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Judgment
Grievance in this application is against construction of swimming pools in hotels, resorts, multistory group housing societies, individual houses, clubs or other residential or commercial places unless they first establish artificial water recharge plants and water treatment plants with sufficient capacity.
Case set out in the application is that in view of the alarming depletion of water in Delhi NCR region, swimming pools by illegally extracting water, without requisite safeguards for replenishing the ground water and other remedial steps are not viable. A swimming pool takes 18000-20000 gallons of water and is luxury at the cost of needy citizens, thirsty for water. Chlorine is used in swimming pools which adversely affects hair, eyes and skin and has negative effect on environment. Manufacturing of chlorine itself creates mercury emissions that result in ozone depletion. According to the Department of Interior Bureau of Reclamation U.S.A, 71% of the earth is covered by water but 97% is salty water, which is not suitable for drinking. Only 3% of the water on earth is freshwater and only 0.5% is available for drinking as other 2.5% of freshwater is found in the form of ice caps, glaciers, the atmosphere, soil, or under the earth's surface, or is too polluted for consumption.
We are of the view that the principle of 'Sustainable Development' requires that as far as possible the use of ground water has to be linked to the level of ground water availability. Since water is scarce, drinking water has to have priority, being part of life over the luxury of water for swimming pools. In view of the judgement of the Hon'ble Supreme Court in M.C Mehta v. UoI & Ors., (1997) 11 SCC 312 Ground Water Authority has been specially constituted for the purpose and is required to take steps to ensure that ground water extraction is not beyond the ground water replenishment and availability.
The matter has been gone into by this Tribunal vide dated 20.07.2020 in O. A No. 176/2015, Shailesh Singh v. Hotel Holiday Regency, Moradabad & Ors., as follows:-
"2. The issue was considered by the Hon'ble Supreme Court vide its order dated 05.12.1996 and judgment dated 10.12.1996 on the basis of news item published in Indian Express dated 18.03.1996 under the caption "Falling Groundwater Level threatens City". The Central Ground Water Board (CGWB) filed an affidavit before the Hon'ble Supreme Court that from 1962 onwards the water levels were declining on account of enhanced pumpage. National Environmental Engineering Research Institute (NEERI) was required to examine the matter and its report dated 23.09.1996was considered. The Ministry of Water Resources (MoWR) ("Now, Ministry of Jal Shakti, Department of Water Resources, River Development and Ganga Rejuvenation, MoJS, since 2019) filed affidavit dated 24.10.1996 that there was over exploitation of the groundwater in certain areas. The Government of India had circulated a model bill to States/UTs in the year 1970 to remedy the situation. It was for the States to take further steps as water is state subject.
Vide order dated 05.12.1996, the Hon'ble Supreme Court observed that the matter needed to be dealt with under the Environment (Protection) Act, 1986 (EP Act, 1986) by the Central Government, referable to Entry 13, List I of the Seventh Schedule read with Article 253 of the Constitution. The Court overturned the MoJS's stand that control of groundwater was States' responsibility because water was the State subject. The Court observed that the management of water resources to achieve overall aspirational goal of sustainable development warrants legal interventions based on the principles of inter and intra generational equity, the precautionary principle, conservation of natural resources and environmental protection are covered by the EP Act, 1986. Thus, an authority was required to be constituted with the mandate as recommended by NEERI as follows:
"7. ... The mandate of the authority needs to include the following:
* To deploy river basins as the basis for regional planning for sustainable water resource management (along with commensurate land use).
* To prepare medium and long-term national land use plans inter alia including agricultural practices, human settlement patterns and industrial typology in consultation with Ministries/Departments concerned based on the regional water supportive capacity.
* To assess the present irrigation practices and cropping patterns, with respect to high water consuming crops and lay down National Agricultural Water Use Policy to encourage judicious use of water resources.
* To keep under review groundwater levels and quality, and surface water quantity and quality to devise and implement pragmatic strategies at plan and programme levels.
* To ensure maintenance of minimum flows in the rivers so as to fulfil the riparian rights, to protect the flood plains, to as also to protect the vital ecological functions of the rivers.
