Karakurissi Grama Panchayat vs Government Of Kerala

Mohammed Nias C.P., J.

The petitioner in WP(C)No.5732 of 2024, intends to start an M Sand Unit, in the property having an extent of 7.14 Ares in Resurvey Nos.35/8A, 8B, 5, 36/3, 6 and 8 of the Karakurissi Village, Palakkad, had constructed a building as per the approved plan and permit. The petitioner claims to have obtained all the other licences and statutory permission from the Pollution Control Board, from the Department of Fire and Rescue Services and District Geologist. The issue involved in this case is the grant of licence by the Panchayat. After a series of litigation, finally, by Ext.P13 judgment dated 18.1.2023, the Tribunal for Local Self Government Institutions set aside the decision of the Panchayat Committee that rejected the licence to the petitioner. The Panchayat was further directed to issue installation permit and D & O licence to the appellants on producing the renewed permits and NOC from the statutory authorities in case the validity had expired. These directions were to be complied with within a month from the date of the order. The petitioner in WP (C)No.5732/2024 accordingly prays for directing the respondents to issue permission and to comply with the directions in Ext.P13 order of the Tribunal.

WP(C)No.19673/2023 is filed by the Karakurissi Grama Panchayat challenging the order of the Tribunal dated 18.1.2023, Ext.P7 ( which is the same as Ext.P13 in the connected writ petition) and also a prayer for directing the Secretary, Department of Ground Water Control and Regulations to ensure availability of drinking water to the residents in the local area of the Panchayat. The Panchayat essentially contends that the quantity of water required for running the manufacturing unit is not based on any study and that using 97 Horsepower motor to press rubble to sand requires huge consumption of water, which will lead to depletion of the water sources affecting the people of the entire locality besides causing depletion of the resources of the state. The Panchayat also points out the threat of uncontrolled passing of the tipper and other lorries in the area which is a heavily populated one.

In view of the contentions raised in these writ petitions, this Court passed an interim order on 11.6.2024 after impleading the District Officer, Ground Water Department, as an additional fourth respondent and directing him to file a statement meeting the allegations in the writ petition and also about the possibility of extraction of ground water adversely affecting the neighbourhood and a site inspection was also ordered with notice to the parties and a report to be filed thereafter.

Pursuant to the directions as aforesaid, a report has been filed by the District Officer, Ground Water Department following a filed visit conducted on 20.6.2024, the relevant portion of which is extracted hereunder:-

“Geologically the site is located at the upper slope and the top portion of a denuded hillock. Here the area is sloping towards South West direction. An abandoned quarry located here has an area of about 5 Acres. It has an average depth of about 12m. - filled with water (~25ft) at present. The crusher unit (Lat.10.942435 Long. 76.487321) is located about 4m due North from the Northern boundary of this quarry. It is situated in a leased out land having an area of about 1.75 Acres of which about 50 cents is part of the abandoned quarry. The plant proposes to abstract water from this area.

The settlement with about 17 families is located downslope and about 150 m due South from the crusher-unit. The main source of the water for the families is the tap connection provided by Keral Water Authority (KWA). A public open well (Lat.10.93984] Long. 76.486211) is located here and is about 150m due west from the quarry in question. The well was not energized at the time of inspection. The residents of the settlement told that they depend on this well for water during summer when there were any shortage of water in KWA distribution. This open well has a depth of 5.10m. with diameter of 2.22m. The static water level at the time of inspection was 3m

Apart from this, three other open wefls are located in the private plots in the adjoining area of the quarry. An open well located (Lat.10.941930 Long. 76.488512) is about 80m East from the quarry and has a depth of 15.40m with diameter of 2.60m. Its static water level was 8.20m. Another open well is located 100m SE from the quarry (Lat10.940414 Lon. 76.494081) with a depth of 17m and diameter of 2m. Its static water level was 9.20m at the time of inspection. An open well is situated about 84m South West (Lat. 10.940298 Long.76.486587) with total depth of 6m, diameter 2m and static water level 4.20m.

The land area near the crusher unit is covered by Laterite to a depth of 3m. The rock exposed in the quarry is predominantly Charnockite /Charmockite Gneiss. Major joints or fractures are not seen and the rock is found to be massive. This massive nature aided in holding the rain water within the quarry. Absence of such major fractures/joints in the rock rule out the possibility of recharge.

