Kerala High Court
Abdul Latheef C.K vs State Of Kerala on 9 June, 2020
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
TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942
WP(C).No.41156 OF 2017(T)
PETITIONER:
ABDUL LATHEEF C.K., S/O IMBICHI MOHAMMED,
BISMILLA, KALYANATHOPPARAMBU, PALAT NAGAR,
THIRUVANNOOR P.O., KOZHIKODE, PIN:673 631.
BY ADVS.
SRI.T.K.SAIDALIKUTTY
SRI.T.KRISHNANUNNI (SR.)
SRI.LAL K.JOSEPH
SRI.A.A.ZIYAD RAHMAN
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN:695001.
2 THE DISTRICT COLLECTOR, MALAPPURAM, PIN:676503.
3 THE SUB COLLECTOR,
PERINTHALMANNA, MALAPPURAM DISTRICT, PIN:679322.
4 THE TAHSILDAR,
ERANADU TALUK, MALAPPURAM DISTRICT,PIN:676 121.
5 THE EXECUTIVE ENGINEER,
IRRIGATION DEPARTMENT, IRRIGATION DIVISION,
MALAPPURAM, PIN:676504.
6 THE GEOLOGIST,
DEPARTMENT OF MINING AND GEOLOGY, DISTRICT OFFICE,
MINI CIVIL STATION,MANJERI, MALAPPURAM, PIN:676 121.
7 THE SECRETARY, OORANGATTIRI GRAMA PANCHAYATH,
OORANGATTIRI, MALAPPURAM DISTRICT, PIN:676001.
* ADDL. M.P.VINOD, VILLA-2, CHAKKALKOOTHU,
R8 NILAMBUR, MALAPPURAM DISTRICT, PIN-679 329
W.P.(C).Nos.41156/17 & 9553/18
-:2:-
* ADDL.R8 IS IMPLEADED AS PER ORDER DATED
16.01.2018 IN I.A.NO.20889/17.
R1-R6 BY SRI.K.V.SOHAN, STATE ATTORNEY
R7 BY ADVS. SRI.T.M.KHALID
SRI.VINOD SINGH CHERIYAN
SMT.K.P.SUSMITHA
SMT.V.MIMITA
R8 BY ADV. SRI.GEORGE A.CHERIAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20-01-2020, ALONG WITH WP(C).NO.9553/2018(S), THE COURT ON
09-06-2020 DELIVERED THE FOLLOWING:
W.P.(C).Nos.41156/17 & 9553/18
-:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942
WP(C).No.9553 OF 2018
PETITIONER:
ALL KERALA RIVER PROTECTION COUNCIL
REG. NO. 1052/98/EKM HIGH ROAD, ALUVA-683031,
REPRESENTED BY ITS GENERAL SECRETARY, T. V. RAJAN,
S/O. APPUTTI, AGED 63 YEARS, "SAMSKRITHI",
KUTHIRAVATTOM P.O., KOZHIKODE DISTRICT, PIN-673016.
BY ADVS.SMT.DAISY A.PHILIPOSE
SRI.JAI GEORGE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695001.
2 THE STATE LAND BOARD PUBLIC OFFICE BUILDING,
MUSEUM JUNCTION, THIRUVANANTHAPURAM, PIN-695033,
REPRESENTED BY ITS SECRETARY.
3 THE DISTRICT COLLECTOR, MALAPPURAM, PIN-676505.
4 THE DISTRICT COLLECTOR, KOZHIKODE, PIN-673001.
5 P. V. ANVAR, S/O. LATE SHOUKATHALI,
PUTHENVEETTIL HOUSE, PERGAMANNA P.O., OTHAYI,
MALAPPURAM DISTRICT, PIN-676541.
ADDL. ABDUL LATHEEF, S/O IMBICHI MOHAMMED,
R6 KALYANATHOPPU PARAMBU, HAFSA MAHAL,
CORNMILL ROAD, THIRUVANNOOR P.O.
W.P.(C).Nos.41156/17 & 9553/18
-:4:-
* ADDL.R6 IS IMPLEADED AS PER ORDER DATED
2.7.2018 IN I.A. NO.11761 OF 2018 IN W.P.(C)
NO.9553 OF 2018
R1 TO R4 BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY
R5 & R6 BY ADV. SRI.T.K.SAIDALIKUTTY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20-01-2020, ALONG WITH WP(C).NO.41156/2017(T), THE COURT ON
09-06-2020 DELIVERED THE FOLLOWING:
W.P.(C).Nos.41156/17 & 9553/18
-:5:-
JUDGMENT
Dated this the 9th day of June, 2020 S. Manikumar, CJ.
The captioned writ petitions are materially connected with respect to a check dam constructed in a property having an extent of 8 acres comprised in Survey No.2 of Vettilappara Village, Eranadu Taluk, Malappuram District. Therefore, we heard them together and proposed to pass this common judgment.
