The above writ petitions are intrinsically connected and therefore I propose to dispose of the same through a common judgment. The facts leading to the cause of action in the above writ petitions are substantially similar, and hence I propose to narrate the facts contained in W.P.(C) No.17148 of 2014.
2. The writ petitions are filed basically challenging the decision of the 2nd respondent to select a place called 'Pannaikadavu' for location of intake well cum pumping station in order to supply water in accordance with the Alappuzha Water Supply Scheme to the people living within the area of Alappuzha Municipality and eight adjoining Panchayats and seeking other related reliefs.
3. Necessary facts for the disposal of the writ petitions are as follows:
4. The petitioner and his family members are the joint owners of 101 ½ cents of property in Resurvey No.51/13 of Niranom Village, Thiruvalla Taluk, Pathanamthitta District. The 2nd respondent viz. Kerala Water Authority initially selected the property of the petitioner situated at Veeyapuram, Niranam Village for erecting intake well-cum-pumping station for Alappuzha Water Supply Project. However, owing to certain ill-intention and vested motives on the part of the 2nd respondent, the site point for collection of raw water was shifted to Pannaikadavu, about 6 k.ms. upstream from Veeyapuram. While so, certain people residing in the locality and the beneficiaries of the said Scheme approached this court by seeking relief against the said change of the site for the intake point and also in the components of the project work, including selection of quality of pipe for collection and distribution of water by filing W.P.(C) No.16681 of 2006. After consideration of the rival submissions, Ext.P1 judgment was delivered, directing the 2nd respondent to carry out certain investigations and then take a decision with regard to the site point of the intake well etc. etc. It is the further contention of the petitioner that, in spite of the directions contained in Ext.P1 judgment, the 2nd respondent decided to stick on to the Pannaikadavu site point for locating the intake well. The petitioner therefore sought information from the Project Director of the 2nd respondent under the Right to Information Act, as to the manner in which the site point for intake well- cum-pumping station was sought to be selected for the said Scheme. The Project Director as per Ext.P2, replied that the site point will be selected only after conducting study with the help of Centre for Water Resources Development and Management/Centre for Earth Science Studies, and it is the further contention of petitioner that even after the assurance in Ext.P2, Pannaikadavu was selected for collecting raw water against the express direction contained in Ext.P1 judgment.
5. Thereupon the petitioner approached this Court by filing W.P.(C) No.978 of 2012 seeking to quash Ext.P3 order of 2nd respondent dated 10.08.2007, by which, Pannaikadavu was selected as the site point for intake well. The said writ petition was dismissed by this Court, owing to the inability of the petitioner to establish the malafide intention, contends the petitioner.
6. It is further contended that, subsequently petitioner obtained clear and cogent evidence to prove the malafide intention on the part of the 2nd respondent in the matter of shifting of the site point for intake well-cum-pumping station. In such circumstances, petitioner approached the Lok Ayukta by filing O.P.No.2056 of 2012, seeking direction to conduct an enquiry against misuse of power, loss of public money, forgery of documents etc. done by the officials concerned. According to the petitioner, the said complaint is still pending before the Lok Ayukta. However, the 2nd respondent continued the work of the above project including construction of intake well at Pannaikadavu. Under the above said circumstances, petitioner submitted a memorandum before the 1st respondent and in response, the 5th respondent had issued a legal opinion not to restore the work of the above project till final disposal of the case pending before the Lok Ayukta, evident from Ext.P4, contends the petitioner. Further, the petitioner contends that the 2nd respondent has not paid any regard to Ext.P4 and has proceeded with tender works for execution of the work at Pannaikadavu.
7. Petitioner also contends that in Ext.P1 judgment of this Court, it is specifically pointed out that, under Sec.57 of the Kerala Water Supply and Sewerage Act, the local bodies have right and duty to render help/assistance to the 2nd respondent for effective implementation of water supply scheme. Besides, as per the provisions of the Panchayat Raj Act, the Local Self Government Institution has right to prepare and implement water supply schemes within its jurisdiction. In this respect, the 3rd respondent had submitted a resolution dated 20.06.2003 to the 2nd respondent, wherein the 3rd respondent after conducting a thorough and scientific study had proposed that the Veeyapuram site is the most cost effective and pollution free site for constructing the intake well-cum-pumping station, evident from Ext.P5 resolution passed by the 3rd respondent dated 20.06.2003. In spite of weight of evidence to the contrary, the officials of the 2nd respondent have proceeded with the construction activities at Pannaikadavu, contends the petitioner. In that circumstances, petitioner filed O.P.No.833 of 2013 before the Ombudsman for Local Self Government Institutions, Thiruvananthapuram, evident from Ext.P6, and which is also pending consideration before the said authority, according to the petitioner. It is the further case of the petitioner that the 3rd respondent has filed Ext.P7 counter affidavit in O.P.No.833 of 2013 admitting the claim of the petitioner and fully endorsing Ext.P5 resolution passed by it.
