IN THE HIGH COURT OF KERALA
Chief Justice V. K. Bali & Justice S. Siri Jagan
Shajimon Joseph and Others v.
W. P. (C) No. 16681 of 2006 (S), decided on
Reported in 2007 (1) KLT 368 : 2006 KHC 275 : 2006 (1) KLT 919 : ILR 2006 (1) Ker. 705 : 2006 (1) KLJ 498.
The Judgment of the Court was delivered by S. Siri Jagan, J.
1. Kerala is widely known all over the world as a land of backwaters. In fact, the backwaters are important tourist attraction in Kerala. Alappuzha, one of the districts of Kerala, is also rich in that sense, since the district has backwaters in abundance. However, Alappuzha is a place which makes the old saying “water, water everywhere, but not a drop to drink”, true to its real sense. In spite of water in such abundance all over the district, the inhabitants of Alappuzha do not get clean drinking water, despite the water supply system in existence operated by the Kerala Water Authority. The water which comes through the taps of the Kerala Water Authority at Alappuzha is so rich in all kinds of organic and inorganic impurities that no person who values his health would dare to drink the same. But for the paucity of adequate potable drinking water, we feel that the influx of tourists to Alappuzha would have been much greater than what is presently obtaining. This situation has been continuing for several decades. In spite of the fact that from the very inception of the Kerala State in 1956, very eminent political leaders representing Alappuzha had become ministers of the State, nobody could or seriously cared to find out a permanent solution for this drinking water problem of the people of Alappuzha. The same continues unabated even now. The people of Alappuzha go on suffering this misery while they go on paying for the dirty water which comes through the water supply system given by the Kerala Water Authority. It is in the above backdrop that two residents of Alappuzha have approached this Court with this writ petition with very serious allegations against the Government and the Kerala Water Authority not only regarding the apathy of the Government and the Water Authority towards their drinking water problem, but also complaining of corruption in the matter of putting into execution a project for supply of clean drinking water to the people of Alappuzha, which was envisaged as early as in the year 2000.
Water Authority was constituted by the Government of Kerala
under Section 3 of the Kerala Water Supply and
Sewerages Act, 1986 as an autonomous body under the direct control and
supervision of the Government for the development and regulation of water
supply and waste water collection and disposal in the State of
“i. Issue a writ in the nature of mandamus or such other appropriate writ or order or direction calling for the production of all the records and files relating to the Alappuzha Water Supply Scheme including the project reports as per Ext. P4 and P5 tender notifications, including the water analysis reports.
ii. Command the 2nd and 3rd respondents to execute and complete the Alappuzha Water Supply Scheme as per the Ext. P4 tender notification dated 15/11/2002 within a time frame fixed by this Hon’ble Court or in the alternative to call for a new workable project report from the 2nd and 3rd respondents and this Hon’ble Court may further be pleased to direct them to complete the full implementation of the scheme within such period as the Court may fix.
To call for the records in the suit OS No. 704/05 on the files of the Munsiffs Court Alappuzha and pass
appropriate orders and directions thereon, in the light of the findings of this
iv. To grant such other reliefs that are found just and proper to be granted in the facts and circumstances of the case or as may be prayed for during the cause of the above Writ Petition.”
3. Counter affidavit has
been filed on behalf of respondents 2 and 3 who are the Kerala
Water Authority and the Superintending Engineer of Kerala
4. We are more
distressed to find that neither the 1st respondent-State of Kerala, nor the
3. Water is one of the primary needs of
man, second only to air. Water is in fact the elixir of life. Any Government
whether proletarian or bourgeois and certainly a Welfare State committed to the
cause of the common man, is bound to provide drinking water to the public which
should be the foremost duty of any Government. When considering the priorities
of a Government, supply of drinking water should be on the top of the list.
However, for the past more than three decades,
successive Governments who have ruled this State have given scant attention to
the need for potable drinking water of the residents of
In fact in that case, we had directed the State Government to
complete all steps necessary for supplying drinking water to the people of the
5. In spite of the above direction and the experience, we are sorry to say that the present Government also continues the apathy towards the drinking water problems of the people of Kerala. This Government, controlled by a political party which professes their commitment to the cause of socialism and promises a welfare State to the people, does not consider supply of drinking water to the public as their first priority, it seems. Because of this, if one says that the so called commitment of the Government to socialism and welfare State is mere lip service to the society, one cannot find fault with such criticism, if the attitude of the Government towards the drinking water problem of the people continues to be such. As we have said in our above said judgment, water is one of the primary needs of man, second only to air. Any Government which is interested in the welfare of the people should consider finding of solutions to drinking water problems of the people as their first priority, above all other needs of the State. We are sorry to find that by not even filing a counter affidavit to this writ petition which was filed as early as on 23/06/2006, the Government has not only turned a deaf ear, but also a blind eye towards this drinking water problem of the people of Alappuzha, which they are suffering from, for the last several decades. We once again take this opportunity to remind the Government of their priority in governance as stated above. Of course, it would be easy for the Government to just state that they have constituted the Kerala Water Authority under the Kerala Water Supply and Sewerage Act, 1986 and clothed them with enough powers to do whatever is necessary for supplying drinking water to the people of Kerala. But the 1st respondent State forgets the fact that what the Water Authority is expected to do is the obligations of the State Government itself. By constituting the Water Authority, the responsibility of the State to supply clean drinking water to the people of Kerala does not end there, since the Water Authority cannot on its own without sufficient funds to carry out that obligation. It has to come from the Government to do what is needed for finding funds for the projects in such cases. In this connection, we would bring to the attention of the Government, Article 47 of the Constitution of India which reads thus:
“47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.— The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”
Besides, the right to have clean drinking water supplied in sufficient quantities also forms part of the right to life guaranteed under Article 21 of the Constitution of India to citizens. Further, under Section 55, in discharge of its functions, the Water Authority shall be guided by the directions of questions of policy as may be given to the Government. Under Section 56, the Authority is expected to file annual reports,, statistics and returns to the Government. As such, the responsibility of the Government is greater than that of the Kerala Water Authority to take such measures as are necessary for ensuring that the people of Kerala get pure drinking water in sufficient quantities either through Kerala Water Authority or through the local authorities or by itself. One cannot emphasise this responsibility of the Government in a better manner than as stated above. While we remind the Government of their responsibilities as above, we make it clear that it is our duty to see that the Government discharges its bounden constitutional duties without delay. In this connection we also note that in the budget estimate for 2003-04 and 2005-2006 an amount of Rs.7783.28 lakhs has been earmarked for Alappuzha Water Supply Scheme.
6. Under Section 57 of the Kerala Water Supply Sewerage Act, the local bodies also have duties. They are bound to render such help and assistance and furnish such information to the Authority and shall make available for inspection and examination such records, maps, plans and other documents as it may require to discharge its functions under this Act. Under Section 57(2) the Government also has retained with it the power to give any local body such directions as may be necessary or expedient for enabling the authority to perform his functions under the Act and the local body is bound to comply with such directions. In addition to the above, Chapter XVI of the Kerala Municipality Act makes it abundantly clear that it is also the duty of the Municipality to supply clean drinking water to the people of the Municipality. Section 315B specifically lays down thus:
“315B. Power of Municipalities to prepare and implement schemes with regard to water supply and sewerage.— (1) Notwithstanding anything contained in the Kerala Water Supply and Sewerage Act, 1986 (14 of 1986) or on any other law, each Municipality have the power and right to prepare and implement the water supply scheme or the sewerage scheme within its Municipal area.
(2) The Municipality which prepare and implement the water supply scheme and drainage scheme under sub-section (1) may realise water charge and service charge for sewerage from the beneficiaries in the manner as prescribed”.
As such, it is very clear that the local bodies also have legal duties under law in the matter of supply of drinking water to the people of the Municipality. In spite of that, the 4th respondent-Alappuzha Municipality and the 5th respondent-Block panchayat have not even responded, to this writ petition which espouses a just and long pending but urgent cause of a section of people of Kerala who have been suffering for the last several decades. We wonder, why these authorities are so insensitive to the just cause of the people whom they govern. We feel that they should be ashamed of their callous attitude towards this problem.
7. Of course, this Court, with its limited technical knowledge as to the proper selection of the source of intake of water for the supply system cannot say as to whether the Veeyapuram site or the Pannaikkadavu is the most suitable for the project. But we are distressed by the fact that in spite of the petitioners having, with whatever material they have, tried to project at least an argument that in the scheme of things Veeyapuram site would be the most suitable one for the project and it is because of mala fides on the part of the powers-that-be that the same has been discarded, neither the Water Authority nor the State has even attempted to controvert the same with any material whatsoever before us. Normally in the absence of any specific denial of such allegations made in the writ petition, in their counter affidavit by the Water Authority, we should assume the same to be true. But since the petitioners themselves are not technically equipped to convince us about the suitability of the site of water intake, we cannot go by their version alone in the matter of selection of site, for fear of overindulgence without expertise.
8. It is also distressing to note that in spite of specific
allegation in the writ petition that with mala
fide intention respondents 2 and 3 are changing GRP pipes by M.S. Steel
pipes for use in the water supply system, that too, giving sufficient data
showing the comparative qualities of various pipes, in the counter affidavit
there is absolutely no answer to the same. From the averments in the writ
petition which is not controverted in the Counter
affidavit we also feel that ordinarily M.S. Steel pipes should be preferred to
GRP pipes in the scheme of things particularly because its main supplier is a
Government owned institution which has sufficient outlets in Kerala for supplying the same at short notice. We also note
the contention of the petitioner that the Water Authority already had bad
experience with GRP pipes when they were used in the water supply system in
9. In the above circumstances, we issue the following directions to the Kerala Water Authority and the Government:
(1) The Water Authority shall once again make a detailed study of whatever sites that are available for water intake including Veeyapuram site and with the help of scientific data so collected take a final decision on the site to be selected for water intake for the Alappuzha Water Supply project. This shall be done within one month from the date of receipt of a copy of this judgment. Thereafter proceedings for finalisation of tender for the project shall be drawn up. While doing so, the Water Authority shall address itself to the question as to whether M.S. steel pipes should be used in the water supply system or GRP pipes, taking into account the specific averments made by the petitioners in the writ petition and if the averments in the writ petition are true M.S. steel pipes shall be preferred to GRP pipes. Tender proceedings shall be completed within a further period of one month from the date of finalisation of the water intake site as directed above.
(2) On finalising the tender
proceedings, the Government of Kerala shall ensure
that the Water Authority gets finance necessary for implementing the project
either by providing guarantee for HUDCO loan or by
providing finance from other sources or by themselves. Whatever is necessary
for providing adequate funds for enabling the Water Authority to implement the
project shall be done within 15 days from the date of finalisation
of the tender proceedings. However, the Government shall not wait till the finalisation of tender to start finding ways and means to
get at the resources. Within two years thereafter, the entire project for
supplying drinking water to the people of
10. We also take this opportunity to remind the officers of the Water Authority of Section 30 of the Kerala Water Supply and Sewerage Act which reads thus:
“30. Surcharge.— (1) The Chairman or the Managing Director or any other member, officer or employee of the Authority shall be liable to surcharge for the loss, waste or mis-application of any money or property of the Authority if such loss, waste’ or mis-application is a direct consequence of his neglect or mis-conduct while acting as such Chairman or Managing Director or other member or officer or employee.
(2) Procedure of surcharge under sub-section (1) shall be such as may be prescribed.
(3) Any amount found due from any person as surcharge under sub-section (c) as a result of proceedings for surcharge shall be recoverable as arrears of land revenue.
(4) Nothing in sub-section (3) shall prevent the Authority from deducting any amount referred to therein from any sum payable by the Authority on account of remuneration or otherwise to such Chairman or Managing Director or other member, officer or employee.”
We make it clear that although we are leaving the expert decisions to be made by the Water Authority as per our directions, if their decisions prove to cause any damage of loss, proving the petitioners’ allegations correct, it would be open to the petitioners or other persons of the affected area to bring this fact to the attention of this Court so as to see that appropriate action under Section 30 as above is initiated against the individual officers responsible for the same. This observation we are constrained to make since the Respondents 2 and 3 have not found it necessary to controvert the specific allegations of mala fides made against them in the writ petition.
The writ petition is disposed of as above.