Madras High Court
M/S.Shanthi Aqua Farms vs The Secretary To Government Of ... on 3 October, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :03.10.2018
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.Nos.28535 to 28539, 29118, 31780, 32099, 33673, 34055, 34085, 34689 of 2014, 67, 4849, 9562, 9615 of 2015, 14262, 15704, 16301, 20639, 20649, 21544, 26822, 29162, 29703, 33094, 33658, 37957, 38180, 43014, 43473 of 2016, 434, 7206, 10934, 15037, 16127, 19777, 21145, 33162, 33879 of 2017, 1079, 2628, 3504, 7060, 7841, 14005, 19045 of 2018
and
M.P.No.1 of 2014 (12 M.Ps), M.P.No.2 of 2014 (12 M.Ps), M.P.No.1 of 2015(2 M.Ps), M.P.No.2 of 2015(4 M.Ps)
and
W.M.P.Nos.12456 & 12457, 13635 & 13636, 14087 & 14088, 17713 & 17714, 17725 & 17726, 18421 & 18422 of 2016, 23053, 23054, 25099 of 2016 & 6368 of 2017, 25214 & 25216, 25713 & 25714, 28574, 29027 & 29028, 32552 & 32553, 32716, 36865 & 36866, 37316 & 37317 of 2016, 464, 7833 to 7835, 11902 & 12236, 16276 to 16278, 17418 & 17419, 21350 & 21351, 22015 to 22017, 36564 to 36566, 37572 to 37574 of 2017, 1299 & 1300, 3256 & 3257, 4278 & 4279, 8747 & 8748, 9782 & 9783, 16535 & 16536, 22440 &22441 of 2018
W.P.Nos.28535 of 2014
1 M/s.Shanthi Aqua Farms
Plot No.16 4th Street,
I Floor, Federal Bank Building
Balaji Nagar, Anakaputhur
Rep. by its Proprietor Mr.Mahalingam
2 M/s.Sri Aqua Farms
S/o.No.385/2b1 Mamallapuram Salai,
Kuchikadu Village, Kuzhipanthandalam,
Thirukazhukundram,
rep. by its Proprietor, Mr.Venkatesh
3 M/s.Vc Water Company
Old S.No.313/9, New S.No.313/9 A2,
Plot.No.3 Pillaiyar Koil Second Street,
Self Help Industrial Estate,
Keelkattalai Tambaram Tk.
rep. by its Proprietor Mr.Chandra Sekar Raja
4 M/s.Sri Venkateswara Mineral Water,
Survey NO.151, No.154 Karanai Village,
Thirukallukundram , rep. by its
Proprietor Mr.Dillibai
5 M/s.Sri Arunachalam
Enterprises, S.No.56/2a No.15,
Sivagajalakshmi Garden, T.V.Nagar
Sriperumbudur Block, Mugalivakkam,
Sriperumbudur, rep. by
its Proprietor Mr.Venkatesan
6 M/s.Golden Aqua Products
Valluvar Nagar, Sithalapakkam, Chennai-126
rep. by its Proprietor Mrs.P.Thilagavathi
7 M/s.Gsk Aqua Minerals
92/1a, Rose Nagar, Kancheepuram Block
Kovilambakkam,
rep. by its Proprietor Mr.Sathish
8 M/s.Shri Raman Aqua
Industries, NO.2/2 Ponniamman Koil St.,
Vengapakkam Village, Thirukalukundram
rep. by its Proprietor Mr.Rajesh
9 M/s.Shanth Aqua Products,
No.1/534/A Mambakkam Main Road, Vengaivasal,
Medavakkam,
rep. by its Proprietor Mr. Balachander
10 M/s.Mahalakshmi Aqua Industry
Malai Street, No.28 Ponmar Village, rep. by
its Proprietor Mr.Packel Durai
11 M/s.Anush Aqua Farms
No.30, Gangaiamman Koil Street, Polacheri
Village, rep. by its Proprietor Mr.Suresh
12 M/s.Sree Jothi Swaroop
Water Industry, S.No.406/1B Manamai Village
Thirukalukundram, rep. by its Proprietor
Mr.V.Balaji
13 M/s.Bee Cee Aqua Enterprises
S.No.428/1B1 Ponmar Village, Tirupurur Block
Chenglepattu Taluk, rep. by its Proprietor
Mr.B.Chitra
14 M/s.United Water and Food
Technologies, Venkadamangalam Main Road,
Ponmar, rep. by its Proprietor Mr.Venkatesh
15 M/s.Sivakumar Aqua Industries,
No.1 Forest Department Quarter
Main Road, Perumbakkam, rep. by its
Proprietor Mr.Sukumar
16 M/s.Jamp Aqua Farm
1A , Azhikandeeswarar Nagar, M.K.Chavadi,
Okkiyam, Thoraipakkam , rep. by its
Proprietor Mr.V.Murali
17 M/s.Alagar Aqua Enterprises
NO.94, Tharapakkam Village, Kamachipuram
Block, Tharapakkam, Sriperumbudur, rep. by
its Proprietor Mr.Natarajan
18 M/s.Immanuel Aqua Farms
No.36, Mettu Street, Karaima Nagar
Kundrathu,r rep. by its Proprietor Mr.
Immanuel
19 M/s.Sri Balaji Aqua Farms
291/1b, Pillaiyar Koil Street,
Tirukalukundram Block, Nallur, rep. by its
Proprietor Mr.Karunakaran
20 M/s.Sakthi Aqua Industries
111/1A, Mambakkam Main Road, Madambakkam
rep. by its Proprietor, Mr.K.Kasinathan
21 M/s.Aqua Gold Mineral Water
Plot No.112 & 113, 1st Street, Ganesan Nagar
Kaspapuram, rep. by its Proprietor
Mr.Mariappan
22 M/s.Virutcham Water Products,
No.7, Sf No.789/1 Chetty Street, Koovathur,
Cheyyur, rep. by its Proprietor Mr.Balasubramanian
23 M/s.Sri Shanmuga Enterprises
Nookkampalayam Main Road, Perumbakkam ,
Chennai-100, rep. by Mr.M.Sasi Kumar
24 M/s.Abi Aqua Gold
S.No.31/,2 Murugesapuram, Rengasamy Street,
Zameen Pallavaram,
rep. by its Proprietor Mr.Sivan Raj
25 M/s.Kumars Aqua
1/95, Eswaran Koil Street, Ponmar Village
rep. by its Proprietor, Mr.P.T.Rajendran
26 M/s.Akash Kavin Aqua Park
No.81/1-b Madambakkam Main Road
Madambakkam, Chennai-126, rep. by its
Proprietor Mr.M.S.Maheswaran
27 M/s.A.V.M.Shanmugam Aqua
Industries, 1, Amman Koil Road,
Kovilancherry, rep. by its Proprietor,
Mr.M.S.Elangeswaran
28 M/s.Annai Minerals
S.No.353/4b7, Plot NO.7, Rajiv Gandhi Nagar,
Kovur Village & Post, Kannathur Block,
Sriperumbudur Tk.
rep. by its Proprietor Mr.T.Dasan
29 M/s.Thirukumaran Aqua Farm
No.37, Chrompet Road, Alandur, Nanmangalam
Taluk, rep. by its Proprietor Mr.G.Punnaimoorthy
30 M/s.Lakshmi Aqua Farms
261/2, Medavakkam Road, Kancheepuram Block ,
Mambakkam Village,
rep. by its Proprietor Mr.Venkat
31 M/s.Lt Aqua Industries
42/2, 3rd Cross Street Vengaivasal (Adinath
Avenue), St. Thomas Mount Block , rep. by its
Proprietor, Mr.T.Raj Kumar
32 Mathura Aqua Products
No.52, Ponniamman Kovil St., Kundrathur
Block, Moulivakkam, rep. by its Proprietor
Mr.Vasanth
33 M/s.Star Aqua Products
3/267, Hasthinapuram Salai, Nanmangalam
rep.by its Proprietor Mr.Duraisamy
34 M/s.Vds Aqua Farm
S.F.No.6/1, Devaraj Rice Mill Street ,
Kovilancherry Road, Agaramthen Village
rep. by its Proprietor Mr.Duraisamy
35 M/s.S.S.B.Aqua Farms,
Vedhagiri Nagar, Ponmar, rep. by its
Proprietor, Mr.Selva Raj
36 M/s.Om Muruga Aqua Park
No.41, Nuthancherry, St. Thomas Mount Block,
Madambakkam, rep. by its Proprietor,
Mr.S.Kalidass
37 M/s.K.B.R.Aqua Water
S.No.40/1, Nuthanchery, Madambakkam,
rep. by its Proprietor Mr.Ethiraj
38 M/s.Thavanish Aqua Farm
No.335/1 Royal Garden, Kancheepuram Block &
TK, Medavakkam,
rep. by its Proprietor Mrs.R.Revathi
39 M/s.Chellam Aqua Industries,
5/280 B Sribaba Nagar, Medavakkam, rep. by
its Proprietor Mr.N.Santhosh
40 M/s.Annumaan Aqua Industry
29/2D4 Vaathiyaar Thottam, Near Indian Oil Petrol Bunk
Kancheepuram Block, Madurapakkam Panchayat,
Ponmar Post, Moolachery rep. by its
Proprietor Mr.M.Dinesh
41 M/s.S.R.K.Natural Products
No.61, Alapakkam Main Road, Maduravoyal
Chennai-95, rep. by its Proprietor
Mr.R.Senthilkumar
42 M/s.Yes.R.K.Health Products
Old No.9 / New No.45, C.R.Ramakrishnapuram,
L & T Colony, Phase-2, 2nd st., Virugambakkam
Chennai-92 , rep. by its Proprietor Mr.R. SenthilKumar
43 M/S.Vickey Traders
No.63, GNT Road, Madhavaram, Chennai 110
rep. by its Proprietor Mr.R. SenthilKumar
44 M/s.Sterling Aqua Products
No.63, Madurainaicken Street, Maduravoyal,
Chennai-95, rep. by its Proprietor Mr.Jeyakumar
45 M/s.Penquin Aqua Products,
147, Avadi Road, Veeraragapuram, Poonamallee
Taluk, Chennai-77,
rep. by its Proprietor Mr.Periyasamy
46 M/s.Britt Mineral,
2/397, Kannikoil Street, Sithalapakkam,
rep. by its Proprietor Mr.Murugan
47 G.G.K.Aqua Water Company,
277/14A, Mambakkam Village & Post,
Kancheepuram Block, Mambakkam rep. by its
Proprietor Mr.Gokul
48 M/s.Sri Vel Murgan Aqua Industries,
No.1/185 Navalur Main Road,
Thazhambur, rep. by its Proprietor
Mrs.B.Sarala
49 M/s.Victory Aqua Farms
S.No.238/4b1 b 238/4b1c, Duraisamy Salai
Ponmar, rep. by its Proprietor Mr.Sekar
50 M/s.JSSV Aquaa Techs
No.7/2b, Amman Koil Street, St. Thomas Mount
Block, Moolachery rep. by its Proprietor
Mr.K.Ganesan
51 M/s.Sathyam Water
No.1, Thirumalai Nagar Main Road, Sri Ambal
Nagar, Sembakkam,
rep. by its Proprietor Mr.Sekar
52 M/s.Nila Health Product Company,
Main Road, Nukkampalayam,
Perumbakkam Village, rep. by its Proprietor
M/s.K.Maria Selvi
53 M/s.Krupa Aqua Farms
No.23, Vengadamangalam Village, Ponmar Post ,
rep. by its Proprietor Mr.C.Kennedy
54 M/s.J.V.Aqua Industries
No.2/178 Service Road, Thandalam, rep. by
its Proprietor Mr.C.Kennedy
55 M/s.Floorance Aqua Farm
103, Kalathumedu Street, St. Thomas Mount
Block, Ottiyambakkam, rep. by its Proprietor
Mr.C.Kennedy
56 M/s.J.V.Aqua Farm,
488/17, Vedagiri Nagar, Ponmar, rep. by its
Proprietor Mr.C.Kennady
57 M/s.Sri.Nithya Aqua products,
No.27 Kikalthirpur Village, Vishar Road
Kancheepuram, rep. by its Proprietor
Mr.T. Moorthi
58 M/s.Aqua Vickey
286/3B, 1st Street, Bharathidasan Nagar
Mambakkam Road, Vengaivasal, rep. by its
Proprietor, Mr.Mariappan
59 M/s.Minerva Minerals,
Plot No.13, 14 No.3/60, Nookampalayam,
rep. by its Proprieto,r Mr.C.T.Ganesh Kumar
60 M/s.A.Ve.Aqua Farms
Plot No.4 , Church Road, Injambakkam, rep. by
its Proprietor Mr.Mani Vasakam
61 M/s.Pandian Aqua Products
S.No.539/4, Bangalore High Road, Sithur
Village, Sunguvar Chatram , rep. by its
Proprietor Mr.Saravanan
62 M/s.Evn Aqua Farm
No.23, Vengadamangalam Main Road, Ponmar
rep. by its Proprietor Mr.E.Nagarajan
63 M/S. Aqua Spring India Pvt. Ltd.
No.3 Chinnandikuppam Road,
Vettuvanken,i rep. by its Proprietor Mr.RaviSankar
64 M/s.Nandini Industries
Plot No.1065, Maruthupandiar Avenue, Sunambu
Kolathur,s rep. by its Proprietor Mr.D.Baskar
65 M/s.Sri Nandini Aqua Products
1/523, Mambakkam Main Road, Veerapathram
Nagar, Vengaivasal, rep. by its Proprietor
Mr.D.Baskar
66 M/s.Sri Krishna Water Tech
No.3, Venkatesan Nagar, Enathur Road,
Kancheepuram Block, Enathur, Kancheepuram,
rep. by its Proprietor Mr.Lakshmi Narayanan
67 M/s.Everest Aqua Industries
114/2, Vengaivasal Main Road, Vengaivasal
rep. by its Proprietor Mr.S.Sahul Hameed
68 M/s.S.R.N.Aqua Products
Old No.73, New No.119, M.K.N.Road St.
