Disposed

Suo Motu v. the State of Kerala

Kerala HC10 Nov 2021WP(C)/11324/2018

Case brief

AI extract

What is this about?

Groundwater depletion and commercial extraction prompted directions enforcing clearances, well permits, inspections, prosecution of illegal abstraction, and registration of water-carrying vehicles. The court disposed of the petition with safeguards against excessive extraction even by licensed establishments and required compliance monitoring and periodic review.

What did the court decide?

Directions issued to enforce groundwater clearances and well permits, inspect areas, prosecute illegal abstraction, curb excessive extraction, register water-carrying vehicles and monitor compliance.

Suo Motu Vs the State of Kerala — Environment and Pollution | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 10^TH DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943

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WP(C) NO. 11324 OF 2018

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PETITIONER:

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SUO MOTU PROCEEDINGS INITIATED BASED ON THE HIGH COURT ORDER DATED MARCH 22ND, 2018 WITH REGARD TO DEPLETION OF GROUND WATER RESOURCES.

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RESPONDENTS:

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1 THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 UNION OF INDIA, REPRESENTED BY PRINCIPAL SECRETARY, CENTRAL GROUND WATER DEPARTMENT, MINISTRY OF WATER RESOURCES, GOVERNMENT OF INDIA.

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3 CENTRAL GROUND WATER AUTHORITY, REPRESENTED BY THE MEMBER SECRETARY, 18/11, JAMNAGAR HOUSE, MAN SING ROAD, NEW DELHI-110 011.

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4 KERALA STATE SAKSHARATHA MISSION, REPRESENTED BY ITS DIRECTOR, TC 27/1461, KAMMATTOM LANE, CONVENT ROAD, VANCHIYOOR, THIRUVANANTHAPURAM-695 035.

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5 CENTRE FOR WATER RESOURCES AND DEVELOPMENT AND MANAGEMENT, REPRESENTED BY ITS EXECUTIVE DIRECTOR, KUNNAMANGALAM, KOZHIKODE-673 571.

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6 SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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7 KERALA STATE GROUND WATER DEPARTMENT, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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BY SRI. K. P. JAYACHANDRAN, ADDL. ADVOCATE GENERAL BY SPECIAL GOVERNMENT PLEADER SRI. S. RENJITH BY SRI. M.N.MANMADAN, CGC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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“ C.R .”

JUDGMENT

S. Manikumar, CJ

Instant public interest writ petition has been registered suo motu on the basis of a reference made by a Hon'ble Division Bench of this Court in the order dated 22.3.2018 as regards depletion of ground water resources.

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Relevant portion of the order dated 22.3.2018 reads thus:

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“9. Prima facie we are of the opinion that the Governments both at the Centre and the State has to seriously look at the problem not with respect to the present circumstances alone; but with a vision for preserving water for the future generations. Ground Water preservation measures if not taken up on war footing; the very life on earth will be endangered. We are not for a moment struggling that there should be deprivation now, to keep for the future. But the tapping of resources should be by way of a comprehensive plan to ensure sustenance and also to rejuvenate the sources. We remember with trepidation the prophecy that the third world war will be fought for drinking water. The successive Governments have failed to address the concern with due seriousness and in that context this Court, exercising its extraordinary jurisdiction, in Public Interest should look into the pressing problem of impending total depletion of water resources; in the context of the Public Trust Doctrine. We direct the Registry to take on record the above order with the annexures and suo motu

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register a writ petition as a Public Interest Litigation with the above parties and place the matter before the Hon'ble The Chief Justice for orders to post the case before the Bench having jurisdiction for PIL or any other appropriate Bench.”

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Short facts required for the disposal of the writ petition are that;

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this Court, while dealing with a spate of writ petitions seeking for protection from obstructions caused due to digging of bore wells and tube wells, took note of various paper reports, which projected an alarming situation with respect to depletion of ground water resources.

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The Court further observed that both Central and State Governments have to seriously look at the problem with a vision for preserving water for the future generations and that, there should be a comprehensive plan for tapping of resources. The successive Governments have failed to address the issue with due seriousness. In that context, exercising its extraordinary jurisdiction, this Court, in public interest, should look into the pressing problem of impending total depletion of water resources. The Court also directed the registry to take on record the above order with annexures and register a suo motu writ petition as a Public Interest Litigation, with the parties mentioned in the order. Hence, this writ petition.

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Refuting the averments in the writ petition, Kerala State Ground Water Department, represented by its Secretary, Government, Secretariat, Thiruvananthapuram, 7^th respondent has filed a statement dated 28^th September, 2021, wherein it was contended as under:

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A. The present suo motu writ petition has been initiated out of misconception of the public that bore Wells and tube Wells are extracting yield from the same aquifer (an aquifer is an underground layer of water-bearing permeable rock, rock fractures or unconsolidated materials viz., gravel, sand, or silt where the ground water is stored), which are being relied by the open Wells and thus, lead to depletion of water in the open Wells.

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B. Bore Wells tap fractured aquifers in confined/semi confined condition, whereas open Wells tap unconfined aquifers only. According to the general principles of Groundwater Hydrogeology, confined and semi confined aquifers are not interconnected as their terminology denotes, and so extraction of water from the confined/ semi confined aquifer through bore Wells will not normally interfere with the adjoining open Well tapping the unconfined aquifers. But there are rare cases, where open Wells interfere with the adjacent bore Wells, if fractures present at the open Wells extend deep into the fractures yielding to the bore Wells. In such cases, there may be chances of the open Well getting dry. The adjacent open

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Wells may also become dry if bore Well casing is not properly and scientifically seated into the bedrock and that, if the soil thickness is less and that the fractures are on the same line with the bore Well.

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C. It is further submitted that Kerala State’s topography and physiography impose severe restrictions on ground water storage and recharge. Due to our steep sloping topography, more than 80 percent of the rainwater does not get sufficient residence time to replenish the ground water before draining into the Arabian Sea. About 88 percent of the total geographical area of the Kerala State is underlain by crystalline rocks devoid of any primary porosity, with limited ground water prospects. Also change in land use pattern due to heavy population density, environmental degradation of catchments, loss of vegetation and forest cover, reclamation of wetlands, sand mining, other developmental activities, erratic rainfall, etc., are reasons for reduction in the annual ground water recharge. The above issues coupled with the inherent topographical and physio-graphical limitations are the main reasons behind the limited ground water recharge in Kerala.

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D. The yield of the open Wells is mainly dependent on the ground water available at the topmost unconfined aquifer, which is directly affected by the local rainfall. This unconfined aquifer shows seasonal variation in the water table annually and is highly susceptible to get dry up during summer months, hence, in drought years, these Wells dry up

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very early. Hence, the bore Well construction has been increased in the State as an alternative and reliable drinking water source against the less reliable open Wells in summer and deficit years. Agricultural and industrial uses result in heavy extraction of ground water resources compared with the domestic use. In Kerala, bore wells are not used extensively to meet the agriculture demand of water in comparison with our neighbouring States. Bore wells here are mainly used to meet domestic demand and hence the extraction is well within the allowable limits, except in few areas where it is extensively used for agricultural purposes like, Chittoor Block in Palakkad. Hence in Kerala, the extraction of ground water through bore wells is not yet reached to an alarming level, to deplete the limited ground water resources as suggested.

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E. Resource depletion means when the consumption of a resource is faster than it can be replenished. Hence, it is imperative to look into the scientific data, with respect to the recharge or replenishment of ground water and its consumption or exploitation. As per the Ground Water Resources of Kerala (2017), jointly prepared by the Central Ground Water Board (CGWB) and Ground Water Department of Kerala (GWD, Kerala), the annual extractable ground water recharge of Kerala State is estimated as on 31^st March, 2017 is 5.211 Billion Cubic Metres (BCM). The annual ground water extraction for all uses in Kerala State for the same period is estimated as 2.623 BCM, which is around 50 percent

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of the extractable recharge. As per the national criteria, this is well within the safe recharge limits of 70 percent.

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F. As per the above mentioned report of 2017, out of the 152 blocks in Kerala State, only Chittur block in Palakkad is qualified as 'over exploited' and two blocks , viz., Kasaragod block of Kasaragod district and Malampuzha Block of Palakkad district are categorised as “critical”. As per the national criteria 'over exploited' means the ground water extraction is more than 100 percent of the ground water recharge, which naturally leads to the depletion of the resources. “Critical” means extraction is between 90 percent and 100 percent.

