Sobin P.K. v. District Geologist, Department of Mining and Geology, Ernakulam District, Director, Mining and Geology, Kerala; State of Kerala; Kerala State Water Authority; Kerala State Pollution Control Board, and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **FRIDAY, THE 06TH DAY OF DECEMBER 2019 / 15TH AGRAHAYANA, 1941** ## **WA.No.451 OF 2018** **JUDGMENT DATED 28.11.2017 IN WPC NO.33938/2017 ON THE FILES OF THIS HONOURABLE COURT** ## **APPELLANT/PETITIONER:** **SOBIN P.K., S/O.KURIAKOSE, AGED 45 YEARS, PUTHAYATH, AIRAPURAM.P.O, AIRAPURAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.P.M.ZIRAJ** ## **RESPONDENTS/RESPONDENTS/ADDITIONAL RESPONDENT NOS.4 & 5:** - **1 THE DISTRICT GEOLOGIST, DEPARTMENT OF MINING AND GEOLOGY, ERNAKULAM DISTRICT-682030.** - **2 THE DIRECTOR, MINING AND GEOLOGY, OFFICE OF THE MINING AND GEOLOGY, KESAVADASAPURAM, PATTAM, THIRUVANANTHAPURAM-695001.** - **3 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIAL DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **4 THE KERALA STATE WATER AUTHORITY ERNAKULAM, REPRESENTED BY ITS EXECUTIVE ENGINEER, ERNAKULAM-682030.** - **5 THE KERALA STATE POLLUTION CONTROL BOARD ERNAKULAM REPRESENTED BY ENVIRONMENTAL ENGINEER, ERNAKULAM-682030.** **R5 BY ADV. SRI. T.NAVEEN , SC,** - **KERALA STATE POLLUTION CONTROL BOARD R4 BY SRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY** W.A.NO.451 OF 2018 2 ## **OTHER PRESENT:** **R1 TO R3 BY SR.GP.SRI.TEK CHAND SRI.SAJI VARGHESE KAKKATTUMATTATHIL, REPRESENTING SC FOR R4** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.NO.451 OF 2018 3 “ **C.R** ” ## **JUDGMENT** Dated this the 6[th] day of December, 2019 ## S.Manikumar, CJ Challenge in this Writ Appeal is to the judgment in W.P.(C) No.33938 of 2017 dated 28.11.2017, by which the writ court declined to quash Exhibit-P9 communication dated 05.08.2017 issued by the District Geologist, Department of Mining and Geology, Ernakulam, respondent No.1, who declined to grant permission and licence to establish a granite quarry. 2. Short facts leading to the appeal are that, appellant intended to operate a granite building stone quarry in the property having an extent of 1.8958 hectares in Sy.Nos.306/1A/185/10/12, 46, 47, 52, 78, 79, 80, 81, 82A of Kuttamangalam village, Kothamangalam taluk, Ernakulam district, after obtaining all the required licences and permits from the concerned authorities, including environmental clearance certificate and quarrying lease. He submitted an application dated 23.06.2017 to the District Geologist, Department of Mining and Geology, Ernakulam District, respondent No.1, who issued a communication dated 05.08.2017, by which the appellant/petitioner was informed that there is a water tank belonging to Kerala Water Authority, in short KWA, located within 110 meters from the W.A.NO.451 OF 2018 4 site of appellant and, therefore, permission can be granted only on production of a No Objection Certificate from the KWA. Referring to Section 40(2) of the Kerala Irrigation and Water Conservation Act, 2003 and Rule 33 of the Kerala Minor Mineral Concession Rules, 2015, and on the facts and circumstances of the case, writ court by judgment dated 28.11.2017 dismissed W.P.(C) No.33938/2017 and sustained Exhibit-P9 communication. ## 3. Being aggrieved, instant writ appeal is filed on the grounds inter alia that,- (a) Writ court on a mistaken notion that prohibition under Section 40(2) of the Kerala Irrigation and Water Conservation Act, 2003 (hereinafter referred as Act for abbreviation) was applicable in case of water tank, dismissed the writ petition. Writ court failed to note that Section 40(2) of the Act applies only in cases of “any bridge, dam or any other work, structure or construction”. A Canal or a Water Tank does not, under any stretch of imagination, come within the ambit of a bridge, dam or check dam. (b) Contention of the appellant that the writ court ought to have considered only the Kerala Minor Mineral Concession Rules, 2015, as regards the distance to be maintained from water tanks, reservoirs, canals etc., for mining and quarrying operations and not Section 40(2) of the Kerala Irrigation and Water Conservation Act, 2003, is not acceptable. (c) Writ court ought to have considered that as per the Kerala Minor Mineral Concession Rules, 2015, only distance of 50 metres W.A.NO.451 OF 2018 5 alone is required to be maintained from water tanks, reservoirs, canals etc. Admittedly, in the case on hand, water tank is situated more than 110 meters any from the boundary of the property proposed for quarry. (d) Writ court dismissed the writ petition primarily on the ground of no objection certificate under Section 40(2) of the Kerala Irrigation and Water Conservation Act, 2003 was a pre-requisite for starting the quarrying unit in appellant’s property. (e) Section 40(2) of the Kerala Irrigation and Water Conservation Act, 2003 states that “[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 kilometer 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”. (f) Thus, NOC is contemplated only when the activity is carried out within l KM of a bridge, dam, check dam or any other work, structure or construction. So the words ‘other work, structure or construction’ must essentially take its colour from the words ‘bridge, dam or check dam’ and by the principle of ejusdem generis, the words ‘other Work, structure or construction’ must be limited to the same kind of words like a ‘bridge, dam or check dam’. Under no circumstance, can a water tank or a canal take the colour of a ‘bridge, dam or a check dam’. Therefore, it would be preposterous to include a canal or a Water tank while construing the bar under Section 40(2) of the Act. W.A.NO.451 OF 2018 6 (g) The legislature has defined “irrigation work’ in the Act. However, when it came to Section 40(2), it carefully and knowingly avoided the use of the word ‘irrigation work’ and instead used the words “bridge, dam or check dam”. This makes the intention of the Legislature clear and unambiguous. The Legislature never intended canals or water tanks to be brought within the restriction of Section 40(2). The express mention of ‘bridge, dam or a check dam’ only should be construed as an intention of the Legislature to exclude ‘irrigation works’. The maxim expressio unis est exclusio alterious clearly applies in this context. (h) The Kerala Irrigation and Water Conservation Act, 2003, in particular Section 40(2), has dealt with the entitlement of a person without the written permission of the Irrigation Officer, to condut mining or quarrying operation using explosives within a radius of 1 km. Section 40(2) of the abovesaid Act not only states above the irrigation, but also deals with quarrying activities. 4. Referring to Section 2(w) of the Kerala Irrigation and Water Conservation Act, 2003, which includes 'irrigation work', Mr. P.M.Ziraj, learned counsel for appellant, submitted that said Act has been enacted for the laws relating to construction of irrigation works, conservation and distribution of water for the purpose of irrigation and levy of betterment contribution and water-cess on lands benefited by irrigation works in the State of Kerala and to provide for involvement of farmers in water utilisation system and for matters connected there with or incidental thereto and W.A.NO.451 OF 2018 7 therefore, no application in matter of considering a quarrying permit under the Kerala Minor Mineral Concession Rules, 2015, exists. 5. He further submitted as per Rule 10(f) of the Kerala Minor Mineral Concession Rules, 2015, the restriction imposed to operate a quarry unit is only 50 metres from water tanks, reservoirs, cannals etc., and in the case on hand, the distance between tank and the site of appellant/petitioner is 110 metres and, therefore, the District Geologist, Department of Mining and Geology, Ernakulam District, respondent No.1, ought to have granted permission. 6. Heard learned counsel for appellant and perused the material available on record. 7. Before adverting to the facts and grounds of challenge, a cursory look at the preamble of the Kerala Irrigation and Water Conservation Act, 2003, and the provisions relevant for the purpose of this case is required. 8. Preamble of the Kerala Irrigation and Water Conservation Act, 2003, reads thus:- "Whereas it is expedient to consolidate and amend the laws relating to construction of irrigation works, conservation and distribution of water for the purpose of irrigation and levy of betterment contribution and water cess on lands benefited by irrigation works in the State of Kerala and to provide for involvement of farmers in water utilisation system and for matters W.A.NO.451 OF 2018 8 connected there with or incidental thereto" 9. Section 2(w) of the Kerala Irrigation and Water Conservation Act, 2003, is extracted hereunder: - " **2. Definitions** .- In this Act, unless the context otherwise requires,- (w) "irrigation work" includes,- - (i) all canals, field channels, reservoirs and tanks, tube wells and filter point wells which are intended or which may be used for the supply, collection, storage or retention of water for agricultural purposes; - (ii) all works, embankments, structures, supply and escape channels connected with such canals, channels, reservoirs or tanks and spouts installed to supply water; - (iii) all water courses which are supplied with water from such canals, channels, reservoirs, tanks or spouts; - (iv) all drainage works, that is to say, canals, channels, escape channels from a canal or channel, reservoirs or tanks, dams, weirs, embankments, sluices, groynes, field channels, and other works for the protection or benefit of agricultural lands or for the reclamation or dewatering of kole lands, kayal lands, kari lands or such other lands; - (v) all works intended for preventing or regulating the entry of salt water into agricultural lands; - (vi) all lands and works in all lands occupied by the Government or a local authority for the purpose of such canals, channels, reservoirs or tanks and all buildings, machinery, fences, gates and other erections on such lands; and - (vii) any other work which the Government may, by notification, declare to be an irrigation work. **Explanation.** - For the purposes of this clause, "irrigation work" does not include embankments other than for irrigation purposes and tanks not constructed by the Government, a local W.A.NO.451 OF 2018 9 authority or any other authority." 10. Section 40 of the Kerala Irrigation and Water Conservation Act, 2003, is with a heading,- Mining or quarrying near certain works etc. Subsection (1) of Section 40 states that,- the Collector shall, in consultation with the Irrigation Officer, by notification, specify the boundaries of an irrigation work. 11. Rule 10(f) of the Kerala Minor Mineral Concession Rules, 2015, states thus: **“10. Conditions on which quarrying permit shall be granted** .—Every quarrying permit, except for ordinary earth, under rule 9 shall be granted subject to the following conditions, namely:— (a) xx xxxx xx (b) xx xxxx xx xx xxxx (f) the permit holder, in cases where explosives are not used for quarrying, shall not carry on or allowed to be carried on any quarrying operations at or to any points within a distance of 75 metres from any railway line except with the previous written permission of the Railway Administration concerned and any bridge on National Highway or 50 metres from any reservoir, tanks, canals, rivers, bridges, other public works, residential buildings, the boundary walls of places of worship, burial grounds, burning ghats or forest lands or village roads except with the previous permission of the authorities concerned or the W.A.NO.451 OF 2018 10 ## Government or the competent authority. Provided that the Railway Administration or the State Government or any other authority in this behalf may in granting such permission impose other such conditions as may be found proper and necessary: Provided further that in cases where explosives are used for quarrying, the permit holder shall not carry on or allowed to be carried on any quarrying operations at or to any points within a distance of 100 metres from any railway line, any bridge, reservoir, tanks, residential buildings, monuments protected by Government, canals, rivers, public roads having vehicular traffic, other public works or the boundary walls of places of worship or 50 metres from any burial grounds or burning ghats or village roads or forest lands." ## 12. Rule 33 of the Kerala Minor Mineral Concession Rules, 2015 states thus: 33. Disposal of application for the grant or renewal of quarrying lease.— (1) On receipt of the application for grant or renewal of quarrying lease for undertaking quarrying operations, the competent authority shall make site inspection and take decision regarding the precise area to be granted for the said purpose and intimate the applicant to submit approved mining plan and Environmental Clearance for the precise area. (2) On receipt of an approved mining plan and Environmental Clearance for the precise area and on production of all other statutory licenses/clearances/No Objection Certificate etc. from other statutory authorities concerned, the competent W.A.NO.451 OF 2018 11 authority shall grant a quarrying lease within thirty days. (3) No application shall be refused without affording the applicant an opportunity of being heard. (4) Where the competent authority passes an order refusing to grant or renew a quarrying lease, the reason thereof shall be communicated through a speaking order within fifteen days of the date of the order.” 13. Proceedings of the District Geologist, Department of Mining and Geology, Ernakulam District, respondent No.1, addressed to the appellant stating that further proceedings on the application will be taken only after the presentation of No Objection Certificate [Exhibit-P9(a)] is extracted hereunder: "No.D.O.E./2044/E2/16 Dated 05.08.2017 From Geologist, To Sri.P.K.Sobin, Putheyath Veedu, Kuzhoor, Irap;uram P.O., Emakulam. Sir, Sub: Mines and Minerals — minor mineral — quarrying lease - granite quarrying — application - further proceedings — taking action related Ref: 1. Kerala Minor Mineral Concession Rules 2015 2. The application you have submitted in this office on 20.6.2016 3. The site inspection conducted by this office on 04.08.2017 The above references may be noticed W.A.NO.451 OF 2018 12 The reference (3) site inspection was conducted in the property, according to reference (2) application submitted by you for the granite quarrying lease in the presence of village assistant and you in Sy.No.306/1A/185/10/12, 46, 47, 52, 78, 79, 80, 81, 82 of the Kuttamangalam Village, Kothamangalam Taluk having an extent of 1.8958 hectors. The village assistant informed that there is a tank of water authority situated within 110 meters radius and upon which water authority has complaint also. The NOC should be presented in this circumstances. The further proceedings on the application will be taken after the presentation (of NOC). Yours faithfully Sd/Geologist." 14. Annexure-A2(a) is a letter dated 16.09.2017 of the Executive Engineer, Kerala Water Authority, Office of the Executive Engineer, P.H.Division, Muvattupuzha, addressed to the appellant, and the same is reproduced: “KERALA WATER AUTHORITY Office of the Executive Engineer P.H.Division, Muvattupuzha. ----------------------------------------------------------------------------------------------------No.DB/1498/GL/17-18 DATED: 16/09/2017 From Executive Engineer To Mr.P.K.Sobin Puthayath House, Kuzhoor, W.A.NO.451 OF 2018 13 Airapuram P.O. Ernakulam Ph:9847328909. Sir, ## Sub: Extraction of granite building stone near to the Kottaramudi Tank of Kerala Water Authority — reg. ## Ref: Your application dated 2.9.2017 On the basis of your application 2.9.2017 requesting to grant no objection certificate to extract granite building stone in Kuttamangalam Village, Kothamangalam Taluk an inspection has been conducted. On inspection of premises it is understood that if quarry and crusher unit function in the said property damages would cause to the water tank having capacity of 2.50 lakhs litre situated in Kottaramudi, Kuttamangalam village which was construction on the basis of Neriyamangalam drinking water project. There is also possibility to cause damages to the pipelines also. If so happen the entire water supply would be affected at Kavalangadu, Pallarimangalam Panchayath. So it is impossible to grant permission to operate granite building stone quarry. Yours faithfully Sd/ - Executive Engineer. ## Copy to ' ## Assistant Executive Engineer, Kothamangalam" 15. Reading of the above two letters, shows that the District Geologist, Department of Mining and Geology, Ernakulam District, respondent No.1, while considering the application submitted by the appellant for a granite quarry licence, has informed him that there is a water tank of the Kerala Water Authority, situated within 110 meters radius, W.A.NO.451 OF 2018 14 and only on production of a No Objection Certificate, further proceedings on the application would be taken. Material on record further discloses that the appellant submitted an application dated 16.09.2019 [Annexure-2(a)] to the Kerala Water Authority requesting to grant No Objection Certificate. An inspection has been conducted and it was found that if quarry and crusher unit is permitted to function in the property of the appellant, it would affect the entire water supply in the Kavalangadu, Pallarimangalam Pachayat and apart from that, there is a possibility to cause damages to the pipelines also. 16. Admittedly, the water tank is having a capacity of 2.50 lakhs litres and the same is said to be constructed on the basis of Neriyamangalam drinking water project. Though, referring to the preamble of the Kerala Irrigation and Water Conservation Act, learned counsel for the appellant made submissions that the provision cannot be applicable to grant permits, we are not in agreement with the said contention for the reason that Section 40(2) of the said Act starts with non obstante clause and it reads thus: ## **"40. Mining or quarrying near certain works etc** .- xx xxx xxxxx (2) Notwithstanding anything contained in any other law for the time being in force, no person shall, without the written permission W.A.NO.451 OF 2018 15 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." 17. At this juncture, it is also relevant to consider few decisions as to how Notwithstanding Clause/Non obstante Clause has to be given effect to. ## "(i) In **State of West Bengal v. Union of India** reported in [1964] 1 SCR 371, it is observed as under: "The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs." (ii) In **Union of India v. I.C.Lala** reported in AIR 1973 SC 2204, the Hon'ble Supreme Court held that non obstante clause does not mean that the whole of the said provision of law has to be made applicable or the whole of the other law has to be made inapplicable. It is the duty of the Court to avoid the conflict and construe the provisions to that they are harmonious. (iii) In **Union of India v. G.M.Kokil** reported in AIR 1984 SC 1022, the Hon'ble Supreme Court, at Paragraph 10, held thus: "It is well-known that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provision over some contrary provision that may be found either in the same W.A.NO.451 OF 2018 16 enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions." (iv) In **Chandavarkar Sita Ratna Rao v. Ashalata S.Guram** reported in 1986 (4) SCC 447, at Paragraph 67, the Hon'ble Supreme Court held as follows: "67. A clause beginning with the expression "notwithstanding any thing contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in The **South India Corporation (P) Ltd., v. The Secretary, Board of Revenue, Trivandrum & Anr.,** AIR 1964 SC 207 at 215-[1964] 4 SCR 280." (v) In **Vishin N.Kanchandani v. Vidya Lachmandas Khanchandan** i reported in AIR 2000 SC 2747, at Paragraph 11, the Hon'ble Supreme Court held that, W.A.NO.451 OF 2018 17 "There is no doubt that by non-obstante clause the Legislature devices means which are usually applied to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other statute. In other words such a clause is used to avoid the operation and effect of all contrary provisions. The phrase is equivalent to showing that the Act shall be no impediment to measure intended. To attract the applicability of the phrase, the whole of the section, the scheme of the Act and the objects and reasons for which such an enactment is made has to be kept in mind." (vi) In **ICICI Bank Ltd., v. SIDCO Leathers Ltd** ., reported in 2006 (10) SCC 452, the Hon'ble Supreme Court, at Paragraphs 34, 38, 46 and 49, held as follows: "34. Section 529-A of the Companies Act no doubt contains a non-obstante clause but in construing the provisions thereof, it is necessary to determine the purport and object for which the same was enacted. ...... 36. The non-obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy....... 37. A non-obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same. 38.Section 529-A of the Companies Act does not ex facie contain a provision (on the aspect of priority) amongst W.A.NO.451 OF 2018 18 the secured creditors and, hence, it would not be proper to read thereinto things, which the Parliament did not comprehend." (vii) The Hon'ble Supreme Court in **Central Bank of India v. State of Kerla** reported in 2009 (4) SCC 94, at Paragraphs 103 to 107, the Hon'ble Supreme Court considered as follows: - " 103. A non obstante clause is generally incorporated in - a statute to give overriding effect to a particular section or the statute as a whole. While interpreting non obstante clause, the Court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. This rule of interpretation has been applied in several decisions. ## (viii) In **State Bank of West Bengal v. Union of India** [(1964) 1 SCR 371], it was observed that: 68. ......the Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs." ## (ix) In **Madhav Rao Jivaji Rao Scindia v. Union of India and** **another** [(1971) 1 SCC 85], Hidayatullah, C.J. observed that,- - "The non obstante clause is no doubt a very - potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but "for that reason alone we must determine the W.A.NO.451 OF 2018 19 scope" of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. A search has, therefore, to be made with a view to determining which provision answers the description and which does not." (x) In **R.S.Raghunath v. State of Karnataka and another** [(1992) 1 SCC 335], a three-Judge Bench referred to the earlier judgments in **Aswini Kumar Ghose v. Arabinda Bose** [AIR 1952 SC 369], **Dominion of India v. Shrinbai A. Irani** [AIR 1954 SC 596], **Union of India v. G.M.Kokil** [1984 (Supp.) SCC 196], **Chandravarkar Sita Ratna Rao v. Ashalata S.Guram** [(1986) 4 SCC 447] and observed: ".........The non-obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non-obstante clause need not necessarily and always be co-extensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non-obstante clause cannot cut down the construction and restrict the scope of its operation. In such cases the non-obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the W.A.NO.451 OF 2018 20 enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules." (xi) In **A.G.Varadarajulu v. State of Tamil Nadu** [(1998) 4 SCC 231], the Hon'ble Apex Court relied on Aswini Kumar Ghose's case. The Court while interpreting non obstante clause contained in Section 21-A of Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 held :- "It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369], Patanjali Sastri, J. observed: "The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously;" 18. Reading of 40(2) of the Kerala Irrigation and Water Conservation Act, 2003, makes it clear that 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, W.A.NO.451 OF 2018 21 without any prior written permission, is not permissible. In case on hand, water tank is maintained by Kerala Water Authority and the same would certainly fall under the expression in Section 40(2) of the Act to include Kerala Water Authority also. For the reasons stated supra, we find no error warranting interference with the judgement passed in W.P.(C) No.33938 of 2017 dated 28.11.2017 by the writ court. Writ appeal is accordingly, dismissed. ## **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** **Sd/A.M.SHAFFIQUE JUDGE** Krj //TRUE COPY// P.A. TO JUDGE W.A.NO.451 OF 2018 22 ## **APPENDIX** ## ' - APPELLANT S ANNEXURES: ANNEX.-1: TRUE COPY OF THE COMMUNICATION DATED 24.8.2017 ISSUED BY THE ASSISTANT EXECUTIVE ENTINEER, KERALA WATER AUTHORITY, P.H. DIVISION, KOTHAMANGALAM, ALONG WITH THE ENGLISH TRANSLATION. ANNEX.-2:- TRUE COPY OF THE COMMUNICATIONS 16.9.2017 ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P.H.DIVISION, MUVATTUPUZHA ALONG WITH THE ENGLISH TRANSLATION. RESPONDENTS' ANNEXURES:-'NIL'