Kerala High Court
Kunhitharuvai Memorial Charitable ... vs State Of Kerala on 17 December, 2014
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 12TH DAY OF MARCH 2018 / 21ST PHALGUNA, 1939
WP(C).No. 38298 of 2017
PETITIONER(S):
KUNHITHARUVAI MEMORIAL CHARITABLE TRUST
MANASSERY, KOZHIKODE, KERALA-673602,
REPRESENTED BY THE CHAIRMAN, DR.K.MOIDU.
BY ADV.SRI.GEORGE POONTHOTTAM
RESPONDENT(S):
1. STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GROUNDWATER, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2. THE DIRECTOR
GROUNDWATER DEPARTMENT, JALAVIJNANA BHAVAN,
AMBALAMUKKU, KOWDIAR P.O., THIRUVANANTHAPURAM-695003.
3. THE DISTRICT OFFICER
GROUNDWATER DEPARTMENT, CIVIL STATION,
KOZHIKODE-673020.
4. THE SECRETARY
MUKKAM MUNICIPALITY, MUKKAM, KOZHIKKODE DISTRICT-673602.
5. THE MUNICIPAL COUNCIL
MUKKAM MUNICIPALITY, MUKKAM, KOZHIKKODE DISTRICT-673602.
R4,R5 BY ADV. SRI.SURESH KUMAR KODOTH
R4,R5 BY ADV. SRI.K.P.ANTONY BINU
R1-R3 BY ADV. GOVERNMENT PLEADER SRI. PAUL ABRAHAM VAKKANAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-03-2018, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 38298 of 2017 (J)
APPENDIX
PETITIONER(S)' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE REPORT FORWARDED TO THE PETITIONER TRUST BY
THE 3RD RESPONDENT DATED 17-12-2014.
EXHIBIT P2 TRUE COPY OF THE APPLICATION DATED 16-02-2015 ALONG WITH THE
ACKNOWLEDGEMENT.
EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 16-03-2016 SUBMITTED BY THE
PETITIONER TRUST.
EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 23-03-2017 ALONG WITH THE
ACKNOWLEDGEMENT.
EXHIBIT P5 TRUE COPY OF THE REMINDER DATED 08-09-2017 ALONG WITH THE
ACKNOWLEDGEMENT.
EXHIBIT P6 TRUE COPY OF THE REMINDER DATED 04-11-2017 ALONG WITH THE
ACKNOWLEDGEMENT.
EXHIBIT P7 TRUE COPY OF THE APPLICATION NO.A/10/KMCTD(1) DATED
04.06.2014 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.
RESPONDENTS EXHIBITS:
EXT.R4(A): TRUE COPY OF MINUTES OF THE MEETING HELD ON 7.11.2017.
//TRUE COPY//
P.S. TO JUDGE
A.K.JAYASANKARAN NAMBIAR, J.
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W.P.(C).NO.38298 OF 2017 (J)
-----------------------------------
Dated this the 12th day of March, 2018
JUDGMENT
The petitioner is stated to be a Trust conducting educational institutions for various branches. It is stated that the Trust is conducting eight educational institutions including hospitals in the Manassery campus, which is located in a 30 acre property coming under the territorial limits of the 4th respondent Municipality. The case of the petitioner is essentially that, with a view to augment the supply of water to the educational premises, the petitioner had approached the 3rd respondent, seeking permission for digging four bore wells in his property. The application is produced as Ext.P7 along with I.A.No.2951/2018. Acting on the said application, the 3 rd respondent identified areas appropriate for digging of bore wells, and intimated the same to the petitioner as early as on 17.12.2014, as evidenced by Ext.P1 communication. The case of the petitioner is essentially that, notwithstanding Ext.P1 permission having been given by the 3rd respondent, when the petitioner approached the 4 th respondent Municipality for a necessary permit for the purposes of operating the bore wells, nothing was heard from the 4 th respondent W.P.(C).No.38298/2017 2 for a considerable period of time. The petitioner, therefore, by an application dated 23.3.3017 [Ext.P4] approached the 4th respondent yet again for a permit for operating the bore wells for the year 2017-18. It is stated that no action was taken on Ext.P4 by the 4 th respondent, and it is under those circumstances that the petitioner has approached this Court seeking a declaration that the 4 th respondent cannot refuse permission for digging of bore wells in the light of the permission granted by the competent authority under the Kerala Ground Water (Control and Regulation) Act, 2002.
