Gujarat High Court
Kapila Palkesh Patel vs State Of Gujarat on 2 July, 2021
Author: Vaibhavi D. Nanavati
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/WRIT PETITION (PIL) NO. 6 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KAPILA PALKESH PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR. MANOJ T DANAK(6264) for the Applicant(s) No. 1
for the Opponent(s) No. 4,5,6
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
Opponent(s) No. 1
MR KAUSHAL D PANDYA(2905) for the Opponent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 02/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. This writ-petition in the nature of a Public Interest Litigation has been preferred by the petitioner who is a Page 1 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 resident of city of Surat, bringing to the notice of this Court that the respondents herein are not taking any action against the persons, who are illegally selling and providing water drawn from the tube-wells through tanker in the industrial area of Udhna-Pandesara, though the said activities were earlier prohibited by the Surat Municipal Corporation (hereinafter referred to as the 'Corporation' for short) and there is a resultant breach of law. The petitioner on several occasions had made applications/representations to prevent such persons from engaging themselves in the illegal activities addressed to the respondents No.5 and 6 i.e. Police Commissioner, Surat city and Police Inspector, Pandesara Police Station, Surat respectively, but no action has been taken so far in this regard.
2. The present public interest litigation is in the interest of people at large as there are many industries, persons, owners of tube-well, bore-well providing water through tankers by charging huge amount from the industries and residents. The petitioner has filed this petition with the following prayers :-
"(A) Be pleased to admit this petition.
(B) Be pleased to issue an appropriate writ, order or direction upon the respondents Authorities to take actions against the private bore well owners, who are supplying water illegally to the Udhna-Pandesara industries and the respondent Police Authorities may be directed to register the complaint against such bore well owners forthwith and take action against them;Page 2 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021
C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 (C) Grant interim relief and by way of interim order, be pleased direct respondent Authorities to place explanation report for not stopping the owners of private bore well in supplying the water illegally within the time as may be prescribed by this Hon'ble Court.
(D) Pass such other and further orders. as may be deemed just and fit."
3. The moot question raised by the petitioner in the present writ-petition is with regard to illegal supply of ground-water by tankers, pipelines to the industrial units in Udhna, Surat. Even otherwise, we have dealt with the similar issue while deciding the Special Civil Applications Nos.13193 and 15111 of 2014 to some extent.
4. The issue of restriction of ground-water is not restricted to the area of Pandesara, Udhna industrial estate and/or the city of Surat only, but it is a common concern throughout the State of Gujarat.
5. Submissions of the petitioner :-
5.1 Mr. Manoj T. Danak, the learned counsel appearing for the petitioner submitted that the petitioner is a public spirited person. According to the petitioner, she made representations repeatedly to the respondent-Corporation raising the above referred issue pointing out to the Corporation that there were some anti-social elements involved who wanted to extract Page 3 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 money by providing water through tankers from their bore-well and also resorted to blackmail the owners of the industries.
The Corporation replied to the said representations stating that the action was taken against the owners of such bore-well. It appears from the above fact that the concern shown by the petitioner in public interest litigation is that, there should be guidelines for regulation of ground-water extraction. The private bore-well owners should be required to seek permission from the authority and they should be an answerable about the usage and supply of water which would resultantly stop the illegal activities carried on by the private bore-well owners.
6. Submissions of the respondent-Corporation :-
6.1 Mr. Kaushal D. Pandya, the learned counsel appearing for the respondent-Corporation has fairly submitted that the Corporation on receipt of complaints take action against the water providers who resort to illegal activities which sometime result in sealing of the said business. However, he has submitted that the Corporation is not having any codified law for ground-water extraction and the usage of the same. Mr. pandya has produced Government Notification dated 24.9.2020 which is issued by the Ministry of Jal Shakti (Department of Water Resources, River Development and Ganga Rejuvenation) which is a Pan India Project. It has issued regulatory direction Page 4 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 and/or order regulating ground-water development and guideline to regulate ground-water extraction in the country in super-sessions to the Ministry Notification Vide No.S/O/6140/(E) dated 12.12.2018.