* To ensure techno-economic feasibility and to implement programmes on reuse of appropriately treated sewage for agriculture, reuse of industrial wastewaters as industrial process water, use of treated sewage in social forestry and public parks in municipal areas and reuse of treated wastewater in new housing complexes for non-consumptive usages.
* To protect, conserve and augment traditional water retaining structures.
* To protect, conserve and augment natural and manmade wetlands in the country.
* To promote rain water harvesting in human settlement practices, particularly in cities with more than 10 lakh population in arid/semi-arid regions.
* To promote and implement modern and traditional water harvesting technologies to ensure minimal expenditure in groundwater harnessing.
* To design and implement programmes to arrest alarming rates of decline in snowline in the country.
* To ensure catchment area treatment, including construction of check dams, contour bunding, control of river bank erosion and plantation of endemic fast-growing tree species to arrest soil and water loss in all river basins.
* To ensure implementation of afforestation programmes for achieving a minimum of 33% forest cover as per the National Forest Policy, 1988.
* To prepare and implement guidelines on water rate structure for various water usages commensurate with the production and scarcity value of the resource.
* To ensure community participation with a view to harnessing traditional knowledge at all stages in the holo-logical approach to water resource management."
Finally, on 10.12.1996, the Hon'ble Supreme Court held:
"8. We therefore order and direct as under.
The Central Government in the Ministry of Environment and Forest shall constitute the Central Groundwater Board as an Authority under Section 3(3) of the Act. The Authority so constituted shall exercise all the powers under the Act necessary for the purpose of regulation and control of groundwater management and development. The Central Government shall confer on the Authority the power to give directions under Section 5 of the Act and also powers to take such measures or pass any orders in respect of all the matters referred to in sub-section (2) of Section 3 of the Act.
We make it clear that the Board having been constituted an Authority under Section 3(3) of the Act, it can resort to the penal provisions contained in Sections 15 to 21 of the Act.
The main object for the constitution of the Board as an Authority is the urgent need for regulating the indiscriminate boring and withdrawal of underground water in the country. We have no doubt that the Authority so constituted shall apply its mind to this urgent aspect of the matter and shall issue necessary regulatory directions with a view to preserve and protect the underground water. This aspect may be taken up by the Authority on an urgent basis."
Petitions have been filed before this Tribunal from time to time since 2012 Order dated 11.9.2019 in OA No. 59/2012, Vikrant Tongad; OA No. 108/2013, Legal Aid Committee, NGT Bar; OA No. 179/2013, Raj Hans Bansal; [OA No. 484/2015; OA No. 327/2018; OA No. 115/2017] Shailesh Singh; [OA No. 613/2017; OA No. 614/2017] Mohd Javed, with the grievance of rampant illegal drawal of groundwater by hotels, industries and builders for commercial purposes with no effective check by the CGWA as per mandate of law laid down by the Hon'ble Supreme Court.
The Tribunal dealt with the individual matters and directed stopping of such illegal extraction and recovery of compensation. All matters which were earlier tagged to the present matter, have been disposed of on 11.9.2019 leaving the main question pending for consideration herein. In one of the matters OA 458/17, Harinder Dhingra, order dated 11.9.2019, the Tribunal referred to a Hindustan Times article that 50 lac litres of ground water was extracted daily by Tanker mafias with no action and a Times of India article dated 6.6.2017 that 4 crore litres of water was being illegally extracted in Gurgaon daily. The Tribunal directed remedial action. Such cases are legion. The Tribunal observed that there is need for constant action by the regulatory authorities and a robust mechanism for effective review, to comply with the mandate of law and to avoid unnecessary litigation.
