Hilite Builders (P) Ltd. and Others v. State of Kerala and Kerala Water Authority and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH TUESDAY, THE 27TH DAY OF JANUARY 2015/7TH MAGHA, 1936 WP(C).No. 9755 of 2013 (T) --------------------------- PETITIONERS: -------------------- 1. M/S HILITE BUILDERS (P) LTD., G-1003, T 1, HI LITE CITY, THODAYAD BY PASS, GURUVAYOORAPPAN COLLEGE P.O., KOZHIKODE 673 014 2. M/S.QUEENS HABITAT(P) LTD. 11/128, PRAMOD BUILDINGS, CHERROTY ROAD, KOZHIKODE 673 032 3. M/S.SKYLINE BUILDERS, SYLINE BAY WATERS, NEAR CORPORATION OFFICE, KOZHIKODE 673 032 REP.BY SHAJI ABRAHAM, BRANCH MANAGER. 4. M/S.GALAXY BUILDERS, CORNISH CASTLE, R.C ROAD, KOZHIKODE 673 032, REP. BY P.M. KUNHAMMAD, MANAGING PARTNER. 5. M/S.PRISUNIC BUILDERS (P) LTD., C-7, 1ST FLOOR, NIRMAL ARCADE, ERANHIPALAM, BY PASS ROAD, KOZHIKODE. 6. M/S. GAIA PROPERTIES AND INFRSSTRUCTURE INDIA (P) LTD 6/934 H, YMCA CROSS ROAD, KOZHIKODE 673 001. 7. M/S.ALHIND BUILDERS, AL HIND LEGEND, ERANHIPALAM, KOZHIKODE 673 006 REP BY ITS MANAGING PARTER M.V VAZEERUDHEEN. 8. M/S. PENTIUM CONSTRUCTION(P) LTD. 2ND FLOOR, MANANCHIRA TOWER, A.G ROAD, KOZHIKODE 673 001. 9. M/S.CRESCENT BUILDERS, 6/1200 S, 1ST FLOOR, R.B.G. ARCADE,OPP. GANDHI PARK, CHEROOTY ROAD, KOZHIKODE 673 032 10. M/S.MALABAR BUILDERS (INDIA) LTD., DOOR NO 41/2264, GROUND FLOOR, MALABAR GATE, RAM MOHAN ROAD KOZHIKODE 673 004 WP(C) NO. 9755/2013 11. M/S.SEIKEN PROPERTY DEVELOPERS(P) LTD. SEIKEN CHAMBERS, KANNUR ROAD, KOZHIKODE 673 001. 12. M/S.SREEROSH PROPERTIES(P) LTD., 2ND FLOOR, P.K COMPLEX, CHEROOTY ROAD, KOZHIKODE 673 032. 13. M/S. GREENLINE LAND DEVELOPERS(P) LTD., 968-V, M.N'S AVENUE P.T USHA ROAD, NEAR 4TH GATE, KOZHIKODE 673 001. 14. M/S.SOUTHERN INVESTMENTS(P) LTD., 240/A-2 GLENDALE EAST, SIVAPURI, BANK ROAD, KOZHIKODE 673 001. 15. M/S. APPOLO BUILDE-TEC(INDIA) PVT. LTD., KOTTOOLI, KOZHIKODE 673 016. 16. M/S. CALICUT LAND MARK BUILDERS & DEVELOPERS (INDIA) PVT LTD., 3RD FLOOR, ROOM NO 47-50, CD TOWER, MINI BYE PASS, NEAR BABY MEMORIAL HOSPITAL, KOZHIKODE 673 004 17. CONFEDERATION OF REAL ESTATE DEVELOPERS ASSOCIATION OF INDIA-CALICUT, 1/970-C, JASLU CENTRE KANNUR ROAD, WEST HILL, CALICUT 673 005 REP BY ITS PRESIDENT SHRI M.A MEHABOOB BY ADV. SRI.C.K.KARUNAKARAN RESPONDENTS: ----------------------- 1. STATE OF KERALA REP. BY SECRETARY, WATER RESOURCES DEPARTMENT GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 685 001 2. KERALA WATER AUTHORITY THIRUVANANTHAPURAM 695 033 3. THE SUPERINTENDING ENGINEER KERALA WATER AUTHORITY, PUBLIC HEALTH CIRCLE, KOZHIKODE 673 009 WP(C) NO. 9755/2013 4. ASSISTANT EXECUTIVE ENGINEER, DISTRIBUTION SUB DIVISION NO 1, KERALA WATER AUTHORITY, WEST HILL, KOZHIKODE 673 009 5. ASSISTANT EXECUTIVE ENGINEER DISTRIBUTION SUB DIVISION NO. II, KERALA WATER AUTHORITY, WEST HILL, KOZHIKODE - 673 009. R2-R5 BY ADV. SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY BY GOVERNMENT PLEADER SRI. GIKKU JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27-01-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.9755/2013 ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** - EXHIBIT P1 : TRUE COPY OF A BUILDING PERMIT NO. E1/54751/07 DATED 08.04.2008 ISSUED TO THE 2ND PETITIONER. - EXHIBIT P2 : TRUE COPY OF BUILDING PERMIT NO. E6/87670/08 DATED 30.06.2009. - EXHIBIT P3 : TRUE COPY OF BUILDING PERMIT NO. E2/4050/07 DATED 04.02.2008. - EXHIBIT P4 : TRUE COPY OF THE BUILDING PERMIT NO. E9/11110/08 DATED 23.10.2008. - EXHIBIT P5 : TRUE