The Supreme Court has issued notices to Hindustan Coca Cola, the Kerala Government and Kerala State Pollution Control Board on a special leave petition filed by Perumatty grama panchayat of Plachimada. The panchayat has appealed a ruling of the Kerala High Court ordering it to renew the license for Coca Cola at Plachimada village. Ruling on April 7, the Division Bench of the Kerala High Court, quashed an earlier order of a single judge bench and permitted the Coca Cola factory located in Plachimada village to draw water up to five lakh litres per day, subject to the monsoon being normal. Justices M Ramachandran and K P Balachandran passed the orders. Plachimada is an impoverished village largely populated by tribals, dependant almost totally on rainfall for domestic and irrigation needs. (One lakh = 100,000)

The Coca Cola factory was set up with much fanfare and it was originally welcomed as it provided some employment and the Panchayat an income by way of taxes. But ground water shortage hit the region in 2002 and tribals spearheaded the agitation against the factory with the backing of almost all political parties and the active support of many NGOs and social organizations. Responding to popular will, the Perumatty Panchayat refused to renew the water license of the company.

Coca Cola had appealed to the High Court against the decision of the Panchayat, but on 12 December 2003, a single judge bench of the court had upheld the decision of the Panchayat. The court said that the Panchayat and the government are bound to protect groundwater from excessive exploitation. The agitation in the meantime gained worldwide attention. 22 April, 2005 was the third anniversary of the Plachimada agitation.

The investigation team

Dr EJ James, Convener, Executive Director, CWRDM.
G.Gopalakrishna Pillai, Hydrogeologist, state's Groundwater Department.
V C Jacob (Retd Director, CGWB), Representative of Hindustan Coca Cola Beverages.
R V Satheesan Thampuran, Sr Environmental Engineer, KSPCB.
Dr S P Rajagopalan, Head, CAD, CWRDM.
Dr M Nazimuddin, Head, GWD, CWRDM.
Dr NB Narasimha Prasad, CWRDM.
V P Dinesan, Scientist, CWRDM.
P K Abdulla, CWRDM.
Dr C U K Warrier, CWRDM.
P Manjula, CWRDM.

For arriving at its recent decision to overturn the earlier ruling, the Division Bench had relied heavily up on an enquiry report submitted by an investigation team. The team's objective was to scientifically find out the real state of water availability at Plachimada and whether the extraction of water by the Cola company caused water shortage/scarcity in the vicinity as alleged by the local people, the Panchayat, NGOs and other organizations. The team consisted of experts and was constituted at the behest of the High Court during the earlier hearing of the case.

The Executive Director of Centre for Water Resources Development and Management (CWRDM) was the Chairman of the investigation team. A representative each from the Kerala State Groundwater Department, the State Pollution Control Board and Hindustan Cocoa Cola Beverages were to be the members. This committee was also authorized to nominate seven others to the team from the CWRDM. The investigation team was given a year's time to study and submit a report. Significantly, all the expenses of the study and the team were to be met by the Coca Cola company. Neither a Panchayat official nor members of other organizations had any representative in the investigation team.

The team submitted its report in March this year concluding that there was adequate scope for Coca Cola with withdraw groundwater from the area at 5 lakh litres per day.

The findings and their basis

The Cola factory is situated in Plachimada, which is in Chittur Block. The investigation team reached the conclusion that this block has a water availability of 66.7 MCM (Million Cubic Meter) per annum and will remain so without variation till 2025. Out of this, the committee allocated 62.5 MCM for domestic and irrigation sectors. The report said:

"this leaves an annual balance of about 4.2 MCM of groundwater resources for meeting other uses of water of which the requirement by Cocoa Cola factory forms only part. As the ground water recharge is more or less evenly distributed over the whole Chittur Block, the balance of 4.2 MCM cannot be withdrawn from one single location, but has to be well distributed over the full area. As a first approximation, it is probably realistic to limit the withdrawal from a single location in the Block to about 5% of the balance amount of 4.2 MCM, or in other words, 0.21 MCM at each such location. The annual gross groundwater draft required by the Cocoa-Cola factory at 5 lakh litres per day is 0.1825MCM, which is safely lower than 0.21 MCM. It can be therefore, concluded that there is adequate scope for the Coca Cola factory to withdraw groundwater at the rate of 5 lakh litres per day."

The report then goes from the Chittur Block to Plachimada proper. According to the report, the estimated annual available groundwater in the Plachimada watershed is 3.67 MCM. The requirement for domestic use and irrigation is put at 3.42 MCM leaving a balance of 0.25 MCM for other uses. The requirement of the Cola factory is only 0.1825 MCM and so they can safely draw the quantity without affecting the community around the factory, concludes the investigation team.

There are several anomalies in this conclusion.

1. Incomplete estimation of water usage/demand

The statistics relied on by the investigation team is of 2001. So it safely overlooks the urbanization, the filling up of paddy fields for construction of houses, and the drastic reduction in rainfall in the interim three years that would certainly have affected the recharge of groundwater. The number of new households that have additionally come in and the consequent increase in use of water for domestic needs has been ignored.