8. It is the case of the petitioner that the site point at Pannaikadavu selected by the 2nd respondent for constructing the intake well-cum-pumping station is unsuitable owing to the presence of dirty and contaminated water. Further, the water treatment plant installed at Karumady for treating of raw water proposed to be collected from Pannaikadavu pumping station is not equipped with sufficient purification technology to get rid of impurities present in the raw water to be collected from Pannaikadavu. It is also contended by the petitioner that, in that regard, petitioner had secured Ext.P8 reply dated 26.02.2014 from the 6th respondent Food Safety Officer, Chengannoor Circle, under the Right to Information Act, 2005, wherein it is observed that the water source at Pannaikadavu is polluted and not safe as per the standards stipulated by the Bureau of Indian Standards (BIS) for drinking purpose and also the available water treatment system at the water treatment plant at Karumady is not equipped with the required resources to purify the impure and contaminated water obtained from Pannaikadavu. That apart, it is contended by the petitioner that the treatment plant situated at Karumady is equipped with only conventional treatments viz., Aeration, Rapid Mixing, Flocculation, sand filtration and chlorination, which according to the petitioner, is secured as per Ext.P9 under the Right to Information Act, dated 21.06.2012 from the Project Manager, Alappuzha Water Supply Scheme.
9. In the above said circumstances, petitioner contends that from Exts.P8 and P9, it is crystal clear that the proposal to collect raw water from Pannaikadavu is unsafe and not fit for Alappuzha Water Supply Scheme. Accordingly, it is apparent that the site point selected for collecting raw water from Pannaikadavu is not suitable since it contains organic and inorganic impurities and the same cannot be treated or purified through conventional methods of water treatment presently provided at Karumady water treatment plant.
10. According to the petitioner, the Original Petition filed before the Ombudsman referred to supra is still pending consideration before the said authority. It is thus being aggrieved by the fact situations stated above, the writ petition was filed by the petitioner seeking direction to the 2nd respondent to implement Ext.P5 resolution passed by the 3rd respondent in the light of Ext.P8 viz. the information passed on by the 6th respondent under the Right to Information Act. Even though the petitioner has sought a direction to call for the records of O.P.No.833 of 2013 pending before the Ombudsman for Local Self Government Institutions, same was allowed to be withdrawn as per the order in I.A.No.14335/2014 dated 27.10.2014.
11. The 2nd respondent has filed a counter affidavit refuting the allegations and statements made in the writ petition, and inter alia contending that the writ petition is barred by res judicata and constructive res judicata, and the petitioner has approached this court with unclean hands and suppressing material facts and the writ petition is therefore to be dismissed in limine on the said sole ground. It is the contention of the 2nd respondent that, the petitioner had filed W.P.(C) No.978 of 2012 on the very same cause of action and suffered an unfavourable verdict as per Ext.R2(a) judgment of a Division Bench of this Court dated 12.10.2012. It is the further contention of the 2nd respondent that the writ petition pertaining to Ext.R2(a) was filed alleging malafides on the part of the 2nd respondent in shifting the site of the intake well from Veeyapuram to Pannaikadavu, and inter alia praying for a writ of mandamus commanding the respondents to implement the Alappuzha Water Supply Scheme with the source of intake well-cum-pumping station at Veeyapuram within a time frame. It was also the specific contention of the petitioner that, Veeyapuram is the more suitable site for the intake well and the site at Pannaikadavu is unsuitable because of the pollution. The Division Bench, after considering the facts and circumstances has dismissed the writ petition by Ext.R2(a) judgment. Against Ext.R2(a) judgment the writ petitioner had preferred review, R.P.No.1017 of 2012 which was also dismissed by the Division Bench as per Ext.R2(b) order dated 14.11.2012. It is the further contention of the 2nd respondent that though in paragraph 5 of this writ petition, petitioner by way of passing reference, mentioned about the dismissal of W.P.(C) No.978 of 2012, the true facts are not presented before this Court and the petitioner has suppressed the material facts and sought issuance of a writ of mandamus directing the 2nd respondent to implement Ext.P5 resolution passed by the 3rd respondent. It is also pointed out by the 2nd respondent that Ext.P5 resolution is corresponding to Ext.P13 in the writ petition pertaining to Ext.R2(a) judgment and the same was thereupon considered by the Division Bench in the said judgment. Therefore, it is prayed that this writ petition is barred by res judicata and the writ petition is therefore liable to be dismissed. That apart, it is contended by the 2nd respondent that the “Augmentation of Urban Water Supply Scheme to Alappuzha Municipality and 8 adjoining Panchayats” is a project for augmentation of fresh water supply to major portions of Alappuzha District and the total production capacity of the Project is 62 MLD (Million Litres per Day) and about 5 lakhs people are benefited by the said project. It is also pointed out that 90% of the said Project is completed, which is evident from Ext.R2(c) report dated 15.07.2015.
