E.K. Radhakrishnan and others v. Moonniyur Grama Panchayath and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 10TH DAY OF JUNE 2020 / 20TH JYAISHTA, 1942** ## **WP(C).No.10993 OF 2020(Y)** ## **PETITIONER/S:** - **1 E.K.RADHAKRISHNAN, AGED 40 YEARS S/O. K. VELAYUDHANKUTTY NAIR, ALINGALTHARA HOUSE, MOONNIYUR SOUTH POST, MALAPPURAM DISTRICT-676311.** - **2 EDASSERY ABOOBACKER HAAJI, AGED 66 YEARS S/O. LATE KUNJAHAMMED, EDASSERY HOUSE, MOONNIYUR SOUTH POST, MALAPPURAM DISTRICT-676311.** - **3 P.K. SAIDALAVI, AGED 55 YEARS S/O. LATE KAMMU HAAJI, CHATHARAMBU HOUSE, MOONNIYUR SOUTH POST, MALAPPURAM DISTRICT-676311.** - **4 P. KUNHIMUTTY, AGED 61 YEARS S/O. LATE MOIDEENKUTTY, PALAPPETTY HOUSE, MOONNIYUR SOUTH POST, MALAPPURAM DISTRICT-676311.** - **5 ABDUL LATHEEF, AGED 32 YEARS S/O. YOOSAF, ANATHATHARA HOUSE, MOONNIYUR SOUTH POST, MALAPPURAM DISTRICT-676311.** **BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SRI.AVINASH P RAVEENDRAN SMT.ARYA RAGHUNATH SMT.VAISAKHI V. SMT.SNEHA SUKUMARAN MULLAKKAL** ## **RESPONDENT/S:** - **1 MOONNIYUR GRAMA PANCHAYATH, VELIMUKKU SOUTH P.O., MALAPPURAM-676317, REPRESENTED BY ITS SECRETARY.** **2 THE SECRETARY, MOONNIYUR GRAMA PANCHAYATH, VELIMUKKU SOUTH P.O., MALAPPURAM-676317.** ::2:: **WP(C).No.10993 OF 2020(Y)** - **3 THE REGIONAL PROJECT DIRECTOR, JALANIDHI OFFICE, MALAPPURAM-676317.** - **4 THE SUPERINTENDENT ENGINEER, IRRIGATION NORTH CIRCLE, KOZHIKODE-673647.** - **5 THE EXECUTIVE ENGINEER, MINOR IRRIGATION, CIVIL STATION, MALAPPURAM-676505.** - **6 THE ASSISTANT EXECUTIVE ENGINEER, MINOR IRRIGATION, PARAPPANANGADI P.O., MALAPPURAM DISTRICT-676303.** - **7 PARAPPANANGADI MUNICIPALITY, MUNICIPAL COMPLEX, PARAPPANANGADI P.O., MALAPPURAM DISTRICT-676303, REPRESENTED BY ITS SECRETARY.** - **8 THE DISTRICT COLLECTOR, CIVIL STATION, MALAPPURAM -676505.** - **9 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **10 ADDL.MOORIYUR SUDHA JALA VITHARANA SOCIETY, REPRESENTED BY ITS SECRETARY, MOHAMMED HANEEFA, AGED 58, S/O.SAIDALAVI, DAYA, VELIMUKK SOUTH P.O., MALAPPURAM, PIN CODE -676 317** **ADDL.R-10 IMPLEADED AS PER ORDER DATED 5.6.2020 IN I.A.NO.1/2020 IN W.P.(C).NO. 10993/2020** **R1-2 BY ADV. SRI.R.RAMADAS R3 BY ADV. SRI.D.KISHORE R10 BY ADV. SHIBU JOSEPH** **R10 BY ADV. SRI.AJITH VISWANATHAN** ## **OTHER PRESENT:** ## **SRI.K.J.MANU RAJ, GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ::3:: **WP(C).No.10993 OF 2020(Y)** ## **ALEXANDER THOMAS, J** . ----------------------------W.P(C).No.10993 Of 2020 --------------------------------Dated this the 10[th] day of June, 2020. ## **J U D G M E N T** The case set up in this Writ Petition (Civil) is as follows: _The petitioners are residents of ward No.15 of the 1[st] respondent Panchayath. The petitioners are aggrieved by the attempt of the 1[st] respondent Grama Panchayath to construct/dig a well at Kundamkadavu on the bank of Kadalundi river, as a part of implementation of a major/large water supply scheme, without following any procedure and which is sure to add to the already existing drinking water scarcity in the area, specially in ward Nos. 13 & 15 of the 1[st] respondent Panchayath and ward Nos. 12, 13, 15 & 16 of the 7[th] respondent Municipality. The well is proposed to be constructed/dug in Kundamkadavu, in ward No.15. As per the Guide Lines for implementing water supply scheme by Jalanidhi, the basic mandate is that, the same has to be small centralized schemes for small areas. However, the Guide Lines authorizes the Panchayath to implement Large scale water supply scheme only when there is a assured regular flowing source of sufficient water throughout the year for the whole Panchayath. Kundamkadavu is a part of Kadalundi river bank in the area of the 1[st] respondent Panchayath. There are drinking water wells in about 90% residential houses in Ward No.13 & 15 of 1[st] respondent