Another glaring omission is the water required by cattle. According to a survey conducted by the Economics and Statistics Department in 2001, the Chittur Block had 67144 heads of cattle. Even at a lower average of 80 litres per animal per day (vetinary doctors at the government's livestock department provided estimates), there is a requirement of 5,371,520 litres every day which would work out to 1.95 MCM per annum. That would also reduce the available water for 'other uses' to a mere 2.25 MCM.

The report says that it would be realistic to limit the withdrawal from a single location to 5% of the balance amount. What is scientific and realistic about the 5% was left unexplained by the team. They appear to have arbitrarily assumed that a given spot in a particular area will have 5% of the total available groundwater. It could very well have been 1% or 10% 0.5%. But going by the team's own parameters, 5% of the remaining 2.25 MCM is only 0.1125 MCM. Where is the Cola factory going to get 0.1825 MCM from? So much for conveniently forgetting the thirst of the dumb animals.

2. Rainfall trends and the X factor

Next, the investigation team fixed an 'X' factor. X is the deviation from the mean rainfall in any particular year and determines whether the factory can draw its full permitted quota of water, and if not, how much it could withdraw. The company can draw the full requirement of 5 lakh litres during the monsoon season, from June to December. However, the drawing from December to May will depend on the X factor.

Explained in simple terms, if the rainfall is greater to or equal to the mean rain fall, then the factory can draw the full quota of 5 lakh litres during this period too. If the rain is less by zero to 10%, the drawing is limited to 4 lakhs, if it is less by 10 to 20%, then 3 lakhs, if the rainfall is less by 20 to 30 %, 2 lakh litres and if the rain is less by 30% or less, then the company cannot draw any water.

On the face of it, this is quite scientific and fair. But the crux here is this: how the mean rainfall is determined is going to impact how much water Coca Cola will be permitted to withdraw. A lower mean rainfall value would mean that during a year when the rainfall is actually less, the deviation from the mean is going to be less, which in turn allows the factory to draw more water. But meterological records show that that the annual rainfall has shown a reducing trend in the last one decade and the trend is not very likely to be reversed in the immediate future.

How did the investigation team proceed to estimate the mean? The Indian Meteorological Department has laid down the rule that the mean rain fall of a particular area is the average of the rainfall of the last 80 years. This is the option the team must have exercised. But the team calculated the mean by taking into consideration the figures for only the last 10 years, where the rainfall had already shown a reducing trend, thus ensuring that the mean remains really low.

(The annexure to the team's report contains the rainfall rates for the last 10 years. Regional rainfall records for the last hundred years are available with the Indian Meteorological Department.)

The choice of 10 year mean is surprising even otherwise. The team seems to have estimated water availability without variation till 2025 which is 20 years from now. Using a 10 year mean for this calculation could itself be a point of principle objection. It only further strengthens the case that the team should have stuck with the IMD's 80 year mean estimation.

But there is more. Plachimada does not have a rain gauge station. There is one at 6 km south, at Chitturpuzha. Equidistant from Plachimada, there is another one at Meenkara, 6 km north. The mean rainfall at Chitturpuzha was 1413 mm and that at Meenkara was 1513 mm. The committee very innocently assumes the lower figure for Plachimada. The consequence of this decision is better explained by an example.

The rainfall for the year 2003-04 for Chitturpuzha was 1021 mm. Let us assume that keeping in with the decreasing trend, the rainfall for the next year is 1020mm. If this is treated as the rainfall available at Plachimada, as per the X factor calculation, the company can draw 2 lakhs litres of water, because the variation is between 20 to 30%. At the same time, if the mean of equidistant Meenkara is was taken as reference, then 1020mm is 32.58% lower than 1513mm (Meenkara). Since the deviation exceeds 30%, the factory is not eligible for a drop of water. But by arbitrarily choosing the lesser mean, the factory is benefited.

3. Government procedures to estimate ground water levels

The Ministry of Water Resources of the Government of India had a set up a committee in 2002 for arriving at a methodology for resources estimation in hard rock terrain. In the report submitted by the committee, two tests have been made mandatory for estimating ground water resource at any given location. They are the 1000-minutes long pumping test and the 400-minutes long 'step draw down test'. These two tests would have easily indicated the effect if any on the wells in the locality, when the Cola company is drawing water from its own wells. The Investigating Team never bothered to do these tests.

But the team did study the water levels in selected wells while the company was drawing water. It observed that the water in five wells was polluted and that the water level in four wells had gone down steeply during the months when water was being drawn. It also observed that the water levels were restored once the Cola factory ceased to function (following a government order). Still, these facts do not find mention in the body of the team's report and are scattered around in the annexure that contains statistics.

The High Court had specifically asked the investigation team to find out if "shortage/scarcity" of water had been caused in the neighbourhood due to the extraction of water by the factory. In water management parlance, 'shortage/scarcity' means two things: lack of adequate quantity of water, or, even if water is available, it cannot be used because of its bad quality. The report is silent on the quality aspect.