12. That apart, it is the further contention of the 2nd respondent that the Veeyapuram site for intake well was ruled out based on reports that there is a possibility of saline intrusion. The original proposal was for supply of 40 MLD water to Alappuzha Municipality and adjoining areas and the Project was funded by HUDCO. However, that project was scrapped and instead the present Scheme was proposed with an enhanced production capacity of 62 MLD with a wider range of supply area. The officials of the 2nd respondent had conducted enquiry in the locality and found that there was saline water intrusion at certain point of time and when 62 MLD water is being pumped on a day-to-day basis, there is every possibility of saline water intrusion. Hence there was change in project plan and shifting of intake well from Veeyapuram to 6 Kms. upstream, at Pannaikadavu. It is the further contention of the 2nd respondent that these aspects have also been considered by the Division Bench in Ext.R2(a) judgment and held that shifting of the intake well to Pannaikadavu cannot be termed as malafide. Therefore, 2nd respondent contended that the allegation of malafide raised by the petitioner with regard to the shifting of the site point is baseless and squarely against the findings in Ext.R2(a) judgment.
13. With regard to the directions contained in Ext.P1 judgment, it is contended by the 2nd respondent that in the said Public Interest Litigation, it was directed that the 2nd respondent shall conduct a detailed study of whatever sites that are available for water intake including Veeyapuram and with the help of a scientific data collected and take a final decision on the site to be selected for water intake for the Alappuzha Water Supply Project. In compliance with Ext.P1 judgment, contends the 2nd respondent that, a detailed study was conducted and Ext.P3 order was issued, wherein it is found that the Veeyapuram intake well is not appropriate as an intake to supply drinking water to a quality affected area like Alappuzha Municipality and adjoining Panchayats. It was also found in Ext.P3 that the present site which is about 6.3 Kms. upstream is the best and there is sufficient flow to draw the required quantity of water for this Scheme. It is the further case of the 2nd respondent that as per Ext.P1 judgment, the 2nd respondent is directed to conduct a detailed study and select the source of intake, which direction was duly complied with. It is also contended that Contempt Case No.883 of 2007 was preferred in the writ petition for non compliance of Ext.P1 judgment and the same was disposed of on 29.10.2012 by the Division Bench in favour of the 2nd respondent holding that in view of Ext.R2(a) judgment, the controversy raised is already answered. Therefore, the 2nd respondent contended that, the contention that, Pannaikadavu site was selected for collecting raw water against the express direction contained in Ext.P1 judgment is absolutely false. It is also the contention of the 2nd respondent that Ext.R2(a) judgment was rendered after a detailed consideration of all the contentions raised by the writ petitioner. It is also contended by the 2nd respondent that Complaint No.2056 of 2012 filed before the Lok Ayukta was dismissed after Ext.R2(a) judgment, and further that, before the Lok Ayukta, petitioner had suppressed Ext.R2(a) judgment and when the same was pointed out by producing Ext.R2(a) judgment, the Lok Ayukta had dismissed the same as per Ext.R2(d) order. The petitioner had preferred a review against Ext.R2(d) order and the same is not yet admitted and therefore the 2nd respondent contends that the writ petition is a sheer abuse of process of law and the same has to be interdicted at the threshold.
14. With regard to Ext.P4 legal opinion, it is contended by the 2nd respondent that the same was also obtained by the petitioner suppressing Ext.R2(a) judgment. So also, in the complaint preferred by the petitioner before the Government alleging irregularities in the shifting of intake well to Pannaikadavu, petitioner has referred to Ext.P1 judgment alone and Ext.R2(a) judgment was fully suppressed and it was only accordingly that, petitioner was able to secure Ext.P4 and that too, without hearing the 2nd respondent.