Analysis :-
7. We have heard Mr. Manoj T. Danak, the learned counsel appearing for the petitioner and Mr. Kaushal D. Pandya, the learned counsel appearing for the respondent-Corporation.
8. The issue before this Court which requires consideration is extraction of ground-water in the absence of any legal framework. Before we decide the main issue there is one aspect which requires to be considered - the importance of water. The issue regarding scarcity of potable drinking water finds place every week in the media reports in the form of newspaper or social media platform. The issue is of primary importance and some guidelines are required to be issued where the legal framework is absent.
9. There being no direct mechanism available to control the ground-water extraction, the exploitation of resources remains uncontrolled.
10. The Hon'ble Supreme Court and some High Courts have Page 5 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 given directions with regard to the ground-water extraction.
(a) The said directions issued 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 has made the following observations:
"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 Page 6 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 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. Mehta v. Kamal Nath [MANU/SC/1007/1997 : (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."
(b) In the case of Fomento Resorts and Hotels Ltd. reported in (2009) 3 SCC 571 while referring to the article of Prof. Joseph L. Sax, the Hon'ble Supreme Court 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:Page 7 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021
C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 Effective Judicial Intervention" (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."
(c) It is also apposite to refer to the observations and findings of Madras High Court in the case of Shanthi Aqua Farms and Ors. Vs. The Secretary to Government of Tamil Nadu and Ors. reported in 2018 (4) MLJ (Crl) 658 (Paragraphs 47 to 49, 51, 52, 54, 60, 63, 68 to 70, 73 to 82) :-
"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 India's 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 India's Page 8 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 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.
51. In the case of Centre For Public Interest Litigation and others Vs. Union of India and others, reported in MANU/SC/0089/2012 : 2012 3 SCC 1, the Apex Court held that "While distributing natural resources, the State is bound Page 9 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 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 MANU/SC/0761/2014 : 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."
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.
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.
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 Page 10 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 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.
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 Page 11 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 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.
73. XXX- XXXX 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 Page 12 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 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. XXXXX --- XXXX 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 Page 13 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 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.
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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."
(d) We would also like to refer to the decision of Kerala High Court in the case of Perrummatty Gram Panchayat vs State of Kerala and Ors. reported in 2004(1)KLT 731 Page 15 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 (Paragraphs 11, 12 and 14) :-
"11. Now, coming to the present case, at the outset, it has to be held that the order of the Panchayat to close down the unit on the finding of excessive extraction of ground water is unauthorised. The Panchayat can at best, say, no more extraction of ground water will be permitted and ask the Company to find out alternative sources for its water requirement. So, the Government's order to the extent it interfered with the closure of the unit has to be upheld.
12. The next point to be decided is whether the decision of the Panchayat that the Company should not be permitted to extract ground water is legal and if so, whether the direction of the Government to hold an investigation into the alleged excess use of ground water resulting in creation of drinking water scarcity and to take a decision thereon should be sustained or not. Groundwater is a national wealth and it belongs to the entire society. It is a nectar, sustaining life on earth. Without water, the earth would be a desert. At present, there is no law governing the control or use of ground water, submits the learned Senior Counsel for the 2nd respondent. The Kerala Ground Water (Control and Regulation) Act 2002 has not so far been enforced, Therefore, the Senior Counsel submits, the 2nd respondent is free to extract any amount of ground water which is available underground in the land owned by it. As a good neighbour, it may have a moral obligation not to make excessive use of ground water, so as to affect the persons in the neighbourhood, it is submitted. Legally, there are no fetters on the right of the 2nd respondent to extract ground water, it is pointed out. The Rule of law saves every action of the individual, which is not expressly prohibited by law, whereas, every action of the State must be supported by law, it is contended: Therefore, unfettered right is claimed to extract ground water. The above argument would appear sound at the first blush. It is true, one or two pre-Page 16 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021
C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 constitutional decisions of the High Courts support this view. In those decisions, the act resulting in the extraction of underground water is not treated as-an actionable wrong. See the decision in "Kesava Bhatta v. Krishna" (MANU/TN/0314/1945 : AIR 1946 Madras 334), The causing of depreciation of water in an open water channel running through a land, by constructing a pond in the neighbouring land, which resulted in percolation of water from the channel to the pond was held to be wrong in that decision. But the extraction of water running through unspecified courses beneath the ground was observed to be not an actionable wrong, relying on English decisions of the 19th century. The principles applied in those decisions cannot be applied now, in view of the sophisticated methods used for extraction like bore-wells, heavy duty pumps etc. Further, those decisions and the above contentions are incompatible with the emerging environmental jurisprudence developed around Article 21 of the Constitution of India. Principle 2 of Stockholm Declaration, 1972 reads as follows:- The natural resources of the earth, including the air, water, land flora and fauna especially representative samples of natural eco-systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.