Reference may also be made to some other news items/articles. In a recent news item dated 15.7.2020 4 https://www.tribuneindia.com/news/haryana/decline-in-water-table-caused-crack-in-mahendragarh-fieldexperts-112461A 458/2017 in Tribune under the title "Decline in water table caused crack in Mahendragarh field: Experts", pathetic ground situation has been reported. In the news item dated 17.9.2018 https://news.mongabay.com/2018/09/as-indias-ganges-runs-out-of-water-a-potential-food-shortage-looms/ in Mongabay under the title "As India's Ganges runs out of water, a potential food shortage looms", it is stated that in the last 3 decades groundwater input to the river ganga has declined by 50%. This has resulted due to the unsustainable groundwater extraction which could severely affect the availability of water for surface water irrigation with potential decline in food production. In the news item dated 20.8.2018 https://www.thehindubusinessline.com/news/science/ganga-drying-up-in-summers-due-to-groundwater-depletion-study/article24736218.ece in the Hindu Business Line under the title "Ganga drying up in summers due to groundwater depletion: Study", it is stated that decline in the groundwater inflow is hurting the health of river 7 Ganga. In the news item dated 5.10.2019 https://theprint.in/science/water-bodies-running-dry-at-alarming-rate-due-to-groundwater-depletion-reveals-study/301311/ in the Print under the title "Water bodies running dry at alarming rate due to groundwater depletion", it is mentioned that groundwater depletion at a rapid rate will affect the flow of river and stream which will lead to disruption of aquatic ecosystems and global food security. In the National Geographic resource library https://www.nationalgeographic.org/encyclopedia/water-table/ , titled "Water table", it has been highlighted that the groundwater extraction can result in the fall of the water table beyond the level of replenishment. There is further article dated 2.10.2019 in National Geographic titled "We pump too much water out of ground - and that's killing our rivers" https://www.nationalgeographic.com/science/2019/10/groundwater-pumping-killing-rivers-streams/ The article states that by 2050, thousands of rivers and streams worldwide could pass a critical ecological threshold. Such reports abound and the Tribunal is confronted with the same frequently.
As in other cases, it is stated herein that there is fast depletion of ground water in NOIDA and Greater NOIDA, District Gautam Budh Nagar, U.P., due to large scale extraction of groundwater by various commercial entities, including hotels in Ghaziabad, Moradabad and Agra, where ground water levels were unsafe. There was no effective regulation on account of which situation was worsening. Contentions of learned counsel for the applicants are that directions relating to water harvesting are not being complied with. There is no effective monitoring after NOC for extraction for commercial purposes is granted subject to conditions of replenishments or restricted quantum or uses which conditions are held in breach. There is no published data of level of depletion nor any impact study before granting NOC. No realistic roadmap to remedy the falling level has been provided. This has affected flow of rivers. Water bodies are drying up. Charges for extraction are a pittance even though in OCS areas ground water is scarce and even for drinking purposes there are difficulties in supplying water to all. There are allegations of extraction of ground water for horticulture, watering playfields, construction and industrial and other secondary purposes for which treated water could be easily used. This was not happening in absence for regulatory and enforcement measures.
Significant orders of the Tribunal include orders dated 23.04.2015, 26.07.2018, 28.08.2018 and 22.11.2018. Reference to orders passed thereafter will be made later. It was noted in the order dated 23.04.2015 (in OA 59/2012) that ground water level has gone down in NOIDA by 15 mtrs. between 2007-2014. The Tribunal issued directions to regulate the problem.
On 26.07.2018 (in OA 59/2012) it was noted that the problem was not confined to NOIDA, Greater NOIDA, Delhi and NCR, the situation in Over exploited, critical and semi critical (OCS) regions throughout India called for stringent regulation for ground water extraction. The Tribunal thus took up the issue of effective enforcement of regulatory measures pan India in all OCS areas. It required an expert from the MoJS to be present to assist. The order was uploaded on Tribunal's website so that all stake holders could participate.