Panchayath. Kadalundi River is the main water resource in the whole area. However, even during March to May, there is water scarcity in the area. There will not be a proper flow of water in the Kadalundi river from January to May and the regular flow in the river is only during rainy season. The water availability in Kadalundi River will decrease from January and by March there will be parches in the river breaking the water body into different parts. There are two water pumping stations under the respondents 5 and 6 (Minor Irrigation Department) in the area for irrigation purposes. In fact, the availability of well water is even dependent upon such_ ::4:: **WP(C).No.10993 OF 2020(Y)** _pumping stations. It is relevant to point out that, every year during the months of March, April and May, even the irrigation pumping is stopped and, some times, limited to one or two days a week. In fact, when there was dearth of drinking water facility in the area due to the aforesaid reasons, the Panchayath or NGOs used to provide drinking water to the residents in ward No. 13 and 15 of the 1[st] respondent Panchayath. This happened this year also. However, ignoring the scarcity of water at the source at Kundamkadavu, it was understood that, the 1[st] respondent was attempting to dig/construct a well for drawing 19,oo,ooo litters of water per day, which may increased up to 35,00,000 litters per day. when the petitioners and other residents of the locality came to know about such an illegal act, they have submitted various representations to different authorities. As evident from Exhibits P6 to P8, though the District Collector seized of the matter and directed the respondents 1 to 3 to submit its report, even that is not done by them till now. However, in the meanwhile, the 4[th] respondent issued Exhibit P10 order dated 06/03/2020 permitting the construction of the well. It is submitted that, under the cover of the same, even without conducting any study of the availability of the water and the likelihood of serious drought in the area, the respondents 1 to 3 are attempting to put up the well. It is relevant to point out that, no Grama sabha or cluster Meeting/Ayalkkoottam Meeting was convened for this purpose, which is mandatory under section 3 of the Kerala Panchayath Raj Act and the Guide Lines for Jalanidhi scheme. In Exhibit P5, the 1[st] respondent Panchayath itself has admitted that no such meeting was held. So, the respondents 1 to 3 are attempting to dig the well and to draw the water from Kundamkadavu behind the back of the petitioners and putting them in total scarcity of drinking water and their agricultural operations. The actions of the respondents 1 to 3 are violative of Articles 14, 19 and 21 of the Constitution of lndia._ ## It is in the light of these aspects that the petitioners have filed the ## instant Writ Petition seeking the following reliefs: - _i) declare that the proposed construction/digging of well in Kundamkadavu on the bank of Kadalundi river by the respondents 1 and 2 for drawing water for the implementation of Large water supply scheme in the 1[st] respondent Panchayath is totally illegal, arbitrary and violative of Articles 14, 19 and 21 of the Constitution of lndia;_ - _ii) declare that the proposed Large water supply scheme of the 1[st]_ ::5:: **WP(C).No.10993 OF 2020(Y)** _respondent is against the very interest of the petitioners, the 1[st] respondent Panchayath and is unworkable;_ - _iii) issue a writ of certiorari or other appropriate writ or order or direction quashing Exhibit P10 of the 4[th] respondent;_ - _iv) direct the respondents 1 to 3 to implement Small Scale and Decentralized Water Supply Scheme in 1[st] respondent Panchayath; and_ - _v) Pass such other orders as this Hon'ble Court shall deem just._ 2. Heard Sri.Babu Karukapadath, learned counsel for the petitioners, Sri.R.Ramdas, learned Standing Counsel appearing for the respondents 1 & 2-Panchayath, Sri.D.Kishore, learned counsel appearing for the 3[rd] respondent, Sri.K.J.Manu Raj, learned Government Pleader appearing for respondents 5, 6, 8 and 9 and Sri.P.Vishwanath, learned Senior Counsel, instructed by Sri.Shibu Joseph, learned counsel appearing for the 10[th] respondent. 