Kerala High Court
Canal Samrakshana Samithi vs The Chief Engineer on 15 January, 2021
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942
WP(C).No.4432 OF 2017(S)
PETITIONER:
CANAL SAMRAKSHANA SAMITHI
REPRESENTED BY ITS SECRETARY MOOSA KOYA,
S/O.KALANTHAN, AGED 42 YEARS, KODALIPURATH MEETHAL,
ULLIYERI, KOZHIKODE DISTRICT, PIN 673 323
BY ADVS.
SRI.JOHN K.GEORGE
SMT.M.B.SHYNI
RESPONDENTS:
1 THE CHIEF ENGINEER
IRRIGATION DEPARTMENT, PROJECT I, E BLOCK, GROUND FLOOR,
CIVIL STATION, KOZHIKODE DISTRICT, PIN 673020
2 THE EXECUTIVE ENGINEER
KUTTIYADI IRIGATION PROJECT DIVISION NO. I, PERAMBRA,
KOZHIKODE DISTRICT, PIN 673525
3 THE ASSISTANT ENGINEER
KUTTIYADI IRRIGATION PROJECT MAINTENANCE SECTION,
KAKKODI, KOZHIKODE 673 611
4 THE DEPUTY SUPERINTENDENT OF POLICE
VIGILANCE AND ANTI CORRUPTION BUREAU,
KOZHIKODE, PIN 673001
5 V.K.BALAN, PWD CONTRACTOR, SREEVALSAM, MEPPAYYUR,
KOZHIKODE DISTRICT, PIN 673524
SRI K ARAVIND KUMAR BABU, SR GP FOR R1 TO R4
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.4432 OF 2017(S)
:: 2 ::
JUDGMENT
Dated this the 15th day of January 2021 S.MANIKUMAR, C.J.
Canal Samrakshana Samithy in Ulliyeri, Koyilnady taluk which is formed for the protection of an irrigation canal is the petitioner in this writ petition.
This writ petition is filed seeking for a direction to the respondents 1 to 3 to cancel the contract for shifting of Ulliyeri field bootie from chainage 0/229 KM to chainage 0/702 KM awarded in favour of the 5th respondent (V.K.Balan, PWD contractor). Petitioner has also sought for a direction to respondents 1 to 3 to reconstruct the field bootie from Palora Stop to Pulikkool Thazhe by lowering the basement of the canal.
2. Learned counsel for the petitioner submitted that in the year 1970, the Kerala State Irrigation Department has constructed an irrigation canal by acquiring properties of citizens, so as to take water for irrigation purposes.
Though the canal was constructed as early as in 1973, residents of Ulliyeri did not get any benefit from the bootie (small water channel built at a higher level). The water did not reach beyond Palora Stop up to Pulikkool Thazhe due to the defect in construction. Though the samithy has taken up the issue before the Government and Irrigation Department, as early as in 1990, there is inaction on the part of the authorities. It is further submitted that the third respondent/the Assistant Engineer has auctioned the reconstruction of the WP(C).No.4432 OF 2017(S) :: 3 ::
field bootie from chainage 0/229 K.M to chainage 0/702 K.M. The petitioner Samithy has been fighting for maintaining the canal, so as to get its benefit to the local people. This can be done only by lowering the basement level of the canal, so that water can flow through it up to Pulikkool Thazhe. But, instead of doing any work on this regard, respondents 1 to 3 have only shifting a portion of the canal by spending Rs.25 lakhs from the public ex-chequer which will not give any benefit to anybody. Therefore, petitioner has complained before respondents 1 to 3 not to proceed with the reconstruction. Since no action was taken on this complaint, this writ petition is filed.
