Kunnukara Grama Panchayat v. State of Kerala and others

W.P.(C).No.17729/21 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943 WP(C) NO. 17729 OF 2021** ## **PETITIONER:** THE KUNNUKARA GRAMA PANCHAYAT KUNNUKARA P.O., ERNAKULAM DISTRICT-683 578, REPRESENTED BY ITS SECRETARY, MR.JAIN VARGHESE PATHADAN. BY ADVS. ANOOP.V.NAIR DEVI P. A.K.ANANDA KRISHNAN ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY, IRRIGATION DEPARTMENT AND WATER RESOURCES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 013. 2 THE CHIEF ENGINEER, OFFICE OF THE CHIEF ENGINEER, IRRIGATION DEPARTMENT, THIRUVANANTHAPURAM-695 013. 3 THE DIRECTOR OF PANCHAYATS, OFFICE OF THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM-695 001. 4 THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANADU, ERNAKULAM-682 030. W.P.(C).No.17729/21 2 - 5 THE EXECUTIVE ENGINEER, OFFICE OF THE E.E., IRRIGATION DIVISION, COLLECTORATE, KAKKANAD, ERNAKULAM DISTRICT-682 030. - 6 THE ASSISTANT EXECUTIVE ENGINEER, OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, IRRIGATION DIVISION, ERNAKULAM DISTRICT-682 030. - 7 THE ASSISTANT ENGINEER, OFFICE OF THE A.E., IRRIGATION SECTION, ALUVA, ERNAKULAM DISTRICT-683 571. - 8 MR.B.SUNDARAN, S/O.BALAKRISHNAN, RESIDING AT CHAITHANYA, VALLAM, NEDUVATHOOR VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT-691 506. - 9 THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADV SHRI.S.KANNAN, SENIOR G.P. ## **OTHER PRESENT:** S.KANNAN-SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.02.2022, THE COURT ON 22.02.2022 DELIVERED THE FOLLOWING: W.P.(C).No.17729/21 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(c).No.17729 of 2021** **= = = = = = = = = = = = = = = = Dated this the 22[nd] day of February, 2022** ## **JUDGMENT** ## 1.This writ petition is filed seeking the following reliefs:- “i)issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 4 to take immediate action to stop the illegal river sand mining, dredging, excavation/mining and removal of river sand from the river passing through the limits of the Petitioner panchayat by the respondents No. 5 to 8 ii) issue a writ of mandamus or any other appropriate writ, order or direction compelling the respondents 1 to 4 to take immediate action to seize the river sand dredged and removed from the river and stocked by the respondent No. 8 at the petitioner's property and to take immediate action against the respondents No. 5 to 8 for illegally dredging and removing river sand from Ammanathupallam area near Purappillykavu regulatory Bridge and from other areas under the petitioner Panchayat. Iii)issue a writ of mandamus or any other appropriate writ, order or direction compelling the respondents 2 to 4 to ensure that the dredging work being carried out by the respondents No. 5 to 8 is effectively monitored so as to ensure that only clay, mud clayey sand and other debris is excavated by the respondents No. 5 to 8 and no river sand is being dredged or removed from the areas under the W.P.(C).No.17729/21 4 petitioner Panchayat, especially from the Ammanathupallom Bhagom near Purappillykavu regulatory Bridge and also direct the respondents 5 to 8 not to sell or issue tenders in respect of selling of river sand dredged from the areas under the Panchayat and not to remove the river sand from the areas.” - 2.Heard the learned counsel for the petitioner and the learned Government Pleader. 3.It is the contention of the petitioner that under the guise of Exhibit P1 circular of the 3[rd] respondent dated 8.11.2018, respondents 5 to 8 are carrying out extensive illegal mining of river sand from the vicinity of the Purappillikavu Regulator Cum Bridge near Ammanathupallam. It is stated that respondents 5 to 8, who had been permitted only to remove the debris and the silt from near the shutters of the regulator, are carrying out dredging and collecting of sand indiscriminately under the guise of the said circular. It is stated that the illegal sand mining is affecting the groundwater table and will lead to water shortage in the Panchayat. It is further submitted that the 5[th] respondent is W.P.(C).No.17729/21 5 carrying out works much in excess of Exhibit P2 agreement entered into between the 8[th] and 5[th] respondent. It is submitted that the Panchayat, in an emergency session held on 5.7.2021, had decided to cancel the permission granted to respondents 5 to 8 for storing the sand in Panchayat property and had adopted Exhibit P3 resolution for the said purpose. 4.A counter affidavit has been placed on record by the 5[th] respondent, wherein it is submitted that the contention raised in the writ petition are completely erroneous, factually incorrect and devoid of merits. It is submitted that it is not on the basis of Exhibit P1 that Exhibit P2 agreement has been entered into and that Exhibit R5(a) Government Order had been issued on 16.6.2018 constituting an Empowered Committee to prepare standard operating procedure for desiltation of rivers pursuant to the 2018 floods. It is further stated that by Exhibit R5(b) dated 8.11.2019, sanction for desiltation was granted specifying the amount of desiltation required as well. It is further submitted that at paragraphs 8 to 10 as follows:- W.P.(C).No.17729/21 6 “8. Considering all these, the Kerala Engineering Research Institute (hereinafter referred to as KERI, for short and convenience), a Government Institution which provides services in the fields of investigation, testing, hydraulic - model studies, quality control and research and development in the field of Civil Engineering and Water Resource Engineering, in particular, was directed to conduct a field study and investigation regarding the de-siltation process. 9. Based on the study report submitted by the KERI, the Government of Kerala by G.O dated 21.12.2019 has accorded administrative sanction to commence de-siltation process including removal of debris from the flood affected rivers. A true copy of the G.O dated 21.12.2019 is produced herewith and marked as Exhibit R5 (c). As is seen from Exhibit R5 (c), it was contemplated therein that the desilted sand shall be tendered under the leadership of the concerned District Collector and the amount incurred through the tender process shall be remitted to the Treasury and 20% of the amount shall also be remitted to the River Management Fund of every District. 10.Accordingly, as contemplated in Exhibit R5(c), tender was invited on the basis of standard operating procedure, as contemplated under G.O. dated 26.09.2017. The 8[th] respondent being the successful bidder was awarded with the work. A true copy of G.O dated 26.09.2017 is produced herewith and marked as Exhibit R5(d). As is seen from Exhibit R5 (d), all desiltation works have to be monitored by a Committee chaired by District Collector and the representatives from Revenue Department, Irrigation Department, Police, Department of Mining and Geology, W.P.(C).No.17729/21 7 Forest Department, Public Works Department and from the Transport Department. Therefore, all the activities carried out by the successful contractor at the site are being monitored by the Monitoring Committee.” 5.It is contended that the 8[th] respondent is removing the silt with intimation to local police authorities with knowledge of the officials of the Department of Mining and Geology and using passes issued by the Irrigation Department. It is stated that an amount of Rs.76,36,895/- along with GST towards cost of desilted material was agreed to be paid by the 8[th] respondent. The 8[th] respondent has already remitted an amount of Rs.30 lakhs, but only 25% of the work could be completed. The contention that excess sand extraction is being carried out without the supervision of the Government and the department is specifically denied and it is contended that the orders passed by the Government are perfectly in order and that the Disaster Management Authorities are also fully empowered to pass orders as has been done in the instant case. It is further submitted that any obstruction caused by the Panchayat is completely unsustainable and is liable to be dealt with in accordance with law. W.P.(C).No.17729/21 8 - 6.The learned Government Pleader places reliance of a decision of this Court in **Vijayan M.H and others v. State of Kerala and others** [2021 (6)KHC 760] justifying the similar action with regard to the removal of sand from the Thottappally Pozhi mouth under competent orders under the Disaster Management Act. - 7.I have considered the contentions advanced at considerable length. It is the specific case of the respondents that it was after conducting all due studies and after providing specific safeguards that the 8[th] respondent has been authorised by Exhibit P2 for removal of the sand from the area under the jurisdiction of the petitioner Panchayat. Reliance is also placed on competent orders passed by the Government under the provisions of the Disaster Management Act. - 8.In the above view of the matter, I am of the opinion that the reliefs sought for in the writ petition cannot be granted. The writ petition fails and the same is accordingly dismissed. W.P.(C).No.17729/21 9 However, it is made clear that in case the petitioner has any grievance with regard to the excess mining of the sand apart from what is authorised by the Government Orders, the petitioner may make an appropriate representation before the Irrigation Department of the Government which will be considered in accordance with law. **==> picture [27 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.17729/21 10 ## **APPENDIX OF WP(C) 17729/2021** PETITIONER EXHIBITS - Exhibit P1 TRUE COPY OF THE CIRCULAR NO.C215471/2018 DATED 08.11.2018 ISSUED BY THE 3RD RESPONDENT, ISSUED WITH A DIRECTION TO ALL THE SUBORDINATE AUTHORITIES TO TAKE ACTION IMMEDIATELY TO REMOVE THE MUD AND DEBRIS ACCUMULATED IN THE RIVER BEDS AND IN THE RIVER PURAMBOKES. - Exhibit P2 TRUE COPY OF THE AGREEMENT DATED 18.05.2020 MADE BETWEEN 8TH RESPONDENT AND THE 5TH RESPONDENT FOR THE EXECUTION OF THE WORK OF DESILTATION OF PURAPPILLIKKAVU REGULATOR CUM BRIDGE. - Exhibit P3 TRUE COPY OF THE MINUTES OF THE EMERGENCY SESSION OF THE PETITIONER PANCHAYAT DATED 05.07.2021. True copy PS to Judge