Vide order dated 28.08.2018, the Tribunal noted the CGWA stand that it was regulating only some areas notified by it and its notification did not include all the OCS areas which had already been identified and notified by the CGWA, having regard to the depletion of groundwater level. There was no basis for limiting monitoring to only some of the OCS areas leaving out others though the CGWA was under legal obligation to regulate ground water management throughout India. Accordingly, the Tribunal directed the MoJS in consultation with the Ministry of Environment, Forest and Climate Change (MoEF&CC) and Ministry of Agriculture (MoA), to review the existing mechanism for effective conservation of ground water resources in all OCS areas in the country. It was directed that the policy framework must include monitoring mechanism by way of provision for coercive measures, consistent with the mandate in the judgement of the Hon'ble Supreme Court of India in M.C Mehta (supra). The CGWA guidelines that permission to extract ground water in OCS areas is to be given only for drinking and domestic purposes were noted and directed to be acted upon. The unsatisfactory situation continues ignoring various orders of the Tribunal on untenable pleas as can be seen from later part of the order.
On 22.11.2018, the matter was further considered in the presence of the Secretary, Water Resources who stated that the CGWA was ill equipped to handle all areas and the regulatory framework was 'under consideration'. After making reference to the 2012 Guidelines issued by the CGWA and Draft Guidelines dated 16.11.2015, the Tribunal noted the following points:
i. CGWA was repeatedly disowning its responsibility on the plea that regulation of ground water was a State subject, contrary to the mandate in the judgement of the Hon'ble Supreme Court in M.C Mehta (Supra).
ii. CGWA was failing to regulate drawal of ground water in OCS on the ground that it had not issued a notification except for some areas, and without such notification, there was no need for regulating extraction of ground water even in OCS.
iii. Extraction of ground water for commercial purposes was being allowed in OCS just by a mechanical condition that the ground water will be recharged, without ensuring compliance of such condition.
iv. Underground water was being illegally allowed to be extracted for constructions, bottling plants, swimming pools etc. without any impact study or effective steps for rain water harvesting for recharge of the ground water in OCS areas.
v. CGWA was repeatedly taking the plea that charges were being collected for permitting drawal of underground water for commercial purposes in OCS against the Precautionary Principle, Sustainable Development as well as Intergenerational Equity Principles. The charges were too less compared to the cost to the environment.
vi. While the use by agriculturists needed to be appropriately addressed, extraction for commercial purpose in OCS areas stood on different footing in law from extraction for drinking purposes and agriculture.
The Tribunal deferred the matter to 3.1.2019 to enable the Ministry to take steps for effective regulatory framework in the light of the above.
Paras 13 & 14.............................xxx........................................xxx
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.
The Tribunal noted a 2009 study https://www.researchgate.net/publication/26736936_Satellite_Based_Estimates_of_Groundwater_Depletion_in_In dia based on NASA Gravity Recovery and Climate Experiment satellites, finding that the ground water level depletion between 2002-2008 in north India was continuous and at a net loss equivalent to double the capacity of India's largest surface-water reservoir, due to anthropogenic causes. The Tribunal also referred to the publication of the Niti Ayog Composite Water Management Index: A Tool for Water Management, June 2018, Niti Aayog in association with MoWR, Ministry of Drinking Water and Sanitation and Ministry of Rural Development:
"As per publication of NITI Ayog, India is placed at 120th amongst 122 countries in water quality index. Most states have achieved less than 50% of the total score in augmentation of groundwater resources, highlighting a growing national
crisis. 54% of India's ground water wells are decreasing in levels and 21 major cities across the country are expected to run out of ground water by 2020. Almost none of the States have built the infrastructure required to recharge groundwater in over exploited and critical areas. Several States such as U.P., Bihar, Rajasthan etc. have not put in place any regulatory framework for managing the groundwater. These states produce 20-30% of India's agricultural output and groundwater accounts for 63% of all irrigation water. Therefore, unsustainable extraction in these states also poses a significant food security risk for the country."
The Tribunal noted another survey on the subject as follows:
"4. As per another survey, India extracts most ground water.Globally, 25% of total annual global annual water is extracted in India. The extraction level is going up continuously
Depletion of ground water not only creates crisis for drinking water in absence of inadequate surface water being available in certain areas where there may be drought conditions, but also affects e-flow in rivers and can also increase salinity in soil."
