Kerala High Court
A.Shihabudeen vs State Of Kerala on 10 May, 2022
W.P.(C)No.23936 of 2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 10TH DAY OF MAY, 2022 / 20TH VAISHAKA, 1944
WP(C) NO. 23936 OF 2020
PETITIONERS:
1 A.SHIHABUDEEN
AGED 40 YEARS, S/O. ALIYARKUNJU,
VALIYAVILA VEETTIL, VADAKKUM KARA KIZHAKKENCHERI,
PARAKKULAM, KOTTAYAM P.O., THAZHUTHALA VILLAGE,
KOLLAM-691 303.
2 ANAS THAHA
AGED 29 YEARS, S/O. THAHA,
POCHAVILA, PRAKKULAM, KOTTIYAM P.O.,
KOLLAM-691 303.
BY ADV SRI VINOY VARGHESE KALLUMOOTTILL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
LOCAL SELF DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM-1.
2 DEPUTY DIRECTOR OF PANCHAYATH
KOLLAM-671 314.
3 ASSISTANT ENGINEER
GROUND WATER AUTHORITY, KOLLAM-671 314.
4 MAYYANADU GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY,
OFFICE OF MAYYANADU GRAMA PANCHAYATH,
MAYYANADU P.O., KOLLAM-691 303.
5 SHERIF
SOUMYA MANZIL, VADAKKUMKARA KIZHAKKECHERI,
THAZHUTHALA VILLAGE, KOLLAM-691 303.
*ADDITIONAL R6 AND R7 IMPLEADED
ADDL. R6 THE DISTRICT MEDICAL OFFICER
KOLLAM
W.P.(C)No.23936 of 2020
2
ADDL. R7 THE ENVIRONMENTAL ENGINEER
KERALA STATE POLLUTION CONTROL BOARD,
DISTRICT OFFICE, KOLLAM
*ADDITIONAL R6 & R7 IMPLEADED AS PER ORDER DATED
4.10.2021 IN I.A 2/2021 IN WPC 23936/2020
BY ADVS.
SHRI.M.R.SASITH PANICKER, SC, MAYYANAD GRAMA
PANCHAYAT
SRI.SAJU J PANICKER
SRI. T.NAVEEN SC, KERALA STATE POLLUTION CONTROL
BOARD SRI.RAJEEV JYOTHISH GEORGE, GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16.02.2022, THE COURT ON 10.5.2022 DELIVERED THE
FOLLOWING:
W.P.(C)No.23936 of 2020
3
T.R. RAVI, J.
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W.P.(C)No.23936 of 2020
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Dated this the 10th day of May, 2022
JUDGMENT
The grievance of the petitioner is regarding the digging of a
tube well on the property of the 5th respondent. The 5th
respondent had on 26.12.2019 applied to the Ground Water
Department for permission for the construction of a tube well. The
Ground Water Department conducted a detailed hydrogeological
investigation in the 5th respondent's property and issued Annexure
R3(a) feasibility report. It is seen from the report that the
appropriate authority had recommended drilling of a tube well of
60 Metre depth. Specific conditions have been laid down regarding
the way the tube well is to be drilled. The authority has clearly
stated in Annexure R3(a) that the scientific construction of a tube
well on the site will not affect the surrounding phreatic aquifer. It
is also stated that the work should be only for domestic purposes
and daily pumping of water should not exceed 1000 litres. Based
on Annexure R3(a), the 4th respondent Panchayat has granted
permission to the 5th respondent for digging the well as per
Ext.R5(b) dated 28.2.2020. On the complaint submitted by the
petitioner, the 4th respondent had issued Ext.P1 notice on
W.P.(C)No.23936 of 2020
10.2.2020 directing the petitioner to submit his objections with
necessary documents within three days from the receipt of the
notice. According to the petitioner, the Ground Water Department
has only given a feasibility report and has not undertaken any
study with respect to the depletion of water levels in the adjoining
open wells. The petitioner relies on the observations made in
Ext.P4 judgment in W.P.(C)No.25165 of 2019 made by a Division
Bench of this Court. That was a case in which the petitioner had
approached the Court for permission for the construction of a tube
well since sufficient space was not available on his property for
digging an open well. This Court found that there is no averment
that Water Authority was not supplying water in the locality. After
taking note of the fact that there is constant depletion of
groundwater level, this Court refused to exercise its discretion to
grant the reliefs sought for. This Court specifically found that the
permits granted to the petitioner therein are lacking in any
consideration of the civil rights of the other persons in the locality
and do not create an absolute right for the petitioner to dig a tube
well.
