Bindhu P. A v State of Kerala & Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI & ## THE HONOURABLE MR.JUSTICE BASANT BALAJI WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 ## WA NO. 1154 OF 2023 AGAINST THE JUDGMENTWP(C) 27865/2022 OF THE HIGH COURT OF KERALA ## APPELLANT/S: BINDHU P. A, AGED 54 YEARS D/O ABRAHAM, RESIDING AT THEVARMADATHIL HOUSE, MANNATHOOR (P.O), THIRUMARADY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT, PIN - 686062 BY ADVS. JAWAHAR JOSE SAFEER BAWA A.S. HAMED ABDULLA JAVAHIR ## RESPONDENT/S: - 1 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT (WS-C), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA. PIN, PIN - 695004 - 2 THE DISTRICT COLLECTOR, ERNAKULAM CIVIL STATION, KAKKANAD (P.O), ERNAKULAM., PIN - 682030 - 3 THE EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P. H. SUB DIVISION, THOTTUNKALPEEDIKA, MUVATTUPUZHA (P.O), ERNAKULAM DISTRICT., PIN - 686673 - 4 THIRUMARADY GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY VELIYAZHATH, THIRUMARADY (P.O), ERNAKULAM DISTRICT., PIN - 68662 - 5 PAUL P. VARKEY, AGED 61 YEARS S/O. VARKEY, PALLIPARAMBIL HOUSE, VARIKOLI KARA, **W.A. No. 1154/2023** **-2-** PATHECRUZ VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT., PIN - 682308 - 6 BEENA PAUL, AGED 58 YEARS, W/O. PAUL P. VARKEY, PALLIPARAMBIL HOUSE, VARIKOLI KARA, PATHECRUZ VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT., PIN - 682308 - 7 CLINT PAUL, AGED 29 YEARS, S/O. PAUL P. VARKEY, PALLIPARAMBIL HOUSE, VARIKOLI KARA, PATHECRUZ VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT., PIN - 682308 - 8 AJI ABRAHAM, AGED 42 YEARS S/O. ABRAHAM, MAJAKKADAMBIL, VETTIMOODU, KAKKOOR (P.O), ERNAKULAM DISTRICT., PIN - 686662 BY ADV JOSHY VV ## OTHER PRESENT: daisy a philipose; gigimon issac- sc Sr. G.P. T.K. Vipindas THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **W.A. No. 1154/2023** **-3-** ## J U D G M E N T ## S.V.N. Bhatti, C.J. We have heard Adv Jawahar Jose, Adv Daisy A Philipose, Adv V V Joshi, Special Government Pleader T K Vipindas and Adv Gigimon Isaac for the parties. 2. A third party to W.P.(C) No.27865/2022 is the appellant in the instant intra-Court appeal. By order dated 12.06.2023, this Court granted leave to the appellant herein to challenge the judgment dated 23.03.2023 in W.P.(C) No.27865/2022. We refer to the parties as arrayed in the writ petition for convenience. As far as the appellant is concerned, we will refer to the appellant as a third party. 3. W.P.(C) No.27865/2022 was filed for a mandamus directing respondents 2 and 4 to take steps to acquire, as per Ext.P2, the property identified by the Assistant Executive Engineer, Kerala Water Authority, expeditiously and also to **W.A. No. 1154/2023** **-4-** direct respondents 1 to 4 to implement the drinking water project under Jal Jeevan Mission in Thirumarady Grama Panchayat. The circumstances leading to the filing of the writ petition are summarised as follows: 3.1 On 08.06.2020, the State Government accorded sanction for executing the Jal Jeevan Mission to provide functional household tap connections for all rural households of Kerala in the 5-year term of 2019-2024. The said mission is implemented based on the administrative sanction accorded vide G.O.(Rt) No.134/2022/WRD for providing 11,51,305 functional household tap connections in 522 grama panchayats as part of the implementation of the administrative sanction received on 08.06.2020. Thirumarady Grama Panchayat is one of the panchayats identified for the implementation of the project. The project at Thirumarady Grama Panchayat is implemented at the cost of Rs.45.57 crores. The project is not implemented on or before August 2024; it is the case of the official respondent that the **W.A. No. 1154/2023** **-5-** administrative sanction and the funds would get lapsed. It is in this background and for availing potable water from the grama panchayat that the writ petition has been filed for the prayer referred to above. 4. The controversy in the writ petition is that, at the first instance, for implementing the water scheme, respondents 3 and 4 have identified a place known as Mandalammala for the construction of a water tank. Respondents 5 to 7, who are the landowners of the proposed site for the construction of the water tank, have agreed to give about 20 cents in a hilly area so that the water can be pumped up to a higher level and distributed to all the houses in the as water finds level. The 4[th] grama panchayat respondent/panchayat submits that respondents 5 to 7 at a subsequent point have resiled from the agreed position and demanded land acquisition in accordance with law. A stalemate has arisen, and a few other alternative sites are being considered to implement the project. Be that as it may, **W.A. No. 1154/2023** **-6-** the learned Single Judge, after perusing the stand of the contesting respondents and the complaint of the writ petitioner, disposed of the writ petition in the following terms: “It is clear that the Government has also directed the concerned local bodies to approach the respective District Collectors to acquire the land, and therefore, the Panchayat had the duty to approach the District Collector, Ernakulam then and there itself to take necessary steps for the acquisition of the property identified by the Kerala Water Authority to execute the project. Since the Water Authority is the implementing agency and an expert body, its recommendations have its own primacy and relevance. 