Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943 WP(C) NO. 3089 OF 2015 PETITIONER: M/S.X MARK BUILDERS AND DEVELOPERS PVT. LTD P.O.EDARIKODE,MALAPPURAM DISTRICT,REPRESENTED BY ITS MANAGING DIRECTOR,IBRAHIMKUTTY,S/O.KUNJAHAMMED HAJI,RESIDING AT KOZHIKODAN HOUSE,PUTHUPARAMBA,MALAPPURAM DISTRICT. BY ADVS. SRI.T.KRISHNAN UNNI (SR.) SRI.M.DEVESH SRI.K.C.KIRAN SMT.MEENA.A. SRI.SAJU.S.A SRI.VINOD RAVINDRANATH RESPONDENTS:
1 THE DISTRICT OFFICER, GROUND WATER DEVELOPMENT GROUND WATER DEPARTMENT,DISTRICT OFFICE,MALAPPURAM- 676505. 2 EDARIKODE GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY,EDARIKODE,MALAPPURAM-676501. 3 THE SECRETARY EDARIKODE GRAMA PANCHAYATH,EDARIKODE.P.O,MALAPPURAM DISTRICT,PIN-676501. 4 JANARDHANAN.P S/O.GOPALAN NAIR, CHELURTHODIYIL HOUSE,AMBALAVATTOM,P.O.EDARIKODE, MALAPPURAM DISTRICT,PIN-676501. BY ADVS. R1 BY SRI.K.P.HARISH,SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.3089 of 2015 2
JUDGMENT
Petitioner has filed the writ petition seeking the following reliefs: i)Call for the records leading upto Exhibit P6 and to quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction.
(ii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3rd respondent to issue order extending the period of Exhibit P1 building permit by 1 years.
(iii) Pass any appropriate writ, order or direction which this Hon'ble Court may deem fit to issue and the petitioner may pray from time to time.
2. Brief material facts for the disposal of the writ petition are as follows;
petitioner is a private limited company engaged in the activity of developing properties and constructing building. Petitioner has undertaken a project at Edarikode in Malappuram District for the construction of a multistoried building complex within the limits of the Edarikode Grama Panchayat - the 2 nd respondent. According to the petitioner, construction of the building was almost W.P.(C) No.3089 of 2015 3 complete and only the final and finishing touches are to be effected, however, the period of the building permit, evident from Exhibit P1 dated 25.8.2011 was over.
3. Thereupon, petitioner filed an application before the Secretary of the
Grama Panchayat for extending the period of permit. However, the local authority refused to extend the period on the ground that Ground Water Authority has informed that the petitioner has not complied with the directions issued by them with respect to the collection of water from the wells in the property. According to the petitioner, he has complied with all the directions of the Ground Water Authority.
4. It is the case of the petitioner that the denial of the Secretary of the
Grama Panchayat for renewal of building permit is arbitrary and illegal. It is also pointed out that when an application submitted for renewing the building permit within the period of the permit, necessarily the Secretary of the Panchayat has to look into the rules for the purpose and extend the same.
5. The sum and substance of the contention advanced by the petitioner is
that even assuming that the directions issued by the Ground Water Authority is not complied with, that cannot be made a reason for declining renewal of the W.P.(C) No.3089 of 2015 4 building permit.
6. The District Officer, Ground Water Department, Malappuram - 1 st respondent, has filed a detailed counter affidavit contending as follows:
“3. It is respectfully submitted that, on verification of the corresponding file, it is revealed that the Ground Water authority has not issued any order to M/s X Mark Builders and Developers Pvt. Ltd., Edarikode P.O., Kottakkal, Malappuram regarding the extraction of ground water for their new project in Edarikode named X-Mark Fortune Luxury Apartments. It is the Ground Water Department, Malappuram which conducted a 4 and a half hour continuous Pumping test within the bore well which exist inside the compound of the proposed project in Edarikode and that is against a complaint received from Mr. P. Janardhanan, Chairman, Janakeeya Samidhi, Ambalavattom, Edarikode, Malappuram. The report of the Pumping test has been issued to M/s X Mark Builders and Developers Pvt. Ltd. on 11.06.2013 (Ext.P2).
