Kerala High Court
Varuna Aqua Products Private Limited vs State Of Kerala on 4 October, 2017
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 23RD DAY OF OCTOBER 2017/1ST KARTHIKA, 1939
WA.No. 2073 of 2017 () IN WP(C).30286/2017
--------------------------------------------
AGAINST THE JUDGMENT IN WP(C) 30286/2017 DATED 04-10-2017
APPELLANT(S)/PPETITIONER:
------------------------
VARUNA AQUA PRODUCTS PRIVATE LIMITED,
REPRESENTED BY ITS MANAGER (ADMINISTRATION),
SIBI VARGHESE, AGED 42 YEARS, S/O.M.D.VARGHESE,
RESIDING AT MANJALIL HOUSE, THOKKUPURA P.O.,
CHITHIRAPURAM, IDUKKI, PIN-685565.
BY ADVS.SRI.K.JAJU BABU (SR.)
SRI.LIJU.V.STEPHEN
SMT.INDU SUSAN JACOB
SRI.A.ABDUL KHARIM
RESPONDENT(S)/RESPONDENT:
-------------------------
1. STATE OF KERALA,
REPRESENTED BY ADDITIONAL CHIEF SECRETARY,
INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2. THE DISTRICT COLLECTOR,
THIRUVANANTHAPURAM-695001.
3. KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION,
HAVING ITS PRINCIPAL OFFICE AT KINFRA HOUSE, T.C.14/1026,
VELLAYAMBALAM, THIRUVANANTHAPURAM-695010,
REPRESENTED BY ITS MANAGING DIRECTOR.
4. KINFRA INTERNATIIONAL APPAREL PARKS LTD.,
(A SUBSIDIARY OF KINFRA-A STATUTORY BODY OF GOVERNMENT
OF KERALA), THUMBA, ST.XAVIER'S COLLEGE P.O.,
THIRUVANANTHAPURAM-695586.
5. THE CHIEF ENGINEER,
SOUTHERN REGION, KERALA WATER AUTHORITY,
THIRUVANANTHAPURAM-695001.
WA.No. 2073 of 2017 - 2 -
6. THE ASSISTANT EXECUTIVE ENGINEER,
WEST SUB DIVISION, KERALA WATER AUTHORITY,
PONGUMMODU, THIRUVANANTHAPURAM.
R1 & 2 BY GOVERNMENT PLEADERSRI. V. TEKCHAND
R3, 4 BY SRI.M.GOPIKRISHNAN NAMBIAR
R5 & 6 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-10-2017,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Navaniti Prasad Singh, CJ
&
Raja Vijayaraghavan V, J
--------------------------------------------------------------
W.A. No. 2073 of 2017
---------------------------------------------------------------
Dated this the 23rd day of October, 2017
J U D G M E N T
Navaniti Prasad Singh, CJ Appellant is aggrieved by the dismissal of his writ petition by the judgment dated 4.10.2017 passed by the learned Single Judge in W.P(C). No.30286 of 2017.
2. We have heard the learned counsel for the appellant, learned Government Pleader for respondents 1 and 2, learned Standing Counsel for the Water Authority and the learned counsel for respondents 3 and 4 and with their consent we are disposing of this appeal at this stage itself.
3. In a State, which lacks industrialization, an industry fights for its survival. The apathy shown by the respondents is not only curious but surprising.
4. The facts are not in dispute. The petitioner/appellant is an industry set up for manufacturing packaged drinking water. The appellant had set up a packaged drinking water W.A.2073/17 2 plant in the industrial park set up by the third and fourth respondents. It got all necessary permissions from all authorities. It was given an industrial water connection by the fourth respondent ie., the Kinfra International Apparel Parks Ltd., who in turn are supplied water by the Kerala Water Authority. The Industrial park has no water source of its own. As is usual, the setting up of the industrial unit by the appellant was objected to by the neighbouring residents. Several complaints were lodged by neighbours complaining that the functioning of the unit would cause acute depletion of ground water, virtually forcing the appellant's unit to be closed down by the authorities. Ultimately, when the matter reached before this Court, an Advocate Commissioner was appointed to carry out an inspection. It was revealed that the appellant had nothing to do with depletion of ground water inasmuch as the water requirement of the industrial unit was met with by the Kerala Water Authority. The allegations were found to be baseless.