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G. It was further pointed out that the latest all India statistics about ground water are available in the “Dynamic Ground Water Resources of India (as on 31^st March, 2013) published by the CGWB, Government of India in June 2017. As per the above report, out of the total 6584 blocks in India, 1034 blocks are qualified as ‘over exploited’, i.e., 16 percent. Another 253 blocks are identified as ‘critical’. In comparison with the above all India figures, in Kerala, we have only one ‘over exploited’ block and two ‘critical’ blocks, which clearly shows that ground water situation is far superior compared with the national scenario.

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H. A comparison with the neighbouring State of Tamil Nadu, which will shed more light to get proper perspective of the resources exploitation. As per the "Dynamic Ground Water

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Resources of India (as on 31^st March, 2013)" of CGWB, Tamil Nadu's annual extractable ground water recharge is estimated as 18.59 BCM and annual extraction is 14.36 BCM, i.e., 77 percent of the extractable ground water resources against the 50 percent of Kerala. Tamil Nadu's high rate of extraction is because of the extensive use of bore wells for meeting the agricultural demand. Out of total 1139 blocks in Tamil Nadu, 358 blocks have been categorized as 'over exploited' and 105 blocks as 'critical'. This comparison also proves that Kerala's ground water exploitation is not alarming as suggested.

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I. Also if we compare the ground water draft of Kerala State between 2013 and 2017, we can see that the annual ground water draft is 2.635 BCM and 2.623 BCM, which more or less remain the same. A comparison of fluctuation in water level in summer months carried out jointly by CGWB and GWD, Kerala is published in the "Ground Water Resources of Kerala (2017)". The change in ground water level over the last ten years period is brought out by the comparison of April 2016 water level with the mean value of April measurements of the period from 2006 to 2015. This analysis indicates that the change in water level is mostly restricted to + 2(rise) to -2(fall), as recorded by 90% of dug wells monitored in Kerala.

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J. It was further submitted that from the scientific facts explained and compared above in para 1.6 to 1.10, it is evident that the fear of ground water depletion in Kerala has

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reached an alarming level is conjectural and it has no scientific basis. The data would show that conclusions drawn are not accurate or reliable.

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K. It was further contended that as far as ground water is concerned, land owners enjoyed unlimited access and an inalienable part of the right to land, which is supported by the common law principle, where basic principles of access and control are derived from the Easement Act, 1882. Under these principles, land owners have rights to collect and dispose of all ground water found on their land. This implies that ground water is mostly controlled by individuals and legal entities that own or occupy the land.

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L. Apart from the above contentions, 7^th respondent has relied on decisions of the Hon'ble Supreme Court as well as this Court in M.C.Mehta v. Union of India and Others reported in (1997) 11 SCC 312, Perumatty Grama Panchayath v. State of Kerala reported in (2004) 1 KLT 731, and Hindustan Coca Cola Beverages (P) Ltd. v. Perumatty Grama Panchayath reported in (2005) 2 KLT 554.

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M. At the same time, the provisions in the Kerala Ground Water (Control and Regulation) Act, 2002 make it clear that small scale users using wells with less than 1.5 HP pumps from open wells and 3 HP pumps from bore wells/tube wells, most likely the domestic users, are exempted from the application of the Act, 2002. According to the 7^th respondent, this is a recognition of the common law right of the citizens

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by the State for extraction of a reasonable amount of ground water. Legislature has attempted to balance the rights held valid by the Hon'ble Supreme Court and Kerala High Court at different instances.

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N. Referring to Section 6(1) of the Act, 2002, it was contended that the Government is empowered on the recommendations of the Authority to notify areas where it is necessary to regulate the extraction of use of ground water where the extraction is excessive and not sustainable. In 2005, the Authority found that in five blocks in the State, the ground water exploitation had reached a level of 'over exploited' category, and therefore, the Government on Authority's recommendation notified the following five blocks, viz., Athiyannoor in Thiruvananthapuram district, Kodungallur in Thrissur district, Chittoor in Palakkad district, Kozhikode, and Kasaragod, as per G.O.(P) No.58/2005/WRD dated 19.11.2005. As per the latest ground water estimation of 2017, only the Chittoor block in Palakkad district is falling under the over exploited category. But, the original order declaring the notified areas is still operating.

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O. The 7^th respondent further contended that an amendment to the Act, 2002 is under the active consideration of the Government, which would address the following issues, viz., registration of private rigs, introducing a cess for the water which is being utilized by the water intensive industrial units, to increase penal provisions for illegal ground water

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usage, to bring water marketing in tanker lorries under legal regime, denying electrical connection to the illegally constructed bore wells, etc. This proposed amendment bill is now under the scrutiny of the Law Department.

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P. It was further contended that at present, the ground water scenario in the State is being monitored through a network of 1672 monitoring wells distributed throughout the State during the months of April, August, November and January. Quantity as well as quality analysis are scientifically carried out jointly by CGWB and GWD, Kerala and Reports on Dynamic Ground Water Resources of Kerala is published periodically. That apart, the methodology for estimation of ground water is reviewed periodically by refining the assessment methodology, as recommended by the Groundwater Estimation Committee (GEC) of the Government of India. At present, the modified GEC-2015 is used to estimate the date as of 2017.

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Q. It was also contended that Rule 101 of the Kerala Panchayat Building Rules, 2011 mandates ground water recharging for all new building constructions except thatched roof and single family residential buildings if floor area is below 150 sq. metres. Also, the new rules are added to enforce recycling and reuse of waste water for buildings above area 1500 sq. metres.

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When the matter came up for hearing on 29^th September, 2021, after considering the statement filed by Kerala State Ground Water

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Department, 7^th respondent, pleadings, and the relevant statutory provisions, this Court directed the Secretary to the Government, respondent No.6, and the 7^th respondent to file a detailed statement, with supporting documents, referring to the statutory provisions and steps taken by the authorities of the Government.

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It was further ordered that the 7^th respondent shall also file a statement, as to whether action has been taken against any owner or user of the Well, contravening the provisions of the Kerala Ground Water (Control and Regulation) Act, 2002 or rules made thereunder.

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Relevant portions of the order 29.09.2021 are as under:

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“18. Thus, going through the statutory provisions extracted supra, we are of the view that a duty is cast upon the Government to register the existing wells in a notified area. Statement of facts does not indicate as to whether the above said exercise as mandated in the Kerala Ground Water (Control and Regulation) Act, 2002 (19 of 2002) and the Rules, has been complied with or not.

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No details are given as to whether the authority met regularly once in two months.

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In the light of the above, we direct the Kerala State Ground Water Department/respondent No.7 to file a detailed statement, as to the steps taken by the authorities of Government, as indicated above.

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Respondent No.7 shall also file a statement as to whether action has been taken against any owner or user of well contravening the provisions of the 2002 Act or Rules made thereunder.

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Though, at paragraph 24 of the statement of facts contention has also been made that an amendment to the Act, 2002 is under active consideration of the Government which would address the issues viz. registration of private rigs, introducing a cess for the water is being utilised by the water intensive industrial units, to increase the penal provision for illegal groundwater usage, to bring water marketing in tanker lorries under legal regime, denying electrical connection to the illegally constructed bore wells, etc., no details have been furnished in the statement of facts, except to say that the proposed amendment bill is pending consideration before the Law Department. When this amendment is sought to be made – details as to what is the stage, where it is pending - nothing is stated in the statement of facts. Government and respondent No.7, to explain, with documents.

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Statute contemplates duties and functions on the Government.

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We are not inclined to dispose of the writ petition without ascertaining as to whether the functions so carved out have been discharged by the authorities of the Ground Water Department/ Government or not.

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Therefore, Secretary to Government/ respondent No.6 and Kerala State Ground Water Department/ respondent No.7 are directed to file a detailed statement with supporting documents, referring to the statutory provisions in the matter and the actions taken.

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Post after three weeks.”

