ACT 19 OF 2002
THE KERALA GROUND
WATER (CONTROL AND REGULATION) ACT, 2002 [1]
AN
ACT
to provide for the conservation
of ground water and for the regulation and control of its extraction and use in the State of Kerala.
Preamble:--WHEREAS
it is expedient to provide for the conservation of Ground Water
and for the regulation and control of its extraction and use
in the State of Kerala;
AND WHEREAS in certain areas of
the State the tendency of indiscriminate extraction of Ground
Water is continuing;
AND WHEREAS it is felt that the erratic
extraction of ground water is found to result in undesired environmental
problems in such areas:
AND WHEREAS the ground water is a
critical resource of the State;
AND WHEREAS it is considered necessary
in the public interest to regulate and control any form of development
of ground water in the State of Kerala;
BE it enacted in the Fifty-third Year
of the Republic of India as follows: -
1. Short
title, extent and commencement.--(1) This Act may be called
the Kerala Ground Water (Control and Regulation) Act, 2002.
(2) It extends to the whole of the
State of Kerala.
(3) It shall come into force on such
date as the Government may, by notification in the Gazette, appoint:
Provided that different dates may
be appointed for different areas and for different provision
of the Act and any reference in any such provision to the commencement
of this Act shall be construed as a reference to the commencement
of such provision.
2. Definitions .--(1)
In the Act, unless the context otherwise requires,--
(a) "Authority" means "the
State Ground Water Authority" constituted under sub section
(1) of section 3 of this Act;
(b) "Government" means
the Government of Kerala;
(c) "Ground Water" means
the water which exist below the surface of the ground at any
location or at any particular category of locations;
(d) "notified
area" means the area notified under sub section (1) of section
6 of this Act;
(e) "prescribed" means
prescribed by rules made under this Act;
(f) "pumping
well" means a well fitted with pump driven by an electric
motor or oil engine for pumping water but does not include open
wells fitted with pumps driven by engine or motor of Horse Power
upto 1.5 and tube wells, borewells and dug-cum borewells fitted
with pumps driven by engine or motor of Horse Power upto 3;
(g) "digging" with
all its grammatical variations and synonyms, includes digging
or drilling of new wells, putting in pipes or drilling, making
tunnels or increasing depth or diameter of the existing wells;
(h) "user
of ground water" means
any person using ground water from a pumping well for any purpose
including domestic purpose;
(i) "well " means any structure made on the surface
of earth by any person other than officers authorised by State
Government or Central Government, for the purpose of drawing
ground water for search,. development, use or management of ground
water resources and includes open well, dug well, borewell, dug-cum
borewell, tube well; storage well, infiltration gallery, but
shall not include open well or dug well used for domestic purposes.
3. State
Ground Water Authority.--(1) The Government shall, by notification in the
Gazette, constitute an authority called the State Ground Water
Authority with effect from such date as, may
be specified therein,
(2) The authority shall
be a body corporate having perpetual succession and a common
seal with power, subject to the provisions of this Act, to acquire,
hold and dispose of property, both movable and immovable and
to enter into contract and shall by the name of the Authority
sue and be sued.
(3) The Authority shall consist of the following
members, namely:--
(i) the
Secretary to Government, Water Resources Department;
Ex-officio,
who shall be the Chairman of the Authority;
(ii) the Secretary
to Government, Finance Department; Ex- officio;
(iii) the
Secretary to Government, Local Self Government (Rural Government)
Department;
Ex-officio;
(iv) the Director, Ground Water Department; Ex-officio, who shall be
the Secretary
of the Authority;
(v) the following persons nominated by the Government
(a) two members of the Legislative Assembly;
(b) an expert in Water
Resources;
(c) a member of Grama
Panchayat;
(d) a member of Municipal
Council ;
(e) a member belonging
to a Scheduled Caste or Scheduled Tribe;
(f) a Woman;
(g) a public man;
(h) an environmental
activist.
(4) The term of office of the nominated members shall be three years.
(5) Any nominated member may resign his office at any time by a resignation
letter addressed to the Government:
Provided that the resignation shall
not come into effect until it is accepted,
(6) The conditions of the service of the members of the Authority
shall be, such as may be prescribed.
