Absolute Dominion Over Percolating Water, and How It Broke
Chapter Twenty-Eight
Syllabus topic 1, "Water"
Pages 114 to 119 of 885
In one line
English law let a landowner take as much underground water as he liked because nobody could trace it, India copied the rule into the Easements Act, and the courts have been dismantling it ever since.
In the wording a student can write in an exam: the rule of absolute dominion is that percolating water, not flowing in a defined channel, belongs to the owner of the land above it, who may abstract it without limit and owes no duty to a neighbour; it entered Indian law through illustration (g) to section 7 of the Indian Easements Act, 1882, and has been qualified by article 21, by State groundwater legislation and by the Kerala High Court's holding that an owner ordinarily has a right to draw water in reasonable limits, though it has never been expressly abolished; a single judge's attempt to displace it with the public trust doctrine was reversed in part on appeal in 2005.
Where the rule came from
The English rule was settled in the nineteenth century on a simple reason: the movement of water under the ground could not be traced, so no court could say whose abstraction had caused whose loss. Rather than decide the undecidable, the courts declared that percolating water was nobody's until captured and that a landowner might take it without restriction. The rule was a confession of ignorance dressed as a principle of property.
The distinction the English courts drew was between water in a defined channel, which attracts riparian rights, and water percolating through the soil, which does not. That distinction is in the Indian statute in terms.
The Indian statutory footing
Illustration (g) to section 7 of the Indian Easements Act, 1882. "The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel."
Read against illustration (h), which gives the owner of land on a natural stream a right that the water flow past him without material alteration, the contrast is exact. Water in a channel is shared and protected. Water in the pores of rock is the surface owner's to collect and dispose of.
Section 7 makes the owner's exclusive right to enjoy his property "subject to any law for the time being in force", and that is the doorway through which every groundwater statute enters.
How the rule broke
First, by the physical facts becoming traceable. The reason for the rule was that nothing could be traced. Piezometers, aquifer mapping and the Central Ground Water Board's assessment units have made the movement of ground water measurable. A rule whose only justification was ignorance cannot survive knowledge.
Absolute Dominion Over Percolating Water, and How It Broke
Second, through article 21. In Attakoya Thangal v. Union of India, a decision of the Kerala High Court of 1990, the Court held that the administration could not pump the ground water of Lakshadweep so as to destroy the fresh water lens, because the right to sweet water is an attribute of the right to life. Facts. The administration proposed to augment supply by digging wells and pumping; the petitioners said the lens was 0.6 to 0.75 metres deep and would be penetrated by sea water. Held. No administrative agency may make inroads into article 21; over-exploitation must be contained; a methodology for extraction must be evolved and, if necessary, statutory regulations made and a monitoring agency set up. Why it matters here. It is authority that even the State may not simply take what is under the ground.
Third, through the public trust doctrine, in a decision later reversed in part. In Perumatty Grama Panchayat v. State of Kerala, 2004 (1) KLT 731, a single judge of the Kerala High Court applied the doctrine to an aquifer. Facts. A soft drinks and bottled water plant at Plachimada met its water needs largely from ground water drawn through bore wells. The panchayat resolved not to renew its licence, recording that the excessive exploitation had dried up the wells and ponds nearby, caused deterioration in the quality of the limited water available and acute drinking water scarcity, and on 15 May 2003 cancelled the licence. On the company's appeal the Government stayed the cancellation and directed the panchayat to have the matter investigated by a team of experts and decide afresh; the panchayat challenged that order.
Held. The public trust doctrine stated in M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388, is part of Indian law; ground water is a national wealth belonging to the entire society, which the State and the panchayat, as trustees, are bound to protect from excessive exploitation; the ground water under the company's land did not belong to it, and it had no legal right to extract so huge a share. The company was to stop drawing ground water after one month; the panchayat was to renew the licence if it used other sources; and the company was to be permitted, from open dug wells only and transparently, only the quantity of water that a landowner with 34 acres would extract for domestic and agricultural purposes, as ascertained by the panchayat with the Ground Water Department.
Reversed in part. On appeal a Division Bench of the Kerala High Court, on 7 April 2005, 2005 (2) KLT 554, held that ordinarily a person has the right to draw water in reasonable limits without waiting for permission from the panchayat and the Government, this being the rule and restriction the exception; that the reliance on Kamal Nath was not sufficient to dislodge that claim; and that the observation that the ground water under the company's land did not belong to it may not be a correct proposition in law. The permissible restriction in the public interest is to ensure that the owner does not by his conduct bring about a drought or an imbalance in the water table, and, acting on an expert committee's report, the Bench allowed the company to draw up to 5 lakh litres a day for 2005-06. The Supreme Court closed the appeals in July 2017, after the company said it would not resume operations, without deciding the question. Why it matters here. It shows how far the public trust argument was taken against a landowner and where it stopped: on appeal the landowner kept a right to draw water, confined to reasonable limits. Cite the single judge only together with the reversal.
Absolute Dominion Over Percolating Water, and How It Broke
Fourth, by statute. The Central Ground Water Authority notifies areas in which extraction requires permission, and State Acts such as the Maharashtra Groundwater (Development and Management) Act, 2009, require registration of wells, restrict sinking in a notified area, and put drinking water first. Section 7 of the Easements Act yields to each of them, because it is subject to any law for the time being in force.
Broken down: what survives of the rule
A landowner may still sink a well and draw water on his own land, in an area that is not notified, for his own use. That is the ordinary case and no statute forbids it.
What no longer survives is the "absolute" part. He may draw only in reasonable limits, and may be restrained from bringing about a drought or an imbalance in the water table by his drawing, the restriction the Division Bench in Perumatty accepted in 2005; he may not defeat another's right to drinking water, because that is protected by article 21; and in a notified area he may not draw at all without permission.