3. Sri.Babu Karukapadath, learned counsel for the petitioners has made submissions in tune with the pleadings in the Writ Petition and seeks for appropriate reliefs. Respondents 1 & 2 Moonniyur Grama Panchayath have filed their counter affidavit dated 8.6.2020 through their counsel. The additional 10[th] respondent (beneficiary committee) has also separately filed their counter affidavit in this case. Sri.D.Kishore, learned counsel for the 3[rd] respondent-Regional Project Director, Jalanidhi, has sought for time to file counter affidavit. ::6:: **WP(C).No.10993 OF 2020(Y)** 4. The main stand of the respondents is seen reflected in the counter affidavit of respondents 1 & 2 and the factual aspects are also stated in the counter affidavit of the 10[th] respondent. Going by the nature of the issues raised in this petition, this Court is of the view that it may not be proper for this Court to exercise the powers of judicial review at this stage, more particularly, as the 8[th] respondent is in the seisin of the matter in respect of the proceedings referred to in Exts.P-6 to P-9. The learned counsel appearing for respondents 1 & 2 and the Senior Counsel appearing for the additional 10[th] respondent and the learned counsel appearing for the 3[rd] respondent have also adverted to the provisions contained in Sec.41(ha) of the Specific Relief Act made effective from 1.10.2018 as well as the judgment of the Apex Court in _**Subramaniam Balaji v. State of Tamil Nadu**_ [(2013) 9 SCC 659], which has laid down the limitations on the powers of judicial review of constitutional courts while dealing with matters in relation to infrastructural development, etc. Per contra, Sri.Babu Karukapadath, learned counsel of the petitioners would place reliance on the decision of the Apex Court in _**Jitendra Singh v. Ministry of Environment**_ [2020(1) KLT 56 (SC)]. As observed ::7:: ## **WP(C).No.10993 OF 2020(Y)** by this Court earlier hereinabove it may not be appropriate for this Court now to straight away enter into the terrain of judicial review. As mentioned hereinabove, the matter is pending before the 8[th] respondent-District Collector as can be seen from the proceedings in Exts.P-6 to P-9 and those proceedings are not seen finalised. 5. Accordingly, it is ordered in the interest of justice that the 8[th] respondent will finalise the proceedings referred to in Exts.P-6 to P-9 and after affording reasonable opportunity of being heard to the petitioners, the respondent-Panchayath, the 3[rd] respondent, the 10[th] respondent and any other affected persons, may ensure that orders are passed for finalising those proceedings without much delay, preferably within a period of one month from the date of production of a certified copy of this judgment. From a reading of Exts.P-6 to P-9, it appears that though the 8[th] respondent-District Collector has consistently directed the subordinate officials concerned to submit their reports in the matter, the same has not been furnished. It is not known as of now whether subsequently the officials concerned have submitted their report to the 8[th] respondent. In view of the urgency expressed by the petitioners, the abovesaid time limit of one month will have to ::8:: ## **WP(C).No.10993 OF 2020(Y)** be adhered to and it is for the 8[th] respondent to ensure that all necessary reference sought for in Exts.P-6 to P-9 are obtained from the officials concerned immediately. It is made clear that