Allowed

S.Rajendran v. District Collector

Kerala HC17 Oct 2019WP(C)/8648/2019

Case brief

AI extract

What is this about?

This writ petition challenges an order by the District Officer, Ground Water Department initiating action against both the petitioner and a neighbor for unauthorized tube well conversion. The court held that since an administrative appeal lies under Section 24 of the Act and the neighbor has already preferred such an appeal, the petitioner is permitted to file a similar appeal within thirty days i

What did the court decide?

Permitted the petitioner to prefer an appeal under Section 24 of the Kerala Groundwater (Control and Regulation) Act 2002 challenging the impugned order within thirty days from the date of receipt of

S.Rajendran Vs District Collector — Constitutional and Fundamental Rights | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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THURSDAY, THE 17TH DAY OF OCTOBER 2019 / 25TH ASWINA, 1941

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WP(C).No.8648 OF 2019(E)

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PETITIONER:

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S.RAJENDRAN,AGED 58 YEARS,S/O SIVASANKARAN, PROPRIETOR, SUN TARA BEACH RESORT, AAZHIMALA TEMPLE ROAD, PULINKUDI, CHOWARA P.O., KERALA-695 521.

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BY ADVS. SRI.P.GOPINATH (SR.) SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SMT.PARVATHY KOTTOL SRI.M.GOPIKRISHNAN NAMBIAR

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RESPONDENTS:

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1 DISTRICT COLLECTOR,GROUND WATER DEPARTMENT,JALA VIGYANBHAVAN, AMBALAMUKKU, TRIVANDRUM-695 003.

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2 KOTTUKAL GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KOTTUKAL P.O., TRIVANDRUM-695 501.

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3 THE KERALA STATE ELECTRICITY BOARD LIMITED VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM- 695 004 REPRESENTED BY ITS ASST. ENGINEER, KANJIRAKKULAM.

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4 BEENA SARASAN, AGED 67 YEARS, W/O. SRI. SARASAN, RESIDING AT C-1 TENNIS CLUB ENCLAVE, KAWDIAR, THIRUVANANTHAPURAM [SOUGHT TO BE IMPLEADED]

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5 THE GOVERNMENT OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GROUND WATER DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM

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[THE 5TH RESPONDENT IS SOU MOTU IMPLEADED AS PER ORDER DATED 17.10.2019]

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R1 BY GOVERNMENT PLEADER

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R2 BY SRI.B. S. SWATHI KUMAR,SC,KOTTUKAL GRAMA PANCHAYAT R2 BY ADV. SMT.ANITHA RAVINDRAN BY BEENA SARASAN(PARTY IN PERSON)

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC No. 8648 of 2019 2

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J U D G M E N T

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The petitioner and fourth respondent hold adjacent properties. There is a tube well in the property of the petitioner. The fourth respondent earlier filed W.P.(C) No.11529 of 2018 before this Court seeking, among others, directions to the Local Grama Panchayat as also to the District Officer of the Ground Water Department of the State Government to take necessary steps to close down the tube well of the petitioner on the ground that the same is unauthorised. When the said writ petition came up for admission, this Court passed the following interim order:

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“I am informed by the learned standing counsel for the second respondent that already a stop memo is issued by the Panchayat directing the first respondent to stop operation of the tube well. Learned counsel appearing for the 1^st respondent submitted that the petitioner will file objection to the stop memo issued. The said aspects put forth by the respective counsel are recorded. There will be a direction to the 1^st respondent to abide by the stop memo issued by the 2^nd respondent. I also make it clear that the joint inspection proposed by the 2^nd respondent Panchayat on 11.4.2018 can go on. The Panchayat is also at liberty to receive objection from the 1^st respondent and proceed in accordance with law. The pendency of the writ petition will not stand in the way of the Panchayat in taking appropriate decision in accordance with law. The second respondent Panchayat is directed to file a report with respect of the developments that take place pursuant to the interim order”

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The petitioner filed an appeal as W.A. No.878 of 2018 challenging the said interim order and the same was disposed of by this Court with the

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WPC No. 8648 of 2019 3

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following directions:

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i) The District Officer, Ground Water Department, Thiruvananthapuram shall enquire into Ext.P3 complaint dated 06.02.2017 submitted by the petitioner and pass appropriate orders therein expeditiously and in any event, within one month from today after inspecting the premises where the appellant has dug the tube well and with notice to the appellant as well as the first respondent.

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ii) The District Officer shall also give notice to the Secretary of the Local Authority as also to the competent officer of the Kerala Coastal Zone Management Authority.

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iii) The District Officer shall, as an interim measure and subject to further orders to be passed by this court in the writ petition and the outcome of the writ petition, determine the quantity of the water the appellant can draw from the existing tube well. This shall be done within one week from today. Upon such determination by the District Officer, the appellant will be free to draw the specified quantity of water subject to further orders to be passed by this court. iv) We make it clear that we have not expressed any opinion on the merits of the rival contentions, and that the parties will be free to raise their respective contentions before the learned single judge. v) The parties may move the learned single judge for appropriate further orders.

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Later when W.P.(C) No.11529 of 2018 came up for hearing, this Court took the vie w that since proceedings have been initiated in the meanwhile by the Ground Water Department against both the petitioner and the fourth respondent and since the directions issued by this Court in W.A.No. 878 of 2018 were not finalised, the writ petition is liable to be closed directing the Ground Water Department to finalize the proceedings initiated against the parties. Ext.P8 is the order issued by the first respondent, the District Officer of the Ground Water Department, pursuant to the direction issued by this Court in W.P.(C)

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WPC No. 8648 of 2019 4

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No.11529 of 2018. The petitioner is aggrieved by Ext.P8 order and hence this writ petition.