And the malicious abstraction case was always outside the rule. Even at common law an owner who pumped only to injure a neighbour, without benefit to himself, was liable in some jurisdictions, and the Indian position under section 7 is subject to the general rule against a use that is not a use at all.
Worked example
A bottling plant buys two hectares in a semi-critical block and sinks six bore wells at two hundred metres.
Absolute Dominion Over Percolating Water, and How It Broke
Step one, the common law answer. Illustration (g): the water under the land is the owner's to collect and dispose of. Nothing to be done.
Step two, the trust answer, and its limit. The single judge in Perumatty held ground water a national wealth held in trust and denied a bottling company any right to so huge a share of it; but the Division Bench reversed him in part in 2005: ordinarily an owner may draw water in reasonable limits, restriction is the exception, and the restriction is to stop him bringing about a drought or an imbalance in the water table.
Step three, the constitutional answer. Attakoya Thangal: the right to sweet water is part of article 21, and the villagers whose wells have failed may invoke it against the State's inaction.
Step four, the statutory answer. If the block has been notified by the Central Ground Water Authority, abstraction needs permission. In Maharashtra, if the watershed is notified as over-exploited, sinking a well needs permission and a public drinking water source is protected within a prescribed distance.
Step five, the practical answer. The panchayat's licence is a weaker lever than it looks. At Plachimada the single judge held the panchayat's order closing the unit for excessive extraction unauthorised, and the Division Bench held that it had no legal authority to cancel the licence, directed it to consider renewal, and allowed the company up to 5 lakh litres a day for 2005-06 on an expert committee's report: the effective control was a daily limit fixed on expert data.
Distinctions
| Water in a defined channel | Percolating water | |
|---|---|---|
| Illustration | (h), and (j) for use | (g) |
| Who has rights | Every riparian owner, equally | The surface owner, exclusively |
| Duty to others | Not to alter the flow materially; not to injure other like owners materially | None at common law |
| Remedy of a neighbour | A suit for injunction and damages | None at common law; today, article 21, the statute, and a restriction on drawing that brings about a drought |
| Why the difference | The flow can be seen and measured | It could not be traced in 1882 |
What it does NOT mean
It does not mean the rule has been abolished. No Indian statute says that percolating water is not the landowner's. What has happened is that the rule has been overlaid: by a fundamental right, by regulation and by the Kerala High Court's insistence on reasonable limits, the single judge's public trust holding in Perumatty having been reversed in part on appeal. A student who writes that absolute dominion has been abolished is overstating, and one who writes that it still governs is understating.
It does not mean a landowner needs permission everywhere. Only in a notified area, or where a State Act requires registration or permission generally.
Absolute Dominion Over Percolating Water, and How It Broke
And it does not mean ground water belongs to the State. The single judge in Perumatty said the State holds it in trust, which is not ownership, and on appeal the Division Bench said that his observation that the ground water under the company's land did not belong to it may not be a correct proposition in law. The distinction is the same one the chapter on who owns water makes about a river.
Limits and criticism
Nothing has replaced the rule with a positive entitlement. A farmer in an over-exploited block knows he may not sink a new well. He does not know how much he may take from the one he has. A quantified entitlement is what the reform literature calls for and what no Indian law yet gives.
And the electricity tariff undoes the regulation. Free power for agricultural pumping is an incentive to draw, and no groundwater statute reaches it.
Quick revision
Absolute dominion: percolating water belongs to the surface owner, who may take it without limit and owes no duty to a neighbour. Its reason was that underground movement could not be traced.
Its Indian footing: illustration (g) to section 7 of the Easements Act, 1882, contrasted with illustration (h) for water in a defined channel. Section 7 is expressly subject to any law for the time being in force.
Four things that broke it: the resource became traceable; article 21 and Attakoya Thangal; the public trust doctrine and Perumatty, reversed in part on 7 April 2005, 2005 (2) KLT 554, which left the owner a right to draw water in reasonable limits, the Supreme Court closing the appeals in 2017 without deciding the question; and State and central regulation.
What survives: ordinary abstraction on one's own land outside a notified area. What does not: an unlimited right to draw regardless of the neighbourhood or of the resource.
Test yourself
1. What was the original justification for the absolute dominion rule? That the movement of water under the ground could not be traced, so a court could not say whose abstraction had caused whose loss.
2. Which illustration to section 7 embodies it, and which one is its contrast? Illustration (g), for water that does not pass in a defined channel; illustration (h) is the contrast, for a natural stream in a defined channel.
3. What did the Kerala High Court hold in Perumatty Grama Panchayat? The single judge, on 16 December 2003, held that ground water is a national wealth which the State and the panchayat hold in trust and must protect from excessive exploitation, and that the water under the company's land did not belong to it and it had no right to so huge a share; he ordered it to stop drawing ground water after one month, save the quantity a landowner with 34 acres would extract for domestic and agricultural purposes, from open dug wells. A Division Bench reversed him in part on 7 April 2005, 2005 (2) KLT 554: ordinarily a person has the right to draw water in reasonable limits, restriction is the exception, and the observation that the ground water under the land did not belong to the company may not be a correct proposition in law. The Supreme Court closed the appeals in July 2017 without deciding the question.
Absolute Dominion Over Percolating Water, and How It Broke
4. Has absolute dominion been abolished in India? No statute abolishes it. It has been overlaid by article 21, by central and State regulation and by the Kerala High Court's holding that an owner ordinarily may draw water in reasonable limits, so that the right survives but is no longer absolute; the public trust reasoning of the single judge in Perumatty was reversed in part on appeal.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.