluk Chief (Renewed Engineer, SG every & SWRDC. year) 3 SSS Aqua Industries Sivanmalai Over Bore Well Packaged NOC not -
(Daily Care), Village / Exploited (as (Sealed) Drinking obtained from 221, Erani Colony, Kangayam per G.O.155 Water WRD and Vaikkalmedu, Firka / dated Company Bore Well Sivanmalai Village, Kangayam 28.10.2021) sealed by Kangayam Taluk District Level Monitoring Committee headed by the District Collector, Tirupppur.
Moreover,
Surface Water
gets from
NTADCL
(L&T)
6. The operation of R5 unit which figures at Sl.No.2 of the tabulation has been classified as 'Safe (NOC obtained from CGWB)’. https://www.mhc.tn.gov.in/judis 6/17 W.P.No.14655 of 2011 According to the respondents, the aforesaid categorization is based on R5 having obtained requisite clearance from the Chief Engineer on 06.10.2022. A copy of the same has been provided by learned counsel for R5 and reads as follows:-
“Sub: “Renewal of No Objection Certificate” for drawal of groundwater to M/s.Maaruthi Distrilers Private Limited, Nadupalayam Village – Vellakovil Firka – Vellakovil Block, Kangayam Taluk – in Tiruppur District - 3rd Renewal of NOC issued – Reg.
Ref: 1.This Office Lr.No.OT8/AG-2/517/Renewal of NOC/Salem/2021 dated 03.08.2021.
2. The Firm Renewal of NOC application date : 06.06.2022
3.This Office Lr. No : 236DD(G) / AG .VI/ Renewal of NOC/2022 Dt:09.06.2022
4.SE, GWC, Thanjavur Lr.No.238S/ AG /T.F44C (SLM)/NOC/GWC/TNJ/2022 dt:
22.09.2022 Please find the enclosed “Renewal of No Objection Certificate”, for drawal of groundwater to “M/s. Maaruthi Distilers Private Limited”, Nadupalayam Village, Vellakovil Firka, Vellakovil Block, Kangayam Taluk, Tiruppur District. As per the G.O(Ms.)No.142 PW(R2) Department dt: 23.07.2014, NOC should be renewed every year for the water based industries. You are requested to strictly adhere to the quantity permitted and conditions mentioned in the certificate and apply for renewal of NOC before two months from the date of expiry, i.e., 05.07.2023 without fail. If you fail to apply for renewal of NOC, it will be treated https://www.mhc.tn.gov.in/judis 7/17 W.P.No.14655 of 2011 as “illegal” and informed to District Monitoring Committee to seal the bore well in your unit as per Madras High Court Order dt: 20.03.2020 in WP.No.16299/2018.”
7. Pending writ petition, much water has flown under the bridge (pun intended). The State faces acute depletion of ground water resources and measures are avowedly being implemented for conservation of the same. There is an assessment of water resources periodically and Government Orders are issued reviewing the classification of the areas qua water availability. Such classification is under the heads, 'saline’, ‘poor quality’, ‘safe’, ‘semi-critical', 'critical' and 'over exploited'.
8. G.O.43 dated 24.10.2018 has classified Kangeyam Taluk, Uthiyur as 'Over-Exploited' and Vellakoil and Nathakadaiyur as 'Critical'. With the classification as aforesaid in 2018, it was incumbent upon the State to ensure immediate closure of R5 unit, particularly as the original sanction dated 06.05.2004 was only for a period of five years or till such time the area was assessed under the safe category, whichever is earlier.
9. The authority has however completely ignored the diktat under approval dated 06.07.2009 and permitted the exploitation of water resources in the area despite and in violation of the said policy. Thus, all renewals from 2018 are found to be bad in law. Immediate remedial https://www.mhc.tn.gov.in/judis 8/17 W.P.No.14655 of 2011 measures will be initiated forthwith by the respondents.
10. The State has put forth a curious and entirely misconceived defence. They draw attention to G.O.(Ms) No. 142 dated 23.07.2014, particularly Clause (II) which deals with conditions required for drawal and transportation of ground water for various categories. Clause (II) is extracted below:-
“No Objection Certificate is required for drawal and transportation of Ground water for the following Categories:
(1) For drawal and transportation of ground water for Housing Infrastructure Projects with more than six dwelling units.
(2) For drawal and transportation of ground water for all other infrastructure Projects / buildings. (3) Drawal and transportation of ground water for Industries (However, this will not apply to the existing Industries).
(4) Water based Industries (i.e., those industries which use water as raw material like water bottling units, etc.,) are eligible for No Objection Certificate in Safe and Semi-Critical Blocks only and not in any other category of Blocks. (5) In case of industries, which have already been established and functioning in Critical and Over-
exploited Blocks, keeping in view the investment already made in plant and machinery, renewal of No Objection Certificate will be done after the concerned District Collector/ Chief Engineer, State Ground and Surface Water Resources Data Centre, satisfies himself about the provisions of the Artificial Recharge Scheme Structures to recharge the ground water. While issuing No Objection https://www.mhc.tn.gov.in/judis 9/17 W.P.No.14655 of 2011 Certificate, the Competent Authority may ensure that water from surface source is snot available from Chennai Metropolitan Water Supply and Sewarage Board, Tamil Nadu Water Supply and Drainage Board, Local Body or New Tiruppur Area Development Corporation Limited.”
11. They rely specifically upon Clause (III)(5) which permits continued functioning of units in critical and over-exploited blocks bearing in mind the investment made by that entrepreneur. However, a distinction is made in this regard by the learned counsel for the petitioner that is well received.
