National Green Tribunal
Mr. Vijaysinh Dubbal vs Maharashtra Pollution Control Board on 25 February, 2022
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
BEFORE THE NATIONAL GREEN TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
_______________________________________________
ORIGINAL APPLICATION NO. 75/2017 (WZ)
(I.A. No. 135/2020, I.A. No. 139/2020
& I.A. No. 45/2021
IN THE MATTER OF:
1. Mr. Vijaysinh Dubbal
Aged: 35 years, Occ: Business
R/o S.No. 78, Pandhari Industrial Estate,
Shivane, Pune-411023
2. Mr. Santosh U. Sinha
Aged: 40 years, Occ: Business
R/o C/o. Ashok Pandey, Plot No. 146
Parvatinagar, Rameshwari Road,
Nagpur-440027
3. Mr. Dattatraya Namdev Bharne
Aged: 48 years,
R/at Post Mann,
Taluka-Malshi, District Pune
Applicant(s)
Verses
1. Maharashtra Pollution Control Board
Having Office at: Kalpataru Point,
3rd and 4th Floor,
Opp. Cine Planet, Sion Circle,
Mumbai-400022
2. The State of Maharashtra
Through The Chief Secretary
Government of Maharashtra
Mantralaya, Mumbai-400032
3. Ministry of Health and Family Welfare
Through Food Safety and Standards Authority of India
(FSSAI), FDA Bhavan near Bal Bhavan,
Kotla Road, New Delhi-110002
4. The Commissioner
Food and Drug Authority
S.No. 341, Bandra Kurla Complex 2nd Floor,
Opp. Reserve Bank of India, Bandra (East)
Mumbai-400051
5. The Commissioner
Nagpur Municipal Corporation
Health Department, Mahanagar Palika Marg,
Civil Lines, Nagpur-400001
6. The Commissioner
Pune Municipal Corporation
1
Corporation Building, Shivajinagar
Pune-411005
7. Water Sanitation Department
Mantralaya, G.T. Hospital Complex Building
Dhobi Talao, Mumbai-400005
8. The Regional Director
Central Ground Water Authority
NS Building, Civil Lines, Nagpur-400001
9. R.O. Chilled Water Manufactures Welfare Association, Nagpur
A society registered under the Societies Registration Act, 1860,
Through its President-Mr. Vimal Ramniwas Agarwal
Having office at C/p Nitin Tatyaji Kumbhare, Juni Mangalwari,
Mattipura Road, Near Ghodare Temple,
Near Nageshwar Primary School,
Nagpur-440008
10. M/s. Aqua Fresh
A Proprietary Concern,
Through its proprietor
Mr. Swapnil Vinaykumar Nagulwar,
Having office at House No. 262
Hampard Road, Near Takia India Gymkhana
Dhantoli, Nagpur
11. M/s. Baba Sales
A Proprietary Concern,
Through its proprietor
Mr. Murli Manohar Mohta,
Having office at Telipura Sitaburdi
Nagpur
12. M/s. Gopal Aqua
A Proprietary Concern,
Through its proprietor
Mr. Kanhaiya Dhonduji Padole
Having office at Old Kamptee Road
Near Naka No. 4, Kalamna
Taluka Nagpur, District - Nagpur
13. M/s. G.R. Aqua
A Proprietary Concern,
Through its proprietor
Mr. Rakesh Satyaprakash Gupta
Having office at Plot No. 119, Sadguru Nagar
Bhandewadi Paradi, Nagpur
Respondent(s)
Counsel for Applicant(s):
Mr. Asim Sarode, Advocate
Counsel for Respondent(s):
Mr. Shriram Chaudhari, Advocate for applicant in I.A. 45/2021
Mr. Anniruddha S Kulkarni, Advocate for CPCB
Ms. Pooja Natu, Advocate for R-1 & 2
Mr. Venkita Subramaniam TR, Advocate for R-9
2
PRESENT:
HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, CHAIRPERSON
HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
HON'BLE MR. JUSTICE BRIJESH SETHI, JUDICIAL MEMBER
HON'BLE PROF. A. SENTHIL VEL, EXPERT MEMBER
HON'BLE DR. AFROZ AHMAD, EXPERT MEMBER
Reserved on: 20th January, 2022
Pronounced on: 25th February, 2022
SYNOPSIS
Documents Para no Page no
Pleadings 1-15 3-8
Tribunal's orders 16, 17, 9,10,12,
22,23,26, 13 & 15
29-32
Affidavits/reply dated 24.08.2017 filed by respondents 1 and 2 18-19 9-10
Affidavit/reply dated 27.09.2017 filed by respondent 3 20 10
Affidavit/reply dated 09.10.2017 filed by respondent 4 21 10
Affidavit in reply dated 14.12.2017 filed by respondents 9 to 13 24-25 10-12
Action taken report dated 13.10.2020 pursuant to Tribunal's order 27-28 12-13
dated 19.06.2020
Action taken report dated 05.11.2020 pursuant to Tribunal's order 33 15
dated 19.10.2020
Affidavit dated 06.11.2020 filed by MSPCB pursuant to Tribunal's 34 15-16
order dated 19.10.2020
IA 135/2020 dated 30.11.2020/01.12.2020 filed by applicant 35 16
IA 139/2020 dated 09.12.2020 filed by respondent 9 36 16-17
IA 45/2021 dated 28.12.2020 37 17
Compliance report dated 30.12.2020 submitted by Regional 38-39 17-18
Director, CPCB, Pune pursuant to Tribunal's order dated
19.10.2020
Issues formulated 42 19
(i) Issue I, II and V 43-230 19-152
(ii) Issue III and IV 231-233 152
Ground water - Concept - Past and Present 48-63 21-29
Law of use of Ground Water 64-80 29-35
Provincial Enactments for Regulation of Ground Water 81-82 35-55
History of CGWA, its origin and relevant provisions relating to its 83-219 55-141
powers, duties etc.
Operative Part 234-236 152-154
JUDGMENT
BY HON'BLE MR. JUSTICE SUDHIR AGARWAL, JUDICIAL MEMBER
1. This Original Application (hereinafter referred to as 'OA') under Section 14, 15 & 20 of National Green Tribunal Act, 2010 (hereinafter referred to as 'NGT Act, 2010') has been filed by three applicants; Vijaysinh Dubbal, Santosh U. Sinha and Dattatraya Namdev Bharne complaining that manufacturing of chilled drinking water jars/cans (hereinafter referred to as 'packaged water') without obtaining consent to 3 operate is going on by rampant abstraction of ground water in various places of Maharashtra including Nagpur and Pune. Those who are dealing in the above process of abstraction, packing and selling of packaged water are not taking care of potability and compatibility with the standards prescribed under environmental laws for potable drinking water and thereby becoming a hazard to health of human beings and this is going on with the connivance or passive cooperation/coordination or tacit approval of Statutory Regulators. Some of such proponents, engaged in the above business, are impleaded as respondents 10 to 13. Respondent 9 is the association of "R.O. Chilled Water Manufacturers Nagpur".
2. Initially, OA was filed impleading only nine official respondents but later on, respondents 9 to 13 were impleaded pursuant to Tribunal's order dated 20.11.2017 passed in M.A No. 346/2017.
3. Brief facts stated in OA are that RO and UV treated purified chilled/cool canned water is not at all safe for drinking and human consumption. However, such water is being sold by small manufacturing units in cans and coolers. Such units have been set up in dingy rooms or basement, small rooms of shops or houses, etc. The business is being carried out by selling RO and UV treated water as drinking water in chilled cans and jars. The containers are unpackaged and unsealed, units are unhygienic, unmonitored and water is not tested regularly. Such units are operational without having any consent to operate from Maharashtra State Pollution Control Board (hereinafter referred to as 'MSPCB'). These units have no license or follow "Bureau of Indian Standards or Food Safety and Standards Authority of India" (hereinafter referred to as 'FSSAI') norms which are mandatory for selling packaged drinking water. Such units are functional throughout State of Maharashtra and constitute a threat to public health. The issue has been raised time and again but due to official 4 apathy or for certain other reasons, they are put under carpet and running of such units is a glaring example of environmental corruption. Very occasionally such issues are brought in light by some fearless and courageous journalists but they have not been able to get success to cut at the root of the problem. Ms. Manka Behl, a reporter from Times of India from Nagpur, published an article that workers of some RO plants used to unload dirty used cans from a mini truck and started washing them with water without using any disinfectants; caps of containers were soaked together in a bucket; dry containers were piled up and apparently looked old and not cleaned enough so as to be used for containing potable/drinking water; and many of such units are not having water harvesting system to collect rejected water.
4. Reporter further wrote that such units are functioning from places one can never imagine; they stay hidden from direct sight giving the business a clandestine outlook; though BIS norms clearly prescribe that such units should not run in low-lying areas such as basement but a filthy one was found running in a dimly lit basement of a building in Nandanvan area of Nagpur where rejected water was being released unscientifically in a drainage line which was close to a well and an official of Central Ground Water Board (hereinafter referred to as 'CGWB') said that discharged water can contaminate ground water and nearby wells, if it contain pollutants; the opinion of Hydro-geologist Vishal Doifode's statement was also reported that rejected water contains many chemical elements and if RO membrane is in good condition, almost 50% of water gets rejected after running through high pressure pump. Rejected water is highly concentrated with pollutants, sometimes even double than the original raw water.
5
5. Ms. Behl, also reported that interiors of Manish Nagar (Nagpur city), there was a unit operating hardly a few meters away from a nallah unlike other units, it was also completely dependent on ground water as a source; such units which are close to sewage or drainage line contaminate ground water; sometimes RO units are not used continuously to save expenses and as a result of the same, contaminated water is supplied to the consumers; unpackaged water can be dangerous and play foul with public health; people are generally not aware that running such units at unhygienic places where the ambience is also unsanitary, falls under the purview of MSPCB; water which is processed and packed for safe human consumption must satisfy definition of "Food" and attracts Section 2(a) and (d) of Environment (Protection) Act, 1986 (hereinafter referred to as 'EP Act 1986') which read as under:-
"2(a) "environment" includes water, air and land and the inter- relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property;"
6. Section 2(d) of EP Act, 1986 defines handling and reads as under:
"(d) "handling", in relation to any substance, means the manufacture, processing, treatment, package, storage, transportation, use, collection, destruction, conversion, offering for sale, transfer or the like of such substance;"
7. Handling processed water, treatment being given to water, packaging, storage and transportation of such chilled water must satisfy the definition of "environment" and "handling" and gives rise to a substantial question of environment arising from implementation of Acts scheduled in EP Act 1986.
8. Small units of water chiller just require Rs. 3 to 4 lakhs for installation. However, water chiller is harmful to human health and it has been scientifically proved that gases with chilled water are extremely dangerous for human health.
6
9. Nagpur Municipal Corporation (hereinafter referred to as 'NMC') unfortunately is working only unmindfully and blindly issuing "No Objection Certificates" (hereinafter referred to as 'NOC') for setting up of such units without verifying anything and examination of project scientifically.
10. In news reports, it was published that an Official of CGWB stated that all such units are withdrawing huge quantity of ground water illegally and without taking permission from Central Ground Water Authority (hereinafter referred to as 'CGWA'). The activities of such units not only lead to depletion of ground water but also causing contamination, if released waste water has pollutants. Experts have warned that consumption of such chilled water which is not treated properly poses serious threat to health, yet unpackaged drinking water has found a good market, particularly, due to huge illiteracy in rural India. Medical experts have warned that consumption of untreated or contaminated water can cause water borne diseases like Typhoid, Diarrhoea, Hepatitis, Cholera, etc.
11. FSSAI has issued a Notification dated 16.11.2016 wherein packaged drinking water (other than mineral water) is described as under:
"i) Water, other than natural mineral water that is likely to be used for human consumption and that is offered or sold in packaged form, by whatever name it may be called, offered or sold;
ii) Water shall be derived from surface water or civic water supply or underground water or sea water or any other consistent source of water which may be subjected to herein under specified treatments, namely, decantation, filtration.
Combination of filtration, aerations, filtration, with membrane filter depth filter, cartridge filter, activated carbon filtration. demineralization, remineralisation, reverse osmosis and packed after disinfecting the water to a level that shall not lead to any adverse effect in the drinking water by means of chemical agents or physical methods to reduce the number of micro-organisms to a level scientifically accepted level for food safety or its suitability." 7
12. Notification gives 6 tables of different parameters supposed to be complied by packaged drinking water. Such standards requirement relates to microbiological, organoleptic and physical, general concerning substances undesirable in excessive amount, parameters concerning toxic substance, parameters concerning radio-active residues and parameters concerning pesticides residues. The chilled jar water (packaged water) being sold in Maharashtra does not satisfy the above norms anyway.
13. One Mr. Abhishek Sinha was continuously endeavouring to raise his voice against such water chilling plants and chilled water jars manufacturers and on 26.06.2016 his efforts bore fruits when MSPCB, Nagpur issued notices to 94 units engaged in cool water/chilled water jars units and submitted proposal for initiating action against such units. However, no action was taken against the said units. Later on, directions were issued to 30 different water chilling units and they were directed to file applications for obtaining consent to operate.
14. As per information of the applicants, there are about 94 such units in Nagpur district and 26 around Pune. Several complaints of stomachache, etc. have been received from the people which are usually caused by contaminated water but no effective action has been taken. Despite having sufficient powers under the provisions of Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'Water Act, 1974'), no effective action has been taken by MSPCB and that is how above illegal units are running unabatedly.
15. With the above pleadings, applicants have prayed as follows:
"1. Direct MSPCB to close all cool water can/chilled water jar units (plants) in Nagpur, Maharashtra which are running without any consent to operate and without following other directions of MSPCB issued on 26.10.2016.8
2. Maharashtra Government may be directed to give list of all such units who are running cool water can/chilled water jars units in Maharashtra and take action there against."
16. Tribunal took up the matter on 18.05.2017 and after hearing counsel for the applicant, issued notices to the respondents.
17. Respondent 1 (MSPCB), respondent 2 (State of Maharashtra through Chief Secretary) and respondent 8 i.e., Regional Director, CGWA submitted their responses and respondent 4 i.e. Commissioner, Food and Drug Authority (hereinafter referred to as 'Commissioner/FDA') sought time to file reply.
Affidavits/reply dated 24.08.2017 filed by respondents 1 and 2
18. It is said that MSPCB is a statutory authority under Water Act, 1974 and Air (Prevention and Control of Pollution Act), 1981 (hereafter referred to as 'Air Act, 1981') and for implementation of EP Act, 1986 and Rules framed thereunder. Central Pollution Control Board (hereinafter referred to as 'CPCB') vide letter dated 04.06.2012, informed State Pollution Control Boards regarding categorisation of industries for grant of consent in Red/Orange/Green/White category. The directions contained in letter dated 04.06.2012 were modified vide letter dated 07.03.2016 issued by CPCB under Section 18(1)(b) of Water Act, 1974, wherein "mineralized water" was covered at Serial No. 54 of the final list of 'Green' category. MSPCB issued consent to establish/operate to 414 units of mineral water in State of Maharashtra, wherein one of the conditions is that such units would obtain prior permission/NOC from CGWA. Ministry of Health and Family Welfare, Government of India (hereinafter referred to as 'MoHFW') had issued Notification dated 15.11.2016 under Food, Safety and Standards (Food Product Standards and Food Activities) Regulations, 2016 (hereinafter referred to as 'FSS-FPS and FA Regulations 2016') and 9 therein packaged drinking water (other than mineral water) is at para 2.10.8.
19. One, Abhishek Sinha had made a complaint dated 02.08.2016 stating that 94 RO units sell contaminated water in Nagpur city and all such units are using groundwater as raw material, pouring of RO (reserve osmosis) reject water in water source which are also getting contaminated. Affidavit/reply dated 27.09.2017 filed by respondent 3
20. Various pattern and parameters of contamination/toxicity in water have been given in the above reply of respondent 3.
Affidavit/reply dated 09.10.2017 filed by respondent 4
21. It is said that as per Notification dated 15.11.2016, "packaged drinking water" means water other than natural mineral water that is likely to be used for human consumption and offered or sold in package form in whatever name, it may be called offered or sold. "Chilled water cool jar water and unpackaged water" does not come within the definition of "food and packaged drinking water".
TRIUNAL'S ORDERS DATED 03.10.2017 & 20.11.2017
22. Respondents 3, 5, 6 and 7 remained unrepresented, hence on 03.10.2017, Tribunal directed to proceed against them ex-parte.
23. On 20.11.2017, M.A. No. 346/2017 was taken up whereby request was made for impleadment of Association of Manufacturing and Selling Chilled Drinking Water in Cans/Jars and a few individual proponents which was allowed.
Affidavit/reply dated 14.12.2017 filed by respondents 9 to 13
24. The affidavit has been sworn by Shri Vimal s/o Ramniwas Agrawal, President of RO Chilled Water Manufacturers Welfare Association, Nagpur. 10 It is said that respondent/proponents are running small scale business of selling water in containers popularly known as "cool cans/thermoplast jars"; these jars/cans/containers can be opened at any time by moving or rotating their lid; the process involved in the said business only includes chilling of water and providing it in cool containers which are not sealed and packed, thus, business of respondent/proponents is not that of selling packaged drinking water; OA is not maintainable since no substantial question relating to environment has arisen; it is also time barred; allegations in OA are that water is likely to be polluted by Common Effluent Treatment Plant (hereinafter referred to as 'CETP'), Common Hazardous Waste Treatment, Storage and Disposal Facility, Common Bio-medical Waste Treatment and Disposal/Facilities in surrounding areas, hence, it is not clear whether grievance and apprehension is against CETP plant or packaged drinking water; allegations in OA are vague and reliance is mainly on media reports; writ petition No. 4343/2017 was filed at Nagpur Bench of Bombay High Court on 23.06.2017 by applicants raising the issue of unpackaged and potable drinking water; once it is admitted that the issue relates to FSSAI, no cause of action relating to environmental issue has arisen; and Respondents/Proponents have received closure notice from MSPCB stating non-compliance as under:
"a) You have not obtained consent to establish and consent to operate till date from the Board.
b) You have not provided disinfection system to the RO outlet water.
c) You have not obtained the permission/NOC from CGWA for abstraction of ground water as a raw material.
d) You have not obtained the permission from the other department such as NOC from Local body DIC registration.
e) You are disposing the RO reject without any treatment into the municipal drain."11
25. It is pointed out that applicants themselves are in the business of packaged water and OA has been filed to eliminate possible competition and trade obstacle in business and to affect livelihood of respondent/proponents; OA has been filed without impleading necessary parties and present OA is nothing but a gross abuse of the process of law; respondent/proponents are willing and ready to take all requisite permissions and have also applied for consent to establish and consent to operate; respondent/proponents also received notices from MSPCB stating that no NOC from CGWA has been submitted; respondent/proponents applied for NOC to CGWA but received a response that industries have not submitted proper referral letter issued by MSPCB; some respondents/proponents are owners of wells from which water is extracted and hence, there is no restriction on respondents/proponents to use/extract water from their own land; any closure or obstruction in the running business of respondent/proponents would cause irreparable loss and though they are willing and ready for compliance of all statutory requirements but the statutory regulators are creating unnecessary complications and uncertainty in compliance.
TRIBUNAL'S ORDER DATED 19.06.2020
26. OA was effectively considered on 19.06.2020 and noticing substance of prayer made by applicants, Tribunal directed Chief Secretary and MSPCB to obtain report from concerned local bodies etc., process it and submit factual and action taken report before Tribunal. Action taken report dated 13.10.2020 pursuant to Tribunal's order dated 19.06.2020
27. MSPCB convened a meeting of Urban Development Department, Food and Drugs Administration, Directorate of Municipal Administration 12 and Central Ground Water Authority, Government of Maharashtra and in the said meeting following decisions were taken:
"i. Maharashtra Pollution Control Board will prepare a basic format for collection of information and circulate to all the stakeholders.
ii. Dy.Secretary, Urban Development Deptt.-2/Directorate of Municipal Administration will collect information from all the Urban Local Bodies (Municipal Corporations, Municipal Councils and Nagar Panchayats).
iii. Central Ground Water Authority and Food & Drugs Administration wil provide the list of units to which they have issued NOCs."
28. MSPCB also forwarded a basic format for collection of information to CGWA, FDA and Directorate of Municipal Administration vide email dated 20.07.2020, pursuant whereto, CGWA informed that no NOC was issued to any cool water jar units; directed Municipal Administration to provide inventory of chilled water jar units running in Urban Local Body area in Maharashtra; FDA informed that cool water does not come under purview of FSSAI Act, 2006, as such no licence has been issued by them and CPCB informed that mineralized water in RO reject comes in 'Green' category. MSPCB also issued directions to 433 Local Bodies in State of Maharashtra to take action against illegally running units of packaged water.
TRIBUNAL'S ORDER DATED 19.10.2020
29. A detailed order was passed on 19.10.2020. It was observed that pursuant to order dated 19.06.2020, a meeting was held on 15.07.2020 which was attended by Urban Development Department, Food and Drugs Administration, Directorate of Municipal Administration, CGWA and Government of Maharashtra through video conferencing and following decisions were taken:-
"i. Maharashtra Pollution Control Board will prepare a basic format for collection of information and circulate to all the stakeholders.13
ii. Dy. Secretary, Urban Development Deptt.-2/Directorate of Municipal Administration will collect information from all the Urban Local Bodies (Municipal Corporations, Municipal Councils and Nagar Panchayats).
iii. Central Ground Water Authority and Food& Drugs Administration will provide the list of units to which they have issued NOCs."
30. As per the decision of joint meeting held on 15.07.2020, MSPCB forwarded a basic format for collection of information to various authorities vide email dated 20.07.2020 and in reply thereof, CGWA informed vide email dated 27.07.2020 that it has not issued NOC to any cool water jar unit. Directorate, Municipal Administration vide email dated 03.08.2020 provided an inventory of chilled water units in Urban Local Body area in Maharashtra. Directorate of Municipal Administration also informed that chilled water jar units are currently licensed by Urban Local Bodies under Shops and Establishment Act and no specific approval related to lifting of ground water is given by Local Bodies. FDA vide email dated 13.08.2020 informed that cool water does not come under the purview of Food, Safety and Standards Act, 2006 (hereinafter referred to as 'FSS Act, 2006', hence, they have not issued license under the said statute. CPCB vide letter dated 07.05.2016 informed that mineralised water along with RO reject is covered at serial no. 54 of the final list of 'Green' category but cool water, cane chilled water jar unit (plant) does not fall under purview of MSPCB.
31. MSPCB further issued directions to 433 Municipal Corporations/ Zila Parishad/ Municipal Councils/ Nagar Panchayats/ Cantonment Boards, across the State of Maharashtra directing to identify illegal activities of cool water cane, chilled water jar unit (plant) doing water selling business and to take action against them.
14
32. Tribunal referred to its order dated 15.05.2020 passed by Principal Bench in OA No. 685/2019 Rakesh Kumar v. Govt. of NCT of Delhi, and the guidelines issued by CGWA regulating extraction of groundwater, constituted a Committee and issued following directions:
"In view of the above, we reiterate our directions for devising suitable effective mechanism for preventing extraction of ground water by way of unauthorized tube wells and wherever such illegalities found, prompt coercive measures must be taken. Illegal extraction of ground water is a criminal offence under the EP Act. Compensation must be recovered on the formula already laid down. It will be appropriate that Chief Secretary, Delhi calls a meeting of all concerned within one month from today and oversees preparation of an appropriate SOP for fixing responsibility on the subject. Ministry of Jal Shakti may also take necessary steps in the matter......."
Action taken report dated 05.11.2020 pursuant to Tribunal's order dated 19.10.2020
33. It is said that MSPCB issued a standing order dated 26.10.2020 directing all Regional Officers to issue direction to the Local Bodies in State of Maharashtra to seal units of cool water can, chilled water jar units (plants) doing water selling business operating without permission/NOC from CGWA and FDA and pursuant thereto, directions have been issued by Regional Officers to Local Bodies.
Affidavit dated 06.11.2020 filed by MSPCB pursuant to Tribunal's order dated 19.10.2020
34. It is stated that show cause notices have been issued by MSPCB to 94 packaged drinking water units in Nagpur. Consequently, Regional Officers issued directions vide letter dated 18.10.2016 to 91 units since three were out of jurisdiction. Personal hearing was given to 88 units out of 91 in as much as two units were repeated and in respect of one, incorrect address was given. Out of 88 units, letters issued to 22 units were received back as un-served, hence closure directions were issued to 66 units. Standing order was issued on 26.10.2020, directing all Regional Officers to direct local bodies to seal packaged drinking water units 15 running in the jurisdiction of Local Authorities without any statutory direction/NOC/clearance and consequential directions were issued by Regional Officer on 27.10.2020.
IA 135/2020 dated 30.11.2020/01.12.2020 filed by applicant
35. This IA was filed by applicants Vijaysinh Dubbal and others seeking compliance of Tribunal's order dated 19.10.2020 by issuing direction to MSPCB. It is also requested that a letter be sent by Tribunal to Principal Secretary, Law and Judiciary, Government of Maharashtra, under Section 19 of NGT Act, 2010 informing all Subordinate Courts about Section 29 of NGT Act, 2010 so as not to entertain any dispute relating to environment and grant stay against order passed by Tribunal. It is said that 10 to 12 thousand Chilled Jar/Cans units (Plants) are working in State of Maharashtra and together acting against the authorities of MSPCB and Local Bodies so as not to allow them to stop functioning of such units. Statutory Authorities including Police are not taking effective steps for closure though they have enough powers under various statutes. Guidelines dated 24.09.2020 cannot be resorted to for the business of sale of ground water itself and further Chilled Jar/Can water is prepared by using Ammonia so as to keep water chilled for some time and it causes health hazard to the public, therefore, such units must be closed. IA 139/2020 dated 09.12.2020 filed by respondent 9
36. Praying for modification of Tribunal's order dated 19.10.2020, it is said that OA is motivated and in self-interest of applicants. Reliance is placed on the guidelines dated 24.09.2020 issued by CGWA, regulating ground water and it is said that under the said guidelines; MSME units drawing less than 10 KLD are exempted from obtaining NOC; Maharashtra is not in stressed category, therefore, restrictions applicable to other States cannot be applied to State of Maharashtra and consequently, in these 16 circumstances, direction of closure of packaged drinking water units was sought to be recalled and order dated 19.10.2020 was sought to be modified accordingly.
IA 45/2021 dated 28.12.2020
37. IA 45/2021 has been filed on behalf of Goldrich Aqua, Yedeshwari Aqua, Ghavane Aqua, Viraj Aqua and Balaji Aqua, all situated in Barshi, Solapur district, Maharashtra. Facts stated in the IA are broadly similar as stated in IA 139/2020 filed on behalf of respondent 9, hence, not repeated.
Compliance report dated 30.12.2020 submitted by Regional Director, CPCB, Pune pursuant to Tribunal's order dated 19.10.2020
38. It is said that a meeting was held on 04.11.2020 in reference to Tribunal's order dated 19.10.2020 and therein following decisions were taken:
"(i) Laydown Specific Parameters of Quality for Chilled Water Units:-
The Committee unanimously agreed that there is no need to lay down separate specific parameters of quality for chilled water units since BIS Standards for quality of drinking water already exist. BIS Standard of IS 10500:2012 (Indian Standard Drinking Water Specification, Second Revision) or Packaged Drinking Water 14543: 2016 are applicable, depending upon the process involved. In the present case, if the units are not involved in any kind of process in except chilling. IS-10500 Standards will be applicable, whereas if processing / RO is involved, the BIS 14543:2016 will be applicable.
(ii) Requirement of License to the Chilled Water Units:
Licence is issued by the Municipal Authorities/local body to these units, hence the regulation or verification of quality of water of Chilled drinking water shall be ensured by Municipal Authorities of the respective State /UT.
(iii) Requirement of Metering and Licensing of Chilled Water Units:
Metering and licensing of such units are required in view of quantum of water withdrawn by such units either from municipal supplies or groundwater. Information may be provided by Municipal Authorities to Central Ground Water Authority on quarterly or half yearly basis about number of Chilled Water Units permitted and unit wise quantity of groundwater permitted 17 for extraction. In case of any unit drawing more than 10KLD of Ground water, license should be issued by Municipal Authorities/local body only after obtaining NOC from CGWA. Norms specified in the latest Guidelines issued by CGWA shall be applicable for obtaining NOC or for imposition of Environmental Compensation in case of illegal abstraction of Groundwater."
39. Minutes of meeting were communicated to CGWA, Regional Directorate, CPCB, Pune and Regional Director, CGWB, Nagpur, Maharashtra vide letter dated 09.11.2020. Further CPCB vide letter dated 27.11.2020 requested Chief Secretary, Government of Maharashtra that the units which have no authority from CGWA or NOC from the Competent Authority, must be sealed immediately and legal/penal action be taken besides taking remedial measures to check, identify and regulate functioning of chilled water supplying units. CPCB also requested MSPCB to take necessary action and direct concerned Local Bodies for testing of quality of water being supplied by packaged drinking water units to the consumers.
40. Issue raised before Tribunal is functioning of drinking water units which are selling water in cans/jars, for consumption of human being but without any licence from Food Authorities, verification of prescribed standards as to whether such water is fit for human consumption or not and also by extraction of groundwater without any permission from Competent Authority.
41. The defense on behalf of respondents/proponents is that neither "water" being traded by them satisfy definition of 'food' under FSS Act, 2006, hence no licence is required thereunder nor NOC is required since most units dealing in extraction of groundwater for supplying packaged water to consumers are extracting less than 10KLD water hence exempted under Guidelines dated 24.09.2020, issued by CGWA and further that 18 most of the units are extracting ground water from bore wells installed in the land owned by such unit owners, who are entitled to withdraw groundwater being owner hence no permission or NOC is required, and, there is no violation of any law and OA deserves to be dismissed. ISSUES
42. The rival contentions in our view have given rise to following issues which need adjudication by this Tribunal:
i. Whether respondents/proponents, by installing bore wells in their own land, can extract groundwater for running their industrial units without any obstruction or requirement of NOC/consent/clearance from any Authority under any law?
ii. Whether NOC from CGWA for extraction of groundwater by respondents/proponents is necessary?
iii. Whether packaged water Traded by respondents/proponents for consumption of human satisfy the definition of "food" and needs licence under FSS Act, 2006 and/or regulated by standards set out under said Act?
iv. Whether consent under Water Act 1974 and/or Air Act 1981, is required by respondents/proponents and operation of their units without such consent is illegal?
v. Whether there is non-compliance of environmental norms prescribed under environmental laws on the part of respondents/proponents and if so, what action could be justified against respondents/proponents?
Consideration on merits:
43. ISSUES I, II, and V: These three issues are interconnected and can be considered together.
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44. Extraction of ground water in State of Maharashtra in particular, is the moot question involved in this OA. Abstraction of ground water for drinking and domestic purposes as also agriculture is not restricted since water is the basic requirement of human being for its sustenance. Clean and clear water has been held to be an integral part of Right to Life conferred under Article 21 of the Constitution and, therefore, if ground water is abstracted for sustenance, it is permissible in law and no objection to that extent may be raised, provided use of water for the above purposes is judicious and appropriate. However, when requirement of fresh water is for commercial or industrial purposes, situation changes. Different considerations have to be accounted for. Law has made different provisions in this regard.
45. In this OA, however, fresh water abstracted from earth (underground) is not used for commercial or industrial activities but the water itself is a trading commodity for the proponents. The units are not only water intensive industries but here commercial activities comprised of only abstraction of ground water and sell it by making them transportable through small cans and jars. In some cases, to increase the life they are also processed to make it chilled.
