Sahaja Marg Residents Association v. Karivellur Peralam Grama Panchayath and others

W.P.(C)No.3067 of 2018 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **FRIDAY, THE 8TH DAY OF APRIL, 2022 /17TH CHAITHRA, 1944** **WP(C) NO. 3067 OF 2018** ## **PETITIONER:** SAHAJA MARG RESIDENTS ASSOCIATION AGED 71 YEARS REPRESENTED BY ITS PRESIDENT T.V KUNHIKANNA PODUVAL, AGED 71 YEARS, S/O. KANNAN NAMBIAR, SAHAJA NIKETHAN, KOZHUMAL P.O, KARIVELLUR, KANNUR DISTRICT PIN 670 521 BY ADVS. SRI.R.PARTHASARATHY SMT.SEEMA ## **RESPONDENTS:** 1 KARIVELLUR PERALAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, KARIVELLUR P.O, KANNUR 670 521 2 THE SECRETARY, KARIVELLUR PERALAM GRAMA PANCHAYATH, KARIVELLUR P.O, KANNUR 670 521 3 THE GROUND WATER AUTHORITY, REPRESENTED BY ITS DIRECTOR, GWD COMPLEX, AMBALAMUKKU, THIRUVANANTHAPURAM PIN 695 001 4 THE DISTRICT OFFICER, GROUND WATER AUTHORTY, KANNUR 2 **ADDL.R5 IMPLEADED** ADDL R5 C.BALAKRISHNAN CHADIYAR VEEDU, PRANTHANCHAL P.O, KOZHUMAL, KARIVELLUR, PIN - 670521 IS IMPLEADED AS PER ORDER DATED 08/11/2021 IN I.A 1/2021 BY ADVS. R1 & R2 BY SRI.M.SASINDRAN R3 & R4 BY GOVERNMENT PLEADER SRI B.S.SYAMANTHAK THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.01.2022, THE COURT ON 08.04.2022 DELIVERED THE FOLLOWING: W.P.(C)No.3067 of 2018 2 ## **T.R. RAVI, J.** **--------------------------------------------** W.P.(C)No.3067 of 2018 -------------------------------------------Dated this the 8[t] h day of April, 2022 ## **JUDGMENT** The petitioner, a Residents Association registered under the Societies Registration Act in the year 2007, purchased 11 Acres of land as per various sale deeds. From out of the 11 Acres, 3 Acres was donated to Shri Ramachandra Mission, a spiritual organisation and an Ashram has been built in the said 3 Acres. In the remaining land, there are 39 residential plots belonging to the members of the Association, who are all persons who claim to be practising Sahaj Marg Meditation under the Mission. The petitioner submits that the property is located on top of hill where there is difficultly to get water for domestic purpose during summer. In order to overcome the water shortage, the petitioners purchased 8 cents of land in low lying area situated in the respondent Panchayat as per Ext.P1 sale deed. The distance from the said 8 cents to the residential properties is stated to be about 700 metres. It is submitted that since the property is in a low-lying area, except during the months of April and May, there is water logging. For the purpose of sourcing water, the petitioner decided to dig an open well, to draw water with the help of a pump, which W.P.(C)No.3067 of 2018 3 is to be carried to the petitioners' property on the hilltop. For that purpose, they applied for a building permit on 29.11.2013 and they were issued with a building permit by Karivaloor-Peralam Grama Panchayat. The building permit was subsequently renewed during the years 2014, 2015 and 2016. According to the petitioner, there were objections from certain persons with vested interests against the establishment of the Ashram. It is stated that the Village where the property is situated is under the control of the Communist Party of India (Marxist) and is known as a “Party Gramam”. According to the petitioners even with police protection, they were not able to dig the well during 2016 and that the Contractor was threatened, and he had to withdraw from the construction of the well. In such circumstances, the petitioner approached this Court by filing W.P.(C)No.15816 of 2016 seeking police protection. It is stated that on 9.5.2016, by Ext.P3 order, the permit granted on 29.11.2013 was suspended. The petitioner submitted Ext.P4 reply on 11.5.2016. On 14.7.2016, the 2nd respondent issued a notice to the petitioners asking them to show cause why the permit should not be cancelled. Ext.P5 is the said notice. The petitioners submitted Ext.P6 reply on 15.10.2016 stating that they are willing to reduce the diameter of the well from 7.40 metres to 5.40 metres. By Ext.P7 judgment dated 31.8.2016, the writ petition was closed as the permit had been W.P.(C)No.3067 of 2018 4 suspended. The petitioners allege that Panchayat sought a report from the District Officer, Groundwater Authority without any notice to the petitioners and the District Officer submitted a report to the Panchayat on 10.2.2017. The report has been produced as Ext.P8. It is stated in Ext.P8 that there are no wells within 500 Metres distance from the site where the petitioners intended to dig the well. However, it is stated that if the new well is dug, it may affect the availability of water in other wells. According to the petitioners, the said conclusion is not supported by any test or physical verification of the availability of water in the area and it is a conclusion which is drawn specifically to favour the persons with vested interest. Based on Ext.P8 report, the respondents cancelled the permit by Ext.P9 order. The petitioners filed an appeal before the Tribunal for Local Self Government Institutions. The Tribunal has also dismissed the appeal by Ext.P10 order. Aggrieved by the cancellation of the permit and the dismissal of the appeal, the petitioner has come up before this Court. 