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close this bookEfficiency and Equity In Groundwater Use And Management - Workshop Report 3 (IRMA, 1989)
View the document(introduction...)
View the documentAcknowledgements
View the documentAbbreviation
View the document1. Introduction
View the document2. Groundwater resource position
Open this folder and view contents3. Issues in the eastern - Gangetic region
Open this folder and view contents4. Issues in north west region
Open this folder and view contents5. Issues in the hardrock areas of the southern peninsula
Open this folder and view contents6. Institutional arrangements : public tubewells
Open this folder and view contents7. Institutional arrangement : community tubewells
Open this folder and view contents8 Groundwater markets
View the document9. Institutional arrangements : legal issues
View the document10 Agenda for future research and actions
View the documentReferences
View the documentList of participants

9. Institutional arrangements : legal issues

The questions of allocation of ownership and use rights on groundwater are among the least understood; what is worse, they are also among the least researched. This major research gap is surprising especially because it is common knowledge that in order to promote efficient exploitation and use of a resource such as groundwater, property rights need to be well defined and enforced. If enforceable property rights are assigned to individuals, much externality in groundwater use and management could be internalised through market forces. At one level the question is: what should be the structure of rights to be created on groundwater which would be consistent with the efficiency and equity goals? At the implementation level, the question is what are the resources and the level of political and administrative will required to enforce a given structure of property rights.

While there was no paper which dealt with the issues involved except a note by Jacob, because of its importance, the subject generated much discussion especially on whether groundwater is a common, public or private property. The difference between what is and what ought to be was discussed in some length. It was widely recognised however that, for all practical purposes, groundwater is open access resource until it is captured and privatised as soon as it is captured by whoever captures it first. Chandrakanth explained how there is a strong propensity to capture property rights on groundwater by preemptive exploitation as the users know that deferred use is subject to great uncertainty. On similar reasoning, Patil and Kulkarni considered it as private property of the land owners since capture would also depend upon ability to invest in WEM. The standard practice of regarding groundwater as common property resource, in any case, needs further scrutiny.

Mueller discussed water rights within the framework of the property right doctrine which states that the property rights are sanctioned relations among people that arise from the existence of things and pertain to their use (Furubotn and Pejovich, 1972). A specific property right might best be characterised by answering the question: Whom can the holder(s) of the right exclude from modifying, transporting, using a particular thing? In other words, who can a well owner exclude from using the groundwater from the aquifer which feeds his well? The answer is: Nobody! It would therefore imply there are no private groundwater rights in India. Can identifiable group of farmers, say farmers of a village, prevent others from pumping water from the aquifer under the village land? No they cannot; this implies that there are no common property rights to groundwater. Can the government prevent farmers from pumping groundwater under their fields? No: therefore there are no public rights to groundwater. Thus in effect there are no property rights to groundwater in India. Groundwater is a free but a scarce resource (Mueller).

Jacob explained that groundwater rights in India are usufructuary, and regulated by Indian Easements Act 1882, which has adopted the common law principle as applicable in England. English Common Law recognises the doctrine of riparian rights to regulate the proprietary rights in water. The essence of this doctrine is recognition of equal rights to the use of water by all owners of land abutting a river as long as there is no resulting interference with the rights of other riparian owners. Each co-riparian has the right to have the water flow pass his lands undiminished in quantity and unimpaired in quality. The upper riparian is required to allow the water to go down in its natural flow to the respective low-land owner, and that too, in its ordinary channel. This amounts to denial of the right to divert streams beyond riparian lands or to consume water beyond the natural uses of human requirements and domestic needs.

Further, English Common Law in percolating groundwater has conferred on every landowner through whose land water is percolating an absolute right to such waters. He/she can extract as much percolating water as he likes leaving his neighbour's well dry. A land owner has a right to sink a bore-hole or a well on his land to intercept water percolating underground through his land and prevent it from going to other man's property. This implies that groundwater rights are associated with land title and, therefore, groundwater is treated as private property.

The law also makes a difference in underground stream and groundwater. In the former case, the doctrine of ripanian right is applicable and in the latter private rights are valid. So far this system has worked because requirement of groundwater was not more than its recharge. But, as increased industrial and agricultural demand have put increasing pressure on groundwater, the English Common Law may have following disturbing consequences: (i) those who do not have land title are systematically excluded from groundwater rights; (ii) in areas with fragile groundwater balance, English Common Law will make it difficult to contain over-exploitation; and (iii) the question posed by Patil and Kulkarni, still remains valid: who owns groundwater when it is harnessed and augmented through construction of percolation tank, check dams or even seepage from canals. Because these structures are built with public money, groundwater recharge there of cannot be treated as natural percolation and as private property.

In areas with high and regular recharge, the question of property rights is still not important though it would soon begin to be so. But in coastal and some hardrock areas where recharge is lower than existing or potential demand, and where saline water is interspersed with fresh water, redefining the rights of individuals, local communities and local and state governments becomes important. While there are grounds to reject outright the doctrine of the English Common Law which leaves groundwater at the mercy of landowners, there is by no means any clarity on what kind of legislation would be equitable, effective and could be enforced cost effectively. Besides, the political aspects of groundwater management cannot be ignored. Current users are concerned about maintaining status quo. At the same time, demand for groundwater for new uses and users is increasing. Any management system, including legislation, must recognise and accommodate the existing users, and conserve and enhance available groundwater supplies. Our understanding of the related issues is limited. There is, therefore, need to examine: (i) to what extent above goals could be achieved through existing legislation, why did existing laws fail, are they really inadequate or is there a fundamental problem with the legal structure itself; and (ii) the efficacy and wisdom of legislative measures or reforms — because there are numerous users. The administrative machinery will have to deal with millions of farmers and therefore legal provisions are difficult to implement cost effectively.

There are good reasons for close examination of these issues because, first, spacing norms, the only statutory provision which affect rights to use groundwater, are hardly enforced, and secondly, there are indications that ill-conceived legislation may do more harm than good. In Uttar Pradesh, in a different context, for example, the Tree Protection Act 1976 enacted to protect trees led to massive felling (Saxena 1987). In contrast to heavy dependence on legislative measures, Dhawan suggests that wisdom lies in paying more attention to the development of surface irrigation works (in reference to hardrock areas), so that a sizeable fraction of surface water ends up in groundwater aquifers. For example, without such artificial recharge of groundwater through extensive development of canal network in Punjab, Haryana and West Uttar Pradesh, intensive farming based on tubewell irrigation would have been decisively less than what it is today.