46. Basic contention of proponents is that most of them own the land wherein borewells have been installed and they are abstracting ground water for their trading activities from their land. Owners right of abstraction of ground water, and handle and deal with it in the manner they like, is recognised under Section 7 of Indian Easement Act, 1882 (hereinafter as referred to as 'IEA 1882') and according to the proponents, such right is not controlled or restricted by any law otherwise made by any competent legislature. Secondly, the contention is that proponents are mostly small traders/manufacturers abstracting less than 10 KL of water 20 every day and trading the same, and, under Guidelines dated 24.09.2020, no NOC is required by them. It is also stressed that in State of Maharashtra, ground water condition is not stressed as in other parts of the country and, therefore, different conditions will have to apply and law applicable to other parts of the country would be inapplicable.
47. The above stand of respondents/proponents shows their unawareness about environmental laws and particularly laws relating to ground water. We find it appropriate to have a brief understanding of the concept of ground water, its importance and statutes, if any available in country and in particular State of Maharashtra for regulating its abstraction.
GROUND WATER - CONCEPT - PAST AND PRESENT
48. Water is one of the five elements which constitute human body. It is needed for very sustenance of civilization. Interest of society, in general, and common man's need of water for drinking purposes, domestic uses etc., in particular cannot be doubted. In many areas, people find it difficult to get potable water, due to scarcity. Almost every second day we find crises of water, reported in media, in one or the other city. Simultaneously, there is commercial interest of individuals who contribute to the economy of the country and they require water for commercial purposes. The scarcity of water is well known. Search of solution of this problem is Global. Scarcity of water is being faced almost by all countries. Attempts have been made at different levels, including national and international, to take steps for making potable water available to the common man but simultaneously there cannot be a complete denial or prohibition for use of water in commercial and industrial activities which is the backbone of development and economy. A balance has to be made but when situation 21 comes in a given case, to select any one of them, obviously saving of life will have to be preferred.
Life cannot be imagined without water (बिन पानी सि सन ू ):
49. No one can dispute the importance of water. It is essential for life on earth. It is available on the planet in all the three phases namely solid, liquid and gas. Water ties together, major parts of earth climatic system, in the form of air, clouds, ocean, lakes, vegetation, snowpack and glaciers. Conversion and reconversion of one form of water to any other, is commonly known as water cycle which shows continuous movement of water within earth and atmosphere. In the form of liquid and solid, it is available on earth, on the surface and beneath the surface. Snowpack and glaciers are solid forms on the surface while in liquid form, it is available in the running condition as oceans, rivers, streams, waterfalls etc. and sometimes as water body or wetland in the form of lakes, ponds and other wetlands. Inside/beneath the surface, it percolates the sand and rocks and is available as ground water. Existence of ground water is necessary and integral part of water cycle in as much as it contributes to the surface water which is involved in the process of conversion as vapour/cloud due to heat or in cold areas solidify as snow. In the areas where large quantity of water evaporates, and results in scarcity of water on the surface, it is ground water which helps to maintain surface water and also contributes to fill water in wells. Water influences intensity of climate variability and change. It is key part of extreme events like drought and floods. If surface water exceeds the limit of carrying capacity, it will flood the plains and if evaporation of surface water is very high and recharge is not as per the requirement, it may result in causing drought. Not only for human sustenance, but, for every activity or in other words, in every walk of life, mankind needs water.
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50. Water has its role as an intimate part of the human existence, as an individual, or, in group or society, for personal life or social life, for household needs or commercial or industrial needs, etc. Everywhere water is required. It is fundamental and basic need of life cycle, whether it is animal kingdom or plant kingdom. It is, therefore, extremely important that water resources are protected, both, for human uses and eco-system.
51. Our forefathers at a very early stage, had recognized importance of water and educated people to respect nature, giving it spiritual and religious stature. Mountains, rivers, waterfalls, streams, ponds, wells, trees etc., all were treated as divine objects, and worshipped. The idea was that the people would be obliged not only morally but socially and religiously to protect nature including water sources, resources and, practice its reasonable utilization. Unfortunately, in the last few centuries, above learnings and teachings, handed down to us, by our learned, wise and farsighted esteemed forefathers/ancestors, have been ignored under a misconception of a materialistic kind of development. We have compromised with water resources, exploited indiscreetly, misused gift of nature i.e., free availability of minerals, wood, clean air and water, in all possible manner. That is how rivers, streams, and water bodies are drying, ground water table is depleting, glaciers are melting and world is facing a severe crisis of water supplies. True, the developmental activities cannot be made solely responsible in as much as population explosion, our negligence towards environmental pollution, etc. are some other root causes which have also contributed to this problem.
52. Sometimes, it is said that scientifically, water is never lost but only changes form, therefore, alleged crisis is artificial and a hollow cry. But this is not true. When we consider in the context of need of water for human activities, it is true that earth water is always in movement and 23 there is a natural water cycle known as hydrologic cycle. There is continuous movement of water on, above, and below the surface of the earth. But the cardinal fact is, if water, available on surface and under the surface, is used in an unplanned manner, irrespective of the quantum of water available at a particular place, there will be a scarcity and this will reflect not only on the hydrologic cycle but adversely affect water availability at other places also. If surface water for one or the other reason, goes down, recharge of ground water will also get reduced and it will create scarcity of ground water, reflect when it is sought to be extracted through wells and this will ultimately reflect upon the quantum of surface water also.
53. Water is important for the very sustenance, not only for Homo Sapiens but the entire animal kingdom. With water regime, civilizations have developed and disappeared. Interestingly, everybody knows that mankind cannot survive without fresh, healthy and sustained air, water and clean atmosphere, still ground level efforts for its protection are not so serious. Globally, though every country talks seriously about environment and its protection, shows concern about its depletion, but in practice, their action is not true to the words spoken in global meetings. Developed countries find themselves free to damage environment in the manner they like but blame underdeveloped or developing countries and so is the reverse. The developing and underdeveloped countries lack resources to take care and leave climate at its fate, and making it free to its inhabitants to use and consume natural resources in whatever manner they like. Extensive exploitation of water, either unregulated or with superficial or shallow regulation becomes destiny of water.
54. So far as India is concerned, historically, environment has been given a very pious place and regard, since pre-vedic as well as vedic era. 24
"Water", since pre-vedic era, has been recognized as a spiritual symbol.
Rigveda identifies "water" as the first residence or ayana of nara, the Eternal Being. Therefore, water is said to be pratishtha, the underlying principle, or the very foundation of this universe. In Sataptha, it is said:
"Water may pour from the heaven or run along the channels dug out by men; or flow clear and pure having the Ocean as their goal...In the midst of the Waters is moving the Lord, surveying men's truth and men's lies. How sweet are the Waters, crystal clear and cleansing...From whom... all the Deities drink exhilarating strength, into whom the Universal Lord has entered..".
55. Early Vedic texts also identify "water" as a manifestation of the feminine principle, commonly as Sakti. Rigveda said:
"I call the Waters, Goddesses, wherein our cattle quench their thirst; Oblations to the streams be given...".
56. It is said that the primordial cosmic man or Purusa was born of the Water. Later Vedic texts identify that, "Water is female.." (Satapatha). Philosophically, vedas bestows a sacred character on water, identified therein, a medium to attain spiritual enlightenment. Vedas identify water as the very essence of spiritual sacrifice, or as stated in Atharvaveda "the first door to attain the divine order". The use of water in daily life as well as in ritualistic ceremony was referred to as spiritual sacrifice, a process of attaining eternity. Rigveda said:
"...Whatever sin is found in me, whatever wrong I may have done, if I have lied or falsely sworn, Waters remove it far from me...".
57. Besides, philosophical and spiritual status given to environment including water, in ancient vedic scriptures, even on the issue of hydrology, we find a lot of material in vedic literature showing that since ancient time science of water was well developed in ancient India. Certain concepts of modern hydrology, we find, scattered, in various verses of Vedas, Puranas, Meghmala, Mayurchitraka, Vrhat Sanhita and other 25 ancient scriptures. Our forefathers in Vedic age, had developed the concept that water gets divided into minute particles due to the effect of sun rays and wind. In Puranas, at various places, it is alluded that water cannot be created or destroyed, and that, only its state is changed through various phases of hydrological cycle. Evaporation, condensation, cloud formation, precipitation and its measurements were well understood in ancient India as we find from the study of Vedic and Puranic scriptures. During the time of Kautilya, contrivances to measure rainfall were developed which had the same principle as that of modern hydrology, except that weight measures were adopted instead of modern linear measurement of rainfall.
58. Indians, in ancient times, had well developed concepts of groundwater occurrence, distribution and utilization. Ancient literature also reveals that hydrologic indicators such as physiographic features, termite mounds, soils, flora, fauna, rocks and minerals were used to detect presence of groundwater. In Vrhat Sanhita, chapter 54, we find a detailed description of variation in the height of water table with place, hot and cold springs, ground water utilization by means of wells, construction methods of well and requisite equipments. Chapter 54 of Vrhat Sanhita is named as 'Dakargala'. As early as 550 A.D., Varamihira presented a simple method for obtaining potable water from a contaminated source of water. Efficient water use, lining of canals, construction of dams, tanks, essential requirements for the construction of good tanks, bank protection methods, spillways and other minor aspects were given due consideration in ancient times in India.
59. "National Institute of Hydrology", (Ministry of Water Resources, River Development & Ganga Rejuvenation) (hereinafter referred to as 'MOWRRD&GR'), Jal Vigyan Bhawan, Roorkee, in a work, published in December 2018, has recognized that knowledge of hydrology was 26 permissive in ancient India starting from pre and dusk valley civilization days and has been discussed in depth in Vedas, Puranas, Arthashastra, Astadhyayi, Brihat Samhita, Ramayana, Mahabharata, Meghamala, Mayurchitraka, Jainist and Buddhist and many other ancient literature. In the aforesaid work of MOWRRD&GR, ground water is the subject of discussion in chapter 6. It is stated that in Rigveda, Samveda and Yajurveda, concept of hydrological cycle and water use through wells etc. was present which clearly imply use of ground water in chapter 54 of Vrhat Sanhita. Its author Varahamihira (AD 505-587) has dealt with ground water exploration and extraction with various surface features that are used as hydrologic indicators to look at sources from ground water at different depths in well, from 2.29 meters to 171.45 meters. In verses 54.1 and 54.61-62, chapter 54 of Vrhat Sanhita, two technical terms shira and shiravigyan have been used. The term shira implies arteries of water or streams. Shiravigyan exactly conveys the meaning of water table. Verse 54.2 says that the water which falls from the sky, originally, has the same colour and same taste, but assumes different colour and taste after coming down on the surface of the earth and after percolation. In a very scientific manner, ground water and its explanation were dealt with, keeping in mind the preservation of water and its availability for all times to come, without getting it polluted or contaminated by any external means or operations.
60. The science of water in India is ancient but unfortunately forgotten in the last few centuries. Indian sub-continent, was invaded and ruled by people from other areas having different concepts, convictions and religious culture. The ancient scientific knowledge went in dormancy. The invaders treated inhabitants in a very crude manner, did not hesitate in destroying treasure of knowledge given in this sub-continent by great 27 Saints and Rishis, and compelled common folk to believe that their cultural wealth was a myth. Huge collection of research and knowledge stored in educational institutes of repute were set on fire or damaged otherwise. Volumes of ancient knowledge treasure was also taken away by later invaders and rulers. The resultant subsequent unscientific, unmindful and irrational massive excavation, extraction and consumption, not only of surface water, but ground water, in the name of development of civilization, has created a situation where in some parts of country, even drinking water is not available or has become a serious scarcity.
61. Availability of water in all the areas is not uniform, whether it is surface water or ground water. Water covers about 71% of the earth surface. It comes to about 333 million cubic miles on the planet. In a U.S. Geological Survey's Water Science School, taking data source from Igor Shiklomanov's chapter "World freshwater resources" in Peter H. Gleick (editor), 1992, availability of earth water has been shown in three parts:
i.) For total global water available, 96.5% is in oceans, 0.9% is other saline water and only 2.5% is fresh water.
ii.) For 2.5% fresh water available, further division is that 68.7% thereof is in the form of glaciers and ice caps, 30.1% is ground water and only 1.2% is surface or other fresh water.
iii.) For 1.2% surface/other fresh water available, again it is in different forms, i.e. 69.0% as ground ice and permafrost, 20.9% lakes, 3.8% soil moisture, 2.6% swamps and marshes, 0.49% rivers, 0.26% living things and 3% in atmosphere.
62. In other words, as a rough estimate, out of total water supply of about 333 million cubic miles (1386 million km3), more than 97% is saline. 28 Only a small percentage, i.e., 2.5% fresh water is available. There against also, substantial part, i.e., 68% is locked up in ice and glaciers. A very small amount is available as surface water for human uses, i.e. 1.2%, which comes around 22300 cubic miles (93100 km3) which is about 0.007% of total water available on earth. These figures should not surprise us. Despite a very small fragment of water, available on surface, is consumable by human being, yet rivers are source of most of the water, the people use.
63. The quantum of ground water, comparing to the surface water, is definitely much more. However, comparing with global availability of water, it is a very small fraction thereof.
LAW ON USE OF GROUND WATER
64. In past, there was no control, regulation or supervision in respect of extraction of ground water. On the contrary, a recognition of owner's right to use ground water, we find in Section 7 of Indian Easement Act 1882 wherein Illustration (g) provides that land owners have the right to collect and dispose of all water under the land within their own limits. Availability of water vis a vis population and activities, was enough. Hence owners right on water was given recognition without any restriction or regulation. Habitation was village centric. It is 20th century urbanization which made drastic change in the life of common man creating various scarcities, most important whereof, is water including ground water.
65. In India, we had a persistent problem of acute and severe drought as also floods in various parts of the country, if not every year, then quite frequently. Some States are such which experience problem of flood and drought almost every year. A gigantic growth of infrastructure and industrial development in various forms also substantially consumed, not 29 only surface water but also ground water. Almost at the end of 20th century, it was realized that a systematic water regime is the only option to protect human race, existence whereof was imperilled, and in furtherance thereof, Government of India, though reluctantly, attempted to create common awareness. It sought cooperation of all the States when it prepared Model Bill 1970 and circulated to all the States with request for adoption. It did not result into immediate positive response though subsequent amendments and re-circulations were made in 1992, 1996 and 2005. However, some Provincial Governments responded by making Provincial enactments for regulation of ground water. These enactments may have the objective of regulation of ground water so as to protect and preserve water table but in effect the provisions showed identification of areas where ground water level was depleted, declaration of such hard areas as notified area, and thereafter, bringing in, the concept of permission, from a Ground Water Authority, allowed very leniently, without any scientific study, impact assessment, carrying capacity etc. It was like importing the idea of license-raj, in the field of consumption of water, in notified areas. The provisions necessary for recharge, restoration and replenishment and its effective monitoring to ensure that it is actually done, were lacking.
66. International community ultimately, more particularly in the last about fifty years, realized danger of scarcity of water, so much so, sometimes it is said that third world war will be fought for water. Consequently, some steps were sought to be taken to mitigate, restore and rejuvenate but positive effect is still a mirage.
67. In the context of environment, it has been held from time to time that a clean and healthy environment is part of Fundamental Right of life, 30 conferred by Article 21 of Constitution. In Subhash Kumar vs State of Bihar (1991)1SCC598, Supreme Court said:
"the right to live includes the right of enjoyment of pollution free water and air for full enjoyment of life."
68. In Narmada Bachao Andolan vs Union of India (2000)10SCC664, Court said:
" Article 21 of the Constitution of India provides for right to life and right to live with human dignity. The right to clean environment and further, pollution free water has been protected under the broad rubric of the right to life guaranteed under Article 21".
69. Reference is also made to Article 48A, inserted in Part 4, (Directive Principle of State Policy) by 42nd amendment of Constitution, w.e.f. 03.01.1977, which reads as under:
"48A. Protection and improvement of environment and safeguarding of forests and wild life: The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."
70. Further, Part 4A, comprises of Article 51A, was also inserted in the Constitution by 42nd amendment w.e.f. 03.01.1977 and reads as under:
"51A. Fundamental duties: It shall be the duty of every citizen of India-
(a) to abide by the Constitution and respect its ideals and institutions, the national Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;31
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement."
71. Concern about pollution of rivers and streams, render water unsuitable for supporting aquatic and surface life, causing damage to irrigation/agriculture, untreated discharge of domestic and industrial effluents in rivers etc., were certain issues which drew attention of Government India resulting in constitution of a Committee in 1962 to prepare a draft enactment for Prevention of water pollution. The report submitted by Committee was forwarded to various State Governments. It was also considered by Central Council of local self-Government in September 1963. Council resolved that a comprehensive law dealing with the issue of water pollution and control, at Central and State level, may be enacted by Central legislature. Since subject matter of legislation was relatable to entry 17 list 2 of Seventh Schedule of the Constitution, Parliament lacked legislative competence to make law on the subject (except as provided in Article 249 and 250 of the Constitution), i.e., unless legislatures of 2 or more States pass resolution in pursuance of subject. Consequently, Provincial legislatures of Gujarat, Jammu and Kashmir, Kerala, Haryana and Mysore passed such resolution. Thereafter, Bill of Water Act 1974 was prepared and passed by Parliament. It was also passed under 252(1) of the Constitution by Provincial legislatures of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal. Ultimately Water Act 1974 came into force on 23-03-1974. 32
72. At the first instance, it was made applicable to States which had passed resolution under Article 252 (1) adopting the said Act. Section 1 sub-section 3 said that it shall come into force at once in those States. Further it shall apply to the States which would adopt the said Act from the date of such adoption.
73. In the meantime, conference on human environment was held in Stockholm in June 1972 at the instance of United Nations in which India also participated.
74. In 1972 in Stockholm Convention, world leaders, showed global concern with respect of depleting environment and endeavoured to protect and preserve it by taking appropriate steps. Decisions were taken therein to take appropriate steps for preservation of natural resources. In furtherance to the said decision and in order to give effect to the International resolution passed at United Nations, Central Legislature enacted Air Act, 1981 which came into force on 16.05.1981.
75. Subsequently, it was realized that the existing laws focused on specific types of pollution or on specific categories of hazardous substance and major areas of environmental hazards are not covered. There were several aspects untouched and several gaps, needing a comprehensive statute, for protection and improvement of environment and matters connected therein. It resulted in enactment of EP Act 1986 which came into force on 19.11.1986.
76. In fact, Stockholm declaration caused amendment of Constitution and insertion of Article 48A in Fundamental duties chapter and also part of fundamental duties. The concept was that it is fundamental human right to live in an unpolluted environment and it is fundamental duty of every individual to maintain purity of environment. The issue of 33 environment assumed such an importance that Supreme Court in M.C. Mehta vs. Union of India A.I.R.1992S.C.382, directed University Grants Commission to prescribe a course on environment.
77. Since Statues for protection of environment were enacted to implement decision reached at Stockholm conference, the same are referable, to Article 253, to confer legislative competence upon Central Legislature, irrespective of subject in the list of legislation, under Schedule
7. Article 253 reads as under:
"253. Legislation for giving effect to international agreements:
Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body."
78. An enactment referable to Article 253 is further referable to entry 13 List 1 of Schedule 7 of the Constitution, which says:
"13. Participation in international conferences, associations and other bodies and implementing of decisions made thereat."
79. Further, there was no specific penal legislation dealing with the matter of environment in India. In Indian Penal Code, 1860 (hereinafter referred to as "I.P.C."), Section 268, defined "Public Nuisance" and abatement of public nuisance was covered by Sections 133 to 144 I.P.C. Section 269 to 278 I.P.C. made provisions which means that a person guilty or violating any of the above provisions would be liable to prosecution and punishment.
80. University Grants Commission (India) in February 1997, launched its symposium on development of environmental studies in Indian universities. This symposium was organized in collaboration with some other organizations. The consensus arrived in this symposium was that ecology and environmental issues should form part of the courses of study 34 at all levels. Government of India however treated environmental violations with more seriousness and in 2012, brought amendment in Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA 2002') by incorporating environmental laws i.e., Biological Diversity Act, 2002; Water Act 1974; Air Act 1981 and EP Act 1986 in Part A of the Schedule of PMLA 2002.
Provincial Enactments for Regulation of Ground Water:
81. Earlier the only available legislation was Indian Easement Act, 1882 which conferred certain rights upon the owner of a property to use water (groundwater) with ownership rights. There was no regulation governing abstraction of ground water. Government of India prepared a Model Bill in 1970 for ground water regulation and circulated to States for adoption. This version was revised in 1992, 1996 and 2005 but there was no substantial progress.
82. With the awareness of protection of environment, and international resolutions passed in United Nations, three enactments were made in India, Water Act 1974, Air Act 1981 and EP Act 1986 but specifically, problem of exploitation of groundwater was not dealt with. Lead was taken by some State Legislatures, and in brief, we refer to these Provincial enactments, to complete our stock of Statutory Provisions, available in India, to regulate ground water.
a) Andhra Pradesh:
i. The Andhra Pradesh Ground Water (Regulation for Drinking Water Purposes) Act, 1996 received assent of Governor on 05.02.1996. Section 1(3) provided that "it shall come into force on such date and in such local area of the State as the State Government may, by notification appoint, and different dates may be appointed for different local areas".35
ii. The terms 'Ground Water' and 'Over-exploited Watershed' are defined in Section 2(4) and (6) as under:
"(4) 'ground water' means water existing in an aquifer below the surface of the found at any particular location of the local area regardless of the geological structure in which it is stationary or moving and include all ground water reservoirs;
(6) 'Over exploited watershed' means a watershed where the estimated annual ground water extraction is more than eighty five percent of the estimated average annual ground water recharge, calculated in the prescribed manner, and declared as such under section 6;"
The term 'water scarcity area' is defined in Section 2(12) and "watershed" is also defined in Section 2(13) as under:
"(12) 'water scarcity area' means an area declared as such by the Appropriate Authority under section 4;
(13) 'watershed' means an area confined within the topographic water divide line, as identified and notified by the Ground Water Department from time to time having regard to the purposes of this Act;"
iii. Section 3 imposes restriction upon sinking of any well for any purpose, in the vicinity of a public drinking water source within a distance of two hundred meters if it is a source with Hand Pump or open well, and within a distance of two hundred and fifty meters if the source is used with a Power-Driven Pump. Sub Section 2 directs that any person, so desiring, will have to seek permission of the appropriate authority in such manner and on payment of such fee as may be prescribed. Section 4 confers power upon appropriate authority on the advice of Technical Officer, having regard to the quantum and pattern of rainfall and any other relevant factor, to declare water scarcity area, if he is of the view that public drinking water sources in any area of the district are likely to be affected adversely. Such declaration would be for a period not exceeding one year at a time. Sub-section 2 of Section 4 empowers appropriate authority to regulate extraction of water from any well by restricting or prohibiting extraction in the area 36 declared as "water scarcity area" under Sub-section (1). Sub- section (5), empowers appropriate authority to declare a watershed as over- exploited watershed on the advice of Technical Officer. When an "over-exploited watershed" is declared, Sub-section (2) imposes restriction upon any person for sinking well within the said area without permission of appropriate authority. Sub-section (6) empowers appropriate authority to prohibit extraction of water from existing well in the area of over exploited watershed, if found to be adversely affecting any public drinking water source, having regard to the quantum and pattern of rainfall and other relevant factors. The provisions for penalty and compensation are also made therein and procedure for passing orders adverse to any person giving remedy of an appeal are also provided.
b) Bihar
(i) Bihar Groundwater (Regulation and Control of Development and Management) Act, 2006: The Act was published in Bihar Gazette (Extraordinary), dated 29.01.2007. Section 1(3) stated that it shall come into force on such date as the State Government may appoint by notification in the Official Gazette. Here definitions of "Artificial Recharge to Ground Water" and "Ground Water" are given in Section 2(b) and (f) as under:
"(b) "Artificial Recharge to Ground Water" means the process by which ground water reservoir is augmented at a rate exceeding that under natural condition of replenishment.
(f) "Ground Water" means the water which exists below the ground surface in the zone of saturation and can be extracted through wells or any other means or emerges as springs and base flows in streams and rivers."
(ii) It provided for establishment of an Authority, namely Bihar State Ground Water Authority, by State Government, by publication of a Notification in an Official Gazette. Section 3 contemplates an 37 advice from the Authority after consulting expert bodies including CGWA, if it is necessary, to control and regulate extraction or use of ground water in any form in any area, to the State Government, to declare such area to be notified area for the purpose of aforesaid Act. When an area is notified then for extraction and use of ground water, a permit would be necessary, as provided under Section 6.
c) In National Capital Territory of Delhi, Department of Environment, has issued an order dated 18.05.2010, purported to be a direction under Section 5 of EP Act, 1986 observing that continued extraction of ground water has led to severe depletion of ground water resources; has serious long term environmental implications and over extraction of ground water may result in drying up of ground water resources which may also affect water quality. CGWA by Notification in March, 2006 notified East New Delhi, North-East, North-West and West District of Delhi as "Over-exploited" areas, needing regulation and restriction of ground water extraction structures in those districts, mandatory. The directions issued by Lt. Governor, National Capital Territory of Delhi say that in the whole of NCT of Delhi, no one shall draw ground water through bore well/tube well (new as well as existing) for domestic, commercial, agricultural and/or industrial uses without prior permission of the Competent Authority, i.e., Delhi Jal Board (DJB) or New Delhi Municipal Council (NDMC), as the case may be. Then, procedure for regulation of the above directions is given. Detailed Guidelines as to the factors to be considered for grant of prior permission, we find, are not mentioned in the said directions except that in certain cases, requirement is that the provisions for Rain Water Harvesting System shall be made.
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d) Goa Ground Water Regulation Act, 2002: Here also the concept of declaration of Scheduled area having regard to the potential of availability of ground water and other relevant factors, has been propounded and restriction on existing well or new wells in the Scheduled area is provided.
e) Kerala Ground Water (Control and Regulation) Act, 2002 (Act 19 of 2002): Enacted for conservation of ground water and regulation of its extraction. Here also is a provision for constitution of State Ground Water Authority and declaration of an area as "Notified area" where Government is satisfied that it is in public interest to regulate extraction of use of ground water in that area. In the "Notified area", any person desiring to use ground water, will have to seek a permit from the appropriate Authority.
f) Karnataka Ground water (Regulation and Control of Development and Management) Act, 2011: In State of Karnataka, pursuant to Government of India, Ministry of Water Resources's circulation of a Model Bill for regulation and control of development and management of ground water in 1992 and 1996, initially, Karnataka Ground Water (Regulation for Protection of Sources of Drinking Water) Act, 1999, (Karnataka Act 44 of 2003) was passed in 2003. It was substituted by Act, 2011 to control indiscriminate exploitation of ground water, especially in "Notified areas" in the State. Above Act received accent of Governor on 05.04.2011.
g) Lakshadweep Ground Water (Development and Control) Regulation, 2001, published in Lakshadweep Gazette (Extraordinary), dated 14.09.2001, made for regulation of ground water. It contemplated 39 a Ground Water Authority and declaration of any island as a "Notified Island" to control and regulate extraction or use of ground water.
h) Maharashtra Groundwater (Development and Management) Act, 2009, published in the Maharashtra Government Gazette (Extraordinary), dated 03.12.2013, was enacted to ensure and protect drinking water resources and regulate exploitation of ground water in State of Maharashtra. It contemplates constitution of Maharashtra Water Resources Regulatory Authority and empower State Government, on the recommendation of the authority, to declare any area as "Notified area" where it finds, in public interest, to regulate extraction or use of ground water in a watershed or aquifer area. Section 7 requires registration of all the owners of wells both in notified and non-notified areas of the State. There are other regulatory provisions.
i) Pondicherry Ground Water (Control and Regulation) Act, 2002 (Act No. 2 of 2013) was enacted to regulate and control development of ground water and for matters connected therewith.
j) Tamil Nadu Municipal Laws and the Chennai Metropolitan Area Groundwater (Regulation) Amendment Act, 2014 (Act No. 23 of 2014), was enacted to make amendment in Tamil Nadu District Municipalities Act, 1920, inserting provisions for permit for sinking any well in any area of third grade municipality, town panchayat or municipality etc. It also makes similar amendments in some Metro Cities enactments namely, Madurai City Municipal Corporation Act, 1971, Coimbatore City Municipal Corporation Act, 1981 and Chennai Metropolitan Area Groundwater (Regulation) Act, 1987. 40
k) The West Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005 (Act XVIII of 2005), published in Kolkata Gazette, (Extraordinary), dated 31.08.2005, to manage, control and regulate indiscriminate extraction of ground water. It contemplates a State Level Authority, i.e., West Bengal State Level Groundwater Resources Development Authority, an Authority at District level as well as Corporation level. The powers and duties of the Authority are given in different provisions, and basically, they have to take into consideration various aspects of managing groundwater resources in West Bengal, its Districts and Corporations.
l) Besides above, following enactments are also operating for control and regulation of ground water:
(i) Assam Ground Water Control and Regulation Act, 2012.
(ii) Gujarat Irrigation and Drainage Act, 2013.
(iii) Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005.
(iv) Madhya Pradesh Peya Jal Parirakshan Adhiniyam, 1986.
(v) Punjab Preservation of Subsoil Water Act, 2009.
(vi) Rajasthan Soil and Water Conservation Act, 1964.
(vii) Uttarakhand Ground Water (Regulation and Control of Development and Management) Act, 2016.
(viii) In Jammu and Kashmir, it is Water Resources (Regulation and Control of Development and Management) Act, 2010.
(ix) Union Territory of Chandigarh Water Supply Byelaws, 2011 (Amendment 2018).