3. Learned counsel for the petitioner has brought to the notice of this court to a writ petition filed by one Mr.Raveendran Nambi, Thoduvayil House and another namely, W.P.(C)No.15467 of 2014 alleging that the Irrigation Department has encroached their property by constructing the canal. This Honourable court disposed of W.P.(C)No.15467 of 2014 on 6 th November 2015, relevant portion of the judgment reads as under:
"2. In this matter, additional counter affidavit has been filed. In para 3 of the additional counter affidavit, it is stated as follows:
"3. A counter affiaavit was filed in this case in August 2014 pointing out these aspects and on 27.01.2015, this Hon'ble Court has directed the respondents to file an additional counter afidavit detailing the steps taken pursuant to the finding that WP(C).No.4432 OF 2017(S) :: 4 ::
there was a mistake in the alignment of the canal. The Superintending Engineer, Project Circle, Kannur has sent a report to the Chief Engineer, Project I, Irrigation Department, Kozhikode and after detailed discussions in the matter, a decision has been taken to reconstruct the canal through the acquired property, which is lying adjacent to the present canal. It is submitted that the mis-alignment happened since the acquired property and the remaining property of the petitioners were lying together as a single plot. And, on realizing the mistake that has occurred, steps are already initiated to reconstruct the canal though the acquired property and the flow of water through the petitioner's property will be stopped, on completion of the same. Further steps in this regard will be taken immediately on getting approval of the above decision by the Government"
3. In the light of the above, this Court is of the view that further construction shall be only through the acquired property in the light of the statement as above. If any construction has been carried out in the petitioners' property, that shall be removed and shall be restored to the original position. Needful shall be done within a period of six months from the date of receipt of a copy of this judgment. If it is feasible to restore the original position of petitioners' property without constructing a new canal, it is open for the respondents to consider the same.
This writ petition is disposed of as above."
WP(C).No.4432 OF 2017(S) :: 5 ::
4. Respondents 1 to 3 have also filed a detailed counter affidavit wherein, it is stated that there is no necessity of lowering the basement of the canal as alleged by the petitioner. The basement level of canal is correct. There is silting up in so many places, because major part of the field bothie was defunct for a long period. This can be corrected easily by desilting. Shifting of the canal was necessitated because a portion of the canal was wrongly built along private land, instead of Government acquired land and this Hon'ble Court has ordered to hand over land to the original owner and therefore the Department has no other alternative other than to realign the canal along the Government acquired land. If that is not done, the entire expenditure used for the construction of the canal will become infructous. Also it is very much essential to restore the canal, so the Department is taking steps to realign the canal and also to construct culverts at certain portions, where there are road crossings, especially at the entrance and exit point of Ulleyeri Bus stand.
Relevant portion of the counter affidavit reads as under:
"4. The Ulleyeri field bothie is an off take of Ulleyeri distributor which was defunct for several years before which it was catering to the water needs of area from Palora to Pulickkal thazham. But this year the Department could fetch water upto chainage 0/402 ie., 402 m through this field bothie. Beyond this point the canal was wrongly aligned through the property of Sri. Raveendran Nampi and Smt. Prasannakumari, which it was originally constructed in Field No. 56/3 of Ulleyeri Village. In WP(C).No.4432 OF 2017(S) :: 6 ::
compliance of the Ext.P2 Judgment the above said land was handed over to the original owners.
5. There is no defect in construction of the canal and is built with proper slope and water is profusely coming upto 42 m. The Department is closing the water to this field bothie to facilitate for further construction of the new canal through the acquired property. But to make this area waterlogged and to prevent construction the well-wishers of so called "Canal Padasekhara Samithi" is forcefully opening the shutters and even tried to man handle the Departmental Officers, who objected to it. They also forcefully stopped formation of canal by earth filling. Police complaints in the said regard has been already given against this to Sub Inspector, Atholi, and to Circle Inspector, Koyilandy and to Superintendent of Police, copies of which are produced herewith and marked as Exhibit R3(a) and R3(b) and R3(c) respectively.
6. In fact when the survey for the area was conducted by the Koyillandy Tahsildar, lot of encroachment on the canal boundary was found and action is being taken to evict the encroachments. These encroachers are now trying to stall the work under the pretext of Canal Padasekhara Samithi". If these people are really aggrieved about the non availability of canal water they should give full co operation to the Department to make the Field bothie fully functional which in turn will be a great boost to the water scarcity of the area.
7. No records could be traced out where in the Samithi have taken up any issue with the Government regarding field bothie. Pursuant to Ext.P2, necessary fund was allotted and Survey work WP(C).No.4432 OF 2017(S) :: 7 ::
has been completed in which it was established that for a length of 164.30m. The canal was wrongly constructed through the above person's property. A true copy of the letter issued by Tahsildar, Koilandy in the said regard is produced herewith and marked as Exhibit R3(d).
