Treat illegal tapping of water as criminal offence, says Madras HC

A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth,” said Justice SM Subramaniam while dismissing a batch of 75 writ petitions challenging the GO issued by PWD about issue of No Objection Certificate /Licence for extraction of ground water in TN.

In an order running to over 80 pages, Justice Subramaniam on explaining that Section 378 and 379 IPC deals with intending to dishonestly take movable property out of the possession of any person without that person’s consent moves that property to such taking is said to commit theft, said, “In respect of water and other natural resources, the State is the custodian and in possession of all such national assets including water under the earth.” “Thus, it is unambiguous that water is capable of being stolen since water under the earth is attached to it. Water being a national asset, if it is extracted without any authority of law, then it amounts to ‘theft’ and certainly the persons committing such offence of theft under IPC, is liable to be prosecuted,” the judge added.

Based on this, Justice Subramaniam on confirming the GO passed by PWD, directed the State to abstain from granting licence to commercial establishments to extract ground water for commercial usage in the absence of fixation of water flow meter on the board outlet, which is to be inspected.

Also, directing authorities to inspect the functional quality and other standards of the flow meters fixed by the persons applying for permissions, said, “The flow meter must be sealed in such a way to prevent any tampering by any person. Quantum of water to be extracted are to be fixed periodically as per the assessment to be made by PWD authorities.”

Further, insisting the registration of police complaint in the event of identifying any excess extraction of ground water by tampering the flow meters sealed, Justice Subramanian said, “The case must be registered under section 379 of IPC. In addition, if the water is wasted, then for causing wrongful loss, then section 425 of IPC will also apply.”

The monitoring committee comprising District Environmental Engineer, PWD engineer, Assistant Director of Mining, RDO and a nominee from Central Ground Water Board, is entitled to collect proof and documents in respect of extraction of ground water illegally and excessively and register a complaint with the police for registering a criminal case, Justice Subramaniam added.