2. Respondents 1 and 2 have filed a counter affidavit. It is stated that the Panchayat had received complaints from the residents of the Laksham Veedu Colony complaining that there is acute water shortage in the area and the digging of the huge well will aggravate the present scarcity of drinking water in the area. It is stated that since the complaint had been received from nearby W.P.(C)No.3067 of 2018 5 residents, it had to be considered with all seriousness and it was in such situation that the permit was initially suspended by invoking Rule 18 of the Kerala Panchayat Building Rules. It is further stated that the digging of well in the 8 cents of property is to transport the water to a distant place situated in another Panchayat namely Kankole - Alapadamba Panchayat. It is further stated that in the complaint received by the Panchayat, it has been stated that there is no water scarcity in the Ashram and that the proposed well is constructed only anticipating future development of the Ashram. It is also stated that the complaint refers to indiscriminate extraction of groundwater from 8 cents of land. The respondents 1 and 2 say that for the purpose of obtaining an expert opinion they had approached the 3rd respondent Groundwater Authority, who had inspected the property on 5.1.2017 and have given a report that there is a likelihood of affecting of water in the other wells in the locality. It is hence submitted that the cancellation was done on the basis of relevant factors. 3. A statement has been filed by the 4th respondent. It is stated that the State Groundwater Authority has issued new guidelines for the evaluation of proposal/request for ground water abstraction for infrastructure projects and industries to be effective from 15.4.2018 and that the petitioners' project of group housing is coming under the infrastructure projects as per the guidelines. W.P.(C)No.3067 of 2018 6 It is stated that as per clause 5(q) of the new guidelines, the abstraction structures (wells) should be located inside the premise of project of property only and since the proposed well under construction is not in the project property but in a separate 8 cents plot about 700 metes away from the project area, it cannot be allowed as per the new guidelines. The guidelines have been produced along with a memo. Thereafter an additional statement has also been filed by the 4th respondent stating that the guidelines have come into effect from 15.4.2018 and that the petitioners will have to obtain a no objection certificate from the State Groundwater Authority for extraction of groundwater. It is stated that the petitioners have not so far approached the State Groundwater Authority for permission. 4. The counsel for the petitioner submits that the contentions raised by the respondents cannot be legally justified. It is stated that the Ground Water Control and Regulation Act stipulates notifying of areas which are to come within the control of the authority. It is stated that the area where the petitioner seeks to dig the well is not in a notified area. It is further submitted that going by the guidelines, paragraph 3 lays down criteria relating to non-notified areas and since the Act does not contemplate non-notified areas, the guidelines cannot apply. It is also contended that the guidelines cannot have any statutory W.P.(C)No.3067 of 2018 7 force. It is further submitted that as per Section 10 of the Act, the prohibition is only with regard to digging wells within 30 metres of nearby wells and admittedly, there are no open wells within the said distance. 5. The counsel for the Panchayat seeks to support the action based on the report received from the Groundwater Authority and on the basis of the new guidelines issued, which does not permit the construction of a well in an area outside the project area. It is further submitted that what is to be considered is the Rules that are applicable on the date of completion of the project and hence at present the 2019 Rules will have to be followed as far as building permits are concerned. It is submitted that the period of the permit is over and either there should be an application for renewal or an application for a fresh permit. It is further stated that a development permit will also be required, since the project involves digging and removal of earth. 6. Section 2(f) of the Kerala Ground Water(Control and Regulation) Act, 2002, defines the word “pumping well” to mean a well fitted with pump driven by an electric motor or oil engine for pumping water but it does not include open wells fitted with pumps driven by engine or motor of Horse power upto 1.5 and tube wells, borewells and dug-cum borewells fitted with pumps driven by engine or motor of Horse Power upto 3. Section 2(i) of W.P.(C)No.3067 of 2018 8 the Act defines “Well” but the said definition also excludes open well and dug well used for domestic purposes. Section 6 of the Act provides for notifying areas for control and regulation of ground water development. As per the section areas are notified if it is necessary in public interest to regulate extraction of use of ground water of any area. As per Section 7 of the Act, permission has to be obtained from the Ground Water Authority, by any person desiring to dig a well or to convert the existing well into pumping well, for his own or social purpose in the notified area. Section 10 of the Act, which starts with a non obstante clause says that no person shall without the permission of the Authority dig well for any purpose within thirty meters from any drinking water source from where water is pumped for public purpose. It can thus be seen that Section 7 of the Act mandates obtaining of a permission to dig a well in a notified area and Section 10 mandates obtaining a permission to dig a well, whether or not in a notified area, if it is within 30 meters of any drinking water source. In **Suresh George** **v. Thrikkakkara Municipality [2018 (2) KLT 195]** , a Division Bench of this Court has held that Section 7 of the Act will apply only in case of notified areas. In **Hindustan Coca-cola Beverages (P) Ltd v. Perumatty Grama Panchayat [2005(2)** **KLT 554]** , a Division Bench of this Court held that a person has the right to extract water from his property, unless it is prohibited W.P.(C)No.3067 of 2018 9 by a Statute. 7. Coming to the guidelines issued by the State Groundwater Authority, the guidelines have not been issued in exercise of any statutory power available under the Act. It cannot have any statutory force. Even if there is any power available to issue guidelines, it can only be for carrying out the purposes of the Act. As already observed, the only permission contemplated under the Act, for extraction of groundwater in a non-notified area, is the one contained in Section 10. Hence, the provisions in the guidelines relating to extraction of groundwater in non-notified areas can only be for the grant of permission under Section 10, that is, for digging a well within 30 meters from a water source. 8. Applying the above factors to the facts of the case, the respondents have no contention that the area where the petitioner seeks to dig the well is notified. The Counsel for the petitioner has placed before me the copy of the Blockwise Groundwater Resources Assessment made in 2017 to show that the areas coming under the Kannur district have been categorized as safe. Since the area is notified, Section 7 of the Act will not apply. It is the specific case of the petitioner that there are no water sources within 30 meters of the site where the well is proposed to be dug. This aspect is admitted in Ext.P8 letter from the District Officer (In Charge) of the Groundwater Department to the Secretary of the W.P.(C)No.3067 of 2018 10 Panchayat, stating that no water sources from where water is pumped for public use are seen located within 30 meters from the site of the proposed well. The said letter also says that the existing two open wells forming part of Drinking water projects are situated more than 500 meters away. If that be so, Section 10 of the Act will also not apply in the case of the petitioner. If Section 10 can have no application, the guidelines issued in 2018 also will not apply in the case of the petitioner. In view of the above, the petitioner is entitled to succeed in the writ petition. 9. The only other question to be considered is the contention of the respondent Panchayat that the Kerala Panchayat Building Rules 2019 will be applicable. Reliance in placed on the decision in **Joice Joseph v. Ayarkunnam Grama Panchayat [2018(2) KLT 231]** , wherein this Court has held that the application for grant of sanction or approval of building plans should be decided in accordance with the law applicable on the day on which such permission is granted. The above decision was rendered in the case where the permission was granted for the first time and was not a case of renewal. In **Desai Homes v. Divisional Officer, Fire and Rescue Services and another [2017 (3) KLT 143]** , this Court considered the case where there was a drastic change in the Rules after the issuance of the building permit and it was held that what is applicable is the Rules which W.P.(C)No.3067 of 2018 11 were in force at the time of grant of the permit. In the case on hand, the permit was issued on 29.11.2013 and the same was suspended on 9.5.2016 and thereafter cancelled by Ext.P9 on 21.2.2017. Rule 17 of the Kerala Panchayat Building Rules, 2011, provides of renewal of building permits issued for three years, twice for further periods of three years. As such, the Building permit issued on 29.11.2013 can be renewed upto 28.11.2022. It is not hence a case where the petitioner is obliged to take a fresh building permit. 10. In the result, the writ petition is allowed. Ext.P10 order is set aside and Ext.P9 order issued by the 2 nd respondent is quashed. There will be a direction to the 2nd respondent to grant renewal of Ext.P2 building permit to the petitioner Association in terms of the Kerala Panchayat Building Rules, 2011, within three weeks from today. Sd/- **T.R. RAVI JUDGE** dsn W.P.(C)No.3067 of 2018 12 ## **APPENDIX OF WP(C) 3067/2018** ## PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE SALE DEED WITH NO. 397/2010 PERTAINING TO 8 CENTS, OF PAYANNUR SRO EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT ALONG WITH THE PLAN DATED 29-11-2013 ISSUED BY KARIVELLUR-PERALAM GRAMA PANCHAYATH - EXHIBIT P3 TRUE COPY OF THE ORDER DATED 09-05-2016 SUSPENDING THE PERMIT EXHIBIT P4 TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER DATED 11-5-2016 - EXHIBIT P5 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 1407-2016 EXHIBIT P6 TRUE COPY OF THE REPLY DATED 15-10-2016 EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN W.P(C) 15816/2016 DATED 31-08-2016 - EXHIBIT P8 TRUE COPY OF THE REPORT DATED 10-02-2017 OBTAINED FROM THE PANCHAYATH EXHIBIT P9 TRUE COPY OF THE ORDER CANCELLING THE PEERMIT EXHIBIT P10 TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS