Saturday, May 17, 2014

Comments on The Tamil Nadu Groundwater (Development and Management) Act, 2003

http://archives.deccanchronicle.com/sites/default/files/styles/article_node_view/public/03GROUND%20WATER_0_0_0_0_0_0_0_0_0_0_0_0_0_0_0_0_0.jpg The Tamil Nadu Groundwater (Development and Management) Act, 2003  has been repealed by  the Tamil Nadu Ordinance No.4 of 2013 dated 14th September, 2013, where under, the Tamil Nadu Groundwater (Development and Management) Act, 2003 is now sought to be repealed. The ordinance is called as the Tamil Nadu Groundwater (Development and Management) Repeal Ordinance, 2013. The Explanatory statement reads as under:

"The Tamil Nadu Groundwater (Development and Management) Act, 2003 was enacted taking into consideration the circumstances prevailed in the year 2003. However, in the past 10 years, the following factors have drastically changed the scenario:-

(i) Certain definitions like marginal and small farmers, etc., have not been clearly defined to carry out the purport of the Act preventing groundwater drawal for Agricultural purposes and thereby causing hardship to farmers.

(ii) The people at large are to be ensured minimum potable water from groundwater sources when other sources are not sufficient especially in a drought affected year.

(iii) The provisions in the Act require that all individuals should be registered with the Groundwater Authority and licence should be obtained by all persons having over 1 Horse Power motor. If the Act in the present form was implemented and groundwater was not allowed to be tapped, it would have led to a public outcry.

(iv) Since 2003, the Municipal Corporations like Chennai, Coimbatore, Madurai, etc., have expanded, Piped water supply is not adequately available in the extended portions. Therefore, for supply to households by the Corporations and Private lorries, tapping of groundwater is being resorted to. As per the Act, a permit has to be obtained for transport of groundwater by means of lorry, trailer etc., from the notified areas for any purpose. This would result in unnecessary difficulties to the general public as each and every lorry or trailer in the State has to obtain a permit from the State Groundwater Authority even for supply of drinking water causing difficulties to the general public.

(v) The manner in which the drawal of groundwater has to be regulated for construction of multistoried buildings and for commercial exploitation of water, where water is used as raw material has not been addressed in the Act."

The  Madras High court has issued directions based on government  G.O.Ms.No.52, Public Works  Department, dated 02.03.2012 directing the general public approach the authorities of the Public Works Department for necessary approval  for commercial usage of ground water based on the category to which they fall.

The power of Revenue Department has been taken away and they no longer can take cognizance of illegal ground water trade.  Even after this judgement may revenue authorities with out any legal mandate have taken action with the help of police.

<<click to download full judgement>>

<< click to download  G.O.Ms.No.52, Public Works (R2) Department, dated 02.03.2012 >>

Judgement :

In the High Court of Judicature at Madras

Dated: 18.09.2013

Coram

The Honourable Mrs.JUSTICE CHITRA VENKATARAMAN

and

The Honourable Mr.JUSTICE T.S.SIVAGNANAM

Writ Appeal Nos.923 to 926 of 2009, W.P.Nos.23116 of 2006, 23896 to 23900 of 2006, 4711 of 2004 and 12375 of 2008 & Connected Miscellaneous Petitions

Writ Appeal Nos.923 to 926 of 2009:

New Tirupur Area Development Corporation Ltd.,

represented by its Authorised Signatory

having its office at 'Anurag',

No.15, Murray's Gate Road,

Alwarpet, Chennai 600 018. .... Appellant in the above W.A.s

Vs.

1. Tmt. K.Poomani .... Respondent in W.A.Nos.923 & 924/2009

1. Sri.K.Paramasivam .... Respondent in W.A.Nos.925 & 926/2009

2. The Revenue Divisional Officer,

Tiruppur, Coimbatore District.

3. The Inspector of Police,

Tiruppur Rural Police Station,

Coimbatore District.