2. A statement has been filed on behalf of the 3 rd respondent, wherein, the stand taken is that the issuance of a permit for installing a bore well is to be granted by the Panchayat/Municipality, and the permission granted by the Ground Water Department is stated to have been after conducting the necessary enquiries contemplated under the aforementioned Act of 2002. In the counter affidavit filed on behalf of the 4th respondent, the stand taken is that the Municipal Council, at its meeting held on 7.11.2017, had deliberated on the issue of grant of permit to the petitioner, and had decided to refuse permission in public interest. It is stated that the decision was taken by the Council on an evaluation of the relevant facts such as drinking W.P.(C).No.38298/2017 3 water availability in the open wells in the area, as also the impact of extraction of huge quantity of ground water on the residents in the locality. The decision of the Municipal Council is produced as Ext.R4(a) along with the counter affidavit of the 4th respondent.
3. I have heard the learned counsel for the petitioner, the learned Standing counsel for the 4th and 5th respondents as also the learned Government Pleader for the 3rd respondent.
On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find from a perusal of the averments in the writ petition and the counter affidavit that, it is not in dispute that the petitioner had the necessary permission from the ground water authorities for installing bore wells in his property [see Ext.P1]. Thereafter, although the petitioner had made attempts earlier to get the permission from the 4th respondent for the purposes of installing and operating the bore wells in his property, the applications submitted by the petitioner were not considered by the Municipality within the time contemplated under Section 416 read with Section 492 (15) of the Kerala Municipality Act. The application for the year 2017 was submitted in 23.3.2017, as evident from Ext.P4 W.P.(C).No.38298/2017 4 acknowledgment received by the petitioner. A reading of Section 492 (15) makes it clear that if an application for permit is not acted upon by the respondent Municipality, within a period of 30 days, then the applicant is entitled to proceed as if the application was allowed. That apart, the decision of this Court in Sudhakaran v. Pallichal Grama Panchayat - [2016 (2) KLT 175] is authority for the proposition that when an applicant for permit is entitled to the benefit of the deeming provision under the Kerala Municipality Act, then the Municipality is obliged to furnish the applicant with a certificate stating that he has obtained the benefit of the deeming provision. It is relevant in this context to note that although the Municipal Council is stated to have taken Ext.R4(a) decision to deny the petitioner the permit as sought for, the said decision was taken beyond the period of 30 days from the date of application, and after the deeming provision had come to the aid of the petitioner in obtaining a deemed permit for the purpose aforementioned. Accordingly, I am of the view that Ext.R4(a) cannot be legally sustained, so as to deny the benefit of the deeming provision to the petitioner. I also find that the only reason stated in Ext.R4(a) for not considering the application of the petitioner is that the grant of a permit to the petitioner would be prejudicial to public interest. There is no mention therein of the factors which had been W.P.(C).No.38298/2017 5 taken into account at the time of arriving at the said decision, although these factors are stated as supplementary reasons in the counter affidavit filed on behalf of the respondent Municipality. In my view, the Council of the respondent Municipality could not have taken a decision to deny the permit especially when the petitioner had already obtained the benefit of the deeming provision, and a deemed permit as contemplated under Section 492(15) of the Kerala Municipality Act. Even if they could, the reasons stated in Ext.R4(a) alone could not have been the basis of a denial of permit, in the absence of any material to show that the respondent Municipality had consulted the relevant statutory authorities prior to their decision. In the result, I dispose the writ petition with the following directions:
(i) The petitioner shall be treated as having obtained a permit in terms of Section 416 of the Kerala Municipality Act and Rules read with Section 492(15) of the said Act. The 3 rd respondent shall, within a period of one week from the date of receipt of a copy of this judgment, issue a certificate to the petitioner stating that he has obtained a permit for installing and operating bore wells covered by Ext.P4 application submitted by him.
W.P.(C).No.38298/2017 6
(ii) In the event of the petitioner preferring an application for renewal of the permit for the ensuing years, the 3rd respondent shall consider the application for renewal in the light of the permit already granted to the petitioner through the deeming provision referred above. To enable the 3rd respondent to do so, I also quash Ext.R4(a) Minutes of the Municipal Council, to the extent they deny the petitioner the benefit of the permit envisaged under Section 416 of the Municipality Act.
(iii) It is made clear that nothing in this judgment shall stand in the way of the Municipality taking steps to restrict the extraction of water by the petitioner from the bore wells installed in his premises. The said action of the respondent Municipality shall, however, be with prior notice of any such proposal to the petitioner, and after considering the petitioner's objections to the said proposal, and after hearing him in the matter.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE prp/13/3/18