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2021 Supreme(Ker) 1180
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. Manikumar, Shaji P. Chaly, JJ.
Santhosh Kumar A.C., S/o. Late Chandran, Ors. – Petitioners
Versus
State Of Kerala, Represented By Chief Secretary, Secretariat, Thiruvananthapuram, Ors. – Respondents
WP(C) No. 31390 Of 2018
Decided On : 10-11-2021
For the Petitioners: K.R. Rajkumar.
For the Respondents: Sri. K.P. Harish, Shri. P. Benjamin Paul, Sri. P. Martin Jose, Sri. T.A. Unnikrishnan, Sri. P. Prijith, Sri. K.K. Akhil, Sri. Thomas P. Kuruvilla, Sri. S. Sreekumar (Sr.)
Headnote:
Kerala Ground Water (Control and Regulations) Act, 2002 - Kerala Ground Water (Control & Regulation) Rules, 2004 - Disaster Management Act, 2005 – Illegal extraction of water – Commercial purpose - Petitioners filed instant writ petition, seeking to stop the illegal extraction of the groundwater, thereby exploiting mother nature, and also contending that the locals are in the receiving end for the greed of a group of people who are really a Mafia like group - Whether the provisions of the said act and rules are to be extended to such areas and require registration of the wells – Held, Authorities are vested with ample powers to translate the intention of the Act, 2002 and other legislation discussed above, to avoid dearth of groundwater due to the over exploitation of groundwater by commercial and business establishments – Court is of the definite opinion that the contention advanced by the petitioners that there is no law for the licensing of groundwater establishments is not correct - Petition disposed of.
Yes, the consent of the Groundwater Authority (in the form of a No Objection Certificate (NOC), permit, or registration) is necessary for the extraction and use of groundwater, particularly for commercial, industrial, or business purposes.
- The Kerala Ground Water (Control and Regulation) Act, 2002 empowers the Groundwater Authority to regulate extraction through permits, registration of wells (especially in notified areas), and evaluations considering factors like purpose of use, recharge rates, and water levels. (!) (!) (!) (!) (!)
- Registration of existing wells is mandatory in notified areas within 120 days of the Authority's constitution, with the Authority assessing applications under Section 8(3), and it can receive late applications with sufficient cause. (!) (!)
- Section 15 grants the Authority broad powers, including inspections, identifying shortages, and exercising other necessary functions (e.g., S.15(1)(k)) to implement the Act's objectives, even extending provisions to non-notified areas facing depletion from commercial over-exploitation. (!) (!)
- For industrial abstraction (including commercial supply), NOC from the State Ground Water Authority is mandatory even in "safe" blocks per guidelines issued w.e.f. 15.4.2018; sale/supply of raw groundwater for commercial use by unauthorized agencies is prohibited. [15000528540006] (!) (!) (!) (!)
- Guidelines specify conditions like recycling/reuse percentages and recharge measures based on block category (safe, semi-critical, critical, over-exploited), applicable to industries, infrastructure, and commercial projects. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
- The Court holds that authorities have ample powers under the Act, Rules, 2004 (under S.27(1)), Environment (Protection) Act, 1986 (S.5), and related notifications to require compliance, rejecting claims of no licensing law; commercial establishments must obtain approvals to prevent unregulated depletion. (!) (!) (!) (!) [15000528540018][15000528540019]
- Local bodies (under Kerala Municipality Act/Panchayat Raj Act/Building Rules) also require permits for well construction, reinforcing regulatory oversight. [15000528540018]
- Directions mandate periodic inspections to assess extension of provisions/registration and ensure no illegal extraction, confirming consent's necessity. (!) (!)
JUDGMENT :
[Shaji P. Chaly, J.]
1. Petitioners are the sitting ward members of the Aluva Municipality. The first petitioner is the ward member of Ward No.21, the 2nd petitioner is the member of Ward No.25 and the 3rd petitioner is the member of Ward No.10 in Aluva Municipality. Respondent Nos.6 to 19 are the residents of Aluva Municipality, having properties in the Aluva Municipality and they allow water to be extracted illegally by the operators of drinking water for commercial purposes. According to the petitioners, large amounts of water are daily pumped out from their wells and the same is distributed in large quantities for providing water to the large commercial buildings such as Malls, Hospitals, High rise buildings, in and around Ernakulam. They also cater water to large ships, which call on the Cochin Port. According to the petitioners, the groundwater is depleting day by day and thereby, the locals are facing acute water shortage. Hence, the petitioners have approached this Court by filing the instant writ petition, seeking to stop the illegal extraction of the groundwater, thereby exploiting mother nature, and also contending that the locals are in the receiving end for the greed of a group of people who are really a Mafia like group.
2. Counter affidavit filed on behalf of the Director, Ground Water Department, Jalavijnana Bhavan, Ambalamedu, Thiruvananthapuram - 4th respondent, respondent, is reproduced hereunder :
“2. It is submitted that the District Office, Groundwater Department, Ernakulam has conducted an inspection during the month of March, 2018 at 12 locations in and around Aluva Municipality as per the instruction of the District Collector & Chairman, Disaster Management Authority, Ernakulam based on the complaint of the petitioner, Councilor, Ward XXI, Aluva Municipality and Aluva Taluk Powravakasa Samrakshana Samithi and report submitted to Disaster Management Authority. The inspection was carried out at 12 locations, and the open wells in these locations have total depth ranges from 7m to 11.35 bgl and the static water level ranges from 5.25m to 9.82m bgl. During inspection it has been noted that in these locations, groundwater is abstracted from open wells and brought through tanker lorries. For this purpose 1HP to 3 HP motor and pipes are found fitted in these locations. In some locations water supply through tanker lorries are also noted.
3. It is submitted that, the District Office, Groundwater, Department, Ernakulam has conducted an inspection in and around Aluva Municipality and the activities which are detrimental to the level of the groundwater in the area, has been reported to the District Collector. The Collector has taken necessary action to stop the pumping of groundwater from the concerned wells.
4. All the open wells with large pumping motors are situated in the riverine alluvium and hence large quantities of water can be extracted. As per the water level data available in the department, the long term water level trend of the observation well at Aluva shows a declining trend. Continuous large-scale pumping from the bank of the river may affect the base flow of groundwater and in due course it will affect the surface water availability of the river.
5. It is submitted that, Groundwater Department had conducted a water level data fluctuation study in the flood affected areas of Ernakulam District. The analysis of the post flood water level data from 63 observation wells of Groundwater Department, Ernakulam showed a decline in water level in most of the wells for a temporary period due to the lack of permeability of the clay rich soil formed as a result of flood and the acceleration of the base flow caused by the flash flood. In course of time and as part of the hydrological processes, the original condition of the aquifer regained. In the post-flood period a lowering of water level was observed i
