Kerala High Court
Janardanan.P vs The State Of Kerala on 28 July, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 22ND DAY OF MARCH 2017/1ST CHAITHRA, 1939
WP(C).No. 4326 of 2014 (M)
---------------------------
PETITIONER(S):
-------------
JANARDANAN.P
AGED 72 YEARS, S/O. LATE SRI.K. GOPALAN NAIR,
CHELOORTHODI HOUSE, AMBALAVATTOM, EDARIKKODE P.O.,
MALAPPURAM - 676 501
BY ADVS.SRI.A.JAYASANKAR
SRI.C.V.MANUVILSAN
SRI.MANU GOVIND
SRI.V.HARISH
RESPONDENT(S):
--------------
1. THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT ANNEX,
THIRUVANANTHAPURAM - 695 001.
2. EDARIKKODE GRAMA PANCHAYATH,
EDARIKODE P.O., MALAPPURAM - 676 501,
REPRESENTED BY ITS SECRETARY.
3. THE DIRECTOR,
KERALA STATE GROUND WATER DEPARTMENT,
THIRUVANANTHAPURAM - 695 001.
4. THE ENVIRONMENT ENGINEER,
POLLUTION CONTROL BOARD DISTRICT OFFICE, PERINTHALMANNA
ROAD, KUNNUMMAL P.O., MALAPPURAM - 676 505.
5. THE DISTRICT COLLECTOR,
MALAPPURAM - 676 505.
6. THE DISTRICT TOWN PLANNER
MALAPPURAM - 676 505.
7. THE DISTRICT OFFICER
GROUND WATER DEPARTMENT, MALAPPURAM - 676 505.
WP(C).No. 4326 of 2014 (M)
8. M/S. X MARK FORTUNE LUXURY APARTMENTS,
EDARIKODE, MALAPPURAM,
REPRESENTED BY ITS MANAGING PARTNER - 676 501.
9. IBRAHIM KUTTY,
MANAGING PARTNER, M/S. X MARK FORTUNE LUXURY APARTMENTS,
EDARIKODE, MALAPPURAM, RESIDING AT KOZHIKKODAN HOUSE,
PUTHUPARAMBA P.O., MALAPPURAM - 676 501.
R8 & 9 BY ADVS. SRI.T.KRISHNAN UNNI (SR.)
SMT.P.A.SHEEJA
SRI.SAJU.S.A
SRI.K.C.KIRAN
R2 BY ADVS. SRI.K.R.AVINASH (KUNNATH)
SRI.ABDUL RAOOF PALLIPATH
R4 BY ADVS. SRI. M.AJAY, SC, KERALA STATE POLLUTION
CONTROL BOARD
SRI. T.NAVEEN SC, KERALA STATE POLLUTION
CONTROL BOARD,
R6 & R7 BY GOVERNMENT PLEADER SMT.RAJI T.BHASKAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 4326 of 2014 (M)
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
EXHIBIT-P1 TRUE PHOTOCOPY OF THE BROCHURE SHOWING THE SPECIFICATION OF
THE 8TH RESPONDENT'S PROPOSED PROJECT.
EXHIBIT-P2 TRUE PHOTOCOPY OF THE CONSENT TO ESTBLISH DATED 28/07/2011
ISSUED BY THE PCB
EXHIBIT-P3 TRUE PHOTOCOPY OF THE COMPLAINT DATED 12/12/2012 PREFERRED
BEFORE THE VILLAGE OFFICER, THENNALA.
EXHIBIT-P4 TRUE PHOTOCOPY OF THE COMPLAINT DATED 03/12/2012 PREFERRED
BEFORE THE RDO, TIRUR.
EXHIBIT-P5 TRUE PHOTOCOPY OF THE COMPLAINT DATED 12/12/2012 PREFERED
BEFORE THE SECRETARY, EDARIKODE GRAMA PANCHAYATH.
EXHIBIT-P6 TRUE PHOTOCOPY OF THE COMPLAINT DATED 04/12/2012 PREFERRED
BEFORE THE DIRECTOR OF GROUND WATER DEPARTMENT, THIRUVANANTHAPURAM.
EXHIBIT-P7 TRUE PHOTOCOPY OF THE STUDY REPOT VIDE LETTER NO. GM
1292/2012 DATED 11/06/2013 SUBMITTED BY THE 7TH RESPONDENT TO THE 8TH
RESPONDENT.
EXHIBIT-P8 TRUE PHOTOCOPY OF THE LETTER NO. PCB/MLPM/CE/513/11 DATED
08/07/2013
EXHIBIT-P9 TRUE PHOTOCOPY OF THE APPLICATION UNDER RTI BEFORE THE 6TH
RESPONDENT ON 29/12/2012.
