W.P.(C) No.3250/2022 & connected case

W.P.(C) No.3250/2022 & connected case 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944** ## **WP(C) NO. 3250 OF 2022** ## **PETITIONER:** SHAFIQ ALUNKAL, AGED 43 YEARS SHAFIQ ALUNKAL, AGED 43 YEARS, SON OF ALAVIKUTTY, RESIDING AT ALUNKAL HOUSE, AKAMPADAM VILLAGE, ERANJIMANGAD-679329. KOZHIKODE, PIN - 679329 BY ADVS. P.B.SAHASRANAMAN T.S.HARIKUMAR ## **RESPONDENTS:** 1 THE DISTRICT COLLECTOR KOZHIKODE COLLECTORATE, CIVIL STATION P.O., KOZHIKODE DISTRICT, PIN - 673 020. KOZHIKODE, PIN - 673020 2 THE TAHASILDAR THAMARASSERY TALUK OFFICE, KOZHIKODE DISTRICT, PIN - 673 573. KOZHIKODE, PIN - 673573 3 THE VILLAGE OFFICER KOODARANHI VILLAGE, KOZHIKODE DISTRICT, PIN - 673 603. KOZHIKODE, PIN - 673603 4 KOODARANHI GRAMA PANCNAYAT KOODARANHI GRAMA PANCHAYATH KOODARANHI P. O., KOZHIKODE DISTRICT, PIN - 673 603, REPRESENTED BY ITS SECRETARY KOZHIKODE, PIN - 673603 5 RAJAN.T.V. W.P.(C) No.3250/2022 & connected case 2 AGED 67 YEARS 'SAMSKRITHI', POTTAMMAL, KUTHIRAVATTOM-673016 KOZHIKODE DISTRICT. KOZHIKODE, PIN - 673016 6 JIJU K.V ( SOUGHT TO BE IMPLEADED ) SON OF KUNJUVARKEY, RESIDING AT MANIYAMBRAYIL, KALLIPPARA, KAKKADAM POYIL P.O, KOODARANJI, KOZHIKODE DISTRICT. ( SOUGHT TO BE IMPLEADED ) BY ADVS. ADVOCATE GENERAL OFFICE KERALA K.P.SUSMITHA C.M.MOHAMMED IQUABAL PEEYUS A. KOTTAM P.ABDUL NISHAD(K/537/2016) RAIHANATH T.H.(K/000241/2019) VINOD SINGH CHERIYAN(K/000197/1983) T.M.KHALID(K/000047/2013) ## **OTHER PRESENT:** 0 GP P.S.APPU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.10.2022, ALONG WITH WP(C).22952/2021, THE COURT ON 26/10/2022 DELIVERED THE FOLLOWING: W.P.(C) No.3250/2022 & connected case 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944** ## **WP(C) NO. 22952 OF 2021** ## **PETITIONER:** RAJAN T.V. AGED 67 YEARS S/O. T.V.APPUTTY, SAMSKRITHI, POTTAMMAL, KUTHIRAVATTOM, KOZHIKODE DISTRICT. BY ADVS. C.M.MOHAMMED IQUABAL REHANA SHUKKUR ANJALI G.KRISHNAN P.ABDUL NISHAD RAIHANATH T.H. ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 2 THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001. 3 THE DISTRICT COLLECTOR, KOZHIKODE, COLLECTORATE, CIVIL STATION P.O., KOZHIKODE DISTRICT, PIN-673020. 4 THE TAHSILDAR, THAMARASSERY TALUK OFFICE, KOZHIKODE DISTRICT, PIN-673573. 5 THE VILLAGE OFFICER, KOODARANHI VILLAGE, KOZHIKODE DISTRICT, PIN673603. 6 KOODARANHI GRAMA PANCHAYATH, KOODARANHI P.O., KOZHIKODE DISTRICT, PIN-673603, REP. BY ITS SECRETARY. 7 PVR NATURE RESORT, W.P.(C) No.3250/2022 & connected case 4 KARIMBU ROAD, KAKKATANPOYIL P.O., KOZHIKODE DISTRICT, PIN-673604, REP. BY ITS MANAGER. BY ADVS. VINOD SINGH CHERIYAN PVR NATURE RESORT, (Party-In-Person) T.M.KHALID K.P.SUSMITHA T.S.HARIKUMAR(K/782/1989) G.N.DEEPA(K/001665/1999) G.P. P.S.APPU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.10.2022, ALONG WITH WP(C).3250/2022, THE COURT ON 26/10/2022 DELIVERED THE FOLLOWING: W.P.(C) No.3250/2022 & connected case 5 **V.G.ARUN, J. ----------------------------------------------W.P(C).No.3250/22 & 22952 of 2021 ----------------------------------------------Dated this the 26[th] day of October, 2022** ## **JUDGMENT** The petitioner is the owner of 36.5293 ares of land comprised in Sy.No.150/1377 in Thamarassery village, Koodaranji Grama Panchayat. The property lies adjacent to a larger extent of land owned by one P.V.Anwar and other. The owners are conducting a resort in the property under the name and style PVR Nature Resort. There were complaints regarding obstruction of the free flow of water through a stream cutting across the property in which PVR Nature Resort is functioning and divertion of the water to check dams constructed in the property. Alleging that the authorities are hesitating to take action against the illegal obstruction, the fifth respondent approached this court in W.P.(C) No.29037/2020 and by Exhibit P2 judgment the District Collector, Kozhikode/first respondent was directed to consider petitioner's representation, along with reports of the W.P.