4. Nature of investigation

For its research, the team collected available data from CWRDM, the State Groundwater Department and the Indian Meteorological Department and collated them. There was little additional field study. Members also ignored the fact that replenishment of groundwater is dependant on many other factors like the rock terrain formation of the area, the 'evapo transpiration' rate, the general atmospheric temperature of the area, the speed of wind, and the rate of urbanization, apart from rainfall.

In sum, an indepth study of the report reveals that the investigation team appears to have had an altogether different agenda from that of what the High Court asked. That the Coca Cola company should be in a position to draw 5 lakh litres of water everyday seems to have been the objective of the experts.

The ruling

Despite the findings being as they were, the court accepted the report in full. The judgment says: "The final report of the company is comprehensive and it could be gathered therefrom that a scientific investigation on the groundwater potential of the area and the shortage and scarcity of drinking water in the nearby area due to the current level of water extraction by the company has been made". Further on it says: "We find that the report of the Committee is fair, it appears to be authentic, based on data collected, mature and therefore acceptable".

The court also gave the company the onus of providing drinking water to the public of Plachimada. "The factory is drawing water resources from Plachimada watershed and also from other regions of Chittur Taluk through suction. Therefore, a reasonable amount of water so drawn are (sic) to be utilized for the benefit of the public and as directed by the Panchayat from time to time. The restriction imposed for its own consumption will not be applicable when water is drawn for this additional requirement".

On the face of it, this appears to be a benevolent order. But the panchayat has not been the given the authority to supervise this operation and it has been only authorized to 'direct' the company. This could very well be limited to telling the company how much water is required by the people. The investigation team has estimated the population of Plachimada at 9038 and the required water per capita per day is put at 160 litres. (The population of Chittur Block as per 2001 census was 158,510.)

Justices M Ramachandran and K P Balachandran went on to observe that none of the concerned parties to the litigation had pin-pointed any serious discrepancies in the investigation team's report. On 17 March, 2005, the court ordered that the copies of the report be made available to all the concerned parties and the case was posted for further hearing on 30 March. So it can reasonably be assumed that everyone had enough time for analysis of the report. Despite this, none of the parties who were in the battle against the Company could bring to the court's attention the truths hidden in a cleverly woven maze of statistics.

Thus half-truths carried the day. No one concerned with the matter has also complained that they did not get the report or about lack of time for detailed study. The panchayat did present a note circulated by the Centre for Science and Environment disputing the quantity of groundwater available at the location, but the High Court chose to ignore it altogether.

Conflict of interest within

The findings of the team were also based on its internal report 'a brief report on the Geology of the area'. The geologist who represented the groundwater department is not a hydrogeologist by educational qualification. He has a degree in geology; hydrogeology is not in the syllabus at the graduation level.

In any case, as a representative of the state's groundwater department, he must have prepared this report for the investigation team, but he did not.

The minutes of the Committee meetings reveal that it was V C Jacob, Retd. Director, Central Groundwater Board, Trivandrum, who prepared the geology report. Jacob was also the representative of the Coca Cola company in the Committee.

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The High Court on the state government's attitude

The court also came down heavily on the attitude of the Kerala government. The affidavit on its behalf was signed and submitted by the junior most possible scientist-functionary in the State Groundwater Department, a 'geological assistant'. "Evidently the attempt of the government was to escape from a possible pique of indiscretion that otherwise might have been suggested", the court observes. "Perhaps it filed purely for the purpose of records; if not to appease the gallery".

But an impartial observer would only feel that the stand of the government is fully in keeping with its dubious record of deliberately losing cases in which it has been impleaded due to popular pressure. (In the Suryanelli rape case, all previously convicted by a trial court except one were acquitted by the High Court; in another case, the Supreme Court quashed the order of the state government banning other-state lotteries and on-line lotteries.)

The court went further and remarked at the impropriety of a junior functionary being made to "swear an affidavit controverting the findings of the Expert Committee especially since his superior officer (Hydrogeologist, Groundwater Department) was one of the members of the committee".

Court's observations on water and property

Some observations of the High Court went into dimensions beyond Coca Cola and Plachimada. "We have to assume that a person has the right to extract water from his property, unless it is prohibited by a statute". A consequence of this would be that a person owning just a square foot of land, just sufficient to sink a bore well can extract any amount of water as it has been mentioned elsewhere in the judgment that he is the owner of what is underneath the land. Second, the court says that as a 'legal man', the corporate has all the rights of a 'natural man', a conclusion, fraught with frightening implications.

The most interesting observation from the High Court is regarding water itself. The judgment comments that water is not a treasure-trove. This at a time when the whole world is apprehensive about future "Wars for Water"!

On to New Delhi

Since the orders of the court, Coca Cola applied for renewal of license for resuming production. The Perumatty Panchayat rejected the application on the grounds that it has not produced the requisite license under the Factories Act and the clearance of the Pollution Control Board. The panchayat has since appealed to the Supreme Court for revocation of the High Court order. But apparently, the panchayat's special leave petition raises none of the irregularities and inconsistencies in the investigation team's report. It seems that "the rights of a grama panchayat to drinking water and for agricultural purposes in contrast to the right of a multinational company to extract water" has been made the main bone of contention.

The 'War for Water' has now opened a new front at New Delhi. (Quest Features and Footage)