Rajini Jayadev vs State Of Kerala

A.V. Ramakrishna Pillai, J.—The issue of a memo by the 2nd respondent panchayath asking the petitioner to stop the digging of a tube well is under challenge in this writ petition.

The petitioner, who is a native of Pallikkal in Alappuzha District, along with her husband, brother-in-law and sister-in-law, is having 4.5 acres of land comprised in different survey numbers of Bharanikkavu Village, which is lying as a single plot. The petitioner started a High Tech Farming with drip irrigation. She has adopted High Tech Farming Technology to avoid wastage of water sources. In order to install a drip irrigation system and to dig a tube well for the water sources, the petitioner approached the 7th respondent with an application for certificate for erection of tube well/bore well. The 7th respondent issued a certificate and along with that, the petitioner submitted a representation before the 6th respondent Department along with requisite fee. After investigation, the 6th respondent issued a letter with estimate for construction of 150MM Dia Tube well asking the petitioner to remit a sum of 1,93,225/- towards cost of construction of the tube well and to execute an agreement in stamp paper. This was duly complied with. However, when the petitioner started the work, some local people made a complaint before the 2nd respondent, who verbally asked the petitioner to stop the digging. She submitted a representation before the 2nd respondent on 15.02.2014 with all the permits and sanctions. The 2nd respondent, then, issued a stop memo directing the petitioner to stop digging of well under the threat of shortage of water in the area. The petitioner alleges that the panchayath has no authority to do so. Therefore, the petitioner has approached this Court challenging the stop memo and seeking a direction to the 2nd respondent to withdraw the same unconditionally.

Respondents 2 and 3 filed a counter affidavit, wherein they have contended that it is the State Ground Water Authority constituted under the Kerala Ground Water (Control and Regulation) Act, 2002, who is competent to grant sanction. They would further contend that the panchayath is already reeling under the scarcity of drinking water and the people are franticly searching for source of drinking water. It is further contended that the panchayath has every authority under Rule 91 of the Kerala Panchayath Building Rules to refuse sanction.

To this, the petitioner filed reply affidavit refuting all the contentions.

In the counter affidavit filed by the 6th respondent, they have contended that the Kerala State Ground Water Department is the Nodal agency for the ground Water Department and the department has district level office at Alappuzha, which is the authority to take up all the works related to ground water investigation and development in that district. According to them, after conducting hydro geological investigation, which recommends the type and specification of wells, the environmental impact is considered before making any recommendation for development. Through scientific investigation, it has been noticed that the construction of tube well in the plot of the petitioner will not affect the phreatic aquifer in the area. It is stated that on an application submitted by the petitioner for ground water investigation, hydro geological investigation was carried out by the 6th respondent, based on which a tube well of depth 110 metres and diameter of 6" was recommended; and an estimate of 1,93,225/- was also given to the applicant for the construction of tube well, which was remitted by the petitioner subsequently. It was also stated that all the aspects, especially, the impact of the drilling of the well on the surrounding open wells were considered before issuing Ext. R6(a) feasibility certificate; and the same is issued based on detailed scientific studies. The investigation revealed that the area is sedimentary in origin and hence, only tube well is feasible. It was also found that the ground water drawn through the tube well is from the deep confined aquifer. Therefore, it was stated in the investigation report that the extraction of ground water through tube well will not affect the surface water/wells/ponds in the adjacent area. According to them, the panchayath has no power to stop the tube well construction work undertaken by the ground water department. It is stated that the area has been categorized under safe category as per the latest Ground Water Estimation Committee Report - 2009; and as per the prevailing act in the State, there is no restriction for ground water extraction from the said area. They have taken the stand that they have considered all the prevailing laws in this regard before recommending the site for construction of tube well.

Two persons from the locality got themselves impleaded as additional respondents 8 and 9. They filed a counter affidavit supporting the respondent panchayath.

Arguments have been heard.

While the learned counsel for the petitioner would submit that the petitioner has obtained requisite permits from the authorities concerned, the learned counsel for the respondent panchayath as well as the additional respondents 8 and 9 would submit that the 6th respondent, who is the Ground Water Department, is only an executing agency; and the authority, who is actually competent to grant licence in such cases, is the State Ground Water Authority constituted under the Kerala Ground Water (Control and Regulation) Act, 2002. Section 3 deals with the constitution of the State Ground Water Authority, which reads as under;

"3. State, Ground Water Authority. - (1) The Government shall, by notification in the Gazette, constitute an authority called the State Ground Water Authority with effect from such date as may be specified therein.

(2) The authority shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable and to enter into contract and shall by the name of the Authority sue and be sued:

(3) The Authority shall consists of the following members, namely:-

(i) the Secretary to Government, Water Resources Department: Exofficio, who shall be the Chairman of the Authority:

(ii) the Secretary Government, Finance Department: Ex officio:

(iii) the Secretary to Government, Local Self Government (Rural Development) Department, Ex officio;

(iv) the Director, Ground Water Department; Ex officio, who shall be the Secretary of the Authority;

(v) the following persons nominated by the Government.

(a) two members of the Legislative Assembly;

(b) an expert in Water Resources;

(c) a member of Grama Panchayat;

(d) a member of Municipal Council;

(e) a member belonging to a Scheduled Caste or Schedule Tribe;

(f) a woman;

(g) a public man;

(h) an environmental activist

(4) The term of office of the nominated members shall be three years.

(5) Any nominated member may resign his office at any time by a resignation letter addressed to the Government.

Provided that the resignation shall not come into effect until it is accepted.

(6) The conditions of the service of the members of the Authority shall be, such as may be prescribed."

Section 7 makes it clear that any person, desiring to dig a well or to convert the existing well into pumping well, for his own or social purpose in the notified area, shall submit an application before the Authority for the grant of a permit for the purpose and shall not proceed with any activity connected with such digging or conversion unless a permit has been granted by the Authority. On receipt of the application, if the authorities satisfied that the same is not against public interest, shall grant subject to such conditions as may be prescribed a permit authorising to draw ground water or reject the application. In granting or receiving the permit, the authority shall consider the purpose or purposes for which the water is used, the other existing users of that locality, the availability of ground water of that area, the quality of ground water in connection with its use, the distance of the proposed well with the adjoining well and the number of wells in the area and the chance of interference with existing wells, chances of ground water pollution, the long term nature of ground water level in the area and any other factor relevant thereto.

It is true that the petitioner has not approached the Ground Water Authority in this case. The purpose of introducing the Kerala Ground Water (Control and Regulation) Act, 2002 provides for the conservation of ground water and for the regulation and control of its extraction and use, if indiscriminate extraction of ground water is continuing. Here, the petitioner, who is a graduate in Electronic Engineering, was working in Quatar and Dubai Middle East Oil Field Supply Company with high salary and perks. She gave up her employment and came back to her home village to look after her aged parents. After returning to Kerala, she was actively engaged in formal agricultural activities in 4.5 acres of land owned by her along with her husband and her relatives. By her able and efficient work in the agricultural field, she became the Secretary of the "Bharanikkavu Panchayat Farmers'' Association" and she has won so many accolades and recognitions including Onattukara Karshaka Sree Award for the best farmer. It was considering the active involvement of the petitioner, the Agricultural Department encouraged her to start a High Tech Farming Unit and offered subsidy from the Government. Accordingly, she started High Tech Farming with drip irrigation and to avoid wastage of water resources, adopted High Tech Farming Technology. According to the petitioner, the evaporation of water is minimal in High Tech Farming Technology. In order to install a drip irrigation system and to dig a tube well, she approached the 7th respondent and thereafter, she approached the 6th respondent.

The learned senior Government Pleader appearing for the State supported the case of the petitioner referring to Ext. R6(a) feasibility certificate issued by the District Officer of the Ground Water Department. The specifications regarding the proposed tube well are mentioned in Ext. R6(a). The main argument advanced by the contesting respondents is that the 6th respondent is only an executing agency and they have nothing to do with the permission regarding the extraction. At the instance of the District Officer, the Ground Water Department, Alappuzha, conducted a detailed hydro geological investigation in the land owned by the petitioner, which revealed that the area is sedimentary in origin and hence, only tube well is feasible. It was also found that the ground water drawn through the tube well is from the deep confined aquifer. Therefore, it was stated in the investigation report that the extraction of ground water through tube well will not affect the surface water/wells/ponds in the adjacent area. It is also observed that nowadays, people, without any reason, hinder bore/tube well construction in the State on the apprehension that the extraction of water through bore/tube well may affect the open well water/surface water. It is also stated that the Director, Ground Water Department, Kerala issued press release urging the people not to hinder the bore well/tube well construction done by the Department as well sitting is done based on detailed scientific studies.

In this case, it was found in scientific studies that the installation of bore/tube well in the property of the petitioner will not affect the existing users in the locality and will not affect the reservoir of ground water in that area. The purpose, for which the water is to be used, is genuine. Chances of ground water pollution is nil. However, formal orders granting permission have to cause from the Ground Water authority and the matter has to be considered by the Ground Water Authority in favour of the petitioner in the present case while considering an application for permit. What requires is only a formal permit from the Ground Water Authority, which the petitioner is bound to obtain as mandated under Section 7 of the Kerala Ground Water (Control & Regulation) Act, 2002, as the technical feasibility and other aspects were examined by the 6th respondent through a detailed scientific study.

Therefore, the writ petition is disposed of directing the petitioner to approach the Ground Water Authority with an application for obtaining formal sanction from the authority concerned. Once the Ground Water Authority issues such a permit, the 2nd respondent shall withdraw the stop memo issued, without any further orders from this Court.