IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 WP(C).No. 2335 of 2010(N) ------------------------- PETITIONER(S): --------------- JOHN JACOB, AGED 45 YEARS, S/O.LATE P.P.JACOB, PROPRIETOR, M/S.PEPTURN INDIA, RESIDING AT MATTAKKEL PERUMAL BHAVAN, COLLECTORATE P.O., KOTTAYAM. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SRI.B.BIPIN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. PRINCIPAL SECRETARY TO THE GOVERNMENT, DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHAIRMAN (PRINCIPAL SECRETARY (INDUSTRIES), CHANGANASSERY INDUSTRIAL ESTATE SINGLE WINDOW CLEARANCE BOARD, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. DIRECTOR OF INDUSTRIES AND COMMERCE, VIKAS BHAVAN, THIRUVANANTHAPURAM. 5. THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 6. THE SECRETARY, VAZHAPPALLY GRAMA PANCHAYATH, KOTTAYAM DISTRICT, PIN - 686 104. ADV. SRI.SIBY MATHEW FOR R6 SRI.PHILIP J.VETTICKATTU FOR R6 SRI.B.PREMNATH (E) FOR R6 GP SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2335 of 2010 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF ENTREPRENEUR MEMORANDUM ISSUED BY THE DISTRICT INDUSTRIES CENTRE, KOTTAYAM DATED 18.7.07 EXT.P2- TRUE COPY OF THE SALE DEED DATED 16.1.08 OF CHANGANASSERY SRO EXT.P3- TRUE COPY OF THE NOTIFICATION SRO.NO.929/01 DATED 8.10.01, ISSUED BY THE GOVERNMENT OF KERALA, INDUSTRIES (F) DEPARTMENT EXT.P4- TRUE COPY OF THE BANK STATEMENT ISSUED BY THE BANK OF BARODA TO THE PETITIONER EXT.P5- TRUE COPY OF THE NOTICE ISSUED BY THE SECRETARY, VAZHAPALLY GRAMA PANCHAYAT DATED 8.7.08 EXT.P6- TRUE COPY OF THE NOTIFICATION ORDER ISSUED BY THE GOVERNMENT DATED 21.8.08 EXT.P7- TRUE COPY OF THE JUDGMENT IN WP(C).20859/08 EXT.P8- TRUE COPY OF THE RECEIPT ISSUED BY THE 4TH RESPONDENT DATED 9.7.08 EXT.P9(a)- TRUE COPY OF THE LETTER SENT TO THE ASSISTANT EXECUTIVE ENGINEER, KSEB, CHANGANASSERY EXT.P9(b)- TRUE COPY OF THE LETTER SENT TO THE ASSISTANT EXECUTIVE ENGINEER, KSEB, CHANGANASSERY EXT.P9(c)- TRUE COPY OF THE LETTER SENT TO THE ASSISTANT EXECUTIVE ENGINEER, KSEB, CHANGANASSERY EXT.P9(d)- TRUE COPY OF THE LETTER SENT TO THE ASSISTANT EXECUTIVE ENGINEER, KSEB, CHANGANASSERY EXT.P10- TRUE COPY OF THE LETTER SENT BY THE DIRECTOR OF INDUSTRIES AND COMMERCE TO THE PRINCIPAL SECRETARY TO THE GOVERNMENT (INDUSTRIES DEPARTMENT TO CANCEL THE SRO.929/01 EXT.P11- TRUE COPY OF THE LETTER TO CONVENE THE MEETING EXT.P12- TRUE COPY OF THE MINUTES OF THE MEETING EXT.P13- TRUE COPY OF THE ACKNOWLEDGMENT FOR REGISTRATION WITH GROUND WATER DEPARTMENT, KOTTAYAM DATED 25.3.08 VIDE SERIAL NO.2580 EXT.P14- TRUE COPY OF THE CHALLAN ISSUED BY THE DISTRICT OFFICER, GROUND WATER DEPARTMENT KOTTAYAM AS ON 20.5.09 EXT.P15- TRUE COPY OF THE REPORT SIGNED BY THE DISTRICT OFFICER, GROUND WATER DEPARTMENT EXT.P16- TRUE COPY OF THE EXTRACT APPEAL MEMORANDUM DATED 20.8.09 EXT.P17- TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 9.11.09 WP(C).No. 2335 of 2010 -2- EXT.P18- TRUE COPY OF THE “BHARAT NIRMAN PROGRAMME” FOR EXT.P19- TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICE, CHETHIPPUZHA DATED 2.2.08 EXT.R6(a)- TRUE COPY OF RESOLUTION NO.2(1) DATED 1.1.08 OF THIS RESPONDENT DECIDING TO PROCEED WITH THE PROJECT EXT.R6(b)- TRUE COPY OF PROCEEDING NO.G.I.447/08/DATED 17.1.08 OF THE DY.DIRECTOR OF PANCHAYATS EXT.R6(c)- TRUE COPY OF COVERING LETTER FORWARDING THE DECISION OF THIS RESPONDENT TO THE GOVERNMENT DATED 18.1.08 EXT.R6(d)- TRUE COPY OF FEASIBILITY CERTIFICATE ISSUED BY THE ASST.EXECUTIVE ENGINEER, PH DIVISION, KERALA WATER AUTHORITY TO THIS RESPONDENT EXT.R6(e)- TRUE COPY OF REPRESENTATION DATED 27.2.08 FILED BY THIS RESPONDENT BEFORE THE DISTRICT COLLECTOR EXT.R6(f)- TRUE COPY OF CHALLAN DATED 10.3.2008 SHOWING THE REMITTANCE OF RS.7,70,000/- (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J ....................... W.P.(C).2335/2010 ....................... Dated this the 17th day of March, 2010 JUDGMENT In respect of a Private Industrial Estate, having an area of 12.69 acres, the Government of Kerala issued Ext.P3 notification exercising its powers under Section 5 of the Kerala Industrial Single Windows Clearance Boards and Industrial Township Area Development Act, 1999 (in short 'the Act') constituting a single window clearance board. In the Private Industrial Estate, petitioner purchased 3.64 Ares of land by Ext.P2 sale deed. It is stated that in order to establish a Micro small Medium enterprise for the manufacture of edible water preparatory products, petitioner proceeded with the works. It is also stated that availing a loan from commercial Banks, construction was also started. 2. It is stated that immediately thereafter, Ext.P5 stop memo was issued by the 6th respondent on the basis that the work was started by the petitioner without obtaining permit from the Panchayat. Ext.P5 was challenged before this Court by filing W.P. (C).20859/2008. That writ petition was disposed of by Ext.P7 W.P.