15. When Ext.P4 legal opinion was brought to the notice of the 2nd respondent, a meeting was conducted by the Chief Minister and true facts were apprised including Ext.R2(a) judgment and thereupon Ext.P4 legal opinion was withdrawn, and accordingly the 2nd respondent was permitted to continue with the work of the water supply scheme. It is the further case of the 2nd respondent that the petitioner is aware with regard to the developments that have taken place accordingly and he has deliberately suppressed the same with the malafide intention of misleading this court. That apart, the other contentions with regard to the scientific study that is alleged to be made by the 3rd respondent before issuing Ext.P5 order was denied and further that Ext.P5 resolution was also a subject matter of consideration in Ext.R2(a) judgment and it was held that shifting of intake well cannot be termed as malafide. It is also the contention of the 2nd respondent that the 3rd respondent is not a beneficiary of the Water Supply Project in question nor the 3rd respondent is a technical expert in the matter of raw water quality assessment. Ext.P5 resolution is not binding upon the 2nd respondent, is the contention. It is also contended that the complaint filed by the petitioner before the Ombudsman for Local Self Government Institutions was withdrawn by the petitioner on 07.10.2014. In all the proceedings instituted by the petitioner, it is contended that, Ext.R2(a) judgment was suppressed and the material contents under Ext.P1 judgment alone was pointed out. 2nd respondent has also denied the contentions raised in the writ petition with regard to the quality of water at Pannaikadavu and also that since Pannaikadavu site point is an upstream, the chances of pollution is minimal. It is also the case of the 2nd respondent that the water proposed to be pumped from river Pampa does not contain any chemical or pesticide contamination. The Water Treatment Plant at Karumady is constructed with well accepted conventional technology, which is being used in India to treat River water for public water supply projects, and the design of the water treatment plant has been done as per the recommendation of manual issued by the Government of India with respect to the same, and the same technology is being used to treat river water at Kochi, Thiruvananthapuram, Thiruvalla etc.
16. It is also contended that the question with regard to contamination of water was also a subject matter in Ext.R2(a) judgment. That apart, it is contended that petitioner is adamant of selecting Veeyapuram as the site for intake well since his property will be acquired if the intake well is established at Veeyapuram, and the petitioner is filing cases after cases before various authorities as vengeance for not acquiring his property. The intention of the petitioner is malafide with the object of stalling the project in order to serve his own private interests at the cost of public interest, contends the 2nd respondent. That apart, the averments with regard to Ext.P8 report of the Food Safety Officer, it is contended by the 2nd respondent that, as per the Food Safety and Standards Act, the standards for drinking water is fixed only for mineral water and packaged drinking water, and the powers and duties of the Food Safety Officer are laid down under the Food Safety and Standards Act, 2006. It is also the contention of the 2nd respondent that Ext.P8 is not an order/report issued by the Food Safety Officer under any of the provisions of the Food Safety Act. Ext.P8 contains general and vague reply to the queries put forth by the petitioner. In fact, the Project Engineer of the 2nd respondent has submitted an application dated 05.02.2015 under the Right to Information Act, making certain queries to the Food Safety Officer regarding Ext.P8 reply furnished by him, evident from Ext.R2 (e) and thereupon 6th respondent has furnished reply dated 16.02.2015, evident from Ext.R2(f). It is the further contention of the 2nd respondent that in Ext.R2(e) a specific query was raised as to whether Ext.P8 reply was given by the office of the 6th respondent after perusing the documents available in their office, and if so, the source of such documents and requested that a copy of the same may be made available. To the said query, 6th respondent replied “not applicable” and thus it can be inferred that the 6th respondent has given Ext.P8 reply not based on any valid documents/reports. So also, it is contended that, question No.
(c) regarding whether the Food Safety Officer took sample of water from River Pampa and whether the same was send to any Government Laboratories for testing, it was replied “No”. It is thus contended by the 2nd respondent that, admittedly no sample of water was tested by the office of the Food Safety Officer before giving Ext.P8 reply. A further query with regard to the testing of water of any of the rivers flowing within the area of jurisdiction of their office, it was replied that no such test was conducted. Therefore, it is contended that Ext.P8 reply under the Right to Information Act was issued by the 6th respondent without conducting any technical study/inspection at the present site of the intake well, whereas the 2nd respondent has chosen the present site after conducting technical study by experts and considering the feasibility report. That apart, it is contended that since the Water Supply Project enables access to drinking water to the people living in Alappuzha and 8 adjoining Panchayats for the larger interest of public, it is highly essential that the Project is completed and implemented as expeditiously as possible. The grounds raised by the petitioner with reference to the facts and circumstances raised in the writ petition are also denied by the 2nd respondent.
17. The 6th respondent has filed a counter affidavit contending that Ext.P8 application was only a general statement without conducting any ground test by collecting water sample from the Pannaikadavu site. That the 6th respondent has collected samples of water from Pannaikadavu as well as Veeyapuram on 20.11.2015 in the presence of witnesses in the locality. The samples so collected were sent for chemical analysis to the Research Officer, Pathanamthitta Food Testing Laboratory, evident from Ext.R6(a). The mahazar prepared while taking water sample from Veeyapuram and the mahazar prepared while taking sample from Pannaikadavu is evident from Ext.R6(b). That apart, it is contended that the 6th respondent has addressed the Research Officer, Pathanamthitta Food Testing Laboratory, dated 20.11.2015, requesting to test the Microbiological and chemical analysis. Thereupon the District Food Testing Laboratory, Pathanamthitta has given Ext.R6(d) report with respect to the water sample collected from Veeyapuram. Thereupon it is contended by the 6th respondent that both the samples are not conforming to the desirable limit. However, water sample from Pannaikadavu is having lesser iron parts as compared to that of Veeyapuram. Moreover, the test for Bacteriology were also found to be unsatisfactory and therefore according to the water analysis test conducted, both the water samples are not fit for human consumption, however by proper physical and chemical treatment, the quality of water can be improved to the desirable limits. It is also stated in the counter affidavit that purification aspect is to be considered by the 2nd respondent for providing adequate measures for purification.
