Kerala High Court
Indira vs Pournami Properties Private Limited on 14 September, 2020
Author: Shaji. P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 14TH DAY OF SEPTEMBER 2020 / 23RD BHADRA, 1942
WA.No.1201 OF 2020
AGAINST THE JUDGMENT IN WP(C) 16994/2020(Y) OF HIGH COURT OF KERALA
APPELLANT/7th RESPONDENT IN W.P.(C):
INDIRA,
AGED 48 YEARS
W/O. SHIVASANKARA KURUP, MULLASSERIL KIZHAKATHIL,
KUNNAM P.O., MAVELIKARA, ALAPUZHA DISTRICT,PIN-690 104.
BY ADVS.
SRI.M.V.THAMBAN
SRI.R.REJI
SMT.THARA THAMBAN
SRI.B.BIPIN
SRI.ARUN BOSE
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 6 IN W.P.(C):
1 POURNAMI PROPERTIES PRIVATE LIMITED
NO.3, THEKKEMUKKALIL, VALIYAKULANGARA P.O., KAZHAZHAMA,
MAVELIKARA,ALAPUZHA-690 104, REPRESENTED BY ITS
AUTHORISED REPRESENTATIVE , GOPALAKRISHNAN NAIR,
THEKKEMUKKALIL, VALIYAKULANGARA P.O., KAZHAZHAMA,
MAVELIKARA, ALAPUZHA-690 104.
2 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY, GROUND WATER DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
3 THE KERALA GROUND WATER AUTHORITY,
REPRESENTED BY ITS SECRETARY, DIRECTORATE OF GROUND
WATER DEPARTMENT, JALAVIJNANA BHAVAN, 3RD FLOOR,
AMBALAMUKKU, KOWDIYAR P.O.,
THIRUVANANTHAPURAM-695 003.
W.A. No.1201/2020 :2:
4 THE DIRECTOR,
DIRECTORATE OF GROUND WATER DEPARTMENT, JALAVIJNANA
BHAVAN, 3RD FLOOR, AMBALAMUKKU, KOWDIYAR P.O.,
THIRUVANANTHAPURAM-695 003.
5 THE DISTRICT COLLECTOR,
DISTRICT OFFICE, GROUND WATER DEPARTMENT,
ALAPPUZHA-688 001.
6 THE CIRCLE INSPECTOR OF POLICE,
POLICE STATION, MAVELIKKARA,
ALAPPUZHA - 690 105.
7 THE THAZHAKKARA GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY,
GRAMA PANCHAYAT KARYALAYAM,
MANKAMKUZHY, KALLIMEL P.O.,
MAVELIKKARA - 690 107.
SRI.RINNY STEPHEN CHAMAPARAMPIL FOR R1,
SRI. TEK CHAND, SR.GP FOR R2
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.09.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.1201 OF 2020 :3:
Dated this the 14th day of September, 2020.
JUDGMENT
Shaji. P. Chaly, J.
This writ appeal is filed by the 7 th respondent in the writ petition challenging the judgement of the learned single Judge in W.P.(C) No. 16994 of 2020 dated 18.08.2020 directing the third respondent ie., the Director, Directorate of Ground Water Department, Jalavijnana Bhavan, Thiruvananthapuram, to take up, consider and pass orders on Ext.P10 appeal and P11 stay petition with notice to all concerned, including the appellant and the writ petitioner. It was further directed that in case the third respondent cannot consider Ext.P10 without delay, the application for stay shall be considered with notice to both the parties. The third respondent was also given liberty to issue notice and conduct hearing by appropriate electronic means, and further directed to pass orders in the stay petition within a period of three weeks from the date of receipt of a copy of the judgement.
2. The paramount contention advanced by the learned counsel for the appellant is that the learned single Judge, while directing the third respondent to consider the appeal and stay petition, has not taken into account the provisions of the Kerala Ground Water WA.No.1201 OF 2020 :4: (Control and Regulation) Act, 2002 ('the Act, 2002' for brevity). It is contended that the area in question is not a notified area as contemplated under Section 6 of the Act, 2002 and therefore, there is no question of any permit required to be obtained from the authority in tune with Section 7 of the Act, 2002. It is also submitted that unless the area in question comes within a notified area, there is no question of submitting any application seeking permit before the authority concerned, and therefore, according to the appellant, interference is required to the judgement of the learned single Judge.
3. The subject issue raised in the writ petition was the action of the 4tth respondent in the writ petition i.e., the District Officer, District Office, Ground Water Department, Alappuzha, granting permission to the appellant herein to dig tube well in the land comprised in Survey No. 109/6 of Thazhakkara Village in Alappuzha District allegedly in blatant violation of Section 7 of the Act, 2002 and Rule 14 of the Kerala Ground Water (Control and Regulation) Rules, 2004 ('the Rules, 2004' for brevity).
