But not a drop to drink

Legal aspect of ground water use by industries

Human activities can pollute groundwater, and this is where every person can help protect groundwater — both in terms of groundwater quality and quantity. There are two fundamental categories of groundwater protection: First, keeping it safe from contamination, and secondly using it wisely by not wasting it.

We all know the importance of water for the people, businesses, wild life and natural lands, all need adequate water there. Therefore it is the responsibility of Government to take sustainable measures and provide for a comprehensive water policy guidelines to ensure provision of clean water to masses.

Groundwater is found underground in the cracks and spaces in soil beneath land. It means that by virtue of owning a piece of land every human being has propriety rights over the underground water. Every individual has control over groundwater being a part and parcel of land. Being a natural resource available with access from one’s piece of property, the law recognises that the title of ownership of ground water vests with the owner of land. Therefore land owner possesses not only collection right over underground water but can also dispose of water as commercial commodity. The said position however, leaves one to think that the people who do not possess any land, can they claim any propriety rights over the groundwater.

It is observed that there exists no specific law in Pakistan which clearly define ownership and rights over groundwater sources; however after referring to different legislations one can gather that rights of ground water are associated with ownership of land. It is not therefore clear that whether ground water is a resource meant for public use and can it be regulated by the Government.

Is there any specific legislation available that regulate Ground Water in Pakistan? The answer to this question leads us to fact that after independence, Pakistan has followed the British tradition. Therefore legal principle evolved by the British Courts, known as common law principle, was followed in Pakistan. However, there was no specific law in Pakistan to regulate or control groundwater use.

Under common law, groundwater was considered as part and parcel of the land and accordingly the owner of the land could dig well(s) in his land and extract unlimited quantity of groundwater he may want. The land owner was not responsible for any damage caused to water resources as a result of his over extraction. It left open for the land owner to exploit and use groundwater with an intention to cause injury to neighbours’ wells. This legal principle could be seen in some laws dealing with land rights, for instance, the Easements Act, 1886. This principle was also endorsed by courts during pre-independence period.

Even till today common law principles are part of groundwater law in Pakistan and will remain as a part of groundwater law until and unless Governments make specific groundwater laws. The importance of fair use of ground water has been upheld by superior courts in Pakistan. A best example of this is the decision of Sindh High Court in the cases of illegal hydrants supplying water to the industries.

Water rights are determined by Land rights. It can be determined who actually possesses the ownership rights over ground water under the Easement Act, 1882. A cursory view of Transfer of Property Act of 1882 and the Land Acquisition Act of 1894 also show that ground water is connected to the land as dominant heritage and cannot be transferred apart from the land. An ‘easement’ is a right that the owner or occupier of certain land possesses, for beneficial enjoyment of that land. Examples of easements are right of way, right to light and air, and right to standing or flowing water not on one’s land. Section 7(g) of the Easement Act states that every landowner has the right to “collect and dispose” of all water under the land within his own limits, and all water on its surface that does not pass in a defined channel. Hence, by this Act, the owner of a piece of land does not, strictly speaking, “own” the groundwater under the land or surface water on the land; he only has the right to collect and use the water.

It is an admitted position that throughout Pakistan, a well belongs to the person who is the owner of land where that well exists and general public has no claimable rights to extract water from that well. There are also other legislations and irrigation laws, which provides for rights of Government on surface water, however these laws do not mention groundwater.

UK-based Water Aid recently released a report on the eve of World Water Day, stating that water quality throughout the world has deteriorated, with Pakistan being no exception. Around 16 million people of Pakistan do not have access to clean water and there are also inequalities in the cost of the commodity, with the poor having to pay more. According to the report: “Pakistan is among the top 10 countries with the greatest number of people living without access to safe water…they have no choice but to collect unsafe water from unsafe sources.” About 84 to 89 pc of the country’s water sources do not meet the water quality standards for human consumption, because of which about 53,000 children die of diseases like diarrhoea every year and over 3 million people suffer from water born diseases, the report says.

It is need of the time that there has to be a special regulatory authority to regulate the water use by the industries or any activities of commercial use for the groundwater. It is abundantly clear that although everyone has exclusive right to use the ground water existing beneath his land but at the same time such right should not be exercised in a way to deprive others from their right to have availability of clean water. It necessitates that commercial and industrial use should be subject to regulatory regime promoting fair use of groundwater. Like other commercial commodities, there should be a price/cost prudently determined by an independent institution. Putting a price on groundwater may not be a simple task but there should be clarity on various cost components for the industrial use to determine the cost for using groundwater. An option of claiming a royalty for use of groundwater can be explored but given the fact that under section 7 of Easement Act, ownership of ground water vests with landowner, in the absence of any other legislation, imposition of royalty over groundwater may be legally contentious.

The proposed law should specifically take into the following aspects:

  • Compulsory registration of bore well-owners.
  • Compulsory permission for sinking a new borewell.
  • Creation of a groundwater regulatory body.
  • Restrictions on the depth of bore wells.
  • Establishment of protection zones around sources of drinking water.
  • Periodical reassessments of groundwater potential on a scientific basis, considering quality of water available and economic viability.
  • Regulation of exploitation of groundwater sources so that extraction does not exceed recharge.
  • Development of groundwater projects to augment supplies.
  • Integrated and coordinated development of surface water and groundwater so that they are used conjunctively.
  • Prevention of over-exploitation of groundwater near the coast to stop the ingress of seawater.

The basic scheme of the law should be to provide for the establishment of a grounder water authority under the direct control of the Government. The authority should be given the right to notify areas where it is deemed necessary to regulate the use of groundwater. The final decision however in this regard should be taken by the Government. It would be of great importance if the draft bill proposes public participation in regulated aspect of the authority. In any notified area, every user of groundwater should apply for a permit from the authority unless the user only proposes to use a hand-pump or a well from which water is drawn manually. Wells should be registered even in non-notified areas. Decisions of the authority in granting or denying permits should be based on a number of factors which may include technical factors such as the availability of groundwater, the quantity and quality of water to be drawn and the spacing between groundwater structures.