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In compliance with the abovesaid directions, on behalf of Kerala State Ground Water Department, represented by its Secretary, Government Secretariat, Thiruvananthapuram, 7^th respondent, the learned Special Government Pleader has filed an additional statement dated 08.11.2021 along with detailed statement of the meeting convened

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by the District Level Evaluation Committee [Annexure-R7(d)]; proposal of the Director of Ground Water Authority for various post dated 19.06.2020 [Annexure-R7(e)]; and detailed statement regarding the action taken against the owners or users of well contravening the provisions of the Kerala Ground Water (Control & Regulation) Act, 2002.

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Relevant portions of the said statement are extracted hereunder:

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“2. It is submitted that after the enactment of the Kerala Panchayat Raj Building Rules, 2011 and Kerala Municipality Buildings Rules,2019 ; Rule 75 of both the Rules mandates permission for construction of wells from the concerned Local Self Government Institutions on the basis of the Clearance Certificate obtained from the Ground Water Department. The said permit is also required for Bore Wells/Tube Wells also. Hence, after 2019, the Wells and Bore Wells are constructed only after getting permission from the Local Self Government Department and also from the Ground Water Department. Similarly, as per Section 8 of the Kerala Ground Water (Control and Regulation) Act, 2002, every owner of the existing Wells of the notified area shall register the Well to the ground water authority.

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It is further submitted that as per GO(P) No.58/ 2005/WRD dated 19.11.2005, 5 blocks were notified, viz., Athiyannoor Block in Thiruvananthapuram District, Kodungalloor Block

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in Thrissur District, Chittoor Block in Palakkad District, Kozhikode Block in Kozhikode District, and Kasaragod Block in Kasaragod District of the State, which are under the overexploited category on that time. Over the years, the geographical area of these blocks were merged or added to form new local self bodies. In the consecutive ground water estimations, in order to incorporate the Urban areaMunicipalities and Corporations, the geographical area of these local bodies also merged to the nearby blocks which have similar hydro-geologic condition. The 30^th Ground Water Authority meeting held on 18.02.2019 had decided to notify all the critical and over exploited assessment units in the State based on the Ground Water Estimation Committee Report as on March, 2017 and published on May, 2019. Hence, a proposal was submitted to the Government by the Director, Ground Water Department, in order to de-notify the 5 blocks notified in 2005 and notify the following assessment units as given below. Steps are taken by the Government for de-notification and notification as proposed by the Director, Ground Water Department.

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It is further submitted that as per the decision of the State Ground Water Authority, a special drive was conducted in the notified areas, in order to register the existing Wells in the notified area. Details regarding the registration of existing Wells in the notified areas are as under:

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Details regarding Registration of existing wells in the notified areas (2004-2021)

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District Notified No. No. No. No. of Total

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	Area	of Dug Well s	of Bore wells	of tube wells	filter point wells	wells
Palakkad	Chittur Block	1124	1042 4	0	0	11548
Thiruvanan t-hapuram	Athiyanoor Block	140	111	248	0	499
Kasaragod	Kasargod Block	905	610	0	0	1515
Kozhikode	Kozhikode Block	8	6	0	0	14
Thrissur	Kodungallur Block	214	29	0	271	514

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It was further submitted that the Authority has been constituted in March, 2004 and as on October, 2021, 31 meetings have been convened. The State Ground Water Department acted as the agency for ground water exploration and management in the State. The Hydrogeology branch of the department is mainly performing ground water management activities. The Hydrology branch of the Department and State Ground Water Authority have limitations to act mainly on account of insufficient staff strength. Government is considering the matter of posting sufficient number of staff. The proposal of the Director of Ground Water Authority for various posts dated 19.06.2020 is produced as Annexure-R7(e) in that regard.

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It was further submitted that this Court has directed the 7^th respondent also to ascertain and report the action taken by the Ground Water Department for violating the Kerala Ground Water (Control & Regulation) Act, 2002. Section 21 of the Kerala Ground Water (Control & Regulation) Act, 2002, deals

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with the penalties and as per the said provision, if any person, who is the owner of the Well, fails to comply with the Rules, he shall be punished with Rs.500/- for the first offence and Rs.1,000/- for the subsequent offences. Similarly, unauthorized digging or construction or use of Well, a fine upto an extent of Rs.2,000/- can be imposed and also Rs.10,000/- and 6 months imprisonment can be imposed for the second or subsequent offences. After the enactment of the Act, the Ground Water Department in their limited strength is verifying throughout the entire State of Kerala regarding the unauthorized digging of Well and also for not -furnishing information regarding the Well in notified areas. On the basis of the said information, enquiries and inspections conducted, several offences were found out and penalties were imposed. From the year 2012 till the year 2021, 1521 cases of violation of the Act have been found out. In several cases, where the constructions have been started, stop memos were issued and in cases where Well construction has been done, penalties have been imposed and fines were levied. In 2010, the Act was amended, Section 7B was incorporated, and registration of any private firm/person carrying on the business of sinking Wells, drilling of bore Wells or tube Wells in Kerala State have become mandatory. Accordingly, Government order, viz., G.O. (MS) No.59/2014/WRD dated 27.06.2014 [Annexure-R7(F)], has been issued fixing the registration fee, renewal fee, and penalty. On the basis of Annexure-R7(f) order, steps have been taken and penalties have been imposed for those

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who have violated the Ground Water (Control & Regulation) Act, 2002.

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It was further submitted that the 30^th meeting of the State Ground Water Authority held on 18.02.2019, has approved the proposal of Amendment needed for the Kerala Ground Water (Control & Regulation) Act, 2002. The detailed Amendment act proposal submitted by the Director, Ground Water Department is under the consideration of the Government. By the said proposed amendment, more stringent provisions and norms have been proposed for nondomestic purposes. Regarding the registration of the existing Wells under Section 9 of the Act, the Ground Water Department, in the year 2005, has conducted a campaign for registration of existing Wells and made awareness to the general public. On the basis of the same, the Local Self Government Institutions were directed to register the existing Wells all over the State of Kerala and registrations were done. Thereafter, the time stipulated in Section 9 has been extended till 2013, by various Government Orders. Details of the registration of existing Wells are in voluminous nature and details of the registration are in the concerned District centres. Now, by the proposed amendment, it is suggested that domestic users shall be exempted from registering their Wells.

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Along with the additional statement, the 7^th respondent has produced Annexure-R7(d), detailed statement of the meeting convened by

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the District Level Evaluation Committee in each districts; Annexure-R7(e)proposal of the Director of Ground Water Authority for various post dated 19.06.2020; Annexure-R7(f)-G.O(Ms.) No.59/2014/WRD dated 27.06.2014 regarding the registration required as per section 7B of the Act 2002; the registration fee of Rs 50000/- required ; the fine of Rs 25000/- liable to be imposed for non- registration; and Annexure-R7(g) a tabulation statement regarding the action taken against the owners or users of the Well etc, in contravention of the provisions of the Act, 2002; the nature of water source; the fine imposed on each violator; and the total fine amount of Rs 2577350/- collected, from the year 2015 to 2020.

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Heard learned counsel for the parties and perused the material available on record.

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Kerala Ground Water (Control & Regulation) Act, 2002 is an Act to provide for the conservation of ground water and for the regulation and control of its extraction and use in the State of Kerala. “Ground water” is defined under the Act to mean, the water which exists below the surface of the ground at any location or at any particular category of locations. Section 2(f) defines “pumping well” to mean, a well fitted with pump driven by an electric motor or oil engine for pumping water but

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does not include open wells fitted with pumps driven by engine or motor with Horse Power upto 1.5 and tube wells, borewells and dug-cumborewells fitted with pumps driven by engine or motor with Horse Power upto 3.

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“Digging” is defined under Section 2(g) of the Act to mean, “digging” with all its grammatical variations and synonyms, includes digging or drilling of new wells, putting in pipes or drilling, making tunnels or increasing depth or diameter of the existing wells.

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“Well” is defined under the Act to mean, any structure made on the surface of earth by any person other than officers authorized by State or Central Government, for the purpose of drawing ground water for search, development, use or management of ground water resources and includes open well, dug well, borewell, dug-cum borewell, tube well, storage well, infiltration gallery, but shall not include open well or dug well used for domestic purposes.

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Section 3 of the Act, 2002 provides for constitution of State Ground Water Authority, grant of permit to extract and use ground water, registration of existing wells of the notified area, registration of users of groundwater, protection of public drinking water resources etc.

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It is pertinent to note that in the Act, 2002, registration of the exiting wells need to be done only on the notified area, which specifies that every owner of the existing wells of the notified area in the State shall, within a period of 120 days from the date of constitution of the Authority, register the Wells existing and in use, and shall apply to the Authority in such form and in such manner, as may be prescribed for a certificate of registration. Provided that if the Authority is satisfied that there are sufficient reasons for the applicant for not submitting the application, within the said time limit, it may entertain the application submitted thereafter.

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Under Section 8 of the Act, 2002, the Authority is vested with powers to receive application after the cut off date, if sufficient reasons are assigned. The Authority is duty bound to take into account various aspects before granting registration or rejecting the application for registration of Well under sub-section (3) of Section 8 of the Act, 2002. Sub-section (5) of Section 8 of the Act, 2002 provides as under:

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“(5) The Authority shall consider the following matters before granting or rejecting the application for registration of well under sub-section (3) namely:-

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(a) the purpose for which water is used;

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(b) the other existing users of that locality;

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(d) the quality of ground water in the location;

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(e) the long term nature of water level of well;

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(f) the other relevant factors.”

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True that registration is required only in a notified area. However, the Authority under the Act, 2002 is duty bound to identify the areas in respect of availability of ground water and, if required, it needs to be extended to such areas facing acute shortage, consequent to drawal of ground water by commercial establishments for the purpose of conducting and expanding their business operations. This we say so because, Section 15 of the Act, 2002 empowers the Ground Water Authority to do various aspects, including to conduct inspections, in order to identify the availability of ground water and for other imperative actions, in violation of the provisions of the Act, 2002.

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Sub-section (k) of Section 15 of the Act, 2002 confers an omnibus power to the Authorities, to exercise such other powers that may be necessary for the implementation of objects of the Act or rules made thereunder. The Authority is also vested with the powers under sub-section (2) of Section 15 of the Act, to perform such functions as may be assigned by the Government from time to time, in accordance with the

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objectives of the Act, 2002.

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Apart from the above, the Kerala Ground Water (Control & Regulation) Act, 2002 is a self contained statute, empowering the authority to take appropriate and suitable action, in order to prevent misuse of ground water, by any person, and to initiate prosecution to ensure that the provisions of the Act are implemented strictly to attain the objectives of the Act.

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In exercise of the powers conferred by sub-section (1) of Section 27 of the Kerala Ground Water (Control and Regulation) Act, 2002 (19 of 2002), the Government of Kerala have framed the Kerala Ground Water (Control and Regulation) Rules, 2004.

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On a conjoint reading of the provisions of Act, 2002 and the Rules, 2004, we are of the clear opinion that sufficient safeguards are provided for ensuring, controlling, and regulating extraction of ground water. However, giving due consideration to material on record, prima facie, we are of the view that State, as well as the statutory authority, prescribed under the Act, 2002, are not taking appropriate action to implement the intention of the provisions of Act, 2002 and rules made thereto, in letter and spirit.

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Above all these things, the State Ground Water Authority, constituted as per Section 3 of the Kerala Ground Water (Control & Regulation) Act, 2002, has issued guidelines, with effect from 15.04.2018, for evaluation of the proposals / requests for ground water abstraction in the State of Kerala. Said guidelines are extracted hereunder:

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“Government of Kerala

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STATE GROUNDWATER AUTHORITY Groundwater Department, Jalavinjana Bhavan, Ambalamukku, Kowdiar P.O. Pin- 695003

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Guidelines/Criteria for evaluation of proposals/requests for Groundwater abstraction (With effect from 15.04.2018)

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SCOPE & OBJECTIVE

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The prime objective of the guidelines for evaluation of proposals/requests for the withdrawal of groundwater, is to focus on a specific part of groundwater management viz. Ensuring sustainability of groundwater both in terms of quantity & quality and also focus on land based management of groundwater resources, looking into the variations of availability of water in different climatic regions and diverse hydrogeological conditions in various districts of the State. These guidelines are proposed by Central Groundwater Authority which are modified in to the State context for implementation through State Groundwater Authority in Kerala. Explanation for different technical terms used in this document are given in Annexure I.

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The annual replenishable groundwater resources availability plays an important role in defining these guidelines. These are re-assessed from time to time and the latest assessment, as applicable to these guidelines is available on www.cgwb.gov.in and www.groundwater.kerala.gov.in.

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The latest assessment of the state wise groundwater resources as on 31.03.2013 is applicable to these guidelines. As per the dynamic groundwater resource estimates of 2013, jointly carried out by CGWB and SGWD out of the 152 assessment units (Blocks), 1 is over-exploited, 2 critical units, 23 semi-critical units, other

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126 blocks are categorised as safe units. The Annual replenishable groundwater resources have been estimated as 6.69 Billion Cubic Metres (BCM). The Net Groundwater Availability is 6.07 BCM and the overall stage of groundwater development of the State is 47%. The present guidelines will follow the assessment as on GWRE 2013 till it is revised and officially notified.

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State Groundwater Authority (SGWA) so far has notified five block in Kerala as per G.O (P) No.58/2005/WRD dated 19.11.2005 for the purpose of regulation of groundwater development. More areas notified periodically will be updated in to the list as applicable to these guidelines.

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The District Administrative Heads (District Collector) have been appointed as Authorized Officers by State Groundwater Authority to evaluate proposals as per G.O (Rt) No.1211/WRD dated 31.10.2009 for the Regulation of Groundwater development for various industrial and infrastructure development projects in each district.

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The District administrative heads assisted by the District Level Evaluation Committees (DLEC) in each district under the provisions; checking violations, sealing of groundwater abstraction structures, launching of prosecution against offenders, attending to complaints, etc., as reported by the District officers of GWD in the notified areas. The granting of NOC in the notified areas except for the list of Industries and Infrastructure projects annexed in these guidelines shall be exercised by the District Officers of Groundwater Department, whereas in the non-notified areas the same along with the other cases are to be carried out by the District officers of GWD based on the study report of a Groundwater Scientist.

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These guidelines supersede all the earlier guidelines with effect from 15.04.2018. The guidelines for abstraction of groundwater in Notified/Non-Notified areas for various users are given below.

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2. NOTIFIED AREAS

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Grant of permission for the construction of a new well and conversion of an existing well; only for drinking and domestic purpose shall be carried out by the District officers of GWD and the NOC to abstract groundwater through any energized means will not be accorded for any purpose other than drinking water. In all other cases except the above, if any required, the permission would be granted by the direction of the Authorised

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Officer in consultation with the District Level Evaluation Committee constituted for this purpose. The permission shall be given for conversion of existing abstractions and construction of new abstractions and NOC shall be given for groundwater extraction in the prescribed form. The list of notified areas, are given in Annexure II and also available on the web-site (www.groundwater.kerala.gov.in).

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2.1. Drinking & Domestic purposes :

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Permit for construction of groundwater abstraction structures/ replacement of existing defunct well and NOC for conversion of existing well can be accorded only for drinking and domestic purposes. The existing Building rules and CRZ rules are also applicable to such cases. The Government water supplying agencies should be accorded Permit and NOC as per their requirements. Permits and NOC for infrastructure projects will be considered only after issue of completion certificate from competent Authority as per Govt. norms for drinking and domestic purposes. NOC for groundwater withdrawal will be considered only if Water Supplying Department is not providing adequate water in the area/premises. Proof for this is to be produced from the concerned authority by the applicant.

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2. 1. 1. Individual households

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The conditions for granting the Permit and NOC to individual households in notified areas are given below:

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a. 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.

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b. A certificate from the water supply agency regarding nonavailability of government water supply to the area/individual is to be submitted by the applicant.

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c. 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/filter-point well will be constructed, if any working tube-well/bore-well/filter point 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 III is to be submitted by individual.

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d. The person(s) intending to construct a new tube-well/borewell/filter point-well through a private agency shall seek permission from the District officer, GWD and also obtain other statutory clearances if necessary and intimate the same to the District officer GWD/Authorized officer/ Local Bodies, at least 15 days in advance along With the name and address of the approved drilling agency, which will undertake the construction of the abstraction structure. Authorities/Nodal Agency can ask the user to supply additional information.

