Johnson & Jose v. Station House Officer, Chengamanad Police Station; District Officer, Ground Water Department; Kunnukara Grama Panchayat; Poly P. J.

W.P.(C).No.13341/21 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943** **WP(C) NO. 13341 OF 2021** ## **PETITIONERS:** 1 JOHNSON AGED 55 YEARS S/O. CHAKKUNNI, THARAYIL HOUSE, NORTH KUTHIYATHODU, ERNAKULAM DISTRICT. 2 JOSE AGED 52 YEARS S/O. CHAKKUNNI, THARAYIL HOUSE, NORTH KUTHIYATHODU, ERNAKULAM DISTRICT. BY ADVS. GEORGE SEBASTIAN ARUN LUCKOSE ABRAHAM ## **RESPONDENTS:** 1 THE STATION HOUSE OFFICER CHENGAMANAD POLICE STATION, ERNAKULAM, PIN - 683 578. 2 THE DISTRICT OFFICER GROUND WATER DEPARTMENT, KAKKANAD, ERNAKULAM, KOCHI - 682 030. 3 THE KUNNUKARA GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, OFFICE OF THE KUNNUKARA GRAMA PANCHAYAT, KUNNUKARA P. O., PIN - 683578. 4 POLY P. J. S/O. JOSEPH, PUTHUVA HOUSE, KUNNUKARA P. O., ERNAKULAM DISTRICT - 683578. 2 W.P.(C).No.13341/21 BY ADVS. GOVERNMENT PLEADER ANOOP.V.NAIR M.G.JEEVAN DEVI P. BILAL NIAMATHULLA SANIYA JOSE MAMPILLY ## **OTHER PRESENT:** PRINCY XAVIER-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 7.02.2022, THE COURT ON 14.2.2022 DELIVERED THE FOLLOWING: W.P.(C).No.13341/21 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = W.P.(c).No.13341 of 2021** **= = = = = = = = = = = = = = = = Dated this the 14[th] day of February, 2022** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- - “1)To issue a Writ of Mandamus, order or direction to the 1[st] respondent to afford adequate protection to the petitioners to carry out the work in pursuance of Exhibits P1 and P5 from the threats and violence from the part of respondent No.4 and his men. ii)To direct the 1[st] respondent to take immediate action Exhibit P6.” - 2.Heard the learned counsel for the petitioners, the learned Government Pleader and the learned counsel appearing for the 3[rd ] respondent Panchayat and learned counsel for the 4[th] respondent. - 3.It is submitted by the learned counsel for the petitioners that the petitioners had obtained Exhibit P1 permission to dig a bore well in their property. The petitioners had also made the necessary payment for digging the bore well by the department. Exhibit P5 permit from the 3[rd] respondent W.P.(C).No.13341/21 4 had also been obtained. However, when the 2[nd] respondent started digging the well in question, the 4[th] respondent came to the site and obstructed the work. Though complaints were submitted, no protection was granted to the petitioners to carry out the work, which has prompted them to file this writ petition. 4.A counter affidavit has been filed by the 4[th] respondent. It is stated that the petitioners had purchased the property which originally belonged to the 4[th] respondent's family and that the property is situated on a higher plane than the surrounding places. It is stated that there is water scarcity in the area during summer and Parakkadavu Block Panchayat had started a lift irrigation scheme and sufficient water is made available for agricultural and domestic purposes by the lift irrigation scheme. It is stated that there is a well in the property of the petitioners and there is sufficient water in the said well. It is stated that there is a valve of the said lift irrigation scheme adjacent to the petitioners' property and that Water Authotiry pipe line is W.P.(C).No.13341/21 5 also passing in front of the property. It is submitted that in 2015 a bore well was dug by one Kochappan near the 4[th] respondent's property, which resulted in the water levels in the surrounding wells being severely affected. It is submitted that there is absolutely no necessity for digging of bore well in the petitioners' property as there is abundant availability of water. It is stated that Exhibit R4(d) appeal has been preferred by the 4[th] respondent before the Panchayat Committee against the permit granted by the Panchayat and Exhibit R4(e) appeal has been preferred before the District Collector. It is stated that it is only due to the apprehension that the drinking water supply of the 4[th] respondent and other residents of the locality will be affected that the 4[th] respondent had obstructed the construction of the bore well in the petitioners' property. - 5.A reply affidavit has also been placed on record. It is stated that there is no water scarcity in the area in question. However, digging of a bore well is the only solution for getting sufficient water for carrying out agricultural W.P.(C).No.13341/21 6 operations in the petitioners' property. It is submitted that there is no depletion of groundwater level and no water scarcity or harm of any nature is likely to be caused due to the digging of the bore well. 6.The learned Government Pleader has also placed a memo on record with a report of the District Officer, Ground Water Department. It is stated that pursuant to the application submitted by the petitioners, detailed survey was conducted taking into consideration the hydro-geological conditions prevalent in the site and due recommendations had been issued. It is further stated that permit for construction of bore well is required only in notified areas and that there are no notified areas in Ernakulam district and no restrictions exist in Ernakulam district for construction of bore wells. - 7.The learned counsel for the petitioners places reliance on a decision of a Full Bench of this Court in **Essar Telecom** ## **Infrastructure (P) Ltd. v.Circle Inspector of Police** W.P.(C).No.13341/21 7 [2010 (2) KLT 762] to contend that where there are all due permissions and licences available to a person, the police are bound to provide protection for carrying out the permitted activities and requiring the petitioners to approach other Fora in such circumstances would be violative of his fundamental rights. 8.The learned counsel appearing for the 4[th] respondent on the other hand relies on a decision of a Division Bench of this Court in **Krishnan B.K and another v. Superintendent of Police, Kasaragod District and other** s [2008 (1) KHC 822] where the issue was with regard to construction of a bore well under due permissions. After considering the contentions, the Bench held that where there is an obstruction for digging of a bore well on the ground that it will lead to depletion of groundwater and the availability of water in the nearby wells, then the remedy of the petitioner is to approach the civil court and not to seek a direction for police protection. After referring to the decisions of the Apex Court in **Aleque Padamsee v. Union of India** [2007 (3) KLT W.P.(C).No.13341/21 8 1028 (SC)] and **Sakiri Vasu v. State of U.P and others** [ 2008 (1) KLT 724 (SC) as well as the decisions of this Court, the Bench expressed the view that since there is likelihood of the water level in the neighbouring wells being affected due to the digging of bore wells , the court exercising jurisdiction in a police protection matter cannot decide genuineness of the objections raised by the local people. It was held that the police do not have any right to adjudicate the rival claims and give protection to the petitioners after rendering a finding in their favour. It was held that it was for the petitioners to approach the civil court and obtain orders after consideration of the claims of the objectors as well. 9. I have considered the contentions advanced. The contention of the petitioners is that their right to dig a bore well in their property is being interfered with and obstructed by the 4[th] respondent. A Full Bench of this Court has held that when the petitioners have _prima facie_ established their right to construct and operate a mobile transmission tower by obtaining the required licences, it is for the objectors, if any, W.P.(C).No.13341/21 9 to prove the infraction of their right and show disentitlement of the petitioners by resorting to the remedy of approaching the licensing authorities or approach the civil court for establishing their rights. The view of the Division Bench in **Reliance Infocom Ltd.v.Chemanchery Grama Panchayat** 2006 (4) KLT 695 was found to be not correct in law as it is not for anybody to cause physical obstruction to the vested rights and interest of other citizens preventing the construction,using muscle power. It was also held that in the case of forceful obstruction by a group of people whose identity may not be known to the persons like the petitioners, such persons cannot be effectively brought before the civil court. 10.A Division Bench of this Court has pointedly considered the contention with regard to the construction of a bore well in **Krishnan B.K.** s case (supra). It was held that the right to dig a bore well in the petitioners' property is a civil right available to the petitioners and if a determinable person interferes with such right, then the remedy would be before 10 ## W.P.(C).No.13341/21 the civil court. It was specifically considered that the petitioners being armed with permits are entitled to raise a presumption that the digging of the bore wells will not cause any environmental degradation. However, it was held that an order of police protection cannot be granted when there are objections raised by neighbouring people. 11.In the instant case, the petitioners have admittedly obtained all due permissions for the digging of a bore well in their property. The competent authority in the Ground Water Department has come on record stating that there is no risk of ground water depletion due to the digging of the bore well. The 4[th] respondent appears to be the only person objecting against the petitioners digging a bore well in their property. In case the party respondent has any dispute with regard to the finding on fact, it is for him to take recourse to the legal remedies available against the permissions and not to physically obstruct the permitted activity in the property of the petitioners. The learned counsel for the petitioners submits that competent appeals have not been submitted by W.P.(C).No.13341/21 11 the 4[th] respondent before the proper appellate authorities either against Ext.P1 permission or against Ext.P5 permit. 12.Having considered the contentions advanced on either side, I am of the opinion that since the petitioners are carrying out operations on the basis of Exts.P1 and P5, which have not been appealed against in proper Fora, the 4[th] respondent cannot physically obstruct such work without obtaining any orders against the said permissions in competent appeals. There will, accordingly, be a direction to the 1[st] respondent to afford adequate protection to the petitioners to carry out the activity permitted by Exts.P1 and P5, in accordance with law. **==> picture [26 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.13341/21 12 ## **APPENDIX OF WP(C) 13341/2021** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 18.06.2020. Exhibit P2 A TRUE COY OF THE ESTIMATE DATED 18.06.2020 GIVEN BY THE 2ND RESPONDENT. Exhibit P3 A TRUE COPY OF THE RECEIPT DATED 07.10.2020. Exhibit P4 A TRUE COPY OF THE CERTIFICATE DATED 05.10.2020 ISSUED BY THE AGRICULTURAL OFFICER, KUNNUKARA. Exhibit P5 A TRUE COPY OF THE BUILDING PERMIT DATED 13.04.2021 ISSUED BY THE SECRETARY OF THE 3RD RESPONDENT. Exhibit P6 A TRUE COPY OF THE REPRESENTATION DATED 30.06.2021 SUBMITTED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT. Exhibit P7 A TRUE COPY OF THE APPROVED PLAN DATED 13.4.2021 ISSUED BY THE SECRETARY OF THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS EXT R4A COPY OF THE REGD.SALE DEED NO:2988/2014 OF CHENGAMANAD SRO W.P.(C).No.13341/21 13 |EXT.R4B|COPY OF LOCATION SKETCH NO:177/21| |---|---| ||DT.10.2.2021UBMITTED BY WRIT PETITIONER| ||BEFORE 3 RESPONDENT PANCHAYATH| |EXT.R4C|COPY OF THE PLAN SUBMITTED BEFORE| ||PANCHAYATH BY WRIT PETITIONERS ALONGWITH| ||THE<br>APPLICATION<br>FOR<br>PERMIT.| |EXT.R4D|COPY OF THE APPEAL FILED BEFORE| ||PANCHAYATH COMMITTEE BY 4TH RESPONDENT.| |EXT.R4E|TRUE COPY OF THE PETITION SUBMITTED| ||BEFORE DISTRICT COLLECTOR, ERNAKULAM BY| ||4TH RESPONDENT AND PEOPLE IN THE| ||LOCALITY .| ||COPY OF COVERING LETTER BY BLOCK| |EXT.R4F|PANCHAYATH MEMBER ALONG WITH THE| ||PETITION TO DISTRICT COLLECTOR.| ||COPY OF FIRST PAGE OF THE PETITION| |EXT.R4G|SUBMITTED BEFORE DISTRICT COLLECTOR,| ||SHOWING THE ENDORSEMENT OF COLLECTOR.| |EXT.R4H|COPY OF THE PETITION SUBMITTED BEFORE| ||DISTRICT COLLECTOR B WARD MEMBER| ||DT.2.7.2021.| ## TRUE COPY PS TO JUDGE