2. Heard counsel for the petitioner and the respondents.
3. I do not think that the observations in Ext.P4 judgment
can be applied to the present case. In the case on hand, the
petitioner had approached the authority under the Kerala Ground
W.P.(C)No.23936 of 2020
Water (Control and Classification) Act, 2002 and as provided under
Section 7 of the Act, the appropriate authority has permitted the
drilling of a tube well subject to the conditions stated therein. The
contention that Annexure R3(a) is only a feasibility report cannot
be countenanced. Annexure R3(a) clearly indicates that a detailed
study has been undertaken and necessary safeguards have also
been directed to be made to ensure that putting up the tube well
does not affect the water level in the surrounding phreatic aquifer.
It is specifically stated in the statement filed by the District Officer
in the Ground Water Department that the extraction of water
through open wells is from the phreatic aquifer above the
impermeable clay layer and limestone layer, while the extraction of
water by tube wells is far below from the above layers. It is
further stated that the limestone and clay formation act as a
confining layer that does not allow water percolation from the
phreatic aquifer to the confined aquifer.
4. In such circumstances, the apprehensions stated in the
complaints submitted by the petitioner cannot be a reason for
refusing permission to the 5th respondent. It is seen from the
materials on record that 90% of the construction is over. No
grounds have been made out warranting interference by this Court
in the exercise of its extraordinary jurisdiction under Article 226 of
the Constitution of India.
W.P.(C)No.23936 of 2020
The writ petition is dismissed. It is, however, made clear that
the tube well will be constructed strictly in accordance with the
conditions laid down in Annexure R3(a) and in accordance with the
provisions of the Kerala Ground Water (Control and Classification)
Act, 2002. The petitioner will be free to point out any violation
thereof to the appropriate authority for initiating any action, if
warranted.
Sd/-
T.R. RAVI
JUDGE
dsn
W.P.(C)No.23936 of 2020
APPENDIX OF WP(C) 23936/2020
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE NOTICE ISSUED BY THE 4TH
RESPONDENT DATED 10.2.2020.
EXHIBIT P2 TRUE COPY OF THE COMPLAINT SUBMITTED
BEFORE THE 4TH RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE COMPLAINTS SUBMITTED
BEFORE THE 4TH RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC
NO.25165/2019 DATED 23.9.2019.
Exhibit P5 TRUE COPY OF THE COMPLIANT SUBMITTED
BEFORE THE DISTRICT MEDICAL OFFICER.
Exhibit P6 TRUE COPY OF THE COMPLAINT SUBMITTED
BEFORE THE 3RD RESPONDENT DATED
09/11/2020.
Exhibit P7 TRUE COPY OF THE COMPLIANT SUBMITTED
BEFORE THE SECRETARY TO THE RESPONDENT
PANCHAYATH.
RESPONDENTS' EXHIBITS
ANNEXURE R3(A) TRUE COPY OF THE INVESTIGATION REPORT
ANNEXURE R3(B) TRUE COPY OF THE APPLICATION SUBMITTED BY
THE 5TH RESPONDENT
ANNEXURE R3(C) TRUE COPY OF THE FEASIBILITY REPORT
EXT.R4(1) TRUE COPY OF THE NOTICE BY THE 4TH
RESPONDENT
EXT.R4(2) TRUE COPY OF THE PERMIT GIVEN TO THE 5TH
RESPONDENT
EXT.R5(A) THE TRUE COPY OF THE FEASIBILITY REPORT
OF THE 3RD RESPONDENT
EXT.R5(B) THE TRUE COPY OF THE SITE APPROVAL AND
BUILDING PERMIT DATED 28.02.2020 ISSUED
BY THE 4TH RESPONDENT
