Madras High Court: Extraction of groundwater illegally amounts to theft

Chennai: Observing that water and other natural resources are national assets and state the custodian, the Madras High Court on Wednesday made it clear that those extracting groundwater illegally are punishable under the Indian Penal Code sections that attract theft.

Justice S M Subramaniam disposed of a batch of about 75 petitions from people involved in the business of running packaged drinking water units. 

"Water, being a national asset, if it is extracted without any authority of law, then it amounts to theft and certainly persons committing such offence of theft under the Indian Penal Code, is liable to be prosecuted," the judge said. 

The petitioners sought quashing of a government order issued by the public works department about effective management of groundwater and issue of no objection certificate and license for extraction of groundwater in Tamil Nadu. 

While confirming the PWD order, the judge said, "The state government safeguards the natural groundwater resources for the people's livelihood, but the packaged drinking water companies are exploiting the groundwater for commercial gain. 

The petitioners only want to quash the government orders to exploit water for their own business purposes. 

The petitioners’ only interest is commercial exploitation of ground water, whereas the government order was passed taking into consideration the future and welfare of the state and its people. 

Observing that the extraction of groundwater illegally amounts to theft, the judge in his order said, "It is crystal clear that so long as the water stays with the earth undisturbed, the IPC and penal provisions may not apply." 

However, once it is severed from the earth by way of an extraction, it becomes a 'theft', if it is extracted without any authority of law....If water is extracted for commercial use without obtaining any proper license or permission, such an extraction will certainly attract the IPC Sctions 378 and 379 and all those persons are liable to be prosecuted for the offence of theft," the judge said. 

The judge directed district collectors to constitute a monitoring committee to conduct surprise inspections in respect of groundwater extraction by individuals and establishments for commercial purposes. 

"Immediate action in accordance with law should be taken in case of illegal extraction," he said. 

The judge also directed that the state may decide for charging for extraction of groundwater for commercial use and such a policy decision shall be considered in due course appropriately. 

Issuing guidelines, the court directed authorities not to grant licence, no objection certificate or permission for commercial establishments or persons to extract groundwater for commercial use in the absence of fixation of water 'flow meters' on the board outlet, which is to be inspected. 

The judge said the flow meter must be sealed in such a way to prevent any tampering by any person. 

"Quantum of water to be extracted by individuals are to be fixed periodically as per the assessment to be made by the PWD authorities as per the regulations." 

The judge directed authorities to register police complaint in case any excess extraction of ground water is identified by tampering with flow meters or by any other means. 

The case must be registered under Indian Penal Code Section 379 (punishment for theft). 

In addition, if the water is wasted "for causing wrongful loss", then it would also attract the IPC Section 425, the judge said.
 
The judge further directed authorities to suspend the licences by issuing show-cause notices and by providing an opportunity to persons, who have involved themselves in the offence of theft or violation of other conditions stipulated in government regulations or if a criminal case is registered. 

If any person is convicted, then he shall be permanently debarred from getting license for extraction of groundwater. 

The judge directed district collectors to issue suitable directions or orders to revenue divisional officers, tehsildars and officials concerned to inspect and monitor the extraction of groundwater by persons for commercial use. 

The judge further directed the secretary, PWD department to issue consolidated instructions based on the order passed in the present pleas to all collectors, enabling them to implement the court orders promptly.