(x) Haryana Water Resources (Conservation, Regulation and Management) Authority Act, 2020 published in the Gazette of Haryana dated 07.12.2020 (Extraordinary).41
m) Uttar Pradesh:
i. Lastly, we come to UPGWMR Act 2019, which was published in UP Gazette (Extraordinary), dated 07.08.2019. It has come into force on w.e.f. 02.10.2019 vide Notification dated 11.09.2019 issued under Section 1(3) of UPGWMR Act 2019. The terms 'Aquifer', 'Bulk user', 'Commercial user', 'Ground Water', 'Infrastructural User', 'Notified area', 'Pollution', 'Rainwater harvesting' and 'Urban Area' are defined in Sections 2(b), 2(e), 2(g), 2(q), 2(s), 2(u), 2(w), 2(x) and 2(aa) as under:
"(b) 'Aquifer' means an underground layer of geological formation, group of formations or part of a formation, comprising fractured rocks, sand, gravel and like sediments, that is sufficiently porous, permeable and saturated with water and that transmits/accepts and yields significant quantity of water to a well or spring;
(e) 'Bulk User' means a person or a group of persons including any establishment such as hotels/lodges/private residential buildings /housing colonies/resorts/private hospitals/nursing homes/ business complexes/malls/ water parks, which extract and use ground water for the purpose of his or her or their operational water needs;
(g) 'Commercial user' means a person or a group of persons including any institution or any agency or any establishment who or which extract and use ground water for the purpose which directly or indirectly benefits his/her or their business or trade to make financial gain or profit;
(q) 'Ground Water' means the water occurring in its natural state below the ground surface in the zone of saturation and that can be extracted through wells or any other means or emerges as springs and base flows in streams and rivers;
(s) 'Infrastructural User' means a person era group of persons including a firm or any company, who or which extract and use ground water for the-purpose of carrying out such activities projects which are directly related to infrastructural development;
(u) 'Notified area' means the area notified as such under section 9 which includes Over-exploited, Critical blocks and Stressed Urban Areas;
(w) 'Pollution' means such contamination of ground water or surface water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage, Plastic, Thermocol or trade effluent or of any other liquid, 42 gaseous, or solid substance into ground water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such ground water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other: legitimate uses, or to the life and health of animals or plants or of aquatic organisms;
(x) 'Rainwater harvesting' means the technique or system of collection and storage of rainwater, at micro watershed scale, including roof-top harvesting, for storage or for recharge of groundwater;
(aa) 'Urban Areas' means the areas notified by a development authority or a municipality or a regulatory body as the case may be, excluding such areas/lands as are classified for agriculture use in the master plan of a development authority or a municipality or a regulated area;"
ii. Further, in exercise of powers under Section 7 of UPGWMR Act 2019, UP State Ground Water Management and Regulatory Authority (hereinafter referred to as 'UPSGWMRA') was constituted vide Notification dated 13.11.20119, published in UP Gazette (Extraordinary), of the same date. By another Notification dated 02.01.2020, published in UP Gazette (Extraordinary) of the same date, Governor in exercise of powers under Section 6(1) of UPGWMR Act 2019 directed UPSGWMRA to constitute District Ground Water Management Committee (hereinafter referred to as 'DGWMC') for each district of the State, consisting of Chairman and Members, in accordance with provisions of the said Section. Thereafter, by Notification dated 25.05.2020, published in UP Gazette (Extraordinary), of the same date, in exercise of powers under Section 49, State framed "UP Ground Water (Management and Regulation) Rules, 2020" (hereinafter referred to as 'UPGWMR Rules 2020'). In exercise of powers under Section 9(1) of UPGW Act, 2019, Notification dated 17.06.2020 was published, notifying rural and urban areas of State of UP, mentioned in the schedule, as 'Notified area' for taking up appropriate measure for overall management and regulation of ground water w.e.f. 02.10.2020. 43 The rural areas of UP, in respect of Amroha included Blocks- Dhanora, Gajraula, Hasanpur, and Joya. Vide Notification dated 03.07.2020, published in UP Gazette (Extraordinary), of the same date, Governor, in exercise of powers under Section 3 of UPGWMR Act 2019, directed DGWMC to constitute Gram Panchayat Ground Water Sub Committee (hereinafter referred to as 'GPGWSC') for each Gram Panchayat for each District. iii. Under the scheme of UPGWMR Act 2019, Section 3 contemplates constitution of a GPGWSC in every Gram Panchayat, being the lowest public unit in rural areas, within a block, to protect and manage ground water resources under UPGWMR Act 2019. Its functions include collection of information from all resources; prepare GPGW security plan and carryout such other functions as may be prescribed.
iv. In Urban areas, Section 5 of UPGWMR Act 2019, contemplates constitution of a Municipal Water Management Committee (hereinafter referred to as "MWMC"), for managing water in an integrated manner. Its functions include work in coordination with water related institutions within the respective municipality; to determine the sources of water supply (surface water and ground water) and integrate them; to prepare an overall municipal ground water security plan; register all the wells within notified and non-notified areas other than those of existing commercial, industrial, infrastructural and bulk users; to monitor implementation of municipal ground water security plan and to carry out such other functions as may be prescribed. v. Section 6 of UPGWMR Act 2019, contemplates constitution of a DGWMC being an overall unit for management of ground water resources at district level. Its function includes consolidation of 44 Block Panchayat and Municipal Ground Water Security Plan into District Level Ground Water Security Plan, based on macro watershed approach and as per guidelines prescribed, implementation of District Ground Water Security Plan; monitor, implementation of District Ground Water Security Plan; conduct water awareness programs; register all existing commercial, industrial, infrastructural and bulk users in notified and non- notified areas and grant authorization certificate/NOC for ground water abstraction in non-notified areas and registration of drilling agencies; carry out such other functions, as may be prescribed or assigned by UPSWMRA and to coordinate with WPGW Sub- Committee, Block Panchayat Ground Water Management Committee and Municipal Water Management Committee as well as SGWMRA. Section 7 empowers State Government to constitute UPSGWMRA, which was constituted by Notification dated 13.11.2019.
vi. Chapter III comprises of a single Section, i.e., Section 8 and lays down duties of Ground Water Department. It says that Department shall develop a mechanism to coordinate with the appropriate body namely, MGWMC and BPGWMC for rural areas and DGWMC for urban areas. They shall work as Technical Secretariat for SGWMRA. Sub-section (3) requires Ground Water Department to identify and delineate the areas, such as over- exploited and critical blocks, categorized as per latest Ground Water Resource Estimation, carried out by Ground Water Department and CGWB, in consultation with SGWMRA. It shall also identify and delineate stressed Municipal/Urban areas (where decline of ground water levels is significant, i.e., more than 20cm/year, recorded during the last five years), for taking up 45 appropriate measures for overall management and regulation of ground water in such areas. The areas so identified, shall be designated as 'Notified areas' for the purpose of regulation through Notification.
vii. Section 9 contemplates identification and delineation of 'Notified areas' for management and regulation of ground water resources and read as under:
"9. (1) Where the State Ground Water Management and Regulatory Authority, after consultation with appropriate authorities (based on inputs from the Ground Water Department) is of the opinion that it is necessary or expedient in the public interest to manage and regulate ground water for various purposes in any form in any area and to enforce rain water harvesting/ground water recharge and to implement various appropriate water conservation/water saving/water efficient practices mover-exploited/critical blocks and stressed urban areas (as identified and delineated by the Ground Water Department) where ground water levels have depleted to critical or alarming levels, it shall advise the State Government in such manner as may be prescribed to declare by notification such areas as Notified Areas for the purposes of this Act with effect from such date as may be specified in the notification :
Provided that-
(a) the date specified in the notification under this sub-section shall not be earlier than three months from the date of publication of the notification;
(b) every notification in Hindi as well as in English languages under this section shall, in addition to its publication in the Gazette, be published in not less than three daily regional newspapers Waving wide circulation in that region and also be served in such other manner as may be prescribed.
(2) The Procedure for Demarcation and issuance of notification of the areas referred in sub-section (1) shall be such as may be prescribed.
(3) The notification issued under sub-section (1) shall be reviewed periodically under the new Ground Water Assessment Report and according to the findings of the report, shall be in such manner as may be prescribed."
viii. Section 10 talks of registration of existing commercial, industrial, infrastructural and bulk users of Ground Water in Notified Areas, and says:
46
"10. (1) Registration of existing commercial, industrial, infrastructural and bulk users of Ground Water: Every existing well for commercial, industrial, infrastructural and bulk user located in Notified Areas (both urban and rural areas) shall apply to the respective District Ground Water Management Council for grant of a certificate of registration. The procedure, time limit, forms, fee etc. and other provisions for the grant of registration certificate shall be such as may be prescribed:
Provided that-,
(a) where any existing Commercial user or Bulk user is found extracting ground water without registration, he or she or a group of persons or an agency (as the case may be) shall be liable to be punished under Chapter-VIII;
(b) where a registered well becomes defunct, the fact shall immediately be brought to the notice of the respective District Ground Water Management Council by the user of ground water;
(c) where any such user of ground water, having' certificate of registration wants to carry-out any modification or alteration in a registered well, he or she or a group of persons or an agency (as the case may be) shall obtain clearance for the same from the State Ground Water Management and Regulatory Authority in such manner as may be prescribed.
(2) Every existing and future users of ground water, other than those mentioned in sub-section (I), including domestic and agriculture users of ground water shall register online, or directly to the respective Block Panchayat Ground Water Management Committee/Municipal Water Management Committee for ground water usages. The web-portal for online intimation shall be informed by the said committee."
ix. Section 11 deals with similar registration of existing commercial, industrial, infrastructural and bulk users of Ground Water in Non-notified Areas.
"11. (1) Every well (existing or to be sinked) for commercial, industrial, infrastructural and bulk use of ground water in non- notified areas shall apply to the respective District Ground Water Management Council for grant of a certificate of registration. The procedure, time limit, forms, fee etc. and other provisions for the grant of registration certificate shall be such as may be prescribed Provided that-
(a) if any Commercial, Industrial, Infrastructural or Bulk user of ground water is found extracting ground water without registration, he or she or a group of 47 persons or an agency (as the case may be) shall be liable to be punished under Chapter-VIII;
(b) if a registered well becomes defunct, this fact shall immediately be brought to the notice of the respective District Ground Water Management Council by the user of ground water;
(c) if any such user of ground water, having certificate of registration wants to carry-out any modification or alteration in a registered well, he or she or a group of persons or an agency (as the case may be) shall have to obtain clearance for the same from the respective District Ground Water Management Council in such manner as may be prescribed.
(2) Every existing and future user of ground water, other than those mentioned in sub-section (1), including a domestic or an agriculture user of ground water shall register online or directly to the respective Block Panchayat Ground Water Management Committee/Municipal Water Management Committee for ground water usages. The web-portal for online intimation shall be informed by the said committee."
x. Section 12 imposes restriction on new well constructions in Notified areas and reads as under:
"12. (1) No person or group of persons or institution or agency or establishment shall construct/sink any new well for Commercial, Industrial, Infrastructural and Bulk use including construction of borings/tube-wells under Government Schemes within the Notified areas, except Government schemes for drinking water supplies and tree plantations. If anyone contravenes the provisions of this sub-section, he or she will be liable for punishment under Chapter-VIII. Such ban shall continue till the area is de-notified by the State Government on advice of Uttar Pradesh State Ground Water Management and Regulatory Authority on the basis of new Ground Water Recourse Estimation Report or significant improvement in declining trend of urban ground water levels after seeking approval from the State Government.
(2) Extraction, sale and supply of raw/unprocessed/ untreated ground water in Notified Areas by a person or class of persons or institution or agencies or any other establishment for the purpose of commercial/bulk uses will not be allowed and such an act will be punishable under Chapter-VIII.
xi. Section 15 empowers SGWMRA, in consultation with Ground Water Department, to fix ground water abstraction limit for existing Commercial, Industrial, Infrastructural or Bulk users of ground water, while issuing registration for well in Notified as well 48 as non-notified areas, on such terms and conditions as may be prescribed.
xii. Section 24 deals with demarcation and protection of ground water quality sensitive zones for the purpose of prevention and control of ground water pollution in such areas and also to find safe quality zones for potable water supplies. Sub-section (2) says that the areas demarcated in sub-section (1) of Section 24 shall be declared as Ground Water Quality Sensitive Zones by Notification issued by State Government.
xiii. Section 28 imposes ban on direct recharging from open areas into aquifers and says:
"28. (1) In the process of Artificial Recharge to Ground Water from rain water (except from rooftop) falling on open land, ground, roads (paved/unpaved), agricultural farms shall not be allowed for direct recharging into the aquifers through recharge well, bore well, recharge shaft, injection well etc. (2) Any person who contravenes the provision of sub-section (1) shall be liable to be punished under sub-section (2) of section
39."
xiv. Section 34 imposes an obligation on the appropriate authorities to work for revival and rejuvenation of rivers, ponds, wells, etc. in every village. The said Authority shall develop and execute efficient plans to conserve such rivers, ponds, wells etc. xv. Section 35 imposes a duty upon appropriate Authority to undertake impact assessment of both social and environment aspects of such activities to be implemented in the area of their jurisdiction in accordance with the provisions of UPGWMR Act 2019. Sub-section 2 of Section 35 provides that the process of impact assessment, shall include short-term and cumulative impact assessment in the following fields and specifically-
(a) Impact on right to water for life;
(b) Impact on drinking water sources;
49
(c) Impact on quality and quantity of groundwater;
(d) Impact on agricultural production;
(e) Impact on the ecosystem including rivers and water bodies;
(f) Impact on land use.
xvi. Section 39 in Chapter VIII provides offences and penalties and by virtue of Section 49 offence punishable under Section 39(1)(b)(i) is compoundable. District Magistrate of each District in State of UP is to act as District Ground Water Grievance Redressal Officer, vide Section 43(1).
xvii. In UPGWMMR Rules 2020, Chapter III provides a procedure of registration of Wells in Notified and Non-notified areas and Rule 6 reads as under:
"(1) Any existing Commercial or Industrial or Infrastructural or bulk user, who has sunk a well for extracting or using ground water in notified area or non-notified area before the date of coming into force of the Act, or any future Commercial or Industrial or Infrastructural or bulk user in Non-notified area shall make, in Form 1(A), an application referred to in sub-
section (1) of section 10 or sub-section (1) of section I 1 of Act, within a period of ninety days from the date of coming into force of the Act, to the District Ground Water Management Council; (2) Any existing Commercial or Industrial or Infrastructural or bulk user, who has sunk a well for extracting or using ground water in notified area or non-notified area before the date of coming into force of the Act, and have valid No Objection Certificate issued by either Central Ground Water Authority or by Ground Water Department, Uttar Pradesh for extracting or using ground water, shall make, in Form 1(B), an application referred to in sub-section (1) of section 10 or sub-section (1) of section 11 of Act, within a period of ninety days from the date of coming into force of the Act, to the District Ground Water Management Council;
(3) Every existing users of ground water, other than those mentioned in sub-clause (1) of rule 6, including domestic and agriculture users of ground water, who have sunk well or boring in his or her premises or agricultural land holdings, shall make, in Form 1(C), an application referred to in sub-section (2) of section 10 or sub-section (2) of section 11 of Act, within a period of six months from the date of coming into force of these rules, to the Block Panchayat Ground Water Management Committee or Municipal Water Management Committee, as the case may be;
50 (4) Every future users of ground water, other than those mentioned in sub-clause (1) of rule 6, including domestic and agriculture users of ground water, who desires to sink well or boring in his or her premises or agricultural land holdings, shall make, in Form 1(D), an application referred to in sub-section (2) of section 10 or sub-section (2) of section 11 of Act to the Block Panchayat Ground Water Management Committee for Municipal Water Management Committee, as the case may be, prior to sinking of such well;
Provided that a user who has sunk more than one well for extracting or using ground water in the area shall be required to submit separate application Form for each well.
(5) Form I shall be downloaded free of cost from the online web portal www.upgwdonline.in.
(6) Improper filling up of Form, and failure to annex all necessary documents specified in, Form 1 shall make the application liable to be rejected.
(7) All applications as mentioned in above sub clauses shall be submitted online at web portal www.upgwdonline.in." xviii. Rule 13 says that any future or existing user, under Rule 6(1), who does not have NOC by CGWA or Ground Water Department, Uttar Pradesh shall make, in Form 8(A), an application to DGWMC for issue of grant of Authorization/NOC. Rule 14 talks of similar users who have NOC issued by CGWA or Ground Water Department before the date of commencement of UPGWMR Act 2019, desires to continue extraction of ground water, and says that they shall also make an application but in Form 8(B). Rule 14(2) says that a user, having pre-existing right of ground water, shall apply for renewal of NOC after one year from the date of commencement of UPGWMR Act 2019 or on expiry of validity of existing NOC, whichever is earlier. Rule 15 empowers DGWMC to grant or reject Authorization/NOC when application is submitted under Rule 13. However, when an application is submitted under Rule 14, DGWMC is to forward the same to Ground Water Department for technical comments.
51 xix. Chapter V comprised of Rules 18 and 19. It deals with identification and demarcation of Notified areas and read as under:
"18. Identification and demarcation of areas to be declared as Notified Areas, - in the manner -
(1) Rural Areas: Under the provisions of the Act, for the purpose of demarcation of the Notified Areas, the over-
exploited and critical blocks shall be considered. The Ground Water Department, therefore, shall identify and prepare the district wise list of blocks categorized as over-exploited and critical blocks, based on the latest ground water resource assessment report.
(2) Urban Areas: In the Urban sector, as provided in the Act, the stressed areas where ground water levels have depleted to critical/alarming levels shall be considered for the purpose of declaring such areas as Notified Areas. The Ground Water Department shall identify and delineate those urban areas as stressed, where ground water levels have recorded a significant decline of more than 20 cm per year during the last five years.
(3) The Ground Water Department shall submit the list of over- exploited and critical blocks and the stressed urban areas to the State Ground Water Management and Regulatory Authority for notifying the said areas, as provided in the Act.
19. Issuance of Notification, -
(1) The State Ground Water Management and Regulatory Authority shall have necessary consultations on the inputs provided by the Ground Water Department related to Over- exploited and Critical blocks categorized as per the latest Ground Water Resource Assessment and the Stressed Urban areas identified by the Department on the basis of analysis of ground water depletion.
(2) The Authority, thereafter, shall advice the State Government to declare by Notification such areas as Notified Areas for the purpose of implementation of different provisions of the Act. On the basis of recommendation of Ground Water Department, the State Ground Water Management and Regulatory Authority shall also advice State Government to discontinue or redesign such Government schemes which are directly dependent on ground water extraction.
(3) The State Government shall duly consider the recommendation and advice of the State Authority for declaration of such areas as Notified Areas by Notification. in the Gazette.
52 (4) The notification referred to in sub rule (3) shall be uploaded on the websites of all concerned departments And shall also be published in two widely circulated newspapers in the area." xx. Chapter VI contains a solitary provision i.e. Rule 6 which deals with fixing limit of abstraction of ground water for commercial, industrial, infrastructural or bulk users and reads as under: "20. (1) For fixing ground water abstraction limit for all the existing Commercial, Industrial, Infrastructural or Bulk users of ground water, the Ground Water Department, in consultation with stake holders, shall, submit a proposal to the State Ground Water Management and Regulatory Authority within six months from the date of commencement of these rules. (2) On the basis of proposal submitted by Ground Water Department, State Ground Water Management and Regulatory Authority shall fix ground water abstraction limits for all the Commercial, Industrial, Infrastructural or Bulk users of ground water.
(3) Ground water abstraction limits fixed under sub rule (2) shall be written in the registration or authorization certificate/ No-objection certificate for wells of existing Commercial, Industrial, Infrastructural or Bulk users of ground water in Notified as well as Non-notified areas and for all the new Commercial, Industrial, Infrastructural or Bulk users of ground water in Non-notified areas, as the case may be, for the purpose of Section 15."
xxi. Demarcation and declaration of Ground Water Quality Sensitive Zones are governed by Chapter VII, Rule 21 which reads as under: "21. Demarcation of Ground Water Quality Sensitive Zone:
(1) To collect, evaluate and analyze ground water quality data and related information for the purpose of generating an overview of the problem, the Ground Water Department shall hold technical consultations with the expert bodies such as Central Ground Water Board, Uttar Pradesh Jal Nigam, Central and State Pollution Control Boards, Indian Institute of Toxicological Research, National Institute of Hydrology, IITs and also those Institutions, which have conducted area specific ground water quality studies, for providing the existing data, reports and information on ground water quality for both rural and urban segments of Uttar Pradesh.
(2) Based on the evaluation, analysis and mapping of such available data, the Ground Water Department shall proceed to generate and develop a comprehensive quality data base for the entire state. Subsequently, the department shall identify those areas which are found affected with poor 53 ground water quality along with risk of pollution hazards on drinking and irrigation water supplies. Such areas shall be demarcated and mapped as Ground Water Quality Sensitive Zones.
(3) The department shall prepare a detailed district wise list of such Ground Water Quality Sensitive Zones with their GPS locations.
(4) The complete information on ground water quality for the entire state shall be submitted to the State Ground Water Management and Regulatory Authority for onward action, with the objective to ensure protection of ground water quality in such delineated zones through appropriate measures for prevention and control of pollution and finding safe quality areas for potable water supplies.
(5) State Ground Water Management and Regulatory Authority shall take immediate action and will issue directions to concerned departments to change or redesign their existing policies or schemes to ensure protection of ground water quality in such delineated zones. All concerned departments shall have to change or redesign their existing policies or schemes in such delineated zones.
(6) After issuance of direction in sub rule (5), if District Ground Water Management Council finds that any particular scheme of any department is responsible for pollution of ground water in that district, the Council in such cases shall immediately take action in consonance with the provision of the Act and also shall submit a case to State Ground Water Management and Regulatory Authority."
xxii. Rule 22 requires issue of notification to declare the identified area for Ground Water Quality Sensitive Zone for the purpose of UPGWMR Act 2019. The said notification is not only to be published in the Gazette but also to be placed as Public Notice by publication in three daily regional newspapers and also to be uploaded on the website. There are further procedures and process for fixing standards of treated waste water and installation of treatment plant which we are omitting at this stage. Rain Water Harvesting is governed by Chapter IX.
xxiii. UPGWMR Act 2019 read with UPGWMR Rules 2019 show that different Authorities have to conduct study in respect of ground water, following the procedure laid down therein and the 54 Competent Authority only then must issue NOC/permission/clearance mentioning requisite conditions and data including quantity of permissible abstraction of ground water and not otherwise.
History of CGWA, its origin and relevant provisions relating to its powers, duties etc.:
83. Issue relating to depletion of ground water, for the first time, caught attention of Supreme Court in M.C. Mehta vs. Union of India & Others.
(1997)11SCC312. On 20.03.1996, in daily newspaper "Indian Express", published on 18.03.1996, a news item was published under the caption of "Falling Groundwater Level Threatens City". Court took judicial notice on 20.03.1996 and required CGWB and Delhi Pollution Control Committee to respond. On 03.04.1996, Court issued notices to Municipal Corporation of Delhi and Delhi Waterworks and Sewerage Disposal Undertaking. One scientist Dr. P.C. Chaturvedi, (Director), CGWB filed affidavit stating that since 1962 and onwards, water levels in country are declining. During the years 1971 to 1983, fall in water level was 4 meters to 8 meters in National Capital Territory. There was a further fall of water level from 4 meters to more than 8 meters during 1983 to 1985. One of the reasons stated in the affidavit for decline of water level was, enhanced pumpage. Consequently, Supreme Court issued notice to Government of India through Secretary, Ministry of Water Resources and Government of National Capital Territory, Delhi. The factual position regarding fall of water levels in the country was admitted in the affidavits filed by various authorities before Supreme Court. Thereafter, vide order dated 04.09.1996, Supreme Court requested Director, NEERI to examine the matter at institute level, by experts in the field, and submit report. NEERI was also required to submit suggestions and recommendations for checking further decline of underground water level. Consequently, NEERI submitted report dated 23.09.1996 with the 55 title "Water Resources Management in India, Present Status and Solution Paradigm". An affidavit dated 24.10.1996 was filed on behalf of Ministry of Water Resources, by Additional Secretary, making comments on NEERI report, indicating an overall declining water level picture in the country, and also, schemes and activities undertaken by Government of India through various departments to monitor ground water. It was pointed out that in order to arrest depleting trend and to avoid indiscriminate withdrawal of ground water, Government of India had circulated a Model Bill to States/Union Territories, in 1970, to help them to bring out suitable legislation on the lines of Model Bill to regulate and control development of ground water in the respective areas. It was stated in the affidavit that in more than 120 blocks i.e. 231 blocks, in 6 Mandals, and 12 Talukas, level of ground water is over exploited. Noticing all these facts, Supreme Court, accepted one of the suggestions of NEERI, regarding constitution of an Authority under Section 3(3) of EP Act 1986, and passed order on 05.12.1996, over ruling objection taken by Ministry of Water Recourses, Government of India that water being a State subject, it would not be possible to constitute an Authority under Section 3(3) of EP Act 1986, and held that EP Act, 1986 is made by Parliament under Entry 13 List I Schedule 7 read with Article 253 of the Constitution of India and shall have an over-riding effect. There was already an Organization namely CGWB having its Office across the country, hence Supreme Court directed that Central Government may consider to issue a Notification constituting the "Board" itself as an "Authority" under Section 3(3) of EP Act, 1986. It also observed that the said Authority would have all statutory powers under Section 3(3) of EP Act 1986 and would be in a position to have effective control all over India. Supreme Court also said that any institution/department constituted by State Government can 56 independently function in its own field with the cooperation and under the guidance of the organization set up by CGWB.
84. As a result, thereof, we find Notification dated 14.01.1997 issued by Ministry of Environment and Forest (hereinafter referred to as 'MoEF'), in exercise of power conferred by Section 3(3) of EP Act 1986 constituting CGWB as an Authority i.e. CGWA, for the purpose of regulation and control of ground water management and development, from the date of publication of the said Notification in the official Gazette. It was published in the Gazette of India on the same date.
85. As per para 1 of Notification of 1997, CGWA would constitute of the following:
(i) Chairman, CGWB-Chairperson
(ii) Member (Exploratory Drilling and Materials Management), CGWB-
Member
(iii) Member (Sustainable Management and Liaison), CGWB-Member
(iv) Member (Survey, Assessment and Monitoring), CGWB-Member
(v) An officer not below the rank of the Joint Secretary to the Government of India to be appointed by the Central Government-Member
86. Para 2 of the said Notification dated 14.01.1997, provided powers and functions of CGWA, and said:
"2. The Authority shall exercise the following powers and perform the following functions, namely: -
(i) exercise of powers under section 5 of the Environment (Protection) Act,1986 for issuing directions and taking such measures in respect of all the matters referred to in sub-section (2) of section 3 of the said Act;
(ii) to resort to the penal provisions contained in sections 15 to 21 of the said Act;
(iii) to regulate indiscriminate boring and withdrawal of ground water in the country and to issue necessary regulatory directions with a view to preserve and protect the ground water."57
87. The jurisdiction of the said Authority was declared to be whole of India, vide para 3.
88. Supreme Court in M.C. Mehta vs. Union of India & Others. (1997) (supra) also said that the Authority i.e., CGWA can resort to penal provisions contained in Section 15 to 21 of EP Act 1986. It also observed that main object for constitution of said Authority being the urgent need for regulating indiscriminate boring and withdrawal of underground water in the country, the said Authority so constituted, shall apply its mind to this urgent aspect of the matter and issue necessary regulatory directions with a view to preserve and protect underground water.
89. Initially, constitution of CGWA was for one year as provided in para 1 of Notification dated 14.01.1997. It was amended by Notification dated 13.01.1998, published in the Gazette of India (Extraordinary) of the same date and in place of one year, it was made five years.
90. Another amendment was brought in Notification dated 14.01.1997 by Notification dated 05.01.1999, published in the Gazette of India (Extraordinary) dated 08.01.1999 and thereby, CGWA was made six persons Authority by adding Regional Director or an officer of equivalent rank, CGWB as Member Secretary.
91. The constitution of CGWA and its functions underwent a major amendment vide Notification dated 06.11.2000, published in Gazette of India (Extraordinary) dated 16.11.2000. Thereby, in para 1, period of CGWA was deleted, hence CGWA became an Authority without any limitation of period. Further, composition of CGWA was also changed by making it a ten members Committee including Chairman, with a further provision authorizing it to have some special invitees, as and when required. The new composition of CGWA was as follows: 58
(i) Chairman, CGWB-Chairman (ii) Member (Survey, Assessment and Monitoring), CGWB-Member
(iii) Member (Exploration Drilling and Materials Management), CGWB-
Member
(iv) Member (Sustainable Management and Liaison), CGWB-Member
(v) Member (Training and Technology Transfer), CGWB-Member
(vi) Joint Secretary (Administration), Ministry of Water Resources-
Member
(vii) Joint Secretary and Financial Adviser, Ministry of Water Resources-
Member
(viii) Joint Secretary, MoEF-Member
(ix) Chief Engineer, Irrigation Management Organisation (Water, Planning and Projects), Central Water Commission-Member
(x) Director/General Manager (Exploration), Oil and Natural Gas Corporation Ltd.-Member
92. The aforesaid Notification further authorized CGWA to invite, from time to time, following, as special invitees, as and when required:
(i) Joint Secretary (Soil and Water Conservation), Department of Agriculture and Co-operation
(ii) Joint Secretary (Water Supply), Ministry of Urban Development
(iii) Joint Secretary (Department of Drinking Water Supply), Ministry of Rural Development
(iv) Director, National Institute of Hydrology, Roorkee
(v) Director, National Geo-physical Research Institute, Hyderabad.
93. The powers and functions of CGWA described by Notification dated 14.01.1997 were also amended and for clause (iii), the following clause (iii) and (iv) were substituted:
59
"(iii) to regulate and control, management and development of ground water in the country and to issue necessary regulatory directions for this purpose;
(iv) exercise of powers under Section 4 of the Environment (Protection) Act, 1986, for appointment of officers."
94. CGWA was conferred with powers to issue directions under Section 5 and also to exercise powers on the matters referred to in Section 3(2) of EP Act 1986. Thus, it would be appropriate to have a bird eye-view of Section 3(3), 3(2) and 5 of EP Act 1986. Section 3(2) and (3) read as under:
"3(2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:
(i) co-ordination of actions by the State Governments, officers and other authorities-
(a) under this Act, or the rules made thereunder, or
(b) under any other law for the time being in force which is relatable to the objects of this Act;
(ii) planning and execution of a nationwide programme for the prevention, control and abatement of environmental pollution;
(iii) laying down standards for the quality of environment in its various aspects;
(iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever:
Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources;
(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;
(vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents;
(vii) laying down procedures and safeguards for the handling of hazardous substances;
(viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution;
(ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution;
(x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution;
(xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;60
(xii) collection and dissemination of information in respect of matters relating to environmental pollution;
(xiii) preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution;
(xiv) such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act.
"3(3) 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 the 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."
95. Section 5 confers power to give directions which was also conferred upon CGWA by Central Government in its notification under Section 3(3). Section 5 reads as under:
"5. POWER TO GIVE DIRECTIONS:
Notwithstanding anything contained in any other law but subject to the provisions of this Act, the Central Government may1 , in the exercise of its powers and performance of its functions under this Act, issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.
Explanation-For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-
(a) the closure, prohibition or regulation of any industry, operation or process; or
(b) stoppage or regulation of the supply of electricity or water or any other service."
96. Perusal of above, shows that Section 5 has been given an overriding effect over any other law but directions issued under Section 5 have to be within the compass of EP Act 1986 and cannot travel beyond. Further sub- section 2 of Section 3 has to be read with sub-section 1 which shows that power to take such measure as deemed necessary and expedient, was 61 conferred with the clear objective that it should be for the purpose of protecting and improving quality of environment and preventing, controlling and abating environmental pollution. Further the aforesaid power is also subject to the provisions of EP Act 1986.
97. Section 24 of EP Act 1986 also made a declaration that subject to sub-section 2, provisions of EP Act 1986 and the rules or orders made therein, shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than EP Act, 1986.
98. Therefore, not only provisions of EP Act 1986 but even rules or orders issued under EP Act 1986 shall prevail over any other enactment except EP Act 1986. In other words, if, there is anything otherwise provided in EP Act 1986, then the rules/orders etc. will have to be read consistent therewith and as per legislative or statutory hierarchy, the one which is superior in hierarchy, shall prevail.
99. The steps, taken by Central Government or the Authority constituted under Section 3(3) with power to issue directions under Section 5 or to take such measures as are necessary under sub-section 2 of Section 3, are the orders in respect whereof, Section 24 sub-section 1 provides that the same shall prevail over any other enactment having any inconsistent provision. The only exception is with regard to the offences and punishment, subject to the provisions of sub-section 2 of Section 24, which provides, where any Act or omission constitutes any offence punishable under EP Act 1986 and also under any other Act, then the offender found guilty of such offence, shall be liable to be punished under the other Act and not EP Act 1986.
100. Section 25 of EP Act 1986 confers power upon Central Government to frame rules and Section 26 provides procedure which obviously would 62 not include or cover the direction or orders or steps taken by virtue to Section 3(2) or Section 5 of EP Act 1986.