Thomas Mount Block, Alandu,r rep. by its
Proprietor Mrs.Subha
69 M/s.Sri Vinayaga water Industries,
S.F.No.244/2a, 2b, 2b1 4a, No.43
Padur Village, Tiruporur Block,
Chenglepattu,
rep. by its Proprietor Mr.Sankar
70 M/s.V.S.P.Oil Mills
12, Bajanai Koil Street, Hastinapuram, rep.
by its Proprietor Mr.Nagarajan
71 M/s.Water Gate Foods &
Beverages, 27, Kizhakottaiyur, Thargas
Bajanai Koil Street, Melakottaiyur, rep. by
its Proprietor Mr.Prakash
72 M/s.Sri Lakhsmi Waters
No.1 G.S.T.Road, Athangarai, Mamandur,
Maduranthagam Taluk, rep. by its Proprietor
Mr.Kumaravel
73 M/s.Pal Suganthy Aqua
No.81/2b, No.177, Madambakkam Mathura
Noothanjdri Village, rep. by its Proprietor
Mr.Rajan
74 M/s.Perinbam Aqua Farms
731/2, 731/4A Kutharipalaym Vellipalayam
Road, Annur Block, Mettupalayam Taluk ,
Coimbatore,
rep. by its Proprietor Mr.P.Pattu Jebaraj
75 M/s.Sarooja Agro Foods
8/1 VOC Street, Sholinganallur, rep. by its
Proprietor Mr.Raja Sekaran. ..Petitioners
vs
1 The Secretary to Government of Tamilnadu
Public Works (R2) Department
St. Fort George Chennai-600009.
2 The Chairman
Tamil Nadu Pollution Control Board, Guindy
Chennai-600 032.
3 The Central Ground Water Board,
Govt. of India-Ministry of Water Resources
South Eastern Coastal Region,
Rep. by its Regional Director, E-1 G-Block, Rajaji
Bhavan, Chennai-600 090.
4 The Chief Engineer
Public Works Department,
Water Research Organization
State Ground & Surface Water
Resources Data Centre, Taramani, Chennai 600 113. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the entire records in connection with the impugned G.O.(Ms).No.142, Public Works (R2) Department dated 23.07.2017 of the 1st respondent and quash the said impugned G.O., dated 23.7.2014 as it violates the fundamental rights of the petitioners.
W.P.Nos.28535 to 28539 of 2014:
For Petitioners : Mr.M.Venkatachalapathy, Senior Counsel
For Mr.M.Sriram
For Respondents : Mr.VijayNarayan, Advocate General and
Mr.C.Emalias, Public Prosecutor
(in all W.Ps)
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.V.Ashok Kumar, ACGSC for R3
W.P.No29118 of 2014
For Petitioner : Mr.K.Ravi Anantha Padmanaban
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.K.Thirukkumaran, ACGSC for R3
W.P.No.31780/2014
For Petitioner : Mr.M.Kamalanathan
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.K.Thirukkumaran, ACGSC for R3
W.P.No.32099/2014
For Petitioner : Mr.M.Venkatachalapathy, Senior Counsel
For Mr.M.Sriram
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.K.Thirukkumaran, ACGSC for R3
W.P.No.33673/2014
For Petitioner : Mr.P.R.Raman, Senior Counsel
for M/s.C.Seethapathy
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.K.Thirukkumaran, ACGSC for R3
W.P.No.34055/2014
For Petitioner : Mr.K.Ravi Anantha Padmanaban
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.K.Thirukkumaran, ACGSC for R3
W.P.No.34085/2014
For Petitioner : Mr.M.Venkatachalapathy, Senior Counsel
For Mr.M.Sriram
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.V.Ashok Kumar, ACGSC for R3
W.P.Nos.34689/2014, 9562/2015, 16301/2016
For Petitioner : Mr.P.R.Raman, Senior Counsel
for M/s.C.Seethapathy
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.T.V.Krishnamachari, SCGSC for R3
W.P.Nos.67/2015, 4849/2015
For Petitioner : Mr.K.Ravi Anantha Padmanaban
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.K.Thirukkumaran, ACGSC for R3
W.P.Nos.9615/2015, 15704/2016
For Petitioner : Mr.M.Venkatachalapathy, Senior Counsel
For Mr.M.Sriram
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.T.V.Krishnamachari, SCGSC for R3
W.P.No.14262/2016
For Petitioner : Mr.K.Ravi Anantha Padmanaban
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.H.Yasmeen Ali for R2
Mr.N.Ramesh, CGSC for R3
W.P.Nos.20639/2016, 21544/2016
For Petitioner : Mr.M.Venkatachalapathy, Senior Counsel
For Mr.M.Sriram
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.H.Yasmeen Ali for R2
Mr.B.Rama Ratnam, CGSC for R3
W.P.No.20649/2016
For Petitioner : Mr.K.Ravi Anantha Padmanaban
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.B.Rama Ratnam, CGSC for R3
W.P.No.26822/2016
For Petitioner : Mr.M.Kamalanathan
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
M/s.N.Ramesh, CGSC for R3
J.R.K.Bhavananthan for R5
W.P.No.29162/2016
For Petitioner : Mr.M.Sivavarthanan
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.T.V.Krishnamachari, SCGSC for R3
W.P.No.29703/2016
For Petitioner : Mr.K.Raja
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.H.Yasmeen Ali for R2
Mr.V.T.Balaji, CGSC for R3
W.P.No.33094/2016
For Petitioner : Mr.M.Venkatachalapathy, Senior Counsel
For Mr.M.Sriram
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.K.Srinivasamurthy, SPC for R3
W.P.No.33658/2016
For Petitioner : Mr.K.Ravi Anantha Padmanaban
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.T.V.Krishnamachari, SCGSC for R3
W.P.No.37957/2016
For Petitioner : Mr.K.Ravi Anantha Padmanaban
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.K.Raju, CGSC for R3
W.P.Nos.38180/2016, 43014/2016, 10934/2017, 16127/2017, 21145/2017, 33162/2017
For Petitioner : Mr.M.Venkatachalapathy, Senior Counsel
For Mr.M.Sriram
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.T.V.Krishnamachari, SCGSC for R3
W.P.No.43473/2016
For Petitioner : Mr.R.Amizhdhu
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.P.Saravanan, CGSC for R3
W.P.No.434/2017
For Petitioner : Mr.M.Venkatachalapathy, Senior Counsel
For Mr.M.Sriram
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.K.Srinivasamurthy, SPC for R3
W.P.No.7206/2017
For Petitioner : Mr.K.Ravi Anantha Padmanaban
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.D.Ramesh Kumar, CGSC for R3
Mr.M.Varunkumar for R5
W.P.No.15037/2017
For Petitioner : Mr.A.Rajesh Kanna
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.T.V.Krishnamachari, for R3
Mr.N.Ramesh, CGSC for R5
W.P.No.19777/2017
For Petitioner : Mr.M.Kamalanathan
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Rita Chandrasekar for R2
Mr.T.V.Krishnamachari, SCGSC for R3
W.P.Nos.33879/2017, 1079/2018
For Petitioner : Mr.M.Venkatachalapathy, Senior Counsel
For Mr.M.Sriram
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.H.Yasmeen Ali for R2
Mr.T.V.Krishnamachari, SCGSC for R3
W.P.No.2628/2018
For Petitioner : Mr.C.Seethapathy
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.H.Yasmeen Ali for R2
Mr.T.V.Krishnamachari, SCGSC for R3
W.P.No.3504/2018
For Petitioner : Mr.AR.L.Sundaresan, Senior Counsel
for M/s.M.Sriram
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.H.Yasmeen Ali for R2
Mr.T.V.Krishnamachari, SCGSC for R3
W.P.Nos.7060/2018, 14005/2018, 19045/2018
For Petitioner : Mr.AR.L.Sundaresan, Senior Counsel
for M/s.M.Sriram
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.T.V.Krishnamachari, SCGSC for R3
W.P.No.7841/2018
For Petitioner : Mr.K.Ravi Anantha Padmanaban
For Respondents : Mr.VijayNarayan, Advocate General
Assisted by Mr.R.Govindasamy, Spl GP
for R1 & R4
M/s.Ritachandrasekar for R2
Mr.T.V.Krishnamachari, SCGSC for R3
C O M M O N O R D E R
Swami Vivekanda said, The Lord is the only Giver, all the Men in the World are only Shopkeepers. Get His Cheque, and it must be honoured everywhere.
2.The lis on hand are filed questioning the validity of the order issued by the 1st respondent in G.O.Ms.No.142, Public Works(R2) Department dated 23.07.2014. The order impugned is about the effective Management of Ground Water and Regulations for Management of Ground Water and issue of No Objection Certificate / Licence for Extraction of Ground Water in the State of Tamil Nadu. The categorization formulated by the Public Works Department in G.O.Ms.No.52 dated 02.03.2012 has been approved by the Government and accordingly, the categorization of over-exploited, critical, semi-critical and safe blocks are notified. All the over-exploited and critical blocks are notified as category 'A', where Stage of Ground Water Extraction is 90% and above and all the semi-critical and safe blocks are notified as category 'B', where Stage of Ground Water Extraction is below 89%. The impugned order formulates Regulations for Management of Ground Water.
Pleadings of the Petitioner:
3.The petitioners in all these writ petitions set out their grievances by stating that they all are running business of Manufacturing Packaged Drinking Water Units. The Petitioners have obtained licenses from the Bureau of Indian Standards, Certificate of Manufacturing License and also from the Food Standards Authority of India(FSSAI License) and the said licenses were periodically renewed and the same is valid as on the date of filing of the writ petitions. The petitioners have registered their names with the Commercial Taxes Department and they are affected on account of the Government order issued in G.O.Ms.No.142, Public Works Department dated 23.07.2014. The petitioners submit that withdrawal of Ground Water all over the Nation was the concern of the Central Government and with a view to safeguard the interest of the public in general and balancing the same by permitting the water based industries, the Central Ground Water Authority was constituted under the powers conferred on the Union in Section -3(3) of Environment Protection Act, 1986 and the guidelines were also issued on 15.11.2012. As per the guidelines, the entire Country will be classified as Notified Area and Non-notified areas. So far as the notified areas are concerned, permission to abstract Ground Water through any energized means will be accorded for the only purpose i.e., drinking purpose. As far as the drinking purposes are concerned, No Objection Certificate(NOC) can be accorded for construction of groundwater abstraction structures / replacement of existing defunct well for drinking purpose only.
4.As far as the State of Tamil Nadu is concerned, though they have enacted the Tamil Nadu Ground Water(Development and Management) Act, 2003 for regulating tapping of Ground Water in Tamil Nadu, the said Act having received the assent of the Governor, never notified and ultimately by an Ordinance No.3/2013, the same was repealed. Thus, as on date, there is no source of authority or power for the Tamil Nadu to regulate Water within its territory. It is further stated that the Central Act being in force, which governs the entire Country, the guidelines issued by the Central Ground Water Authority will be made applicable to the State of Tamil Nadu. That being the position, the developments in Tamil Nadu will have to be traced only with the Central Regulations for the purpose of the present writ petitions. The Government issued G.O.Ms.No.51, Public Works Department, dated 11.02.2004, whereby the two category of areas were brought out viz., Dark and Grey areas. The blocks, which more than 85% of under Ground Water Development were classified as Dark Block, where the underground water development was between 65% and 85%, they were categorized as Grey blocks. The above said Dark and Grey Blocks were done on the basis of Ground Water Estimation Committee norms prevailed in the year 1984. The Committee seems to have issued the norms in the year 1997. Based on the report, once again the Chief Engineer, Public Works Department / the 3rd respondent herein wanted the areas to be categorized as Over Exploited Blocks, Critical Blocks, Semi Critical Blocks and Safe Blocks.
