Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN THURSDAY, THE 16TH DAY OF MARCH 2023 / 25TH PHALGUNA, 1944 WP(C) NO. 4163 OF 2020 PETITIONER:
BABU JOSEPH PUTHENANGADI AGED 60 YEARS, S/O. LATE P. P. JOSEPH, KSRTC ROAD, SOUTH CHALAKUDY, PIN - 680 307.
BY ADV SMT. ASHA BABU RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 THE DISTRICT COLLECTOR THRISSUR, PIN - 680 003.
3 THE REVENUE DIVISIONAL OFFICER IRINJALAKKUDA, PIN - 682 121.
4 THE KERALA LAND DEVELOPMENT CORPORATION THRISSUR, REPRESENTED BY ITS AUTHORISED OFFICER, PIN - 680 020.
5 THE AGRICULTURAL OFFICER KRISHI BHAVAN, CHALAKUDY, PIN - 680 005.
6 THE SECRETARY CHALAKUDY MUNICIPALITY, PIN - 680 307.
W.P(C).4163/2020 2 7 THE CIRCLE INSPECTOR OF POLICE CHALAKUDY, PIN - 680 307.
8 EXECUTIVE ENGINEER IDAMALAYAR IRRIGATION PROJECT CHALAKUDY, PIN - 680 307.
BY ADVS.
SRI.M.P.ASHOK KUMAR SRI.P.C.GOPINATH SMT.BINDU SREEDHAR-R6 SHRI.ASIF N OTHER PRESENT:
SMT. RESHMA RAJ FOR PETITIONER.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(C).4163/2020 3 J U D G M E N T Dated this the 16th day of March, 2023 S. Manikumar, CJ Instant writ petition is filed by the petitioner seeking for the following reliefs:
“(I) Issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents to identify the encroachments in the water ways of Chalakkudy and remove the same, within a time frame to be fixed by this Hon’ble Court.
(II) Issue a writ of mandamus or any other appropriate writ, direction and order commanding the respondents to remove waste and clean the water ways of Chalakkudy so as to ensure that the said water ways do not overflow during floods and rainy seasons.” 2. Short facts leading to filing of the writ petition are as under:
2.1. Petitioner claims to be the Secretary of the San Maria Justice Forum at Chalakudy. The said forum is actively involved in the various activities to protect the interest of general public.
The petitioner is espousing the trauma faced by the residents of Chalakudy owing to the lethargic attitude of the jurisdictional
W.P(C).4163/2020 4 respondents in preventing clogging of drains. Thus, this writ petition is instituted as Public Interest Litigation to protect the natural canal which has now become sewage canals. The canal has been largely encroached upon by the private persons reducing its width and affected the flow. The main reason for such over flowing are illegal encroachments in to the respective water ways and such encroachers are protected by a mafia, consisting of politician and anti social elements. Though several communications are made with the respondent authorities, they are silent in the matter of removing the encroachments.
3. The Secretary Chalakkudy Municipality/6th respondent has filed a counter affidavit contending as follows:
3. It is submitted that all departments in Municipality has taken all possible efforts to alleviate the flooding in Chalakkudy Municipal area. Chalakkudy Municipality is situated on the Banks of Chalakkudy River. The river and canals are cleaned and cleared by the Municipality through the Engineering Wing, Health Wing, Ayyankali Urban the Employment Guarantee Scheme.
4. Every year prior to monsoon, the Municipality is regularly and promptly cleaning all channels including Parayathodu. All major cleaning works will be done with
W.P(C).4163/2020 5 the aid of HTACHI earth remover and other modern machineries. Every year the Municipality is earmarking special fund for the purpose of cleaning Parayathodu and it's channels to ensure the free flow of water.
The statement of expenditures made for the cleaning and clearing of channels under the Ayyankali Urban Employment Guarantee Scheme.