(C).2335/10 2 judgment, quashing Ext.P5, on the ground that in view of the provisions of the Act referred to above, the permit from the Panchayat was not necessary. According to the petitioner, thereafter he made an application to the 3rd respondent for obtaining necessary clearances and the 3rd respondent issued Ext.P11 notice convening a meeting. Accordingly, petitioner appeared before the 3rd respondent and after hearing all concerned, the 3rd respondent issued Ext.P12 proceedings, declining the application made by the petitioner on the ground that the water source identified by the petitioner was proposed to be acquired by the 6th respondent Panchayat for establishing a Water Supply Scheme covering the Panchayat area. Against Ext.P12 petitioner filed Ext.P16 appeal to the 1st respondent and the 1st respondent by Ext.P17 rejected the appeal. It is in these circumstances, the writ petition is filed challenging Exts.P12 and P16 and for directing the respondents to issue clearance certificate/licence under the provisions of the Act to the petitioners Industrial Unit M/s Pepturn India. 3. The only question that arises for consideration is whether 3rd respondent was justified in declining the clearance certificate by W.P.(C).2335/10 3 Ext.P12 and whether the 1st respondent, rejecting the appeal by Ext.P17. According to the learned counsel for the petitioner, his land is not covered by the land acquisition proposal of the Panchayat and therefore, the stand taken in Exts.P12 and P17 are illegal. However, as rightly pointed out by the learned counsel appearing for the 6th respondent, it is the admitted factual position that the water source identified by the petitioner for his Industrial Unit is the 78.97 Ares of land identified by the Panchayat for acquisition and it is from that source, the petitioner also intends to draw water for his proposed Industrial Unit. It is taking into this fact that the 3rd respondent took the view in Ext.P12 that when considering the claims of private entrepreneur and of a Panchayat, it is in public interest to prefer the project of the Panchayat. Therefore the fact that the petitioner's land, where he intends to set up the Unit, is outside the area identified by the Panchayat for acquisition, that will not have any impact on the view taken by the 3rd respondent in Ext.P12. 4. Learned counsel contended that irrespective of the above, petitioner is entitled to draw water from the pond in question. According to the petitioner, Ext.P13 application made by the W.P.(C).2335/10 4 petitioner under the provisions of the Kerala Ground Water (Control & Regulation) Act, 2002, having been received by the District Officer and as the District Officer has not passed any orders within the time specified, petitioner is entitled to have deemed permit to draw water. Deemed permit is contemplated under Sections 7(6) and 10(3) of the Kerala Ground Water (Control & Regulation) Act. Section 7 deals with permit for digging well or converting an existing well into a pumping well. Section 10 deals with digging of well within 30 metres from any drinking water source from where water is pumped for public purposes. Therefore, considering the scope of Sections 7 and 10 referred to above, even if an application is made under the said provisions and there is no response from the Officer concerned, it may be possible for the applicant to contend that for digging well, or to convert a well or drawing water from the area mentioned in Ext.P10, he has a deemed permit. However in this case, the claim of the petitioner is not for digging well, converting well or for drawing water as per Section 10, but for drawing water from a pond which is not covered by either of these provisions. Therefore, the fact that there was no response to Ext.P13 does not result in any deemed permit in favour of the petitioner enabling W.P.(C).2335/10 5 him to draw water from the pond in question. Therefore, claim of the petitioner is in no manner improved by Ext.P13. 5. Learned counsel for the petitioner relied on the judgment in Hindusthan Cocacola Beverages Pvt.Ltd v. Perumatti Grama Panchayat (2005 (2) KLT 554) and referred me to paragraph 43 where this Court has held that “ordinarily a person has right to draw water in reasonable limits without waiting for permission from the Panchayat and the Government.” However, said observation in the judgment cannot and will not result in a situation where a person can draw water from a water source identified by the Panchayat in respect of which he has no title or claim. The other judgments relied on by the learned counsel for the petitioner viz., Pepsico India Holdings Pvt. Ltd. v. State of Kerala (2007 (2) KLT 835) and Parayil Granular Industries v. Kumaranalloor Grama Panchayat (2009 (2) KLT 1012), only deal with the authority of the Panchayat in an industrial area notified under the Act and that when a person has obtained clearance under the Act, Panchayat has to issue licence. Considering the nature of the controversy arising in this writ petition, the principles laid down in these judgments have no W.P.(C).2335/10 6 relevance. Therefore these judgments do not improve the case of the petitioner 6. Having appreciated the view taken by the 3rd respondent in Ext.P12 and the 1st respondent in Ext.P17, I am inclined to think that the view expressed therein is certainly a reasonable one and do not call for any interference in a proceedings under Article 226 of the Constitution of India. The writ petition fails and it is accordingly dismissed. ANTONY DOMINIC, Judge mrcs