4. It is submitted that the Pump test report is not a temporary
arrangement. The recommendations mentioned in the pump test report has to be maintained by X-Mark Fortune Luxury Apartments during the construction of the building and thereafter, which includes its functioning time too.
5. Another aspect to be considered at this juncture is that, an aquifer test (or a pumping test) is conducted to evaluate an aquifer by "stimulating" the aquifer through constant pumping, and observing the W.P.(C) No.3089 of 2015 5
aquifer's "response" (drawdown) in observation wells. Hence, it is not the total depth of the open well which determines availability of the ground water in a particular area and it is the aquifer conditions present in that place. A pumping test is conducted in this particular area as part of a hydrogeological investigation for studying aquifer and the report is made on the basis of that detailed study.”
7. I have evaluated the materials on record, and heard learned Senior Government Pleader Sri.K.P.Harish.
8. The sole question to be considered is whether the reasons assigned in Exhibit P6 order declining renewal of permit can be sustained under law ? The said order reads thus:
“ No.A5-2442/14 Phone:0483-2642390 Edarikkode Grama Panchayat Office P.O.Edarikkode Malappuram District - 676 501 E-mail:[email protected] Date 13.1.2015 From Secretary/President Edarikkode Grama Panchayat To Ibrahimkutty S/o. Kozhikkodan Kunjahammad Haji MD, X'Mark Builders and Developers W.P.(C) No.3089 of 2015 6 Sir, Sub: Edarikkode Grama Panchayat - Renewal of permit of building - renewal of permit of X mark building - reg Ref:
1. Interim Order of the Hon'ble High Court in WP(C) No.4326/14
2. Letter No.1292 dated 8.1.2015 of the District Officer, Ground Water Department, Malappuram.
Building Permit No.A5-2442/11 dated 25.8.2011 was granted from this office for flat complex X'mark Builders, Ambalavattathu, Edarikkode Grama Panchayat which is under construction. The application is submitted for renew the permit in the instance of expiry of permit. Hon'ble High Court has passed interim order regarding the exploitation of water caused by the said flat complex, cited in reference(1). The District Officer of the Ground Water Department has sent a letter that permit for functioning of flat shall not be granted for the reason that the
Order of the High Court could not be complied since you have not made
arrangement to implement the said order. In this circumstances, it is informed that the permit to renew the construction of building cited above cannot be granted. Yours faithfully, Sd/- C.K.Girija, Secretary Edarikkode Grama Panchayat.” W.P.(C) No.3089 of 2015 7
9. Learned Senior Government Pleader submitted that such an order was
passed by the Secretary since the petitioner has failed to comply with the directions contained in Exhibit P4 issued by the Ground Water Department dated 29.5.2014. The said order reads thus: “ No.G.M/1292/12 District Office Ground Water Department, Civil Station, B.1.B;lockm Malappuram Phone No.0483 2731450 Date 29.05.2014. From The District Officer, Ground Water Department, Malappuram To M/s. X'Mark Fortune Luxuary Apartments, Edarikkode Panchayat.O. Malappuram. Sir, Sub: Ground Water Department - Malappuram - Restricting use of water - reg W.P.(C) No.3089 of 2015 8 Ref:
1. Interim Order of the Hon'ble High Court in WP(C) No.4326/14
2. Letter No.-do- dated 11.06.2013 from this office.
Ground Water Department has to ascertain that only 10,000 litres permitted to you is being used as per the Interim Order of the Hon'ble High Court of Kerala as per the above reference. For that below mentioned conditions has to be strictly followed:
1. ISI marked Flowmeter (Water meter) has to be installed in the pipe which pumps ground water.
2. Separate Electric meter has to be installed for electric connection to pump ground water.
3. The log book which records the details of pumping per day has to be kept and has to be submitted for verification before the officials.
