Vijayan M.S., Vs Kodungallur Municipality

2025:KER:23415

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WP(C) NO. 5028 OF 2024

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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 ZIYAD RAHMAN A.A.

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WEDNESDAY, THE 19^TH DAY OF MARCH 2025 / 28TH PHALGUNA,

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1946

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WP(C) NO. 5028 OF 2024

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PETITIONER:

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VIJAYAN M.S., AGED 65 YEARS, S/O.SANKARAN, MANGALATH HOUSE, LOKAMALESWARAM P.O., KODUNGALLUR, THRISSUR, PIN - 680664

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BY ADVS.
ATHUL TOM
MANASI MURALIDHARAN

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RESPONDENTS:

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1 KODUNGALLUR MUNICIPALITY, REPRESENTED BY ITS SECRETARY, P.O. KODUNGALLUR, THRISSUR DISTRICT, PIN - 680664

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2 THE SECRETARY, KODUNGALLUR MUNICIPALITY, KODUNGALLUR P.O.,THRISSUR DISTRICT, PIN - 680664

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3 DISTRICT OFFICER, STATE GROUND WATER DEPARTMENT,

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2025:KER:23415

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WP(C) NO. 5028 OF 2024

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CIVIL STATION, THRISSUR, PIN – 680002

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BY ADV
ADV K.A. NOUSHAD, SC
ADV PREETHA K.K., SR.GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 19.03.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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WP(C) NO. 5028 OF 2024

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2025:KER:23415

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JUDGMENT

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The petitioner is aggrieved by Ext.P5 intimation issued by the Secretary to the 1^st respondent Municipality, informing that the Municipal Council of the 1^st respondent Municipality had taken a decision not to grant permission to the petitioner to dig a borewell in his property. The facts which led to the filling of this writ petition are as follows:

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The petitioner is the owner of an agricultural land having an extent of 13.73 cents in Survey Number 313/5-14.1-7 in Pullut Village, Kodungallur Taluk, Thrissur District which comes within the territorial jurisdiction of the 1^st respondent Municipality. The petitioner approached the 2^nd respondent, the Secretary to the Municipality by submitting a request seeking permission to dig a borewell in the said property. In response to the same, Ext.P1 was issued by the Assistant Engineer to the 1st respondent Municipality requiring the petitioner to obtain a permission from the 3^rd respondent herein, and thereafter to submit an application

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WP(C) NO. 5028 OF 2024

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before the Municipal Council of the 1^st respondent. Accordingly the petitioner approached the 3^rd respondent and after considering the application, Ext.P3 permission was granted to the petitioner.

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Later, an application was submitted by the petitioner

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and the same was placed by the 2^nd respondent before the 1st respondent, to enable the Council to take a decision. Later, the petitioner was issued with Ext.P5 notice issued by the 2^nd respondent, wherein, it was informed that, on 23.06.2023, the Municipal Council had taken a decision to reject the application submitted by the petitioner. This writ petition is submitted in such circumstances challenging Ext.P5.

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A statement was submitted by the learned Counsel for the respondents 1 and 2. It was averred that, the matter was placed before the Municipal Council and they rejected the application as per the decision dated 23.06.2023. Conspicuously, in the statement of the said respondents, no reasons are mentioned for rejecting the application.

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I have heard Sri.Athul Tom, learned Counsel for the petitioner and Sri.K.Noushad, learned Standing Counsel for the Kodungallur Municipality and learned Government Pleader for the 3^rd respondent.

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The crucial aspect to be noticed is that, in Ext.P5, absolutely no reason is mentioned, which prompted the Municipality to reject the application. The copy of the decision by which the same was rejected is also not produced before this Court and the same has not been communicated to the petitioner as well. Therefore, the procedure adopted by the respondents 1 and 2 itself is not legally sustainable, as they were under an obligation to inform the reasons on the basis of which, the application submitted by the petitioner was rejected. This is particularly because, the petitioner had obtained permission from the 3^rd respondent, as evidenced by Ext.P3. It is also to be noted that, Ext.P3 was obtained by the petitioner as required by the 2^nd respondent in Ext.P1 communication. Therefore, under no

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circumstances the same could not have been rejected.

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Apart from the above, Rule 75 of Kerala Municipality

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Building Rules, 2019 deals with the essentiality of permit for digging well including tube well or borewell etc. As per the said provision, the applicant has to submit an application in the form prescribed in Appendix A1, to the Secretary, together with the site plan and documents to prove the ownership. Sub Rule 5 of Rule 75 further contemplates that, the Secretary shall, if convinced of the boundaries and plan and bonafides of the ownership approve the plan with or without modification and issue permit. It is further contemplated in the said Rule that, in the case of tube wells, once the clearance from the Ground Water Department is obtained by the applicant and furnished, the Secretary shall issue the permit on the same day of receipt of application along with prescribed fee. Thus, going by the statutory stipulations contained in Rule 75, it is obligatory on the part of the Secretary to grant permit, if clearance from the Ground Water Department is obtained by the applicant.

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Therefore, as the petitioner had obtained the permission from the Ground Water Department as evidenced by Ext.P3, it is obligatory on the part of the Secretary to grant the permit, if the application submitted by the petitioner is in the prescribed format and otherwise in order.

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As far as Ext.P5 is concerned, the same is based on the decision taken by Council of the Municipality, which is not contemplated under Rule 75. As per the said provision, the power is conferred upon the Secretary and therefore, it is for the Secretary to exercise the said powers and issue the permit.

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In such circumstances, this writ petition is disposed of quashing Ext.P5 with a direction to the 2^nd respondent to consider the application submitted by the petitioner, if the same is in the prescribed format and along with necessary documents. In case the application suffers from any defect or is not in the prescribed format, the same shall be intimated to the petitioner within a period of two weeks from the date of receipt of a copy of this

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judgment and in such an event, the petitioner shall submit the application in the prescribed format along with necessary documents. If the petitioner had already submitted an application in the prescribed format along with necessary documents, the same shall be considered and appropriate orders shall be passed in the light of the observations made by this Court within a period of one month from the date of receipt of a copy of this judgment. In case the proper application is not submitted by the petitioner as observed above, the same shall be returned and the orders shall be passed by the 2^nd respondent, within a period of one month from the date on which the petitioner submits a proper application.

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Sd/-
ZIYAD RAHMAN A.A.
JUDGE

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scs

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WP(C) NO. 5028 OF 2024

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APPENDIX OF WP(C) 5028/2024

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PETITIONER EXHIBITS

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Exhibit P1A TRUE COPY OF THE LETTER DATED
06.01.2023 ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER

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Exhibit P2A TRUE COPY OF THE ACKNOWLEDGMENT
RECEIPT DATED 30.01.2023

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Exhibit P3A TRUE COPY OF THE CLEARANCE
CERTIFICATE NO.DGT/190/2023 DATED
28.03.2023 ISSUED BY THE 3RD
RESPONDENT TO THE PETITIONER

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Exhibit P4A TRUE COPY OF DECISION TAKEN BY THE
1ST RESPONDENT DATED 23.06.2023

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Exhibit P5A TRUE COPY OF THE NOTICE NO.PW2-
21039/22 ISSUED BY THE 1ST RESPONDENT
TO THE PETITIONER DATED 01.07.2023

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RESPONDENT EXHIBITS

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Exhibit R1(a)A true copy of the decision dated
20/03/2023

Vijayan M.S., v. Kodungallur Municipality

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Vijayan M.S., v. Kodungallur Municipality

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