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In terms of Ext.P8 order, the first respondent has decided to initiate action against the fourth respondent for having constructed the tube well violating the provisions of the Kerala Groundwater (Control and Regulation) Act 2002 (the Act) and the Coastal Regulation Zone Notification. Likewise, in terms of the said order, the first respondent has decided to initiate action against the petitioner for having converted the tube well in his property to an energized one, violating the said statutory provisions. It is seen that every decision of the first respondent is appealable under Section 24 of the Act. In terms of Rule 21 of the Kerala Ground Water ( Control and Regulation) Rules, 2004, the appellate authority to deal with such appeals is the State Government. In the course of hearing, the fourth respondent who was appearing in person submitted that she has preferred an appeal challenging Ext.P8 order before the Government and the same is pending.

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In the light of the alternative remedy available to the petitioner under Section 24 of the Act, and having regard to the fact that the fourth respondent has already preferred an appeal challenging Ext.P8 order before the Government, I deem it appropriate to dispose of the writ petition permitting the petitioner to prefer an appeal challenging Ext.P8 order invoking Section 24 of the Act, if so advised.

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WPC No. 8648 of 2019 5

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Ordered accordingly. If the petitioner prefers an appeal within thirty days from the date of receipt of a copy of this judgment, the same shall be treated as one validly instituted and shall be considered by the appellate authority in accordance with law, along with the appeal stated to have been preferred by the fourth respondent challenging the very same order.

Sd/-

P.B.SURESH KUMAR

JUDGE

pkk

WPC No. 8648 of 2019 6

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF THE JUDGMENT DATED 12.4.2018 PASSED BY THIS HON'BLE COURT W.A.NO.878 OF 2018 IN WPC NO.11529 OF 2018.
EXHIBIT P2	TRUE COPY OF THE JUDGMENT DATED 14.9.2018 PASSED BY THIS HON'BLE COURT IN WPC NO.11529 OF 2018.
EXHIBIT P3	TRUE COPY OF THE JUDGMENT DATED 14.12.2018 PASSED BY THE LEARNED SINGLE JUDGE IN WPC 40847 OF 2018.
EXHIBIT P4	TRUE COPY OF THE STATEMENT FILED ON 21.1.2019 BY THE 2ND RESPONDENT BEFORE THE IST RESPONDENT.
EXHIBIT P5	TRUE COPY OF THE STATEMENT DATED 22.1.2019 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT ALONG WITH THE SUPPORTING DOCUMENTS.
EXHIBIT P6	TRUE COPY OF THE LETTER DATED 30.12.2015 FROM THE PETITIONER TO THE 3RD RESPONDENT FOR OBTAINING ELECTRICITY CONNECTION FOR THE PURPOSE OF EXTRACTING DRINKING WATER FROM THE DISPUTED TUBE WELL
EXHIBIT P7	TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 1.2.2019 ISSUED BY THE 2ND RESPONDENT CERTIFYING THAT THE PETITIONER IN THE OWNER OF BUILDING NO.PK XI/229(A).
EXHIBIT P8	TRUE COPY OF THE IMPUGNED ORDER PASSED BY THE IST RESPONDENT DATED 22.2.2019.
EXHIBIT P9	TRUE COPY OF THE LETTER DATED 22.2.2019 FROM THE IST RESPONDENT TO THE PETITIONER.
RESPONDENT'S EXHIBITS:
EXHIBIT R4 A	ORDER OF THE DIRECTOR,GROUND WATER DEPARTMENT DATED 03.06.2019
EXHIBIT R4 B	INFORMATION RECEIVED UNDER RIGHT TO INFORMATION ACT FROM THE KERALA COASTAL ZONE MANAGEMENT AUTHORITY DATED 28.06.2019
EXHIBIT R4 C	COMMUNICATION RECEIVED UNDER RIGHT TO INFORMATION ACT FROM THE KERALA COASTAL ZONE MANAGEMENT AUTHORITY DATED 05.07.2019
EXHIBIT R4 D	TRUE COPY OF THE MEMORANDUM OF WRIT PETITION IN WPC 40847/2018

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WPC No. 8648 of 2019 7

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EXHIBIT R4 E PETITION DATED 01.02.2019 FILED BY THE 1ST RESPONDENT BEFORE THE DISTRICT OFFICER, GROUND WATER DEPARTMENT. EXHIBIT R4 F COPY OF THE LETTER DATED 04.03.2016 OF THE DISTRICT OFFICER, GROUNF WATER DEPARTMENT,TRIVANDRUM. EXHIBIT R4 G LETTER DATED 07.02.2019 BY THE ASSISTANT ENGINEER,K.S.E.B. TO THE DISTRICT OFFICER,GROUND WATER DEPARTMENT. EXHIBIT R4 H APPLICATION FILED BY THE 1ST RESPONDENT FOR ELECTRIC CONNECTION. EXHIBIT R4 I APPLICATION DATED 18.01.2018 FILED BY THE RESPONDENT BEFORE THE 3RD RESPONDENT.

S.Rajendran v. District Collector

Case brief

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S.Rajendran v. District Collector

Case brief

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