RIGHT OF SUBTERRANEAN WATER

LAW OF TORTS
ASSIGNMENT

ARAVIND.P
14BLA1007
Introduction:
This article deals with the aspects of right of subterranean water. It focuses on the
main areas of the subject analysing the same with decided case laws. There are many rules
adopted by the courts to give their decisions. The article will analyse the subject with the use
of the rules used by the courts. It will also throw light on the malice element present in some
cases. Let’s discuss the matter in depth with the help of decided case laws.

Perumatty Grama Panchayat v. State of Kerala

In this above case law the issue is well discussed. In 1999, the Hindustan Coca-Cola
Beverages Private Limited, a subsidiary of the Atlanta based Coca-Cola company,
established a plant in Plachimada, in the Palakkad district of Kerala, southern India. The
Perumatty Village Council gave a licence to the company to commence production in 2000.
Coca Cola drew around 510,000 litres of water each day from boreholes and open wells. For
every 3.75 litres of water used by the plant, it produced one litre of product and a large
amount of waste water.

Two years after production began protest by local residents became common place. Local
communities complained that water pollution and extreme water shortages were endangering
their lives.

In 2003, women from the Vijayanagaram Colony in the village of Plachimada, protested that
their wells had dried up because of the over exploitation of groundwater resources by the
Coca-cola plant. They complained that they now had to walk nearly five kilometres twice a
day to fetch water. They also argued that the little which was left was undrinkable and when
used for bathing the water burned their eyes and lead to skin complaints. Aside form these
health issues, the depletion of groundwater resources also affected the ability of local
residents to raise their crops of rice and coconuts.

In April 2003, the Perumatty Grama Panchayat (Village Council) refused renewal of Coca-
Cola’s licence to operate on the grounds that it was not in the public interest to renew the
license.

The Village Council considered revocation of the licence to be necessary in order to protect
the interests of local people.
In December 2003, the Village Council’s decision was challenged in the High Court of
Kerala State. The Court considered two issues: the question of the over exploitation of
ground water, and the justification for the Village Council’s decision to revoke the licence.

The Court recognised that the State as a trustee is under a legal duty to protect natural
resources. It considered that these resources, meant for public use, cannot be converted into
private ownership. The court asserted that the government had a duty to act to “protect
against excessive groundwater exploitation and the inaction of the State in this regard was
tantamount to infringement of the right to life of the people guaranteed under Article 21 of
the Constitution of India.”

The High Court ordered the plant to stop drawing the groundwater within a month, ruling that
the amount of water extracted by the plant was illegal. But at the same time, it ordered the
Village Council to renew the licence and not interfere with the functioning of the Company
as long as it was not extracting the prohibited ground water. Coca-Cola refuted the
accusations of excessive exploitation and pollution and lodged an appeal.

In 2005, the divisional bench of the High Court granted permission for the company to
extract 500,000 litres from the common ground water per day in the year 2005-2006. The
Court also affirmed that the Village Council was not justified in cancelling Coca Cola’s
licence to operate until a full scientific assessment had been made of the facts.

Mayor of Bradford v. Pickles

This case gives the English scenario of the same issue. Pickles owned land containing
underground streams which fed Bradford waterworks. Pickles began to sink shafts for the
alleged purpose of draining certain beds on stone the effects of which were to seriously affect
water supplies to Pickles’ operations. The plaintiff alleged that Pickles was not acting in good
faith but to compel them to purchase his land.

The court held that as long as Pickles had a right to take an action on his property,
there is no way that can be converted to an illegal action, no matter what his motives. There
was no reason why he should not demand that the city pay for his interests in the water
beneath his land.
Rules adopted1:

Different states apply different rules and may apply different rules in different circumstances.
The possible rules include the following:

 Riparian rules: Sometimes underground water flows in a defined stream just like on
the surface. Generally, courts apply the same rules that apply to surface streams if a
water user proves that a particular source of underground water is a stream.
 English or common law rule: The traditional rule about ownership of underground
water is that anyone can drill wells on the surface of her land and take as much water
as she wants to use. However, if she takes water maliciously to injure others, she has
exceeded her property right and is liable for damages.

Likewise, if she uses water wastefully, like simply letting it pour out on the earth for
no reason, she has exceeded her property right and is liable for injury to others. Most
states used to apply the English rule but have abandoned it in favor of other rules.

 American or reasonable use rule: Most states follow the American or reasonable
use rule. Even though it’s called the “reasonable use” rule, it isn’t a balancing test like
other reasonableness rules. The rule distinguishes between water used on the land
from which it’s drawn and water transported elsewhere:
o Onsite use: If water is used on the land from which it’s drawn, the reasonable
use rule is essentially the same as the English rule. Any such use is by
definition reasonable, regardless of the type of use or the injury to other water
users. The only exception, as with the English rule, is that the user is liable for
malicious or wasteful uses of water.
o Offsite use: If water is drawn out and then transported elsewhere, the rule is
different. Such uses are generally held to be unreasonable if they injure other
owners of land overlying the aquifer. In other words, using water offsite
generally means one is liable to other owners of overlying lands, regardless of
the character of the use or the extent of the injury.

1
http://www.dummies.com/how-to/content/water-rights-drawing-water-from-underground.html
  Correlative rights: The correlative rights rule is more like the reasonable use rule for
surface streams and other reasonable use rules. Under this rule, the owner of the
surface is liable for harm that results from taking more than her share of the aquifer.

Owners thus have an equal right to draw water from underground, and when there
isn’t enough water to go around, a court may allocate shares of water among the
users. As with the reasonable use rule, a surface owner doesn’t have the right to take
water from underground and transport it elsewhere if doing so injures others.

 Restatement rule: Some courts follow the rule described by the Restatement
(Second) of Torts § 858. The Restatement rule says that a landowner who draws water
from under her surface is liable for resulting injury to others only if she unreasonably
causes harm or exceeds her reasonable share of the water supply. Reasonableness is
determined considering the same factors as in the reasonable use rule for surface
streams.
 Prior appropriation: Most states with prior appropriation systems for streams and
lakes apply the same system to underground water. So a person who applies
underground water to a beneficial use would generally prevail in a conflict with a later
user from the same aquifer.

Analysis:

First let us have a look at the Bradford case. The court decided the case in favour of
Pickles as the court stated that the owner had the full right to use the water below his land.
The court stuck to the Absolute right rule giving the owner the full rights. Whereas in the
Coca cola case the single bench court decided in favour of the Perumatty panchayat. Then
when the case reached the hands of the Division bench the decision was reversed. From this
one can clearly understand that Indian courts also give the owners right but to use it to a
reasonable extent. That is possibly because India follows a rigid constitution unlike UK.
However it is clearly understood that the Indian courts take a wider look at such issues.
Conclusion:

The question of having legislation governing the right to subterranean water can be
answered in simple way. We follow a rule it is better not to have legislation because the
circumstances keep changing always. It should be read as a wider concept and not restricting
it to few words. Let us wait for upcoming judgements which will take serious twists
regarding the issue.