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e. The maximum diameter of the bore-well should be restricted to 4.5 inches only, in case of tube-well it should be 6 inch only and the capacity of the pump should not exceed IHP. In case of deep water level (>100m) the capacity of the pump/diameter of the structure will be decided by the Authority based on site specific recommendations.

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f. well/bore-well/filter point-well shall undertake artificial recharge to groundwater through rainwater harvesting in the premises. The prescribed norms as per the Building Rules applicable to all cases and should be verified by the Local Bodies. The exemptions to the above should be obtained from the District officer, Groundwater Department based on the report of a Groundwater Scientist.

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g. The water from the tube-well/bore-well/filter point well will be used exclusively for drinking and domestic purposes only within the premises.

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h. 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 groundwater quality etc., shall be kept for record and are to be provided at the time of inspection.

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i. Any violation of the above conditions will be dealt under the provisions of Groundwater control and Regulation Act 2002.

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1. 2. Other than Individual households

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The list of infrastructure projects, other than individual households is given in Annexure IV. The conditions for granting the NOC to such categories in notified areas are given below.

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a. The construction of any groundwater abstraction structure shall be based on a feasibility study and issue of permit by the District Officer Groundwater Department.

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b. There should be a minimum spacing of 500m for the Groundwater abstraction for Government water supply agencies and exceptions to this should be obtained from the Authorised officer through the approval of DLEC based on the study report of a Groundwater Scientist.

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c. Maximum diameter of the groundwater abstraction structures should be restricted to 150 mm (6 inches) only and capacity of the pump should not exceed 2 HP. In case of tube wells/bore Wells for Government water supply agencies, housing societies, the Well size/dia. & HP of prime mover can be more depending on the groundwater availability and requirement. The Authorised officer in consultation with the advisory committee would decide on standards for the area.

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d. 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 shall confirm to the Authorized officer (chairman of DLEC) with intimation to the District officer, GWD (convenor of DLEC).

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e. Water meter installation in the abstraction structure is mandatory and confirmation of Water meter installation shall be given to the Authorized Officer with a copy to the District Officer, GWD. A separate energy meter also to be installed based on the NOC and should be maintained as per the instruction as required.

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f. The water from the groundwater abstraction structures shall be used only for drinking and domestic purposes.

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g. All details of the drilling like location of well (Lat./Long.), formations encountered, the depth and diameter of the constructed groundwater abstraction structures, type of pipes used, yield of bore well/tube well/ filter point-well (fracture zones encountered/zones tapped) and groundwater quality, etc. have to be furnished to District officer of GWD within 90 days of the completion of the construction by the approved drilling agency.

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f. The permission for the construction of groundwater abstraction structure would be valid for a period of six months from the date of issue of Permit. If he structure is not constructed within validity period, the Permit would be deemed to have been cancelled.

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g. The Permit and NOC issued would be non-transferable.

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h. Permit 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.

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i. Any violation of the above conditions will attract legal action under the provisions of Groundwater Control and Regulation Act, 2002.

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In case if the notified areas are de-notified subsequently, the conditions pertaining to “non-notified areas” shall be followed for new projects, but for the existing projects the restrictions will be continued for another three years or till the renewal of NOC whichever is earlier.

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3. NON-NOTIFIED AREAS

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Permission for the construction of groundwater abstraction structures and NOC for withdrawal of Groundwater in the nonnotified areas will be considered for Industries /Infrastructure / Mining projects as per the criteria given below.

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3.1 Criteria for Industries/Infrastructure/Mining Projects

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3.1.1 Industries

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Safe	Major and medium industries to recycle and refuse at least 30% of the waste water	NOC is groundwater subject to ad recharge to	required for withdrawal option of artificial groundwater
Semi- critical	Major and medium industries to recycle and refuse at least 40% of the waste water	Withdrawal subject to groundwater measures. should not e recharged q	may be permitted undertaking of recharge The withdrawal xceed 200% of the uantity.
Critical	Major and medium industries should fully recycle and refuse at least 75% of the waste water	Withdrawal subject to groundwater measures. should not e recharged q	may be permitted undertaking of recharge The withdrawal xceed 100% of the uantity
Over- exploited	All industries to fully recycle and reuse the waste water	Withdrawal subject to groundwater measures.	may be permitted undertaking of recharge The withdrawal

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should not exceed 50% of the recharged quantity

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Refer section 3.1.1.b for recharge criteria for Water Intensive Industry

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**The groundwater recharge should be implemented within the premises and/or same watershed/assessment unit. Detailed project proposal shall be included along with the application of NOC for groundwater withdrawal.

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Feasibility report for the construction for groundwater abstraction shall be considered by the District Officer, only after the approval of Industrial/Building Permit issued by the competent Authority as per Govt. norms.

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The withdrawal of Groundwater for the construction purpose should be approved by the DLEC based on scientific assessment and pumping test studies. 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.

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3.1.1. (b). Water Intensive Industries

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Industries using groundwater as raw material/water intensive industries shall not be granted NOC for groundwater withdrawal in over exploited and notified areas. A list of different industries categorised as water intensive is given in Annexure V. In Safe, Semi-Critical & Critical areas NOC for groundwater withdrawal is mandatory for these industries as per Section 3.1. However, groundwater withdrawal will be limited as follows:

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Category	Groundwater 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.

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3. 1. 2. Infrastructure projects

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The application for the infrastructure projects would be considered depending on the type of infrastructure project as per the Annexure IV.

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a. Feasibility for the construction for groundwater abstraction shall be considered only after the approval of Building Permit by the competent Authority as per Govt. norms.

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b. NOC for the withdrawal of Groundwater for the construction purpose should be approved by the DLEC based on scientific assessment and pumping test studies.

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c. Rainwater Harvesting/Groundwater Recharging arrangements as per the completion plan of the Building shall be verified by a Groundwater Scientist and should be properly endorsed in the completion Plan submitted before the local Authority upon completion.

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d. 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.

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e. Conjunctive use of Groundwater alone shall be permitted if Water Supplying Agency in the area is not providing adequate water in the area/premises for which a proof from the concerned Authority is to be produced by the applicant.

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f. The quantum of groundwater for usage other than drinking/ domestic shall not exceed 25% of total groundwater abstraction in case of Housing projects/Residential Townships.

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g. Run-off from the entire project area is to be utilized either for artificial recharge to groundwater unless risk of contamination exists or area is water logged or for storage for utilization or both.

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3.1.3. Mining and De-watering projects

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Abstraction of ground water by mining industries intersecting water table for de-watering of mine pit water, and de-watering groundwater for basement construction of buildings, levelling of ground etc., may be permitted subject to the following conditions.

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a. Conditions for recharge and recycle/reuse would be similar to those given in case of industries for withdrawal of groundwater (Section 3.1). Project proponent has to submit mining plan with mine seepage computation/modelling studies carried out by them.

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b. The de-watered 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 of artificial recharge to groundwater, etc.

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That apart, Government of India, Ministry of Jal Shakti (Department of Water Resources, River Development and Ganga Rejuvenation), on the directions of the Hon’ble Supreme Court, in its order dated 10.12.1996 in Civil Writ Petition No.4677 of 1985 ( M.C.Mehta v. Union of India ), and in exercise of the powers under Section 5 of the Environment (Protection) Act, 1986, has issued notification dated 24^th September, 2020, for the purpose of regulating and controlling ground water management and development and to exercise certain powers and functions relating thereto. Relevant portions of the said notification are extracted hereunder:

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“ MINISTRY OF JAL SHAKTI (Department Of Water Resources, River Development And Ganga Rejuvenation) (CENTRAL GROUND WATER AUTHORITY) NOTIFICATION

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New Delhi, the 24^th September, 2020

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S.O. 3289(E) .— WHEREAS, on the directions of Hon’ble Supreme Court vide its order dated the 10^th December, 1996 passed in Civil writ Petition No 4677 of 1985, MC Mehta Vs. Union of India, the Central Government constituted the Central Ground Water Authority (hereafter referred to as the ‘Authority’) vide notification number S.O. 38 (E), dated the 14^th January, 1997 to exercise powers under Section 5 of the Environment (Protection) act, 1986 (29 of 1986) for the purposes of regulation and control of Ground Water

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management and development and to exercise certain powers and perform certain functions relating thereto;

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AND WHEREAS, the Authority has been regulating ground water development and management by way of issuing ‘No Objection Certificates’ for ground water extraction to industries or infrastructure projects or Mining Projects etc., and framed guidelines in this connection from time to time in twenty two States and two Union territories, where ground water development is not being regulated by the State Government Union Territory administration concerned;

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AND WHEREAS, some of the State Governments or, Union territories enacted legislations and issued regulatory directions or orders for regulating ground water development and management;

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AND WHEREAS, the Hon’ble National Green Tribunal, New Delhi vide order dated 15^th April, 2015 in OA Nos. 204/205/206 of 2014 has issued directions to the Authority to ensure that any person operating tube-well, or any means to extract ground water shall obtain permission from the Authority and shall operate the same subject to the law in force, even if such unit is existing unit or the unit is yet to be established;

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AND WHEREAS, the said Hon’ble Tribunal vide its order dated the 09^th July, 2015 in OA Nos. 34 and 37 of 2014 directed all industrial units which are members of the Common Effluent Treatment Plants (CETPs) to approach the Authority through State Pollution Control Board for obtaining ‘No Objection Certificate’ in accordance with the law;

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AND WHEREAS, the aforesaid Hon’ble Tribunal vide order dated the 13^th July, 2017 in OA No. 200 of 2014 directed that every industry should be directed to pay for extraction of such water, that too, subject to the conditions stated in the order permitting such extraction;

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AND WHEREAS, the said Hon’ble Tribunal vide its order dated the 28^th August, 2018 in O.A. Nos. 176 of 2015 and 59 of 2012 respectively directed the Ministry of Water Resources, River Development and Ganga Rejuvenation to forthwith review the existing mechanism so as to ensure effective steps for conserving the groundwater resources;

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AND WHEREAS, in pursuance of the directions of the Hon'ble National Green Tribunal and powers conferred by subsection (3) of Section 3 and Section 5 of the Environment (Protection) Act, 1986 the Authority, with a view to protect the ground water resources had circulated the draft guidelines for grant of ‘No Objection Certificate’ on the 11^th October, 2017 inviting comments and suggestions from all the stakeholders;

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AND WHEREAS, all objections and suggestions received in response to the said draft guideline have been duly considered by the Central Government, the Authority notified the guidelines to regulate groundwater over-exploitation and to conserve the groundwater resources in the country vide notification number S.O.6140(E), dated 12^th December, 2018;

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AND WHEREAS, the aforesaid Hon’ble Tribunal vide order dated the 03^rd January, 2019 in OA No. 176 of 2015 directed that

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the above mentioned notification dated the 12^th December, 2018 may not be given effect to as it is unsustainable if tested on ‘Precautionary Principle, Sustainable development as well as Inter-generational Equity Principles’ and if implemented, will result in fast depletion of groundwater and damage to water bodies and will be destructive of the fundamental right to life under Article 21 of the Constitution of India;

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AND WHEREAS, the said Hon’ble Tribunal vide order dated the 11^th September, 2019 constituted a committee to deliberate on steps for preventing depletion of groundwater, robust monitoring mechanism against unauthorised extractions and fulfillment of ‘No Objection Certificate’ conditions, environment compensation etc., and to submit a report;

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AND WHEREAS, the aforesaid committee submitted the report along-with draft guidelines to regulate groundwater extraction and groundwater conservation in Hon’ble Tribunal on the 16^th March, 2020:

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AND WHEREAS, the above said Hon’ble Tribunal vide order dated the 20^th July, 2020 directed to comply with certain points for sustainable groundwater management while issuing ‘No Objection Certificates’ to commercial establishments by the Authority;

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Now therefore, in pursuance of the directions of Hon’ble National Green Tribunal and the powers conferred by subsection (3) of Section 3 read with Section 5 of the Environment (Protection) Act, 1986 (29 of 1986), the Department of Water

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Resources, River Development & Ganga Rejuvenation, hereby notifies the guidelines to regulate and control groundwater extraction in the country in supersession to this Ministry notification vide S.O. 6140 (E), dated the 12^th December, 2018 as per the Schedule below:

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SCHEDULE

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Guidelines to regulate and control ground water extraction in India (with immediate effect) INDEX

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XX XXX XXXX

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Preamble and Background :

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On the directions of Hon’ble Supreme Court vide its order dated 10^th December, 1996 passed in Civil Writ Petition No 4677 of 1985, MC Mehta Vs Union of India, the Central Government had constituted the Central Ground Water Board as Authority vide notification number S.O.38 (E), dated the 14^th January, 1997 to exercise powers under sub section (3) of Section 3 of the Environment (Protection) act, 1986 (29 of 1986) for the purposes of regulation and control of Ground Water Management and Development and to exercise certain powers and perform certain functions as per the said Act.

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The Authority has been regulating ground water development and management by way of issuing ‘No Objection Certificates’ for ground water extraction to industries or infrastructure projects or Mining Projects etc., and framed guidelines in this connection from time to time applicable in twenty two States and two Union territories, where ground water development is not being regulated by the State Government and Union territory administration concerned.

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To have sustainable management of water resources in the country groundwater abstraction guidelines have been prepared to regulate groundwater extraction and conserve the scarce groundwater resources in the country.

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These guidelines will come into force with immediate effect from the date of Gazette Notification and will supersede all earlier guidelines issued by the Central Ground Water Authority (CGWA). These guidelines will have pan India applicability. Ground water abstraction in States/ Uts (which are not regulating ground water abstraction) shall continue to be regulated by Central Ground Water Authority.

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Further, wherever States/ Uts have come out with their own groundwater abstraction guidelines, which are inconsistent with the CGWA guidelines, the provisions of CGWA guidelines will prevail. However, in case the guidelines followed by such States/ Uts contain some more stringent provisions than CGWA guidelines, such provisions may also be given effect to by the States/Uts Authorities in addition to those contained in the CGWA guidelines. States may be at liberty to suggest additional conditions/criteria based on the local hydro-geological situations which shall be reviewed by CGWA/Ministry of Jal Shakti, Government of India before acceptance.

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All new/existing industries, industries seeking expansion, infrastructure projects and mining projects abstracting ground water, unless specifically exempted under Para 1.0 below, will be required to seek No Objection Certificate from Central Ground Water Authority or, the concerned State / UT Ground Water

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5.1 Rates of Ground water abstraction/restoration charges xxxxxxxxxxxxxxxxxxxxx

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I. Drinking and domestic use for residential apartments/group housing societies/Government water supply agencies in Urban areas.

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xxxxxxxxxxxxxxxxxxxxxxx

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II. Packaged Drinking Water Units

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xxxxxxxxxxxxxxxxxxxxxxxxx

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III. Other Industries & infrastructure projects

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xxxxxxxxxxxxxxxxxxxxxxxxx

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IV. Mining projects

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xxxxxxxxxxxxxxxxxxxxxxx

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6.0 Bulk Water Supply

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xxxxxxxxxxxxxxxxxxxx

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7.0 Abstraction of Saline ground water

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Abstraction of saline ground Water in areas having either saline ground water at all depths or pockets of saline ground Water in an otherwise fresh Water area for use by industries/ dewatering by infrastructure/ mining projects including those located in overexploited areas would be encouraged. Such industries shall be exempted from paying ground Water abstraction charges.

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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 CGWA in their website. However, due care shall be taken in respect of disposal of effluents by the units so as to protect the Water bodies and the aquifers from pollution.

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Detailed guidelines in this regard shall be prepared and issued separately.

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8.0 Protection of Wetland Areas

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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

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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.

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9.0 General compliance conditions in No Objection Certificate

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i. Installation of digital water flow meter (conforming to BIS/ IS standards) having telemetry system in the abstraction structure(s) shall be mandatory for all users seeking No Objection Certificate and intimation regarding their installation shall be communicated to the CGWA Within 30 days of grant of No Objection Certificate through the web-portal.

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ii. Proponents shall mandatorily get water flow meter calibrated on from an authorized agency once in a year.

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iii. Proponents shall install roof top rain water harvesting & recharge systems in the project area.

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iv. Proponents shall pay Ground Water Abstraction/ Restoration Charges based on quantum of ground water extraction as applicable as per the rates given in Section 6.