In view of the above authoritative statement of the Honourable Supreme Court, it can be safely concluded that the underground water belongs to the public. The State and its instrumentalities should act as trustees of this great wealth. The State has got a duty to protect ground water against excessive exploitation and the inaction of the State in this regard will tantamount to infringement of the right to life of the people guaranteed under Article 21 of the Constitution of India. The Apex Court has repeatedly held that the right to clean air and unpolluted water forms part of the right to life under Article 21 of the Constitution. So, even in the absence of any law governing ground water, I am of the view that Page 17 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 the Panchayat and the State are bound to protect ground water from excessive exploitation. In other words, the ground water under the land of the 2nd respondent, does not belong to it. Normally, every land owner can draw a reasonable amount of water, which is necessary for his domestic use and also to meet the agricultural requirements. It is a customary right. But here, 510 kilolitres of water is extracted per day, converted into products and transported away, breaking the natural water cycle. A portion of the rain water is stored as ground water and the balance flows away. The ground water stored in normal circumstances is partially depleted by moderate extraction for domestic and agricultural purposes and also by evaporation through vegetation on the surface. Again, when the rains come, the underground reservoirs called aquifers get recharged and the cycle goes on. If there is artificial interference with the ground water collection by excessive extraction, it is sure to create ecological imbalance. No great knowledge of Science or Ecology is necessary to infer this inevitable result. If the 2nd respondent is permitted to drain away to a much of water, every land owner in the area can also do that end if all of them start extracting huge quantities of ground water, in no time. The entire Panchayat will turn a desert. In this context, it is apposite to quote the words of David B. Hunter (from the Article titled An ecological perspective on property A call for judicial protection of the public interest in environmentally critical resources published in Harward Environmental Law Review Vol. 12 (1988) Pages 311, which was quoted with approval by our Apex Court in "M.C. Mehta v. Kamal Nath" (MANU/SC/1007/1997 :
1997(1) SCC 388). The relevant portion reads as follows:- 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 1970's as well as by the pesticide scare of the 1960s. The current deterioration of the ozone layer is another vivid example Page 18 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 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 to be constrained. Human activity finds in the natural work is 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 for ever, 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. Therefore, I feel that the extraction of ground water even at the admitted amount by the 2nd respondent is illegal. It has no legal right to extract this much of national wealth. The Panchayat and the State are bound to prevent it. The duty of the Panchayat can be correlated with its mandatory function No. 3 under the third schedule to Panchayat Raj Act namely, "Maintenance of traditional drinking water sources" and that of the State of Article 21 of the Constitution India. Though ground water is not expressly mentioned, Section 218 of the Act makes the Panchayat, the custodian of all natural water resources.
Therefore the action taken by the Panchayat against the 2nd respondent to prevent extraction of ground water has to be upheld. So Ext. P6 order, to the extent it allows the 2nd respondent to continue the extraction of water till the Panchayat decides the matter with the help of experts, cannot be sustained. Even assuming the experts opine that the present level of consumption by the 2nd respondent is harmless, the same should not be permitted for the following reasons:
(1) The underground water belongs to the general public and the 2nd respondent has no right to Page 19 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 claim a huge share of its and the Government have no power to allow a private party to extract such a huge quantity of ground water, which is a property, held by it in trust.
(2) If the 2nd respondent is permitted to draw such a huge quantity of ground water, then similar claims of other land owners will also have to be allowed. The same will result in drying up of the underground aqua-reservoirs.