COPY OF BUILDING PERMIT NO. E1/68212/07 DATED 26.06.2009. - EXHIBIT P6 : TRUE COPY OF BUILDING PERMIT NO. E/TP3/1701/09 DATED 22.12.2009. - EXHIBIT P7 : TRUE COPY OF BUILDING PERMIT NO. 4/75201/06 DATED 04.02.2010. - EXHIBIT P8 : TRUE COPY OF THE BUILDING PERMIT NO. T4/36691/08 DATED 16.01.2010. - EXHIBIT P9 : TRUE COPY OF THE BUILDING PERMIT NO. E2/89205/07 DATED 08.07.2008. - EXHIBIT P10 : TRUE COPY OF BUILDING PERMIT NO. E/111111/04 DATED 29.08.2005. - EXHIBIT P11 : TRUE COPY OF BUILDING PERMIT NO. E1/33422/05 DATED 09.11.2005. - EXHIBIT P12 : TRUE COPY OF THE OCCUPANCY CERTIFICATE NO. TP5/5227/11 DATED 18.01.2011. - EXHIBIT P13 : TRUE COPY OF THE RECEIPT NO. 16103 DATED 16.08.2011 FOR PROPERTY TAX. - EXHIBIT P14 : TRUE COPY OF ALETTER DATED 13.09.2011 SENT BY THE 10TH PETITIONER TO THE EXECUTIVE ENGINEER. - EXHIBIT P15 : TRUE COPY OF LETTER DATED 28.09.2012. - EXHIBIT P16 : TRUE COPY OF REQUEST DATED 02.07.2012 MADE BY THE 8TH PETITIONER FOR ISSUE OF APPLICATION FORMS. - EXHIBIT P17 : TRUE COPY OF REPRESENTATION DATED 15.11.2012. WP(C) NO.9755/2013 - EXHIBIT P18 : TRUE COPY OF 17TH PETITIONER'S APPLICATION DATED 23.11.2012 TO THE 3RD RESPONDENT - EXHIBIT P19 : TRUE COPY OF THE REPLY DATED 02.01.2013 RECEIVED FROM THE 4TH RESPONDENT - EXHIBIT P20 : TRUE COPY OF THE REPLY DATED 02.01.2013 RECEIVED FROM THE 4TH RESPONDENT - EXHIBIT P21 : TRUE COPY OF ACKNOWLEDGEMENT NOP. 337 DATED NIL ISSUED BY THE OFFICE OF THE 4TH RESPONDENT FOR APPLICATION FOR WATER CONNECTION SUBMITTED BY THE 2ND PETITIONER. - EXHIBIT P22 : TRUE COPY OF APPLICATION DATED 30.08.2013 MADE UNDER RTI ACT. - EXHIBIT P23 : TRUE COPY OF REPLY DATED 30.09.2013 OF THE 4TH RESPONDENT ## **RESPONDENT(S) EXHIBITS : NIL** /TRUE COPY/ P.S. TO JUDGE. ncd **==> picture [384 x 85] intentionally omitted <==** **==> picture [136 x 15] intentionally omitted <==** The right to life guaranteed under Article 21 of the Constitution of India encompasses in itself the right to have clean drinking water supplied to a citizen in sufficient quantities. [See Vishala Kochi Kudivella Samrakshana Samithi v. State (2006 (1) KLT 919) and Shajimon Joseph and others v. State of Kerala and others (2007 (1) KLT 368)]. The petitioners are builders and the association of builders of residential apartments who complain of discrimination in the matter of water supply to apartments. 2. The water supply in the State of Kerala for domestic as well as non-domestic purposes is governed by the Kerala Water Supply and Sewerage Act, 1986 [hereinafter referred to as 'the Act' only]. Section 38 of the Act deals with the supply of water by the Authority (Kerala Water Authority) and its mandatory duty to grant supply of water for domestic purposes is discernible therefrom. The relevant part of Section 38 of the Act is extracted hereunder:- “38. Supply of water by the Authority:- W.P (C) No.9755/2013 2 - (1) The Authority shall on an application made to it by the owner of any premises or by the occupier with the consent in writing of the owner thereof, grant supply of water for domestic purposes on such terms and conditions as may be provided by regulations. - (2) The Authority may on application made in that behalf, grant supply of water for any purpose other than domestic purposes.”(emphasis supplied) The word 'shall' has been employed in Section 38(1) of the Act in the case of supply for domestic purposes whereas the word 'may' has been employed in Section 38(2) of the Act in the case of other purposes. Thus an element of discretion is vested in the Authority to grant or not to grant supply of water only for any purpose other than domestic purposes. 