EXHIBIT-P10 TRUE PHOTOCOPY OF THE REPLY DATED 16/01/2013.
EXHIBIT-P11 TRUE PHOTOCOPY OF THE REPORT DATED 17/08/2013.
EXHIBIT-P12 TRUE PHOTOCOPY OF THE RTI QUERY DATED 17/07/2012.
EXHIBIT-P13 TRUE PHOTOCOPY OF THE REPLY DATED 08/08/2012.
EXHIBIT-P14 TRUE PHOTOCOPY OF THE NEWSPAPER REPORT DATED 31/10/2012 IN
MATHRUBHUMI DAILY.
EXHIBIT-P15 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 28/12/2013
PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT-P16 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 28/12/2013
PREFERRED BY THE PETITIONER TO THE 4TH RESPONDENT.
WP(C).No. 4326 of 2014 (M)
EXHIBIT-P17 TRUE PHOTOCOPY OF THE EXTRACT OF THE WATER EXTRACTION
REGISTER ISSUED BY THE GROUND WATER DEPARTMENT, MALAPPURAM ALONG WITH
RTI REPLY.
RESPONDENT(S)' EXHIBITS
-----------------------
EXT.R9(A) THE TRUE COPY OF THE PLAN AND BUILDING PERMIT DATED
25.08.2011 GRANTED BY THE LOCAL AUTHORITY ALONG WITH THE APPROVED PLAN.
EXT.R9(B) THE TRUE COPY OF THE CONSENT ORDER GRANTED BY THE KERALA
POLLUTION CONTROL BOARD DATED 28.07.2011
EXT.R9(C) THE TRUE COPY OF THE PLAN OF THE SEWAGE TREATMENT PLANT
APPROVED BY THE POLLUTION CONTROL BOARD.
EXT.R9(D) THE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE FIRE
AND RESCUE SERVICES DATED 13.07.2011.
ANNEXURE R4 A TRUE PHOTOCOPY OF DIRECTION DATED 06.02.2013
ANNEXURE R4 B TRUE COPY OF THE DIRECTION DATED 15.04.2013.
/TRUE COPY/
P. A. TO JUDGE
Pn
DEVAN RAMACHANDRAN, J.
---------------------------------------
WP(C) No.4326 of 2014
---------------------------------------
Dated this the 22nd day of March, 2017
JUDGMENT
The petitioner claims to be a resident of Edarikkode, Malappuram and he says that a multi-storied residential complex has been constructed by the 9th respondent close to his residential house. He alleges that because of the construction of this building and because of the large water extraction by the residents of the said building, using a bore-well constructed in the complex, water sources to his property, including his well, has become now attenuated, on account of the severe drought that our State is presently facing. He has, therefore, filed this writ petition avouching that the construction of a bore-well will require permission from the Grama Panchayat under Rule 91 of the Kerala Panchayat Building Rules [for brevity, the Rules] and that the 9th respondent, in not having obtained such a WP(C) No.4326 of 2014 2 permission, the bore-well constructed by him should be deemed to be illegal and therefore, shut down. The petitioner has made other corollary prayers also, but what has been recorded above appears to be his primary line of contention.
2. I have heard Sri.Harish Vasudevan, the learned counsel appearing for the petitioner, the learned Government Pleader appearing for respondents 1,3,5,6 & 7, Sri.K.R. Avinash Kunnath, the learned Standing Counsel appearing for the 2nd respondent, Sri.T. Naveen, the learned Standing Counsel appearing for the 4th respondent and Sri.T. Krishnan Unni, the learned Senior Advocate assisted by Sri.Devesh, appearing for respondents 8 & 9.
3. Since the hypostasis of the petitioner's contentions is Rule 91 of the Rules, I have examined it quite in extenso. The provisions relating to wells in general are governed by by Chapter XIV of the Rules, which begins from Rule 91 and ends with Rule 97. Rule 91 provides that no new well can be dug without the permission of the concerned Local Self Government Institution [LSGI]. Rule 93A thereof further provides that in the case of a tube-well, clearance from the Ground Water WP(C) No.4326 of 2014 3 Department shall be obtained and produced prior to the issuance of the permit.