14. In view of the facts disclosed in this case and also in the light of the doctrine of public trust, I feel that the 2nd respondent should be restrained from drawing ground water excessively. Like every other landowner, the 2nd respondent can also be permitted to draw ground water by digging wells, which must be equivalent to the water normally used for irrigating the crops in a 34 acre plot. What can be the quantity of water that the 2nd respondent can be permitted to use has to be decided by the Panchayat. Recently, this Court allowed a Panchayat to grant licence to a small drinking water unit, provided the Ground Water Department reports that the functioning of the unit will not affect the availability of drinking water in the neighbourhood."
11. The following is discernible from the various laws referred to and discussed above:-
(1) Right to clean water is a fundamental right of every citizen. It is also the duty of every citizen towards the nation to maintain the natural resources.
(2) The State authorities are under constitutional obligation to maintain the natural water resources.
(3) The doctrine of public trust is applicable in the case of Page 20 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 ground water and its extraction and hence the activity of ground water extraction is required to be regulated in accordance with public interest and it cannot be put for commercial exploitation.
(4) Extraction of water for individual/personal use stands at a different footing than commercial exploitation of the same. (5) Deep underground water belongs to the State in view of the applicability of public trust doctrine and no individual can claim an exclusive right on the same merely because they are holding the land for their use. The State authorities are to act as trustees of such resources by all means.
(6) The State authorities are also under an obligation to prevent the exploitation by few to make sure the availability of water to public is not disturbed.
(7) Ecological balance requires maintaining the entire water cycle in its true sense and any artificial interference in the same is bound to cost the public at large. Exploitation of the ground water resources is bound to create an imbalance as can be traced from the statistics that have been relied by the Madras High Court in the case of Shanthi Aqua Farms (Supra) (8) The State is competent to legislate on the issue of water and its supply and usage across the State.
12. The question as to the availability of ground water to public at large is clearly covered under the scope of Page 21 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 fundamental rights available to the public at large. The said proposition cannot be disputed and the task as to how the same is to be made available to one and all is also the responsibility of the State Authorities. In this situation, the question is how to curb the exploitation of such natural resource and to make sure that effective mechanism for equal and just distribution of such resources. We had the benefit of few decisions of other courts wherein the issue of appropriation and exploitation of ground water resources is considered at length. We are in complete agreement with the same and the requirement for an effective mechanism is definitely the need of the hour.
13. The petitioner has mainly raised the grievance about the illegality which is committed at Pandesara Industrial Estate, Surat. Since we are hearing the writ petition in the interest of public at large and Mr. Kaushal Pandya, learned counsel for the respondent-Corporation has produced the Notification dated 24.9.2020 which is issued by the Ministry of Jal Shakti (Department of Water Resources, River Development and Ganga Rejuvenation), we take notice of the fact that illegal extraction of ground-water from bore-well by private users as well as illegal extraction of water undoubtedly is current issue. There should be some regulatory method to regulate the extraction of ground-water. The Ministry of Jal Shakti (Department of Water Resources, River Development and Ganga Rejuvenation) has Page 22 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 notified exhaustive guidelines to regulate and cover ground water extraction. The said guidelines are issued under the powers of Section 3 read with Section 5 of the Environment Protection Act, 1986. The said guidelines are in effect and the same is required to be implemented across India. The same guidelines exhaustively deal with lot of issues pertaining to extraction of ground-water for not only personal use but also for agriculture and commercial use. The said notification hence requires to be implemented in proper nature and spirit.
The notification is an exhaustive one covering various aspects of ground water supply and its regulation. The relevant extract and clauses of the said guidelines dated 24.09.2020 are as under :-
Guidelines to regulate and control groundwater extraction in India Preamble and Background:
On the directions of Hon'ble Supreme Court vide its order dated 10th December, 1996 passed in Civil writ Petition No 4677 of 1985, MC Mehta Vs Union of India, the Central Government had constituted the Central Ground Water Board as Authority vide notification number S.O. 38 (E), dated the 14th January, 1997 to exercise powers under sub section (3) of section 3 of the Environment (Protection) act, 1986 (29 of 1986) for the purposes of regulation and control of Ground Water Management and Development and to exercise certain powers and perform certain functions as per the said Act.
The Authority has been regulating ground water development and management by way of issuing 'No Objection Certificates' for ground water extraction to industries or infrastructure projects or Mining Page 23 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 Projects etc., and framed guidelines in this connection from time to time applicable in twenty two States and two Union territories, where ground water development is not being regulated by the State Government and Union territory administration concerned.
To have sustainable management of water resources in the country groundwater abstraction guidelines have been prepared to regulate groundwater extraction and conserve the scarce groundwater resources in the country.
These guidelines will come into force with immediate effect from the date of Gazette Notification and will supersede all earlier guidelines issued by the Central Ground Water Authority (CGWA).
These guidelines will have pan India applicability. Ground water abstraction in States/ Uts (which are not regulating ground water abstraction) shall continue to be regulated by Central Ground Water Authority.
Further, wherever States/ Uts have come out with their own groundwater abstraction guidelines, which are inconsistent with the CGWA guidelines, the provisions of CGWA guidelines will prevail. However, in case the guidelines followed by such States/ Uts contain some more stringent provisions than CGWA guidelines, such provisions may also be given effect to by the States/ Uts Authorities in addition to those contained in the CGWA guidelines. States may be at liberty to suggest additional conditions/ criteria based on the local hydro-geological situations which shall be reviewed by CGWA/Ministry of Jal Shakti, Government of India before acceptance.
All new/existing industries, industries seeking expansion, infrastructure projects and mining projects abstracting ground water, unless specifically exempted under Para 1.0 below, will be required to seek No Objection Certificate from Central Ground Water Authority or, the concerned State/ UT Ground Water Authority as the case may be. The entire process of grant of No Objection Certificate shall be online through a web based application system.
Page 24 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 Water management plans shall be prepared by all the State Ground Water Authorities/ Organizations for all Over-exploited, Critical and Semi-critical assessment units starting with Over-exploited units. Water management plans shall be reviewed and updated periodically. Water management plans, data on water availability and scarcity and policy framed in this regard shall be placed on the websites of Central Ground Water Authority/ State Ground Water Authority 1.0 Exemptions from seeking No Objection Certificate:
Following categories of consumers shall be exempted from seeking No Objection Certificate for ground water extraction:
(i) Individual domestic consumers in both rural and urban areas for drinking water and domestic uses.
(ii) Rural drinking water supply schemes.
(iii) Armed Forces Establishments and Central Armed Police Forces establishments in both rural and urban areas.
(iv) Agricultural activities.
(v) Micro and small Enterprises drawing ground water less than 10 cum/day 4.0 Commercial Use No new major industries shall be granted No Objection Certificate in over-exploited assessment areas except as per the policy guidelines.
Availability of ground water resources shall be given due regard while considering applications for grant of No Objection Certificate for commercial use.
Commercial entities extracting ground water shall be required to submit online annual water audit report including an audit of water use as mentioned in the relevant sections.
Page 25 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 CGWA/ State Ground Water Authority (SGWA) shall publish all such audit reports online. CGWA/ SGWAs shall engage independent agencies to verify the compliance of No Objection Certificate conditions periodically.
6.0 Bulk Water Supply All private tankers abstracting ground water and use it for supply as bulk water suppliers will now mandatorily seek No Objection Certificate for ground water abstraction. The bulk water suppliers through tankers drawing ground water in safe, semi-critical and critical assessment units shall pay groundwater abstraction charges as per the Table-6.1 A. The bulk water suppliers drawing ground water in overexploited assessment units shall pay the groundwater restoration charges as per the Table-6.1 B. All tankers will have to install GPS based system for their monitoring of movement/area of operation.
Modalities for issue of No Objection Certificate for bulk/tanker water supplies shall be worked out in consultation with States/Uts and suitable guidelines in this regard will be framed and issued separately for the same 10.0 Monitoring of compliance of No Objection Certificate Conditions To monitor the compliance of No Objection Certificate conditions, Central Ground Water Authority and State/ UT Ground Water Authorities shall take the following steps:
a. Suitable MIS will be developed for compliance monitoring.
b. District Collectors/Deputy Commissioners (DCs) /District Magistrates (DMs) are authorized to take enforcement measures like sealing of unauthorized ground water abstraction structures, disconnection of electricity, launching of prosecution against those violating the No Objection Certificate conditions Page 26 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 and taking action for imposition of Environmental Compensation.
c. Technical officers of CGWB/ CGWA and State groundwater organizations are authorized to take actions with respect to monitoring and periodic inspections with the approval of competent authority.
d. In case of violation of any of the No Objection Certificate conditions, the proponents shall be liable to pay the penalties as per Section 16.