Year Amount 2019-2020 Rs.12,59,114/- 2020-2021 Rs.3,421,287/- 2021-2022 Rs.39,82,451/- 2022-2023 Rs.21,91,510/- 5. For cleaning the Parayathodu and it's channels through the engineering department using HITACHI earth remover the Municipality, had made an expenditure of Rs.7,36,497/- for the year 2021-2022 and Rs 8,99,940/- for the year from 2022-2023.
6. The expenditure statement made under the Daily Laborers Records Scheme is the following Year Expenditure 2019-2020 Rs.4,03,770/- 2020-2021 Rs.5,29,320/- 2021-2022 Rs.5,13,675/- 2022-2023 Rs.10,58,475/- 7. The cleaning and clearing of Parayathodu and it's
W.P(C).4163/2020 6 channels is an ongoing continuous process conducted every year and the for the same the Municipal council used to pass special resolution and obtain concurrence from the DPC as well as from the Director of Urban Affairs.
8. During 2018 there was unprecedented flooding in the Central Kerala, the areas under Chalakkudy Municipality is one of the worst flood affected area in Kerala. The flood from Chalakkudy river overflowed and raised upto a level of 8 mts above in the ground level of the town area.
9. The Municipality was lacking the technical know- how and other infrastructure required to study the cause and consequences of unprecedented flooding and the urgent measures required to be taken to control and to avoid the recurrence of flood in such an alarming situations. In the above circumstances, the Municipality sought the support of Centre for Water Resource Development and Management , Calicut for expert technical advise, guidance and detailed project report.
Thereafter the technical experts of the centre for water Resource Development and Management has conducted a very detailed field survey and is now preparing a detailed project report.
10. This respondent has taken all the earnest efforts to
W.P(C).4163/2020 7 remove waste and clean the waterways of Chalakudy including Parayathodu and others like Pallithodu, Pottachira Thodu, Idikkood Palam Thodu, Kannampuzha Thodu etc. so as to ensure that the said water ways do not overflow during rainy seasons.” 4. 6th respondent has also filed an additional counter affidavit, which reads as follows:
“4. This Hon’ble Court by an order dt 21/02/2023 directed the Chalakkudy Municipality to file an additional counter affidavit with supporting documents about the survey and the preparation of detailed project report, referred to in paragraph No.9 of the counter affidavit dated 07.02.2023.
5. The natural stream that passes through Chalakudy Municipality is Parayanthodu. It has a total length of about 20km length. The canal of Chalakudy irrigation project is also passing through Chalakudy Municipality. A few other drains flowing through Chalakudy Municipality joins Chalakudy River.
6. It is submitted that the Chalakudy Municipality vide letter no. G3- 134552/21 dated 20/06/2022, requested Executive Director CWRDM to discuss the feasibility of preparing a Storm water management plan for Chalakudy Municipality. True copy of letter no. G3-134552/21 dated 20/06/2022 issued by the Secretary, Chalakkudy Municipality is produced and marked as Exhibit R6(a). A team from Centre for Water Resource Development and Management, Calicut had convened a meeting with municipality chairperson and ward council members at
W.P(C).4163/2020 8 Chalakudy municipality Office on 20th July, 2022 to discuss the flooding issues in the Chalakudy municipality area.
7. The project conducted by Centre for Water Resource Development and Management, Calicut requires topographical survey using total station and therefore the total duration of the study will be 12 months. Budget for the work is estimated as 10.00 lakhs + GST, which includes cost of TA/DA, experimental charges and development of simulation model, etc.
8. Subsequently, a project proposal for Strom Water Management Plan for Chalakudy Municipality was prepared by the Centre for Water Resource Development and Management, Calicut which briefly outlines the scope of work, deliverables, time frame and budget requirement for the study. True copy of the Project Proposal for Strom Water Management Plan for Chalakudy Municipality prepared by the Centre for Water Resource Development and Management, Calicut is produced and marked as Exhibit R6(b).