18. In spite of service of notice to the 3rd respondent, there is no appearance for the 3rd respondent.
19. Heard the petitioner appearing in person in W.P.(C) No.17148 of 2014, learned counsel appearing in the other two writ petitions, learned Special Government Pleader for the 1st and 6th respondents, learned Standing Counsel for the 2nd respondent and Adv. Liji J. Vadakedam, the amicus curiae appointed by this Court.
20. The prime contention advanced by the party in person is that after Ext.P1 judgment, there was no scientific study conducted by the 2nd respondent by employing any experts in the said field with regard to the installation of the intake well and the water treatment plant. It is also contended that the findings of the 2nd respondent with regard to the intrusion of saline water in Veeyapuram cannot be sustained since the same is reported without conducting any scientific or continuous study with respect to the same. Yet another contention advanced by the petitioner is that since the site point at Pannaikadavu for intake well is situated very close to a pilgrim centre, Mall, Commercial establishments, educational institutions etc., the contamination of the water at that site point is very high. Moreover, it is contended that about 200 mts. downstream from the said intake well point, a tributary is joining the river Pamba and the same is also causing contamination, since at the time of pumping, the water from downstream also will be drawn by the pump.
21. The contention raised by the 2nd respondent with regard to application of principles of res judicata is denied and strongly opposed by the petitioner contending that, the directions contained in Ext.P1 judgment to conduct the scientific study was not done by the 2nd respondent before issuing Ext.P3 order, choosing Pannaikadavu as the intake well point. That apart, it is also contended that the report of the 6th respondent as per Ext.P8 has become final and conclusive and since there is no appeal preferred against the same, the same has to be treated as an authoritative document for the purpose of considering the present scheme with the intake well point at Pannaikadavu and is to be scrapped. It is also contended by the petitioner that the change of MS Steel Pipes with Glass Reinforced Plastic Pipes is also because of corruption on the part of the 2nd respondent. All these aspects were taken care of in Ext.P1 judgment and therefore the directions contained therein were peremptory which was liable to be followed by the 2nd respondent. It is also contended by the petitioner that, there is no suppression of material facts with regard to Ext.R2 (a) judgment since he has mentioned about the dismissal of the writ petition pertaining to Ext.R2(a) judgment in the writ petition.
22. Learned counsel appearing for the petitioners in the other two writ petitions also pointed out that Ext.P5 resolution passed by the 3rd respondent Block Panchayat was totally ignored by the 2nd respondent while passing Ext.P3 order selecting Pannaikadavu as the intake well point. It is also contended by the learned counsel that the contention with regard to the principles of res judicata will not apply since Exts.P5 and P8 and other aspects were not considered by the Division Bench of this court in Ext.R2(a) judgment. That apart, it is also contended that when new facts are brought to the notice of the Court, the previous judgment will not stand as a stumbling block on the basis of the principles of res judicata.
23. It is also contended that the observation with regard to intrusion of salinity at Veeyapuram site cannot be said to be factually correct for the reason that two fresh water fish seed farms are functioning near to the said site and therefore if there is intrusion of salinity, the said seed farms will not be able to be maintained at the respective sites.
24. Learned counsel also contended that the water treatment plant that is presently installed is not technically perfect in order to treat the nature of contamination in the water at the intake well point at Pannaikadavu. That apart, it is also contended that it will be impossible to rectify the contamination at the said site point in view of the existence of Pilgrimage centre, educational institutions and large volume of commercial establishments situated in the area. Moreover, it is also contended that at the Veeyapuram site three major rivers of the State confluence and therefore the quality of water will be better and the treatment of the same would be comparatively easier than the water at Pannaikadavu. It is also contended by the learned counsel and the party in person that since the 3rd respondent has passed a resolution to have the intake well at Veeyapuram, it is binding on the 2nd respondent in view of the powers granted under the Panchayat Raj Act and Municipality Act. It is also contended that by virtue of the provisions contained under the Kerala Water and Sewerages Act, the 2nd respondent is bound to have consultation with the Local Self Government Institutions covered by the Scheme and then take a final decision. That apart, it is contended that none of the directions contained in Ext.P1 judgment of this Court is complied with. The directions issued therein were mandatory in nature and therefore the 2nd respondent ought to have conducted necessary scientific investigations and studies before selecting the site point of intake well, rather than conducting studies by using its own machinery for selecting Pannaikadavu as the site point.