13.0 Delegation of powers against illegal groundwater withdrawal Central Ground Water Authority has appointed the District Magistrate/ District Collector/ Sub Divisional Magistrates of each Revenue District/ Sub division as Authorized Officers, who have been delegated the power to seal illegal wells, disconnect electricity supply to the energised well, launch prosecution against offenders etc. including grievance redressal related to ground water in their respective jurisdictions.
In order to further decentralise and strengthen the monitoring and compliance mechanism as per the guidelines, officials of concerned Departments of Revenue and Industries of the States/Uts shall be appointed as Authorised Officers in consultation with the State/Ut Governments.
A copy of the No Objection Certificate issued by the CGWA in the No Objection Certificate Application Portal (NOCAP) will be forwarded to the respective District Magistrate/ District Collector. In case of any violation of the directions of Central Ground Water Authority and non- fulfilment of the conditions laid down in the No Objection Certificate, the Authorised Officers will file appropriate Petition/Original Application etc under sections 15 to 21 of the Environment (Protection) Act, 1986 in appropriate Courts.
Page 27 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 16.0 Provision of Penalty Penalty shall be imposed on the proponents for non-compliance of No Objection Certificate conditions issued by the appropriate authority. Rates of penalty proposed for non-compliance of various conditions of No Objection Certificate are given in Table 16.1.The rates of the penalty shall be reviewed periodically with the approval of competent authority in Ministry of Jal Shakti.
17.0 Other important Conditions (Applicable to all):
i. Sale of ground water by a person/ agency not having valid no objection certificatefrom CGWA/State Ground Water Authority is not permitted.
ii. In infrastructure projects, paved/parking area must be covered with interlocking/perforated tiles or other suitable measures to ensure groundwater infiltration/harvesting.
iii. In case of Infrastructure projects, the firm/entity shall ensure implementation of dual water supply system in the projects. Compliance of the same shall be submitted through the web portal.
iv. Non-compliance of conditions mentioned in the No Objection Certificate may be taken as sufficient reason for cancellation of no objection certificate accorded/ non-renewal of No Objection Certificate.
v. No application shall be entertained without supporting documents as specified in relevant sections.
vi. Abstraction structure(s) should be located inside the premises of project property.
vii. Self compliance of conditions laid down in the no objection certificate shall be reported by the users online in the web portal Page 28 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 of Central Ground Water Authority/state Ground Water Authority.
viii. Processing fee prescribed, if any, from time to time shall be charged for various services.
14. We direct the respondent No.1 to frame appropriate guideline and regulations following the directions given in the Notification dated 24.9.2020 issued by the Central Government.
We also direct the State Government and the local authorities to give effect to the guidelines and the same be implemented in true spirit. This would be a stepping stone to control the illegal and indiscriminate ground-water extraction and supply of drinking water and resultantly the exploitation of ground- water resources would be curbed to large extent.
15. The writ petitioner has sought direction against the respondent authorities for stoppage of illegal supply of water by private owners through their bore-well to industries and private users in the city of Surat as well as industrial units at Pandesara Industrial Estate. The above directions are inclusive and the same are also issued to the Surat Municipal Corporation.
16. We close this public interest litigation by expecting the concerned authorities to adhere to the guidelines dated 24.9.2020 in its true letter and spirit, however keeping it open to the petitioner or any other citizen to raise the grievance Page 29 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021 C/WPPIL/6/2021 JUDGMENT DATED: 02/07/2021 again before this Court, if the grievance is not resolved.
17. With the above discussion and observations the present writ petition stands disposed of.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 30 of 30 Downloaded on : Tue Aug 31 01:08:47 IST 2021