101. Hence directions issued under Section 5 or orders issued on the matters referable to Section 3(2), in our opinion, are statutory orders. We have already discussed that EP Act 1986 is referable, to Entry 13 List I Schedule VII of the Constitution read with Article 253, having been enacted pursuant to the International Conference and resolutions and to give effect thereto, it shall prevail over Provincial legislation. All Provincial enactments, relating to ground water, therefore, would have to subserve the Guidelines issued by CGWA since these guidelines are referable, to Section 5 read with Section 3(2) of EP Act 1986. These guidelines are not mere executive orders but statutory orders and, in any case, having been issued in exercise of powers under EP Act 1986, as stated above, shall prevail over Provincial enactments/legislations. To the extent, subject is covered by EP Act 1986 and the orders issued by CGWA, Provincial legislature would lack power to make law, and if made, shall sub serve.
102. The limitation upon CGWA is that the guidelines, not only, are subject to the provisions of EP Act 1986 but should also conform the mandate that it should be for the purpose of protecting and improving quality of environmental and preventing, controlling and abating environmental pollution.
103. Supreme Court in its order dated 10.12.1996 in M.C. Mehta vs. Union of India & Others (1997) (supra), made it very clear, in para 12 of the judgment, that the main object for constitution of CGWB, as an Authority, is the urgent need for regulating indiscriminate boring and withdrawal of ground water in the country. Court further said that it has no doubt that the Authority, i.e., CGWA shall apply its mind to this urgent 63 aspect of the matter and issue necessary regulatory directions with a view to preserve and protect ground water. Court reiterated its above directions by stating "This aspect may be taken up by the Authority on an urgent basis".
104. Supreme Court also took notice of the fact that there are some legislations in the States to regulate water resources development but by and large, ground water was being exploited all over the country, without any effective regulatory regime. It is in this regard, Court directed that an Authority under EP Act 1986 be constituted with powers necessary to deal with situation created by indiscreet abstraction of ground water causing depletion of ground water levels, dwindling surface water resources, deterioration of surface and ground water quality and haphazard land use.
105. In the same case, i.e., M.C. Mehta vs. Union of India & Others. (1997) (supra), in earlier order dated 05.12.1996, Court had also rejected contention advanced on behalf of Government of India, Ministry of Water Resources that under the constitution, water is State subject and, therefore, Central Government or Parliament has no role. Court said that:
"We are prima facie of the view that the Act being an Act made by Parliament under Entry 13 List I read with Article 253 of the Constitution of India, it has an overriding effect."
106. In S. Jagannath vs. Union of India & Others., 1997 (2) SCC 87, Supreme Court in its judgment dated 11.12.1996, was confronted with the situation where provincial legislations on coastal aquaculture regulating industries, set up in coastal areas, contained provisions which were not in consonance with Central enactment i.e., EP Act 1986 and notification issued by Government of India under Section 3(3) of the said Act, i.e. Coastal Regulation Zone (CRZ). Supreme Court held:
"...we are of the view that the Act being a Central legislation has the overriding effect. The Act, (the Environment Protection Act, 64 1986) has been enacted under Entry 13 of list I Schedule VII of the Constitution of India. The said entry is as under:
"Participation in international conferences, assessment and other bodies and implementing of decisions made thereat."
The preamble to the Act clearly states that it was enacted to implement the decisions taken at the United Nations' Conference on the Human Environment held at Stockholm in June, 1972. Parliament has enacted the Act under Entry 13 of List I Schedule VII read with Article 253 of the Constitution of India. The CRZ notification having been issued under the Act shall have overriding effect and shall prevail over the law made by the legislatures of the States."
(Emphasis added)
107. In Mantri Techzone Pvt. Ltd. vs. Forward Foundation & Others (2019)18SCC494, it was reiterated when a similar question with respect to Provincial legislation vis-a-vis law on environment was raised. Supreme Court said:
"A Central legislation enacted under Entry 13 of Schedule VII List I of the Constitution of India will have the overriding effect over State Legislations. The corollary is that the Tribunal while providing for restoration of environment in an area, can specify 'Buffer Zones around specific lakes and water bodies in contradiction with zoning regulations under these statutes or RMP". (Para 47) (Emphasis added)
108. Recently, in Civil Appeal No. 6932 of 2015, The Director General (Road Development) National Highways Authority of India vs. Aam Aadmi Lokmanch & Others., the above view taken in Mantri Technoze Pvt. Ltd. vs. Forward Foundation (Supra) has been referred and followed.
109. Therefore, irrespective of the legislative list contained in Schedule 7, whenever matter relates to environment is to be seen, if governed by the laws enacted on environment by Parliament, referable to entry 13 List 1 of 7th Schedule, the same shall prevail. In other words, when a subject is covered by a legislation referable to list 1 of Seventh Schedule of the Constitution, to the extent matter is covered by such Central legislation, 65 Provincial legislature would cease to have any legislative competence to that extent, irrespective of entry in list 2. Provincial legislature can make law only on the aspects not covered by Parliamentary enactment.
110. Thus, on the subject of regulation of ground water, provisions of EP Act 1986, the orders issued by Central Government under Section 3(3), and by CGWA under section 5 and/or section 3(2) of EP ACT 1986 shall hold field and on this subject Provincial legislation cannot be brought in to impede, obstruct or deny or deprive CGWA, in its function for protection, perseveration and sustenance of ground water in the country.
111. Though CGWA was constituted in January 1997, we do not find much activity on its part initially for about two years. Only in 1999, CGWA issued "Guidelines for granting NOC for withdrawal of ground water by industries/projects w.e.f. 01.01.1999" (hereinafter referred to as 'Guidelines 1999'). It permits all industries seeking NOC for ground water abstraction, to submit application in the prescribed proforma, in the Office of Regional Director, CGWB of the concerned State or Member Secretary, CGWA, New Delhi. Proponent was to submit a referral letter from Statutory Organizations like State Pollution Control Boards, MoEF, Bureau of Indian Standards, etc. for processing of its case. Proponent was also required to submit detailed designs for Rain Water Harvesting which was mandatory for areas falling in critical blocks. For evaluation of proposal, Guidelines 1999 provided, in respect of over-exploited, critical and semi-critical blocks, as under:
"Over-Exploited Blocks- It was decided that clearance to industries in Critical/Over-Critical areas needs to be considered on case to case basis and in case of severely over- exploited areas which are devoid of any deeper potential aquifers clearances for industrial use of ground water may be denied as per the policy. (21st meeting held on 24.5.2006). Critical Blocks-granting permits to industries for ground water extraction be considered subject to implementation of Rain Water 66 Harvesting/Ground Water Recharge matching the proposed draft. (23rd meeting held on 28.8.2007).
Semi-critical Blocks-granting permits to industries be considered subject to implementation of Rain Water Harvesting/Ground Water Recharge. (23rd meeting held on 28.8.2007)."
112. Thereafter, a new set of Guidelines was issued, with effect from 20.10.2009, i.e., "Guidelines for evaluation of proposals/requests for ground water abstraction for drinking and domestic purposes in Notified areas and Industry/Infrastructure project proposals in non-notified areas"
(hereinafter referred to as 'Guidelines 2009'). It recognized high intensive development of ground water in certain areas, i.e. irrigation, drinking, domestic and industrial uses in the country, resulting in over-exploitation, leading to long term decline in ground water levels. In certain situations, quality of ground water was found deteriorated. As per the study available up to 2004, out of 5723 assessed units (Blocks, Mandals, Talukas and Districts), 839 were over-exploited, 226 critical, and 550 semi-critical.
However, details of Guidelines 2009 show, since CGWA had notified only 43 areas for the purpose of regulation of ground water development, hence it confined its regulatory action only to "notified areas". Guidelines also said that NOC can be accorded for construction of tube wells/replacement of existing defunct well for drinking and domestic purpose to Government department entrusted with the water supply; other Government organizations if Water Supplying Department is not providing water in the area; schools/institutions/universities; hospitals; Embassies and State Bhawans. Pre-conditions for grant of NOC for abstraction of ground water to above categories were also given in said Guidelines.
113. Chapter A, para 1, of Guidelines 2009, gives details of the purpose for which NOC could be accorded, and pre-conditions for grant of NOC mentioned therein, are as under:67
"I) NOC can be accorded for construction of tube wells/replacement of existing defunct well for drinking and domestic purpose to:
i. Government department entrusted with the water supply ii. Other Government organizations if Water Supplying Department is not providing water in the area iii. Schools/Institutions/Universities iv. Hospitals v. Embassies vi. State Bhawans vii. For Individuals for individual households."
114. Guidelines 2009 further laid down pre-conditions for grant of NOC for abstraction of ground water to categories under serial no. (i) to (vi) in notified areas, as under:
"Pre-conditions for grant of NOC for abstraction of ground water to categories under Sl. No. (i) to (vi) are:
1. Maximum diameter of the tube well should be restricted to 100 mm only and capacity of the pump should not exceed 1HP except in case of Government water supply agencies. In case of Govt. water supply agencies, tubewell size/dia. can be more depending on the ground water availability and requirement.
2. Concurrent with the construction of tube well, the owner of the tube well shall undertake installation of the rain water harvesting structure in the premises within 45 days of issuance of NOC and will confirm to the Authority for verification.
3. The water from the tube well be used for drinking and domestic purposes only.
4. All details of the drilling like rock formations encountered, the depth and diameter of the constructed tube well, type of pipes used, yield of bore well/tube well and ground water quality etc. have to be furnished to the nodal agency authorized by district administration head within 15 days of the completion of the construction.
5. This permission is valid for a period of two months from the date of issue of NOC except in case of Government water supplying agencies/departments."
115. In respect of Sl. No. (vii) i.e. For Individuals for individual households, in notified areas, Guidelines 2009 imposed conditions as under:
"1. Only one tube-well is allowed for construction in the premises to meet the drinking and domestic purposes. No tube-well/bore-well will be constructed, if any working tube-well already exists. In 68 case the existing well has become non-functional and is to be replaced, it should be converted into recharge well, if possible or properly sealed and no water be pumped from it.
2. The persons(s) intending to construct new tube-well will intimate the Authorized office/Advisory Committee, 10 days in advance along with the name and address of the drilling agency, which will undertake construction of tube-well. Authorities/Nodal Agency can ask the user to supply additional information.
3. The maximum diameter of the tube-well should be restricted to 100mm only and the capacity of the pump should not exceed 1HP.
4. Concurrent with the construction of tube-well, the owner of the tube-well shall undertake installation of the rainwater harvesting system in the premises.
5. The water from the tube-well/bore-well will be used exclusively for drinking and domestic purposes only.
6. All details of the drilling like rock formations encountered, the depth and diameter of the constructed tube well, type of pipes used in tube-well, yield of bore well/ tube well and ground water quality etc. shall be kept for record and are to be provided at the time of inspection.
7. Any violation of the above conditions will attract legal action under section 15 of the Environment (Protection) Act, 1986."
116. Chapter A, para II of Guidelines 2009 said that permission will not be accorded for construction of tube well for agriculture, industrial, commercial, horticulture and construction purposes in "notified areas".
117. Chapter B of Guidelines 2009, laid down Guidelines for evaluation of proposals/requests for abstraction of ground water for industrial/infrastructure projects, in non-notified areas. Para B-1, mentioned 12 criteria on which the proposals shall be evaluated i.e. (i) purpose of ground water use, (ii) area of ground water against its availability, (iii) availability of shallow aquifer, (iv) availability of deeper aquifer, (v) Criteria for recycling and reuse of effluents, (vi) adoption of water conservation measures, (vii) installation of water meters, (viii) examining the scope of rain water harvesting and ground water recharging 69 potential, (ix) land use, (x) ground water draft, (xi) saline ground water aquifers and (xii) mining areas.
118. It was stated further that project proposals for various purposes would be evaluated for consideration of ground water abstraction, under different hydrological conditions, including water conservation measures in safe, semi-critical, critical and over-exploited areas. A chart was given for evaluation of proposals to abstract ground water for industries, as under:
"Evaluation of Proposals to Abstract Ground Water for Industries Category Stage of Recycle/Reuse Other Water Withdrawal Development Conservation permitted Practices (%age of proposed recharge) Safe <70 Mandatory recycling Water audit To be brought and reuse of water measures to be under the purview adopted if quantity of abstraction exceeds 1000 m3 /day in hard rock areas and 2000 m3 /day in alluvial areas. RWH to be adopted.
Semi- 70-100 Efficient utilization of Water audit Withdrawal may
critical recycled water and measures to be be permitted
reuse of water should adopted subject to
be mandatory. undertaking of
recharge
measures. Since
the area is less
stressed, at least
50% recharge be
made mandatory.
Critical 90-100 Efficient utilization of Water audit Withdrawal may
recycled water and measures to be be permitted
reuse of water should adopted subject to
be mandatory. undertaking of
recharge
measures. The
quantum of
recharge should
be equal to or
more than the
proposed
withdrawal.
Over- >100 Efficient utilization of Water audit Withdrawal may
exploited recycled water and measures to be be permitted up to
reuse of water should adopted 60% of proposed
be mandatory. recharge. Also
withdrawal
should not
exceed a
maximum limit
of 1500 m3 /day
for each unit.
"
70
119. Chapter B, Para B-2 of Guidelines 2009, laid down certain conditions for abstraction of ground water for infrastructure projects in non- notified areas, as under:
"B-2 ABSTRACTION OF GROUND WATER FOR INFRASTRUCTURE PROJECTS Run-off from the entire project area is to be utilized for artificial recharge to ground water.
In case of residential township and colony, the quantum of water for usage other than drinking/ domestic shall not exceed 25% of the total requirement.
The concerned State Government, while sanctioning any infrastructure project is to look into the ground water availability aspect also.
Proponents are to submit a status report on water supply available from water supplying agencies stating the quantum of water that would be provided by the agency."
120. In para B-3, conditions for abstraction of ground water for industrial projects in non - notified areas was laid down as under:
"B-3 ABSTRACTION OF GROUND WATER FOR INDUSTRIAL PROJECTS
a) Areas having Deeper Aquifers:
In all Over-exploited and Critical areas having deeper potential aquifers, withdrawal may be permitted irrespective of the stage of development subject to:
(a) Withdrawal of water from deeper aquifers only,
(b) Implementing recharge measures to recharge shallow/deeper aquifers to the extent possible within the lease/industry area
(c) Recommendation of concerned Regional Directorate on feasibility of exploitation of deeper aquifers.
b) Water table intersection by mining industries and dewatering of mine pit water Abstraction of ground water by mining industry intersecting water table can be permitted and dewatering of mine pit water be permitted subject to the following conditions:
The mine water is to be put to gainful use. This may include water supply to adjacent areas and local water supply agencies, utilization for dust suppression by the industry, utilization by the mining industry for different processes, utilization for artificial recharge to ground water etc. Piezometers for monitoring the ground water level are to be mandatorily installed within the mine lease area and in peripheral areas. The record of water level data be maintained and to be provided whenever demanded by the regulating agency.
c) Abstraction of saline ground water by Industries 71 Due care to be taken in respect of disposal of the effluents by the units so as to protect the water bodies and the sub-surface shallow aquifers from pollution. Proposals pertaining to the cases must have a detailed report elucidating the mechanism of handling the effluent water and its various uses. All precautions must be taken for protection of environment. Large scale recharge mechanism is mandatory in such cases to improve the ground water quality in the region."
121. Certain exemption of industries from obtaining NOC was provided in para-B-3 (IV) as under:
"IV Exemption of Industries from obtaining NOC from CGWA.
(i) Industries requiring ground water upto 25 m3/day located in over exploited areas; upto 50 m3/day for critical areas; and upto 100 m3/day in semi-critical areas are exempted from obtaining NOC for ground water abstraction from CGWA.
The responsibility of verifying the actual requirement and withdrawal is vested with the State Pollution Control Boards.
It should also be mandatory for such industries to undertake Rain Water Harvesting to the extent possible and enforcement of the same is vested with the State Pollution Control Boards.
(ii) Industries located in Safe category areas, are required to obtain NOC from CGWA if ground water abstraction by the industry exceeds 1000 m3 /day for hard rock areas and 2000m3/day for alluvial areas. Such cases will be examined as in 'B'. (The above will not include industries which are using water as a raw material like packaged drinking water industries, distilleries and breweries)"
122. For the purpose of monitoring of implementation of Guidelines 2009, CGWA made State Pollution Control Boards, responsible. Further, a Committee was constituted at District level for evaluation of industry/infrastructure project proposals seeking ground water clearances, comprising of:
(i) District Collector - Chairman
(ii) Hydrogeologist, CGWB of concerned District - Member
(iii) Representative from Industry - Member
(iv) Representative from Pollution Control Boards - Member
(v) Additional member to be adopted if required.
72
123. The aforesaid Guidelines show that all substantially highly affected areas, facing scarcity of ground water, already placed in the category of over-exploited and critical, were not managed/regulated on a mere pretext that CGWA has notified only 43 areas and, therefore, CGWA without any reason, in an unwarranted and unauthorized manner, defied directions of Supreme Court issued in M.C. Mehta vs. Union of India & Others (1997) (supra), by restricting its activity of regulation to only 43 "notified areas"
for protection of ground water. This approach of CGWA was not consistent with the directions given by Supreme Court in M.C. Mehta vs. Union of India & Others (1997) (supra). Further, unfortunately, CGWA assumed role of mere licensing Authority, permitting abstraction of ground water by industrial and other establishments, and failed to withstand the expectations and objective with which it was constituted. It restricted its statutory duties on its own, ignoring mandate of Supreme Court requiring it to take immediate steps to protect depletion of ground water where its level had gone down to alarming level, unconcerned to whether it is notified or not, in the entire country.
124. Vide instruction no. 26-1/CGWA/D1/09/744 dated 08.10.2009, CGWA issued directions to Heads of Central Road Research Institute, National Highway Authority of India, Central Public Works Department, State Public Works Department, Indian Railways, Sports Authority of India, Board of Cricket Control of India, Airport Authority of India, Ministry of Civil Aviation, Ministry of Sports and Youth Affairs to take up rain water harvesting/adopt artificial recharge of ground water to augment ground water resources and to save it from further depletion. In furtherance of above, CGWA said:
"1. The Director, Central Road Research Institute, Chairman, National Highway Authority of India, Director General, Central Public Works Department; Heads of the State Public Works Department whether called as Secretary, Principal Secretary or by any other name;73
Chairman, Railway Board; Head of Sports Authority of India; Chairman, Airport Authority of India; Director General, Ministry of Civil Aviation; Heads of Ministry of Youth Affairs and Sports, shall ensure taking up rain water harvesting/adoption of artificial recharge to ground water in the country by their respective organizations/Departments, within a period of 365 days from the date of receipt of this direction, to augment ground water resources and to save it from further depletion.
2. The above authorities shall obtain site-specific designs and other technical guidance from the Regional Director/Office-in-Charge of Central Ground Water Board or the Ground Water Department of the State/Union Territory.
3. The Regional Director/Officer-in-charge of Central Ground Water Board or the Ground Water Department of the State/UT, upon request from the above authorities shall extend all necessary technical assistance/design input.
4. The authorities mentioned in the directions No. 1, shall intimate the action taken report in this connection, to Central Ground Water Authority within a period of 90 days of completion of rainwater harvesting/recharge structure."
125. Another direction was issued vide instruction no. 26-1/ CGWA/D1/09/743/783 dated 08.10.2009, directing all residential group housing societies/institutions/schools/hotels/industrial establishments falling in the over-exploited and critical areas as specified in the Schedule, to adopt roof top Rain Water Harvesting systems in their premises. They were directed to complete the systems, by May 2010.
126. CGWA issued a new set of Guidelines namely "Criteria for Evaluation of Proposals/Requests for Ground Water Abstraction"
(hereinafter referred to as 'Guidelines 2012') which came into force on 15.11.2012.
127. Guidelines 2012 laid down different parameters for notified areas and non-notified areas. Chapter A with the title 'Notified Areas' said that permission to abstract ground water through any energized means will not be accorded for any purpose other than drinking water. In para II, it provided that NOC can be accorded for construction of ground water 74 abstraction structures/replacement of existing defunct well for drinking purpose only to:
"a. Government department/Agency/Undertaking entrusted with the water supply b. Other Government organizations/State Government Guest Houses/Registered Housing societies c. Schools/educational & State/Central Government recognized research Institutions/ Universities d. Hospitals."
128. It further stated that NOC for items (b) to (d) will be considered only if Water Supplying Department is not providing adequate water in the area/ premises. Further it laid down pre-conditions for grant of NOC for abstraction of ground water to categories (a) to (d) as under:
"1. Maximum diameter of the groundwater abstraction structures should be restricted to 150 mm (6 inches) only and capacity of the pump should not exceed 1 HP. In case of Government water supply agencies, housing societies, tube well size/dia. & HP of prime mover can be more depending on the ground water availability and requirement.
2. Concurrent with the construction of groundwater abstraction structures, the organization shall undertake artificial recharge to groundwater through rain water harvesting structure in the premises within 45 days of issuance of NOC and will confirm to the Authorised Officer for verification.
3. Water meter installation in the abstraction structure is mandatory and confirmation of water meter installation shall be given to the Authorised Officer under intimation to the concerned Regional office of CGWB immediately after construction. The daily water meter reading should be maintained and quarterly report should be submitted to Authorised Officer.
4. The water from the groundwater abstraction structures will be used for drinking and domestic purposes only.
5. All details of the drilling like rock formations encountered, the depth and diameter of the constructed groundwater abstraction structures, type of pipes used, yield of bore well/ tube well (Fracture zones encountered/zones tapped) and ground water quality etc. have to be furnished to the nodal agency authorized by district administration head within 15 days of the completion of the construction.
6. The permission for construction of groundwater abstraction structure would be valid for a period of six months from the date of issue of NOC.
7. The NOC issued would be non-transferable."75
129. Another category, "Individual Household" also could be accorded NOC for drinking purposes. Conditions for the same, provided in Guidelines 2012, read as under:
"e. For Individual households:
1. Permission to be granted only for such cases where public water supply system does not exist. The permission shall be valid only till such time there is no public water supply provided. In that case, the abstraction structure shall be exclusively utilized for artificial recharge to groundwater or sealed.
2. A certificate from the water supply agency regarding non-
availability of government water supply to the area/individual is to be submitted by the applicant.
3. The premises should have only one Groundwater abstraction structure (either existing or new) to meet the drinking and domestic requirements. No tube-well/bore-well will be constructed, if any working tube-well already exists. In case the existing well has become non-functional and is to be replaced, it should be converted into recharge well, if possible or properly sealed and no water be pumped from it. An undertaking as per Annexure-II is to be submitted by individual.
4. The person(s) intending to construct new tube-well will seek permission from the Authorized officer/Advisory Committee, at least 30 days in advance along with the name and address of the drilling agency, which will undertake construction of tube-well. Authorities/Nodal Agency can ask the user to supply additional information.
5. The maximum diameter of the tube-well should be restricted to 110 mm (4 ½ inches) only and the capacity of the pump should not exceed 1HP. In case of deep water level the capacity/dia. of the structure will be decided by the Authority based on the site specific recommendations.
6. Concurrent with the construction of groundwater abstraction structure, the owner of the tube-well shall undertake artificial recharge to groundwater through rainwater harvesting in the premises.
7. The water from the tube-well/bore-well will be used exclusively for drinking and domestic purposes only within the premises.
8. All details of the drilling like rock formations encountered, the depth and diameter of the constructed tube-well, (Fracture zones encountered/zones tapped) type of pipes used in tube well, yield of bore well/tube well and ground water quality etc., shall be kept for record and are to be provided at the time of inspection.
9. Any violation of the above conditions will attract legal action under section 15 of the Environment (Protection) Act, 1986. In case the notified area is de-notified subsequently, the conditions pertaining to "non-notified areas" shall be followed." 76
130. Guidelines 2012 said, if a notified area is subsequently de-notified, conditions pertaining to non-notified areas shall be followed.
131. Chapter B of Guidelines 2012 dealt with "non-notified areas". It is stated that NOC for ground water withdrawal will be considered for industries/infrastructure projects which are either new or under expansion as per the criteria given in Para I to VI, which reads as under:
"B. NON-NOTIFIED AREAS NOC for Ground Water withdrawal will be considered for Industries/Infrastructure projects which are either NEW or under EXPANSION as per the criteria given below:
I. Industries
Category* Recycle/Reuse Withdrawal permitted
(for various purposes (% of proposed recharge)
except recharge to
ground water)
Safe Mandatory recycling NOC is required for groundwater
and reuse of water withdrawal if quantity of
groundwater abstraction
exceeds 100 m3/day. AR to
groundwater to be adopted.
However, Industries under B-
VI have no exemption from
obtaining NOC.
Semi-critical Major and Medium Withdrawal may be permitted
industries shall subject to undertaking of
recycle recharge** measures. The
and reuse at least withdrawal should not
50% of the waste exceed 200% of the
water recharged quantity.
Critical Major and Medium Withdrawal may be permitted
industries should fully subject to undertaking of recycle and reuse the recharge** measures. The waste water withdrawal should not exceed 100% of the recharged quantity.
Over- Full utilization of Withdrawal may be permitted
exploited recycled water and subject to undertaking of
(except reuse of water should recharge** measures. The
industries be mandatory withdrawal should not
falling exceed 50% of the recharged
under quantity.
category
mentioned
in B(VI)
*The present guidelines will follow the assessment of Ground Water Resource Estimation (GWRE) 2009 till it is revised. **The recharge should be implemented within the premises and/or preferably in the same water shed/assessment unit.77
Detailed Project Proposal (DPR) shall be included along with the application for NOC.
II. Infrastructure Projects (SEZ, Group Housing projects, Residential townships, Hospitals, Educational Institutions, Roads, Bridges, Technology parks, Malls, Multiplex, etc.) a. Run-off from the entire project area is to be utilized for artificial recharge to ground water unless risk of contamination exists or area is water logged. The runoff from the entire premises shall be utilized for harvesting/storage also, apart from recharge. b. The quantum of ground water for usage other than drinking/domestic shall not exceed 25% of total ground water abstraction in case of Housing projects/Residential Townships. c. Proponents are to submit a status report stating the quantum of water required and the quantity that would be provided by the Government Water Supplying agency. This should be supported by a letter from the agency.
III. Areas Having Specific Depth Zones Notified:
a. In areas where specific depth zones are notified, permission to withdraw groundwater can be considered based on the site specific recommendations of Regional Directorate of CGWB from the depth zones, which are not coming under the notification.
IV. Mining and Dewatering Projects Abstraction of ground water by mining industries intersecting water table for dewatering of mine pit water, and dewatering ground water for basement construction of buildings, etc., may be permitted subject to the following conditions in addition to those already specified under Para B-I. a. The dewatered quantum of water is to be put to gainful use. This may include water supply and provide to water supply agencies, agriculture, dust suppression by the industry, utilization by the mining industry, utilization for artificial recharge to groundwater, etc. b. Piezometers for monitoring the ground water level are to be mandatorily installed within the premises and in peripheral areas. The record of water level data be maintained and to be provided periodically or whenever demanded by the regulating agency.
c. Wherever the mines/dewatering project is situated in the coastal area special care should be taken to prevent sea water ingress. This should be supported by a technical evaluation report.
d. In case of mining projects detailed and continuous study on the groundwater regime, including groundwater modeling should be carried out and the results should be submitted to the Regional Directorate of CGWB periodically.
V. Abstraction of Saline Ground Water by Industries/ infrastructure Projects Industries/infrastructure projects desirous of utilizing saline ground water would be permitted to extract saline groundwater. However, due care to be taken in respect of disposal of the effluents by the units so as to protect the water bodies and the 78 aquifers from pollution. Proposals pertaining to such cases must have a detailed project report elucidating the mechanism of handling the effluent water and its various uses. All precautions must be taken for protection of environment especially fresh water aquifers in and around the area. Large scale recharge mechanism should be adopted wherever feasible in such cases to improve the ground water conditions in the region.
VI. Industries Using Groundwater as Raw Material and other Water Intensive Industries Industries using water as raw material/water intensive industries like packaged drinking water, mineral water industries, distilleries, breweries, soft drink manufacturing industries, textiles, paper & pulp, etc. shall not be granted NOC for groundwater withdrawal from OE areas. In Safe, Semi-Critical & Critical areas NOC for ground water withdrawal is mandatory for these industries as per Section B-1. However, ground water withdrawal will be limited as follows:
Category Ground water withdrawal limit
Safe Withdrawal limited to 200% of ground water
recharge
Semi-critical Withdrawal limited to 100% of ground water recharge Critical Withdrawal limited to 50% of ground water recharge Over-exploited No permission for industries under this category "
132. Some further conditions are provided in clause D as under:
"D. OTHER CONDITIONS (Applicable for all cases):
a. Sale and supply of raw/unprocessed/untreated ground water by unauthorized agencies for commercial use is not permitted. b. Non-compliance of conditions mentioned in the NOC may be taken as sufficient reason for cancellation of NOC accorded/ non-renewal of NOC.
c. Wherever State Government Authorities are in existence to manage and control ground water regimes, the Groundwater Regulation would be done by them. The State Ground Water Authority (SGWA) shall send a quarterly progress report to CGWA for records.
d. In case of any delay in executing the project for bona fide reasons within the set time, for which NOC has been granted, the firm shall apply to CGWA for extension. CGWA may consider extension based on its merits.
e. No application for NOC shall be entertained without proper referral letters from the statutory authority (Central and State Govt. Dept and Agencies).
f. The referral letter shall contain verification on the quantum of water for the industry/project with detailed break up of groundwater consumption, recycle & reuse of the waste water, so that the wastage of the precious resource can be avoided. In case this is not given by the referral authority, applicant should obtain a letter from the Industries Dept/Project Sanctioning Authority on the same line.79
g. The CRZA rules and regulation shall be applicable wherever in vogue.
h. No permission required for withdrawal of ground water from any area if withdrawal is done through non-energized means. i. Mandatory clause on RWH may be relaxed in case of water logged/shallow water level (<5 m bgl during pre-monsoon) areas. j. Relaxation in the quantity of ground water withdrawal in over-exploited areas, and/or quantity of recharge being affected by the firm can be permitted by CGWA if it feels it absolutely necessary in national interest. k. The artificial recharge proposals are required to be vetted by any competent authority of State/Centre.
l. Treated water shall not be used for recharge to ground water, since it may contain heavy metals & other toxic elements. The treated waters shall be fully used by the proponent or any other agency, who can utilize it without contaminating the underlying aquifer / water bodies. m. NOC issued is non-transferable."
133. Thus Guidelines 2012 show that study of State wise resources as on 31.03.2009 was available, showing that out of 5842 assessment units (Blocks, Mandals, Talukas, districts), 802 were over-exploited, 169 critical, 523 semi-critical, 4277 safe and 71 saline. Annual replenishable ground water resources was estimated as 431 billion cubic meters (hereinafter referred to as 'bcm'), net ground availability was 396 bcm and overall stage of ground water development of the country was 61%.
134. Guidelines 2012 further stated that CGWA has notified 82 areas for the purpose of regulation of ground water development. District Administrative Head i.e. Divisional Commissioner or District Magistrate in case of Administrative Block or Taluka or Head of Municipality in case of municipal area of notified area, was appointed Authorized Officer by CGWA under Section 4 of EP Act, 1986. All issues pertaining to grant of NOC for ground water withdrawal, checking violations, sealing of ground water abstraction structure, launching of prosecution against offenders, attending to complaints etc. were to be addressed by Authorized Officers. In "notified area", Guidelines said, that permission to abstract ground water through any energized means will not be accorded for any purpose 80 other than drinking water. In notified area, NOC was open for sanction for drinking purposes only and that too to the limited categories of Government departments entrusted with water supply, other Government organizations and educational institutions-private or Governmental including research institutions/universities and also hospitals where water supply is not available from Government or semi-governments water supply departments. In non-notified areas, directions for grant of NOC for withdrawal of ground water to new and under expansions industries and infrastructure projects with certain conditions, were mentioned in Guidelines 2012.