25. Learned counsel as well as the party in person has submitted that under Article 21 of the Constitution of India, every citizen is entitled to get pure drinking water and a heavy duty is cast upon the Government to ensure that purified drinking water is supplied to its subjects. Learned counsel also have invited my attention to the Directive Principles of State Policy and specifically to Article 47 of the Constitution and contended that in order to ensure the supply of pure drinking water, appropriate purification plants will have to be provided to eliminate organic and inorganic materials harmful to health and to remove unwanted sediments and impure materials. In such a situation, learned counsel as well as the party in person contended that the technicality of res judicata should not stand in the way while ensuring the fundamental rights and other constitutional guarantees provided under the Constitution of India.
26. Per contra, learned Standing Counsel for the Kerala Water Authority contended that the entire subject matter and cause of action raised in the writ petitions were considered by the Division Bench as per Ext.R2(a) judgment and Ext.R2(b) review order, and therefore the petitioners are not entitled to re-agitate the same before this Court. Learned Standing Counsel also contended that the principles of res judicata provided under Sec.11 of the Code of Civil Procedure clearly applies to the facts and circumstances and the law involved in these cases. Therefore, the writ petitions are to be dismissed on the said sole ground. That apart, it is contended that pursuant to the directions contained in Ext.R2(a) judgment, the Water Supply Scheme Project was proceeded with sufficient speed and the entire work is completed including installation of motors, purification plant etc. etc. Since an interim order was granted by this Court in one of the writ petitions, water could not be drawn from the intake well at Pannaikadavu. The Water Supply Scheme is intended to cater the needs of the Alappuzha Municipality and eight adjoining Local Self Government Institution areas. It is also contended that now supply of pure drinking water in and around Alappuzha is a major problem faced by the people of the said area. It is also contended that the purification plant provided is having the capacity to meet the purification requirements and similar plants are being used all over India and many of the purification plants now existing in the State of Kerala. It is further contended that, so far as the 2nd respondent is concerned, in the matter of site point for intake well, it has no personal interest but by bearing in mind the larger interest of the public, and taking into account the saline intrusion at Veeyapuram only, a site point situated more than 6 Kms. upstream was chosen to eliminate any possibility of intrusion of the saline water even during adverse situations wherein water level goes down considerably. It is also contended that there is sufficient flow of water in the intake well area at Pannaikadavu throughout the year and the flow of water at such upstream level is more, when compared to the flow of water in the downstream. Moreover, it is also contended that the water required per day is 62 MLD and therefore if the site point was to be selected at Veeyapuram, consequent to the pumping of such large volume of water, intrusion of saline water into that area was more. It is further contended that the apprehensions of the petitioners that since a tributary is situated 200 mts. downstream to the intake point at Pannaikadavu, during pumping time, possibility of poor quality water, being drawn from the tributary water source since the water is flowing downwards and drawing water from such distance while pumping is not at all a sustainable argument. It is contended by the learned Standing Counsel that all these aspects were considered by a Division Bench of this Court in Ext.R2(a) judgment. Even if in the said judgment, any documents produced by the petitioners were not referred to, still the principles of Sec.11 of CPC will come into play and therefore the petitioners are not entitled to re-agitate the issues by contending that certain documents were not considered by the Division Bench in Ext.R2(a) judgment.
27. Learned Special Government Pleader appearing for respondents 1, 5 and 6, reiterated the contentions raised in the counter affidavit submitted by the 6th respondent and submitted that the apprehensions of the petitioners on the basis of Ext.P8 information provided has no basis since it is contended by the Food Safety Officer that, Ext.P8 report is only a general report and the same is not issued after conducting any proper studies by testing the quality of water. That apart, it is contended that samples were collected by the 6th respondent from both Pannaikadavu as well as Veeyapuram on 20.11.2015 in the presence of witnesses in the locality. The samples so collected were sent for chemical analysis to the Research Officer, Pathanamthitta Food Testing Laboratory. It is also contended that mahazars were prepared in accordance with law while collecting water from both sites. It is also contended that as per the report, both samples are not conforming to the desirable limits. However, the water sample collected from Pannaikadavu is having lesser iron parts as compared to that of Veeyapuram. Moreover, the tests for bacteriology were also found to be satisfactory. However, it is contended that by appropriate physical and chemical treatment, the quality of water can be improved to the desirable limits.
28. I have considered the submissions made by the party in person, the respective counsel appearing and the learned amicus curiae, perused the entire records, pleadings, and Exts.P10 to P16 produced by party in person along with I.A.No.2453 of 2016 dated 18.02.2016, on the basis of permission granted by the Court at the time of hearing.