this Court has not entered into the merits of the matter and it is for the 8[th] respondent to take a decision independently in the matter and in accordance with law. 6. Sri.Babu Karukapadath, learned counsel for the petitioners, submits that necessary directions may also be given to ensure that _status quo_ in respect of the work may be observed as otherwise the petitioners may be presented with fate accompli. It will be open to the petitioners to seek or appropriate interim order from the 8[th] respondent and it is also open to them to file a detailed representation in the matter for voicing their complaints and grievances and those representations may be duly filed by the petitioners before the 8[th] respondent along with a certified copy of this judgment. In case the petitioners may move for any such interim orders, it is for the 8[th] respondent to examine those aspects and to pass orders on those request after hearing the representatives of the petitioners, respondent-Panchayath and the beneficiary committee (additional R-10). ::9:: **WP(C).No.10993 OF 2020(Y)** 7. Sri.K.J.Manu Raj, learned Government Pleader is requested to immediately give necessary instructions to the 8[th] respondent-District Collector as well as the officials concerned whose reports are awaited to ensure that those reports, if not submitted, should be furnished immediately and this may be done by the learned Government Pleader without even awaiting for formal issue of a certified copy of this judgment. The petitioners will produce a certified copy of this judgment along with copy of the memorandum of the Writ Petition with all exhibits before the 8[th] respondent-District Collector for necessary information and further action. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- **APPENDIX** ::10:: **WP(C).No.10993 OF 2020(Y)** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE DRY WELL IN THE RESIDENTIAL COMPOUND OF MR. ABDUL NAZAR, ATHAKKAKATHU. EXHIBIT P2 A TUE COPY OF THE RELEVANT PHOTOGRAPHS OF THE POSITION OF KUNDAMKADAVU AREA IN KADALUNDI RIVER DURING THE LAST WEEK OF MAY 2020.** - **EXHIBIT P3 A TRUE COPY OF THE LETTER DATED 10/03/2020 SUBMITTED BY 3RD PETITIONER TO THE 1ST RESPONDENT PANCHAYATH UNDER RIGHT TO INFORMATION ACT DEMANDING IT TO INFORM AS TO THE GRAMA SABHA MEETING.** **EXHIBIT P4 A TRUE COPY OF THE REPLY LETTER DATED 03/04/2020 ISSUED BY THE 1ST RESPONDENT TO THE 3RD PETITIONER INFORMING THAT NO GRAMA SABHA OR CLUSTER MEETING WAS HELD IN WARD NO.15 OF THE 1ST RESPONDENT PANCHAYAT FOR THE PURPOSE OF WATER SUPPLY SCHEME.** **EXHIBIT P5 A TRUE COPY OF THE LETTER DATED 19/12/2019 ISSUED BY THE HON'BLE AGRICULTURAL MINISTER TO THE 3RD PETITIONER. EXHIBIT P6 A TRUE COPY OF THE LETTER DATED 04/03/2020 ISSUED FROM THE OFFICE OF THE DISTRICT COLLECTOR CONVENING THE MEETING ON 10/03/2020 IN THE CHAMBER OF THE DEPUTY COLLECTOR. EXHIBIT P7 A TRUE COPY OF THE LETTER DATED 12/03/2020 ISSUED FROM THE OFFICE OF THE DISTRICT COLLECTOR CONVENING THE MEETING ON 18/03/2020 IN THE CHAMBER OF THE DISTRICT COLLECTOR. EXHIBIT P8 A TRUE COPY OF LETTER DATED 26/05/2020 ISSUED FROM THE OFFICE OF THE DISTRICT COLLECTOR TO THE 2ND RESPONDENT DIRECTING TO SUBMIT REPORT.** ::11:: **WP(C).No.10993 OF 2020(Y)** |**EXHIBIT P9**|**A TRUE COPY OF THE LETTER DATED**| |---|---| ||**27/05/2020 ISSUED FROM THE OFFICE OF**| ||**THE DISTRICT COLLECTOR TO THE 3RD**| ||**RESPONDENT DIRECTING TO SUBMIT REPORT.**| |**EXHIBIT P10**|**A TRUE COPY OF THE LETTER DATED**| ||**06/03/2020 ISSUED BY THE 4TH**| ||**RESPONDENT SUPERINTENDING ENGINEER.**| |**EXHIBIT P11**|**TRUE COPY OF THE RELEVANT PAGES OF**| ||**GUIDE LINES FOR IMPLEMENTING THE**| ||**PROJECTS UNDER JALANIDHI.**| |**EXHIBIT P12**|**A TRUE COPY OF THE RELEVANT PORTION OF**| ||**THE REPRESENTATION DATED 02/02/2019**| ||**SUBMITTED BY THE RESIDENTS OF THE**| ||**LOCALITY.**|