135. Here again we find that CGWA, in respect of over-exploited and critical areas, assumed jurisdiction in a restricted manner by confining it to 82 areas which it had notified, though it is evident from Guidelines, that as per Ground Water Resource Estimates of 2009, 802 areas were identified as over-exploited and 169 as critical and 523 semi-critical. This restricted regulation assumed by CGWA was clearly in defiance of dictates of Supreme Court in M.C. Mehta vs. Union of India & Others. (1997) (supra).
136. At this stage, we find that OA No. 59/2012, Vikrant Kumar Tongad vs. Union of India & Others was filed before Tribunal, raising grievance that there is under regulated, large-scale dewatering of areas particularly in NOIDA and Greater NOIDA, by various construction companies, excessive use of ground water and non-compliance of notifications and guidelines issued under EP Act 1986 which is causing depletion of ground water level in district Gautam Buddha Nagar, (State of Uttar Pradesh). Applicant, Vikrant Kumar Tongad requested Tribunal to direct authorities concerned to, make proper assessment of depletion in ground water level in district Gautam Buddha Nagar, stop dewatering 81 activity in violation of guidelines, regulate ground water extraction for commercial, industrial, residential and other purposes, stop illegal water packaging units, make assessment of their impact on ground water, implement regulations related to ground water harvesting and take penal action against defaulting industries, infrastructure units and establishments etc. State of UP contested the matter by filing reply dated 06.02.2013 wherein it admitted depletion of ground water level in NOIDA and Greater NOIDA, at certain places, but pleaded its compulsion on the ground of fulfilment of daily requirement of urban and rural populace. It also brought before Tribunal the efforts taken by State of UP for conservation of ground water resources by taking steps as under:
i. An Executive Committee under Chairmanship of Chief Secretary, Government of UP was constituted in 2004 to review rain water harvesting and ground water recharge programmes in State of UP;
ii. Roof top rain water harvesting systems was made mandatory for individual plots having size of 300 square meters or more, made compulsory for existing as well as new Government and Semi-
Government buildings;
iii. Housing schemes/plans of 20 acres or more at the layout level, 5% of total areas was to be kept aside for pond/water bodies while maximum depth of ponds is to be kept 3 meters;
iv. Pucca construction in parks would be allowed only up to 5% of total area and as far as possible, pavements would be made of permeable or semi-permeable/perforated material;
v. For new schemes, geological and hydrological surveys need be carried out so that ground water recharging system can be adopted as per local conditions;82
vi. For monitoring of ground water level and assessment of ground water quality in all industrial units, installation of piezometers (ground water monitoring system) was made compulsory;
vii. Steps were taken for spreading awareness amongst general public;
viii. Ground Water Department of State was assigned job of regular monitoring of ground water level, in both, urban and rural areas and also to conduct block wise ground water resource estimation.
ix. Central Government had not framed any norms for ground water resource assessment in urban areas but the State Government of U.P. issued various Government orders dated 12.04.2001, 08.09.2004, 19.11.2004, 02.12.2004, 28.09.2004, 25.04.2006, 01.07.2008, 19.06.2009 and 05.08.2010 wherein, besides other thing, more emphasis was laid on rain water harvesting.
137. A separate reply was filed by CGWA, dated 12.02.2013, wherein it referred to Guidelines 2012 and reiterated that State wise assessment of ground water resources was last assessed, as on 31.03.2009 which revealed 802 units in the category of over-exploited but there against only 162 units were notified and therein extraction of ground water was made impermissible for any purpose other than drinking water. In respect of Gautam Buddha Nagar, it pointed out that it had four blocks-Bisrakh, Dadri, Dankaur and Jewar. As per estimation on 31.03.2004, all the four blocks were in the category of safe but as per the estimation on 31.03.2009 Bisrakh and Dankaur entered the category of "semi-critical" and Block Jewar shifted to the category of "over-exploited". Only Dadri could maintain its category of "safe" though ground water development had gone from 25.98% (as on 31.03.2004) to 73.03% (as on 31.03.2009).
138. CGWA, however, did not give any reason, why despite identification of large number of units as over-exploited only fraction thereof were 83 notified. Boldly it continued to ignore and defy mandate of Supreme Court, given in M.C. Mehta vs. Union of India & Others (1997) (supra).
139. From the record, we find that application filed by Vikrant Kumar Tongad was admitted on 21.11.2012 and an interim order was also passed on 11.01.2013 granting injunction against abstraction of ground water by builders in NOIDA and Greater NOIDA.
140. When the above matter was pending, CGWA issued an additional Guideline/criteria which came into force on 05.04.2013, permitting abstraction of saline ground water in notified areas subject to certain conditions mentioned therein.
141. At this stage, one more application i.e., OA No. 108/2013, Legal Aid National Green Tribunal Bar Association vs. NCT of Delhi & Others was filed under Section 18(1) read with 14, 15 and 17 of NGT Act, 2010 which raised grievance concerning illegal abstraction of ground water in State of Delhi resulting into abnormal fall in ground water level. It refers to a notification dated 12.07.2010 published in Delhi Gazette dated 9th-
15th July, 2010 issued by Lieutenant Governor of National Capital Territory of Delhi, in exercise of powers under Section 5 of EP Act 1986 stating that no person etc. shall draw ground water through bore well or tube well (new or existing), without permission, for domestic, commercial, agriculture and/or industrial uses. Applicant therein sought relief from this Tribunal directing authorities concerned to implement relevant provisions for effective management and regulation of ground water and rain water harvesting. This application was taken up on 23.04.2013 and notices were issued to the respondents. Tribunal required respondents to specifically place on record how many bore wells/tube wells were working in Delhi and how many of them were authorized or unauthorized. In the 84 reply filed by Delhi Jal Board and other authorities, it was stated that there were 106 tube wells operating with permission and 205 were functioning unauthorizedly and illegally. Tribunal found that the persons operating tube wells, illegally, were not paying any charges to the authorities and it had become an incentive for illegal and unauthorized use of ground water leading to depletion of underground water and the common problem of water scarcity to the people of Delhi. Consequently, a Committee was constituted to collect complete data of legal and illegal tube wells working in NCT of Delhi, take potential action against illegally operating tube wells/bore wells, recommend measures to be taken to prevent fall of level of ground water in Delhi and also to suggest methods and means for encouraging rain water harvesting and efforts for recharging level of ground water in Delhi.
142. A similar grievance/complaint was made in OA No. 179/2013, Raj Hans Bansal vs. Ministry of Water Resources & Others in respect of NCT of Delhi. Notices were issued in this matter to the respondents on 23.08.2013 and subsequently, it was clubbed with OA No. 108/2013 (supra) vide order dated 19.11.2013.
143. During pendency of above matters, Guidelines 2012 underwent a minor amendment by CGWA Notification dated 06.08.2014 stating that Guidelines/Criteria thenceforth will follow report on ground water resources estimation as on March 2011 for evaluation of project proposal of industries/infrastructures/mining, seeking ground water extraction.
144. Neither the above Guidelines resulted in any improvement to pathetic condition of constant depletion of ground water nor CGWA made any serious attempt for betterment of the situation. The water level continued to deplete.
85
145. Complaints about ineffective, inadequate and improper regulatory measures adopted and/or omissions on the part of CGWA, and indiscriminate extraction of ground water continuously, across the country, were brought before Tribunal in several other matters. One of such matters is OA No. 176/2015 (supra) wherein grievance raised was that large number of hotels in State of UP were drawing ground water for commercial purposes without having any permission/sanction from CGWA and authorities including UPPCB, CPCB; and that CGWA is not taking any action against them though their action of withdrawal of ground water illegally is causing harm to environment, ground water level and global warming. This application was entertained and notices were issued to the respondents on 26.05.2015. It was found that 3 hotels namely Hotel Holiday Regency, Moradabad, Hotel Clark Awadh, Lucknow and Hotel Country Inn, Sahibabad were extracting ground water without permission while Hotel Sunshine Park, Ghaziabad claimed that it was having a separate water connection from Ghaziabad Nagar Nigam. Hotel Raddisson Blu, Kaushambi informed that it has both sources of water i.e. ground water and water supply from Nagar Nigam. Extraction of ground water was not with the permission of CGWA though after filing of OA, some hotels moved application and subsequently got permission from CGWA.
146. CGWA, in response, relied on Guidelines 2012 and took the stand that it is regulating only notified areas where abstraction of ground water is permissible only for drinking water but in non-notified areas the permission can be granted subject to conditions mentioned in Guidelines 2012.
147. Thereupon, CGWA issued another set of Guidelines (a draft at that stage) namely "Guidelines/Criteria for evaluation of proposals/request for ground water abstraction", (hereinafter referred to as "Guidelines 2015"), 86 giving effect from 16.11.2015, claiming that the same have been framed as per Tribunal's direction for further betterment of ground water regulatory processes. CGWA invited objections/suggestions/comments till 15.01.2016. These Guidelines show that latest assessment of State wise ground water resources was available to CGWB as on 31.03.2011. According to which, out of 6607 assessment units (Blocks, Mandals, Talukas, districts), 1071 were over-exploited, 217 critical, 697 semi- critical, 4580 safe and 92 saline. Annual replenishable ground water resource was estimated as 433 bcm and net ground water availability as 398 bcm. Overall stage of ground water development of country was 62%. Guidelines 2015 also show that till that time, CGWA had notified only 162 areas for the purpose of regulation of ground water development. Guidelines 2015 sought to supersede all earlier Guidelines w.e.f. 16.11.2015. In respect of notified areas, it provided that permission to abstract ground water through any energized means will not be accorded for any purpose other than drinking water. However, in respect of non- notified areas, CGWA followed very flexible stand which it had earlier also, but with certain conditions. It provided that NOC for ground water withdrawal will be considered for industries/infrastructure/mining projects, as per categorization of the areas i.e., safe, semi-critical, critical and over-exploited. It also said that industries using water as raw material/water intensive industries shall not be granted NOC for ground water withdrawal in over-exploited area.
148. The ineffectiveness and casual approach of CGWA was brought to the notice of Tribunal, with further complaint that ground water level in entire country is continuously depleting and going down, in OA No. 176/2015 (supra). It was also pointed out that by order dated 15.04.2015 in OA No. 204/2014, Krishan Kant Singh vs. M/s. Deoria Paper Ltd., 87 Tribunal directed that it shall be obligatory upon CGWA to ensure that any person operating tube well or any means to abstract ground water should obtain its permission and operate the same subject to law in force, whether it is existing unit or still to be established, and in compliance thereof, Guidelines 2015 were published, inviting objections.
149. The matter of Vikrant Kumar Tongad (supra) came up for consideration on 26.07.2018. During the course of arguments, it was brought to the notice of Tribunal that water is depleting in certain areas regularly as per study of CGWA and, therefore, a Rational Policy has to be adopted so as to make water available to cope up the need of society, and simultaneously, preserving water for further generation by preventing wastage of preventable use based on the principle of "sustainable development". It was also noticed that problem of depletion of ground water was not limited to Delhi or NCR but needs be considered for entire country and effective enforcement of regulatory measures PAN India, particularly, in respect of semi-critical, critical and over-exploited areas. Draft Guidelines 2015 were also referred. Tribunal did not find effective regulatory measures either on the part of CGWA or concerned Ministry, hence, directed an expert from Ministry of Water Resources to remain present on next date with latest updates. Para 15 to 18 of order dated 26.07.2018 in Vikrant Kumar Tongad (supra) read as under:
"15. Certain Affidavits have been filed with regard to the inference about the extent of extraction of ground water. In its compliance report dated 31.05.2018 the Senior Town Planners, Department of Country Town and Planning, State of Haryana has suggested a formula for tentative calculation of water consumption for constructions which broadly is 0.75 kilo litre per sqm to 1 kilo litre per sqm. Actual requirement was found to be 2 kilo litre per sqm. for the building upto 20 stories if the number of storeys is more, the use of water per sqm. was more. On that basis it is suggested as follows:
Sr. No. Building/Tower Factors for Water
consumption (In Litres
per sqm. of build up
area)
88
1. Buildings upto 5 stories 750 litres per sqm.
2. Buildings 5 to 10 stories 1000 litres per sqm.
3. Buildings 10 to 20 stories 1500 litres per sqm.
4. Buildings above 20 stories 2000 litres per sqm.
16. When the matter taken up for hearing today, learned counsel for the parties submitted that the concern for ground water depletion is not limited to Delhi or NCR. This Tribunal may, instead of going into the issue limited to NCR region, consider various aspects of the said issue comprehensively including the existing mechanism for regulation of ground water extraction as well as recharge of ground water.
17. On the one hand there is the need for the water which is the basic necessity, on the other compulsion of restricting its use in view of the fact that the availability of water is inadequate and level of water is depleting atleast in certain areas as per the study of Central Ground Water Authority. The Policy has to be rational, meeting the basic need of everyone and at the same time preserving the water for the future generation by preventing wastage or preventable use based on the principle of Sustainable Development. Incidental to such policy is the issue of punitive measures and recovery of damages for those who have extracted ground water in the past who go on doing unauthorised/illegal extraction, leading to alarming depletion in the ground water. Further question will be steps to be taken to tap all relevant sources specially the rain water harvesting, persevering the water bodies etc.
18. Our attention has been drawn in this regard to the guidelines for the criteria for evaluation of proposal for extraction of ground water w.e.f. 16.11.2015. These guidelines provide for notified and non- notified areas depending upon the availability of water and criteria adopted for permitting extraction and the area where there is water scarcity. Learned counsel for the Applicant submits that further guidelines have been prepared though the same may be at the draft stage.
For this purpose, we may direct an Expert from Ministry of Water of Resources to remain present on the next date with the latest updates."
(Emphasis added)
150. In OA No. 176/2015 (supra), Tribunal on 28.08.2018, taking note of complaints of inaction of CGWA, and ineffective regulation of extraction of ground water in critical areas, observed:
"we are disappointed at the apathy shown by the CGWA. On the one hand the CGHWA has classified over-exploited, critical and semi-critical areas for regulation, on the other it has refused to regulate such areas on a specious plea that it is only concerned with the notified area. Being the Central Authority for the whole country under the binding mandate of the order of the Hon'ble Supreme Court, such apathy can hardly be appreciated and such pleas is against the concept of rule of law."
(Emphasis added) 89
151. Consequently, vide order dated 28.08.2018, Tribunal directed Ministry of Water Resources, in consultation with MoEF and Ministry of Agriculture, to forthwith review existing mechanism so as to ensure effective steps for conserving ground water, at least in areas which are over-exploited, critical and semi-critical. Tribunal further said, the policy framework should include monitoring mechanism with provision for coercive measures required, consistent with the directions of Supreme Court in M.C. Mehta vs. Union of India & Others (1997) (supra); policy must also provide for recovery of damages for illegal drawl of ground water; and damages should include penalty as well as environmental compensation.
152. On 29.08.2018, matter of Vikrant Kumar Tongad (supra) came up before Tribunal when it expressed its displeasure, for non-finalization of Guidelines, despite order of Supreme Court passed as long back as in 1996 in M.C. Mehta vs. Union of India & Others (1997) (supra) pursuant whereto, CGWA was constituted by Government of India vide Notification dated 14.01.1997. Referring to all its earlier orders passed in Vikrant Kumar Tongad (supra) and also in some other cases which came up before Tribunal later, namely OA No. 176/2015 (supra) and OA No. 484/2015, Shailesh Singh vs. Hotel the Oberoi Amarvilas & Other (order dated 28.08.2018), it was observed that CGWA has failed to perform its duty of coming out with clear rational policy for conserving ground water despite Supreme Court orders in M.C. Mehta vs. Union of India & Others (1997) (supra). Tribunal also referred to its orders in OA No. 108/2013 (supra), OA No. 179/2013 (supra) and Appeal No. 67/2015, Apex Chambers of Commerce and Industries of N.C.T. of Delhi & Others vs. Govt. of NCT Delhi & Others which pertained to Delhi Jal Board, wherein stand of Board was that for commercial packaging or 90 supply, permission to abstract ground water would not be granted. Hence Tribunal by order dated 10.07.2018 prohibited such abstraction.
153. In another matter taken up on the same date i.e., 29.08.2018 i.e., OA No. 411/2018, M/s. A-One Mineral Water Industry vs. Central Ground Water Authority & Others, Tribunal deprecated and disapproved approach and working of CGWA including its Chairman and Administrator and required Secretary, MoEF&CC to look into the matter and report before Tribunal.
154. Several matters namely OA No. 59/2012 (supra), OA No. 108/2013 (supra), OA No. 179/2013 (supra), OA No. 176/2015 (supra), OA No. 484/2015 (supra), OA No. 327/2018, Shailesh Singh Vs Panchsheel Buildtech Pvt. Ltd. & Others., OA No. 115/2017, Shailesh Singh Vs. Central Ground Water Board & Others, OA No. 411/2118 (supra) and Appeal No. 67/2015 (supra) came up on 22.10.2018 when no progress was shown by the authorities before Tribunal, despite categorical orders passed earlier. Deprecating, Tribunal observed that the authorities are comfortably sleeping over the matter, and in spite of pendency, no concrete steps were shown to have been taken by them. The matter was adjourned to 12.11.2018 directing Secretary, Water Resources, Govt. of India to remain personally present to show cause why action for defiance and non- compliance of Tribunal's order be not taken.
155. All these matters led by OA No. 59/2012 (supra) came up before Tribunal on 12.11.2018. In its order, Tribunal noticed that even in over- exploited, critical and semi-critical area, with or without permission underground water continued to be extracted on a specious plea that though critical, the area was not notified and thus, not regulated. Before Tribunal, CGWA sought to disown its responsibility stating that water is a 91 subject matter of 'State' and, therefore, Central bodies have limited role. Similar defence taken before Supreme Court, by Government of India, was already negated in M.C. Mehta vs. Union of Inia & Others (1997) (supra), still CGWA repeated the same. This was deprecated by Tribunal. Various observations made by Tribunal, demonstrating failure of CGWA in functioning as per directions and observation of Supreme Court in M.C. Mehta vs. Union of India & Others (1997) (supra), in paras 3 to 8, read as under:
"3. As a result of the survey of the geographical areas in the country, over exploited, critical and semi critical areas have been declared. The CGWA had issued 2012 guidelines and thereafter prepared draft guidelines on 16.11.2015 which are pending finalization for the last three years. The Tribunal noticed that even in over exploited, critical and semi critical areas, with or without permission, underground water continues to be extracted on a specious plea that though critical the area was not declared notified and is, thus, not regulated. The CGWA has also sought to disown its responsibility by saying that the matter was State subject.
4. The Tribunal has passed several order prohibiting extraction of underground water for commercial purposes with or without permission. Mechanical condition of requiring recharge of the underground water, which does not actually happen, and on that basis permitting drawal of underground water for commercial purposes has been held to be unjustified.
5. The underground water has been found to be extracted for building construction, for bottling plants, for swimming pools, threatening availability of the underground in over exploited, critical and semi critical areas specially in absence of adequate steps for rain water harvesting for recharge of the underground water.
6. The plea that industries are allowed to draw underground water against charges is ridiculous and beyond comprehension in over exploited, critical and semi critical areas. It is against the precautionary principle, sustainable development as well as inter generational equity principle. One may understand the drawal of underground for drinking purposes where no other source for such purpose exists but for no other purpose, much less the industrial purpose such drawal of underground water can be allowed with or without payment in such areas. The Tribunal has also noted that drawal of ground water in the catchment areas of rivers may affect e-flow of the rivers which in turn affect aquatic life and the river water quality.
7. We do appreciate the difficulties of the agriculturists but the option of providing alternative of use of treated sewage water etc. or 92 switching over to less water consuming crops needs to be considered. Equally significant is the need for checking contamination of underground water by who are discharging untreated effluents in the earth or in the water bodies. Comprehensive planning and execution thereof on the subject with utmost priority is necessary and absence thereof has led to emergency situation in certain areas.
8. In several orders, we have noted the apathy of the Authorities in the last six years in neglecting the subject in breach of the trust reposed in such Authorities. It was this concern that led to our earlier observations and direction to require the presence of Secretary, Department of Water Resources in person. We have no information about steps taken in compliance of earlier directions, including action for illegal activities of the CGWA except a statement that the said Authority is ill equipped. If so, we do not know why? We note that presence of the said Secretary today and also affidavit filed before this Tribunal on 16.10.2018 to the effect that policy framework has been evolved and re-framing of policy guidelines are "under consideration" for reference to the Ministry of Law."
(Emphasis added)
156. Thereafter, CGWA came up with a new set of Guidelines, vide Notification S.O. 6140(E) dated 12.12.2018, published in Gazette of India (Extraordinary), of the same date, titled as "Guidelines to regulate and control ground water extraction in India". It was given effect from 01.06.2019 (hereinafter referred as 'Guidelines 2018').
157. Para 2 thereof stated that these Guidelines shall supersede all earlier guidelines issued by CGWA and will have PAN India applicability.
158. Para 2.1 referred those categories of users who were exempted from obtaining NOC for ground water abstraction and read as under:
"2.1. Exemptions
1. The following categories of users shall be exempted from obtaining NOC for ground water abstraction:
i. All users drawing/proposing to draw ground water through non-energized means (bucket & rope, hand pump, mhote etc.) ii. Individual households drawing/proposing to draw ground water from a single dug well/bore well/tube well through delivery pipe of up to 1" diameter iii. Agricultural users iv.Armed Forces Establishments during operational deployment or during mobilization in forward locations.93
The following categories of users shall be granted exemption from the requirement of NOC for ground water withdrawal, subject to submission of particulars as per the proforma (Annexure III) to CGWA. i. Strategic and operational infrastructure projects for Armed Forces ii. Defence Establishments and Paramilitary Forces Establishments iii. Government water supply agencies in safe and semi critical areas The agencies mentioned under Sl. Nos. i, ii and iii shall install digital water flow meters to monitor monthly ground water abstraction, construct observation wells (piezometers) equipped with Digital Water Level Recorders (DWLR) for regular monitoring of ground water levels if the proposed ground water extraction is > 10 m3/day. Data sharing mechanism will be the same as in Section 2.3.1.VII. They will also monitor ground water quality from the abstraction structures once in a year during the month of April/ May. Guidelines for construction of piezometer are given in Annexure IV. The ground water samples collected shall be analysed at an NABL accredited laboratory. The data on ground water abstraction, ground water levels and ground water quality shall be submitted to the concerned Regional Office of Central Ground Water Board on the web portal."
159. Para 2.2 deals with drinking and domestic use and said as under:
"2.2. Drinking & Domestic use Request for NOC shall be considered only in cases where the water supply department/agency concerned is unable to supply adequate amount of water in the area. For granting NOC for ground water withdrawal for drinking & domestic purposes, two broad categories identified are as follows:
a) Individual households/connections
b) Infrastructure projects/industries/mining projects/water supply agencies/others"
160. Para 2.2.1 deals with the conditions and procedure for grant of NOC to individual household. Para 2.2.2 deals with infrastructure projects/industries/mining projects/public water supply agencies/ others requiring water only for drinking & domestic use. These paras 2.2.1 and 2.2.2 read as under:
"2.2.1. Individual households:
Individual houses drawing/ proposing to draw ground water through more than one functional bore well/tube well/dug well or drawing ground water through delivery pipe of more than 1" diameter from a single ground water abstraction structure shall be required to seek NOC for ground water withdrawal under this category. NOC for 94 ground water extraction shall be granted subject to the following conditions:
i. Application for NOC shall be accompanied by the proof of ownership of household(s).
ii. NOC for new wells shall be granted only in such cases where public water supply system does not exist/water supply is inadequate.
iii. Applicant shall submit an affidavit on non-judicial stamp paper of Rs. 10/- confirming non/inadequate availability of public water supply.
iv. The NOC shall be valid for a period of 5 years from the date of issue or till such time public water supply is provided to the household, whichever is earlier. The applicant shall apply for renewal of NOC at least 90 days prior to expiry of its validity. v. The user shall install digital water flow meter on the tube well/ bore well /dug well and submit the data through the web-portal vi. The user shall submit ground water abstraction data through the web-portal.
vii. If the existing well becomes defunct within the validity period of NOC, the user can construct a replacement well under intimation to the Regional Director of CGWB. The defunct well shall be properly sealed as per guidelines given in Annexure V. viii. The owner shall implement roof top rain water harvesting as per the prevalent building bye laws. However, no recharge shall be undertaken in areas prone to water logging (water levels within 5 metres below ground level).
ix. The owner shall pay Water Conservation Fee based on quantum of ground water extraction as applicable (Refer Sub-section 2.6). x. The NOC shall become void in case of change in land use of the property/ water use. It will then become mandatory for the owner to apply for fresh NOC.
2.2.2. Infrastructure projects/ industries/ mining projects/ public water supply agencies/other requiring water only for drinking & domestic use.
An indicative list of infrastructure projects to be considered under this category is given in Annexure VI. NOC for ground water withdrawal for drinking and domestic purpose only for infrastructure projects/ industry/ mining projects/water supply agencies/others will be granted based on the following conditions:
I. Application for NOC shall be accompanied by the following documents:
i) Approval in the form of Terms of Reference / Consent to Establish/Consent to Operate / License issued by the statutory bodies viz. Ministry of Environment, Forests& Climate Change (MoEF & CC) / State Level Expert Appraisal Committee (SEAC)/State Level Environment Impact Assessment Authority (SLEIAA) / State Pollution Control Board (SPCB) / Urban/ Rural Development Authority / Department of Industries or any other authority mandated by Central/State Government.
ii) Details of water requirement computed as per National Building Code, 2016 (Annexure VII), taking into account 95 recycling/ reuse of treated water for flushing etc. (in case of new buildings).
iii) Affidavit on non-judicial stamp paper of Rs. 10/- by the applicant, confirming non/ inadequate availability of public water supply in case of users requiring ground water up to 10 m3/day for drinking/ domestic use.
iv) Certificate of non-availability of water from government water supply agency in case of infrastructure project/industry/mine requiring ground water in excess of 10 m3/day for drinking/ domestic use.
v) Water quality data of bore well/tube well/dug well in respect of existing projects from NABL accredited laboratory. II. Use of recycled/ treated waste water for purposes like flushing, green belt etc. shall be mandatory for new projects requiring >12.5 m3/d of ground water.
III. NOC for new /existing wells shall be granted only in such cases where the required amount of water is not available from the public water supply system.
IV. If the existing well becomes defunct within the validity period of NOC, the user can construct a replacement well under intimation to CGWA on web portal. The defunct well shall be properly sealed (Refer Annexure V).
V. The proponent shall mandatorily install roof top rain water harvesting system in the project area, wherever the ground water level is deeper than 5 metres below ground level.
VI. The proponent shall pay Water Conservation Fee based on quantum of ground water extraction as applicable (Refer Sub- section 2.6).
VII. Installation of digital water flow meter (conforming to BIS standard) in the abstraction structure(s) shall be mandatory and intimation regarding the same shall be communicated to the CGWA within 30 days of grant of NOC through the web-portal. Monthly water meter reading shall be digitally recorded and reports of ground water abstraction shall be submitted through the web portal to CGWA.
VIII. Construction of purpose-built observation wells (piezometers) for monthly ground water level monitoring shall be mandatory for proponents drawing/ proposing to draw 10m3/day or more of ground water. Detailed guidelines for construction of piezometers are given in Annexure IV. Depth and zone of aquifer tapped in the piezometer should be commensurate with that of the pumping well.
IX. Installation of Digital Water Level Recorders (DWLR) in the observation well shall be mandatory for projects requiring ground water from 50 to less than 500 m3/day in safe and semi critical assessment units and 20 to less than 200 m3/day in critical and overexploited assessment units. The list of safe, semi critical, critical, overexploited and saline assessment units is available at www.noc-cgwb.gov.in.
96 X. For projects requiring ground water extraction of 500 m3/day or more in safe and semi critical assessment units and 200 m3/day or more in critical and overexploited assessment units, installation of DWLR with telemetry in the observation well shall be mandatory. The data server shall be maintained by the supplier of the instrument and access will be provided to CGWA through the web portal. It shall be the responsibility of the applicant to provide user ID and password to the above agency.
XI. Monthly water level data shall be submitted to CGWA through the web portal.
XII. All proponents shall monitor quality of ground water from the abstraction structure(s). Water samples from borewells/ tube wells / dug wells shall be collected during April/May every year and analyzed from NABL accredited laboratories for basic parameters (cations and anions), heavy metals, pesticides/ organic compounds etc. Water quality data shall be made available to CGWA through the web portal.
XIII. The NOC shall be valid for a period of 5 years from the date of issue or till such time public water supply is provided to the project area, whichever is earlier.
XIV. The proponent/ authorized representative of the occupants of the infrastructure project shall apply for renewal of NOC at least 90 days prior to expiry of its validity."
161. The indicative list of "Infrastructure projects" governed by para 2.2.2, as mentioned in annexure VI to the Guidelines 2018, referred to:
residential apartment, Residential township, Office building, School College, University, Industrial Area (Drinking use), SEZ (Drinking use), Metro Station, Railway Station, Bus Depot, Airport, Seaport, Highway infrastructure, Fire station, Warehouse, Business Plaza, Malls & Multiplex, Hospitals, Nursing Homes, Water Park/Theme Park/Amusement Park, Resort, Hotel/Restaurant/Food Plaza, Holiday home/Guest house, Banquet Hall/Marriage Gardens, IT Complex, Logistics & Cargo, Clubs and Trade Centre.
162. Para 2.3 deals with industrial/mining/infrastructure projects and separate conditions are provided for industries, mining projects and infrastructure projects and the conditions are as under:97
"2.3 Industrial/ Mining/ Infrastructure projects All industries/ mining/ infrastructure projects, whether existing/ new/ under expansion and drawing/ proposing to draw ground water through energized means shall need to obtain NOC for ground water withdrawal from the Central Ground Water Authority.
2.3.1 Industries NOC to industries shall be granted only for such cases where government agencies are not able to supply the desired quantity of water. The applications for NOC shall be considered as per the criteria given below.
I. Application for NOC shall be accompanied by the following documents:
i) Approval in the form of Terms of Reference/ Consent to Establish/ License issued by statutory bodies viz. Ministry of Environment, Forests & Climate Change (MoEF&CC) or State Pollution Control Board (SPCB) or State Level Expert Appraisal Committee (SEAC) or State Level Environment Impact Assessment Authority (SLEIAA) or Bureau of Indian Standards (BIS) or Food Safety and Standards Authority of India (FSSAI) or Department of Industries or any other authority mandated by Central or State Government.
ii) A valid Consent to Operate issued by the Industry Department/ Pollution Control Board/ copy of application submitted for renewal of Consent to Operate.
iii) Certificate regarding non/partial availability of fresh water/treated waste water supply from the concerned government agency in cases where requirement of ground water is more than 10 m3/day.
iv) An affidavit on nonjudicial stamp paper of Rs. 10/- regarding non availability of water supply from government agencies in cases where ground water requirement is up to 10 m3/day.
v) Water quality data of bore well/tube well/dug well in respect of existing industries from NABL accredited laboratory.