29. The first question that is to be considered is whether res judicata applies in these cases in view of Ext.R2(a) judgment and Ext.R2(b) order in W.P.(C) No.978/2012. In order to verify the said aspect, Ext.R2(a) judgment is completely perused by me. The Division Bench of this Court had occasion to consider the vital points raised by the petitioner in the said writ petition, who is also the petitioner in W.P.(C) No.17148 of 2014. The prime point advanced by the petitioner in the said writ petition was the issue with regard to the intrusion of saline water at Pannaikadavu, the change of water supply scheme from the original scheme proposed by the 2nd respondent, Ext.P13 decision of the Pulikeezhu Block Panchayat by which the Block Panchayat had requested the Government to put up the intake well at Veeyapuram, the chances of drawing water from a tributary water source situated 200 mts. downstream, the capacity and the technology of the water treatment plant, the impure quality of water at Pannaikadavu, non-compliance with the directions contained in Ext.P1 judgment, the use of High Density Polythene Pipes (HDPE) and the issue with regard to the direction contained in Ext.P1 judgment with regard to preference of MS Steel Pipes to Glass Reinforced Plastic Pipes (GRP) were all matters considered by the Division Bench of this Court in Ext.R2(a) judgment. By taking into account all the aforesaid aspects in Ext.R2(a) judgment, it was found that it may not be possible for this court to interfere with the choice of pipes for a particular Project. It was also held that this Court cannot undertake such an enquiry in a writ petition to find out the suitability of the pipes used for the Project.
30. In Ext.R2(a) judgment, it was also found that the work has proceed to a large extent and in public interest, it is not possible for this court to interfere in a major Water Supply Project and stall it due to reasons which are not established. It was also found that having verified the records in the case, the Court was satisfied that the respondents have complied with the observations made in Ext.P5 judgment [Ext.P1 in W.P.(C) No.17148/2014]. That, though there is delay in implementation of the project, as it can be seen that, there had been a change in the entire scheme on account of the change in respect of the funding agency as well as the project as a whole. It was also noted by this court that the work was proceeding in a fast pace, according to KWA and expressed its hope that the work will be completed at the earliest so as to augment fresh water supply to a major portion of Alappuzha district. That apart, it was also found by this Court that the petitioners cannot insist that their property should be acquired for the above project and no such legal right exists in favour of the petitioner.
31. One of the main objectives of the principles of res judicata is to prohibit multiplicity of proceedings by re- agitating the issues concluded with the same cause of action between the same parties or their representatives and decided by a competent court. That apart, when a particular issue was raised in a writ petition by producing necessary documents and when the court even if did not grant any relief based on the said documents, the reliefs claimed basing on such documents is deemed to be refused by the court, in terms of the principles of res judicata. That apart, the principles of res judicata also takes care of 'might and ought rule' which thus means if any of the aspects which was relevant and necessary for consideration in the earlier writ petition has not been raised by the petitioner, the petitioners cannot re-agitate the very same cause of action based on such documents and pleadings unless the same could not be produced in spite of due diligence, which situation is not available here.
32. In order to make an attempt to tide over the situation with regard to the issue of res judicata raised by the 2nd respondent, petitioners have pressed into service a fresh resolution passed by the 3rd respondent in 2014 pursuant to the direction contained in Ext.P4 judgment in W.P.(C) No.15849 of 2014 dated 03.07.2014, of which petitioner in W.P.(C) No.19455 of 2015 is the petitioner and reiterated its stand to have the intake well point at Veeyapuram and therefore a fresh cause of action is arising from the said documents. Curiously enough, on a perusal of Ext.P14, it is clear that, only Ext.P1 judgment was produced and Exts.R2(a) judgment and R2(b) order in review were not brought to the notice of the learned Single Judge. None of the documents produced by the party in person along with a fresh application, will not provide any new cause of action to the petitioner. I am not at all impressed to entertain such a contention, since as per Ext.P13 in the said writ petition, the 3rd respondent has conveyed its intention to have the site point at Veeyapuram, which was considered by this Court while rendering Ext.R2(a) judgment and entered a specific finding with regard to the same. Therefore, merely because a new resolution is passed by the Panchayat in succession to the earlier one, the same cannot be treated as a fresh cause of action enabling the petitioners to overcome issue concerning res judicata. So also, petitioners alone are not the beneficiaries of the project but larger interest and rights of public is involved and therefore Ext.R2(a) judgment is a judgment in rem binding on all and therefore the same is binding on the petitioners in the other two writ petitions, even though they were not parties to the same. It is true, principles of res judicata is rest upon technicality, but based on public policy and on inevitable requirement to sustain public faith in the justice delivery system. Moreover, I find that the entire project is complete and the project could not be implemented/executed because of the stay granted by this Court while admitting W.P.(C) No.17148 of 2014, prohibiting the 2nd respondent from taking water from the intake well at Pannaikadavu.