13. Considering the facts and figures, I think, it is only appropriate that a direction is issued to the 4 respondent to take steps to acquire the property and implement the project 'Jala Jeevan Mission' launched by the Government, and accorded sanction for the acquisition of the property as per Exhibit P1 Order dated 23.02.2022. Therefore, the writ petition is allowed and I direct the Thirumarady Grama Panchayat, Ernakulam District, respondent No.4, to take steps to acquire the property by making a requisition to the District Collector within one month from the date of receipt of a copy of this judgment. If and when such a request is received, the District Collector, Ernakulam, respondent No.2, shall take immediate **W.A. No. 1154/2023** **-7-** steps to acquire the property in accordance with law. If in any case, the 4th respondent Grama Panchayat is not making a request as directed above, on expiry of one month's period, the District Collector shall take adequate steps to acquire the property suitable for implementing the project at the earliest and in accordance with law.” (emphasis supplied) 5. The third party has taken the leave of the Court and filed the writ appeal challenging the directions issued in the writ petition to do the needful for acquiring the land at Mandalammala. The third party is a person undertaking granite quarrying in an extent of 3.4532 hectares in Thirumarady village, and the quarry is located at a distance of 300-400 metres away from the proposed site for the construction of a water tank. The third party alleges that the third party has invested a considerable amount of Rs.6 crores for carrying on granite quarrying and has all the statutory permissions. The business activity is fully compliant with the requirements of law. The apprehension now voiced by the **W.A. No. 1154/2023** **-8-** appellant is that if the water tank is established at Mandalammala, the third party will be compelled to carry on the business at the mercy and discretion of the Irrigation Officer, particularly in view of Section 40(2) of the Kerala Irrigation and Water Conservation Act 2003. The sum and substance of the grievances against the impugned judgment are that the direction issued by the learned Single Judge to acquire land at Mandalammala is illegal and erroneous, and there cannot be a direction to acquire a particular land or refrain from acquiring land. However, it is always for the Officers to decide based on well-informed reasons and consideration of all relevant facts and circumstances. 6. During the pendency of the appeal, we had directed the Kerala Water Authority to place before the Court the present stage of consideration and execution of the project at the subject grama panchayat. The additional statement filed by the counsel for and on behalf of the third respondent reads thus: **W.A. No. 1154/2023** **-9-** “The District Collector acting on the recommendation conducted various meeting on the issue and true copies of the meeting invitation and minutes dated 28/4/2023 and 8/5/2023, true copy of the meeting invitation dtd. 8/5/2023, by the 2nd respondent, is produced herewith and marked as Annexure-R3(c). True copy of the minutes dated 28/4/2023, meeting held in the 2nd respondent's chamber, is produced herewith and marked as Annexure-R3(d). The District Collector has visited the site and conducted meeting with panchayath at Panchayath office and land owners on 13/6/2023. The land at Mandalam Mala is necessary for implementation of the Jal Jeevan Mission Project for the Thirumarady panchayath and the District Collector in consultation with Managing Director KWA and Chief Secretary is going ahead with the acquisition plan.” 7. Mr Jawahar Jose argues that the details furnished by the Kerala Water Authority are contradictory. The DPR prepared for the Manadalammala project is inconsistent with the other details for implementing the same project at Vettimood. The authorities have already identified the site at Vettimood, and the project can be implemented at Vettimood instead of Mandalammala. The learned counsel, with **W.A. No. 1154/2023** **-10-** considerable force and vehemence, places reliance on the judgment of the Supreme Court reported in _Union of India v. Dinesh Engineering Corporation_[1] for the proposition that if a decision is taken without considering all the relevant attending circumstances, the decision so taken is arbitrary and liable to be interfered with. He prays for setting aside the judgment under appeal. 