Plachimada's loss

In the Kerala High Court, a village panchayat loses its battle for water with Coca-Cola.

IN THIRUVANANTHAPURAM

THE Perumatty village panchayat in Palakkad district of Kerala has lost its legal battle for the right to water with Hindustan Coca-Cola Beverages Private Ltd., the soft-drink manufacturer. A Division Bench of the Kerala High Court ruled on April 7 that a "water-based industry, with a huge investment, has [a right] to receive water to quench its thirst without inconveniencing others". It said the panchayat was wrong in rejecting the company's application for renewal of its operational licence before it made "a scientific assessment" about the reasons for the water scarcity experienced in the region. It asked the local body to renew the licence if the company made an application within two weeks from April 7, provided it has the licence issued under the Factories Act and has the clearance from the State Pollution Control Board. The court allowed the company to extract up to five lakh litres of groundwater every day from the 34-acre (13.6 hectare) premises of its bottling plant, its largest unit in India, located at Plachimada in the panchayat, during 2005-06.

The plant, which was established in March 2000, was shut down in March 2004, following protests from the local people, a battle with the panchayat which had refused to renew its licence and a government order (GO) banning it from drawing groundwater because of the severe drought conditions in the region. In April 2003, the local body filed a writ petition in the High Court against a GO overriding its decision to withdraw the company's licence (Frontline, January 30, 2004).

The Division Bench's ruling was based on scientific data provided by a multi-agency expert committee appointed by it to ascertain whether the level of exploitation of groundwater by the company was indeed the reason for the water scarcity in the region. The committee, which submitted its final report to the court in February, found that the rainfall in the region in the two years from 2002 "was much less than the mean value" and that this deficiency in rainfall was the "most significant factor" that caused the water scarcity. It also pointed out that "the unregulated withdrawal of groundwater" from the wells within the factory complex and outside during the water deficit period had aggravated the scarcity situation further.

SIGNIFICANTLY, on December 16, 2003, a Single Bench of the High Court had directed Coca-Cola to stop overexploiting the groundwater resources of the village and find alternative water sources for its high production needs. The court had 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 resources to the detriment of the people. It said the company could be permitted to draw groundwater like any other landowner, but what was objectionable was its right "to claim a huge share of it". The Bench ruled that it should be allowed to use only a quantity of groundwater equal to the amount "normally used for irrigating crops in a 34-acre plot". It also had said that the panchayat should not interfere in the functioning of the Coca-Cola unit if the company could find alternative sources of groundwater for its use. Coca-Cola appealed against the Single Bench's directive.

Through its April 7 order, the Division Bench, comprising Justice M. Ramachandran and Justice K.P. Balachandran, overturned the Single Bench's ruling, saying that "a person has the right to extract water from his property, unless it is prohibited by a statute. We hold that ordinarily a person has a right to draw water, in reasonable limits, without waiting for permission from the panchayat and the government. This alone could be the rule, and the restriction, an exception". It also said that even reference to the mandatory function of a panchayat as envisaged in the Panchayati Raj Act, namely the maintenance of traditional drinking water sources, could not prevent the owner of a well from extracting water as he wished. "The panchayat has no ownership about such private water sources, in effect denying the proprietary rights of the occupier," the order said.

"We do not find justification for upholding the finding of the learned Judge that extraction of groundwater is illegal. It is definitely not something like digging out a treasure-trove. We cannot endorse the finding that the company has no legal right to extract this `wealth'. If such restriction is to apply to a legal person, it may have to apply to a natural person as well. Abstract principles cannot be the basis for the court to deny basic rights, unless they are curbed by valid legislation," the Bench said.

It also ruled that "it will be the essential duty of the company" to utilise a reasonable amount of water it draws from the Plachimada watershed for the benefit of the general public who are apprehensive of water shortage, as directed by the local body from time to time. "This work of water supply is to be undertaken, and commenced before June 30, 2005. The restriction imposed for its own consumption will not be applicable when water is drawn for this additional requirement," the court said.

The Bench said that it based its ruling on the final report of the scientific investigation ordered by it "on the groundwater potential of the area and the shortage and scarcity of drinking water in the nearby areas due to the current level of extraction by the Coca-Cola factory", "as the issue very much revolved round the balancing of ecological rhythm, the aspirations of the people in the locality, the duties and responsibilities that were expected to be discharged by a gram panchayat, especially in the wake of decentralisation of powers and the predicament of an industrial unit, which had been cordially invited to invest substantial funds, ensuring them freedom of functioning."