4. Even on an exfacie examination of these Rules, it becomes indubitable that under the regime of these Rules, even a bore-well cannot be dug without the permission of the Secretary of the LSGI and without first obtaining clearance from the Ground Water Department. To that extent, the petitioner is justified in contending in this writ petition. However, in this case I notice that the bore-well admittedly was drilled, by respondents 8 & 9, as early as in the year 2011 when Rule 93A had not been engrafted into the Statute. This Rule was introduced into the Rules by the Kerala Panchayat Building [Amendment] Rules, 2014, which obtained effect from 10.01.2014. I cannot see from the amendment that it is intended to operate retrospectively. Viewed from that perspective, the construction and digging of the tube-well by respondents 8 & 9 in the year 2011 cannot be found to be hit by the rigor of the requirements under Chapter XIV of the Rules. Even though Rule 91 says that no well shall be dug without the permission of the Secretary until 2014, the Rules did WP(C) No.4326 of 2014 4 not provide for these provisions to apply also to tube-wells. All the provisions in the Rules relating to the tube-wells were introduced only with effect from the amendment noticed above. In such view of the matter, the petitioner's action in having dug the tube-well in the year 2011 without the permission of the Panchayat cannot be found to be at fault or to be foul of law. This is more so because I see from Ext.R9(e), which is an information given by the Panchayat themselves, that prior to 2014 there was no requirement to obtain any such licence from its Secretary. When the Panchayat itself has understood the Rules to be so, I cannot blame respondents 8 & 9 in having dug a tube-well in the year 2011 without first obtaining a permission from the Secretary.
5. That having been said, what is now remaining for my consideration is as to what is the relief that the petitioner can justifiably expect from this Court. I understood that the petitioner's concern is that respondents 8 & 9, by indiscriminate drawing of water through the bore-well, would cause shortage of water in the vicinity, specifically this year when Kerala is facing a WP(C) No.4326 of 2014 5 major drought. I am certain that the petitioner's anxiety is justified, since indiscriminate and uncontrolled exploitation of water sources would cause ruin to wells and other sources of water in the neighbourhood and this cannot be permitted. However I do not require to labour much because I see that the Ground Water Department has already prescribed certain strict conditions in its Ext.P7 order, to be followed by respondents 8 & 9 while operating the tube-well. I find those conditions to be very pragmatic and prudent. I am also told that the conditions in Ext.P7 have now also been incorporated into the Consent to Operate issued by the Pollution Control Board under the provisions of the Air and Water Act. If this be so, obviously most of apprehension of the petitioner has been already allayed and his anxiety to a large extent of doused.
6. Having found that the petitioner is now bound by very strict conditions as prescribed in Ext.P7 and that such conditions are now part of the Consent to Operate, I have to now ensure that respondents 8 & 9 comply with these conditions scrupulously in its letter and spirit without violation or exception. WP(C) No.4326 of 2014 6
7. Since I see that Ext.P7 has been issued as early as 11.06.2013 and since after that order our State is facing a severe drought, I am of the view that a fresh joint inspection by the 4th respondent-Environmental Engineer and the 7th respondent- District Officer, Ground Water Department will have to be done in the presence of the petitioner, respondents 8 & 9 and the Secretary of the Grama Panchayat. This exercise shall be done by these respondents as early as possible, but not later than two weeks from the date of receipt of a certified copy of this judgment. The drawal of water by respondents 8 & 9 from the tube-well will depend thereafter on such report to be made by these respondents after the joint verification and subject to such modifications as may be warranted to Ext.P7 order.
8. However, until such time, as there is any such modification, respondents 8 & 9 will be bound by the terms of Ext.P7 and to follow any modification after the joint verification as above in future.
9. I deem it appropriate that the 7th respondent cause inspection of the bore-well of respondents 8 & 9 on a periodic WP(C) No.4326 of 2014 7 basis, since climatic and weather conditions change constantly and availability of water in the sources would also vary subject to such climatic or atmospheric changes.
10. The above being said and ordered, there is one issue that I think requires to be pointedly noticed by this Court at this time. I see that Ext.P17 is a reading of the water meter attached to the bore-well. It is distressing that in the 3rd page of the said document, the water reading had been recorded in what appears to be in an improbable manner. This is because, on 29.03.2016, the water meter is recorded to show a reading of 797, whereas on 30.03.2016 it shown as 717. The petitioner says that this is on account of manipulation, but I do not propose to hold so conclusively in the absence of proof, even though the probability of there being a machination behind this, cannot be completely ruled out.
11. In such circumstances, I direct the 7th respondent to be personally in charge of the water meter installed in the tube-well and to ensure that the reading of the same is conducted properly without any manipulation or guile and in an open and transparent WP(C) No.4326 of 2014 8 manner and by ensuring that respondents 8 & 9 draw water only in the strictest compliance of the terms of Ext.P7 or such other orders modifying it, in future.
I clarify that nothing in this judgment would however stop respondents 8 & 9 from approaching the competent Authorities namely the 7th respondent or the 4th respondent from seeking modification of Ext.P7 or further orders as may be passed from time to time, depending upon the availability of water in the natural sources, which modification will depend substantially on scientific evidence to be gathered by the competent Authorities through proper verification.
This writ petition is thus ordered as above. In the peculiar facts and circumstances of this case, I make no order as to costs and I direct the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN, JUDGE.
//True Copy// P.A. to Judge sp/01/04/17