Persons Extracting Groundwater For Consumer Supply Are Bound To Obtain Statutory Registration: Kerala High Court

The Kerala High Court has held that persons engaged in the business of extracting groundwater and supplying it to consumers through tanker lorries are 'users of ground water' as defined under Section 2(1)(h) of the Kerala Ground Water (Control and Regulation) Act, 2002 and are bound to obtain registration under Section 9 of the Act, irrespective of whether the areas where they operate are notified areas or not.

The Single Judge Bench of Justice N. Nagaresh thus directed the petitioners to submit their applications for registration before the Ground Water Authority, and thereafter directed the latter to issue Certificate of Registration to the applicants subject to such conditions and restrictions as may be prescribed, after making requisite enquiries in this regard. 

"The Entrepreneurs like the petitioners, it is to be kept in mind, are supplying drinking water to the areas/buildings where there are no sufficient availability of drinking water. An absolute prohibition of their activity would result in non-supply of potable water to the needy residents and citizen. Therefore, any regulation of the activity of water supply through tanker lorries will have to take note of the requirements of the citizens also, who may require potable water due to non-availability of potable water or due to non-supply or short supply by the Kerala Water Authority. A pragmatic view has to be taken while regulations are made, keeping in mind the purpose for which the Act, 2002 has been enacted", the Court added.

The Court in this case was dealing with a batch of petitions filed by the aggrieved petitioners against the orders of the Thrikkakara Municipality restraining them from carrying out the said activity. Based on certain complaints, the Secretary of the Municipality served the petitioners with notices directing them to produce consent letters/certificates as prescribed by the Government for running centres for distributing drinking water.

In spite of the petitioners submitting applications before the Ground Water Department, no such consent was granted. The petitioners noted that there was a lack of clarity as regards the issue of grant of consent under the Act and that the Department officials themselves had requested the Government for instructions and guidelines in this regard. Additionally, it was argued that as per the Circular issued by the Ernakulam District Collector in February 2017, police authorities or Panchayat officials cannot not interfere with distribution of drinking water without the permission of District Administration. Despite his, the petitioners were being prevented from engaging in the said legitimate activities.

On the other hand, it was contended by the Standing Counsel for Thrikkakkara Municipality Advocate S. Jamal, that the Act is a self contained code, and that the Division Bench of the High Court in Santhosh Kumar A.C. & Ors. v. State of Kerala & Ors had observed that the State and District Administration are duty bound to ensure that commercial establishments do not exploit groundwater without requisite NOC. He averred that it was in pursuance of the same that the the District Collector had issued an Order dated April 8, 2022, directing the instant Thrikkakkara Municipality as well as other local bodies to stop the functioning of the business concerns extracting groundwater and doing business commercially without the permission of the Ground Water Authority. He contended that since the petitioners herein had not obtained the requisite permission from the said authority, the action of the Municipality was justified. 

The Court perused the Act and found that while the requirement of permit was mandated only for notified areas as per Sections 7 and 8, according to Section 9, it has been mandated that every user of groundwater in the State ought to apply for registration and for the grant of a certificate of registration within the time notified for the same by the Government. Additionally, the Court noted that as per Section 10, no person shall, without the permission of the authority, dig well for any purpose within 30 metres from any drinking water source where water is pumped for public purpose. The Court also perused the powers of the Ground Water Authority enshrined under Section 15 of the Act. 

"Therefore, it is evident that every user of ground water in the State, irrespective of whether the area is notified or not, has to get a registration as a user of ground water and for the grant of a certificate of registration", it ascertained. 

The Court noted that as per a communication by the District Officer, Ground Water Department, Ernakulam, NOC is mandatory for extraction and distribution of ground water for commercial use and industrial infrastructure projects under the statute. However, the Act makes no mention as to extraction of ground water for bulk water supply for commercial purposes using tanker lorries, and no further regulations had been provided by the Government to the Department for grant of license in this regard, either. 

It is at this juncture the Court found that the petitioners would also come within the ambit of 'user of ground water' as defined under Section 2(1)(h) of the Act, 2002.

On perusal of the various provisions in the Act, as well as the Kerala Ground Water (Control and Regulation) Rules, 2004, the Court discerned that the Ground Water Authority has plenary powers in the subject matter without any further notification or empowerment. The Court relied on Section 15(1)(k) in this regard. 

It thus concluded that it was only in the areas notified as per Section 6 of the Act that a permit to extract and use ground water under Section 7 or a registration of existing wells under Section 8 of the Act would be required. In the instant case, the petitioners being users of of ground water are also bound to obtain registration under the Act. The Court held that the State Ground Water Authority is empowered to require the user of the ground water to install water measuring instrument in any water supply machinery if it is necessary for the proper use of water or to protect public interest. It added that the Ground Water Authority may exercise its powers in such manner as may be necessary for the implementation of the objects of the Act, 2002. 

While directing the petitioners herein to submit their applications in Form No 10 for registration for user of ground water under Section 9 of the Act, 2002 to the Ground Water Authority, within a period of one month, the Court added that the Authority would be competent to reject any application in public interest, after giving such applicants an opportunity of being heard, as required under the proviso to Section 9. 

"If the petitioners submit applications for registration within one month as directed above, the respondents shall not take any coercive action against the petitioners, till the Ground Water Authority takes a decision on their applications for registration", the Court added while setting aside the impugned orders of the Municipality. 

Case Title: Sali M.N. v. State of Kerala & Ors. and other connected matters 

Citation: 2023 LiveLaw (Ker) 2

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