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v. Construction of purpose-built observation wells (piezometers) for ground water level monitoring shall be mandatory as per Section 15. Water level data shall be made available to CGWA through web portal. Detailed guidelines for construction of piezometers are given in Annexure-II .

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vi. Proponents shall monitor quality of ground water from the abstraction structure(s) once in a year. Water samples from bore Wells/ tube wells / dug wells shall be collected during April/May every year and analysed in 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.

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vii. If the existing well becomes defunct due to mechanical failure within the validity period of No Objection Certificate, the user can construct a replacement well under intimation to CGWA on web portal. The defunct well shall be properly sealed ( Refer Annexure VII ). The user will be required to submit documentary proof in this

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regard. However, if the existing abstraction structures fails to yield water and he proponent desires to drill another tubewell in the same premises, prior permission of the Authority shall be required. If the replacement well is to be drilled in some different place, the proponent shall obtain fresh No Objection Certificate.

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Viii. Wherever feasible, requirement of water for greenbelt (horticulture) shall be met from recycled / treated waste water.

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ix. In case of change of ownership, new owner of the industry will have to apply for incorporation of necessary changes in the No Objection Certificate with documentary proof within 60 days of taking over possession of the premises.

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10.0 Monitoring of compliance of No Objection Certificate Conditions

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To monitor the compliance of No Objection Certificate conditions, Central Ground Water Authority and State/ UT Ground Water Authorities shall take the following steps:

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a. Suitable MIS will be developed for compliance monitoring.

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b. District Collectors/Deputy Commissioners (DCs) /District Magistrates (DMs) are authorized to take enforcement measures like sealing of unauthorized ground water abstraction structures, disconnection of electricity, launching of prosecution against those violating the No Objection Certificate conditions and taking action for imposition of Environmental Compensation.

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c. Technical officers of CGWB/ CGWA and State groundwater organizations are authorized to take actions with respect to monitoring and periodic inspections with the approval of competent authority.

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d. In case of violation of any of the No Objection Certificate conditions, the proponents shall be liable to pay the penalties as per Section 16 .

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11.0 Renewal of No Objection Certificate

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No objection certificate shall be renewed periodically, subject to the compliance of the conditions mentioned therein:

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i. The applicant shall apply for renewal of No Objection Certificate at least ninety days prior to expiry of its validity.

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ii. Application for renewal of No Objection Certificate shall be accompanied by the Compliance Report.

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iii. Before granting renewal, Central Ground Water Authority or State/ Ut Authority shall satisfy itself that the conditions of No Objection Certificate have been complied with.

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iv. In case of change in category of the assessment unit, renewals would be granted with conditions as laid down for new category.

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v. No Objection Certificate will be renewed for the terms specified for various uses as follows:

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Category	Use	Term of renewal
Critical, Semi Critical	Infrastructure projects for drinking & domestic use and urban Water Supply Agencies.	5 years
and	Industries	3 years
Safe	Mines	2 years
Over exploited	All users in 'Over-exploited areas'	2 years

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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.

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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

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from the date of expiry of No Objection Certificate till No Objection Certificate is renewed by the competent authority.

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12.0 Extension of N0 Objection Certificate

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If the proponent is unable to construct the well(s) during the validity period of No Objection Certificate for genuine reasons, the proponent will have to apply for extension of No Objection Certificate. Application for extension should be supported by documents justifying the reasons for delay. Other conditions for grant of extension of No Objection Certificate will be the same as that for fresh No Objection Certificate.

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Extension of No Objection Certificate will be granted for a maximum period of two years. No further extension will be granted after the

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expiry of the extended period. In that case, the applicant will have to apply afresh for grant of No Objection Certificate.

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13.0 Delegation of powers against illegal groundwater withdrawal

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Central Ground Water Authority has appointed the District Magistrate/ District Collector/ Sub Divisional Magistrates of each Revenue District/Sub division as Authorized Officers, who have been delegated the power to seal illegal wells, disconnect electricity supply to the energized well, launch prosecution against offenders etc. including grievance redressal related to ground water in their respective jurisdictions.

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In order to further decentralize and strengthen the monitoring and compliance mechanism as per the guidelines, officials of concerned Departments of Revenue and Industries of the States/Uts shall be appointed as Authorised Officers in consultation with the State/Ut Governments.

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A copy of the No Objection Certificate issued by the CGWA in the No Objection Certificate Application Portal (NOCAP) will be forwarded to the respective District Magistrate/ District Collector. In case of any violation of the directions of Central Ground Water Authority and non-fulfillment of the conditions laid down in the No Objection Certificate, the Authorised Officers will file appropriate Petition/Original Application etc., under Sections 15 to 21 of the Environment (Protection) Act, 1986 in appropriate Courts.

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14.0 Ground Water Level Monitoring

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All the project proponents (drawing ground water more than 10 cum/d) have to mandatorily construct Piezometers (observation Wells) Within their premises for monitoring of the ground water levels. Such a mechanism of compliance conditions has been made to ensure that every month the ground water level in the project area can be monitored and observed. In this regard the necessary criteria for monitoring of water levels through piezometers by the project proponents is given in Table 14.1.

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The piezometer shall be suitably located to ensure that zone of aquifer tapped in the piezometer is the same as that of the pumping well.

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15.0 Environmental Compensation

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Extraction of ground water for commercial use by industries,

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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.

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The norms prescribed by Central Pollution Control Board (CPCB) shall be utilized for calculating the Environmental compensation as mentioned below:

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ECGW = Ground water consumption per day x Environmental Compensation rate (ECRGW) x No. of days x Deterrence factor

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where ground Water consumption is in m3/day and ECRGW in Rs./ cum

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15.1 Rates of Environmental Compensation

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16.0 Provision of Penalty

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17.0 Other important Conditions (Applicable to all):

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i. Sale of ground water by a person/ agency not having valid no objection certificate from CGWA/State Ground Water Authority is not permitted.

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ii. In infrastructure projects, paved/parking area must be covered with interlocking/perforated tiles or other suitable measures to ensure groundwater infiltration/harvesting.

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m. 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.

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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.

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v. No application shall be entertained without supporting documents as specified in relevant sections.

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vi. Abstraction structure(s) should be located inside the premises of project property.

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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.

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viii. Processing fee prescribed, if any, from time to time shall be charged for various services.

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Note :

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Guidelines are subject to modification from time to time.

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In case of any discrepancy between Hindi and English versions of this document including the annexures, the English version shall prevail.

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Annexure I

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Estimation of Water Requirements for drinking and domestic use (Source: National Buiding Code 2016, BIS)

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Annexure II Guidelines for construction of Piezometers and monitoring of Ground Water Levels and Quality

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Piezometer is a borewell/tubewell used only for measuring the Water level by lowering a tape/sounder or automatic / digital water level measuring equipment. It is also used to take water sample for water quality testing whenever needed. General guidelines for installation of piezometers are as follows:

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The piezometer is to be installed/constructed at the

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minimum distance of 50 m from the pumping Well through which ground water is being withdrawn. The diameter of the piezometer should be about four inches to six inches.

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The depth of the piezometer should be the same as that

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of the pumping Well from Which ground water is being abstracted. If, more than one pumping Wells are constructed tapping aquifers at different depths, more than one piezometers shall be required to be constructed tapping different aquifers as in the pumping wells.

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The measurement of Water level in piezometer should

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be taken, only after the pumping from the surrounding tubewells has been stopped for about four to six hours.

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The ground water quality has to be monitored once in a

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year during pre-monsoon (Apri1/ May) period by industries and mines drawing ground water. Samples of ground water should be analyzed from NABL accredited laboratory.

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A permanent display board should be installed at

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Piezometer/ Tubewell site for providing the location, piezometer/ tubewell number, depth and Zone tapped of piezometer/tubewell for standard referencing and identification.

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Any other site specific requirement regarding safety and

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access for measurement may be taken care off.

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Annexure III

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Measures to be adopted to ensure prevention from pollution in the plant premises of polluting industries/projects

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It has been observed that ground water in and around polluting industries like Tannery, Slaughter Houses, Dye, Chemical, Coalwashery, other hazardous units, etc., is polluted. In order to prevent further deterioration of ground water quality, it is essential to take all necessary measures for well head protection.

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All industries/ projects falling under this category are hereby directed to follow the under mentioned procedure both for existing and new category.