9. Storm water is the huge amount of standing water produced after heavy rain/snow. When storm water is absorbed by soil and filters through, it ultimately replenishes the aquifer. But due to high concretisation in many of our urban cities, this storm water finds no direct ground to seep through. All the water gushes into storm drains, sewer systems and drainage ditches, and causes soil erosion, silting, road damage, property damage, by creating water-logging in nearby low areas or ditches.
10.This respondent has taken all the earnest efforts to remove waste and clean the waterways of Chalakudy including Parayathodu and others like Pallithodu, Pottachira Thodu, Idikkood Palam Thodu, Kannampuzha
W.P(C).4163/2020 9 Thodu etc. so as to ensure that the said water ways do not overflow during rainy seasons.
11.Therefore, the writ petition deserves to be dismissed with costs and it is prayed accordingly.” 5. The Executive Engineer, Idamalayar Irrigation Project, Chalakkudy/Respondent No.8, has also filed a counter affidavit, in which it is stated thus:
2. It is respectfully submitted that the above writ petition is filed inter-aia praying for issuance of writ of mandamus commanding the respondents to identify the encroachment in the water ways of Chalakudy and remove the same within a time frame fixed by this Hon'ble Court. It is submitted that the allegation raised as against the Irrigation Department is with respect to the inaction in evicting the encroachments from the Irrigation land. In the petition referred to in Exhibit P7, the petitioner has stated that despite several representations for removal of encroachments, no action was initiated by the officials of the Irrigation Department. The same is against facts in existence. The canal referred to in the representation is Chalakudy Branch Canal of Chalakudy River Diversion Scheme in Thrissur District. The branch canal was commissioned on 1957 and has a length of 5.490 Km. 245 encroachments were identified along its length. As the canal was commissioned around 65 years back, the boundaries stones laid at the canal boundaries are found missing in many places. Therefore, the eviction could be carries out only after laying of boundaries stones by the Taluk Surveyor. Communications in this regard were sent
W.P(C).4163/2020 10 to the Taluk Surveyor for demarcating the boundaries. The Taluk Surveyor thereupon has surveyed some portion of the land and submitted a survey sketch on 12.03.2019.
Based on the survey sketch, eviction proceedings were initiated against the encroachers by the Assistant Executive Engineer as per the Land Conservancy Act. Out of the 23 encroachers listed as per 3 sketches, 18 encroachments have been evicted. Out of the remaining 5 cases, one encroachment by Sri. George Nereparamban could not be evicted due to the interim order issued by this Hon'ble Court in W.P(C)No.25459/2019, As regards four remaining cases, notice to the encroachers as per the Land Conservancy Act have been issued and action is being taken as per rules.
3. It is submitted that as regards the complaint raised in the representation dated 13.03.2019 with respect to Chalakudy branch canal from chainage 4/600 Km to chainage 5/000 Km, situated behind the KSRTC Bus Station Chalakudy and that of the canal which starts from Pariyaram combined canal near Moscow Junction and ends in Kannamkulam area, there are no hindrance to the flow of water through the canal and hence there could not be any case flooding due to this part of the canal. Another allegation raised with regard to abandonment of 500 meter length of the canal. This aspects of the matter examined in detail and no details could be found to support the allegation raised.
4. It is submitted that the alignment of the canal has not been changed within the past two decades. All aspects of the matter has been intimated to the petitioner as per letter dated 26.02.2021 and he has been asked to handover any evidence in support of the allegations. A true
W.P(C).4163/2020 11 copy of the letter dated 26.02.2021 is produced herewith and may be marked as Exhibit R8(a). The petitioner has not responded to Exhibit R8(a). Under this circumstances it is clear that the department has taken necessary steps to redress the grievance raised in the petition forwarded to the Additional Chief Secretary to Government, Water Resources Department and in the writ petition. Therefore, the writ petition deserves to be dismissed with costs and it is prayed accordingly.” After submission of the project report by the Centre for Water Resource Development and Management, Calicut, within the time frame as per the additional counter affidavit of the Secretary, Chalakkudy Municipality/6th respondent, encroachers be identified and steps be taken for removal, in accordance with law. Writ petition is disposed of accordingly.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
S. Manikumar,
Chief Justice Sd/- Murali Purushothaman, Judge sou.
W.P(C).4163/2020 12 APPENDIX OF WP(C) 4163/2020 PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE REPORT DATED 5.12.2019 PUBLISHED IN KERALA KAUMUDI.
EXHIBIT P1 (a) THE TRANSLATED COPY OF THE REPORT DATED 5.12.2019 PUBLISHED IN KERALA KAUMUDI.
EXHIBIT P2 THE TRUE COPY OF THE REPORT DATED 16.12.2019 PUBLISHED IN KERALA KAUMUDI.
EXHIBIT P2(a) THE TRANSLATED COPY OF THE REPORT DATED 16.12.2019 PUBLISHED IN KERALA KAUMUDI.
EXHIBIT P3 THE TRUE COPY OF THE REPORT DATED 29.12.2019 PUBLISHED IN TIMES OF INDIA.
EXHIBIT P4 THE TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO THE REVENUE DIVISIONAL OFFICER DATED 8.10.2019.
EXHIBIT P4 (a) THE TRANSLATED COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO THE REVENUE DIVISIONAL OFFICER DATED 8.10.2019.
EXHIBIT P5 THE TRUE COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO THE AGRICULTURAL OFFICER, CHALAKUDY DATED 18.10.2019.
EXHIBIT P5 (a) THE TRANSLATED COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO THE AGRICULTURAL OFFICER, CHALAKUDY DATED 18.10.2019.
EXHIBIT P6 THE TRUE COPY OF G.O.NO.2864/2019 DATED 17.12.2019 BY THE STATE GOVERNMENT HAS SET APART FUNDS FOR CLEARING THE CANALS UNDER THE 'HARITHA KERALA MISSION'.
W.P(C).4163/2020 13 EXHIBIT P6 (a) THE TRANSLATED COPY OF G.O.NO.2864/2019 DATED 11.12.2019 BY THE STATE GOVERNMENT HAS SET APART FUNDS FOR CLEARING THE CANALS UNDER THE 'HARITHA KERALA MISSION'.
EXHIBIT P7 TRUE COPY OF COMMUNICATION ISSUED BY THE REVENUE DIVISIONAL OFFICER TO THE PETITIONER DATED 6.11.2019.
EXHIBIT P7 (a) TRANSLATED COPY OF COMMUNICATION ISSUED BY THE REVENUE DIVISIONAL OFFICER TO THE PETITIONER DATED 6.11.2019.
EXHIBIT P8 TRUE COPY OF THE MINUTES OF THE CHALAKUDY MUNICIPAL COUNCIL.
EXHIBIT P8 (a) TRANSLATED COPY OF THE MINUTES OF THE CHALAKUDY MUNICIPAL COUNCIL.
EXHIBIT P9 THE TRUE COPY OF THE LETTER OF ADDITIONAL CHIEF SECRETARY OF GOVERNMENT INFORMATING THE GRIEVANCE OF THE PETITIONER TO THE CHIEF ENGINEER OF IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM DATED 17.5.2019.
EXHIBIT P10 A TRUE COPY OF THE LETTER DATED 5.12.2019 COMMUNICATION ISSUED BY THE CHALAKUDY MLA TO THE DISTRICT COLLECTOR.
RESPONDENT EXHIBITS EXHIBIT R6(a) TRUE COPY OF LETTER NO. G3-134552/21 DATED 20/06/2022 ISSUED BY THE SECRETARY, CHALAKKUDY MUNICIPALITY EXHIBIT R6(b) TRUE COPY OF THE PROJECT PROPOSAL FOR STROM WATER MANAGEMENT PLAN FOR CHALAKUDY MUNICIPALITY PREPARED BY THE CENTRE FOR WATER RESOURCE DEVELOPMENT AND MANAGEMENT, CALICUT EXHIBIT R8(a) TRUE COPY OF THE LETTER DATED 26.02.2021 AND ITS ENGLISH TRANSLATION