4. Acts
not to be invalidated by irregularity, vacancy etc.--No
act done or proceedings taken by the authority shall be invalidated
merely on the following reasons --
(a) any
vacancy or any defect in the constitution of the authority; or
(b) any
defect or irregularity in the appointment of a person acting
as a member of the authority.
5. Officers
and staff of the Authority.--All officers and other employees
of the Ground Water Department shall, for the purposes of this
Act, be considered as the officers and staff of the Authority
and they shall exercise the powers and perform the duties assigned
to them from time to time by the Authority in writing:
Provided that the Government may depute
such number of scientists and technicians, as it may deem necessary
for the purpose of the proper functioning of the Authority under
this Act or for the proper exercise of the powers under this
Act.
6. Notifying
areas for the control and regulation of ground water development.--(1)
The Government may, if satisfied on the recommendation of the
authority, that it is necessary in the public interest to regulate
the extraction or use of ground water of any area, declare
by notification in the Gazette, such area as notified area
for the purpose of this Act, with effect from such date as
may be specified therein.
(2) Every
notification issued under sub-section (1) shall be published
in the Gazette as well
as in two daily newspapers having wide circulation in the said
areas and a copy of the same shall be exhibited on the notice
board of the office of the Grama Panchayat or Municipality, as the case may
be and Village Office of the said area.
(3) The
Government may, if satisfied on the recommendation of the Authority,
that the availability of Ground Water has increased in any notified
area, cancel the notification issued in respect of such area
7. Grant
of permit to extract and use ground water.--(1) Any
person desiring to dig a well or to convert the existing well into
a pumping well, for his own or social purpose in the notified area,
shall submit an application before the Authority for the grant of
a permit for the purpose and shall not proceed with any activity
connected with such digging or convertion unless a permit has been
granted by the Authority.
(2) Every application under
sub-section (1) shall be in such form and shall contain such
particulars as may be prescribed.
(3) The Authority shall acknowledge the receipt of every application
in the manner as may be prescribed.
(4) On
receipt of an application under sub-section (1) the Authority
shall, if satisfied that it shall not be against the public interest
so to do, grant, subject to such conditions as may be prescribed
a permit authorising to draw ground water or reject the application:
Provided that no person
shall be refused a permit without giving an opportunity of being
heard.
(5) The decision regarding
the grant or refusal of the permit shall be communicated to the
applicant by the Authority in writing within ninety days from
the date of receipt of the application.
(6) Where the Authority
received the application under sub-section (1) fails to inform
the applicant of its decision on the application within ninety
days from the date of receipt of the application, the permit
shall be deemed to have been granted to the applicant and such
person shall for the purpose of this Act be deemed to be a permit
holder.
(7) In granting or refusing
the permit, the Authority shall consider the following matters,
namely:--
(a) the purpose or purposes for which the water is used;
(b) the other existing users of that locality;
(c) the
availability of ground water of that area;
(d) the
quality of ground water in connection with its use;
(e) the
distance of the proposed well with the adjoining well and the
number of wells in the area and the chance of interference
with existing wells;
(f) chances
of ground water pollution;
(g) the
long term nature of ground water level in the area;
(h) any
other factor relevant thereto.
8. Registration
of the existing wells of the notified area.--(1) Every
owner of the existing wells of the notified area in the State
shall, within a period of one hundred and twenty days from
the date of constitution of the Authority, register the wells
existing and in use and shall apply to the Authority in such
form and in such manner as may be prescribed for a certificate
of registration:
Provided that if the Authority is
satisfied that there are sufficient reasons for the applicant
for not submitting the application within the said time limit
it may entertain the application submitted thereafter.
(2) The
details to be furnished in an application under sub-section (1)
shall contain such particulars and shall be in such manner as
may be prescribed.
(3)
On receipt of an application under sub-section (1) the Authority
shall, if satisfied that it shall not be against the public interest
so to do, register the well subject to such conditions and restrictions
as may be prescribed and issue a certificate of registration
to the applicant or reject the application:
Provided that no application for registration
shall be rejected without giving the applicant an opportunity
of being heard.
(4) The
decision regarding the grant or refusal of certificate of registration
shall be communicated to the applicant by the Authority within
ninety days from the date of receipt of the application.
(5) The
Authority shall consider the following matters before granting
or rejecting the application for registration of well under sub-section
(3), namely:--
(a) the
purpose for which water is used;
(b) the
other existing users of that locality;
(c) the
rate of re-charge of the area of influence of the well;
(d) the
quality of ground water in the location;
(e) the
long term nature of water level of well;
(f) the
other relevant factors.
(6) The
Certificate of Registration shall be in the form prescribed.
(7) Until the Authority intimates the decision regarding grant or
rejection of registration under sub-section (1), every owner
of existing well in the notified area shall be entitled to the
continued use of ground water in the same manner as before the
date of application.
(8) In
case a registered well becomes unuseful, the owner shall inform
the matter in writing to the Authority immediately.
9. Registration
of user of Ground Water.--(1) All
users of ground water in the State shall within one hundred
and twenty days from the date of constitution of the Authority,
apply to be registered with the Authority as a user of ground
water in the State and for grant of certificate of registration.
(2)
On receipt of an application under sub-section (1) the Authority
shall, if satisfied that it shall not be against public interest
so to do, grant registration subject to the conditions and restrictions
as may be prescribed, and issue a certificate of registration
or reject the application:
Provided that no application for registration
shall be rejected without giving the applicant an opportunity
of being heard.
10. Protection of public drinking water sources.--(1) Notwithstanding anything contained in this
Act, no person shall without the permission of the Authority
dig well for any purpose within thirty meters from any drinking
water source from where water is pumped for public purpose:
Provided that the provisions in sub-section
(1) shall not apply to the digging of a well for any drinking
water scheme implemented by the Government or local bodies.
(2) Every
application for permission under sub-section (1) shall be in
such form as may be prescribed and shall be submitted to the
Authority with such fees as may be fixed.
(3) On
receipt of an application under sub-section (2) and if it is
satisfied that digging of well shall not adversely affect the
public drinking water source, permission may, subject to such
restrictions and conditions mentioned therein, be granted to
dig the well for the purpose of drinking water or for agriculture:
Provided that if the decision of the
Authority is not communicated to the applicant within ninety
days from the date of application permission shall be deemed
to have been granted and the permission so deemed to have been
granted shall be subject to the laws in this regard.
11. Power to make changes to the conditions in the permit or certificate
of registration.--At any time after any permit or certificate
of registration has been granted, the authority may, after
giving the owner an opportunity of being heard, make change,
amend or modify the conditions, in the permit or certificate
of registration, as the case may be, on technical reasons:
Provided that before taking such action,
the Authority shall ensure that no standing crops are damaged
by this decision.
12. Cancellation of permit or certificate of registration.--The Authority
may, if satisfied on receipt of any information or on the basis
of its own studies, that,-
(a) the permit or certificate of registration
under this Act is not based on facts;
(b) the holder of the
permit or certificate of registration has, without any reasonable
cause, failed to comply with the conditions subject to which
the permit or the certificate of registration has been issued,
or has contravened any of the provisions of this Act or the rules
made thereunder; or
(c) a situation has arisen
which warrants limiting of the use of extraction of ground water
in the area around the well;
without
prejudice to any other penalty to which the holder of the permit
or certificate of registration may be subjected to under this
Act, and after giving the holder of permit or certificate of
registration an opportunity of being heard cancel the permit
or certificate of registration.
13. Grants from State Government.--The Government
shall, after due appropriation made by the State Legislature
by law in this behalf, provide to the Ground Water Authority
by way of grants such sum of money as it may consider necessary
for carrying out the purposes of this Act.
14. Fund of the Ground Water Authority.- The Authority shall have a Fund
to be called the Ground Water Authority Fund and,--
(a) all
sums of money received by the Authority by way of grant, loan
or otherwise from the Central or State Governments or from Financial
Institutions;
(b) all other sums of money received by, or on behalf of, the Authority;
shall be credited to it.
(2) The
Ground Water Authority Fund shall be utilized for meeting the
expense of the activities of the Authority.