33. One disturbing factor that has come to my notice so far as W.P.(C) No.17148 of 2014 is concerned is that, even though petitioner has mentioned about Ext.R2(a) judgment, the judgment was not produced for the perusal of this Court. In my view, the said act of the petitioner is bordering suppression of material facts from the purview of this Court. This is more so, since the petitioner is re-agitating the issue that was concluded by this Court in Ext.R2(a) judgment. By the said act, while the matter was considered for the purpose of interim relief, this Court did not have the advantage of appreciating the real issues that were considered by this court in Ext.R2(a) judgment. That apart, I find from the records that, earlier W.P.(C) No.17148 of 2014 was disposed of by this court vide its judgment dated 11.11.2014, on the basis of the limited relief sought for by the petitioner seeking direction to the 2nd respondent to consider Ext.P5 resolution passed by the 3rd respondent Panchayat and to issue necessary orders on the basis thereof, as expeditiously as possible and at any rate within a period of one month from the date of receipt of a copy of that judgment. Later, petitioner had filed R.P.No.944 of 2014 in the said writ petition and secured modification of the said judgment and Ext.P8 was also directed to be taken into consideration. Confronted with such situations, 2nd respondent had filed R.P.No.118 of 2015 in the said writ petition by which Ext.R2(a) judgment was brought to the notice of this court and sought review of the judgment. Accordingly the judgment was reviewed after verifying and being satisfied with the situations contained in Ext.R2(a) judgment vis-a-vis the facts of this case. It is thus, this writ petition was posted for fresh consideration and has come up before me along with other writ petitions. So also, it is pertinent to note that the judgment in R.P.No.118 of 2015 was taken in appeal by the petitioner by filing W.A.No.935 of 2015 which was also dismissed. Therefore, viewing the subject matter, the cause of action, and facts in issue of these writ petitions, in any angle, I am of the considered opinion that these writ petitions are clearly barred by the principles of res judicata, thereby the petitioners are estopped from raising the very same contentions which were concluded in the earlier judgment.
34. By taking into account all these factors and circumstances, I am of the considered opinion that the writ petitions are liable to be dismissed since the same is barred by the principles of res judicata in view of the judgment rendered by this court in W.P.(C) No.978 of 2012 and the order in R.P.No.1017 of 2012 in W.P.(C) No.978 of 2012 dated 12.10.2012 and 14.11.2012 respectively.
35. So far as W.P.(C) Nos.19455 & 38623 of 2015 are concerned, same are based on similar facts that are raised in the W.P.(C) No.17148 of 2014, the facts of which were narrated by me supra. There also the basic contentions raised by the petitioners are that the mandatory directions contained in Ext.P1 judgment have not been complied with by the 2nd respondent and further that the intake well point at Pannaikadavu is contaminated and the suitable site for the intake well point should have been at Veeyapuram. Moreover, transformation of the earlier scheme into new scheme, change of nature of pipes and quality, corruption, resolution of Block Panchayat etc. etc. are agitated by the petitioners in the said writ petitions also. These are all aspects discussed by this court while considering the other writ petition. But in W.P.(C) No.19455 of 2015, petitioner seeks also a relief to include Kadapra and Niranam Grama Panchayats under the project, which is quite impossible in the light of tender invited by specifically pointing out the area of the scheme and also due to the fact that the project so floated is complete in all respects. In such circumstances, the said relief also cannot be considered. Therefore, the said writ petitions have no independent legal existence concerning the facts and therefore the same are also liable to be dismissed, and accordingly I do so.
36. However, I am tempted to add that, in view of the fundamental rights guaranteed under Article 21, the directives contained under the Directive Principles of State Policy and the fundamental duties enshrined under Part IV and IV-A, respectively of the Constitution of India, all necessary factors are to be looked into by the State and its instrumentalities in order to ensure that pure drinking water is supplied to the people covered under the Water Supply Scheme. Therefore, even when the intake well at Pannaikadavu is used and the purification plant now installed is used to purify the water from the intake well, later on, if it is found that purification is not proper, the respondents are duty bound to ensure that appropriate steps are taken to rectify purification plant to ensure supply of pure drinking water. State of Kerala is rich with large number of natural water resources running throughout the year. There is a fundamental duty encompassed on every citizen to ensure that the perennial water sources are not interfered in any manner so as to affect its pristine quality. It is trite that whenever there is a fundamental right enjoyed by citizens, equal duty and responsibilities are cast upon the citizens to see that the fundamental rights guaranteed are not in any manner violated, to the detriment of the public at large. The State Government is also bound to see that its natural water sources are not polluted by putting and dumping waste, so as to ensure its purity and pristine quality. Therefore, I hope that the State Government and its instrumentalities will ensure supply of pure drinking water to the petitioners as well as the other beneficiaries of the project.
37. Before I part with the judgment, I record my appreciation to the assistance rendered by Adv. Liji J. Vadakedam, the learned amicus curiae appointed by this Court, in concluding the issues raised in these writ petitions.
With these observations, the above writ petitions are dismissed.
Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
23.02.2016