4. The date, electricity meter reading, flow meter reading, pumping time, measurement of water that is pumped and signature of operator has to be recorded everyday
5. Mechanisms for harvesting roof-rainwater has to be done artificially in the apartment building. The rainwater which is thus stored has to be directed through appropriate filter mechanism to your dug well.
6. The duration of permit granted to you is for one year. Every year the
application for renewal has to be submitted. 7.The permit granted shall be cancelled without notice if it is understood that the aforementioned conditions are not followed. W.P.(C) No.3089 of 2015 9 To execute the interim order of the Hon'ble High Court these instructions shall be carried out within 10 days of receipt of this letter and it shall be informed to this office. The officials of water authority shall conduct Inspection and the follow up actions shall be carried out. Yours faithfully sd/- District Officer Ground Water Department District Office Malappuram.”
10. I am of the considered opinion that if and when a building permit is
secured, the construction necessarily has to be carried out in accordance with the provisions of the Kerala Panchayat Building Rules, 2011, then in force. There is no case for the Secretary that the construction was carried out by the petitioner in violation of the building plan, permit and provisions of the Kerala Panchayath Raj Act, 1994 or the Kerala Panchayat Building Rules, 2011. The reason assigned for rejection is that petitioner has not complied with the direction of the Ground Water Authority. W.P.(C) No.3089 of 2015 10
11. Appreciating the facts and circumstances and bearing in mind the law involved in the subject matter of renewal of permit, I am of the considered opinion that no renewal application can be rejected on the ground that the
order passed by some other department is not complied with by the petitioner.
If the order passed by the Ground Water Authority is not complied with by the petitioner, the said Authority is vested with power to ensure implementation of the said order, but that cannot be taken as a ground for declining renewal of the building permit.
12. When this writ petition came up for admission on 30.1.2015, a learned Single Judge of this Court passed an interim order extending the permit for a period of six months. Taking into account all the above aspects, Exhibit P6
order passed by the Secretary is herewith quashed and there will be a direction
to regularise the constructions, if the same is in accordance with law, approved plan and building permit issued by the Secretary of the Grama Panchayat, if not already done. But I make it clear that, if any adverse consequences are still remaining in respect of Exhibit P4 order passed by the Ground Water Authority, it is for the said Authority to ensure that the orders are implemented by issuing W.P.(C) No.3089 of 2015 11 appropriate directions. Writ petition is disposed of accordingly. Sd/- SHAJI P.CHALY smv JUDGE W.P.(C) No.3089 of 2015 12 APPENDIX OF WP(C) 3089/2015 PETITIONER EXHIBITS
EXT.P1 THE TRUE COPY OF THE BUILDING PERMIT ISSUED BY 3RD RESPONDENT DATED 25.08.2011 AND ENGLISH TRANSLATION EXT.P2 THE TRUE COPY OF THE ORDER OF THE IST RESPONDENT DASTED 11.06.2013 AND ENGLISH TRANSLATION
EXT.P3 A TRUE COPY OF THE INTERIM ORDER
DATED 02.06.2014 IN W.P(C)4326/2014 EXT.P4 TRUE COPY OF THE COMMUNICATION ISSUED BY THE IST RESPONDENT ON 29.05.2014 TO THE PETITIONER AND ENGLISH TRANSLATION EXT.P5 TRUE COPY OF DETAILED REPLY GIVEN TO THE EXT.P4 COMMUNICATION DATED 21.07.2014 EXT.P6 TRUE COPY OF THE REPLY TO THE APPLICATION OF THE PETITIONER ON 13.01.2015 BY THE 3RD RESPONDENT AND ENGLISH TRANSLATION EXT.P7 TRUE COPY OF THE DETAILED EXPLANATION TO THE IST RESPONDENT DATED 13.01.2015 AND ENGLISH TRANSLATION. EXT.P8 THE TRUE COPY OF THE COMMUNICATION FROM GROUNDWATER AUTHORITIES TO THE 3RD RESPONDENT DATED 10.02.2015 WITH ENGLISH TRANSLATION OF THE SAME.