3. Section 38A of the Act deals with water supply to flats and multi-storied buildings subject to such terms and conditions as may be provided by regulations. Section 38A of the Act is as follows:- “38A. Water supply to flats and multistoried buildings:- (1) Notwithstanding anything contained in this Act, and subject to sub-section W.P (C) No.9755/2013 3 (2), the Authority may supply water through cisterens, tanks, sumps and ground level reservoirs to multistoried buildings and flats, subject to such terms and conditions, as may be provided by regulations. - (2) The supply of water referred to in sub-section (1) shall not be made from a distribution main having diameter of 150 mm or less.” The water can be supplied through cisterns, tanks, sumps and ground level reservoirs and the stipulation is that the supply of water shall not be made from a distribution main having diameter of 150 mm or less. The residential apartments of the petitioners are evidently not meant for non-domestic activities and hence not a 'multi-storied building' as defined under Section 2(xva) of the Act. The term 'main' has been defined under Section 2(xiii) of the Act to mean a pipe laid by the authority for the purpose of giving a general supply of water. The respondents have no case that a distribution main having diameter of 150 mm of less is only available in the vicinity and hence unable to provide supply of water to the petitioners. W.P (C) No.9755/2013 4 4. Kerala Water Authority (Water Supply) Regulations, 1991 [hereinafter referred to as 'the Regulations' for short] have been framed under Section 65 of the Act. The Regulations have been framed with the previous approval of the Government for the administration of the affairs of the Authority including the grant of supply of water. Clauses 2(f) and 2(l) of the Regulations define 'domestic connection' and 'non-domestic connection' to mean separate categories of water supply connection. Clause 2 (h) defines 'house connection' to mean the connection by pipes from the main to the limit of the premises or to the meter whichever is farther from the main. 5. The Assistant Executive Engineer is entitled to deny house connection to an applicant if in his opinion the pressure in the main is not sufficient for providing the connection. The respondents have no case that the pressure in the main is not sufficient and the petitioners also assert that several new connections are being given for non-domestic purposes. Clauses 7(d) and 7(g) of the Regulations dealing with the house connections are relevant and are extracted W.P (C) No.9755/2013 5 hereunder:- ## 7. House connections:- - (a) x x x x - (b) x x x x - (c) x x x x - (d) Separate house connections may be provided to buildings situated in the same premises but bearing separate house numbers. - (e) x x x x - (f) x x x x - (g) House connections using connection pipes of size exceeding 25 mm diameter shall ordinarily be allowed only in respect of premises where water demand is estimated to be high such as in residential complexes, flat type of residential buildings or premises where bulk consumption of water is expected and where the service pipe is proposed to be connected directly to a storage tank facilitating a free discharge of water to it. In such cases where