2. W.P.(C) No.41156 of 2017 is filed by owner of the property, who has put up a water theme park, by constructing a check dam and thus, allegedly prohibiting free flow of a natural river, causing threat of landslide, and danger to a colony of Scheduled Tribe people living beneath the hillock, challenging order dated 08.12.2017 (Exhibit-P7) passed by the District Collector, Malappuram, whereby he is directed to demolish the check dam and ensure free flow of the natural water course. Whereas, W.P.(C) No.9553 of 2018 is filed by All Kerala River Protection Council as a public interest litigation seeking to demolish the illegal construction of water theme park and the dam, by the 5th respondent, viz., one P.V.Anvar, who is the son-in-law of the petitioner in W.P.(C) No.41156 of 2017 and a member of the Kerala Legislative Assembly.
W.P.(C).Nos.41156/17 & 9553/18 -:6:-
3. The paramount contention advanced by the owner of the property is that, in the property in question, a pond was in existence from time immemorial. However, due to passage of time and the peculiar terrain of the property surrounded by hills on three sides resulting in free flow of water during rainy season, to the property of the petitioner, the pond happened to be filled up on account of accumulation of soil and mud. In the year 2015, he has decided to revive the aforesaid pond for the purpose of better enjoyment of his property. Accordingly, the soil and mud were removed and the same was used for the purpose of strengthening the side walls thereof. But, some of the persons, who are inimical to the petitioner as well as his son-in-law, a member of the Kerala Legislative Assembly, have submitted false complaints alleging that, by the aforesaid improvements made in the property, a check dam was constructed, and acting upon the aforesaid complaints, reports were called for from various authorities by the 2 nd respondent, i.e. the District Collector, Malappuram.
4. It is the case of the petitioner that Exhibits-P1 and P2 reports submitted by the Talsildar, Eranadu Taluk and the Secretary, Oorangattiri Grama Panchayat, Malappuram District were in accordance with the case put- forth by him. In Exhibit-P2 report dated 17.12.2016 issued by the Secretary, Oorangattiri Grama Panchayat, it was mentioned that revival of the pond has resulted in improving the water level in the nearby wells and none of the local W.P.(C).Nos.41156/17 & 9553/18 -:7:- residents had any complaints against the aforesaid pond. Anyhow, as a part of the enquiry, the Sub Collector, Perinthalmanna was directed to conduct a hearing and take further steps in the matter. Accordingly, petitioner was served with a notice of hearing in which he appeared and submitted a detailed counter statement. Thereafter, on 24.10.2017, a joint inspection of the property was conducted by the authorities concerned. Even though petitioner was expecting a further hearing in the matter, in the light of the joint inspection, Exhibit-P7 order dated 08.12.2017 was passed by the District Collector, Malappuram, (respondent No.2), despite the fact that hearing as well as site inspection was conducted by the 3rd respondent-Sub Collector. As per Exhibit-P7 report, the District Collector ordered demolition of the so- called check dam for the reason that the construction is violative of the statutory provisions contained in the Kerala Mines and Minerals (Development and Regulation) Act, 1957 ('Act, 1957', for short) as well as the Kerala Irrigation and Water Conservation Act, 2003 ('Act, 2003', for short). So also, the 2nd respondent has found in the report that the constructions are violative of the provisions of Disaster Management Act, 2005 and, therefore, unless and until the check dam is demolished, it can cause serious repercussions and damages to the environment as well as the public at large.
5. The basic case advanced by the landowner on the aforesaid facts is that Exhibit-P7 order is violative of the principles of natural justice, since no W.P.(C).Nos.41156/17 & 9553/18 -:8:- opportunity of hearing was provided, and none of the documents relied on by the 2nd respondent was provided to the petitioner. That apart, it is submitted that in fact, hearing was conducted by the Sub Collector, Perinthalmanna and inspection was conducted under his leadership. However, the District Collector without understanding the exact factual situation has passed the impugned order, which is arbitrary, illegal and liable to be quashed by this Court. Moreover, it is contended that the 2 nd respondent has no manner of power or authority to interfere with the water theme park conducted by the petitioner, either under the Act, 1957 or Act, 2003, as referred to above, and there are no reasons for the Disaster Management Authority to interfere, since there is no proven document or record available with the District Collector, to arrive at a finding and conclusion that the water theme park and the accumulation of water in the property of the petitioner is, in any way, causing danger to the environment, ecology and the public at large. It is also the case of the petitioner that the District Collector has acted to the tune of certain interested persons, who had an axe to grind the son-in-law of the petitioner, who is a member of the Legislative Assembly. Petitioner, therefore, seeks interference with Exhibit-P7 order dated 08.12.2017.