8. Mr V V Joshi contends that the State of Kerala is implementing the Jal Jeevan Mission to provide potable water to the residents in as many as 522 villages. With the administrative sanction, the work within the grama panchayat of Thirumarady has been taken up. Mandalammala has been identified for more than one valid reason, particularly considering the height and gradient of the hill. He further contends that at the first instance, the grama panchayat has agreed to give possession of the land. Since respondents 5 to 7 have backtracked on their agreement with the Panchayat, the 1 2001 (8) SCC 491 [para 12] **W.A. No. 1154/2023** **-11-** Water Authority was compelled to seek the intervention of the District Collector. The District Collector has held meetings with all the stakeholders, and after appreciating the suitability of the site now identified at Mandalammala, steps are being taken for acquisition. He submits that the project, if shelved, will not only deny potable water to the residents of the grama panchayat, but the funds sanctioned would also get lapsed. 9. To the same effect, arguments are advanced by the Special Government Pleader and the Standing Counsel appearing for the Grama Panchayat. 10. We have perused the record and taken note of the submissions made by the counsel appearing for the parties. 10.1 The third party is primarily aggrieved by the directions issued in the writ petition on the grounds that the site at Mandalammala is not the site that the Kerala Water Authority has finally accepted. The site at Vettimood has been accepted. The acquisition or execution of work at Vettimood and the proposed facility at Mandalammala have been **W.A. No. 1154/2023** **-12-** explained in the statement filed by the Kerala Water Authority. The third party, no doubt, has a granite quarry 300400 metres from the proposed site. The third party refers to Section 40(2) of the Kerala Irrigation and Water Conservation Act 2003 and contends that if a drinking water project is implemented, the third party’s business would be at the mercy of the concerned officer. Section 40(2) of Kerala Irrigation and Water Conservation Act 2003 reads thus “40. **Mining or quarrying near certain works etc** (1) *** *** *** (2) Notwithstanding anything contained in any other law for the time being in force, no person shall, without the written permission of the Irrigation Officer, conduct mining or quarrying operation using explosives within a radius of one kilometre of any bridge, dam, check dam or any other work, structure or construction, owned, controlled or maintained by the Government, a local authority or any other authority.” 10.2 A bare reading of the above section explains that there is no prohibition, but is a regulation. The proposed activity, even if it comes into existence, at best, the authorities **W.A. No. 1154/2023** **-13-** can only regulate the indiscriminate blasting operations in the quarry with conditions that may allow the quarry to operate. In anticipation of stopping the business, stopping the drinking project, which provides drinking water to the grama panchayat, is untenable. Therefore, in the intra-Court appeal, we are convinced that no ground is made out warranting interference with the judgment under appeal. The appeal fails, dismissed accordingly. Sd/S.V.N.BHATTI CHIEF JUSTICE Sd/BASANT BALAJI JUDGE jjj **W.A. No. 1154/2023** **-14-** ## APPENDIX OF WA 1154/2023 PETITIONER ANNEXURES - Annexure-A1 TRUE COPY OF THE DECISION DATED 27-9-2022 OF THE 4TH RESPONDENT - Annexure-A2 TRUE COPY OF THE COMMUNICATION DATED 4-4-2023 ISSUED BY THE SUPERINTENDING ENGINEER OF THE IRRIGATION DEPARTMENT TO THE SECRETARY OF THE 4TH RESPONDENT PANCHAYATH - Annexure-A3 TRUE COPY OF THE AGREEMENT 24-5-2023 EXECUTED BETWEEN THE PANCHAYATH AND THE ASSISTANT EXECUTIVE ENGINEER. - Annexure-A4 TRUE COPY OF THE DECISION DATED 17-4-2023 TAKEN BY THE PANCHAYATH - Annexure A-A5 TRUE COPY OF THE TENDER NOTIFICATION ISSUED BY THE SUPERINTENDING ENGINEER. - RESPONDENT ANNEXURES - Annexure-R3(a) True copy of the communication of Asst.Exe.Engineer, KWA, P.H.Sub Division Piravom to Panchayath, dated 19/01/2022 - Annexure-R3(b) True copy of the resolution dated 17/4/2023 passed by the Panchayath - Annexure-R3(c) True copy of the meeting invitation dtd. 8/5/2023, by the 2nd respondent - Annexure-R3(d) True copy of the minutes dated 28/4/2023, meeting held in the 2nd respondent's chamber