The Tribunal held that the blanket exemptions rendered regulatory regime illusory, resulting in no impact assessment. There was no application of mind shown as to how such policy will prevent extraction of water beyond desired levels in OCS areas. Exemptions were in clear breach of public trust doctrine and intergenerational and precautionary principles. The nominal charges had no nexus to the cost of restitution or value.
The Tribunal held that the Notification worsened the situation by liberalizing the extraction of ground water even for commercial purposes in violation of spirit of order of the Hon'ble Supreme Court, as well as the Tribunal's specific directions. The Tribunal upheld the following objections against the Notification:
"i. Liberally permitting extraction of ground water and justifying the same on the plea that charges have been prescribed even in OCS areas for commercial/industrial purposes.
ii. Liberally permitting extraction of ground water on the ground that condition was imposed for rain water harvesting without any data of effective compliance of such conditions or even possibility of this being done.
iii. Having exempted categories in OCS areas for purposes other than drinking water, including swimming pools, commercial and industrial uses. Reference has been made to the statistics to show deteriorating status of conservation of water and crises of access to water being available to the common man, as well as its requirement for ensuring e-flow in the rivers."
The Tribunal observed:
"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.
The so-called regulation is illusory. The so-called conditions are incapable of meaningful monitoring, as shown by past experience also.
The water conservation fee virtually gives licence to harness ground water to any extent even in OCS areas.
There is no institutional mechanism to monitor removal and replenishment of ground water.
Delegation provision is virtual abdication of authority.
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.
The MoEF&CC is directed 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 OCS areas by way of appropriate replenishment practices which can be properly accounted and measured for as well as to sustain the flow of rivers in terms of e-flows and other water bodies. The MoEF& CC and MoWR may finalize the issue of subject matter inter-se with regard to ground water reserve and its quality.
The Committee may also indicate the projection of its impact study in light of projected data for the next 50 years (in phased manner with action plan for each decade). Thereafter, fresh guidelines be issued by the concerned Ministry and the report furnished to the Tribunal on or before 30.04.2019.
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."
Paras 21 to 25.............................xxx........................................xxx
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 Cout 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 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 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. See recent order dated 22.6.2010 in OA No. 673/2018, In Re: News item published in "The Hindu" authored by Shri Jacob Koshy, titled "More river stretches are now critically polluted: CPCB"
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 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."
In terms of the Tribunal's previous orders (dated 03.01.2019, Paras 29 and 31 Quoted supra, Para 20, and dated 11.09.2019, Para 24 Quoted supra Para 23), 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)?
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?
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.
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.
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.
Para 31.................................xxx..........................................xxx
We reiterate that mandate of law is sustainable development and only economic consideration is not enough for a policy, if it results in damage to the environment in violation of intra and inter generational equity and precautionary principle. Once potential for damage to environment is patent, precautionary approach is to prevail. In OA 681/2018 News item published in "The Times of India" Authored by Shri Vishwa Mohan Titled "NCAP with multiple timelines to clean air in 102 cities to be released around August 15", the Tribunal, vide order dated 20.11.2019, considered the concept of sustainable development and
16 carrying capacity in the context of air pollution in 122 cities in the country which are declared 'non-attainment'. The Tribunal directed review of Master Plans consistent with the principle of 'Sustainable Development' and carrying capacity as per judgment of the Hon'ble Supreme Court in (2004) 6 SCC 588 M.C. Mehta v. Union of India.
Paras 33 to 36.................................xxx....................................xxx
In a recent judgement, Madras High Court Dated 03.10.2018, M/S. Sarooja Agro Foods v. The Chief Engineer considered the issue of regulation of the groundwater ¶ 69 to 82. It was also observed that drawal of groundwater without authority will be criminal offence of theft and mischief under Section 379 and 425 IPC. Such extraction must be scientifically monitored Districtwise with punitive consequences against violations. Following order was passed:
"(1) The impugned order of regulation issued by the 1st respondent in G.O.Ms.No.142, dated 23.07.2014 is confirmed.
(2) The respondents are directed not to grant licence, No Objection Certificate (NOC) or permission for the commercial establishments / person to extract ground water for commercial usage in the absence of fixation of water Flow Meter on the Board outlet, which is to be inspected.