5.The entire Government Order has no statutory backing and cannot run contrary to the guidelines issued by the Central Ground Water Authority / the 3rd respondent herein. As per the said Government Order, no fresh scheme should be formulated in over exploited and critical blocks. So far as semi critical and safe blocks are concerned, the fresh scheme should be in consultation with the State Ground and Surface Water Resources Data Centre of the Public Works Department. The Government, thereafter issued G.O.Ms.No.52, Public Works(R2) Department dated 02.03.2012 and according to which, they have divided the entire Tamil Nadu into 386 blocks and Chennai being Block No.1 and formulated that nearly 139 blocks were considered to be under Over Exploited blocks(Including Chennai) and 33 are in Critical blocks and 67 are in Semi Critical blocks and 136 are considered to be in Safe blocks. Apart from this, the G.O. also states that 11 blocks are saline / Poor quality blocks, which was not under the original categorization.
6.The Ground Water data centre of the State has no statutory authority to make assessment. It is also a fact with a view to support their Claims in the Cauvery Water Dispute Forums and Mullai Periyar cases assessment were made, so as to make the entire Delta Area concerned were brought under over exploited area. It is significant to note that Dry area as Ramnad etc., are treated as Safe areas under the assessment. It is submitted that the Said assessment therefore, has no value at any rate the packaged drinking water units cannot be assessed on the basis of the assessment by an authority, which has no existence. The entire endeavor of the Government is only to allow industry to grow in dry areas by declaring it as Safe Area and not to kill the existing schemes.
7.There are certain decided cases, which all are based on the repealed Act. Therefore, the G.O., neither 51 of the year 2004 nor 52 of the year 2012 cannot be pressed into service. As a matter of fact, challenging the G.O.No.52 dated 02.03.2012, writ petitions are filed and the same is pending consideration before the Principal Bench of High Court at Madras in W.P.Nos.2166 and 2763 of 2014. The Government Orders as well as the Act are non-est in the eye of law as on date.
8.The National Green Tribunal has got applications / appeals with reference to individuals and associations, which are voicing their grievances against the directions issued by the State authorities. In view of the challenge to the issuance of Government Orders by the State Government, the petitioners have necessarily to approach this Hon'ble Court and as such already the writ petitions are admitted and pending. The Government by means of G.O.Ms.No.142, Public Works(R2) Department dated 23.07.2014, under the guise of Management of Ground Water, has framed Regulations for Management of Ground Water and made issue of No Objection Certificate / Licence for Extraction of Ground Water in Tamil Nadu.
9.The Regulations are tracing their source of power in G.O.Ms.No.52, Public Works (R2) Department dated 02.03.2012, which is impugned in the present writ petition are pending. The very Regulation said to have come into force immediately i.e., from 23.07.2014. The said orders makes it mandatory to get No Objection Certificate from the State Ground and Surface Water Resource Data Centre. It specifically prohibits any water based industries in over exploiting and critical blocks from getting No Objection Certificate. It is not clear that as to the applicability of this, No Objection Certificate for the existing Water based industries in over exploiting and critical blocks.
10.There is total non-application of mind, while framing the Regulations. The Regulations for the first time speaks of getting a No Objection Certificate. The Government Orders, which wanted to regulate has no statutory backing. It is only by virtue of this, the Government orders submissions are made before the National Green Tribunal and the water based industries are obliged to file applications for Non Objection Certificates. It is only in the present Regulation, this being made as a requirement. The circular issued by the 4th respondent, specifically states that the existing Water based industries should be permitted to run without any further expansion. The very object and purpose is to supply drinking water to citizen. It is further submitted that the Petitioners came to know about the issuance of impugned Government order in G.O.Ms.No.142, Public Works(R2) Department dated 23.07.2014 of the 1st respondent only during the third week of September 2014 and as such the petitioners having left with no other efficacious alternative remedy for the present writ petitions.
Counter Pleadings of the Respondents:
11.The Special Secretary to Government, Public Works department, Secretariat, Chennai 9 filed a common counter affidavit on behalf of the Principal Secretary to Government, Public Works Department, the Chief Engineer, State Ground and Surface Water Resources Data Centre, Chennai.
12.It is stated that the Ground Water Department, a Wing of the Pubic Works Department, was formed during the year 1970 to meet the needs of Ground Water for Irrigation, Industrial and Domestic Purposes in the State of Tamil Nadu. Various investigation works were carried out by the Department from 1972, such as water level data, bore well lithology data and various assessment details for the entire State of Tamil Nadu. The nomenclature of the Ground Water Department was changed as State Ground and Surface Water Resources Data Centre during the year 1995. One of the duties of the State Ground and Surface Water Resources Data Centre is assessment of Ground Water Potential to know the overall quantum of Ground Water resources available in Tamil Nadu. The Ground Water Wing became the authorized department to assess the Ground Water potential with the guidance of Geologists in the department by compiling data such as Water Level, Rainfall, Extraction for Irrigation, Industries, various domestic purposes, Infiltration, Future needs, etc.,
13.The State Ground and Surface Water Resources Data Centre has estimated the Ground Water resources of Tamil Nadu periodically in co-ordination with the Central Ground Water Board, Ministry of Water Resources, Government of India, Chennai, based on the Methodology evolved by the Ground Water Resources Estimation Committee, 1997(GEC 97). Earlier, the Ground Water Potential Assessments as on January 1992 and January 1997(projected development at year 5) were done in the State, taking the Panchayat Union Block as an Assessment Unit and the entire State was categorized as Dark and Grey areas. The Blocks with more than 100% and between 85% and 100% Ground Water development(Extraction) were categorized as Dark Blocks and the blocks with Ground Water development between 65% and 85% were categorized as Grey Blocks. This assessment was approved by the Government vide G.O.2(D) No.326, Public Works(R2) Department, dated 23.11.1993.
14.To control, regulate and manage the Ground Water resources in the State, the Government of Tamil Nadu had enacted the Tamil Nadu Ground Water(Development and Management)Act, 2003(Tamil Nadu Act No.3 of 2003) (hereinafter referred as Tamil Nadu Act, 2003). This Act extended to the entire State of Tamil Nadu, except the areas to which the Chennai Metropolitan Area Groundwater(Regulation) Act 1987 (Act No.27 of 1987) extended, i.e., the whole of the Chennai City and the notified 302 revenue villages in Kanchipuram and Thiruvallur Districts. But, the Tamil Nadu Act, 2003, was not implemented due to lack of framing of the rules and assignment of the authority under the Tamil Nadu Act, 2003 and it was repealed by the Tamil Nadu Ground Water(Development and Management) Repeal Act, 2013(Tamil Nadu Act No.23 of 2013).
15.Subsequently, the Ground Water Potential Assessment was done as on March 2003. In this assessment, the Panchayat Union Blocks in Tamil Nadu were categorized as Over-Exploited, Critical, Semi-Critical, Safe, and Saline instead of Dark and Grey blocks. The Blocks with more than 100% Extraction of Ground Water were categorized as Over Exploited Blocks, the blocks with 90% to 100% Extraction as Critical Blocks, the blocks with 65% to 90% Extraction as Semi Critical Blocks, the blocks with less than 65% Extraction as Safe Blocks and the blocks with bad quality Ground Water were categorized as Saline Blocks. All the Over-Exploited and Critical Blocks were declared as Notified Blocks A category(Stage of Ground Water Extraction is 90% and above) and all the Semi Critical and Safe Blocks were declared as Notified Blocks B Category(Stage of groundwater Extraction below 89%). No Schemes should be formulated in Notified Blocks A category, i.e., over exploited and critical blocks. All the schemes should be formulated through the State Ground and Surface Water Resources Data Centre of the Water Resources Department and the Chief Engineer, State Ground and Surface Water Resources Data Centre would issue No Objection Certificate for Ground Water Clearance in the Semi Critical and Safe Blocks notified as B category(Stage of Groundwater Extraction below 89%). This Assessment was approved by the Government vide G.O.Ms.No.51, Public Works(R2) Department, dated 11.02.2004.
16.The Ground Water Potential Assessment was done as on March 2009 and the Panchayat Union Blocks in Tamil Nadu were categorized as Over Exploited, Critical, Semi Critical, Safe and Saline blocks and this categorization was approved by the Government vide G.O(Ms).No.52, Public Works(R2)Department dated 02.03.2012.
17.Before getting approval from the Government for the above categorization of the blocks, the categorization proposals were submitted for approval to both the Central as well as the State Level Technical and Administrative Committees. The Central Technical Committee constituted with members, viz, Indian Institute of Technology Professionals, Chief Engineers of various departments and Regional Directors of Central Ground Water Board and National Bank for Agriculture and Rural Development(herein after referred as NABARD). Then, the same proposal was submitted for approval to the Central Administrative Committee constituted with Secretaries of various departments, Central Pollution Control Board, Officials of Ministry of Water Resources, NABARD, etc., At the State Level, the same assessment proposal was approved by the State Level Working Group Committee which includes members of the NABARD, Tamil Nadu Water Supply and Drainage Board, Indian Institute of Technology, Geology Professionals, Chief Engineers, Officers of various Line Departments and Regional Director of Central Ground Water Board and then by the State Level Committee, which includes Secretaries of seven departments, NABARD, Tamil Nadu Pollution Control Board and various departmental Chief Engineers and Regional Director of Central Ground Water Board. The above assessments were approved by the Ministry of Water Resources, based on the intimation by the Central Ground Water Board, South Eastern Coastal Region, Chennai, which is an authorized body of the Government of India. Only then, the State Government approved the above categorization.
18.The Ground Water potential assessment cannot be ascertained by the water level fluctuation in one month in one particular place. While assessing an area, various factors such as Monthly Water Level Data for the past five years, average rainfall, total number of wells in the area, irrigation methods adopted in the area, cropping pattern details, geological conditions prevailing in that area, artificial recharge structures, etc., and various calculation methods have to be considered.
19.The Ground Water potential assessment is dynamic and not static. If any area shows remarkable improvement in groundwater level, then the categorization of that area would automatically change in the subsequent assessment. Hence, the Government orders were issued based on the Ground Water potential for the assessment periods only and not based on the present scenario.
20.The State Government had repealed the Tamil Nadu Act, 2003 by an Act called the Tamil Nadu Ground Water (Development and Management) Repeal Act, 2013 (Tamil Nadu Act No.23 of 2013), which was deemed to have come into force on 14th September 2013. The Tamil Nadu Act, 2003 was enacted taking into consideration the circumstances that prevailed in the year 2003. However, over the past 10 years, the following factors have drastically changed the scenario (i) Certain definitions like marginal and small farmers, etc., have not been clearly defined to carry out the purport of the Act, preventing groundwater drawal for agricultural purposes and thereby causing hardship to farmers. (ii) The people at large are to be ensured minimum potable water from groundwater sources, when other sources are not sufficient especially in a drought affected year. (iii)The provisions in the Act require that all individuals should be registered with the Groundwater Authority and license should be obtained by all persons, having over 1 Horse power motor. If the Act in the present form had to be implemented and groundwater was not allowed to be tapped, it would have led to public outcry. (iv) The manner in which the drawal of groundwater has to be regulated for construction of multistoried buildings and for commercial exploitation of water, where water is used as raw material has not been addressed in the Act.
21.G.O(Ms).No.52, Public Works(R2) Department, dated 02.03.2012 was upheld by this Honorable Court on 18.09.2013 in Writ Appeal Nos.923 to 926 of 2009, W.P.Nos.23116 of 2006, 23896 to 23900 of 2006, 4711 of 2004 and 12375 of 2008 and connected miscellaneous petitions. This judgment highlighted that 9....direct the parties to approach the authorities of the Public Works Department for necessary approval based on the category to which they fall...... We make it clear that even with repealing of the Act, G.O.(Ms).No.52, Public Works Department, dated 02.03.2012 will govern the interests of the parties and the State in the matter of regulating the business of the Writ Appellant herein.
22.Subsequent to repealing of the Tamil Nadu Act, 2003 in September 2013, in furtherance of the orders and instructions issued in G.O.(Ms).No.52, Public Works Department, dated 2.03.2012, the Government have issued Regulations in G.O(Ms).No.142, Public Works (R2) Department dated 23.07.2014, for regulating the exploitation of Ground Water in the State and issue of No Objection Certificate / Licence for Extraction of Ground Water, so as to safe guard the precious Ground Water resources of the State from the individuals who are indiscriminately exploiting Ground Water for their personal gains.