connections are to be given directly to storage reservoirs the provisions contained in Appendix 'C' to these Regulations shall apply. Clause 7(d) of the Regulations speaks of separate house connections to buildings situated in the same premises bearing separate house numbers like individual flats in W.P (C) No.9755/2013 6 a residential apartment. Clause 7(g) of the Regulations speaks of house connections in respect of premises where bulk consumption is expected and enables connection directly to a storage tank. Connection pipes exceeding 25 mm diameter shall ordinarily be allowed in such contingency wherein the provisions contained in Appendix 'C' to the Regulations apply. It is upto the applicant to opt for separate house connection under Clause 7(d) or connection to a storage tank facility under clause 7(g) of the Regulations. 6. Clause 21 of the Regulations is an eye opener to the question as to whether connection to domestic purposes should be given preference to nondomestic purposes. Clause 21 of the Regulations reads as follows:- 21. Disconnection of non-domestic connections on inadequacy of water:- The Assistant Executive Engineer or any person authorised by him may disconnect without notice from any premises, water supply given from the mains for non-domestic purposes, if due to natural calamities, water shortage or any other reasons the water supplied through the water supply system is found inadequate to meet the W.P (C) No.9755/2013 7 ## domestic requirements of the consumers. In the event of such disconnection, the water supply shall be restored to the above premises as soon as normalcy in the system is restored and the disconnection and reconnection fees provided in clause (d) of regulation 14 of these Regulations shall not be levied. Thus disconnection without notice of water supply given from the mains for non-domestic purposes is permissible if the water supply to meet the domestic requirements of the consumers is found inadequate. Therefore the applicants for domestic connection stand at a higher pedestal than the applicants for non-domestic connection even as per the Regulations. The respondents have no case that no connection for nondomestic purposes have been given after the receipt of the applications for domestic purposes. The petitioners cannot be asked to wait indefinitely on the ground that water will be available in plenty after the implementation of 'JICA' project. Flats are mushrooming in urban areas and altitudinal expansion of apartments is inevitable when horizontal expansion is impossible due to lack of space. The applicants for W.P (C) No.9755/2013 8 water supply to flats as well as to villas and independent bungalows are to be treated alike by the State and the Authority. Any discrimination between them in the matter of connection for water supply would violate the equality clause enshrined in Article 14 of the Constitution of India. The applications for house connection have to be given precedence to the one for non-domestic connection going by the scheme of statutory regulations. The petitioners lament that new connections are being given for non-domestic purposes and bungalows keeping their applications for house connection pending. The respondents are directed to provide house connection to the residential apartments of the petitioners within three months if their applications are in order. The Writ Petition is disposed of. No costs. Sd/V.CHITAMBARESH, Judge. nj.