12. Clause (1) – (4) of Clause (II) deal with water needs for various purposes. Clauses (1) to (3) address general industries, clause (1) with drawal and transportation of ground water for housing infrastructure projects with more than six dwelling units, clause (2) with water needs of all other infrastructure projects / buildings and clause (3) with the needs of industries in general.
13. Clause (4), is specifically entitled, ‘water-based industries’, and, in the considered view of this Court, stands on a different pedestal altogether. The authorities have clarified that water based industries that are those which use water as raw material, such as water bottling units, and have restricted their operations. Such water-based industries would be eligible for NOC only in safe and semi-critical blocks are not in any other https://www.mhc.tn.gov.in/judis 10/17 W.P.No.14655 of 2011 category.
14. Thus, the State has itself made an intelligible differentia between the projects at Clauses 1,2 and 3 on the one hand and Clause 4, on the other. The distinction is one that is consciously drawn, bearing in mind those projects which draw water for the sustenance of the project itself such as housing and infrastructure and those that commercialize water, as a commodity.
15. Clause (5) commences with the phrase, ‘In case of industries...’ and thus, it is apparent that this clause applies only to industries engaged in general businesses that use water as part of the industrial activity and not those engaged in commercial exploitation of water such as water bottling units. The latter are specifically excluded from the operation of clause (5). Thus, the contents of clause (5) are unavailable to commercial water bottling units.
16. The above distinction reflects the conscious policy of the State not to permit commercial exploitation of water, balancing the need to use water as a resource for existing infrastructure development. Thus, while investment in industry that uses some water, is protected, there is no such protection extended to those industries that thrive solely on https://www.mhc.tn.gov.in/judis 11/17 W.P.No.14655 of 2011 commercial exploitation of water as a commodity. Reliance of the State on Clause (II)(5) is found to be wholly misconceived and is rejected.
17. The revised Consolidated Guidelines - 2020 specifically clause (7) under the heading, ‘Stage 4, Processing of Application Forms’ is also relevant and reads thus:-
“7.The applications of Industries/Firms/Infra structures who had already obtained No Objection Certificate from Regional Director, CGWB/CGWA are accepted as renewal application for the issuance of No Objection Certificate irrespective of categorisation and spacing norms. The renewal procedures followed by the department should be adopted for above cases with the following conditions:
a. the conditions laid down in the NOC issued by the CGWA & CGWB should be strictly followed by the ground water abstracting industries / firms/ infrastructures etc., b. If the category of the Firka downgraded after the issuance of the above NOC by CGWA & CGWB, the firm / industry should be instructed to improve substantial ground water augmentation by any of the suitable method of ground water recharge mechanism as suggested by the field Geologists. C. Since the procedure of renewal of NOC is adopted for the above category, suitably, pumping test need not be conducted in the referred wells. However, the quantity may be modified on the prevailing hydro geological conditions.”
18. Clause 7 makes it clear that the renewal policy followed by the department and procedures thereunder, must be strictly followed in addition to any other conditions laid down by CGWA and CGWB. Thus, it https://www.mhc.tn.gov.in/judis 12/17 W.P.No.14655 of 2011 is necessary for the issuing authority to have looked into the relevant State policies and Government Orders as well as the condition in the original licence issued. In issuing the renewal dated 06.10.2022, the authority has completely lost sight of both the 2018 G.O as well as the State policy on water resource management as well as the condition under the impugned sanction dated 06.07.2009. For the aforesaid reasons, the plea of the petitioner is accepted.
19. The classification of R5 unit as ‘safe’ despite the categorization of the area as ‘over-exploited’ as per G.O.155 dated 28.10.2022 is found to be bad in law. R5 unit be sealed within a period of one week from today. An enquiry shall be conducted into the renewal of the certification on 06.10.2022 and a report filed in this regard prior to the date fixed in paragraph No.22.
20. It is necessary that the authorities engaged in issuing renewals of licences be coached and kept abreast with State policies and G.Os such that their actions are in consonance with, and not in violation of the same. The impugned order dated 06.07.2009 has run its course and hence no separate orders are necessary in that regard. This writ petition is allowed as are the connected miscellaneous petition. No costs. Connected https://www.mhc.tn.gov.in/judis 13/17 W.P.No.14655 of 2011 miscellaneous petitions are closed.
21. The second respondent shall undertake an assessment of all presently functioning commercial water bottling units and ensure that their renewals are in line with prevalent State water management policies as well as applicable Government Orders and file a report in this regard within a period of four weeks from today.
22. List under the caption 'for reporting compliance' on 27.02.2023.
27.01.2023 Index:Yes Neutral Citation:Yes ssm https://www.mhc.tn.gov.in/judis 14/17 W.P.No.14655 of 2011 To
1.The Secretary, Ministry of Water Resources, New Delhi.
2.The Chief Engineer, Public Works Department, Water Resources Organization, State Ground and Surface Water Resources Data Centre, Taramani, Chennai – 600 113.
3.The District Magistrate / District Collector, Tiruppur, Tiruppur District.
4.The Inspector of Mines, Tiruppur, Tiruppur District.
https://www.mhc.tn.gov.in/judis 15/17 W.P.No.14655 of 2011 DR. ANITA SUMANTH,J.
ssm W.P.No.14655 of 2011 27.01.2023 https://www.mhc.tn.gov.in/judis 16/17 W.P.No.14655 of 2011 https://www.mhc.tn.gov.in/judis 17/17