23.In G.O.(Ms).No.142, Public Works (R2) Department, dated 23.07.2014, only Regulations for Extraction of Ground Water and issue of No Objection Certificate were issued. The Regulations emphasize the methodology to be adopted for issuing No Objection Certificate, if any Firm applies for No Objection Certificate. Restrictions have been imposed for Extraction of Ground Water by water based industries in the interest of the Public only.
24.The Regulations were issued in G.O.(Ms).No.142, Public Works (R2) Department dated 23.07.2014 in the interest of the public and their well being and there is no discrimination between Government and individuals(households). Any Drinking Water Scheme of the Government is allowed because it is the duty of the Government to provide water to its subjects. It is doing a public service and discharging its bounden duty. But, the private companies are exploiting the groundwater for their personal gain and selling the natural resource at exorbitant rates and getting pecuniary benefits.
25.As per G.O.Ms.No.52, Public Works(R2) Department, dated 02.03.2012 and G.O.Ms.No.142, Public Works(R2) Department, dated 23.07.2014, the State Government have authorized and empowered the Chief Engineer, State Ground and Surface Water Resources Data Centre, Chennai, among others, to issue No Objection Certificate for drawal and transportation of Ground Water, based on the hydro-geological conditions, to the New industries and for all other infrastructure projects / buildings in the State, except the areas to which the Chennai Metropolitan Area Ground Water (Regulation) Act, 1987 extends.
26.With regard to Regulation of Ground Water, a draft Model Groundwater (Sustainable Management) Bill, 2016 for Protection, Conservation, Regulation and Management of Ground Water is under the consideration of the Government of India and the comments have been called for from the State Governments. The comments of the Government of Tamil Nadu on the draft Model Bill have been furnished to the Government of India. Hence, it is appropriate that the Government is taking and bound to take necessary steps for Conservation, Protection and Management of Groundwater.
27.The State Government safeguards the natural Ground Water resources for the peoples livelihood but the packaged drinking water companies are exploiting the Ground Water for commercial gain. The petitioners only want to quash the said Government Orders to exploit water for their own business purposes. The petitioners only interest is commercial exploitation of Ground Water, whereas the Government Order was passed taking into consideration the future and welfare of the State and its people.
28.The Central Ground Water Authority has been constituted under Section 3(3) of the Environment(Protection) Act 1986, to regulate and control development and Management of Ground Water resources in the Country. The norms followed by the Central Ground Water Authority and Tamil Nadu State are similar for assessing the Groundwater potential and categorization of blocks as Notified and Non-Notified Blocks for Regulation and Management of groundwater resources based on the Ground Water Resources Estimation Committee(GEC) Methodology 1997 only. They allow drawal of the groundwater in notified areas for drinking purpose to the Government organizations only and not for commercial use in the guise of drinking purpose. The prevailing Ground Water conditions vary from State to State. Further, Water is a State subject and the State Government is the competent authority to protect and regulate its own precious Ground Water resources according to the conditions prevailing in the State and this need not be concurred by any Central Authority. Further, Tamil Nadu is a Water Deficit State, where 90% of its surface water resources are non-perennial and fully utilized. So, the State depends more on the Ground Water resources for drinking and agricultural purposes. It is, therefore, the duty of the Government to control or eliminate commercial exploitation of Ground Water by individuals in the guise of supplying drinking water.
29.The petitioners and similar packaged water industries are exploiting Ground Water for their personal gain without considering the deterioration of Ground Water in the over exploited and critical blocks. If the said industries are allowed to run in the over exploited and critical areas, severe environmental hazards would occur and the Ground Water level would deplete to very deep levels causing irreparable loss to the environment and general public. In the coastal areas, sea water intrusion would occur and irreversibly spoil the fresh water aquifiers also.
30.The National Green Tribunal(Southern Zone) in Application No.40 of 2013 (SZ), (Suo Motu) and etc., had issued orders on 29.01.2016 regarding closure and operation of the packaged drinking water units. The Tribunal had classified the units into three categories. In the first category, no interim orders were granted and the units were to be kept closed. In the second category, the units were permitted to have electricity connection only for protection of the membrane and for maintenance of the machinery. In the third category, the units were permitted to continue their operations on the basis of the conditions imposed by the Public Works Department and to be operated for a limited number of hours per day. This Tribunals order has to be continued and it is subject to the disposal of Writ Proceedings, whereby the G.O.(Ms).No.142, Public Works (R2) Department dated 23.07.2014 has been challenged before this Court.
31.The action taken by the respondents is to protect the Ground Water in the interest of the State and to protect the people from over exploitation of Ground Water by the Packaged Drinking Water Companies.
32.About 19 numbers of similar Writ Petitions are pending in the Madurai Bench of Madras High Court praying for quashing of G.O.(Ms).No.142, Public Works (R2) Department dated 23.07.2014.
33.The Government have issued G.O.Ms.No.113, Public Works Department dated 09.06.2016, based on the Ground Water Resource Assessment made for the year 2011 on Micro level Basis i.e., Revenue Firka has been taken as an assessment unit and the same has now come into force.
34.In respect of the petitioners in Writ Petition Nos.9615/2015, 15704/2016, 33094/2016, 43014/2016, 434/2017, 16127/2017, 13159/2017, 13160/2017, 21145/2017, 33879/2017, 7025/2017, 1079/2018, 2628/2018, 7060/2018 and 7841/2018, 53 petitioners have been issued No Objection Certificate from the State Ground and Surface Water Resources Data Centre, Chennai 113, either for drawal or transportation of groundwater in Semi Critical and Safe blocks as per G.O.Ms.No.52, Public Works(R2) Department, dated 02.03.2012 and G.O.Ms.No.142, Public Works(R2) Department, dated 23.07.2014.
35.In respect of the petitioners in Writ Petition Nos.4849/2015, 15704/2016, 30874/2016, 33094/2016, 33658/2016, 37957/2016, 434/2017, 7206/2017, 16127/2017, 33879/2017, 2628/2018, 3504/2018, 7841/2018, 52 petitioners have applied for No Objection Certificate for drawal of Ground Water from the State Ground and Surface Water Resources Data Centre, Chennai 113, which were rejected either due to (i) the presence in Over Exploited and Critical blocks as per G.O.Ms.No.52, Public Works(R2) Department, dated 02.03.2012 and G.O.Ms.No.142, Public Works(R2) Department, dated 23.07.2014 or (ii) not satisfying the spacing norms or (iii) coming under the Chennai Metropolitan Area Groundwater (Regulation) Act 1987.
36.In respect of the petitioners in Writ Petition Nos.4849/2015, 15704/2016, 26822/2016, 33094/2016, 43473/2016, 434/2017, 10934/2017, 16127/2017, 16553/2017, 21145/2017, 33879/2017, 12961/2017, 15037/2017, 29827/2017, 19777/2017, 28456/2017, 33162/2017, 1079/2018, 2628/2018, 3504/2018, 7060/2018 and 7841/2018, 101 petitioners have not applied for No Objection Certificate for drawal of Ground Water to the State Ground and Surface Water Resources Data Centre, Chennai 113 and are running their Units without No Objection Certificate from the Department.
37.In order to regularize and channelize the limited Ground Water resources and to prevent various environmental impacts / hazards, Regulations of the State Government in the form of Government Order for preventing the illegal and commercial exploitation of Ground Water by the private parties / packaged drinking water companies are necessary. It is highly essential to protect the scarce and limited Ground Water resources of the State.
38.After considering all the circumstances, the petitioners have no valuable reasons to quash G.O.(Ms).No.142, Public Works(R2) Department, dated 23.07.2014, issued in this regard. The Government orders are in force to develop, manage, regulate and protect the Ground Water resources in the State and insist to use the precious resource judiciously and it is the State Government duty to protect the Ground Water resources for the benefit of all the stakeholders in the State.
Arguments on behalf of the petitioners:
39.The learned Senior Counsel as well as the other learned counsels appearing on behalf of the writ petitioners in these batch of writ petitions, contended that the State has no jurisdiction to issue the impugned Regulation in G.O.(Ms).No.142, Public Works (R2) Department dated 23.07.2014. The Central Government has already enacted legislation to govern the withdrawal of Ground Water. When the Central Government has constituted Central Ground Water Board to regulate the tapping of Ground Water, the State has no jurisdiction to issue any Regulation. When the Central Government has fixed certain norms for extracting Ground Water, then the State cannot issue an independent Regulation, which is not permissible and therefore, the State has no authority to issue such Regulations, which is impugned in the present writ petitions.
40.It is contended that some of the writ petitioners are already the holders of No Objection Certificate(NOC) from the competent authorities. Some of the writ petitioners are running the factory for many number of years and applied for issuance of Non Objection Certificate(NOC). However, their applications are not considered on account of the impugned Regulations issued in G.O.(Ms).No.142, Public Works (R2) Department dated 23.07.2014. Thus, the writ petitioners are unable to carry on their business as per the norms fixed. It is further urged that Section 3-(3) of the Environment (Protection Act), 1986, states that The Central Government may, if it considers it necessary or expedient so to do for the purpose of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under section 5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise and powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures.
41.In view of such powers, the Government of India, through Central Ground Water Supply Board classified the areas as Dark and Grey areas. In view of such classification, the State Government has no authority to introduce new Regulations, so as to regulate the withdrawal of Ground Water by the writ petitioners.
42.It is contended that the writ petitioners are not objecting the Regulations Per Se. However, they object the manner, in which, the Regulations are issued. The State has not taken into account the level of Ground Water, prevailing on account of heavy rains and on account of other water resources. Periodical assessments are not made by the competent authorities of the State. In the absence of any such periodical monitoring of Ground Water Level by the competent authorities, the regultions now imposed cannot be implemented.
43.It is contended by the petitioners that on account of heavy rainfall, Ground Water Level is increased. Those factors are not taken into consideration at the time of issuing the impugned Regulations. Contrarily, they are fixing the area without making frequent assessments, which is required for effective implementation of these Regulations. Thus, the impugned order is liable to be scrapped.
Arguments on behalf of the Respondents:
44.The learned Advocate General defending the State, has contended that the State has got jurisdiction and authority to issue such Regulations.
45.Schedule VII, List II-State List, Clause 17 of the Constitution of India states that Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power are in the State List. When the water has been incorporated in the State List, in the VIIth Schedule of the Constitution of India, the State has got every authority to regulate the Water Management within the territorial jurisdiction of the State.
46.The learned Advocate General contended that the Ground Water(Development and Management) Act, 2003 has not been notified and implemented. However, the Chennai Metropolitan Area Ground Water(Regulation) Act, 1987(Tamil Nadu Act 27 of 1987) is in force. In order to regulate the withdrawal of Ground Water, throughout the State, Regulations are issued based on the opinions / suggestions obtained from the Experts in the field. Uniform approach is required in order to maintain the Environment, Ecology and other related issues, while granting permission to extract Ground Water by the Private individuals. Therefore, there is no infirmity in respect of regulating the Water Management, more specifically, withdrawal of Ground Water by all Private individuals. State is the authority even as per the statute to regulate the Water Management in respect of tapping of Ground Water by the individuals for commercial purposes. When the withdrawal of Ground Water is utilized for commercial uses, then the same is to be regulated in the interest of people at large. If these individuals, commercial establishments are permitted to extract the Ground Water unguidedly, then the same will affect not only the Environment and other implications, in respect of certain international standards are also violated. Thus, it is imminent for the State to control and regulate the withdrawal of Ground Water by these individuals / companies for commercial purposes in the interest of public at large.
Ground Water Extraction as an issue:
47.Groundwater is an important source of fresh water, important for both drinking and irrigation. However, overexploitation can cause a myriad of issues that may take too long to be rectified. In our Great Nation, Ground Water is the Backbone of India's Drinking Water and Irrigation System, however, without proper Regulation, India has become one of the largest over-exploiters of groundwater in the world, threatening not only food security, but also land stability. The statistics show that 80% of Indias drinking water is dependent on Ground Water, while 2/3 of water for irrigation is also supplied by groundwater. 84% of the total addition to irrigation over the last four decades has come from groundwater, and at least, and at least 60% of Indias districts face groundwater over exploitation or serious quality issues. Even as per the Publications made in the Newspapers in 2017, it was the Central Ground Water Board warned that as much as 77% of the groundwater in Tamil Nadu has already been extracted and that a water crisis was imminent unless remedial measures were taken immediately. The effects of groundwater shortages are already being felt in India, with 21 Indian cities, including Delhi and Chennai projected to run out by 2020. Further studies revealed that groundwater from more than 50% of the dug wells were not suitable for drinking. Thus, Overexploitation of Ground Water can cause the following issues:-
a. drying up of wells b. reduction of water in streams and lakes c. deterioration of water quality d. increased pumping costs e. land subsidence, i.e loss of support below ground.