15. Power
of Ground Water Authority.--(1) The Authority shall have power;--
(a) to
enter any property and to measure the quantity of water located
on the surface of earth or under the earth;
(b) to
inspect any well which is dug or being dug and the soil and other
materials excavated therefrom;
(c) to take samples of such soil or other materials or water extracted
on such wells;
(d) to require, by order in writing the persons digging a well to
keep and preserve in such manner as may be prescribed, the samples
of soil or materials extracted from there as directed by the
Authority for a period not exceeding three months from the date
of completion or abandonment of the work;
(e) to
examine and take copies of the relevant records or documents
and for obtaining any information required for the implementation
of the objects of this Act, to ask any question on matters including
the diameter or depth of the well which is dug or being dug,
the level at which the water was found out or may be found out
and subsequently restored or rested, the types of strata encountered
in the digging of well and the quality of water found out;
(f) to
require the user of ground water to install water measuring instrument
in any water supply machinery. When
it is necessary, for the proper use of water or there is reason
to believe that the user is not complying the provisions contained
in this Act or to protect the public interest;
(g) to
seize the equipments and instruments used for unauthorised digging
and to destroy partially or completely the work done;
(h) to
require any user of ground water who does not comply with the
provisions of this Act and the rules made thereunder, to stop
any water supply or to destroy any hydraulic work which is found
unauthorised as per the provisions of this Act and the rules
made thereunder;-
(i) to
enter and search any place with such assistance as is deemed
necessary, if there is reason to believe that an offence under
this Act has been committed or is being committed and to order
in writing the person, who has committed or is committing the
offence not to use the ground water for a specified period not
exceeding thirty days;
(j) to
take necessary steps to prevent the installation of drainage
pipes etc. affecting the water sources and to prevent depositing
of waste materials in the surface water sources if it is likely
to affect the ground water sources;
(k) to
exercise such other powers that may be necessary for the implementation
of the objects of this Act or the rules made thereunder,
(2) The
Authority shall perform such functions as may be assigned by
the Government from time to time in accordance with the objectives
of this Act.
(3) In
case, where any user of ground water makes any default in doing
any act as required by the authority in exercise of the powers
under sub-section (1), the authority shall have power to perform
such act directly and to realise the expense incurred in that
behalf from that person in such manner as may be prescribed.
(4) The
provisions of the Code of Criminal Procedure, 1973 (Central Act
2 of 1974) shall, as far as possible, apply to any search held
or seizure made under this Act.
(5) Where
the authority seizes any machinery or instruments under clause
(g) of sub-section (1), it shall as soon as may be within ten
days report to a magistrate and take his order for the custody
of the same.
16. Implementation of orders, etc.--Every
order under section 1 shall be furnished to the user in such
manner as may be prescribed.
17. Delegation
of powers and duties.--The Authority may, by general or
special order in writing, direct that all or any of the powers
and duties to be exercised or performed by it shall be exercised
or performed by such employee of the Authority under such circumstances
and on such conditions as may be specified therein.
18. Members
and employees of Ground Water Authority to be public servants.--All
members and employees of the Authority while acting or purporting
to act under the provisions of this Act or any rules made thereunder
shall be deemed to be public servants within the meaning of
section 21 of the Indian Penal Code, 1860 (Central Act 45 of
1860);
19. Protection
of action taken in good faith.--No suit, prosecution or
other legal proceedings shall lie against the Government or
Authority or any officer of the Government or any member or
other employee of the Authority for anything which is in good
faith done or purported to be done under or in pursuance of
this Act or the rules made thereunder.
20. Cognizance
of offences and Trial.--No court shall take cognizance
of any offence punishable under this Act except on a report
in writing of the facts constituting such offence submitted
with the prior permission of the Secretary of the Authority.
21. Penalties.--(1) If any owner or user of a well contravenes
any of the provisions of this Act or Rules made thereunder or
fails to comply with the rules, in furnishing any information
in the manner prescribed, he shall be punishable,--
(i) with
fine which may extend to five hundred rupees for the first offence;
and,
(ii) with
fine which may extend to one thousand rupees for the second and
subsequent offences.
(2) If
for the unauthorised digging or construction or use of wells
any user of ground water or the owner of a well,--
(a) contravenes
any of the provisions of this Act or the rules made thereunder
or fails to comply with the same; or
(b) obstructs
the Authority or any other person authorised by it in exercising
any of the powers under this Act, he shall be punishable,--
(i) with
fine which may extend to two thousand rupees for first offence;
and
(ii) with
imprisonment upto six months or a fine which may extend to ten
thousand rupees for the second or subsequent offences.
22. Compounding of offences.--The Authority may in such manner as may
be prescribed, compound any offence, under this Act which is
liable to be punished with a fine not exceeding two thousand
rupees.