4. The Secretary,

Government of Tamil Nadu,

Public Works Department (Groundwater),

Fort St. George, Chennai 600 009.

.... Respondents in W.A.Nos.923 to 926 of 2009

5. KRNR Aqua Industries,

rep. by its Proprietor,

Opp. Jaya Theatre,

Mallaooppampatti Village,

Ayyamperumampatti Post,

Salem 636 005.

(R4 impleaded vide order dated 28.7.2009,

R5 impleaded vide order dated 1.7.2013 &

R6 impleaded vide order dated 18.9.2013)

.... Respondents in W.A.No.923 of 2009

6. M/s.Kamala Corporation,

rep. by its Proprietor,

S.Pazhamalai, No.353, Main Road,

Pennadam 606 105

Cuddalore District.

(R4 impleaded vide order dated 28.7.2009,

R5 impleaded vide order dated 1.7.2013 &

R6 impleaded vide order dated 18.9.2013)

.... Respondents in W.A.Nos.923 & 926 of 2009

APPEALs under Clause XV of the Letters Patent against the order dated 12.1.2009 made in W.P.M.P.No.2 of 2008 in W.P.No.25352 of 2008; W.P.No.25352 of 2008; W.P.M.P.No.2 of 2008 in W.P.No.25353 of 2008; W.P.No.25353 of 2008 on the file of this Court.

Writ Petition Nos.23116, 23896 to 23900 of 2006:

Tmt.Rukmani .... Petitioner in W.P.No.23116 of 2006

N.Eswaramoorthy .... Petitioner in W.P.No.23896 of 2006

N.Manonmani .... Petitioner in W.P.No.23897 of 2006

K.Narayanasamy .... Petitioner in W.P.No.23898 of 2006

O.Subramanian .... Petitioner in W.P.No.23899 of 2006

Tiruppur Water Lorry Owner Association,

Regd. No.3/2006,

73/3, Thanner Pandal Colony,

Avinashi Road, Tiruppur 641 652

rep. by its Chairman

R.M.Vadivel

.... Petitioner in W.P.No.23900 of 2006

Vs.

1. The Commissioner,

Tiruppur Municipality,

Tiruppur.

2. The Collector,

Coimbatore District,

Coimbatore.

.... Respondents in the above W.Ps

PETITIONs under Article 226 of The Constitution of India praying for the issuance of Writ of Mandamus forbearing the respondents from obstructing the supply of water taking from the borewell of the petitioners situated in S.No.96/2B2, Ganapathypalayam Village, Palladam Taluk; S.No.518 in 19A Rakkiapalayam Village, Majara Vijayapuram, Tiruppur Taluk; S.No.75/2 in Naranapuram Village Palladam Taluk; S.No.455/3D in 19A, Rakkiapalayam, Nallur Village, Tiruppur Taluk; S.No.369/1B, Ganapathypalayam Village, Palladam Taluk, through tanker lorries for domestic and industrial purposes in and around Tiruppur and Palladam by the petitioners.

Writ Petition No.4711 of 2004:

N.Ramamurthy

.... Petitioner

Vs.

1. The District Collector,

Coimbatore District,

Coimbatore.

2. The Tahsildar,

Palladam Taluk, Palladam,

Coimbatore District.

3. The Asst. Engineer,

Tamil Nadu Electricity Board,

Kulathupalayam, Palladam Taluk,

Coimbatore District.

.... Respondents

PETITION under Article 226 of The Constitution of India praying for the issuance of Writ of Mandamus forbearing the respondents from preventing the petitioner from taking water from his borewell situated in S.F.no.54/3 of Karaipudur Village, Palladam Taluk, Coimbatore District and transporting the water through the lorry to his Banian factory viz., 'Saranya Colours' near the Tiruppur situated in Kunnagalapalaym, Chinnakarai, Arulpalayam Post, Palladam Taluk, Coimbatore District.

Writ Petition No.12375 of 2008:

Appusamy Gounder .... Petitioner

Vs.

