Alice Rajan Mampilly vs Elamkunnapuzha Grama Panchayat
2023 Latest Caselaw 11028 Ker

WP(C) NO. 35097 OF 2023
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                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
          THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
    THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
                        WP(C) NO. 35097 OF 2023
PETITIONER/S:

          ALICE RAJAN MAMPILLY
          AGED 76 YEARS
          W/O. RAJAN P MAMPILLY, MAMPILLY HOUSE, NEAR VHSC,
          NJARAKKAL, ERNAKULAM, KOCHI ALSO AT : MURIKKUMPADAM,
          V.P ROAD, AZHEEKKAL P.O., KOCHI - 682510., PIN - 682505
          BY ADVS.
          K.T.THOMAS
          NIKHIL BERNY


RESPONDENT/S:

    1     ELAMKUNNAPUZHA GRAMA PANCHAYAT
          ELAMKUNNAPUZHA, ERNAKULAM DISTRICT, KOCHI REP. BY ITS
          SECRETARY., PIN - 682503
    2     THE SECRETARY
          ELAMKUNNAPUZHA GRAMA PANCHAYAT, ELAMKUNNAPUZHA,
          ERNAKULAM, PIN - 682503
    3     THE EXECUTIVE ENGINEER & DISTRICT OFFICER
          DISTRICT OFFICE, REGIONAL DATA PROCESSING CENTRE,
          GROUND WATER DEPARTMENT, KAKKANAD, ERNAKULAM, KOCHI,
          PIN - 682030

          SRI.P.M.BENZIR (SC)
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 35097 OF 2023
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                   BECHU KURIAN THOMAS, J.
             ========================
                    W.P.(C)No.35097 of 2023
             ------------------------------------------------
                        Dated this the 26th day of October 2023


                                   JUDGMENT

Petitioner claims to be the owner of 5.85 Ares of land in

Re.Survey No.124/5 of Block No.10 of Puthuvype Village. Petitioner

was conducting a peeling shed in the fire buildings situated in the said

property. Petitioner now wants to start an ice plant in the said

property, after demolishing the existing buildings, for which purpose,

he obtained a building permit on 23.12.2021. Since water is a major

raw material, it was felt essential to construct a tube well to extract

water for the purpose of the ice plant. Petitioner contends that the

tube well has been constructed, after spending a huge amount,. All

what remained was insertion of plastic tubes into the bored hole. At

the time, the Panchayat intimated the petitioner that the tube well

being constructed without obtaining permission is illegal and issued

Ext.P8 notice has been issued on 21.10.2023 directing the petitioner to

stop the unauthorised construction.

2. Sri.K.T.Thomas, learned Counsel for the petitioner

submitted that immediately on being served with Ext.P8, an

application has been submitted for obtaining permission for

construction of a tube well and the said application pending WP(C) NO. 35097 OF 2023

consideration. It was further submitted that on being informed that

the applications was not properly filed, a physical copy of the

application was submitted on 25.10.2023, which is pending

consideration. In the meantime, petitioner contends that if the

constructed well has to be closed as directed by te Panchayat,

petitioner would be put to irreparable loss. Learned Counsel further

submitted that petitioner will await the decision of the Panchayat

and till then, to avoid collapse of the well already constructed, he

may be permitted to insert the plastic tube.

3. Sri.P.M.Benzir, learned Standing Counsel for the

Panchayat, upon instructions submitted that though an online

application was initially submitted, petitioner has, on 25.10.2023,

submitted a physical copy seeking to construct a tube well, which is

under process. It was further submitted that a tube well cannot be

constructed without permission of the Panchayat as well as the

Ground Water Department and therefore, the construction already

carried out, ought to be closed.

4. Having heard the learned Counsel for the petitioner and

the learned Standing Counsel for the Panchayat, I am of the view

that the interests of justice leans in favour of permitting the

petitioner to insert the plastic tube into the already constructed tube

well. Though the conduct of petitioner in constructing the tube well

without permit cannot be appreciated. Such a permission is

necessary in the peculiar circumstances. However, the permission to WP(C) NO. 35097 OF 2023

insert the tubes shall not enure any equity or benefit to the

petitioner when his application for permission to construct the tube

well is being considered. The application submitted by the petitioner

for construction of tube well, if it is in order, shall be considered by

the 2nd respondent, as expeditiously as possible, at any rate, within

30 days from today, uninfluenced by the above permission to insert

the tube.

5. It is clarified that the 2nd respondent will be entitled to

take a decision in accordance with law, and the petitioner shall not

extract any water until and unless, permission is obtained from the

2nd respondent. If in case, permission to construct the tube is

refused, petitioner undertakes to remove the tubes inserted and

close the well, without any objection.

The writ petition is disposed of accordingly.

BECHU KURIAN THOMAS JUDGE jm/ WP(C) NO. 35097 OF 2023

APPENDIX OF WP(C) 35097/2023

PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF BASIC TAX RECEIPT DATED 26.04.2023 ISSUED BY PUTHUVYPE VILLAGE OFFICE Exhibit-P2 TRUE COPY OF POSSESSION CERTIFICATE DATED 20.10.2023 ISSUED BY PUTHUVYPE VILLAGE OFFICE Exhibit-P3 TRUE COPY OF LICENCE NO.7/14-15 DATED 22.05.2014 ISSUED BY ELAMKUNNAPUZHA GRAMA PANCHAYAT Exhibit-P4 TRUE COPY OF BUILDING PERMIT NO.A3/12163/18 DATED 23.12.2021 ISSUED BY 2ND RESPONDENT Exhibit-P5 TRUE COPY OF APPROVED PLAN ISSUED BY 2ND RESPONDENT Exhibit-P6 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT DATED 21.10.2023 SUBMITTED BY PETITIONER ONLINE ALONGWITH E-FILE DETAILS Exhibit-P7 TRUE COPY OF THE SITE PLAN OF TUBE WELL Exhibit-P8 TRUE COPY OF THE NOTICE DATED 21.10.2023 ISSUED BY 2ND RESPONDENT