II. Hydrogeological report prepared by NABET accredited consultant shall be mandatory for users drawing/ proposing to draw ground water to the tune of 2000 m3/day or more in safe assessment units, 1500 m3/day or more in semi critical and critical assessment units and 1000 m3/day or more in over-exploited assessment units. Pro-forma for hydrogeological report is given in Annexure VIII. Installation of digital water flow meter (conforming to BIS standard) in the abstraction structure(s) shall be mandatory and intimation of the same shall be communicated to the CGWA through the web portal within 30 days of grant of NOC. III. Monthly water flow meter readings shall be recorded and reports of ground water extraction shall be submitted to CGWA through the web portal.
IV. Industries shall minimize the use of fresh ground water through recycling and reuse of waste water.
V. All industries abstracting ground water to the tune of 500 m3/day or more in safe and semi critical and 200 m3/day or more in critical 98 and over-exploited assessment units shall be required to undertake water audit (Annexure IX) through CII/ FICCI/ NPC certified auditors and submit report within three months of completion of the same to CGWA through the web portal. The first audit shall be done within a year of grant of NOC. Subsequent audits shall be conducted once in 3 years for Safe/Semi critical assessment units and once in 2 years in critical/over-exploited assessment units. VI. Construction of observation well(s) (piezometers) within the premises, for monthly ground water level monitoring, shall be mandatory for industries drawing/ proposing to draw more than 10 m3/day of ground water. Depth and aquifer zone tapped in the piezometer shall be commensurate with that of pumping well/ wells. The number of observation wells (piezometers) shall be specified in the No Objection Certificate. Detailed guidelines for construction of piezometers are given in Annexure IV. Monthly water level data shall be submitted to the CGWA through the web portal. VII. Industries drawing/proposing to draw ground water from 50 to less than 500 m3/day in safe and semi critical assessment units and those drawing/proposing to draw 20 to less than 200 m3/day of ground water in critical and over-exploited assessment units shall install digital water level recorder (DWLR) in the observation well for continuous monitoring of ground water levels. Depth to water levels shall be monitored at 12 hour intervals and the DWLR data shall be retrieved and submitted to CGWA through the web portal.
VIII. Industries drawing/proposing to draw ground water to the tune of 500 m3/day or more in safe and semi critical areas and 200 m3/day or more in critical and over-exploited areas would be required to install DWLR with telemetry in the observation well for continuous monitoring of ground water levels. The server will be maintained by the supplier of the instrument and access shall be provided to CGWA. It shall be the responsibility of the proponent to provide User ID and password to the CGWA.
IX. All industries shall monitor quality of ground water from the abstraction structure(s). Water samples from bore wells/tube wells/dug wells shall be collected during April/May every year and analysed from NABL accredited laboratories for basic parameters (cations and anions), heavy metals, pesticides/organic compounds etc. Water quality data shall be made available to CGWA through the web portal.
X. All industries except those falling in red and orange categories as per CPCB (list available on http://envfor.nic.in/sites/default/files/Latest_118_Final_Directions .pdf) shall implement roof top rain water harvesting within six months of grant of NOC. Recharge of harvested water shall not be permitted in areas prone to water logging (water level within 5 m.bgl). XI. Industries shall deposit Water Conservation Fee (WCF) based on quantum of extraction as applicable (see Subsection 2.6). Industries which are not able to implement roof top rain water harvesting due to likely threat of pollution or any other valid reason shall be required to pay additional water conservation fee to 99 compensate for the quantum of water that could have been recharged by the unit.
XII. NOC shall be valid for a period of 3 years in safe and semi critical areas and 2 years in critical and overexploited areas. XIII. The applicant shall apply for renewal of NOC at least 90 days prior to expiry of its validity.
XIV. Industries which are likely to cause ground water pollution e.g. Tanning, Slaughter Houses, Dye, Chemical/Petrochemical, Coal washeries, other hazardous units etc. (as per CPCB list) need to undertake necessary measures to ensure prevention of ground water pollution (Annexure X).
XV. Recharge/ injection of treated/untreated waste water within/ outside the plant premises is strictly prohibited. XVI. Existing industries, which have already obtained NOC and have implemented recharge measures as specified in the NOC, shall be exempted from paying WCF. However, if the industry is going for expansion, WCF will have to be paid for the additional quantum of ground water withdrawal as per applicable rates.
XVII. Existing industries, which have obtained NOC and adopted pond/ ponds but have not been able to implement the specified volume of recharge due to various reasons, shall have an option to de- adopt pond/ ponds and pay WCF within six months of the effectiveness of these guidelines. If at the time of renewal it is observed that the industry has not been able to comply with the recharge condition specified in the NOC, the industry shall have to pay WCF in addition to the penalty as specified in the Environment (Protection) Act, 1986.
XVIII. Wherever feasible, requirement of water for greenbelt (horticulture) shall be met from recycled/treated waste water. XIX. If an existing well becomes defunct within the validity period of NOC, the proponent shall construct a replacement well under intimation to the CGWA through the web portal. The defunct well shall be properly sealed (Annexure V).
XX. In case of change of ownership, new owner of the industry will have to apply for necessary changes in the NOC with documentary proof within 45 days of taking over possession of the premises. 2.3.2 Mining projects All existing as well as new mining projects need to obtain NOC for mine dewatering and/or ground water withdrawal through wells, if any, from Central Ground Water Authority. NOC for abstraction of ground water shall be granted subject to the following conditions:
I. Application for NOC shall be accompanied by the following documents:
i) Approval from statutory bodies viz. Ministry of Environment, Forests & Climate Change (MoEF & CC) or State Pollution Control 100 Board (SPCB) or State Level Expert Appraisal Committee (SEAC) or State Level Environment Impact Assessment Authority (SLEIAA).
ii) Certified mine lease map.
iii) Document showing ownership/ lease of land.
iv) Mining plan approved by the concerned Govt. agency/ department.
v) Comprehensive report prepared by NABET accredited consultant on ground water conditions in both core and buffer zones of the mine, depth wise and year wise mine seepage calculations, impact assessment of mining and dewatering, details of recycling, reuse and recharge, reduction of pumping with use of technology for mining and water management to minimize and mitigate the adverse impact on ground water, based on local conditions.
Format for report is given in Annexure VIII.
II. The water available from de-watering operations shall be put to gainful use such as water supply, irrigation, dust suppression, mining process etc. III. Installation of digital water flow meter (conforming to BIS standard) in the abstraction structure(s) shall be mandatory and intimation of the same shall be communicated to the CGWA through the web portal.
IV. Water flow meter reading shall be digitally recorded and submitted to the CGWA through the web portal.
V. The proponent shall have to pay WCF based on quantum of ground water extraction as applicable (see Subsection 2.6). VI. Construction of observation well(s) (piezometers) within the premises along the periphery, for monthly ground water level monitoring, shall be mandatory for mines drawing/ proposing to draw more than 10 m3/day of ground water. Depth and aquifer zone tapped in the piezometer shall be commensurate with that of pumping well/ wells. The number of observation wells (piezometers) shall be specified in the No Objection Certificate. Detailed guidelines for construction of piezometers are given in Annexure IV. Monthly water level data shall be submitted to the CGWA through the web portal. VII. Proponents drawing/proposing to draw ground water from 50 to less than 500 m3/day in safe and semi critical assessment units and those drawing/proposing to draw 20 to less than 200 m3/day of ground water in critical and over-exploited assessment units shall install digital water level recorder (DWLR) in the observation well(s) for continuous monitoring of ground water levels. Depth to water levels shall be monitored at 12 hour intervals and the DWLR data shall be retrieved and submitted to the CGWA through the web portal. VIII Proponents drawing/proposing to extract ground water to the tune of 500m3/day or more in safe and semi critical areas and 200 m3/day or more in critical and over-exploited areas would be required to install DWLR with telemetry in the observation well for continuous monitoring of ground water levels. The server will be maintained by the supplier of the instrument and access shall be provided to CGWA. It shall be the responsibility of the proponent to provide User ID and password to CGWA.
101 IX. In addition, the proponent shall monitor ground water levels by establishing key wells in the core and buffer zones as specified in the NOC.
X. All mining units shall monitor quality of ground water from the abstraction structure(s). Water samples from bore wells/ tube wells / dug wells shall be collected during April/May every year and analyzed from NABL accredited laboratories for basic parameters (cations and anions), heavy metals, pesticides/ organic compounds etc. Water quality data shall be made available to the CGWA through the web portal.
XI. The NOC shall be valid for a period of 2 years from the date of issue of NOC.
XII. The proponent shall apply for renewal of NOC at least 90 days prior to expiry of its validity.
2.3.3 Infrastructure projects requiring dewatering or use of ground water for construction New infrastructure projects/residential buildings may require dewatering during construction activity and/or use ground water for construction. In both cases, applicants shall seek NOC from CGWA before commencement of work. The NOC will be granted subject to the following conditions:
I. Application for NOC shall be accompanied by the following documents:
i) Approval letter from statutory bodies viz. Ministry of Environment, Forests & Climate Change (MoEF & CC) or State Pollution Control Board (SPCB) or State Level Expert Appraisal Committee (SEAC) or State Level Environment Impact Assessment Authority (SLEIAA) or Urban/Rural/Area Development Authority.
ii) In cases where dewatering of more than 100 m3/day is required, hydrogeological report prepared by NABET accredited consultant on the ground water situation in the area giving detailed plan of pumping, proposed usage of pumped water and comprehensive impact assessment of the same on the ground water regime. The report should highlight environmental risks and proposed management strategies to overcome any significant environmental issues.
iii) An affidavit on nonjudicial stamp paper of Rs. 10/- regarding non availability of water from any other source for construction in safe and semi critical areas.
iv) Certificate from the government agency regarding non availability of treated sewage water for construction within 10 km radius of the site in critical and over-exploited areas.
II. The proponent shall be required to adopt roof top rain water harvesting in the project premises after completion of building construction. Recharge measures shall not be implemented in areas 102 prone to water logging (water level within 5 metres below ground level).
III. The proponent will have to pay WCF based on quantum of ground water extraction as applicable (see Sub-section 2.6). IV. Proponent shall be required to carry out regular monitoring as mentioned below:
Parameter to be monitored Frequency Submission to the CGWA Dewatering discharge rate Continuous Through the web-
(using a digital water flow meter) portal Water levels in the surrounding Fortnightly Through the web-portal area by constructing observation wells (piezometers) in consultation with the concerned Regional Office of CGWB Monitoring records and results should be retained by the proponent for up to two years, for inspection or reporting as required by CGWA.
V. NOC shall be valid for the specific period as per the detailed proposal submitted by the project proponent."
163. Para 2.4 deals with agriculture sector and said that it shall be exempted from obtaining NOC for ground water withdrawal but placed responsibility upon concerned State Governments to undertake sustainability of ground water source. Para 2.5 deals with the abstraction of saline/contaminated ground water. It is said that abstraction of saline/contaminated ground water for use by industries/ dewatering by infrastructure/mining projects including those located in over-exploited areas would be encouraged. The list of such assessment units having saline ground water at all depths as per the latest assessment of dynamic ground water resources will be made available by the Authority in the web-
based application system. Packaged drinking water units shall be encouraged to be set up in quality affected areas. All precautions must be taken for protection of environment, especially fresh water aquifers in and around the area. Other conditions for granting NOC would be the same as mentioned in Para 2.3 for industries and infrastructure projects, 103 respectively. Some additional conditions were provided which we are omitting being non-relevant at this stage. Para 2.6 is a provision for Water Conservation Fee (hereinafter referred to as 'WCF'), made in compliance of Tribunal's order dated 13.07.2017 in OA No. 200/2014 dealing with Ganga matter, wherein it was observed that all users must be required to pay for ground water extraction. The rates of WCF were claimed to have been determined by CGWA after considering factors namely, i) Cost of implementation of rainwater harvesting/artificial recharge structures by industries/infrastructure units/mines which have been mandated to implement the same as per NOCs granted earlier; and ii) charges being levied by various State Governments for use of surface water by industries.
164. On 18.12.2018, leading cases OA 176/2015 (supra) and OA 59/2012 (supra) came up before Tribunal along with OA 108/2013 (supra), OA 179/2013 (supra), OA 484/2015 (supra), OA 327/2018 (supra), OA 115/2017 (supra), OA No. 411/2118 (supra), OA 613/2017, Mohd. Javed Asghar vs. M/s Upper Ganges Sugar and Industries Ltd. (Distillery Unit) & Others and OA 614/2017, Mohd. Javed Asghar vs. State of U.P. & Others and Appeal 67/2015 (supra). After hearing, order was uploaded on 03.01.2019. Entire historical background and also litigation going on in Tribunal, in respect of massive abstraction of ground water and failure of statutory body like CGWA in effective regulation, consistent depletion of ground water level worsening the condition, was noticed and then Tribunal also examined Guidelines 2018. Deprecating the same, in para 22 to 27 of order dated 03.01.2019, Tribunal said:
"20. It is clear from the above that, rather than laying down stricter norms for extraction of ground water for commercial purposes and putting in place a robust institutional mechanism for surveillance and monitoring, extraction of ground water has been liberalized adding to the crisis unmindful of the ground situation and likely impact it will have on environment. No data has been 104 furnished to justify the policy reversal by way of uncontrolled liberalized drawal of groundwater in OCS areas.
21. The provisions of the impugned notification show that drawal of ground water has been, for all practical purposes, made unregulated in all areas, including the OCS areas.
22. The so called regulation is illusory. The so called conditions are incapable of meaningful monitoring, as shown by past experience also
23. The water conservation fee virtually gives licence to harness ground water to any extent even in OCS areas.
24. There is no institutional mechanism to monitor removal and replenishment of ground water.
25. Delegation provision is virtual abdication of authority.
26. There is no check on injection of pollutants in the ground water in the impugned notification. There is no provision with regard to check on water quality and its remediation, if there is contamination.
27. We are satisfied that the Notification dated 12.12.2018 tested on the Precautionary Principle, Sustainable Development as well as Inter-generational Equity Principles is unsustainable in law and instead of conservation of ground water which is necessary for providing access to drinking water in OCS areas, as well also other needs of environment, including sustenance of rivers and other water bodies, it will result in fast depletion of ground water and damage to water bodies and will be destructive of the fundamental right to life under Article 21 of the Constitution of India."
(Emphasis added)
165. Consequently, Tribunal directed not to implement said Notification. Its direction in para 28, reads as under:
"28. Accordingly, the impugned Notification may not be given effect to in view of serious shortcomings as pointed above so that an appropriate mechanism can be introduced consistent with the needs of environment."
(Emphasis added)
166. Tribunal directed MoEF&CC to constitute an Expert Committee by including representatives from IIT Delhi, IIT Roorkee, IIM Ahmedabad, CPCB, NITI Ayog and any other concerned agency or department to examine the issue of appropriate policy for conservation of ground water with a robust institutional mechanism for surveillance and monitoring, with a view to enhance access to ground water for drinking purposes in 105 OCS (over exploited, critical and semi-critical) areas by way of appropriate replenishment practices which can be properly accounted and measured for, as well as to sustain floodplains of rivers in terms of e- flow and other water bodies. Giving this direction in para 29 of the judgment, Tribunal directed MoEF&CC and also Ministry of Water Resources to finalize the issue of subject, inter-se, with regard to ground water reserve and its quality. Committee was to be constituted in two weeks and report was directed to given by Committee in two months. Committee was also required to indicate projection of its impact study in the light of projected data for next 50 years (in phased manner with action plan for each decade). Thereafter, the concerned Ministry was to issue fresh guidelines and submit report to Tribunal on or before 30.04.2019. In para 32, Tribunal directed CPCB to constitute a mechanism to deal with individual cases of violations of norms, as existed prior to Notification of 12.12.2018, to determine the environment compensation to be recovered or other coercive measures to be taken, including prosecution, for past illegal extraction of ground water, as per law. Tribunal further said that all the matters related to illegal extraction of ground water by individuals are disposed of with these directions.
167. Thus, vide order dated 03.01.2019, all individual matters relating to extraction of ground water illegally, stood disposed of. However, when the matters were next listed on 07.05.2019, Tribunal found that MoEF&CC has failed to perform its duty, and directions, issued by Tribunal vide order dated 03.01.2019, were not complied. In fact, Committee required to be constituted within two weeks, was actually constituted only on 29.03.2019. Tribunal deprecated it and said:
"We do not appreciate such attitude of Government departments when under a statutory enactment, violation of orders of this Tribunal is a criminal offence. The Committee has not acted promptly and no significant progress has been brought to our notice.106
Lack of sensitivity of serious issues of environment such as fast depleting ground water is a matter of concern."
168. Having said so, Tribunal directed Committee to submit report positively by 30.06.2019, failing which Joint Secretary concerned of MoEF&CC was directed to remain present to explain as to why action be not taken for violation of Tribunal's orders. Further, report dated 30.04.2019 submitted by CPCB vide e-mail, was also considered wherein it had taken the stand that assessment of environmental compensation for illegal extraction of ground water has been done. This report was not accepted by Tribunal, giving following reasons:
"i. The OCS areas which need regulation for conservation of ground water cannot be further treated separately as notified or non-notified. Conservation of ground water in the said areas is of equal necessity. Depletion of ground water in the said areas affects the sub-terranean flow and results in contamination of ground water and also poses a potential danger for drying up of important natural resource in violation of established principle of 'Intergenerational Equity'. ii. The compensation to be recovered for illegal extraction has to be deterrent specially when it is for commercial or industrial purpose and linked to the quantum of ground water extracted and the period for which such extraction takes place.
iii. Scenario analysis with robust scientific logic is required for all the classes considered in comparable terms which has not been done in the present report."
169. CPCB was directed to submit fresh report on or before 30.06.2019.
170. Referring to ground water development on the basis of Guidelines 2015 for existing industries, infrastructure in the said mining projects, Tribunal said that it did not find any safeguards suggested to address the concern, earlier expressed against depleting ground water. It further held:
"The mandate of CGWA is not exploitation of ground water in depleted areas but to conserve it. Any policy which results in further depletion obviously cannot be permitted in OCS areas. CGWA is free to lay down and follow stringent norms to ensure that there is no depletion of ground water in OCS areas and depleted water level is improved and replenished. Any policy has to be in that direction and not in reverse direction as is unfortunately being attempted by CGWA, as noticed in earlier orders."107
171. Tribunal also observed that MoEF&CC must come up with an appropriate policy. Strangely, MoEF&CC took the plea that CGWA has not cooperated, which has caused delay. This stand was denied by CGWA. In this situation, Tribunal observed that the fact remains that failure is on the part of both. Entrusted with the responsibility of protecting ground water, CGWA and all other Authorities must cooperate and collaborate in the exercise to come out with a policy which must result in checking further depletion of ground water and enhance replenishment. Tribunal directed concerned Secretaries to monitor compliance of directions, having regard to the importance of the issue.
172. Mistakenly, Registry failed to notice that individual matters were already disposed of vide order dated 03.01.2019, and thus, should not have listed on 07.05.2019, except the matter relating to status of compliance of directions of Supreme Court in NGT, to check depletion of ground water level in the country. This mistake occurred on 23.08.2019 also.
173. In the meantime, pursuant to order dated 03.01.2019 and 07.05.2019, MoEF&CC filed affidavit on 18.07.2019. Report of CPCB dated 26.06.2019 was also filed. Both these were taken into consideration on 23.08.2019 and order of Tribunal was uploaded on 11.09.2019.
174. The listing of disposed matter was noticed by Tribunal in the order dated 11.09.2019, hence, it was clarified that all the above matters be treated to be disposed of and shall be dealt with by concerned Regulatory Authority in accordance with law. The relevant extract of order dated 11.09.2019 passed in OA 59/2012 (MA 34/2016 & MA 190/2016) (supra), OA 108/2013 (supra), OA 179/2013 (supra), Appeal No. 67/2015 with MA 107/2019 (supra), OA 176/2015 (supra), OA No. 108 484/2015 (supra), OA 327/2018 (supra), OA 115/2017 (supra), OA 411/2018 (supra), OA 613/2017 (supra) and OA 614/2017 (supra), reads as under:
"These matters involve the issue of conservation of ground water.
Vide order dated 03.01.2019 in O.A. No. 176/2015, this Tribunal directed as follows:
"32. The CPCB may constitute a mechanism to deal with individual cases of violations of norms, as existed prior to Notification of
12.12.2018, to determine the environment compensation to be recovered or other coercive measures to be taken, including prosecution, for past illegal extraction of ground water, as per law. All the matters relating to illegal extraction of ground water by individuals are disposed of with these directions." In view of above, the above matters having been disposed of were wrongly listed on 07.05.2019 and on 23.08.2019. The same be treated and disposed of and may be dealt with by the concerned regulatory authorities in accordance with law. The report of CPCB dated 26.06.2019 may be following on the subject of assessment of recovery of compensation for illegal drawl of ground water apart from prosecution and stoppage of illegal drawl of ground water in accordance with law."
175. A separate order in OA 176/2015 (supra) (MA 133/2015) was uploaded on the issue of conservation of ground water. Considering the said issue, Tribunal found that the report was deficient on the issue of prevention or depletion of ground water and the same was not addressed at all. No effective enforcement mechanism of conditions, subject to which ground water extraction may be allowed in OCS areas, was provided. Mere condition of recharge without clear strategy of enforcement was not found appropriate and adequate safeguard, for permitting extraction of ground water. The report left many issues for being considered. Some aspects of the report were considered in paras 20 and 21 of the order dated 11.09.2019 passed in OA 176/2015 (supra), which read as under:
"20. The report of CPCB dated 26.06.2019 deals with methodology for assessing environmental compensation (EC), Formula for Environmental Compensation for illegal extraction of ground water, Environmental Compensation Rate (ECRGw) which has been further dealt with in different categories, i.e. ECRGw for Drinking & Domestic 109 use for household purposes and those for institutional activity, commercial complexes, townships etc., ECRGw for Packaged Drinking Water Units, ECRGw for Mining, Infrastructure and Dewatering Projects, ECRGw for Industrial Units, Deterrent factors to compensate losses and environmental damage (for packaging drinking water units, mining, industrial and commercial purposes) and Deterrent Factor . Formula for Environmental Compensation for illegal extraction of ground water is as follows:
"5. Formula for Environmental Compensation for illegal extraction of ground water The committee recommended that the formula considering water consumption, no. of days, rates for imposing Environmental Compensation based on the purpose for illegal abstraction of ground water as well as the deterrent factor detailed below:
ECGw= Water consumption per day x Environmental Compensation rate for illegal extraction of ground water (ECRGw) x No. of Days x Deterrent Factor Where, water consumption is in m3/day and ECRGw in Rs/m3"
All other details can be seen from the report which is available on the website of CPCB. The report also gives recommendations as follows:
21. The committee has given following recommendations:
1. In case of fixation of liability, it always lies with current owner of the premises where illegal extraction of groundwater is taking place.
2. Violation duration may be assumed as at least one year in case where no evidence for period of installation of borewell could be established.
3. For illegal industrial ground water abstraction, where metering system is not available, water consumption may be estimated as per consent conditions imposed by SPCB/PCC.
4. Water intensive industries should only be permitted in safe, semi-critical and critical area, and should not be allowed to establish new industries in overexploited area.
5. Water in over-exploited area should be permitted only for drinking purposes and industries established in this area without prior consent or NOC from CGWA or another concerned department must be closed down with immediate effect. No expansion in existing industrial activity should be permitted, irrespective of additional water demand arises or not.
6. Present categorization of area (Over-exploited, Critical and Semi-Critical), as per CGWA shall be considered for 110 calculation of EC, regardless of the area category when the period of violation started.
7. In case of all existing cases having more than 5000 KLD ground water demand, permission may be given only after examining scientific assessment of water availability and assessing intergenerational equity by CGWA.
8. The industrial units should be directed to adopt State of the Art technologies, use of surface water, treated waste water and reduce specific water consumption, thereby ground water demand is reduced by 10% over three years' period. The industries also be encouraged to create facilities for storage of excess storm water and adequate measures such as groundwater recharge as well as restoration of lakes /ponds in the vicinity of the industry.
9. In addition, all repeated violations will attract EC at 1.25 times the previous EC.
10. Authorities assigned for levy EC and taking penal action are listed below:
S. No. Actions Authority
1. To seal illegal borewell/tube- District Magistrate
well to stop extraction of water
and further closure of project
2. To levy ECGw as per District Magistrate/
prescribed method CGWA
3. To levy EC on industries CPCB/SPCB/PCC
involved in illegal abstraction of
Groundwater ,
as per the method prescribed in
report of CPCB- "EC for
industrial units"
4. Prosecution of Violator CGWA under
Environment
(Protection) Act,1986
(or)
SPCB/PCC under
Water (Prevention
and Control of
Pollution), Act, 1974
176. Tribunal then constituted another Committee comprising of Joint Secretary, MoEF&CC, concerned Joint Secretary, MoWR, CGWB, National Institute of Hydrology, Roorkee, National Remote Sensing Center, Hyderabad and CPCB to go into the following questions:
"(a) Steps required to be taken for preventing depletion of ground water.111
(b) Robust monitoring mechanism to ensure that no ground water is unauthorizedly extracted, including review of manning and functioning of CGWA.
(c) Robust mechanism to monitor conditions laid down for grant of permission for extraction of ground water.
(d) Recommendations in the report of the CPCB dated 26.06.2019 referred to above."
177. Tribunal, however, accepted report of CPCB with regard to compensation as an interim arrangement and directed that the same may be acted upon by Regulatory Authorities and compensation be recovered from violators, for the period of violation, which may be assessed on case to case basis. Further, Tribunal said that report of CPCB that water intensive industries can be allowed even in semi-critical and critical area without any further safeguards, may not be acted upon, till further orders.
178. The association of Industrial Manufactures, Ghaziabad filed I.A. No. 640/2019 in OA No. 176/2015 (supra), seeking review of order dated 11.09.2019 on the ground that order has caused prejudice to them, hence needs reconsideration. This I.A. was considered on 10.10.2019 and rejecting the same, in para 6, Tribunal said:
"6. Since the OCS areas have been found to be seriously affected by over-drawl of ground water, regulation of such drawl for commercial purposes cannot be dispensed with for any industry even in industrial area. Availability of water for drinking is a first priority. The 'Precautionary' principle, 'Sustainable Development' principle and the Inter-generational equity are part of life and in absence of replenishment of ground water, unregulated drawl thereof cannot be held to be right of any commercial entity. Shortage of availability of water for commercial purposes cannot be remedied by drawl of groundwater in over exploited, critically exploited and semi-critical exploited (OCS) areas. Water is certainly a scarce resource and the industry has to put up with such scarcity. It is for the industry and the concerned authorities to find out alternative ways and means for sustenance of the industries instead of permitting indiscriminate drawl of groundwater in such areas till situation improves. Alternative means may be shifting to areas where water is not scarce or to processes where water is not required. As already noted, groundwater is depleting in such areas and measures are required to check such depletion. If industries continue to draw ground water without NOC from CGWA as per 112 current guidelines and orders of this Tribunal in OCS areas, the industries will have to face legal consequence of such illegal action."
179. As per directions contained in order dated 11.09.2019, report submitted on 16.03.2020 was placed before Tribunal along with OA No. 176/2015 (supra) on 13.07.2020. It was brought to the notice of Tribunal that illegal extraction of ground water is neither being effectively checked nor there is any recovery of compensation from defaulters. In an article, published in "Times of India", dated 06.06.2017, it was stated that four crore litres of water was being illegally extracted in Gurgaon daily. Similar complaints of huge quantity of ground water extraction by tanker mafias were reported in NCT of Delhi which require constant action by Regulatory Authorities and robust mechanism for effective review. A news item was published in daily newspaper "Tribune", on 15.07.2020, under the title "Decline in water table caused crack in Mahendragarh Field: Experts". Drying of main rivers including Ganga due to depletion of ground water, water bodies running dry at alarming rate and extraction of ground water resulting in fall of water table beyond the level of replenishment, various studies and articles published in different magazines of repute etc. were considered by Tribunal in its order uploaded on 20.07.2020. In respect of State of Uttar Pradesh, in particular, district Gautam Buddha Nagar, Tribunal considered complaint of fast depletion of ground water due to large scale extraction by various commercial entities, including hotels in Ghaziabad, Moradabad and Agra etc. Giving reference of earlier orders passed from time to time, including order dated 03.01.2019, Tribunal observed that preparation of Guidelines, without studying "Impact Assessment" would be against the principle of "sustainable development". The principal vulnerable features, on account whereof Guidelines 2018 were criticized and Regulatory Authorities were directed not to give effect to it, were noted in para 15 of judgment dated 20.07.2020, as under: 113
"15. In its order of 03.01.2019, the Tribunal disapproved the notification, holding that ultimately, it is the result of all the measures, shown by the data on the ground, which has to be the basis of any policy and not just laying down of measures. It was observed that the notification granted exemptions in OCS areas without having regard to the impact on groundwater, or a roadmap for controlling the falling ground level. Doing so without impact assessment was against sustainable development.
Some further vulnerable features of the notification were noted as follows:
i. Exemption of individual households to draw ground water from single dug well/bore well/tube well through delivery pipe of upto 1" diameter and certain other categories, even if there is an existing supply of drinking water.
Beyond the said exemption, ground water withdrawal can be permitted on the basis of NOC where water supply is not adequate subject to certain conditions.
ii. Infrastructural projects including water supply agencies could be allowed to get NOC and the said industries are in Annexure- VI."
180. Tribunal said that Guidelines had to show an application of mind as to how the Policy adopted by Regulatory Authorities would prevent extraction of water beyond desired level in OCS areas. Tribunal also noted its order dated 07.05.2019, considering CPCB report dated 30.04.2019, with regard to compensation regime, which was found unsatisfactory and CPCB was directed to give a fresh report observing that compensation to be recovered for illegal extraction has to be deterrent, especially when it is for commercial or industrial purpose, and should be linked to the quantum of ground water extraction and period for which such extraction takes place. It was also observed that scenario analysis with robust scientific logic is required for all the classes considered in comparable terms. Tribunal considered affidavit dated 16.03.2020, filed by CGWA for Ministry of Jal Shakti, and pointed out that Committee report annexed to the affidavit continues to be entirely unsatisfactory. The observations made in para 24 of the judgment dated 20.07.2020, are:
"24. The matter is being taken up in continuation of order dated 11.09.2019. We have heard Shri Vikramjit Banerjee, learned ASG appearing for MoJS and CGWA, We have considered the CGWA 114 affidavit dated 16.3.2020 filed for MoJS which annexes the report of the Committee purporting to be in compliance of Tribunal order dated 11.9.2019. The situation continues to be entirely unsatisfactory. Several issues in the report are same which were rejected in the order dated 3.1.2019. The MoJS appears to be avoiding its Constitutional obligation of complying with the judgement of the Hon'ble Supreme Court and repeated directions of this Tribunal. Surprisingly and regretfully, a wholly untenable prayer is made that the Tribunal should review its earlier orders, which have attained finality, never having been challenged. It is thus clear that there is no intent or effort to comply with the said orders. The report is not in compliance of this Tribunal's orders but rather, largely violates the spirit of the said mandate. We proceed to record the reasons."
181. Several issues in the report were same as already rejected by Tribunal vide order dated 03.01.2019. Ministry of Jal Shakti was found avoiding its Constitutional obligation of complying with the judgment of Supreme Court and repeated directions of Tribunal. Observing that report was not in compliance of Tribunal's earlier orders, rather violates their spirit, Tribunal gave its reasons, in para 25 to 30, as under:
"25. The CGWA affidavit states that the restriction on extraction of groundwater in OCS areas is likely to have adverse impact on industrial production, employment opportunities and GDP of some States. It seeks vacation of the Tribunal order dated 03.01.2019, so as to issue NOCs for groundwater extraction as per proposed guidelines or as per 2015 guidelines.