(3) The respondents are directed to inspect the functional quality and other established standards of the Flow Meters fixed by the persons, who all are applying for permissions / No Objection Certificate (NOC) and at the time of granting permission / No objection Certificate (NOC), the Flow Meter should be sealed properly by the respondents / Public Works Department (PWD) officials.
(4) The Flow Meter must be sealed in such a way to prevent any tampering by any person. Quantum of Water to be extracted by individuals, are to be fixed periodically as per the assessment to be made by the P.W.D. Authorities as per the Regulations.
(5) The respondents are directed to measure the quantum of water extracted by the establishments / persons by taking meter reading every Month and accordingly, the same is to be regulated.
(6) The respondents are directed to follow all other terms and conditions fixed for grant of licence / permission for Extraction of Ground Water for commercial usage as per the guidelines issued in G.O.Ms.No.142, Public Works Department dated 23.07.2014.
(7) The respondents are directed to register the Police complaint in the event of identifying any excess Extraction of Ground Water by tampering the Flow Meters sealed or by any other means by any person. The case must be registered Under Section 379 of Indian Penal Code (IPC). In addition, if the water is wasted for causing wrongful loss, then Section 425 of the Indian Penal Code (IPC) will also attract.
(8) The respondents are directed to suspend the licenses by issuing show cause notices and by providing an opportunity to the persons, who have involved in the offence of theft or violation of all other conditions stipulated in the Government Regulations, or if a criminal case is registered. If any person is convicted, then he shall be permanently debarred from getting licence for Extraction of Ground Water.
(9) The District Collectors of all the Districts in the State of Tamil Nadu are directed to issue suitable directions / orders to the Revenue Divisional Officer, Tahsildars and all other officials concerned to inspect and monitor the Extraction of Ground Water by the persons for commercial usage.
(10) The District Collectors of all the Districts are directed to constitute monitoring committees to monitor the Extraction of Ground Water by the individuals for commercial purposes.
(11) Each Monitoring Committee appointed by the District Collector concerned, shall consists minimum of five persons and the Committee is empowered to monitor the Extraction of Ground Water for commercial purposes by the individual persons and commercial establishments.
(12) The Monitoring Committee shall consist of the following persons:
(i) The District Environmental Engineer from Pollution Control Board of the State of Tamil Nadu.
(ii) One qualified Public Works Department (PWD) Engineer from Water Resources Department.
(iii) The Assistant Director of Zoology and Mining of the State Government.
(iv) The Revenue Divisional Officer of the concerned locality.
(v) One nominee from the office of the Chief Engineer, Central Ground Water Board of the Government of India.
(13) The Monitoring Committee is entitled to collect proofs and documents in respect of the Extraction of Ground Water illegally and excessively by any person and submit a complaint / report to the District Collector concerned, who in turn, after verifying the same, shall register a complaint with the Jurisdictional Police for registering a criminal case under the provisions of Indian Penal Code (IPC).
(14) It is needless to State that, only in the event of compliance of the regulations and conditions imposed in this order, the persons / establishments shall be allowed to extract the Ground water for commercial usage or for commercial purposes.
(15) The 1st respondent / Secretary, Public Works Department is directed to issue consolidated instructions in this regard based on the order passed in the present writ petitions to all the District Collectors, enabling them to implement the Court orders promptly."
However, the issue has to be gone into by the statutory regulators in the first instance, including the Central Ground Water Authority (CGWA), State Ground Water Authority, concerned District Magistrate, SEIAA which grants EC, State PCB which grants consent and any other authority dealing with the subject, particularly in absence of identified violators being before the Tribunal. The regulatory authorities may need to conduct a survey of the extent of ground water extracted for swimming pools and permissibility of such activity, particularly in areas where there is scarcity of ground water. SEIAA needs to undertake due diligence while granting clearance/EC to any project involving swimming pools. In absence of details of violators and such violators being impleaded as party, the Tribunal is unable to straightaway entertain the application. The same is accordingly disposed of.