4. According to the writ petitioner, the property of the appellant/7th respondent is bounded on three sides with the land belonging to the writ petitioner i.e., on the northern, southern and western side and the land in question is situated in an area where WA.No.1201 OF 2020 :5: there is acute water scarcity and shortage of drinking water. It was further contended that residential houses are situated in close proximity with the said land and it is a thickly populated residential zone and therefore, if groundwater is extracted from the area in question, it would lead to a huge catastrophe and there would be acute water shortage in the area. According to the writ petitioner, permission was granted without appropriate and due enquiry of the situations in the area, and overlooking the provisions of the Rules, 2004. However, since an appeal is maintainable under law in accordance with the provisions of the Act, 2002, and the appeal and the stay application were pending consideration before the authority, they were directed to be disposed of. Anyhow, the contention advanced by the learned counsel for the appellant is that since it is not a notified area, there is no basis in directing the appellate authority to consider the appeal and the stay application.
5. We have considered the rival contentions advanced by the respective counsel and perused the pleadings and materials available on record. The paramount contention advanced by the learned counsel for the appellant is that the appellant had to approach the authority under the Act, 2002, since the Local Self Government Body required the appellant to secure necessary orders from the authority under the Act, 2002 so as to consider her WA.No.1201 OF 2020 :6: application for issuing necessary licence and it was under the said compelling circumstances, the appellant had secured permission from the District Officer of the Ground Water Department.
6. The question centres around the provisions of the Act, 2002 and the Rules, 2004. Admittedly, the appellant has secured a 'No Objection Certificate' under the provisions of the Act, 2002 from the District Officer of the Ground Water Department. The sole provision under the Act, 2002 for grant of permit to extract and use water is under Section 7 of the Act, 2002, which specifies that any person desiring to dig a well or to convert the existing well into pumping well, for his own or social purpose in the notified area, shall submit an application before the Authority for the grant of a permit for the purpose and shall not proceed with any activity connected with such digging or conversion, unless a permit has been granted by the Authority. Other procedures are also prescribed thereunder for submitting an application and consideration of the same. Therefore, it was relying on the said provision that, only in a notified area a permit is required, the appellant has advanced the contentions specified above.
7. Sub-Section (1) of Section 24 of the Act, 2002, dealing with appeals, specifies that any person aggrieved by the decision or action of the Authority under the Act may, within thirty days from WA.No.1201 OF 2020 :7: the date on which such action is taken or the date of communication of that decision to him, and remitting such fees as may be determined, prefer an appeal to such Authority as may be prescribed. As per sub-Section (2), the appellate authority is duty bound to dispose of the appeal as early as possible, after giving the appellant a reasonable opportunity of being heard.
8. On an analysis of the provisions of the Act, 2002, we find that there are other provisions other than Section 7 of the Act enabling the authority to consider an application for permit to extract the ground water. Therefore, when the District Officer of the Ground Water Department has issued an order, it can only be visualised and legally presumed that the said authority was vested with powers to issue such an order. Therefore, it can only be treated as an order passed in accordance with the provisions of the Act, 2002 as is pointed out above. According to the learned counsel for the appellant, 'authority' is defined under Section 2(1)(a) of the Act to mean "the State Ground Water Authority" constituted under subsection (1) of section 3 of the Act, 2002. True, as per Section 3(1), the Government shall, by notification in the Gazette, constitute an authority called the State Ground Water Authority with effect from such date as may be specified therein and the authority shall consist of the Secretary to Government, Water Resources WA.No.1201 OF 2020 :8: Department and various other Government officials and others.
9. As per Section 6 of the Act, 2002, if the Government is satisfied in the recommendation of the authority, that it is necessary in the public interest to regulate the extraction of use of ground water of any area, declare by notification, in the Gazette, such area as notified area or the purpose of the Act, with effect from such date as may be specified therein. If at all the appellant has a contention that the area in question is not a notified area, we do not know under what circumstances the appellant approached the District Officer and secured permit for extracting the ground water. Therefore, prima facie, we are of the opinion that it is an order passed/permit granted under law. Further, Section 17 of the Act, which deals with delegation of powers and duties, stipulates that the Authority may, by general or special order in writing, direct that all or any of the powers and duties to be exercised or performed by it shall be exercised or performed by such employee of the Authority under such circumstances and on such conditions as may be specified therein. The appellant is not having a case that the power conferred on the authority is not delegated and the permit granted by the District Officer is not without the power conferred on him.
10. On a perusal of the Rules, 2002, we are of the opinion that a definite procedure is contemplated under the Rules to WA.No.1201 OF 2020 :9: consider the applications taking into account various attendant circumstances and factual situations. That apart, we find that when a permit/order is secured by the appellant from an authority under the Act, any person aggrieved is entitled to prefer an appeal in accordance with the provisions of Section 24 of the Act, 2002.
11. Upshot of the above discussion is that the appellant has not made out any case justifying interference with the judgement of the learned Single Judge, since we do not find any error or legal infirmity on the part of the learned Single Judge in directing the third respondent to consider the appeal and stay application filed by the writ petitioner within the time frame prescribed thereunder.
Needless to say, the writ appeal fails and accordingly it is dismissed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv