IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 WP(C).No. 25535 of 2009(J) -------------------------------------- PETITIONER: ------------------- KRISHNA PILLAI, S/O. VASUDEVAN PILLAI, AGED 60 YEARS, RESIDING AT VYRATHOOR HOUSE, NP-XI.388A-KANNANKODE, VENJARAMOOD P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.G.P.SHINOD, SRI.RAM MOHAN.G. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF KERALA, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, GROUND WATER DEPARTMENT, JALAVIJNANA BHAVAN, KOWDIAR P.O., AMBALAMUKKU, THIRUVANANTHAPURAM. 3. THE DISTRICT OFFICE, GROUND WATER DEPARTMENT, JALAVIJNANA BHAVAN, AMBALAMUKKU, KAWDIAR P.O., THIRUVANANTHAPURAM. 4. THE SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM RURAL, OFFICE OF THE SUPERINTENDENT OF POLICE, KURAVANKONAM, THIRUVANANTHAPURAM. 5. THE CIRCLE INSPECTOR OF POLICE, VENJARAMOOD POLICE CIRCLE, VENJARAMOODU, THIRUVANANTHAPURAM. 6. THE SUB-INSPECTOR OF POLICE, VENJARAMOOD POLICE STATION, VENJARAMOODU, THIRUVANANTHAPURAM. 7. SHAFI, S/O. HASSAN BAVA, KANNANKODE HOUSE, VENJARAMOODU, NELLANAD VILLAGE, THIRUVANANTHAPURAM. 8. SALIM, S/O. HASSAN BAVA, KANNANKODE HOUSE, VENJARAMOODU, NELLANAD VILLAGE, THIRUVANANTHAPURAM. R1 TO R6 BY GOVT. PLEADER SMT. CHARISHMA, R7 & R8 BY ADVS. SRI.THOMAS ABRAHAM, SRI.DIPU.R, SMT.MERCIAMMA MATHEW, SRI.K.S.HARIDAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.25535/2009-J: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CERTIFICATE NO. GW/DOT/1224/09 DTD.18/08/2009 ISSUED BY THE R.2. EXT.P.2: COPY OF THE COMPLAINT DTD. 18/08/2009 SUBMITTED BY THE PETITIONER BEFORE THE SUB COLLECTOR, THIRUVANANTHAPURAM. EXT.P.3: COPY OF THE PETITION DTD. 21/08/2009 SUBMITTED BY THE PETITIONER TO THE R.6. EXT.P.4: COPY OF THE BUILDING PERMIT NO.A7-24/27/2010-11 DTD. 25/05/2010 ISSUED BY THE SECRETARY OF THE NELLANADU GRAMA PANCHAYATH. RESPONDENTS' EXHIBITS: EXT.R7.A: COPY OF THE RESOLUTION DTD. 14/09/2009 PASSED BY THE GRAMA PANCHAYATH. EXT.R7.B: COPY OF THE MASS PETITION DTD. 28/08/2009 SUBMITTED BEFORE THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. //TRUE COPY// P.S. TO JUDGE. Prv. R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- W.P.(C) No. 25535 of 2009-J ------------------------------------------------- Dated this the 4th day of January, 2011 JUDGMENT Basant,J. The petitioner has come to this Court with this petition to issue directions to the police to ensure that the work of establishing a bore well in his 2 ½ cents of residential plot is not obstructed by respondents 7 and 8. 2. According to the petitioner, he is the owner of a 2 ½ cents residential plot. A residential building has been put up in that property. There is no well in that property. There is no water connection available in that area. In these circumstances, the petitioner wants to dig a bore well in his property to enable him to obtain water. According to the petitioner, the land does not fall within the sweep of the Kerala Ground Water (Control and Regulation) Act, 2002 as there has been no notification W.P.(C) No. 25535 of 2009 -: 2 :- under Sec.6 of the said Act. According to the petitioner, he is therefore entitled to dig a bore well in his property. The officials have not raised any objection. But respondents 7 and 8 are raising objections to such digging of the bore well. According to the petitioner, respondents 7 and 8 are not prompted by bona fides. There are other bore wells dug in the locality. They had not raised any objection. The petitioner's request to the police officials to enable him to dig the bore well have fallen on deaf ears and had not evoked any action. It is, in these circumstances, that the petitioner has come to this Court. 3. Respondents 1 to 6, all officials of the State, have not raised any objection against the proposal to dig a bore well within the property of the petitioner. 4. Respondents 7 and 8 have entered appearance through counsel. They raised objection against the proposed digging of the bore well in the property of the petitioner. 5. According to them, the ground water level in the locality is going down due to over exploitation of the water source. If the petitioner were also permitted to dig a bore well, that would affect the water table and would consequently affect W.P.(C) No. 25535 of 2009 -: 3 :- the availability of water for the others in the locality. They further raised an objection that the requisite permission from the local authority under the Kerala Municipalities Building Rules has not been obtained by the petitioner. 6. We have heard the learned counsel for the petitioner, the learned Government Pleader and the learned counsel for respondents 7 and 8. It is not disputed that the area where the petitioner's residential plot is situated has not been notified under Sec.6 of the Kerala Ground Water (Control and Regulation) Act. Ext.P1 certificate confirms the same. The learned counsel for respondents 7 and 8, in the course of arguments, does not dispute the fact that the area in question has not been notified. The objections on the ground of the Kerala Ground Water (Control and Regulation) Act cannot therefore succeed. 7. Respondents 7 and 8 have raised a contention that the requisite permit under the Kerala Municipalities Building Rules has not been obtained. Subsequently Ext.P4 permit has been issued to the petitioner to dig a bore well on 29/5/10. The said permit has been granted subject to conditions. There is no W.P.(C) No. 25535 of 2009 -: 4 :- contention that any of the conditions imposed is not being observed/followed. 8. The learned counsel for respondents 7 and 8 points out that as per Ext.R7(a) dated 14/9/09 the Nellanadu Grama Panchayat has taken a decision that permits for bore wells need not be granted as the water table in the locality is going down drastically. He also relies on Ext.R7(b) dated 28/8/09, a representation of the local inhabitants requesting the District Collector to discourage digging of bore wells in the locality. 9. We do note that Ext.P4 is subsequent to Exts.R7(a) and R7(b). No contention is raised against the validity of Ext.P4. 10. We are, in these circumstances, satisfied that there can be no valid objection against the petitioner digging a bore well in due compliance with the conditions of Ext.P4 permit. Respondents 7 and 8 have no legal right to raise such an objection. To us, it appears that it would be unjust and inequitable to deny the petitioner of the source of water for his needs by drawing the same by digging a bore well in his property in due compliance with all the legal provisions. 10. This writ petition is, in these circumstances, allowed. W.P.(C) No. 25535 of 2009 -: 5 :- Respondents 1, 4, 5 and 6 shall afford necessary protection for the petitioner to dig a bore well in strict compliance with the terms in Ext.P4 permit. Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan/ //true copy// P.S. to Judge