(C) No.3250/2022 & connected case 6 Village Officer and the Assistant Engineer, LSGD and pass orders, after affording opportunity of hearing to the petitioner, the Koodaranji Grama Panchayat and PVR Nature Resort. Accordingly, the District Collector conducted the hearing and passed Ext.P3 order, directing demolition of the four check dams within one month, failing which, the Secretary of Koodarnaji Grama Panchayat was to demolish the constructions and recover the expenses from the owners of the resort. The petitioner is seeking to challenge Ext.P3 order on the premise that the roads constructed over the bunds are used by the petitioner and nearby property owners for reaching their properties and hence, the proposed demolition will cause substantial prejudice to them. 2. Adv.P.B.Sahasranaman, learned Counsel for the petitioner, contended that the impugned order is passed without noticing that the bunds and check dams are constructed on water sources in a private land and therefore stands exempted from the restrictions under the Kerala Irrigation and Water Conservation Act 2003('the Act' for short). To elaborate upon this argument, attention was drawn to the definition of 'stream' at Section 2(an) and that of 'water course' at Section 2 (aq) of the Act. It is submitted that since the stream across which the check dams is constructed is flowing as a temporary channel & connected case 7 W.P.(C) No.3250/2022 inside private land, it does not fall within the meaning of 'stream' or 'water course' as defined under the Act. If so, , construction of the check dam, bund or road across the stream or water course does not require the prior sanction mandated in Sections 4 and 5 of the Act. Further, if the check dam or the bund is taken to be an 'irrigation work', the Government can, at best, contend that the ' irrigation work' is vested with the Government by virtue of Section 79 of the Act and cannot straight away order demolition of the construction. Alternatively, it is contended that the check dam and bund is built for the purpose of rain water harvesting and the water collected in the check dam is being utilised by the local residents during summer season. The decision in _Mullaperiyar Environmental Protection Forum v. Union of India [_ 2006 (3) SCC 622], is pressed into service to contend that, increase in the water level by construction of the bunds will not have any adverse impact on the flora and fauna. The decision in **Shabana v. State of Kerala (2022 (4) KLT 823)** , is relied on to argue that the impugned order is passed in violation of the procedure prescribed under the Disaster Management Act, 2005. 3. Adv. C.M.Mohammed Iquabal, learned Counsel for the fifth respondent, questioned the locus standi of the petitioner to W.P.(C) No.3250/2022 & connected case 8 challenge Ext.P3 order. It is contended that having purchased the property after issuance of Ext.P3 order and in no way being affected, the petitioner has no legal right to challenge the order. 4. It is submitted that the fifth respondent had led the crusade against the check dams, since existence of the water filled check dams on the top of a hill posed imminent threat to the people residing in the lower reaches. Even a minor breach triggered by an earth quake or tremor can lead to a land slide resulting in loss of life and properties. In this regard, attention was drawn to the reports of the Village Officer, the Panchayat Secretary and the Assistant Engineer, LSGD. It is submitted that stream, across which the check dams are constructed, originates from Kakkadampoyil, flows down hill and ultimately merges with Iruvanjippuzha, a tributary of Chaliyar River. As no action is forthcoming, in spite of Ext.P3 order, the petitioner has filed W.P.(C) No.22952/2021, praying for a direction to demolish the check dams immediately. 5. Adv. Peeyus A.Kottam, learned Counsel appearing for the additional sixth respondent, reiterated the contentions urged by the fifth respondent and additionally made the following submissions; The construction of PVR Nature Resort itself is in patent W.P.(C) No.3250/2022 & connected case 9 violation of the provisions of the Land Assignment Act. The assignment of that land being for agricultural purposes, the conduct of tourism resort is illegal. The fact that the petitioner is a permanent resident of Malappuram District, whereas the disputed property is situated in Calicut District, is sufficient to infer that the petitioner is only a name lender of P.V.Anwar. The deliberate omission to implead PVR Nature Resort of P.V.Anwar as parties in the writ petition indicates that the petitioner is indulging in shadow boxing. In the District Disaster Management Plan prepared by the District Disaster Management Authority, Kakkadampoyil Desom in Koodaranji Village is demarcated as 'high stock medium zonation'. 6. Learned Government Pleader, Adv.P.S.Appu, contended that the the impugned order was issued after considering all relevant aspects, including the provisions of the Kerala Irrigation and Water Conservation Act 2003. As per Section 3 of the Act, 'water courses' and 'water in water courses' is property of the Government. The Government is bound to conserve and regulate the use of such water courses and the water in the water courses for irrigation, generation of electricity and incidental purposes. As per Sections 4 and 5 of the Act, water & connected case 10 W.P.(C) No.3250/2022 can be extracted and reservoirs, anicut or weirs, can be construed only with prior sanction from the Government or the authorised authority. The check dams in the land belonging to PVR Nature Resort was constructed without prior permission. All authorities have reported that the construction is obstructing the free flow of water and posing imminent threat. Therefore, the first respondent was bound to take remedial measures by directing demolition of the check dams and appurtenant structures. 7. Indisputably, the petitioner purchased the property after Ext.P3 order was passed. Other than a vague averment that the roads constructed over the pipes laid for drawing water to the check dams is beneficial for the petitioner and other residents of the area, it is not stated as to how the petitioner is prejudiced by demolition of the check dams situated in the land belonging to PVR Nature Resort. The fact that neither PVR Nature Resort or P.V.Anwar arrayed as respondents, lends credence to the argument that the writ petition is filed at the instance of the affected persons. 8. The materials available on record, reveals that the check dams are constructed in the upper reaches of a hill, that too on a rocky surface. The officials have consistently opined W.P.(C) No.3250/2022 & connected case 11 that if the check dams will get inundated during rainy season, the possibility of a calamity cannot be ruled out. The factual scenario being as above, the District Collector was fully justified in directing demolition of the check dams. 9. Another aspect of importance is that by virtue of Section 3 of the Act, 'water' and 'water in water courses' is Government property. Construction of reservoirs, anicut and weirs over and across water courses can be only in accordance with Section 5. Being contextually relevant, section 5 is extracted here under; “5. Regulation on construction of reservoirs , anicut etc.- (1) No person or agency or local authority shall construct any reservoir or anicut or weir or any other permanent structure in or across any water course for the purpose of diverting water therefrom except with the previous sanction of the Government or such authority as may be authorised by the Government in that behalf and subject to such terms and conditions as the Government or such authority may impose.” Going by the provision, no reservoir, anicut, or weir or other permanent structure can be constructed in or across any water course, without prior sanction from the Government or the authorised authority. Admittedly, the check dams and appurtenant structures were constructed without the Government's sanction. The contention that since the constructions are inside the property of PVR Nature Resort, & connected case W.P.(C) No.3250/2022 12 Sections 3 and 5 have no application can only be rejected in the face of the official reports that the stream originates from Kakkadampoyil, flows down hill and finally reaches the Iruvanjipuzha. The contention that the check dams are constructed for the purpose of rain water harvesting cannot also be countenanced the petitioner being a third party. 