The local body will be entitled to carry out inspection on the use of water without unduly interfering with it or inconveniencing the company. The Judges said that the Single Bench order would have resulted in a chaotic situation because the right to fix the quantity of water that the company may be permitted to draw was given to the panchayat although no reason was provided for giving agriculture more priority than an industrial activity or the fact that agricultural needs differed from crop to crop was not taken into account.

The Division Bench said that the findings of the Single Bench were not precise and might not be practical. After upholding the right to use a reasonable amount of water, the court could not rule that the Perumatty panchayat was obliged to renew the licence and that it should not interfere with the functioning of the company if the company did not extract groundwater and depended on other sources for its water needs. "The absolute prohibition is neither called for, nor legal," it said.

It said: "There is basis in the submission by the company that as per the Single Bench order any other local body authority could have also objected to the drawing of water for being used by an industry situated at a distance. The restrictions would have applied to them as well, as an individual was not entitled to draw water without the permission of the authorities. The net result will be that bringing water from any other source too would have become illegal and unauthorised."

AS per the final report of the committee, which was headed by the Director of the Centre for Water Resources, Development and Management (CWRDM), Kozhikode, and had experts from the State Pollution Control Board, the State Ground Water Department, the CWRDM and Coca-Cola as members, out of the annual available groundwater resources of 66.7 million cubic metres (MCM) in the Chittur block, of which Plachimada forms a part, 62.5 MCM was needed to meet the requirements of the domestic and irrigation sectors. The requirement of the company (at the average rate of five lakh litres a day) was only 5 per cent of the remaining 4.2 MCM meant for other purposes in the region. Similarly, the company's requirement is only 4.97 per cent of the 3.67 MCM estimated annual groundwater resources of the Plachimada watershed. The committed groundwater resources required to meet the domestic and irrigation requirements until 2025 is 3.42 MCM. The requirement of Coca-Cola is 0.1825 MCM, or 73 per cent of the remaining 0.25 MCM of groundwater.

The committee said that estimates of annual available groundwater and the groundwater drawal to be reserved for meeting the committed domestic and irrigation needs up to 2025, which were arrived at both at the Chittur block level (macro scale) and the Plachimada watershed level (micro level), showed that the Coca-Cola factory could be safely permitted to withdraw five lakh litres of water a day without affecting both domestic and irrigation water requirements. "At the same time the conclusion is valid only under normal rainfall conditions. Groundwater withdrawal by Coca-Cola has to be strictly controlled in those years in which the rainfall is much less than the mean value," the report said.

The court accepted the scheme of controlled regulation drawn up by the investigation team, which suggests gradual, structured reduction in the amount of water than can be extracted by the company during the December-May non-monsoon season depending on the deviation in the June-November monsoon rainfall pattern below the mean value. The report says that its recommendations will protect the interests of the domestic and irrigation water supply sectors adequately. They will also ensure that the developmental opportunities, which industrial establishments can create in an area that is otherwise predominantly agrarian, are fully utilised. The Bench described the report as "fair, it appears to be authentic, based on the data collected, mature and therefore acceptable". Moreover, it said, the constitution of the committee or its recommendations were never challenged by the panchayat, which was a party in the case.

Although the battle is won, Coca-Cola may not be able to quench the needs of its bottling plant yet. The company is yet to comply with the directions of a Supreme Court Monitoring Committee on Hazardous Wastes. The committee directed it to install a reverse osmosis system or an equivalent process for water purification "to ensure that water used for effluent treatment is returned to its original condition for re-use" and to ensure "water supply to all persons in the vicinity of the plant".

Officials of the State Pollution Control Board, which was entrusted with the task of monitoring compliance, said the company had refused to obey the directives maintaining that it was not affecting the groundwater sources in the region and that since the factory had remained closed for over two years, it was under no obligation to supply drinking water to the local people.

Coca-Cola may soon be dragged to the Supreme Court. The swelling ranks of protesters, who have been holding an agitation outside the factory gates demanding the closure of the company for over two years now, have threatened to appeal against the High Court verdict in the apex court. Member of Parliament and Janata Dal (Secular) State president M.P. Veerendra Kumar, whose party runs the Perumatty panchayat, said the local body would go on appeal and that the agitation by the local tribal people and Dalits would continue. The cause of the struggle was not within the purview of the judiciary; it involved the survival of the local people, he said.