48.Undoubtedly, in India, the States have power to legislate on water related issues. Water is also recognized as a significant aspect of right to life.
49.In the case of M.C.Mehta Vs. Kamal Nath and Others, reported in (1997) 1 SCC 388, the Apex Court held that Public Trust doctrine applied in India. The said principle was followed up in the case of State of West Bengal Vs. Kesoram Industries Ltd., reported in 2004 10 SCC 201, Where the Apex Court discussed the question of Ground Water by stating that Some rights are capable of being granted by holders of the same or higher rights and some only by the State. Even the State, having regard to the doctrine of public trust, may not have any power to grant any right in relation to certain matters e.g. deep underground water and Deep underground water belongs to the State in the sense that the doctrine of public trust extends thereto. Consequently, the State and its institutions are accountable to the public for the protection of Ground Water. The Judgment also noted the power to regulate and control mines and minerals is in the hands of the union, but noted that reasonable tax or fee levied by a state could not be construed as trenching upon the unions power. The Judgment also noted the power to regulate and control mines and minerals is in the hands of the union, but noted that reasonable tax or fee levied by a state could not be construed as trenching upon the unions power.
50.In the case of Bheemagari Bhaskar and Others Vs. Revenue Divisional Officer, reported in 2002 (1) ALT 159, in which it was held that The pattadars had no right as such over minor mineral like sand unless they obtain the proper permits, even if the sand was deposited on their land.
51.In the case of Centre For Public Interest Litigation and others Vs. Union of India and others, reported in 2012 3 SCC 1, the Apex Court held that While distributing natural resources, the State is bound to act in consonance with the principles of equality and public trust and ensuring that no action is taken, which may be detrimental to the public interest.
52.The Apex Court in the case of State(NCT of Delhi) Vs. Sanjay, reported in 2014 9 SCC 772, held that the natural resources are the public property and national assets. It stated that It stated that public trust extends to natural resources, and that there should be a balance between natural resources and urban development.
53.The judgment also cited in the case of M.Palanisamy Vs. The State of Tamil Nadu, reported in 2012 (4) CTC 1, where the constitutionality of amended provisions of the Tamil Nadu Mines and Minerals Concessions Rules, 1959 were challenged. The amended provisions related to preventing and restricting illegal mining, transportation and storage of minerals. Upholding the vires of the rules, the Honble Madras High Court noted the dangers of mining and the impact on the environment. It observed that sand mining affected adjoining groundwater systems and the uses that local people make of the river.
54.Thus, it may be observed that any action that threatens the environment or public safety cannot be considered a right that takes precedence over fundamental and constitutional rights. Further, through the public trust doctrine, the state has a duty to use Ground Water, which is a natural resource in a manner that benefits the public at large.
55. In the case of M.C.Mehta Vs. Kamal Nath and Others, reported in (1997) 1 SCC 388, the Hon'ble Supreme Court in unequivocal terms held as follows:
23. The notion that the public has a right to expect certain lands and natural areas to retain their natural characteristic is finding its way into the law of the land. The need to protect the environment and ecology has been summed up by David B. Hunter (University of Michigan) in an article titled An ecological perspective on property : A call for judicial protection of the public's interest in environmentally critical resources published in Harvard Environmental Law Review, Vol. 12 1988, p. 311 is in the following words:
Another major ecological tenet is that the world is finite. The earth can support only so many people and only so much human activity before limits are reached. This lesson was driven home by the oil crisis of the 1970s as well as by the pesticide scare of the 1960s. The current deterioration of the ozone layer is another vivid example of the complex, unpredictable and potentially catastrophic effects posed by our disregard of the environmental limits to economic growth. The absolute finiteness of the environment, when coupled with human dependency on the environment, leads to the unquestionable result that human activities will at some point be constrained.
[H]uman activity finds in the natural world its external limits. In short, the environment imposes constraints on our freedom; these constraints are not the product of value choices but of the scientific imperative of the environment's limitations. Reliance on improving technology can delay temporarily, but not forever, the inevitable constraints. There is a limit to the capacity of the environment to service growth, both in providing raw materials and in assimilating by-product wastes due to consumption. The largesse of technology can only postpone or disguise the inevitable. Professor Barbara Ward has written of this ecological imperative in particularly vivid language:
We can forget moral imperatives. But today the morals of respect and care and modesty come to us in a form we cannot evade. We cannot cheat on DNA. We cannot get round photosynthesis. We cannot say I am not going to give a damn about phytoplankton. All these tiny mechanisms provide the preconditions of our planetary life. To say we do not care is to say in the most literal sense that we choose death. There is a commonly-recognized link between laws and social values, but to ecologists a balance between laws and values is not alone sufficient to ensure a stable relationship between humans and their environment. Laws and values must also contend with the constraints imposed by the outside environment. Unfortunately, current legal doctrine rarely accounts for such constraints, and thus environmental stability is threatened.
Historically, we have changed the environment to fit our conceptions of property. We have fenced, plowed and paved. The environment has proven malleable and to a large extent still is. But there is a limit to this malleability, and certain types of ecologically important resources for example, wetlands and riparian forests can no longer be destroyed without enormous long-term effects on environmental and therefore social stability. To ecologists, the need for preserving sensitive resources does not reflect value choices but rather is the necessary result of objective observations of the laws of nature.
In sum, ecologists view the environmental sciences as providing us with certain laws of nature. These laws, just like our own laws, restrict our freedom of conduct and choice. Unlike our laws, the laws of nature cannot be changed by legislative fiat; they are imposed on us by the natural world. An understanding of the laws of nature must therefore inform all of our social institutions.
24. The ancient Roman Empire developed a legal theory known as the Doctrine of the Public Trust. It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about the environment bear a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullious) or by every one in common (res communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public. Joseph L. Sax, Professor of Law, University of Michigan proponent of the Modern Public Trust Doctrine in an erudite article Public Trust Doctrine in Natural Resource Law : Effective Judicial Intervention, Michigan Law Review, Vol. 68, Part 1 p. 473, has given the historical background of the Public Trust Doctrine as under:
The source of modern public trust law is found in a concept that received much attention in Roman and English law the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, need not be repeated in detail here. But two points should be emphasized. First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties such as the seashore, highways, and running water perpetual use was dedicated to the public, it has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the State apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government.
25. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority:
Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses.
33. It is no doubt correct that the public trust doctrine under the English common law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have expanded the concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake case [33 Cal 3d 419] clearly show the judicial concern in protecting all ecologically important lands, for example fresh water, wetlands or riparian forests. The observations of the Court in Mono Lake case [33 Cal 3d 419] to the effect that the protection of ecological values is among the purposes of public trust, may give rise to an argument that the ecology and the environment protection is a relevant factor to determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust to encompass new types of lands and waters. In Phillips Petroleum Co. v. Mississippi [108 SCt 791 (1988)] the United States Supreme Court upheld Mississippi's extension of public trust doctrine to lands underlying non-navigable tidal areas. The majority judgment adopted ecological concepts to determine which lands can be considered tide lands. Phillips Petroleum case [108 SCt 791 (1988)] assumes importance because the Supreme Court expanded the public trust doctrine to identify the tide lands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources.
34. Our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
39. We, therefore, order and direct as under:
1. The public trust doctrine, as discussed by us in this judgment is a part of the law of the land.
2. The prior approval granted by the Government of India, Ministry of Environment and Forest by the letter dated 24-11-1993 and the lease deed dated 11-4-1994 in favour of the Motel are quashed. The lease granted to the Motel by the said lease deed in respect of 27 bighas and 12 biswas of area, is cancelled and set aside. The Himachal Pradesh Government shall take over the area and restore it to its original-natural conditions.
3. The Motel shall pay compensation by way of cost for the restitution of the environment and ecology of the area. The pollution caused by various constructions made by the Motel in the riverbed and the banks of River Beas has to be removed and reversed. We direct NEERI through its Director to inspect the area, if necessary, and give an assessment of the cost which is likely to be incurred for reversing the damage caused by the Motel to the environment and ecology of the area. NEERI may take into consideration the report by the Board in this respect.
4. The Motel through its Management shall show cause why pollution fine in addition be not imposed on the Motel.
5. The Motel shall construct a boundary wall at a distance of not more than 4 metres from the cluster of rooms (main building of the Motel) towards the river basin. The boundary wall shall be on the area of the Motel which is covered by the lease dated 29-9-1981. The Motel shall not encroach/cover/utilise any part of the river basin. The boundary wall shall separate the Motel building from the river basin. The river bank and the river basin shall be left open for the public use.
6. The Motel shall not discharge untreated effluents into the river. We direct the Himachal Pradesh Pollution Control Board to inspect the pollution control devices/treatment plants set up by the Motel. If the effluent/waste discharged by the Motel is not conforming to the prescribed standards, action in accordance with law be taken against the Motel.
7. The Himachal Pradesh Pollution Control Board shall not permit the discharge of untreated effluent into River Beas. The Board shall inspect all the hotels/institutions/factories in Kullu-Manali area and in case any of them are discharging untreated effluent/waste into the river, the Board shall take action in accordance with law.
8. The Motel shall show cause on 18-12-1996 why pollution fine and damages be not imposed as directed by us. NEERI shall send its report by 17-12-1996. To be listed on 18-12-1996.
56.In the case of State of West Bengal Vs. Kesoram Industries Ltd., reported in 2004 10 SCC 201, the Hon'ble Supreme Court of India, made the following observations:
Mineral-bearing land vis-`-vis general rights over land
383. Land may consist of several rights. The surface of the land may be in actual possession of an occupier who has no right or under-raiyat or raiyat or a person having only a right to cultivate thereupon. However, holders of such right ordinarily would not have any right over minerals. Even if a mineral is found on the surface, they must collect the same and keep it at the corner of the land so that the same may be taken away by the owner thereof, which in a case of mining lease, would be mining lessee.
385.Bheemagari Bhaskar v. Revenue Divisional Officer [(2002) 1 An LT 159] is another instance where a question arose as regards sand deposited on the land of the pattadars and claimed by them in terms of the provisions of the Andhra Pradesh Estates (Abolition and Conversion into Ryotwari) Act, 1948. Such a claim was rejected by the Andhra Pradesh High Court referring to Jagadish Chandra Deo Dhabal Deb v. Kanai Lal Nandi [AIR 1951 Pat 525] , Kusum Kamini Debya v. Jagdish Chandra Deo Dhabal Deb [AIR 1941 Pat 13 : ILR 20 Pat 96] and Purnendu Narayan Singh v. Narendra Nath Chakravarty [AIR 1943 Pat 31] holding sand being a minor mineral, the agriculturists have no right thereover. It was further held that grant of lease in respect of the said minor mineral can be granted by the State and in terms of the 1957 Act and the Rules framed thereunder.
386. Some rights are capable of being granted by holders of the same or higher rights and some only by the State. Even the State, having regard to the doctrine of public trust, may not have any power to grant any right in relation to certain matters e.g. deep underground water.
387. Deep underground water belongs to the State in the sense that the doctrine of public trust extends thereto. Holder of a land may have only a right of user and cannot take any action or do any deeds as a result whereof the right of others is affected. Even the right of user is confined to the purpose for which the land is held by him and not for any other purpose. Even in relation to such matters, no prescriptive right under Section 25 of the Limitation Act would be attracted. Further, even by reason of Section 25 of the Limitation Act, a person must exercise an easementary right without interruption for a period of 30 years in relation to air, way or watercourse or the use of any water or any other easement by enjoying it peaceably and openly as an easement and as of right. Then only such exercise of right to airway, watercourse, use of water or other easement becomes absolute and indefeasible.
388. A person who holds land for agricultural purpose may, therefore, subject to any reasonable restriction that may be made by the State, have the right to use water for irrigational purposes and for the said purpose he may also excavate a tank. But under no circumstances, can he be permitted to restrict flow of water to the neighbouring lands or discharge effluents in such a manner so as to affect the right of his neighbour to use water for his own purposes. On the same analogy he does not have any right to contaminate the water to cause damage to the holders of neighbouring agricultural fields. Large-scale defoulment in the quality of water so as to make it unusable by others or as a result whereof the water is contaminated and becomes unpotable would be violative of Article 21 of the Constitution. In M.C. Mehtav. Kamal Nath [(1997) 1 SCC 388] this Court has quoted with approval an article entitled Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention of Joseph L. Sax, Professor of Law, University of Michigan.