1. The Revenue Divisional Officer,

Tiruppur, Coimbatore District,

2. The Inspector of Police,

Palladam Police Station,

Palladam Taluk,

Coimbatore District.

3. New Tirupur Area Development Corporation Ltd.,

represented by its Authorised Signatory

having its office at 'Anurag',

No.15, Murray's Gate Road,

Alwarpet, Chennai 600 018. .... Respondents

PETITION under Article 226 of The Constitution of India praying for the issuance of Writ of Mandamus forbearing the respondents from obstructing the supply of water taking from the open well of the petitioner situated in S.No.386 in 30, Karaipudur Village, Palladam Taluk, Coimbatore District for domestic and industrial purposes in and around Tiruppur and Palladam by the petitioner.

For Appellant in W.A.Nos.923 to 926 of 2009: Mr.S.Raghunathan

For R1 in W.A.Nos.923 to 926 of 2009 and for Petitioner in W.P.Nos.23116 of 2006, 23896 to 23900 of 2006, 4711 of 2004 and 12375 of 2008 : Mr.S.Doraisamy

For R2 to R4 in W.A.Nos.923 to 926 of 2009 & For Respondents in W.P.Nos.23116 of 2006 23896 to 23900 of 2006, 4711 of 2004 and 12375 of 2008 :Mr.A.L.Somayaji, Advocate General Assisted by Mr.R.Ravichandran, AGP Mr.P.Karthikeyan, G.A.

For R5 in W.A.No.923 of 2009: Mr.A.S.Rajkumar

For R6 in W.A.Nos.923 & 926 of 2009: Mrs.Hema Sampath, S.C. For M/s.K.V.Muthuvisakan

-----------------

C O M M O N J U D G M E N T

(Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.)

The present Writ Appeals are filed by New Tirupur Area Development Corporation Limited, who sought to implead itself in Writ Petitions filed by one Poomani in W.P.No.23532 of 2008 and one Paramasivam in W.P.No.25353 of 2008. The said Writ Petitions were filed before this Court for issuance of writ of mandamus forbearing the respondents therein from obstructing the supply of water taking from the open well of the petitioners through tanker lorries for domestic and drinking purposes in and around Tiruppur and Palladam by the petitioners.

2. Learned single Judge rejected the impleading petitions filed by the Writ Appellant taking the view that for deciding the issue, the presence of the impleading party was not at all necessary. Thus, the petitions to implead the Writ Appellant were dismissed. Aggrieved by this, Writ Appeal Nos.925 and 926 of 2009 are filed before this Court. Apart from this, the Writ Appellant also filed Writ Appeals as against the main order passed in W.P.Nos.25352 and 25353 of 2008, wherein learned single Judge, by order dated 12.01.2009 held that in the absence of any order issued by the Government under Section 9 of the Tamil Nadu Groundwater (Development and Management) Act 2003, neither the Revenue Authorities nor the Police Authorities got any power to obstruct the petitioner from drawing ground water from open wells and bore wells and transporting the same. Learned single Judge also pointed out that the order would not stand in the way of the Government issuing appropriate order under Section 9 of the said Act.

3. It is seen from the averment made in the affidavit filed by Paramasivam - Writ Petitioner in W.P.No.25353 of 2005 that on account of the development of knit wear industries resulting in serious set back in the agricultural activity in and around Tiruppur and leading to the shortage of manpower, the petitioner and other similarly placed persons had started selling water to the dyeing factories. However, with the formation of New Tiruppur Area Development Corporation Limited, wherein a Scheme was introduced for drawing water from Bhavani river to Tiruppur for the industrial purpose only, the petitioner felt that his business got offended. Apart from that, the introduction of the Tamil Nadu Groundwater (Development and Management) Act, 2003 to regulate the development and management of groundwater, which was yet to be notified, was further seen as an obstruction to the business. He contended that for sinking a well or bore well, no permission was necessary from the authorities. However, on instruction from the Revenue Divisional Officer, the Inspector of Police started obstructing the lorries taking water from the well and supplying the same to the dyeing factories. Hence, the petitioner approached this Court for a writ of mandamus to forbear the respondents from obstructing the supply of water taken from the open well of the petitioner.

