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A judicial intervention

Print edition : Jan 30, 2004

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The ruling of a Single Bench of the Kerala High Court that the Coca-Cola unit in Palakkad district find alternative water sources for its high production needs and stop overexploiting groundwater resources in the region could become one that has countrywide significance.

in Thiruvananthapuram

THE battle between the Perumatty village panchayat of Palakkad district in Kerala and Hindustan Coca-Cola Beverages Private Ltd. entered a new phase last month, with a Single Bench of the Kerala High Court ordering the international soft-drink maker to find alternative water sources for its high production needs and stop overexploiting the groundwater resources of the village.

In its December 16, 2003, ruling, the court held that groundwater was a public property held in trust by a government and that it had no right to allow a private party to overexploit the resource to the detriment of the people. If upheld by the higher courts, the ruling could have countrywide significance, especially in cases involving overexploitation of natural resources.

An appeal filed by Coca-Cola against the ruling is now before a Division Bench of the High Court, which has asked a multi-agency expert committee to ascertain whether the current level of exploitation of groundwater by the company is indeed the reason for the scarcity of water experienced in the region. On January 8, the Division Bench allowed the company to continue drawing water until February 12, when the next hearing is scheduled, but on condition that it should install water meters at all its wells and allow the inquiry committee to monitor the readings.

The Single Bench ruling was in response to a writ petition filed by the Perumatty panchayat in April 2003 against a State government directive overriding the local body's decision to withdraw the company's licence, a measure which would have forced the company to close down its plant located at Plachimada in the panchayat. Significantly, the court also said that the panchayat should not interfere in the functioning of the Coca-Cola unit if the company could find alternative sources of water for its use. Coca-Cola chose instead to go on appeal against the Single Bench's directive.

COCA-COLA'S Plachimada unit was established in March 2000 on 34 acres (about 14 hectares) of mostly multi-cropped agricultural land, barely 2 km from the river Chitturpuzha and in the vicinity of a number of reservoirs and irrigation canals. Within two years of its inauguration, protests became commonplace in front of the unit, as several places in the neighbourhood, including 10 colonies of Dalit and tribal people, began to experience acute water scarcity (Frontline, June 20, 2003). Local people started complaining about the quality of the water in the areas surrounding the plant, and in August 2003 a BBC Radio 4 inquiry found the company guilty of distributing from its unit sludge containing dangerously high levels of the toxic elements cadmium and lead to unsuspecting villagers who believed it was "fertilizer".

Coca-Cola authorities maintained that poor rainfall was the villain and that the sludge was harmless and was provided only on request to farmers to use it as a "soil conditioner". A subsequent State Pollution Control Board inquiry too found dangerously high levels of cadmium in the sludge, though the concentration of lead was found to be within permissible limits. The company and the State government have so far failed to explain the source of the cadmium-lead contamination. Doubts remain that it is the result of the production or effluent treatment processes in the factory; the pollution of raw groundwater itself could have been caused also by over-exploitation or decades-long use of pesticides for paddy crops (Frontline, August 29, 2003).

Although the company informed the court that it was drawing 510 kilolitres of water a day for production processes, protesters allege that it is utilising two to three times that quantity daily. The Single Bench said that the company should henceforth be allowed to use only a quantity of groundwater equal to that used by a resident owning an equivalent area (34 acres) and directed the Perumatty panchayat and the State government to ensure that it stuck to this rule after a grace period of one month from December 16.

By allowing the company to maintain the status quo until the next hearing, the Division Bench has in effect extended the grace period up to February 12.

The Single Bench also said that the arrangements for drawing water and monitoring should be instituted in a transparent manner and that the panchayat, with the assistance of the State Ground Water Department, should ascertain the quantity of water a landowner with 34 acres had been utilising for domestic and agricultural purposes. The court observed that if every person in the village were to be allowed to draw groundwater in such huge quantities as the company did, the village would soon turn barren.

It also held that the extraction of 510 kilolitres of water a day as reported by the company was illegal and that the panchayat and the government were bound to prevent the overexploitation of natural resources. But the court also questioned the action of the panchayat ordering the closure of the unit and said that the panchayat could at best only say that it would not allow the company to extract groundwater and that the company should find alternative sources for its production requirements.

The Division Bench, however, said that more scientific data were required to take a decision on the dispute and entrusted the Centre for Water Resources, Development and Management (CWRDM), Kozhikode, with the task of coordinating a multi-agency investigation to find out whether the scarcity of water in the region was the result of the company overexploiting groundwater resources. On January 8, the committee with members from the State Ground Water Department, the State Pollution Control Board and the Public Health Department, in addition to those from the CWRDM, informed the court that a detailed inquiry would take at least a year to complete and that it would submit an interim report within three months of the start of the investigation.

Interestingly, a case of overexploitation of groundwater by the bottling unit of another soft-drink behemoth, Pepsi, in the neighbouring Puthusseri panchayat too is now before the Kerala High Court. On December 19, the Puthusseri panchayat filed an affidavit before the court demanding that the stay order issued by the State government against the panchayat's decision to close down the Pepsico India Private Limited's bottling unit within its territory be annulled. The affidavit was in response to a writ petition filed by the company against the panchayat's decision to cancel its licence alleging overexploitation of groundwater resources. The court is yet to take a decision on the dispute.

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