10. As the water course belongs to the Government, the doctrine of public trust also come into play. The doctrine of public trust enjoins the Government to protect the resources for the enjoyment of the general public, rather than to permit their use for private ownership or commercial exploitation to satisfy the greed of a few. In _**Fomento Resorts & Hotels Ltd. v. Minguel Martins**_ [ _**2009) 3 SCC 571]**_ , referring to the public trust doctrine, the apex court held that ; “ a landowner or lessee and a water right holder has an obligation to use such resources in a manner as not to impair or diminish the people's rights and the people's long-term interest in that property or resource, including down slope lands, water and resources” ## In **Association for Environment Protection v. State of** **Kerala [2013) 7 SCC 226** ] the Apex Court had occasion to observe that the people of the State of Kerala , which is also known world over as “God's own country' are very much & connected case 13 W.P.(C) No.3250/2022 conscious of the imperative of protecting environment and ecology in general, and the water bodies, which are an integral part of their culture and important source of their livelihood, in particular. 11. The impugned order is also the result of untiring efforts to protect environment and ecology and viewed in that manner, warrants no interference. To borrow the words of William Blake “Let the greenwoods laugh with the voice of joy, And the dimpling stream run laughing by” For the reasons aforementioned, the writ petition is dismissed. ## **W.P.(C)22952/2021** This writ petition is filed by the person at whose instance Ext.P12 judgment was rendered, resulting in Ext.P13 order, directing demolition of the check dams illegally constructed in the property of the seventh respondent. As per the judgment in W.P.(C) No.3250/2022, I have rejected the challenge against Ext.P13. In such circumstances, the seventh respondent is bound to demolish the structures, failing which the Secretary of W.P.(C) No.3250/2022 & connected case 14 the sixth respondent Panchayath is bound to do the work and recover the expenses from the seventh respondent. Needless to say that, since Ext.P13 order is dated 30/8/2021, the direction in Ext.P13 order has to be complied forthwith. Ordered accordingly. Sd/- ## **V.G.ARUN, JUDGE** dpk W.P.(C) No.3250/2022 & connected case 15 ## **APPENDIX OF WP(C) 22952/2021** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE RENEWAL CERTIFICATE ISSUED BY THE DISTRICT REGISTRAR (GENERAL), ERNAKULAM DATED 20.10.2020. Exhibit P2 THE TRUE COPY OF THE RELEVANT PAGE OF FOOD IMPACT MAP, LISTING THE LSGI'S OF KOZHIKODE DISTRICT "VERY SEVERELY DAMAGED" BY FLOODS. Exhibit P3 THE TRUE COPY OF THE RELEVANT PAGE OF THE FLOOD IMPACT MAP SHOWING THE DISASTER PRONE MAP OF KOZHIKODE DISTRICT, MARKING THE "HIGH HAZARD ZONE" SUSCEPTIBLE TO LANDSLIDES. Exhibit P4 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY MR.JIJU K.V. BEFORE THE SECRETARY TO KOODARANHI GRAMA PANCHAYATH DATED 1.9.2018. Exhibit P5 THE TRUE COPY OF THE REPRESENTATION BEFORE THE PANCHAYATH DEPUTY DIRECTOR OF VIGILANCE SQUAD DATED 28.11.2018. Exhibit P6 THE TRUE COPY OF THE REPRESENTATION FILED BY MR. MURUKESH NARENDRAN BEFORE THE 3RD RESPONDENT DATED 2.9.2019. Exhibit P7 THE TRUE COPY OF THE REPRESENTATION FILED BY MR.MURUKESH NARENDRAN BEFORE THE 3RD RESPONDENT DATED 18.9.2018. Exhibit P8 THE TRUE COPY OF THE REPORT SUBMITTED BY THE ASSISTANT ENGINEER, LSGD KOODARANHI SECTION DATED 11.11.2019. Exhibit P9 THE TRUE COPY OF THE REPORT OF THE SECRETARY OF THE 6TH RESPONDENT GRAMA PANCHAYATH DATED 13.11.2019. Exhibit P10 THE TRUE COPY OF THE REPORT FILED BY THE VILLAGE OFFICER, KOODARANHI DATED 20.1.2020. Exhibit P11 THE TRUE COPY OF THE REPRESENTATION 16 W.P.(C) No.3250/2022 & connected case SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 2.9.2019. Exhibit P12 THE TRUE COPY OF THE JUDGMENT IN WP(C) NO.29037/2020 OF THIS HON'BLE COURT DATED 22.12.2020. Exhibit P13 THE TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 30.8.2021. Exhibit P14 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 4.10.2021. Exhibit P15 THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 6TH RESPONDENT DATED 4.10.2021. W.P.(C) No.3250/2022 & connected case 17 ## **APPENDIX OF WP(C) 3250/2022** PETITIONER EXHIBITS Exhibit.P.1. PHOTOGRAPHS OF THE SAID WATER COURSE WHICH IS NEAR TO THE PROPERTY OF THIS PETITIONER WHICH IS BEING USED BY THE PETITIONER AND MANY OTHERS Exhibit.P.2 COPY OF THE SAID JUDGMENT IN W.P.(C)NO. 29037 OF 2020, DATED 22-12-2020 Exhibit.P.3 TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT, FILE NO. DCKKD/10926/2017-L4, DATED 30-08-2021 Exhibit.P.4 TRUE COPY OF THE REPRESENTATION FILED BY THE LOCAL RESIDENTS TO THE 1ST RESPONDENT 27-01-2022