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No tube well/ bore well / dug well should be constructed in the vicinity of the processing unit. Tube well/ bore well should be constructed at the place which is hygienically maintained.

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Only Mild Steel pipe should be used for assembly/ casing and PVC (Poly Vinyl Chloride) or similar pipes should not be used. The tube well/ bore well having PVC or similar pipes should be abandoned and filled back.

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Around the tube well/ bore well, RCC (Reinforced Concrete Cement) grouting of 3 meters (length) x 3

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meters (width) x Z meters (depth) must be provided. The pipe of the tube well/ bore well must be raised 1 meter above ground level (1 magl). The tube well/ bore well must be surrounded by RCC wall of 0.5 meter height and 1.5 meter depth to prevent any surface contamination to enter the constructed tube well/ bore well. Plan/Sectional diagram is enclosed for reference (Appendix I and 2).

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The tube well/ bore well must be fitted with NRV (Non Return Valve) in order to ensure that the constructed tube well/ bore well is exclusively used for abstraction of ground water only.

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At no point of time there should be any injection of any water or fluid into the constructed tube well/ bore well/ Piezometer.

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The industries/ projects under this category should not implement any recharge measures within the plant premises.

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Any tube well/ bore well located/ constructed in the vicinity of STP (Sewage Treatment Plant) or ETP (Effluent Treatment Plant) should be abandoned and filled back.

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The piezometer to be constructed for monitoring purpose should follow the same procedure as that for tube well/ bore well for such industries/ projects.

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Annexure IV

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Outline of hydro-geological Report for obtaining No Objection Certificate for Industries

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Annexure V

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Format of the Report on ground water conditions (for mining projects)

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Annexure VI

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Indicative list of Infrastructure projects

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Annexure VII

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Supreme Court Order in Civil Writ petition 36 of 2009 regarding measures for prevention of fatal accidents of small children due to their falling into abandoned bore wells and tube wells

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Annexure VIII

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List of States/Union territories where ground water extraction is being regulated by Central Ground Water Authority

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Andaman and Nicobar Islands

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Assam

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Arunachal Pradesh

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Bihar

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Chhattisgarh

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Dadra and Nagar Haveli and Daman and Diu

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Gujarat

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Haryana

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Jharkhand

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Madhya Pradesh 11. Maharashtra 12. Manipur 13. Meghalaya 14. Mizoram 15. Nagaland 16. Odisha 17. Punjab 18. Rajasthan 19. Sikkim 20. Tripura 21. Uttar Pradesh 22. Uttarakhand 23. Andhra Pradesh (only mining projects)

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Telangana (only mining projects)

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Annexure IX

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Glossary of technical terms used

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Annexure X Annual water audits by the Industries (Source - CII)

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The abovesaid notification of the Government of India deals with

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various situations in regard to the requirement of the No Objection Certificate, registration of drilling rigs, wells for drinking and domestic use for residential apartment/group housing societies, Government water supply agencies in urban areas, agricultural sector, commercial and industrial uses, application for NOC along with documents, ground water abstraction/restoration charges and various other aspects. The Central Ground Water Authority has also issued guidelines for issuance of NOC for

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ground water withdrawal and, inter alia , it deals with over-exploited area vis-a-vis issuance of NOC.

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Apart from the above, the Disaster Management Act, 2005, empowers the Central, as well as State Governments, for taking appropriate action, in order to prevent the disasters, providing drinking water, essential provisions, health care and services in an affected area, apart from the power to take such other action, as may be necessary for the proper administration and management of mitigating disasters, in contemplation of the provisions of Disaster Management Act, 2005. The Act enables the Central and State Governments, District Administration and local authorities, to prepare a management plan, in order to tackle any emergency situation.

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Taking into account the provisions of various enactments and Government notifications discussed above, we had occasion to consider the implications of unregulated and unprecedented withdrawal of the ground water in W.P.(C) No.31390 of 2018, which was disposed of by judgment dated 10.11.2021, in which, we have directed the State Government, as well as the District Administration and local bodies, to ensure that commercial establishments dealing with water supply and

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other bulk abstraction of ground water are operated only in terms of the Act, 2002, Rules, 2004 and other notifications/guidelines issued by the Central and State Governments under the Disaster Management Act, 2005 and others, and the provisions of the Kerala Municipality Act, 1994, Kerala Municipality Building Rules, 2019, Kerala Panchayat Raj Act, 1994 and the buildings rules thereto. In our judgment dated 10.11.2021, we have also directed the State, and District Administration to identify as to whether the provisions of Act, 2002 and the Rules, 2004 are to be extended to other areas by conducting periodical inspections. We are of the view that such an exercise shall be undertaken by the respective District Administration, in order to ensure that the ground water, consequent to the illegal withdrawal/abstraction is not depleted.

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In the light of the above discussion, this writ petition is disposed of with the following directions:

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A) The State Government, District Administration, and local authorities, shall ensure that the ground water is withdrawn by the commercial establishments and other bulk water supply operators only after securing necessary clearances and licenses from the statutory authorities.

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B) The District Administration and Local Self Government Institutions shall ensure that Wells are not dug up, without

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securing permits/ licenses, in accordance with the provisions of Kerala Municipalities Act, 1994, Kerala Panchayat Raj Act, 1994, and the rules framed thereunder.

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C) The authority constituted under the Kerala Ground Water (Control & Regulation) Act, 2002 and the Rules, 2004 shall conduct periodical inspections, in order to see whether the application of the Act and rules for the registration of the existing wells, bore wells, rigs etc., can be extended to other areas, by including them in the notified area.

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D) Whenever any illegal abstraction of ground water is found, appropriate and suitable action shall be taken to prosecute such persons, without fail.

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E) Necessary steps shall be taken in order to ensure that even the licensed commercial/registered establishments are not extracting the ground water to an unprecedented level, so as to protect the interest of the larger community and to ensure availability of water in the nearby Wells, and

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F) Respondents shall take all other effective, stringent regulatory, and controlling measures, in order to curb the exploitation of ground water, in any manner of whatsoever nature.

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G) Vehicles carrying water shall be registered with the local bodies or the competent authorities.

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The above directions be carried out in letter and spirit. Appropriate directions be given by the Heads of the departments to ensure compliance, monitoring and periodical review.

Sd/-

S. MANIKUMAR

CHIEF JUSTICE

Sd/- SHAJI P. CHALY JUDGE

krj

WP(C):11324/2018

APPENDIX

ANNEXURE-C1: COPY OF PAPER REPORT DATED 22-03-2018 PUBLISHED IN THE MALAYALA MANORAMA DAILY. ANNEXURE C2: COPY OF PAPER REPORT DATED 22-03-2018 PUBLISHED IN THE NEW INDIAN EXPRESS DAILY. ANNEXURE C3: COPY OF PAPER REPORT DATED 22-03-2018 PUBLISHED IN THE HINDU DAILY.

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RESPONDENTS' ANNEXURES :-

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ANNEXURE R7(A): TRUE COPY OF THE TABLE-1. ANNEXURE R7(B): TRUE COPY OF THE TABLE-2.

¶481

ANNEXURE R7(C): TRUE COPY OF THE GRAPH PLOTTING THE TOTAL LIVE STORAGE POSITION SHOWING PRE-MONSOON AND POST -MONSOON DATA. ANNEXURE-R7(D): TRUE COPY OF THE DETAILED STATEMENT OF THE MEETING CONVENED BY THE DISTRICT LEVEL EVALUATION COMMITTEE. ANNEXURE-R7(E): TRUE COPY OF THE PROPOSAL OF THE DIRECTOR OF GROUND WATER AUTHORITY FOR VARIOUS POST DATED 19.06.2020. ANNEXURE-R7(F): TRUE COPY OF THE GO(MS) NO.59/2014/WRD DATED 27.06.2014. ANNEXURE-R7(G): TRUE COPY OF THE DETAILED STATEMENT REGARDING THE ACTION TAKEN AGAINST THE OWNERS OR USERS OF WELL CONTROVENING THE PROVISIONS OF THE KERALA GROUND WATER (CONTROL & REGULATION) ACT, 2002.

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//TRUE COPY//

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P.A. TO C.J.

Suo Motu v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Suo Motu v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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