4. In the background of the said contention and with the New Tiruppur Area Development Corporation Limited not being a main party in the Writ Petition, the present appellant filed a petition in M.P.No.2 of 2008 contending that the impleading party was created as a special purpose vehicle under the support of Government of Tamil Nadu to implement the project on drawing water from Bhavani River to Tiruppur, which would not only be beneficial for the public at large and to the industries located in and around Tiruppur but also for the supply of drinking water to the Tiruppur township as well as to the villages in and around Tiruppur. Since the project was implemented at enormous cost, the petitioner thought it fit to move the Court for impleading itself in the Writ Petitions. The appellant contended that on account of the use of groundwater for industrial purpose, the purpose for which the impleading party was constituted would be totally defeated; hence, the appellant had to be impleaded as party and heard in the Writ Petition.

5. As already pointed out, learned single Judge rejected the impleading petitions. The appellant filed Writ Appeals against this order and as well as against the order in the Writ Petitions stating that the Authorities had no jurisdiction to obstruct anybody from drawing water. It is seen further that this Court passed an interim order on 31.01.2011 in the Writ Appeals, wherein the Division Bench of this Court directed the State Government not to allow any person to draw and sell the groundwater until the Tamil Nadu Groundwater (Development and Management) Act, 2013 was notified. This led to the impleading of the sixth respondent M/s.Kamala Corporation in the Writ Appeals. Since one of the contentions raised by the Writ Petitioner and other impleading party related to the non-notification of the Tamil Nadu Groundwater (Development and Management) Act, 2003 and hence on the jurisdiction of the Authorities to obstruct anyone from drawing water from the wells to trade therein, we requested the learned Advocate General to appear in this matter to get proper instructions. Accordingly, learned Advocate General has placed before this Court the copy of the Tamil Nadu Ordinance No.4 of 2013 dated 14th September, 2013, where under, the Tamil Nadu Groundwater (Development and Management) Act, 2003 is now sought to be repealed. The ordinance is called as the Tamil Nadu Groundwater (Development and Management) Repeal Ordinance, 2013. The Explanatory statement reads as under:

"The Tamil Nadu Groundwater (Development and Management) Act, 2003 was enacted taking into consideration the circumstances prevailed in the year 2003. However, in the past 10 years, the following factors have drastically changed the scenario:-

(i) Certain definitions like marginal and small farmers, etc., have not been clearly defined to carry out the purport of the Act preventing groundwater drawal for Agricultural purposes and thereby causing hardship to farmers.

(ii) The people at large are to be ensured minimum potable water from groundwater sources when other sources are not sufficient especially in a drought affected year.

(iii) The provisions in the Act require that all individuals should be registered with the Groundwater Authority and licence should be obtained by all persons having over 1 Horse Power motor. If the Act in the present form was implemented and groundwater was not allowed to be tapped, it would have led to a public outcry.

(iv) Since 2003, the Municipal Corporations like Chennai, Coimbatore, Madurai, etc., have expanded, Piped water supply is not adequately available in the extended portions. Therefore, for supply to households by the Corporations and Private lorries, tapping of groundwater is being resorted to. As per the Act, a permit has to be obtained for transport of groundwater by means of lorry, trailer etc., from the notified areas for any purpose. This would result in unnecessary difficulties to the general public as each and every lorry or trailer in the State has to obtain a permit from the State Groundwater Authority even for supply of drinking water causing difficulties to the general public.

(v) The manner in which the drawal of groundwater has to be regulated for construction of multistoried buildings and for commercial exploitation of water, where water is used as raw material has not been addressed in the Act."

6. Paragraph No.2 of the Explanatory Statement further states that the Tamil Nadu Groundwater (Development and Management) Act, 2003 has to be comprehensively changed taking into account the present demand, need and supply. Consequently, while repealing the Tamil Nadu Groundwater (Development and Management) Act, 2003, the note further expressed its decision to regulate the drawing of water on commercial basis.