57.In the case of State(NCT of Delhi) Vs. Sanjay, reported in 2014 9 SCC 772, the Hon'ble Supreme Court of India observed as follows:
37. In Centre for Public Interest Litigation v. Union of India [(2012) 3 SCC 1] , this Court, while observing that the natural resources are the public property and national assets, held as under: (SCC p. 53, para 75) 75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc.
38. In M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] , this Court while considering the doctrine of public trust which extends to natural resources observed as under: (SCC pp. 407-08 & 413, paras 24-25 & 34) 24. The ancient Roman Empire developed a legal theory known as the Doctrine of the Public Trust. It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general public. Our contemporary concern about the environment bear a very close conceptual relationship to this legal doctrine. Under the Roman law these resources were either owned by no one (res nullius) or by everyone in common (res communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing. Resources that were suitable for these uses were deemed to be held in trust by the Crown for the benefit of the public. Joseph L. Sax, Professor of Law, University of Michiganproponent of the Modern Public Trust Doctrinein an erudite article Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, Michigan Law Review, Vol. 68, Part 1, p. 473, has given the historical background of the Public Trust Doctrine as under:
The source of modern public trust law is found in a concept that received much attention in Roman and English lawthe nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature and need not be repeated in detail here. But two points should be emphasised. First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common propertiessuch as the seashore, highways and running waterperpetual use was dedicated to the public, it has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the State apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government.
25. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority:
Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third the property must be maintained for particular types of uses. ***
34. Our legal systembased on English common lawincludes the Public Trust Doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
39. In Intellectuals Forum v. State of A.P. [(2006) 3 SCC 549] , this Court while balancing the conservation of natural resources vis-`-vis urban development observed as under: (SCC p. 572, para 67) 67. The responsibility of the State to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of State responsibility for pollution emanating within one's own territories (Corfu Channel case [Corfu Channel case (United Kingdom v. Albania), 1949 ICJ Rep 4] ). This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant clause of this declaration in the present context is para 2, which states:
The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or Management, as appropriate. Thus, there is no doubt about the fact that there is a responsibility bestowed upon the Government to protect and preserve the tanks, which are an important part of the environment of the area.
58.In the case of Centre For Public Interest Litigation and others Vs. Union of India and others, reported in 2012 3 SCC 1, the Hon'ble Supreme Court of India observed in paragraphs 74, 75, 76, 78, 79, 80, 81 and the same are extracted hereunder:
Question 1
74. At the outset, we consider it proper to observe that even though there is no universally accepted definition of natural resources, they are generally understood as elements having intrinsic utility to mankind. They may be renewable or non-renewable. They are thought of as the individual elements of the natural environment that provide economic and social services to human society and are considered valuable in their relatively unmodified, natural form. A natural resource's value rests in the amount of the material available and the demand for it. The latter is determined by its usefulness to production. Natural resources belong to the people but the State legally owns them on behalf of its people and from that point of view natural resources are considered as national assets, more so because the State benefits immensely from their value.
75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc.
76. The ownership regime relating to natural resources can also be ascertained from international conventions and customary international law, common law and national constitutions. In international law, it rests upon the concept of sovereignty and seeks to respect the principle of permanent sovereignty (of peoples and nations) over (their) natural resources as asserted in the 17th Session of the United Nations General Assembly and then affirmed as a customary international norm by the International Court of Justice in the case of Democratic Republic of Congo v. Uganda [Ed.: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), ICJ Reports 2005, p. 168.] . Common law recognises States as having the authority to protect natural resources insofar as the resources are within the interests of the general public. The State is deemed to have a proprietary interest in natural resources and must act as guardian and trustee in relation to the same. Constitutions across the world focus on establishing natural resources as owned by, and for the benefit of, the country. In most instances where constitutions specifically address ownership of natural resources, the sovereign State, or, as it is more commonly expressed, the People, is designated as the owner of the natural resources.
78. In India, the courts have given an expansive interpretation to the concept of natural resources and have from time to time issued directions, by relying upon the provisions contained in Articles 38, 39, 48, 48-A and 51-A(g) for protection and proper allocation/distribution of natural resources and have repeatedly insisted on compliance with the constitutional principles in the process of distribution, transfer and alienation to private persons.
79. The doctrine of public trust, which was evolved in Illinois Central Railroad Co.v. People of the State of Illinois [36 L Ed 1018 : 146 US 387 (1892)] , has been held by this Court to be a part of the Indian jurisprudence in M.C. Mehta v. Kamal Nath[(1997) 1 SCC 388] and has been applied in Jamshed Hormusji Wadia v. Port of Mumbai [(2004) 3 SCC 214] , Intellectuals Forum v. State of A.P. [(2006) 3 SCC 549] and Fomento Resorts and Hotels Ltd. v. Minguel Martins [(2009) 3 SCC 571 : (2009) 1 SCC (Civ) 877] .
80. In Jamshed Hormusji Wadia case [(2004) 3 SCC 214] , this Court held that the State's actions and the actions of its agencies/instrumentalities must be for the public good, achieving the objects for which they exist and should not be arbitrary or capricious. In the field of contracts, the State and its instrumentalities should design their activities in a manner which would ensure competition and non-discrimination. They can augment their resources but the object should be to serve the public cause and to do public good by resorting to fair and reasonable methods.
81.In Fomento Resorts and Hotels Ltd. case [(2009) 3 SCC 571 : (2009) 1 SCC (Civ) 877] , the Court referred to the article of Prof. Joseph L. Sax and made the following observations: (SCC pp. 614-15, paras 53-55) 53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective Management of natural resources and empowers the citizens to question ineffective Management thereof.
54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public domain and other public assets. Professor Joseph L. Sax in his classic article, The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention (1970) [Ed.: 68 Mich L Rev 471 (1970)] , indicates that the public trust doctrine, of all concepts known to law, constitutes the best practical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or objects held in trust.
55. The public trust doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the right to live or otherwise use that same resource or property for the long-term and enjoyment by future generations. To say it another way, a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, waters and resources.
59.In the case of M.Palanisamy Vs. The State of Tamil Nadu, reported in 2012 (4) CTC 1, paragraphs 26 and 27 are extracted hereunder:
26. There cannot be any two opinions that natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and safeguard the forests and wild life of the country. Similarly, Article 51-A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for all the living creatures.
27. In view of the Constitutional provisions, the Doctrine of Public Trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, waters and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership.
60.This Court is of an undoubted opinion that, having regard to the provisions of Article 21 of the Constitution of India, there cannot be any doubt that right to get clean Drinking Water is an integral part of Article 21 of the Constitution of India and it is a fundamental right. Ecology and Environmental aspects are to be maintained. Withdrawal of Ground Water is to be permitted only by way of Regulation and the same is to be monitored carefully and the State must ensure that no damage is caused to the Environment and Ecology and other related issues. Ecology and Environment has a predominant role to play. Thus, regulating the Extraction of Ground Water is of paramount importance.
61.Article 48-A of the Constitution of India, reads thus: Protection and improvement of environment and safeguarding of forests and wildlife:- The State shall endeavor to protect and improve and to safegaurd the forests and wild life of the country.
62.In the case of T.Damodhar Rao Vs. Special Officer, Municipal Corporation, relying on 'Rascoc Pound' and Stockholm Declaration as well as Article 48-A of the Constitution, Justice P.A. Choudary, held as follows:
From the above it is clear that protection of the environment is not only the duty of the citizen but it is also the obligation of the State and all other State organs including the Courts. In that extent,environmental law has succeeded in unshackling man's right to life and personal liberty from the clutches of common law theory of individual ownership, Examining the matter from the above constitutional point of view, it would be reasonable to hold that the enjoyment of life and its attainment and fulfilment guaranteed by Article 21 of the Constitution embraces the protection and preservation of nature's gift without which life cannot be enjoyed. There can be no person why practice of violent extinguishments of life alone should be regarded as violative of Article 21 of the Constitution. The slow poisoning by the polluted atmosphere caused by environmental pollution and spoliation should also be regarded as amounting violation of Article 21 of the Constitution.
63.Water, which is essential for the very existence of human living in this globe is the gift of nature and every human being has a share in it and the agriculturists who are the backbone of this country and who are by virtue of their profession placed at high pedestal cannot be deprived of their legitimate right to have a share in it for the use of irrigation. The Extraction of Groundwater thus required to be protected and regulated by a scheme to be evolved by the State. The State being a welfare state is bound to issue such Regulations to control and regulate the withdrawal of Ground Water by the individual persons, more specifically, for commercial purposes. In view of the principles settled by the Apex Court of India, this Court is of a considered opinion that there is no infirmity or otherwise in respect of the issuance of Regulation for monitoring the Ground Water Management and to control the Extraction of Ground Water by the individuals, specifically for commercial purposes.
64.It is brought to the notice of this Court that the National Green Tribunal, Chennai also periodically issued certain orders in order to prevent exploitation of Ground Water. In order dated 29.01.2016, the National Green Tribunal, Southern Zone, Chennai passed the following orders:
4.This order shall continue and be subject to the disposal of the order of the Hon'ble High Court of Madras in the Writ Proceedings whereby the G.O.Ms.No.142 dated 23.07.2014 is being challenged.
5. A direction is issued to the Chairman of the Board to cause circulation of the copies of this order to all the DEE's in the State with a specific direction that they shall monitor and ensure strict compliance of the conditions imposed on the units in respect of all the categories and to initiate action if any violation is noticed as required in law. It is also made clear that if an when any lapse on the part of the officials of the Board is brought to its notice, the Tribunal will not hesitate to initiate appropriate action against those officials found violating the order as envisaged under the enactment.
6.The Main Application No.40 of 2013(SZ) and all the pending applications and appeals connected to the Main Application and also the M.A.'s and R.A's are disposed of accordingly. However, there is no order as to costs.
65.It is brought to the notice of this Court that such orders are passed periodically, in view of the fact that there is no effective Mechanism in force to control the Ground Water Extraction by the individuals for commercial purposes and to monitor the same.
66.When this Court raised a question with the learned Advocate General, What is the Mechanism provided by the State in respect of the implementation of the Regulations now issued in G.O.(Ms).No.142, Public Works (R2) Department dated 23.07.2014? The Answer is negative. The State is unable to establish that an effective Mechanism is provided for strict implementation of the Regulations.
67.The learned Advocate General except by stating that the Assistant Director, Geology, is the authority to monitor the activities of these private players in respect of Extraction of Ground Water. Thus, this Court has to consider for an effective implementation of the Regulations till the legislations are enacted, covering the entire field of Extraction of Ground Water, which is a National property.
68.The petitioners, who all are the Commercial business people, have no right in respect of the Ground Water, which belongs to our Great Nation, and a National assets. Therefore, the writ petitioners cannot claim Extraction of Ground Water as a matter of legal right. As settled by the Apex Court that possession of a land will not confer any legal right for the owners to extract mines and minerals or water from the Earth. Even the sand in this regard cannot be removed without proper license and permission from the authorities concerned.
69.At the outset, Extraction of Ground Water cannot be claimed as a matter of legal right by the writ petitioners. Then the question arises, in the absence of any such legal right, What would be the relief, which can be considered in these batch of writ petitions? The learned counsels appearing on behalf of the writ petitioners contended that the State is not monitoring the Ground Water level periodically, enabling them to fix the categorization. The categorization of over exploited, critical, semi-critical, and safe blocks are to be assessed periodically, depending on the increase or decrease of water levels in the ground. In the absence of any such monitoring periodically, the State has no authority to impose a ban for Extraction of Ground Water by the petitioners Commercial organizations.
70.This Court is of an opinion that the petitioners in the absence of establishing any legal right cannot have any-say in respect of such categorization or in respect of the assessment to be made by the State for the purpose of regulating the Ground Water Level. Undoubtedly, the State is also bound to act reasonably and in accordance with the constitutional principles and perspectives. Such Regulations are issued in order to control the Ground Water Extraction by these Private players. Exploitation of Ground Water had gone to such an extent, more specifically, by the Commercial sectors. The State is bound to impose restrictions and regulate the same in the interests of public at large and to protect the Environment and the water resources for the benefit of the people of our great Nation.
71.Various Clauses are provided in the impugned order. Beyond the categorization of the area, Clause II of the impugned Regulations speaks about No Objection Certificate, which is required for drawal and transportation of Ground Water. Clause III provides Non Permissible Categories, which reads as follows:
(1) Drawal and transportation of Ground Water for Water based industries (i.e., those industries which use water as raw material) is not permitted from Critical and Over-exploited Blocks. Hence, water based industries are not eligible to get No Objection Certificate in Over-exploited and Critical Blocks.
(2) Highly Polluting Industries( 14 types -as categorised by the Tamil Nadu Pollution Control Board) are not eligible to extract Ground Water within 5km radius from Cauvery, Pennaiyar, Palar, Vaigai, Thamiraparani and all the major rivers and tributaries as specified vide G.O.Ms.No.213, Environment & Forest(EC-I) Department dated 30.03.89. In the above said impugned order, Conditions for Processing of Application Forms and the General Conditions are also provided in Clause V and Clause VI.