26. As mentioned earlier, the report practically reiterates the regime earlier brought out on 12.12.2018, which was rejected by the Tribunal on 3.1.2019 being against sustainable development and mandate of law laid down by the Hon'ble Supreme Court. We do not find it necessary to reproduce the report in extenso but refer to and comment upon the main aspects thereof.
a. The report states at the outset, contrary to the Hon'ble Supreme Court judgment:
"Water being a State subject, initiatives on water management including conservation and water harvesting in the Country is primarily States' responsibility. Further, to supplement the efforts of the State Governments, Government of India provides technical and financial assistance to encourage sustainable development and efficient management of water resources through various schemes and programmes."
However, as against the above stand, the report also mentions that the CGWA is vested with the regulation, control, management and development of groundwater in the country. It has issued guidelines (including the 2015 and the 2018 115 guidelines), and enumerated its various initiatives and policy decisions.
b. For the same reasons for which notification dated12.12.2018 was found unacceptable, the proposed recommendations, liberalizing groundwater extraction across the board to certain categories without any impact assessment and effective checks, are against law.
c. Exemptions for infrastructure projects, MSMEs or other industries or commercial purposes except drinking water, where supply is not otherwise available in water stressed areas, will be against sustainable development and public trust doctrine unless individual impact assessment is conducted and permitting such extraction found viable.
d. There has to be listing of priorities within available limited resources and unlimited demands and impact assessment of such activity and policy of permitting extraction has to be based on carrying capacity in the form of the water levels.
e. No road map has been provided how the new regime will check and neutralize falling ground water levels. There is neither a claim that in the last 24 years of regulation by the CGWA, ground water levels have improved, nor any projection for future improved. Data compiled by Niti Ayog in its report published in 2018 'composite water index' is clear evidence of over exploitation at several locations. Moreover, CGWA itself has conducted survey and identified 1868 out of 6585 assessment units as OCS areas. Its failure is in not having effective regulatory regime. There is no adequate implementation of conditions for drawal of ground water for commercial purposes. Such failure is shown by falling levels and news of mafias engaged in illegal drawal of ground water in OCS areas without effective check. Further liberalization will defeat the purpose of having CGWA and be contrary to the mandate of public trust doctrine. Effective steps for protecting ground water in OCS areas against singularly commercial considerations are critical.
f. The report observes:
"During the discussions, it was observed that ground water is a replenishable resource and the aquifer zones from which ground water is extracted gets replenished every year from rainfall and other sources. Therefore, there is a need to extract groundwater by various users including industries/agriculture needs in safe, semi-critical and critical areas as space is to be created in the aquifers for replenishment of water through rainfall/other sources. It is pertinent to mention here that in case we do not allow extraction of ground-water in these areas the precious rainfall may be lost through runoff as the void in aquifers may not be available for recharge purposes through rainfall.
In safe, semi-critical and critical areas, annual ground water withdrawal is less than the annual ground water recharge and in over-exploited areas, it exceeds annual recharge. In view of this„ the Committee was of the view that it may not be appropriate to club semi-critical and critical with over-exploited 116 assessment units, provided necessary measures to compensate the ground water withdrawal are ensured and at no point groundwater extraction exceeds 100% of recharge. Hence, the committee was of the opinion that two broad categories of assessment units namely i) over-exploited and ii) critical, semi-critical & safe be considered for framing the guidelines. Stricter regulatory regime was suggested for over-exploited assessment units to avoid further deterioration."
We find the statement that withdrawal to the extent of replenishment must be done to avoid wastage of rain water is contradicted by continually falling levels of ground water in OCS areas. There is no question of wastage of rain water where water level is falling. In such areas, the withdrawal has to be reduced not only to the extent of replenishment but to enhance the ground water to safe and sustainable levels. Replenishment and raising of water level are both important in OCS areas. Falling groundwater levels dry up water bodies and reduce the flow of the rivers. CPCB website acknowledges 351 river stretches as polluted for reasons including non-availability of flow which prevents adequate dilution capacity. This affects the aquatic life, wildlife and food-chain and the entire eco- system.
g. The report states, under the heading 'action being taken for preventing depletion of groundwater and recharge':
"The focus of this report is therefore to create a balanced approach, with emphasis on demand side management and practical regulation that does not impede development. Committee was also apprised about the fact that Water being a State subject, initiatives on water management including conservation of ground water is primarily States' responsibility. However, Central government supplements the efforts of states Government through technical and financial assistance."
There is clear contradiction in mentioning need for balanced approach on the one hand and emphasis on the demand side. Such approach is against the mandate of 'Sustainable Development', including Precautionary principle, intra and inter- generational equity and 'public trust' doctrine.
h. The report's recommendation under the heading 'Industry, Infrastructure and Mining projects' that extraction of groundwater by existing industries need not be checked as it may obstruct growth, is an argument against the principle of 'Sustainable Development'. There is no absolute right even of existing industries to continue to draw ground water without regard to depleting groundwater levels as held even in 2015. Such extraction cannot be at the cost of environment and ignoring intra and intergenerational, precautionary and sustainable development principles. Development and growth must be undertaken but not without ignoring the sustainable groundwater level. i. Recommendation for robust monitoring mechanism by restructuring CGWA, strengthening manpower having network upto District Level 117 etc. may be looked into by the concerned authorities and action taken for implementation so as to ensure that there is effective regulatory mechanism as per the mandate of law. Our observations are same with regard to robust mechanism to monitor conditions laid down for grant of permission for extraction of groundwater. j. Recommendation in para 13.0, on quantum of compensation and action required against violators, are contrary to CPCB recommendations for closing down industries in over exploited areas for extracting groundwater illegally, and cannot be accepted. The present proposal is against stringent action against violators committing criminal offence which cannot be appreciated. To regulate and control groundwater extraction in India, the overriding principle of carrying capacity has to apply to every category of commercial use of groundwater, including industrial use, mining projects, infrastructure projects. Compensation for unlawful groundwater extraction must be on the bases of restitution and deterrence. k. The water rates in para 6.0 of the report with regard to various categories including packaged water and beverages and mining infrastructure projects in OCS have to be in the nature of deterrent because groundwater extraction for such purposes is not permissible beyond carrying capacity. The proposed rates do not meet such test. Thus, unregulated drawal of water being a criminal offence under the law, compensation may be recovered as per CPCB report dated 26.06.2019 until any further appropriate mechanism is prepared. The 2015 CGWA guidelines and the MoEF report itself provides that groundwater extraction for commercial purposes was impermissible in OCS areas. Instead of moving in that direction, present proposal is in reverse direction which is not permissible.
27. In terms of the Tribunal's previous orders (dated 03.01.2019, Paras 29 and 31, and dated 11.09.2019, Para 24), the core issues that are required to be considered are:
a. Has a robust institutional monitoring mechanism been evolved i. To define 'assessment unit' - wise carrying capacity and accordingly set (a) target replenishment levels and (b) plan for permissible levels of extraction, of ground water levels in OCS areas;
ii. to assign individual target replenishment levels as a condition for granting extraction permits, and to audit such replenishment by those who are extracting groundwater; as well as to audit and measure actual carrying capacity periodically;
iii. to monitor real-time implementation of conditions for permitting extraction of ground water;
iv. to withdraw permits for extraction of ground water failing target replenishment levels; as well as v. to sustain the flow of rivers in terms of e-flows and sustain other water bodies?
b. Is there a provision for an impact study in light of projected data for the next 50 years (in phased manner with action plan decade-wise)?118
c. Has an effective and measurable plan been prepared for preventing depletion and unauthorized extraction of ground water backed by requisite mechanism in the form of manning and effective functioning of CGWA so as to ensure sustainable ground water management in terms of the Hon'ble Supreme Court mandate by which CGWA was created?
d. Is the compensation regime against violators adequately deterrent?
28. The answer is 'no'. If implemented, the current report would nullify the mandate of the Hon'ble Supreme Court by seeking to deregulate ground water extraction, ignoring its impact on the e-flow of rivers, water bodies and overall sustainable management of scarce natural resources with emphasis on industrial development, without balancing development and environment. Irreversible damage cannot be allowed by extracting water beyond safe levels, without impact assessment.
29. We, thus, hold that as per mandate of sustainable development under Section 20 of NGT Act, 2010, which has been held to be part of right to life under Article 21 of the Constitution, the regulatory authority must direct its policy towards preventing further depletion of and upgrading the groundwater levels based on impact assessment. Extraction can neither be unregulated or allowed across the board without individual consideration. For this purpose, there is need to compile data by mapping all the assessment units individually in terms of current and estimated water level, drawal and replenishment and preparing a management plan for all such units. The CGWA being a statutory regulator for the country has to exercise overriding power in the form of statutory regulatory orders. It may have its own network and, to the extent found viable, utilize the network of existing Authorities like District Magistrates, Environment Departments, Departments of Irrigation and Public Health etc. The ground water assessment has to be done annually and placed on the respective websites of the Districts or States. Any extraction of groundwater has to be permitted keeping in mind availability of groundwater ensuring that there is no further depletion and ground water level remains at safe level.
30. At this stage, we may notice that the regulatory mechanism of the CGWA has not been adequate, as the report also notes.
CGWA does not appear to have requisite strength nor enforcement mechanism nor strategies. This may be one of the reasons for failure in effective monitoring, defeating the object of law. This has led to large number of petitions before this Tribunal pointing out that illegal groundwater extraction was rampant. The plans for rain water harvesting and many other steps to a great extent remain largely only on paper. Remedial measures need to be taken in view serious challenges in protection of groundwater level, to save rivers and water bodies and the entire chain of environment."
182. Thereafter, following directions were issued in para 39: 119
"Directions
39. In the light of the above discussion, we direct as follows:
a. MoJS may ensure requisite manning and effective functioning of CGWA so as to ensure sustainable ground water management in terms of the Hon'ble Supreme Court mandate by which CGWA was created.
b. Let CGWA and MoJS comply with the directions of this Tribunal in orders dated 3.1.2019, 7.5.2019 and 11.9.2019, to have a meaningful regulatory regime and institutional mechanisms for ensuring prevention of depletion and unauthorized extraction of ground water and sustainable management of groundwater in OCS areas. Regard must be had to water availability and safe levels to which its drawal can be allowed, especially for commercial purposes, based on available and assessed data in each "Assessment unit".
Procedures for assessment of individual applications and institutional mechanism may be clearly laid down.
c. As per orders dated 3.1.2019, undertaking an impact study in light of projected data for the next 50 years (in phased manner with action plan decade-wise).
d. There must be no general permission for withdrawal of ground water, particularly to any commercial entity, without environment impact assessment of such activity on individual Assessment units in cumulative terms covering carrying capacity aspects by an expert committee. Such permission should as per Water Management Plans to be prepared in terms of this order based on mapping of individual assessment units. Any permission should be for specified times and for specified quantity of water and not in perpetuity, and be necessarily subject to digital flow meters which cannot be accessed by proponents, with mandatory annual calibration by authorized agency at proponents' cost. An annual review by independent and expert evaluation must audit and record ground water levels as well as compliance with the conditions of the permission. Such audits must be published online for transparency and to track compliance and year-on-year change in ground water levels, and swift action taken against those who fail audit, including withdrawal of permission, blacklisting, initiation of prosecution and recovery of deterrent compensation as per CPCB regime. Records must be maintained online and for a sufficient and reasonable time. e. As observed in para Error! Reference source not found.(a) and Error! Reference source not found.(a) above, all OCS assessment units must undergo water mapping. Water Management Plans need to be prepared for all OCS assessment units in the country based on the mapping data, starting with Over-exploited blocks. The Water Management Plans, data on water availability or scarcity and policy of CGWA must be uploaded on its website for transparency and public involvement. Such exercise may be done expeditiously, preferably within next three months."
120
183. Interestingly, Ministry of Jal Shakti, after referring to earlier orders and order dated 20.07.2020, passed by Tribunal, issued a fresh notification dated 24.09.2020, published in Gazette of India (Extraordinary) dated 24.09.2020, laying down Guidelines to regulate and control ground water extraction in India, in supersession of all earlier Guidelines issued by CGWA (hereinafter referred to as 'Guidelines 2020'). These Guidelines have come into force from the date of publication in the Gazette i.e., 24.09.2020. It further says that Guidelines shall have PAN- India applicability.
184. Guidelines 2020 says that Ground water abstraction in States/ UTs (which are not regulating ground water abstraction) shall continue to be regulated by CGWA. Further, wherever States/UTs have come out with their own ground water abstraction Guidelines, which are inconsistent with the CGWA Guidelines, the provisions of CGWA Guidelines will prevail. However, in case, 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 NOC from CGWA, or, the concerned State/UT Ground Water Authority, as the case may be. Guidelines 2020 said that water management plans shall be prepared by all State Ground Water Authorities/Organizations for all over-exploited, critical and semi- critical assessment units, starting with over-exploited units. 121
185. Para 1.0 of Guidelines 2020 deals with exemptions from seeking NOC. It is more or less similar to the earlier exemption clause contained in the preceding Guidelines, with a solitary difference that this time industrial units in the category of Micro and Small Enterprises drawing less than 10 cum/day, are added in the category of exempted categories. It says:
"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."
186. For Drinking & domestic use for Residential apartments/Group housing societies/Government water supply agencies in urban areas, procedure for NOC is provided in para 2.0. It says that for new and existing wells, where Government water supply agency is unable to supply requisite amount of water in the area, NOC shall be granted, subject to following specific conditions:
"i) Installation of Sewage Treatment Plants shall be mandatory for all residential apartments/ Group Housing Societies where ground water requirement is more than 20 m3/day. The water from Sewage Treatment Plants shall be utilized for toilet flushing, car washing, gardening etc.
ii) The No Objection Certificate shall be valid for a period of five years from the date of issue or till such time local Government water supply is provided to the project area, whichever is earlier.
In case the project proponent receives water supply from the concerned local Government Water Supply Agency during the validity of the No Objection Certificate, intimation regarding availability of public water supply shall be sent by the project proponent to CGWA and No Objection Certificate will be cancelled by the Authority. In other cases, the project proponent will apply for renewal of No Objection Certificate, ninety days before the expiry of No Objection Certificate.
122
iii) Proponents shall be liable to pay ground water abstraction charges for the quantum of ground water proposed to be extracted, as per rates mentioned in Table 5.1."
187. Vide para 3.0, Agriculture sector was exempted from obtaining NOC for ground water extraction. For commercial use, para 4.0 of Guidelines, 2020, says that no new major industry shall be granted NOC in over- exploited assessment areas except as per the policy Guidelines.
188. Para 4.1 deals with the case of industrial use and says that in over- exploited assessment units, NOC shall not be granted for ground water abstraction to any new industry except those falling in the category of Micro, Small and Medium Enterprises (hereinafter referred to as 'MSME'). However, an exception has been provided for grant of NOC for drinking/domestic use for work force, green belt use by these new industries. Expansion of existing industries involving increase in quantum of ground water abstraction in over-exploited assessment units shall not be permitted. NOC shall not be granted to new packaged water industries in over-exploited areas, even if they belong to MSME category. Thereafter, certain specific conditions have been mentioned for grant of NOC to industries, and the same are as under-
"i) No Objection Certificate shall be granted only in such cases where local government water supply agencies are not able to supply the desired quantity of water.
ii) All industries shall be required to adopt latest water efficient technologies so as to reduce dependence on ground water resources.
iii) All industries abstracting ground water in excess of 100 m3/d shall be required to undertake annual water audit through Confederation of Indian Industries (CII)/ Federation Indian Chamber of Commerce and Industry (FICCI)/ National Productivity Council (NPC) certified auditors and submit audit reports within three months of completion of the same to CGWA. All such industries shall be required to reduce their ground water use by at least 20% over the next three years through appropriate means.
iv) Construction of observation well(s) (piezometer)(s) within the premises and installation of appropriate water level monitoring mechanism as mentioned in Section 15 shall be mandatory for 123 industries drawing/ proposing to draw more than 10 m3/day of ground water and. Monitoring of water level shall be done by the project proponent. The piezometer (observation well) shall be constructed at a minimum distance of 15 m from the bore well/production well. Depth and aquifer zone tapped in the piezometer shall be the same as that of the pumping well/wells.
Detailed guidelines for design and construction of piezometers are given in Annexure II. Monthly water level data shall be submitted to the CGWA through the web portal.
v) The proponent shall be required to adopt roof top rain water harvesting/recharge in the project premises. Industries which are likely to pollute ground water (chemical, pharmaceutical, dyes, pigments, paints, textiles, tannery, pesticides/insecticides, fertilizers, slaughter house, explosives etc.) shall store the harvested rain water in surface storage tanks for use in the industry.
vi) Injection of treated/untreated waste water into aquifer system is strictly prohibited.
vii) Industries which are likely to cause ground water pollution e.g. Tanning, Slaughter Houses, Dye, Chemical/ Petrochemical, Coal washeries, other hazardous units etc. (as per CPCB list) need to undertake necessary well head protection measures to ensure prevention of ground water pollution (Annexure III).
viii) All industries drawing ground water in safe, semi-critical and critical assessment units shall be required to pay ground water abstraction charges as applicable as per Tables 5.2 A and 5.3 A.
ix) All existing industries drawing ground water in over-exploited assessment units shall be liable to pay ground water restoration charges as applicable as per Tables 5.2 B and 5.3 B."
189. The documents to be submitted along with application for grant of NOC, included an IAR, which was made mandatory, where abstraction of ground water proposed is in excess of 100 m3/day in over-exploited, critical and semi-critical areas. The aforesaid report shall be on the ground water regime and also socio-economic impacts to be prepared by accredited consultants.
190. In respect of mining projects, Para 4.2 says that there is no restriction on grant of NOC even in over-exploited areas. It reads as under:
"All existing as well as new mining projects will be required to obtain No Objection Certificate for ground water abstraction. Since mining projects are location specific, there will be no ban on grant of 124 No Objection Certificate for abstraction of ground water for such projects in over-exploited assessment units."
191. However, specific conditions attached for issue of NOC for mining projects are provided in para 4.2, as under:
"i) It shall be mandatory for all the mining industries to ensure that water available from de-watering operations is properly treated and should be gainfully utilized for supply for irrigation, dust suppression, mining process, recharge in downstream and for maintaining e-flows in the river system.
ii) Construction of observation well(s) (piezometers) along the periphery in the premises, for monthly ground water level monitoring, shall be mandatory for mines drawing/ proposing to draw more than 10 m3/day of ground water. Depth and aquifer zone tapped in the piezometer shall be commensurate with that of pumping well/wells.
iii) In addition, the proponent shall monitor ground water levels by establishing observation wells (piezometers) in the core and buffer zones as specified in the No Objection Certificate.
iv) In case of coal and other base metal mining the project proponent shall use the advance dewatering technology (by construction of series of dewatering abstraction structures) to avoid contamination of surface water.
v) In addition to this, all mining units shall also monitor the water quality of mine seepage and mine discharge through NABL accredited/ Govt. approved laboratories and the same shall be submitted at the time of self-compliance.
vi) All mining projects drawing ground water in safe, semi-critical and critical assessment units shall be required to pay ground water abstraction charges as applicable as per Tables 5.4 A.
vii) All mining projects drawing ground water in over-exploited assessment units shall be liable to pay ground water restoration charges as per Table 5.4 B."
192. The documents required to be submitted along with application for NOC in respect of a mining project, include, besides mining plan approved by the concerned Authorities and proposals for rain water harvesting/recharge within the premises, a comprehensive report, made mandatory vide clause(c), which reads as under:
"(c) Comprehensive report prepared by accredited consultant on ground water conditions in both core and buffer zones of the mine, depth wise and year wise mine seepage calculations, impact assessment of mining and dewatering on ground water regime and its socio-economic impact, details of recycling, reuse and recharge, reduction of pumping with use of technology for mining and water management to minimize and mitigate the adverse 125 impact on ground water, based on local conditions. Format for report is given in Annexure V."
193. In Para 4.3 of Guidelines 2020, issue of NOC to infrastructure project has been dealt with. Here, it is said that since infrastructure projects are location specific, grant of NOC to such projects located in over- exploited assessment units shall not be banned. It reads as under:
"4.3 Infrastructure projects:
Since infrastructure projects are location specific, grant of No Objection Certificate to such projects located in over-exploited assessment units shall not be banned. New infrastructure projects/residential buildings may require dewatering during construction activity and/or use ground water for construction. In both cases, applicants shall seek No Objection Certificate from CGWA before commencement of work. However, in over-exploited assessment units, use of ground water for construction activity shall be permitted only if no treated sewage water is available within 10 km radius of the site. New as well as existing Infrastructure projects shall also be required to seek No Objection Certificate for abstraction of ground water."
194. However, it is also provided in para 4.3 that no NOC shall be granted for extraction of groundwater for water parks, theme parks and amusement parks in over-exploited assessment units. Thereafter, specific conditions for grant of NOC for ground water abstraction in infrastructure projects are provided, in para 4.3 in clauses (i) to (v), as under:
"i) In case of infrastructure projects that require dewatering, proponent shall be required to carry out regular monitoring of dewatering discharge rate (using a digital water flow meter) and submit the data through the web portal to CGWA/SGWA as applicable. Monitoring records and results should be retained by the proponent for two years, for inspection or reporting as required by CGWA/SGWA.
ii) Installation of Sewage Treatment Plants (STP) shall be mandatory for new projects, where ground water requirement is more than 20 m3/day. The water from STP shall be utilized for toilet flushing, car washing, gardening etc.
iii) For infrastructure dewatering/ construction activity, No Objection Certificate shall be valid for specific period as per the detailed proposal submitted by the project proponent.
iv) All infrastructure projects drawing ground water in safe, semi-
critical and critical assessment units shall be required to pay 126 ground water abstraction charges as applicable as per Table 5.3 A.
v) All infrastructure projects (new/existing) drawing ground water in over-exploited assessment units shall be liable to pay ground water restoration charges as per Table 5.3 B."
195. For documents required to be submitted along with the application, clauses (a), (c) and (e) to (g) of Para 4.3, talk of the following documents:
"(a) In cases where dewatering is involved, submission of impact assessment report prepared by an accredited consultant on the ground water situation in the area giving detailed plan of pumping, proposed usage of pumped water and comprehensive impact assessment of the same on the ground water regime shall be mandatory. The report should highlight environmental risks and proposed management strategies to overcome any significant environmental issues such as ground water level decline, land subsidence etc.
(c) Certificate from a government agency regarding non availability of treated sewage water for construction within 10 km radius of the site in critical and over-exploited areas.
(e) Proposal for rain water harvesting/ recharge within the premises as per Model Building Bye Laws issued by Ministry of Housing & Urban Affairs.
(f) Details of water requirement computed as per National Building Code, 2016 (Annexure I), taking into account recycling/ reuse of treated water for flushing etc. (in case of completed infrastructure projects for commercial use).
(g) Completion certificate from the concerned agency for infrastructure projects requiring water for commercial use."
196. More attention has been paid in Guidelines 2020 on ground water abstraction charges. It is payable by all residential apartments/group housing societies/Government water supply agencies in urban areas and industries/mining/infrastructure projects. Ground water abstraction charges, based on quantum of ground water extraction and category of assessment units as per details given in Guidelines, are payable by all industries/mining/infrastructure projects drawing ground water in safe, semi-critical and critical assessment units. Ground water restoration charges, based on quantum of ground water abstraction, are payable by 127 all existing mining/infrastructure projects and existing industries including MSME drawing ground water in over-exploited assessment units. Ground water restoration charges are also payable by new MSME, new infrastructure and new mining projects in over-exploited areas.
197. Para 6.0 deals with Bulk Water Supply and says that all private tankers, abstracting ground water, and use it for supply as bulk water suppliers, will now mandatorily seek NOC for ground water abstraction. Bulk water suppliers through tankers drawing ground water in safe, semi- critical and critical assessment units shall pay ground water abstraction charges as per Table-6.1A. Bulk water suppliers drawing ground water in over-exploited assessment units shall pay ground water restoration charges as per the Table-6.1B. All tankers will have to install GPS based system for their monitoring of movement/area of operation.
198. Para 7.0 deals with abstraction of saline ground water and here the provision is broadly similar as it was in earlier Guidelines.
199. A new provision with regard to protection of wetland areas is added vide para 8.0 and it reads as under:
"8.0 Protection of Wetland Areas The wet land areas in the country are very crucial as they are direct reflection of the presence of ground water in such areas. The protection of the wetland areas is being separately handled by the Wetland Authorities. Since ground water is very crucial for the survival of the wetland area, any excessive ground water development within the zone of wetland area would affect the volume of water in that wetland.
Projects falling within 500 m. from the periphery of demarcated wetland areas shall mandatorily submit a detailed proposal indicating that any ground water abstraction by the project proponent does not affect the protected wetland areas. Furthermore, before seeking permission from CGWA, the projects shall take consent/approval from the appropriate Wetland Authorities to establish their projects in the area."128
200. Thereafter, in para 9.0 some general compliance conditions of NOC are mentioned which we are omitting at this stage.
201. In para 11.0, subject of renewal of NOC is dealt with. The term of renewal is specified in para 11.0 (v) as under:
"v. No Objection Certificate will be renewed for the terms specified for various uses as follows:
Category Use Term of renewal
Critical, Infrastructure projects for 5 years
Semi- drinking & domestic use and
critical and urban Water Supply Agencies
safe Industries 3 years
Mines 2 years
Over- All users in 'Over-exploited 2 years
exploited areas'
"
202. If there is delay in finalization of NOC, Para 11.0 (vi) contains provision for deemed grant of NOC and reads as under:
"vi. If the application for renewal is submitted in time and the CGWA/the respective State/UT Authority is unable to process the application in time, No Objection Certificate shall be deemed to be extended till the date of renewal of No Objection Certificate."
203. However, if PP has delayed in applying for renewal, provision has been made that he will have to pay only environmental compensation for the period starting from the date of expiry of NOC till NOC is renewed by Competent Authority. However continued withdrawal/extraction of ground water by PP, despite expiry of NOC, will not be illegal. This is what is provided in para 11.0 (vii) which reads as under:
"vii. If the proponent fails to apply for renewal within 3 months from the date of expiry of No Objection Certificate, the proponent shall be liable to pay Environmental Compensation for the period starting from the date of expiry of No Objection Certificate till No Objection Certificate is renewed by the competent authority."129
204. Guidelines 2020, vide para 13.0 has appointed District Magistrate/District Collector/Sub Divisional Magistrates of each Revenue District/Sub division as Authorized Officers, delegating power to seal illegal wells, disconnect electricity supply to the energized well, launch prosecution against offenders etc., including grievance redressal related to ground water in their respective jurisdictions. It is also provided that to decentralize and strengthen monitoring and compliance mechanism as per the Guidelines, officials of concerned Departments of Revenue and industries of States/UTs shall be appointed as Authorized Officers in consultation with State/UT Governments. Copy of NOC issued by CGWA shall be forwarded to the respective District Magistrate/District Collector. It is provided in Para 13.0 that for any violation of directions of CGWA and non-fulfilment of the conditions laid down in NOC, Authorized Officers will file appropriate petition/original application etc. under Sections 15 to 21 of EP Act 1986, in appropriate Courts.
205. Para 14.0 direct all Project Proponents (drawing ground water more than 10m3/day) to have mandatorily constructed piezometers (observation wells) within their premises for monitoring of ground water levels.
206. Determination of environmental compensation and formula thereof is provided in para 15.0 of Guidelines 2020, and, it reads as under:
"Extraction of ground water for commercial use by industries, infrastructure units and mining projects without a valid No Objection Certificate from appropriate authority shall be considered illegal and such entities shall be liable to pay Environmental Compensation for the quantum of ground water so extracted. The norms prescribed by Central Pollution Control Board (CPCB) shall be utilized for calculating the Environmental compensation as mentioned below:
ECGW = Ground water consumption per day x Environmental Compensation rate (ECRGW) x No. of days x Deterrence factor where ground water consumption is in m3/day and ECRGW in Rs./Cum"130
207. Rates of environmental compensation are prescribed in para 15.1 which are different for different kinds of units in as much as table 15.1 provides rates of environmental compensation for packaged drinking water units; table 15.2 in respect of mining/infrastructure dewatering projects; and table 15.3 for industrial units. It is, however, provided in all the 3 tables mentioned above that minimum environmental compensation shall not be less than Rs. One lakh.
208. Para 15.2 lays down deterrent factors to compensate losses and environmental damage (packaged drinking water units and mining/infrastructure dewatering projects). Para 16.0, besides, and/or in addition of environmental compensation, provides penalty liable to be imposed on Proponents for non-compliance of NOC conditions issued by appropriate authority and rates of penalty are given in Table 16.1.
209. Para 17.0 provided other important conditions applicable to all and reads as under:
"17.0 Other important Conditions (Applicable to all):
i. Sale of ground water by a person/agency not having valid no objection certificate from 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.131
vii. Self compliance of conditions laid down in the no objection certificate shall be reported by the users online in the web portal 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.
Note:
1. Guidelines are subject to modification from time to time.
2. In case of any discrepancy between Hindi and English versions of this document including the annexures, the English version shall prevail."
210. Thus, the concerned Ministry namely Ministry of Jal Shakti (Department of Water Resources, river Development and Ganga Rejuvenation) issued Guidelines 2020 in purported compliance of directions contained in Tribunal's orders dated 11.09.2019, 20.7.2020 and earlier orders referred in this judgment, but as a matter of fact, we find that Guidelines 2020 broadly do not satisfy directions as given repeatedly and persistently, reposing confidence in the Authorities who are responsible and accountable for preservation and protection of environment, that they would understand their statutory obligations, sensitize themselves with the traumatic condition of environment, show patent endeavour for improvement, march with a conviction that not only present day people but coming generations also get a healthy environment with clean air, non-contaminated water, adequate for drinking and other daily uses, enough ground water necessary for agriculture and simultaneously for developmental activities; and perform with a real sense of devotion and determination. To our utter dismay, they have failed. We do not find much improvement in Guidelines 2020. Virtually, it is only a new cover provided to the old scheme with minor variations, alterations and modifications, here and there, but having no substantial consequences to the root cause and central issue, i.e. protection and 132 preservation of ground water, prevention of, not only further depletion, but a serious and effective attempt for recharge and restoration.
211. So far as exemption for requirement of NOC is concerned, the category of consumers namely domestic, requiring water for drinking and domestic uses, whether in rural and urban areas, Establishments of Security Forces like Armed Forces and Central Armed Police Forces etc. and agricultural activities, we, at this stage, do not find any reason to make any comment but inclusion of some commercial and industrial activities i.e. micro and small industrial entrepreneurs category i.e. MSME, drawing ground water less than 10m3/day, even in the area where ground water level is semi critical, critical or over exploited, is incomprehensible. The number of such units and impact of drawl of ground water, by such units, on the water level, it appears, has not been examined at all, in as much as the Tribunal passed order on 20.07.2020 and notification containing Guidelines 2020 has been issued 24.09.2020 i.e. within less than two months.
212. Further, in respect of other commercial and industrial activities also, the alleged restrictions are only an eye wash. For commercial uses, it is provided that no NOC to new major industries shall be granted in over- exploited assessment areas except as per Policy Guidelines. In the context of commercial use, only for industrial use, it is provided that NOC shall not be granted for ground water extraction to a new industry, except those falling in the category of MSME. The existing units are not covered by it. More over in the new units, NOC for abstraction of ground water for drinking/domestic use for work force, green belt etc. shall be permitted. Expansion of existing units involving increase of ground water extraction in over-exploited assessment areas shall not be permitted. There is a twist when it says that NOC shall not be granted to new packaged water 133 industries in over-exploited areas even if they belong to MSME category. In Guidelines 2015, no NOC was to be given to any water intensive industry, even if it is MSME, in over exploited assessment areas. Now it is restricted to packaged water industries. Apparently, a drastic relaxation has been given in respect of water intensive industries, for no reason, and that too in flagrant defiance of order of Tribunal.
213. The critical and semi-critical areas have been left untouched and there is no such restriction at all. The only reference to these areas in para 4.1 (viii) is that industries drawing ground water in safe, semi-critical and critical assessment areas shall be required to pay ground water extraction charges which will also be paid by existing industries. The charges are provided as per table 5.2 A and 5.3 A for safe, semi-critical and critical assessment units and tables 5.2 B and 5.3 B for over-exploited areas. The rates provided therein are:
"Table 5.2 A: Rates of ground water abstraction charges for packaged drinking water units (Rs per m 3 ) S.No. Category Quantum of ground water withdrawal of area Up to 51 to <200 200 to <1000 1000 to 5000 50m3/day m3/day m3/day m3/day <5000 and above m3/day Ground water use
1. Safe 1.00 3.00 5.00 8.00 10.00
2. Semi-critical 2.00 5.00 10.00 15.00 20.00
3. Critical 4.00 10.00 20.00 40.00 60.00 Table 5.3 A: Rates of Ground Water abstraction charges for other industries & infrastructure projects (Rs per m3) S.No. Category Quantum of ground water withdrawal of area < 200 200 to <1000 1000 to 5000 m3/day and m3/day m3/day above <5000 m3/day Ground water use
1. Safe 1.00 2.00 3.00 5.00
2. Semi-critical 2.00 3.00 5.00 8.00
3. Critical 4.00 6.00 8.00 10.00 134 Table 5.2 B: Rates of ground water restoration charges for packaged drinking water units (Rs per m3) S.No. Category Quantum of ground water withdrawal of area Up to 50 51 to <200 200 to <1000 1000 to 5000 m3/day m3/day m3/day m3/day <5000 m3/day and above Ground water use
1. Over-exploited 8.00 20.00 40.00 80.00 120.00 (existing industries only) Table 5.3 B: Rates of ground water restoration charges for other industries & infrastructure projects (Rs per m3) S.No. Category Quantum of ground water withdrawal of area < 200 200 to <1000 1000 to 5000 m3/day and m3/day m3/day above <5000 m3/day Ground water use
1. Over-exploited (existing 6.00 10.00 16.00 20.00 industries / new Industries as per the present Guidelines)
214. Rates prescribed above are very nominal and virtually permits abstraction of ground water in stressed area almost free. Water charges prescribed by local bodies by supplying surface water are much more.
Such nominal rates for abstraction of ground water would in fact encourage more abstraction for commercial purpose and frustrate the gigantic efforts being made by Supreme Court and this Tribunal to preserve and protect ground water particularly in stressed areas.
215. In respect of mining and infrastructure projects, it is specifically provided that NOC shall not be denied or banned for existing as well as new projects in over-exploited areas. Though some conditions are there for monitoring of quantity of ground water extraction in the said area, payment of abstraction charges or the restoration charges as the case may 135 be, but effective steps capable of execution for recharge/restoration are clearly wanting.
216. Thus, the issue of constant depletion of water level, initially brought before Tribunal, in the context of NOIDA and Greater NOIDA which are part of district Gautam Buddha Nagar, but subsequently, extended to the entire country since this problem was/is being faced by people throughout the country, remained unexecuted. This Tribunal repeatedly required Statutory Regulators to take effective steps for prevention of depletion of water level and also for recharge/restoration/rejuvenation of water level;
enough power is conferred by Statute upon Statutory Regulator i.e. CGWA to take all permissible, possible and effective steps for the purpose, but it is not understandable why it has been/is reluctant to execute and enforce the said power, in the manner it was desired to protect and preserve ground water level across the country. It is admitted, as also demonstrated in earlier paragraphs, that when study of ground water level was made in different phases, extreme alarming level of ground water was noted in sufficiently large number of places but for regulation purposes a very small fragment thereof was selected by CGWA. In its own discretion, without specifying the criteria on which only a few areas were so selected, CGWA notified a very small numbers and made some provisions, that too, very superficial, for regulating the same. In respect of others, termed as non-
notified area, very relaxed and concessional provisions were made, that too, like grant of a license i.e. NOC, in a very smooth and casual fashion, unmindful of the fact that its statutory duty was to take steps for protection and conservation of ground water level and not to grant easy access for abstraction, that too, to commercial institutions/ establishments/bodies, to extract ground water for commercial/industrial purposes without having any corresponding actual recharge/restoration 136 of ground water, particularly, in the area where it had already depleted to a very low level and was classified as over-exploited, critical or semi critical. Tribunal did not appreciate this approach, expressed its displeasure and disapproval repeatedly, but, and despite that, CGWA, on the pretext of effective functioning of economy, issued revised Guidelines repeatedly and frequently but all failed, when tested at the anvil of conservation and protection of ground water level in stressed or highly stressed areas.
217. Major deficiencies, observed by Tribunal, in various guidelines issued by CGWA, are summarized here as under:
i. Policy to be followed by CGWA has to be rational, meeting basic need of everyone and at the same time preserving water for future generation by preventing wastage or preventable use based on the principle of "sustainable development".
ii. Policy must have punitive measures and recovery of damages from those who have extracted ground water in past and continue to do so unauthorizedly, i.e., illegal extraction, leading to alarming depletion of ground water.
iii. Steps to be taken to tap all relevant sources specially the rain water harvesting and preservation of water bodies;
iv. When CGWA has classified, over-exploited, critical and semi critical areas for regulation, it has no reason to refuse regulation of such areas on the plea that it would govern/regulate only notified area; v. Being Central Authority, CGWA has to regulate ground water in the whole country under the mandate of Supreme Court, hence cannot show apathy on the pretext of notified area, ignoring other areas where ground water level is similarly stressed i.e., over-exploited, critical or semi-critical;
137 vi. Extraction of ground water in over-exploited, critical and semi-
critical area with or without permission, only on the pretext of being non-notified, amounts to failure of Statutory duty on the part of CGWA;
vii. Mechanical imposition of condition of recharge of underground water without any mechanism for ensuring its compliance or to check, whether complied or not, at all, while continuing to permit drawl of ground water for commercial purposes, is unjustified;
viii. Abstraction of ground water for building construction, watering plants, swimming pools, threatening availability of ground water in over-exploited, critical and semi- critical areas, specially, in absence of adequate steps for recharge of ground water, is unjustified; ix. Mere provision for realization of some amount/charges for drawl of ground water is ridiculous and illegal, in respect of extraction of ground water in over-exploited, critical and semi- critical area;
x. CGWA has to observe in its functions, precautionary principle, sustainable development as well as inter-generational equity principle. Drawl of ground water for industrial purposes with or without payment, in OCS areas, should be banned.
xi. Checking of contamination of ground water by discharge of untreated effluents in water bodies need comprehensive planning and execution and on priority basis, it is necessary, failing whereof, has led to emergency situation in certain areas;
xii. Apathy of authorities in last several years, in neglecting subject in breach of trust, reposed in such authorities, has been noted by Tribunal still no information was given with regard to compliance of earlier orders including action for illegal activities of CGWA. 138 xiii. Instead of laying down strict norms for extraction of ground water for commercial purposes and putting in place a robust institutional mechanism for surveillance and monitoring, extraction of ground water has been liberalized, adding to the crisis, unmindful of ground situation and likely impact, it will have on environment. xiv. No study or data has been furnished or collected to justify this approach.
xv. Drawl of ground water for all practical purposes made unregulated in all areas including OCS.
xvi. So called regulation is illusory.
xvii. Water conservation fee in effect a license to harness ground
water to any extent even in OCS areas.
xviii. No institutional mechanism to monitor removal and replenishment of ground water;
xix. No check on injunction of pollutants in ground water; xx. No provision to check water quality and remediation, if there is contamination;
xxi. Instead of conservation of ground water necessary for providing access to drinking water in OCS areas, Guidelines would result in fast depletion of ground water and damage to water bodies; xxii. Mandate of CGWA is not exploitation of ground water in depleted area but to conserve it;
xxiii. OCS areas need regulation for conservation of ground water, cannot be treated separately as notified or non-notified; xxiv. Compensation to be recovered for illegal abstraction, has to be deterrent, linked to the quantum of ground water extracted and period for which such extraction took place;
139 xxv. CGWA must lay down and follow stringent norms to ensure that there is no depletion of ground water in OCS areas and depleted water level is improved and replenished;
xxvi. The abstraction of ground water in over-exploited area should be permitted only for drinking purposes;
xxvii. For calculation of environmental compensation, present categorization of area (over-exploited, critical and semi-critical) shall be considered, irrespective of when violation started or committed; xxviii. In case of demand of more than 5000 KLD in existing cases, permission be given only after examining scientific assessment of water availability and inter-generational equity. In case of repeated violations, environmental compensation shall be computed at 1.25 times of the previous environmental compensation; xxix. Since OCS areas have been found seriously affected by over-drawl of ground water, regulation of such drawl for commercial purposes cannot be dispensed with for any industry, even in industrial area; xxx. In absence of replenishment of ground water, unregulated drawl cannot be permitted to any commercial entity;
xxxi. Shortage of availability of water for commercial purposes cannot be remedied by permitting drawl of ground water in OCS areas. xxxii. Water is a scarce resource; hence, industry has to cope up with such scarcity and find out its own alternative ways to meet the requirement of water;
xxxiii. They cannot be permitted indiscriminate drawl of water in such areas till situation improves;
xxxiv. Liberalization of ground water extraction across the board, to certain categories, without any impact assessment and effective checks, are against law;
140 xxxv. No road map has been prepared by CGWA as to how revised Guidelines will check and neutralize falling ground water level particular, when it has continuously gone down. Liberalization of abstraction of ground water would defeat the purpose of Constitution of CGWA and is contrary to mandate of Public Trust doctrine;
xxxvi. Effective steps for protecting ground water in OCS areas against individual commercial considerations are must to serve general people.
218. In the backdrop of the aforesaid observations which we have culled out from various orders of Tribunal, referred above, ultimately, in the order dated 20.07.2020, 4 issues were formulated in para 27 and in para 28, Tribunal said that the answer to the said issues is 'no'. Tribunal held that as per mandate of sustainable development under Section 20 of NGT Act 2010, Regulator must direct its policy towards preventing further depletion of, and upgrading, ground water levels, based on impact assessment. Extraction can neither be unregulated nor allowed across the board without individual consideration. The directions were consequently issued to prepare meaningful regulatory regime, institutional mechanism for ensuring prevention of depletion, unauthorized extraction of ground water and sustainable management in OCS areas.
219. Unfortunately, the concerned Ministry and Regulator have acted in haste and just in 2 months i.e., 24.09.2020, have published Guidelines 2020 wherein most of the infirmities, irregularities, and failures, pointed out on the part of CGWA, in earlier Guidelines, as such, are present. Though there are minor variations and alterations, but the same are wholly inconsequential, looking to the gravity of the situation, arising due to consistent depletion of ground water.
141
220. In this backdrop, when we consider issues I and II, we find that IEA 1882 is pre-Constitution enactment and has continued by virtue of Article 372 which says that the existing law in force in the territory of India immediately before the commencement of the Constitution shall continue in force until altered or repealed or amended by a competent Legislature or other competent authority. It is true that neither the provisions of IEA 1882 have been altered or repealed or amended till date but by virtue of subsequent enactments made by competent legislature and by declaring enactments to have overriding effect over any other law operating in the field, the consequence of Section 7 of IEA 1882 has been seriously impaired particularly, in respect of use of ground water. In fact, law laid down by Supreme Court in respect of surface water has seriously dented the right recognised by Section 7 of IEA 1882. Ownership of land necessarily does not give ownership over the subjects underneath the surface of the earth. The substances under the earth are governed by different laws. Air, Water and minerals etc. are recognised as the natural resources. In M.C. Mehta vs. Kamal Nath & others, (1998)1SCC388, Supreme Court has said that natural resources are owned by the public in general and do not belong to any individual. The management and regulation of such natural resources is by State who is in the capacity of custodian/trustee of such natural resources. Ground water constitutes a natural resource hence its abstraction and use are not individual's ownership right but belongs to the public and has to be regulated by State who is a custodial/trustee of such natural resources. In this regard, it would be useful to look into the judgment of Supreme Court in M.C. Mehta vs. Kamal Nath (supra) in some details.
221. In M.C. Mehta vs. Kamal Nath (supra), a two Judges Bench had an occasion to examine, "whether natural resources can be allowed to be 142 used or processed by private ownership for commercial purpose". The background facts giving rise to above issue are, that a news item was published in daily newspaper 'Indian Express', dated 25.02.1996, under the caption "Kamal Nath dares the mighty Beas to keep his dreams afloat". The news item reveals that after encroachment of 27.12 bighas of land which included substantial forest land, in 1990, a Club was built in Kullu- Manali valley by a private company 'Span Motels Private Limited', which owns a resort- Span Resorts. The land was later regularised and leased out to the company on 11.04.1994. At the time of regularisation, Mr. Kamal Nath was Minister of Environment and Forests. The swollen Beas changed its course, engulfed Span club and adjoining lawns, washing it away. Thereafter, management took steps and by using bulldozers and earth-movers, turned course of Beas by blocking flow of river just 500 meters and creating a new channel to divert River to at least 1 km downstream. Supreme Court took suo-moto cognizance of the matter, and case was registered as W.P. No. 182/1996 under Article 32 of the Constitution. Notices were issued to the company as well as Mr. Kamal Nath. After considering the pleadings and other material, Supreme Court decided vide Judgment dated 13.12.1996 recording a finding that Motel had encroached upon an area of 22.2 bighas adjoining to the lease-hold area. Earlier, 40 bighas 3 biswas land, alongside Kullu- Manali Road on the bank of river Beas, was granted on lease to the above Motel for a period of 99 years with effect from 1.10.1972 to 1.10.2071. Besides above, the motel encroached upon 22.2 bighas of land further. It also built extensive stone, cemented and wire-mesh embankments all along the river bank. Various activities undertaken by motel show a serious act of environmental degradation on its part. Motel tried to defend construction raised by it on the ground that it was to protect lease land from floods. Court held that motel interfered with natural flow of river by trying to 143 block natural relief/spill channel of the river. With regard to river, it was observed that Beas is a young and dynamic river, runs through Kullu valley, between mountain ranges of Dhaulandhar in the right bank, and Chandrakheni, in the left. The river is fast flowing, carry large boulders, at the time of flood. When water velocity is not sufficient to carry boulders, those are deposited in the channel often blocking flow of water. Under such circumstances, the river stream changes its course by remaining within the valley but swinging from one bank to the other. The right bank of river Beas where motel is located, mostly comes under forest; the left bank consists of plateaus, having steep bank facing the river, where fruit orchards and cereal cultivation are predominant. The area is ecologically fragile and full of scenic beauty, should not have been permitted to be converted into private ownership, and for commercial gains. Having said so, Court refers to the right of public to nature and natural resources and said that public has a right to expect certain lands and natural areas to retain their natural characteristic. Court refers to the work of David B. Hunter (University of Michigan) and Professor Barbara Ward where it was stressed upon that major ecological tenet is that the world is finite. Earth can support only so many people and only so much human activity before limits are reached. 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. There is a commonly recognised link between laws and social value 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 environment to fit our conceptions of 144 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. Need for preserving sensitive resources does not reflect value choices but rather is the necessary result of objective observations of the laws of nature. Court refers to the legal theory said to be developed in ancient Roman empire, i.e., 'Doctrine of Public Trust' founded on the idea that certain common properties such as rivers, sea- shore, forests and the air were held by Government in trusteeship for the free and unimpeded use of general public. English law as well as American Law on the subject was also referred to and then it is said in para 34 of the Judgment that our legal system includes Public Trust Doctrine as part of the Jurisprudence. State is the trustee of all natural resources which, by nature, are meant for public use and enjoyment. Public at large is beneficiary of the sea- shore, running waters, airs, forests and ecologically fragile lands. State as a trustee, is under a legal duty to protect natural resources. These resources meant for public use cannot be converted into private ownership. Executive, acting under Doctrine of Public Trust, cannot abdicate natural resources and convert them into private ownership or for commercial use.
222. Supreme Court while disposing of Writ Petition issued certain directions contained in para 39 of the judgment which included that the motel shall pay compensation by way of cost for restitution of environment and ecology of the area. Pollution caused by various constructions made by motel in river bed and banks of river Beas has to be removed and reversed. NEERI was directed to inspect the area and make an assessment 145 of the cost, likely to be incurred for reversing damage caused to environment and ecology. Further, motel is also required to show cause as to why it be not imposed pollution fine in addition to cost for restoration of ecology which it had to pay.
223. Moreover, abstraction of ground water affects hydrological ecology in various ways including surface water. Therefore, it comes within the definition of "environment" under Section 2(c) of NGT Act 2010 and would be governed by the provisions of the said Act as also rules, regulation, directions and orders issued thereunder and any law contrary thereto would be of no help to the proponents. Law of environment is governed by the various provisions of the Constitution as also statutory provisions in order to give effect to the constitutional provisions. We may refer to Article 48A and 51A(g) of the Constitution of India wherein the aforesaid provisions were inserted by way of amendment in 1976. The amendment became necessary so as to execute the Stockholm declaration of 1972 wherein India was also a signatory and global decision was taken with respect to preservation and protection of environment. In furtherance thereof Air Act 1981 and EP Act 1986 were enacted. Water Act 1974 was already enacted but since provisions under Water Act 1974 and Air Act 1981 were not found sufficient to take up all the issues relating to environment, EP Act 1986 was enacted. Under the order of Supreme Court in MC Mehta vs. UoI (1997)11SCC312, as we have already discussed above, CGWA was notified as an authority under Sections 3(2) and 3(3) of EP Act 1986 with the power to issue directions under Section 5. In view thereof, the submission of the proponents that being owner of the land they are entitled to extract ground water from such land and deal with it in such manner as they like cannot be accepted, since it goes contrary to provisions of EP Act 1986 and various order and directions issued 146 thereunder which have over-riding effect over any other law including IEA 1882. Abstraction of ground water for commercial purposes therefore will have to be regulated and as discussed above in detail, various guidelines issued by CGWA and also the directions issued by Tribunal and it is clear therefrom that for abstraction of ground water of commercial purposes, NOC from the competent authority would be necessary and for this purpose, reliance placed by the proponents on the guidelines dated 24.09.2020 also cannot help them since directions issued by Tribunal shall have over-riding effect in view of Section 33 of NGT Act 2010 and non-compliance of Tribunal's order is an offence under Section 26 of NGT Act 2010.
224. The issue with regard to requirement of NOC, can also be considered in the light of fact that availability of ground water in the country is not unlimited and any indiscrete and unregulated abstraction thereof, may adversely affect not only the surface water but may create scarcity of drinking water to public at large. Matter has been studied by CGWB and it has published reports from time to time. We may refer at this stage National Compilation of Dynamic Ground Water Resources of India 2017 published by Government of India Ministry of Jal Shakti, Department of Water Resources, RD&GR, CGWB. Exercise of ground water resources assessment was undertaken by CGWB jointly with State Governments Ground Water Departments from time to time under guidance of experts and earlier such exercises were undertaken in 1980, 1985, 2004, 2011 and 2013. We are not going into details of the past exercise but chart giving details of ground water resources assessment from 2004 to 2017 is being reproduced as under:
"Table 1.1 Ground water Resources assessment 2004 to 2017 147 S. Ground 2004 2009 2011 2013 2017 No. Water Resources Assessment 1 Annual 433 bcm 431 bcm 433 bcm 447 bcm 432 bcm Replenishable Ground Water Resources 2 Net Annual 399 bcm 396 bcm 398 bcm 411 bcm 393 bcm Ground Water Availability 3 Annual 231 bcm 243 bcm 245 bcm 253 bcm 249 bcm Ground Water Draft for Irrigation, Domestic & Industrial uses 4 Stage of 58% 61% 62% 62 % 63% Ground Water Development Table 1.2 Categorization of assessment units from 2004 to 2017 S. Categorization 2004 2009 2011 2013 2017 No. of Blocks/ Mandals/ Talukas 1 Total Assessed 5723 5842 6607 6584 6881 units 2 Safe 4078 4277 4503 4519 4310 3 Semi-critical 550 523 697 681 972 4 Critical 226 169 217 253 313 5 Over-Exploited 839 802 1071 1034 1186 6 Saline 30 71 92 96 100
225. The categorisation of assessment units in Maharashtra in 2017 shows that in Nagpur, Katol and Saoner assessment units were in the category of semi-critical while in Pune, six units i.e., Ambegaon, Baramati, Daund, Indapur, Junnar and Khed were in the category of semi-critical while two units namely Purandhar and Shirur were in the category of critical. The State wise ground water resources scenario has been discussed in chapter 7 of the report and State of Maharashtra is in para 7.16 and reads as under:
"7.16 Maharashtra The State is underlain by diverse rock types of different geological ages from Pre-Cambrian to Recent. The state is mostly covered by Deccan Traps. The other geological formations, older and younger than Deccan Traps, occur in the northeast and as isolated patches in 148 the Sindhudurg and Ratnagiri districts. Large part of the State is underlain by Basaltic hard rocks where dug wells are predominant. They mostly tap the weathered zone and fractures/joints. The yield of dug wells varies from 3 to 5 lps. A small part of the State is occupied by Semi-consolidated sedimentary rocks where tubewells have an yield of 5 to 45 lps. The central part of Maharashtra which is a drought prone area, receives very less rainfall i.e. from 400 to 700mm, but the geology is favourable for the groundwater recharge. Hence, in this area the dependency on groundwater is very high. Two-third of irrigation wells are from this area only. This primarily includes parts from Dhule, Nashik, Jalgaon, Ahmednagar, Pune, Satara, Sangli, Solapur, Osmanabad, Beed and Aurangabad districts.
The Ground water resources have been assessed for 1531 watersheds in the state and subsequently apportioned to block level. Total Annual Groundwater Recharge of the State has been estimated as 31.64bcm and Annual Extractable Ground Water Resources is 29.90bcm. The Annual Ground Water extraction is 16.33bcm and Stage of Ground Water extraction is 54.6%. Out of 353 blocks, 11 have been categorized as 'Over-exploited', 9 as 'Critical', 61 as 'Semi-critical' and remaining 271 as 'Safe' and one block as saline.
As compared to 2013 assessment, the Annual Ground Water Recharge in 2017 has decreased from 33.19 to 31.64bcm, Annual Extractable Ground Water Recharge from 31.48 to 29.90bcm and Annual ground water extraction from 17.07 to 16.33bcm. There is a marginal increase in the stage of ground water extraction from 54.2% to 54.6%. The changes in GEC-2015 methodology in the norms (Threshold values for rainfall recharge, seepage from WCS), marginal decrease in draft due to revision of well census data on the basis of functional wells are the main reasons for the changes The increase in stage of extraction and categorization are attributed to more reduction in recharge in comparison to the reduction in extraction."
226. A perusal of above report shows that out of 353 blocks in State of Maharashtra, 11 were categorised as over-exploited, 9 as critical and 61 as semi-critical, besides one as saline. Rest blocks were safe. Report also shows that comparing to 2013 assessment, annual ground water recharge in 2017 has decreased from 33.19 bcm to 31.64bcm while extraction of ground water has increased from 54.2% to 54.6%.
227. A similar report has also been published by the Ministry as in 2020 published in June 2021 and therein, State wise ground water resource scenario is discussed in chapter 7, and State of Maharashtra in para 7.15, and it reads as under:
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"7.15 MAHARASHTRA The State is underlain by diverse rock types of different geological ages from Pre-Cambrian to Recent. The state is mostly covered by Deccan Traps. The other geological formations, older and younger than Deccan Traps, occur in the northeast and as isolated patches in the Sindhudurg and Ratnagiri districts. Large part of the State is underlain by Basaltic hard rocks where dug wells are predominant. They mostly tap the weathered zone and fractures/joints. The yield of dug wells varies from 3 to 5 lps. A small part of the State is occupied by Semi- consolidated sedimentary rocks where tubewells have an yield of 5 to 45 lps. The central part of Maharashtra which is a drought prone area, receives very less rainfall i.e. from 400 to 700 mm, but the geology is favourable for the ground water recharge. Hence, in this area the dependency on groundwater is very high. Two- third of irrigation wells are from this area only. This primarily includes parts from Dhule, Nashik, Jalgaon, Ahmednagar, Pune, Satara, Sangli, Solapur, Osmanabad, Beed and Aurangabad districts.
The Ground water resources have been assessed for 1535 watersheds in the state and subsequently apportioned to taluk level. Total Annual Ground water Recharge of the State has been estimated as 32.01 bcm and Annual Extractable Ground Water Resources is 30.25 bcm. The Annual Ground Water Extraction is 16.63 bcm and Stage of Ground Water Extraction is 54.9 %.
Out of 353 assessment units (taluks), 10 units (2.83 %) have been categorized as 'Over-exploited', 8 units (2.27 %) as 'Critical', 63 units (17.85 %) as 'Semi-critical' and remaining 271 units (76.77 %) as 'Safe' and 1 unit (0.28 %) as 'Saline' categories of assessment units. Similarly out of 259553.28 sq km recharge worthy area of the State, 7672.81 sq km (2.96 %) area are under 'Over-Exploited', 8219.37 sq km (3.17 %) under 'Critical', 61590.57 sq km (23.73 %) under 'Semi- critical', 181293.63 sq km (69.85 %) under 'Safe' and 776.89 sq km (0.03 %) area under 'Saline' categories of assessment units. Out of total 30250.45 mcm annual extractable ground water resources of the State, 889.25 mcm (2.94 %) are under 'Over-exploited', 950.09 mcm (3.14 %) under 'Critical', 6741 mcm (22.28 %) under 'Semi-critical' and 21670.11 mcm (71.64 %) are under 'Safe' categories of assessment units.
As compared to 2017 assessment, the Annual Ground Water Recharge in 2020 has increased from 31.64 to 32.01 bcm, Annual Extractable Ground Water Recharge from 29.9 to 30.25 bcm and Annual Ground Water Extraction from 16.33 to 16.63 bcm. There is a marginal increase in the Stage of Ground Water Extraction from 54.62 % to 54.9 %. The marginal increase in recharge due to the State government intervention of water conservation activities and the marginal increase in draft/extraction is due to revision of well census data on the basis of functional wells."
228. This time, we find that there is marginal increase in annual ground water recharge but simultaneously abstraction of ground water has also increased from 16.33 to 16.63 bcm. In 2020 assessment, while 150 categorisation of Katol and Saoner in District Nagpur has remained same as semi-critical, in Pune, sitation has gone slightly changed in as much as 7 units namely Ambegaon, Baramati, Daund, Indapur, Junnar, Khed and Purandar are in semi-critical category while Shirur continued in critical category. In both the districts, therefore, it cannot be said that ground water situation in every block is in safe category. Almost 24% assessment units are in stressed category. Quantum wise, only 71.64% comes in safe category and rest are in stressed category i.e. 2.94% over-exploited, 3.14 critical and 22.28% semi-critical. Regulation of ground water, therefore, in State machinery cannot be allowed to remain unchecked as has been claimed by the proponents.
229. Further contention that the proponents are small entrepreneurs in the category of MSME and abstracting lesser than 10 KLD ground water is also not acceptable for the reason that it is not stated by any of the proponents that they have installed any flow meter to ascertain quantum of ground water abstracted by them and the quality of ground water whether contaminated or not has also not been tested. In fact, entire ground water has been made a trading commodity without being regulated or controlled either by the authorities, responsible for enforcement of environmental laws or even from the authorities who are responsible for maintenance of standard of food items. We, therefore, answer issues I and II against respondents/proponents.
230. Issue V, therefore, is also answered by holding that abstraction of ground water without NOC/consent/clearance from the Competent Authority and supplying thereof, to human consumption without testing safety safeguards amounts to violation of environmental norms on the part of concerned respondents/proponents. However, with regard to further action, we find it appropriate to direct the responsible and concerned 151 statutory regulator to take further remedial/punitive action against the violators/erring proponents. Issue V is answered accordingly.
231. Issues III and IV relate to the interpretation of FSS Act 2006. We do not want to give any final opinion but a bare perusal of FSSAI notification dated 16.11.2016 clearly shows that the manner in which water is being traded by the proponents in the form of water jars and water cans etc., it satisfy the definition of 'water' and its quality has to be checked particularly, when it is undoubtedly evident that contaminated water is bound to affect health of the human being very seriously and many a times, the consequences may be fatal also.
232. The attitude of Statutory Regulators responsible for maintaining food quality to shirk away from the responsibility cannot be appreciated in as much as water contamination causing any health hazard is the direct failure of discharge of statutory duties on the part of such authorities and they are bound to regulate the same. Abstraction of ground water, will also require consent under Water Act 1974 and the stand taken by respondents/proponents otherwise cannot be accepted. Lastly, it is also evident that respondents/proponents have not obtained any NOC/CONSENT from competent authority, there is gross violation of environmental laws. However, we intend to leave matter of assessment of environmental compensation upon Regulators.
233. We, accordingly, answer all the issues against respondents/proponents.
234. Since all the individual proponents are not before us and huge exercise has to be undertaken by Statutory Regulators to give effect to this judgment, we find it appropriate to dispose of this application with the following directions:
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(a) No Cool Water Cane/Chilled Water Jar Units (Plants) or any other unit carrying on similar business with any other description or title in State of Maharashtra and in particular, Nagpur and Pune shall be allowed to continue unless the concern PP possess NOC from CGWA, Consent under Water Act 1974 from the State PCB and is complying with environmental norms prescribed under Water Act 1974, EP Act 1986 and rules, regulations and directions issued thereunder.
(b) The existing units running without complying with the
environmental norms and laws and the requisite
NOC/Consent/permission shall be closed forthwith and not later than one month from today. Statutory Regulators shall determine environmental compensation for illegal withdrawal of groundwater and non-compliance of other environmental norms and laws after following due process of law.
(c) Standards/norms of packaged water whether supplied in can or jar or in any other manner shall be maintained and if no such standards have been prescribed, the competent Statutory Regulators shall lay down certain standards/parameters within one month from today. So long other standards are not prescribed, the BIS standards shall be followed.
(d) CPCB and CGWA in co-ordination would constitute Committees in different States to check and control similar activities if carrying on in other States and take appropriate measures complying the directions issued above in respect of State of Maharashtra.
(e) The Statutory Regulators would also take other remedial and punitive measures as provided under law.
(f) Compliance reports by respective bodies/authorities shall be submitted as on 30.06.2022 by 15.07.2022 with Registrar, NGT, 153 Pune Bench. If any, further directions are required Registrar shall place the matter before Tribunal.
235. With the above directions, this OA and all pending I.A.s are disposed of.
236. A copy of this order be forwarded to the Chief Secretary, State of Maharashtra, all State/UTs PCBs/CCs, CGWA, MoEF&CC, District Magistrates Nagpur and Pune, Chief Secretaries of all other States/UTs, by e-mail for information and compliance.
Adarsh Kumar Goel, Chairperson Sudhir Agarwal, Judicial Member Brijesh Sethi, Judicial Member Prof. A. Senthil Vel, Expert Member Dr. Afroz Ahmad, Expert Member February 25, 2022 Original Application No. 75/2017 (WZ) AVT & R 154