7. Learned senior counsel appearing for the impleading party viz., M/s.Kamala Corporation in Writ Appeal Nos.923 and 926 of 2009 placed before us G.O.(Ms) No.52, Public Works (R2) Department dated 02.03.2012. The letter written by the Chief Engineer, State Ground and Surface Water Resources Data Centre, Tharamani to the Secretary to Government dated 02.07.2013 points out that it is an executive order passed in the interests of the State, for equitable availability of groundwater to every one and all the water connecting Departments were consulted on this subject.

8. On a reading of G.O.Ms.No.52, Public Works (R2) Department, dated 02.03.2012, we find that the Chief Engineer, State Ground and Surface Water Resources Data Centre, Tharamani had submitted certain proposals to the Government for notifying blocks based on the categorization made as on March, 2009 for all the Districts in Tamil Nadu on the exploitation of groundwater. Based on the recommendation, the Government issued G.O.Ms.No.52, Public Works (R2) Department dated 02.03.2012 approving the categorization of over exploited blocks; critical blocks; semi critical blocks; safe blocks and saline/poor quality blocks. Thus, all the over exploited blocks and critical blocks are notified as 'A' category stage of groundwater extraction is 90% and above and all the semi critical and safe blocks are notified as 'B' category stage of groundwater extraction is below 89%. The Government further notified in paragraph Nos.9 to 12 as follows:

"9. The Government further direct that no schemes should be formulated in over exploited and critical blocks Notified as A category blocks. In Semi Critical and Safe blocks Notified as B category blocks, all the schemes should be formulated through State Ground and Surface Water Resources Data Centre of Water Resources Department and the Chief Engineer / State Ground and Surface Water Resources Data Centre will issue No Objection Certificate for Ground Water Clearance.

10. The Government further direct to exclude the Ground Water drawal for domestic purpose by individual household; domestic infrastructure project (Housing); Governments Drinking Water Supply Schemes and; non water based industries, (i.e. the industries which do not require and use water, either as raw material or for other processing). The Chief Engineer, State Ground and Surface Water Resources Data Centre will permit for domestic use of water by this non water based industries by issuing No Objection Certificate based on the hydro geological conditions. The list of non water based industries will be issued by the Industries Department of Government of Tamil Nadu separately.

11. The Government further direct that appropriate rain water harvesting and Artificial Recharge Schemes shall be carried out in the catefories viz. Over exploited, Critical, Semi Critical and Safe blocks of Tamil Nadu. While carrying out the above schemes, priority shall be given to marginal quality and bad quality areas so as to avoid further deterioration.

12. The Government further direct that all the schemes and proposals based on Ground Water will have to be adhered the Government orders and conditions as detailed in the Annexure II of this order."

9. Thus, in the background of the Government Order, in exercise of executive power and which has nothing to do with the passing of the repealing of the Act, we feel, the proper course herein would be to set aside the order of the learned single Judge in the Writ Petitions as well as the order rejecting the impleading petitions and direct the parties to approach the authorities of the Public Works Department for necessary approval based on the category to which they fall. Accordingly, the order dated 12.01.2009 made in W.P.Nos.25352 and 25353 of 2008 and M.P.Nos.2 and 2 of 2008 stands set aside. We make it clear that even with the repealing of the Act, G.O.Ms.No.52 Public Works (R2) Department dated 02.03.2012 will govern the interests of the parties and the State in the matter of regulating the business of the Writ Appellant herein.

10. In view of the order passed setting aside the orders of the learned single Judge passed in the Miscellaneous Petitions as well as in the Writ Petitions, all the Writ Appeals and the Writ Petitions are disposed of in terms of what we have stated in the preceding paragraphs. No costs. Consequently, connected Miscellaneous Petitions are closed.

Index :Yes (C.V.,J) (T.S.S.,J)

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