72.It is brought to the notice of this Court by the learned Advocate General that the Government issued G.O.Ms.No.113, Public Works (R2) Department dated 09.06.2016, which provides Estimation of Ground Water Resources of Tamil Nadu as on March 2011 and Categorization of Firkas as Over Exploited, Critical, Semi-Critical, Safe and Saline for Ground Water Development in Tamil Nadu. The said Government Order states that the National as well as the State Water Policies have emphasized periodic assessment of the Ground Water resources. So far, the assessment had been done once in five years. The time gap between two consecutive assessments has been reduced to two years and the scenario on the Resource Potential and categorization have also been changed since then. Further, right from the beginning, the Development Block was taken as the Unit for assessment based on which, all the Blocks were categorized. Nearly, more than 45% of the areas in the State fall under Over Exploited and Critical Blocks which require prohibition / Regulation of further Ground Water Extraction in the Blocks. Thus, it is made clear that the State is assessing the Ground Water Resources periodically. When such periodical assessments are made, accordingly, the Regulations are to be formulated in order to grant permission / No Objection Certificate(NOC) to extract the Ground Water for commercial purposes.
73.Though the model Ground Water(Sustainable Management)Act, 2016 was proposed, there is no legislation in existence to cover the issues comprehensively. It is the duty of the State to enact law in this field in order to protect the Environment, Ecology and Water Resources, so as to meet out the constitutional principles and requirements. Enacting a Comprehensive Act is imminent as the exploitation of Ground Water is almost in peak as of now. Like the sand smuggling, now the Ground Water smuggling also have been considerably increased. The ground waters are extracted by few individuals for commercial purposes, which infringes the rights of all other citizen. Water is life. Without water, there is no survival for the living creatures in this world. Water is common for the entire mankind. Thus, protection of the Ground Water is of paramount duty on the part of the State and in the interest of the public at large and is warranted under the Constitution. In the absence of enacting any comprehensive law in the field of Extraction of ground waters for commercial purposes, it would be a dangerous one for the future generation and to maintain stability of the land in the ground. Thus, the field occupies more importance on account of the exploitation of Ground Water by Private individuals for commercial purposes. As Sand Smuggling causes damage to the water resources, Extraction of Ground Water will also cause more damage for the human living as well as the living creatures in this world.
74.Article 21 of the Constitution of India guarantees not only life to the human beings, but also to the Animals. The Animals also have Right to Life. Its Right to Life is also protected under various statutes. Thus, providing of water to all living creatures in our Great Nation is an integral part of Article 21 of the Constitution of India and therefore, the Water Management and the Extraction of Ground Water by the private individuals for commercial purposes are to be certainly controlled and regulated for protection of Environment, Ecology and for the protection of the lives.
75.Article 51 A(g) of the Constitution of India, while enumerating the fundamental duties of the citizen speaks that to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures. Thus, it is the duty of every citizen to protect and improve the natural Environment including Lakes and Rivers and to have compassion for living creatures. This Court is of an opinion that a person, who is having a compassion for living creatures will not extract Ground Water contrary to the Regulations, affecting the constitutional rights of all other citizen in general. The Extraction of Ground Water in violation of the Regulations will certainly cause infringement of rights to all other persons. Thus, the duty cast upon every citizen by the Constitution to protect Environment, Lakes and Rivers, which includes water and water resources.
76.This being the constitutional principles, every citizen is duty bound to adopt the same in the interests of our Great Nation and for the better living of the humans as well as other living creatures in our Country.
77.Though the Government has issued Regulations in G.O.(Ms).No.142, Public Works (R2) Department dated 23.07.2014, there is no Mechanism to implement the Regulations in its strict sense. There is no provision to deal with the violators. There is no adequate provision to prosecute the violators. The Ground Water Extraction, without proper license or permission is certainly an offence. The Ground Water belongs to the Nation and belongs to the citizen of this Great Nation. Every citizen of this Great Nation has got a right to get clean water. Thus, the water is the National property and any illegal Extraction of Ground Water is undoubtedly an offence and appropriate prosecution of the offenders are to be initiated. In the event of allowing such private individuals to extract Ground Water for commercial purposes, the same will infringe the constitutional rights of all other citizens in general. When an offence is committed against the society at large, then the State is bound to initiate prosecution against all such offenders in order to try them in accordance with law.
78.As discussed above, Extraction of Ground Water for commercial purposes are certainly an offence and so far, the State has not treated this as a criminal offence and therefore, the exploitations are mounting to such an extent, the same causes irreparable damage to the Environment, water resources and more specifically, the stability of the land as a Global concept.
79.It is a common sense in the event of over Extraction of Mines, Minerals, Water and other natural resources from the Earth, the same will cause instability and dangerous position in the Globe. For every Extraction of natural resources, there must be a limit. Greediness of the men are limitless. Men are greedy to such an extent that they are not satisfied even after earning for more than 10 generations. However, it cannot be at the cost of the existence of the Globe or the existence of the mankind and all other living creatures in the World. Thus, it is a constitutional duty on the part of the State to ensure that all such Mines, Minerals, Water, Sand and other natural resources are protected and regulated, so as to prevent such irreparable damage caused. Undoubtedly, greedy men are destroying the Mountain, Over Extraction of Sand and Water. The consequences are not even sensitized to the people of this Great Nation. When the Constitutional principles and Ethos are reiterating that the State is bound to protect the Environment, Ecology, Water resources and natural resources, this Court is of an opinion that the State has failed in its duty to implement an effective Mechanism, so as to protect all these natural resources from few greedy men, who all are aspiring for unlawful enrichment for their personal gains. Thus, the State cannot wait no more and the Courts are also duty bound to insist the State to bring out an effective Mechanism, so as to protect the natural resources including water.
80.Water is life. Life is Water. Without water, no life. Already people of the State of Tamil Nadu are frequently facing droughts. We are not having adequate procedures and protections to save water. The water resources are encroached to such an extent that the State is unable to revive all those Ponds, Lakes and other water resources. Thus, water resources have already been converted as concrete jungles. Thus, it is a high time that the State should open its eyes and realize the situation in order to initiate effective steps to protect the mankind and the Earth. Nature gave us these resources for better living and not certainly for unlawful gains and unlawful enrichment for few individuals. Nature provides these resources for the happy living of the human mankind and all other living creatures. We are entitled to enjoy these resources for our livelihood and certainly not for unlawful enrichment.
81.Undoubtedly, providing clean and pure water to the citizen of our Great Nation is one of the constitutional perspectives. State has got an obligation to provide clean water to the citizen. During the process of providing a clean water, now the private players are permitted to purify the water and supply the same to the people at large. While marketing such clean water, the State is bound to regulate the same by adopting a pragmatic and balancing approach. On account of the business competition, these private players cannot be allowed to over extract the Ground Water for their personal gains. Commercialization of water business is inevitable on account of the need of the people. However, such commercialization of water must be regulated and restricted, so as to ensure that the Environment, Ecology, water resources and land stability in the Earth are protected without any compromise. Thus, in between these lines, the State is bound to act with sensitiveness. Any insensitiveness in this regard would result failure on the part of the State to fulfill the constitutional Philosophies and Ethos and also will cause irreparable loss and damage to the Earth as a whole.
82.One may think that Extraction of Ground Water to such an extent will not cause any damage on account of rainfall and other aspects. Research in this regard are not saying so. Researches conducted in these aspects are alarming and scientists are frequently issuing warnings to the Government that in the event of any failure in this regard, there will be dangerous consequences in future. We have no authority to destroy the nature. Nature is meant for the entire mankind and it is for the enjoyment and peaceful living of all the living creatures as well as the Plants, Trees, etc., in the world. This being the phenomenon to be realized by all concerned, this Court is of a firm opinion that any over Extraction of water has to be dealt with iron heart and without any leniency and in the interests of the entire mankind.
Extraction of Water for Commercial usage as an offence under the Indian Penal Code (IPC):-
83.In this context, this Court has to now consider, whether Extraction of Ground Water can be brought under the offences described in any one of the provisions in the Indian Penal Code (IPC). Curiously, this Court had gone into those aspects and Mr.C.Emalias, learned Public Prosecutor, assisted the Court in this regard by producing some of the judgments. When this Court, at the first instance, raised a question with the learned Advocate General that Extraction of Ground Water without proper licence or permission in accordance with the regulations, are to be construed as theft and in this context, this Court has sought for the assistance of the learned Public Prosecutor.
84.The learned Public Prosecutor cited the judgment of the Allahabad High Court in the case of Gajadhar, Applicant Vs. State, Opposite Party, reported in 1971 CRI LJ 1361(V 77 C 392) and the relevant paragraphs are extracted hereunder:
8. In the instant case, applicant took out the deed of agreement from a box kept in the outer sitting room of Chandra Shekhar and tried to run away with it. His intention in doing so was to cause wrongful gain to his brother Moti Lal, so that Banshidhar may not be able to rely on the agreement in order to escape his liability from the claim lodged against him by Moti Lal. It is thus obvious that applicant did intend not only to cause wrongful loss to Banshidhar but also to obtain wrongful gain to himself at his expense. Section 425 of the Indian Penal Code reads:
1. Whether with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility or affects it injuriously, commits mischief.
13. It is obvious that in the instant case all the ingredients of Section 378 of the Indian Penal Code are present. The deed of agreement was removed by the applicant with dishonest intention to get his claim for money against Banshidhar decreed and thereby causing wrongful gain to himself. It is not a case where the document has been mutilated only with a view to cause wrongful loss to Banshidhar.
14. When a person commits mischief, he only causes loss to another but does not gain himself. In theft wrongdoer makes dishonest gain at the expense of the victim. This is the essential difference between theft and mischief.
85.In a short judgment, the Allahad High Court in the case of Mahadeo Prasad and Anr Vs. Emperor, dated 1st June 1923, reported in 75 Ind Cas 159, which held as follows:
4.In re Chockalingam Pillay 13 Ind. Cas.819 : (1912) M.W.N.119 : 11 M.L.T.162 : 13 Cr.L.J.131 was a case in which the water had been cut off from the natural source and conveyed through pipes, and thus reduced into effective possession. It was held both with reference to the English authority and to the definition of theft contained in Section 378, Indian Penal Code that it could be the subject of theft.
86.In the case of T.S.Raghupathi Aiyar Versus Narayana Goundan & Others, decided by the High Court of Madras on 05.09.1928, reported in CDJ 1928 MHC 102, our High Court held as follows:
7. The expressions destruction of any property, such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, contained in Section 425, Indian Penal Code, appear to me to carry the implication that something should be done to the property contrary to its natural use and serviceableness. It may be mischief to throw the contents of a pot of food upon the fire, but it is not mischief, though it may be theft, to eat the food. And so here, since the graziers, by allowing their goats to graze, did no more than put the grass to its normal use, by the same reasoning their act would not amount to mischief, though it may have amounted to theft. As to this, that offence not having formed the subject of the charge, I do not wish to express a more definite opinion.
87.The Honble Supreme Court of India in the case of State(NCT of Delhi) Vs.Sanjay, reported in (2014) 9 SCC 772, held as follows:
60.There cannot be any two opinions that natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48-A of the Constitution requires that the State shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country. Similarly, Article 51-A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for all the living creatures. In view of the constitutional provisions, the doctrine of public trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, water and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership.
61.Reading the provisions of the Act minutely and carefully, prima facie we are of the view that there is no complete and absolute bar in prosecuting persons under the Penal Code where the offences committed by persons are penal and cognizable offence.
88.The Honble Supreme Court of India also clarified that there is no complete and absolute bar in prosecuting persons under the IPC, where the offences committed by persons are penal and cognizable offence.
89.In paragraph 71 of the above said judgment, the Apex Court held that however, there may be a situation where a person without any lease or licence or any authority enters into river and extracts sand, gravel and other minerals and remove or transport those minerals in a clandestine manner with an intent to remove dishonestly those minerals from the possession of the State, is liable to be punished for committing such offence under Sections 378 and 379 of the Penal Code.
90.Interestingly, out High Court of Madras decided a case on 17.01.1912 in the case of Chockalingam Pillai Vs. Emperor in Criminal Revision Case No.390 of 1911 and Criminal Revision Petition No.293 of 1911. The Coram decided the above case was Honble Justice.Miller, Honble Justice.Sundara Aiyar and Honble Justice Benson.