5. The appellant commenced the functioning of the unit. Immediately thereafter, the Water Authority took a W.A.2073/17 3 decision, not to supply water to the industrial park for supply to the appellant. The reason given was that the Water Authority is not authorised to supply water to any person for re- sale thereof or for a commercial gain. According to the Water Authority, it can only give an industrial connection as per Regulation 2(hh) of the Kerala Water Authority (Water Supply) Regulations, 1991. From the judgment of the learned Single Judge which is under appeal, yet another reason can also be deciphered, which caused heartburn to the Authority. According to them, the water is being supplied to the appellant at 14 Paise per litre. However, the appellant is making a huge profit by repacking and selling it at a retail price of almost Rs.20 per one litre bottle. On behalf of the appellant, it is submitted that there is yet a third reason in fact, ie., the neighbouring unit, which failed in its earlier endeavour, is making an indirect attempt to shut down the unit.
6. We have considered the matter. We would not like to go into the question of malafide or the actions being actuated by malice at the instance of the third party for, neither the third party is before us, nor facts are clearly pleaded in that regard. W.A.2073/17 4 We feel that the grounds given by the respondents are even otherwise not valid and clearly show that it is only a pretense or pretext of an excuse to disrupt the appellant's industry.
7. Firstly, we may take up the issue which caused heartburn to the Water Authority. What the appellant is purchasing from the Water Authority for industrial use is untreated water. The unit filters the water, purifies the same and then under sterile conditions, it is bottled. Such bottled/packaged drinking water is then subjected to local taxes and levies and sold to the public. Therefore, to say that water purchased at 14 Paise per litre is being sold at a very high price is wrong. It undergoes various sequential processes and the two commodities, ie., water as supplied, and packaged drinking water as sold, are commercially and in common parlance two different and distinct commodities. The unit set up itself is after investment of more than Rupees Two Crores. Therefore, there is no substance in this misconceived notion, except perhaps jealousy. A responsible body like the Water Authority is not expected to act in this manner. The only ground is that admittedly, the appellant's industry is not taking W.A.2073/17 5 water as domestic connection nor is it a non-domestic connection, which is given to establishments where some commercial benefits are derived and water is incidentally used and the third is industrial connection. According to the Water Authority, the appellant does not fall in any of these categories and therefore, it cannot be given a connection. We may straight away refer to Regulation 2(hh) of the Regulation 1991 :
"'industrial connection' means the connection provided from the main to a premises to supply water for manufacturing process which includes a Motor Vehicle Service Station, Printing Press, Laundry and where water is used as part of such manufacturing process and includes usage for air conditioning, refrigeration, washing and cleaning of the premises."
8. A reference to the aforesaid definition would show that when water is supplied for manufacturing process, which process would include a motor vehicle service station, printing press, laundry as also where water is used as part of any such manufacturing process including air conditioning, refrigeration, washing and cleaning of the premises, it is said to be an industrial use. Such users, it is submitted by the respondents are, Transport Department, Motor Service Stations, Petrol Pumps, Railways and other industrial units. W.A.2073/17 6
9. Having considered the definition, if we have correctly understood the learned counsel for the Water Authority, the submission is that they can supply water at 14 Paise per litre to people to be wasted by using it at motor vehicle service station, laundry and cleaning premises, let it evaporate in air conditioning and refrigerating plants (in cooling towers) but they cannot give it at 14 Paise per litre to the appellant to enable him to process, purify and sell it at a higher price. After all, it is very clear that water is an industrial raw material so far as the appellant is concerned and that too, the sole industrial raw material. It is used in an industrial process. The definition as quoted above clearly predicates manufacturing process with inclusive processes therein added. The definition being inclusive, the appellant's usage cannot be taken out of this definition. On the face of it, it is an arbitrary decision to stop this connection.
10. Learned counsel for the appellant states that once again this has been actuated by the nearby unit for, this unit is being supplied water by the very same water authority but such an objection is not raised. Few other units at different W.A.2073/17 7 parts of the State were all supplied water by the Water Authority. But it is only in respect of appellant's unit such objections are raised. The Water Authority themselves also runs two such units. All these if considered together clearly show that there is something much more than what meets the eye.
11. The statutory definition of industrial connection cannot be the reason, for, the Water Authority is not a taxing authority but only an authority which categorise the usage for the purpose of billing. We see no reason why Section 2(hh) would not apply. The conduct of the Water Authority itself in granting other connections including that to a neighbouring unit and not objected ever, shows that the Water Authority has acted with malice in law if not in fact. The actions being vitiated in law as well as on the ground of malice in law. Therefore, we are of the view that the writ petition ought to have been allowed. We, accordingly, set aside the judgment of the learned Single Judge and direct the Water Authority and the respondent industrial park to forthwith, within 24 hours to restore the industrial water connection of the W.A.2073/17 8 petitioner/appellant's unit and not to unnecessarily harass the unit any further.
This writ appeal is accordingly allowed with the aforesaid direction.
Sd/-
Navaniti Prasad Singh, Chief Justice Sd/-
Raja Vijayaraghavan V, Judge sou.23/10.
// True copy//