As per the “Guidelines/Criteria for evaluation of proposals/requests for groundwater abstraction in Kerala” (w.e.f. 15.04.2018) issued by State Groundwater Authority, ‘Crusher unit and Sand Manufacturing’ falls under the ‘List of Water Intensive Industries’ (Annexure V). Hence NOC from State Ground Water Authority (Ground Water Department) is mandatory for starting a crusher unit in the state. Ground Water Department, District Office Palakkad has not received an application for NOC from M/s Endeavour Sand, Arappara, Karakurissi P.O., Mannarkad, Palakkad till date.”

A reading of the above shows that there is an abandoned quarry located in an area of about 5 Acres which also has an average depth of about 12 m filled with water (25 feet at present) and the crusher unit is located about 4 meters north from the northern boundary of this quarry and that the plant proposes to abstract water from this area. The report also shows that there is a settlement of about 17 families located down-slope whose main source of water is tap connection from the Kerala Water Authority and the Public Open Well. Three other open wells were also noticed in the locality.

The learned counsel for the petitioner in WP(C)No.5732/2024 submits that the unit does not propose to abstract water from the wells and all that they will use is the stagnant water filled in the abandoned quarry as noticed above. The report speaks about the guidelines/criteria for evaluation of proposals/requests for groundwater abstraction in Kerala issued by the State Groundwater Authority which also includes the crusher and the sand manufacturing units in the list of water-intensive industries and therefore an NOC from the State Ground Water Authority is mandatory. As stated above, the learned counsel for the petitioner submits that he is not intending to abstract any groundwater nor use the wells mentioned in the report.

It is to be noted that the Kerala Ground Water (Control and Regulations) Act, 2002, is an Act providing for the conservation of ground water and for the regulation and control of its extraction and use in Kerala. 'Ground Water' is defined as the water which exists below the surface of the ground at any location or at any location or at any particular category of locations and the 'user of groundwater' means any person using ground water from a pumping well for any purpose including domestic purposes. 'Digging' is also defined as digging or drilling of new wells, putting in pipes or drilling making tunnels or increasing depth or diameter of the existing wells.

Learned counsel for the petitioner therefore submits that since there is no abstraction/extraction in the instant case and is only intending to use the water stagnated in the quarry, the above Act or guidelines have no application. This is recorded. Accordingly, the provisions of the Act noticed above may not strictly apply to the petitioner in the nature of the proposed activity. However, it is made clear that in case the petitioner intends to use ground water in any form, the Kerala Ground Water (Control and Regulation) Act, 20020, will apply along with the guidelines/ criteria for evaluation of proposals/requests of groundwater abstraction in Kerala issued by the Ground Water Department applicable from 15.4.2018. Though the petitioner submits that the guidelines are contrary to the statutory provisions, I did not notice any violation of the statutory provision in the guidelines. However, I am not finally pronouncing on the same as there is no challenge to the guidelines or the applicability of the same in the factual context of the case. As regards WP(C)No.19673/2023 filed by Panchayat no further directions are required in view of the undertaking given by the petitioner in WP(C)No.5732/2024.

Accordingly, the writ petitions are disposed of as follows: The order passed by the Tribunal dated 18.1.2023, which is (Ext.P13 in WP(C)No.5732/2024 and Ext P7 WP(C)No.19673/2023) is to be implemented within a further period of three weeks from today. The challenge to the same made in WP(C)No.19673/2023 is rejected. However, it will be open to the Karakurissi Grama Panchayat, the petitioner in WP(C)No.19673/2023 to intimate the additional fourth respondent, District officer, Ground Water Department in case they notice any violation of the undertaking given by the petitioner in WP(C)No.5732/2024 and take appropriate steps after getting a report from additional R4, if any illegal activity is carried on by the Unit. It is made clear that if the petitioner in WP(C)No.5732/2024 intends to abstract/extract ground water, it will have to make necessary applications in terms of the Kerala Ground Water (Control and Regulation) Act, 2002 and guidelines/ criteria for evaluation of proposals/request of groundwater abstraction in Kerala.

Writ petitions are disposed of as above.