8. The Survey work for studying its utility was done before the original construction of the canal. No further survey work is needed to rectify the canal or for changing it's alignment at a middle portion for a small distance without affecting the areas for which it is being benefitted. Petitioner is distorting the details collected under Right to Information Act to suit their argument. Even petitioner in his statement in Para I states that "The local residents are highly aggrieved since they did not get any water for the purpose of cultivation in spite of losing their properties by way of acquisition for the construction of the canal", and therefore petitioner agrees that water distribution through the field bothie is very much essential. Then why they are objecting to the reconstruction and renovation of the canal is not explained. Though the water was distributed through out the entire length of the canal from its formation in 1970's the Department is unable to provide water to the bothie for the last few years. The Department is trying to make it fully functional now and if the Samrakshana Samithi is genuinely interested in the welfare of the people in the area they should support the Department in it's endower to bring the field bothie to it's old glory rather than trying to manhandle and criticize the Department Officers.
9. There is no necessity of lowering the basement of the WP(C).No.4432 OF 2017(S) :: 8 ::
canal as alleged by the petitioner. The basement level of canal is correct. There is silting up in so many places because major part of the field bothie was defunct for a long period. This can be corrected easily by desilting. The shifting of the canal was necessitated because a portion of the canal was wrongly built along private land instead of Government acquired land and this Hon'ble Court has ordered to hand over land to the original owner and the Department has no other alternative other than to realign the canal along the Government acquired land. If that is not done the entire expenditure used for the construction of the canal will become infructous. Also it is very much essential to restore canal, so the Department is taking steps to realign the canal and also to construct culverts at certain portions were there are road crossings especially at the entrance and exit point of Ulleyeri Bus stand.
10. The wrongly constructed portion is only 164.30 m and the realignment of canal is only for that portion, alone. But the work is for a length 473 m which is required for making it functional. As stated earlier there is no defect in the basement level of the canal, as repeatedly alleged by the so called "Canal Padasekhara Samithi"
and it is the only point, based on which their entire argument is constructed, as they have no other points to be raised against the construction of canal. This is absolutely baseless and made with a malafide intention to stall to reconstruction of field bothie, which they fear that will lead to eviction of encroachments, of their well wishers. As stated carlier along with the realignment of the canal, the culvert constructions are also included in the work, where it is WP(C).No.4432 OF 2017(S) :: 9 ::
now covered for road crossings. Though the petitioner has filed petition against the work in Vigilance Department so far they have not found any irregularities in this. All allegations and averments made by the petitioner contrary to the above are incorrect, ill- motivated, baseless and hence denied by these respondents in toto."
Considering the entire facts and circumstances of the case, we are of the view that the petitioner has not made out a case for issuance of any directions, as prayed for. Writ petition fails and accordingly dismissed.
sd/-
S.MANIKUMAR CHIEF JUSTICE sd/-
SHAJI P. CHALY JUDGE jes WP(C).No.4432 OF 2017(S) :: 10 ::
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ABOVE JUDGMENT DATED 18..07.2013 EXHIBIT P2 A TRUE COPY OF THE ABOVE JUDGMENT DATED 06.11.2015 EXHIBIT P3 A TRUE COPY OF THE REQUEST DATED 29.09.2016 MADE IN HIS BEHALF BY A MEMBER OF THE SAMITHY EXHIBIT P3 A A TRUE COPY OF THE ABOVE SAID REQUEST DATED 29.09.2016 EXHIBIT P4 A TRUE COPY OF THE REPLY DATED 26.10.2016 EXHIBIT P4 A A TRUE COPY OF THE ABOVE SAID REPLY DATED 26.10.2016 EXHIBIT P5 A TRUE COPY OF THE ABOVE SAID REPRESENTATION DATED 17.01.2017 RESPONDENT'S EXHIBITS:
EXHIBIT R3(a) TRUE COPY OF COMPLAINT SENT TO SUB INSPECTOR, ATHOLI EXHIBIT R3(b) TRUE COPY OF COMPLAINT SENT TO CIRCLE INSPECTOR, KOYILANDY EXHIBIT R3(c) TRUE COPY OF COMPLAINT SENT TO SUPERINTENDENT OF POLICE EXHIBIT R3(d) TRUE COPY OF THE LETTER ISSUED BY TAHSILDAR, KOILANDY // TRUE COPY // P.S. TO JUDGE