91.In that case, the accused has been convicted of the offence of theft by raising the door of Sluice No.154 on the Kannadian canal without the permission of the officers of the Government and thereby lowering the level of the water therein. The object of the accused in doing so was to divert more water to his lands than they would otherwise receive. He was charged in addition with the offence of mischief and convicted of both offences by the District Magistrate of Thirunelvelli. But the Sessions Judge, on appeal, reversed the conviction for mischief. The question to be decided by this Court is whether the conviction for theft can be sustained.
92.The Honble Justice Miller, is of the opinion that It would seem to be right to do so in this Country, where water is a highly-priced commodity. In England, water flowing in a river is regarded as not owned by any person. The right of the riparian proprietor is to use it. He is not the owner of the water, which he is entitled to use. The bed of a river which is not tidal and navigable is vested partly in one owner and partly in another, i.e., in the riparian proprietor on either side of the river. On the other hand, in this Presidency, at least in Ryotvari tracts, the bed of the river is vested in the Government.
93.If water in channels is owned by the Government in this Country, there is no reason why the Government should not be regarded as having reduced it to possession in the circumstances proved in this case and why it may not be regarded as the subject of theft whether in the case of any particular river, channel or reservoir, the Government can be said to be in possession must depend on the circumstances. The question must be regarded is one of the fact to be decided on the evidence in each case.
94.There seems to be no great difficulty, therefore, in holding in this case in the circumstances pointed out in the judgments of the lower Courts that the water in the Kannadian Channel was in the possession of the Government.
95.Considering these aspects of the matter, the Honble Justice Miller, arrived a conclusion The conviction for theft cannot therefore be sustained. The accused must in my opinion be acquitted and the fine, if paid, must be refunded.
96.The Honble Justice Benson, was of a dissenting view and said that its flow, the question of possession must be decided in each case by a reference to the degree of control exercised, and the facts stated in that case do not indicate the same degree of control as is indicated in the present case. To mention only one point:- In that case, the water is said to have run freely through the channel from the river and to have flowed into some Khal or Jhil unless diverted for irrigation. In the present case, the access of the water to the channel is controlled by a Government head-sluice or regulator. Its flow in the channel is at times controlled by dams built by the Government, and the flow ends in a reservoir or tank in the possession and under the control of the Government and, in fact, belonging to the Government.
97.The theft was complete as soon as the dog began to follow him. The essence of the offence consists in the dishonest taking of property out of the Possession of the owner, rather than in the taking of it into thiefs own possession. If, however, the word take is to be regarded as connoting the idea of the custody passing to the taker, I still think the requirements of Section 378 are fulfilled in the present case, for it is only necessary that the thief should intend to take, not necessarily that he should succeed in taking, and I find it difficult to understand what other intention the accused can have had if it was not to take the water to his land, where it would be in his possession and custody. That some of it might soak into the ground and so be no longer in his custody, or under his control, is immaterial. If any drop of it was capable of being in the thiefs custody the argument would have no force.
98.Recording the reasons, the Honble Justice Benson, in his judgment, held as follows:
12.Both the learned Judges, who heard the Revision Petition were of opinion that the water was in the possession of the Government. With that opinion, I agree and need therefore only consider the further question upon which their opinions differ. Now when once it is decided that the water was capable of being stolen, it seems to me impossible to resist the conclusion that it has been stolen in this case. The petitioner certainly intended to take it to his own field, and he took steps, which he must have considered were calculated to bring it there. He did not have it in his custody during that transit, but that, as Benson, J. points out, is not necessary! If the petitioners intention had been merely to let the water run to waste, possibly the case might have been different, though with regard to illustration (c) to Section 425, Indian Penal Code,it is to be observed that the illustration does not show that A took the ring from Zs possession to throw it away. The petition is dismissed.
99.When the Honble Justice Miller, held that the theft cannot therefore be sustained. The Honble Justice Benson took the view that Water is capable of being stolen.
100.The matter was decided by the Honble Justice Sundara Aiyar, proudly an Indian Judge of Pre-Independence Era. The Honble Justice Sundara Aiyar in his short judgment, held as follows:
1.Both the learned Judges who heard the revision petition were of opinion that the water was in the possession of the Government. With that opinion I agree, and need, therefore, only consider the further question upon which their opinions differ.
2.Now, when once it is decided that the water was capable of being stolen, it seems to me impossible to resist the conclusion that it has been stolen in this case. The petitioner certainly intended to take it to petitioner certainly intended to take it to his own field, and he took steps which he must have considered were calculated to bring it there. He did not have it in his custody during the transit, but that, as Benson, J., points out, is not necessary. If the petitioners intention had been merely to let the water run to waste, possibly the case might have been different, though with regard to illustration (c) to Section 425, Indian Penal Code, it is to be observed that the illustration does not show that A too the ring from Zs possession to throw it a way.
3.The petition is dismissed.
101.In the light of the spirit of the above discussions, let us now consider Section 378 of Indian Penal Code (IPC).
378. Theft.Whoever, intending to take dishonestly any movable property out of the possession of any person without that persons consent, moves that property in order to such taking, is said to commit theft. Explanation 1.A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.
102.The ingredients of the above provision of the Indian Penal Code (IPC) unambiguously stipulates that whoever, intending to take dishonestly any movable property out of the possession of any person without that persons consent. Thus, in respect of the water and other natural resources, the State is the person. It is a National asset. State is the custodian and in possession of all such National assets including water under the Earth. Thus, it is to be examined whether Explanation 1, of Section 378 IPC can be applied in respect of illegal Extraction of Ground Water for commercial usage. Explanation 1 of Section 378 of the Indian Penal Code (IPC), unambiguously enumerates that A thing becomes capable of being the subject of theft as soon as it is severed from the earth. Thus, it is crystal clear that so long as the water stays with the Earth undisturbed, the provision may not apply. However, once it is severed from the Earth by way of an Extraction, it becomes a theft, if it is extracted without any authority of law. Thus, it is unambiguous that a water is capable of being stolen, the water under the Earth is attached with the Earth. Water, being a National asset, if it is extracted without any authority of law, then it amounts to theft and certainly the persons committing such offence of theft under the Indian Penal Code (IPC), is liable to be prosecuted.
103.Section 379 of the Indian Penal Code (IPC), provides Punishment for Theft.
104.Let us now look into Section 425 of the Indian Penal Code (IPC); Mischief. Section 425 of the Indian Penal Code (IPC) stipulates that Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits mischief.
105.Explanation 1 of Section 425 of the Indian Penal Code (IPC), which reads as under:-
It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.
106.Illustration (b) of Section 425 of the Indian Penal Code (IPC), states that A introduces water into an ice-house belonging to Z and thus causes the ice to melt, intending wrongful loss to Z. A has committed mischief. Illustration (c)of Section 425 of the Indian Penal Code (IPC), states that A voluntarily throws into a river a ring belonging to Z, with the intention of thereby causing wrongful loss to Z. A has committed mischief.
107.Looking into the ingredients of Section 425 of the Indian Penal Code (IPC) and Explanation 1 and illustrations of the Indian Penal Code (IPC), it is unambiguous that if water attached to the Earth is extracted and wasted by a person, and thereby causing a wrongful loss, then the offence of Mischief under Section 425 of the Indian Penal Code (IPC) is attracted. To make it clear, if any person extract the Ground Water from the Earth and simply wasting with an intention to cause wrongful loss to the State, then the offence of Mischief under Section 425 of the Indian Penal Code (IPC) is committed by such person. Section 426 of the Indian Penal Code (IPC) speaks about Punishment for mischief. Thus, it is clear that an offence of mischief may not be applicable in respect of certain cases. However, in respect of the petitioners in all these writ petitions, if they extract water for commercial usage without obtaining any proper licence or permission, such an Extraction or over Extraction, will certainly attract Sections 378 and 379 of the Indian Penal Code (IPC) and all those persons are liable to be prosecuted for the offence of theft.
108.The Committee constituted is empowered to conduct surprise inspections in respect of the Ground Water extracted by the individuals and the establishments for commercial purposes and by violations of illegal extractions shall be viewed seriously and immediate actions are to be taken in accordance with law. The respondents / State may decide of charging for extraction of Ground Water for commercial usage and such a policy decision shall be considered in due course appropriately.
109.Coming to the regulatory part of the Extraction of Ground Water, all these commercial establishments, as discussed in the aforementioned paragraphs, implementation of the regulations are certainly imminent and the same is lacking on account of proper Mechanism and guidelines. Thus, this Court is inclined to pass the following orders:
(1) The impugned order of regulation issued by the 1st respondent in G.O.Ms.No.142, dated 23.07.2014 is confirmed.
(2) The respondents are directed not to grant licence, No Objection Certificate (NOC) or permission for the commercial establishments / person to extract ground water for commercial usage in the absence of fixation of water Flow Meter on the Board outlet, which is to be inspected.
(3) The respondents are directed to inspect the functional quality and other established standards of the Flow Meters fixed by the persons, who all are applying for permissions / No Objection Certificate (NOC) and at the time of granting permission / No objection Certificate (NOC), the Flow Meter should be sealed properly by the respondents / Public Works Department (PWD) officials.
(4) The Flow Meter must be sealed in such a way to prevent any tampering by any person. Quantum of Water to be extracted by individuals, are to be fixed periodically as per the assessment to be made by the P.W.D. Authorities as per the Regulations.
(5) The respondents are directed to measure the quantum of water extracted by the establishments / persons by taking meter reading every Month and accordingly, the same is to be regulated.
(6) The respondents are directed to follow all other terms and conditions fixed for grant of licence / permission for Extraction of Ground Water for commercial usage as per the guidelines issued in G.O.Ms.No.142, Public Works Department dated 23.07.2014.
(7) The respondents are directed to register the Police complaint in the event of identifying any excess Extraction of Ground Water by tampering the Flow Meters sealed or by any other means by any person. The case must be registered Under Section 379 of Indian Penal Code (IPC). In addition, if the water is wasted for causing wrongful loss, then Section 425 of the Indian Penal Code (IPC) will also attract.
(8) The respondents are directed to suspend the licenses by issuing show cause notices and by providing an opportunity to the persons, who have involved in the offence of theft or violation of all other conditions stipulated in the Government Regulations, or if a criminal case is registered. If any person is convicted, then he shall be permanently debarred from getting licence for Extraction of Ground Water.
(9) The District Collectors of all the Districts in the State of Tamil Nadu are directed to issue suitable directions / orders to the Revenue Divisional Officer, Tahsildars and all other officials concerned to inspect and monitor the Extraction of Ground Water by the persons for commercial usage.
(10) The District Collectors of all the Districts are directed to constitute monitoring committees to monitor the Extraction of Ground Water by the individuals for commercial purposes.
(11) Each Monitoring Committee appointed by the District Collector concerned, shall consists minimum of five persons and the Committee is empowered to monitor the Extraction of Ground Water for commercial purposes by the individual persons and commercial establishments.
(12) The Monitoring Committee shall consists of the following persons:
(i) The District Environmental Engineer from Pollution Control Board of the State of Tamil Nadu.
(ii) One qualified Public Works Department (PWD) Engineer from Water Resources Department.
(iii) The Assistant Director of Zoology and Mining of the State Government.
(iv) The Revenue Divisional Officer of the concerned locality.
(v) One nominee from the office of the Chief Engineer, Central Ground Water Board of the Government of India.
(13)The Monitoring Committee is entitled to collect proofs and documents in respect of the Extraction of Ground Water illegally and excessively by any person and submit a complaint / report to the District Collector concerned, who in turn, after verifying the same, shall register a complaint with the Jurisdictional Police for registering a criminal case under the provisions of Indian Penal Code (IPC).
(14) It is needless to State that, only in the event of compliance of the regulations and conditions imposed in this order, the persons / establishments shall be allowed to extract the Ground water for commercial usage or for commercial purposes.
(15) The 1st respondent / Secretary, Public Works Department is directed to issue a consolidated instructions in this regard based on the order passed in the present writ petitions to all the District Collectors, enabling them to implement the Court orders promptly.
110.With these observations and directions, all these writ petitions are disposed of. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed.
03.10.2018 kak Internet :Yes/No Index :Yes/No Speaking/Non-Speaking order To 1 The Secretary to Government of Tamilnadu Public Works (R2) Department St. Fort George Chennai-600009.
2 The Chairman Tamil Nadu Pollution Control Board, Guindy Chennai-600 032.
3 The Central Ground Water Board, Govt. of India-Ministry of Water Resources South Eastern Coastal Region, Rep. by its Regional Director, E-1 G-Block, Rajaji Bhavan, Chennai-600 090.
4 The Chief Engineer Public Works Department, Water Research Organization State Ground & Surface Water Resources Data Centre, Taramani, Chennai 600 113.
and others.
S.M.SUBRAMANIAM, J.
kak W.P.Nos.28535 to 28539 of 2014 & etc., batch 03.10.2018