23. Offences
by Companies.--If an offence punishable under this Act
is committed at any time by a company every person who is in
charge of and responsible to the company for the conduct of
its business at the time of the commission of the offence and
the company shall be deemed to be responsible for the offence
and shall be liable to be proceeded against and punished accordingly:
Provided that where any offence under
this Act has been committed by a company and it is proved that
the commission of the offence is with the consent and connivance
or attributable to any neglect on the part of any Director, Manager,
Secretary or other officer of the company such Director, Manager,
Secretary or other officers shall be deemed to be responsible
for that offence and shall be liable to be proceeded against
and punished accordingly.
Explanation.--For
the purpose of this section,-
(a) 'Company'
means any body corporate and includes a firm or other association
or individuals; and
(b) 'Director'
in relation to a firm means the partner in the firm.
24. Appeals.--(1) Any person aggrieved by the decision or action
of the Authority under this Act may, within thirty days from
the date on which such action is taken or the date of communication
of that decision to him, and remitting such fees as may be determined,
prefer an appeal to such Authority as may be prescribed:
Provided that the Appellate Authority
may, entertain an appeal preferred after the expiry of the said
period of thirty days if it is satisfied that the appellant had
sufficient cause for not filling the appeal in time.
(2) On
receipt of an appeal under sub-section (1) the
Appellate Authority shall dispose of the appeal as early as possible
after giving the appellant a reasonable opportunity of being
heard.
25. Accounts
and Audit.-- (1) The Authority shall maintain true and
proper accounts and other relevant records and prepare an annual
statement and a balance sheet containing accounts of income
and expenditure in such form and in such manner as may be prescribed.
(2) The
accounts of the Authority shall be inspected and audited in accordance
with the provisions of the Kerala Local Fund Audit Act, 1994
(14 of 1994).
(3) The
accounts of the Authority as audited and certified together with
the audit report thereon shall be forwarded annually to the Government
and the Government shall, as early as possible cause the same
to be laid before the Legislative Assembly.
26. Removal of difficulties.-- (1) If
any difficulty arises in giving effect to the provisions of this
Act, the Government, may by order, do anything not inconsistent
with the provisions of this Act, which appear to be necessary
for the purpose of removing the difficulty;
Provided that Government shall not
issue any order under this sub-section after the expiry of two
years from the date of commencement of this Act.
(2) Every
order issued under sub-section (1) shall be laid, as soon as
may be after it is made, before the Legislative Assembly while
it is in session for a total period of fourteen days which may
be comprised in one session or in two successive sessions and
if before the expiry of the session in which it is so laid or
the session immediately following, the Legislative Assembly make
any modification in the order or decides that the order should
not be issued, the order shall thereafter have effect only in
such modified form or be of no effect as the case may be; so,
however, that any such modification or annulment shall be without
prejudice to the validity of anything previously done under that
order.
27. Power to make rules.--
(1) The Government may,
by notification the Gazette,
make rule to carry out the provisions of this Act.
(2) In
particular, and without prejudice to the generality of the foregoing
power such rules may provide for the following matters, namely:--
(a) service
conditions of the members of the Authority;
(b) procedure
for convening meetings of the Authority and other matter ancillary
thereto;
(c) powers
and functions of the Secretary of the Authority;
(d) duties
and service conditions of the staff of the Authority;
(e) any
other manner of issuing notification under sub-section (3) of
section 6;
(f) format
of application form, permit and the certificate of registration
under various sections of this Act;
(g) mode
of keeping and maintaining samples of soil and other materials
as per clause (d) of sub-section (1) of section 15;--
(h) for
specifying the Appellate Authority and the fee payable along
with the appeal memorandum under sub-section (1) of section 24;
(i) any
other matter which is required to be, or may be prescribed,
(3) Every
rule made under this Act shall be laid as soon as may be after
it is made, before the Legislative Assembly, while it is in session, for a total period of fifteen days which may be comprised
in one session or in two successive sessions and if before the
expiry of the session in which it is so laid or the session immediately
following, the Legislative
Assembly makes any modification in the rule or decides that the
rule should not be made, the rule shall thereafter have effect
only in such modified form or be of no effect as the case may
be; so, however, that any such modification or annulment shall
be without prejudice to the validity of anything previously done
under that rule
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