6. A statement has been filed on behalf of the District Collector, Malappuram, justifying the stand adopted in Exhibit-P7, as per which, the District Collector has received Exhibit-P1 report dated 2.7.2015 from the W.P.(C).Nos.41156/17 & 9553/18 -:9:- Divisional Forest Officer, Nilambur South stating that on the basis of a newspaper report regarding construction of a weir/anicut in a private property adjacent to the forest property, he had inspected the site and found that the allegations in the newspaper are correct. It is also stated in the report of the Divisional Forest Officer that the area is about 500 metres above the sea level and the weir is constructed obstructing the water channel, which originates from forest and flows through the private property, and is the drinking water source for the people living in the Cheenkanni Tribal Colony. The DFO has also reported that construction of the weir is in an ecologically sensitive area and there is a potential danger of land slide due to obstruction of water sources and capturing it at higher level. On the same day, another complaint of similar nature was received from one Rajendran, Chairman of Nilambur Paristhithi Samrakshana Samithi. Accordingly, the District Collector has scheduled an inspection on 08.08.2015 and an email communication was sent to the Sub Collector, Perinthalmanna, who, in turn informed the Tahsildar, Eranadu Taluk and Village Officer, Vettilalapara, to be present at the site. But, due to administrative reasons, it was postponed to 16.08.2015. In the meanwhile, the Additional Tahsildar, Taluk Office, Eranadu, forwarded a report dated 12.08.2015 to the District Collector, collected through the Village Officer, Vettilappara. The Village Officer forwarded a copy of the sale agreement entered into between one Suresh Namboothiri and his W.P.(C).Nos.41156/17 & 9553/18 -:10:- wife Smt. Nisha with Sri.P.V.Anvar, son-in-law of the petitioner. The District Collector inspected the site along with the Sub Collector, Perinthalmanna, DFO, Nilambur North, District Information Officer, Malappuram, Tahsildar, Eranadu, Executive Engineer, Minor Irrigation, Manjeri and the Village Officer, Vettilappara on 16.08.2015.
7. On the next day of inspection, the Village Officer issued a stop memo to Sri.P.V.Anvar, who had agreed to purchase the property from Suresh Namboothiri and Nisha, which was received by him on 20.08.2015. Subsequently, the District Collector, Malappuram issued Annexure-R2(b) order dated 20.08.2015 directing the landowners, viz., Suresh Namboothiri and Nisha to stop the construction of check dam and allied activities, until further orders. The Tahsildar, Eranadu, was also directed to ensure that the parties comply with the order. Simultaneous notice was issued to Suresh Namboothiri and his wife Nisha to appear before the District Collector with documents, if any, showing permission for removal of earth and construction of check dam on 31.08.2015, evident from Annexure-R2(c). In the hearing scheduled before the District Collector on 31.08.2015, father of Nisha Namboothiri, representing the owners appeared and submitted a statement in writing, which is produced as Annexure-R2(d). However, no documents relating to the construction carried out by the petitioner or Sri.Suresh Namboothiri were produced before the District Collector, Malappuram. Accordingly, the District W.P.(C).Nos.41156/17 & 9553/18 -:11:- Collector issued a direction to the Sub Collector, Perinthalmanna, to report as to whether any permission has been obtained for construction of the check dam/weir by the owner or the person in possession, and in the absence of permission, directed him to initiate steps to demolish the construction causing any obstruction for free flow of natural water course at the owner's costs, evident from Annexure-R2(e) dated 7.9.2015.
8. The Sub Collector, later submitted a report to the District Collector dated 3.3.2016 stating that construction of the check dam is without any permission from the authorities, and that no further activities were conducted after the issuance of stop memo. The Sub Collector also reported that he had already directed the Geology Department to realise royalty for the unauthorised removal of soil, and also the Public Works Department to submit an estimate of expenses necessary for demolition of check dam/weir, evident from Annexure-R2(f).
9. On 14.03.2017, additional respondent No.8 i.e. one M.P.Vinod has submitted a complaint to the District Collector alleging that the construction activity is resumed by the parties. The District Collector has forwarded the said complaint to the Sub Collector, who conducted a hearing in the matter on 24.08.2017 and 30.08.2017 respectively. In the hearing, apart from the officials, the petitioner as well as Sri.P.V.Anvar and additional respondent No.8 Sri.M.P.Vinod were heard. Sri.P.V.Anvar was represented by one advocate W.P.(C).Nos.41156/17 & 9553/18 -:12:- and he submitted a statement on 30.08.2017 stating that he is not connected with the property and has not constructed any pond or check dam. It was also stated therein that he intended to purchase the property, but could not complete the transaction and never possessed the property. In the hearing, the writ petitioner represented by an advocate, submitted a detailed statement, produced as Annexure-R2(h) along with the statement. After hearing, the Revenue Divisional Officer/Sub Collector along with other officials conducted a joint inspection on 24.10.2017. All the members of the joint inspection team discussed the matter on 04.12.2017 and prepared a report dated 08.12.2017 [Annexure-R2(i)], which was submitted to the District Collector, Malappuram. It was based on the report submitted by the Sub Collector, the District Collector, Malappuram in his status as the Chairman of Disaster Management Authority issued Exhibit-P7 order dated 08.12.2017, exercising the powers under Sections 30(i), 30(iii), 33, 34(h), (k) and (n) of the Disaster Management Act. The Disaster Management Authority, in its meeting held on 11.12.2017, ratified Exhibit-P7 order of the Chairman exercising the powers under Section 26(2) of the Disaster Management Act, as evident from Annexure-R2(j). Therefore, according to the 3 rd respondent, there is no manner of illegality in Exhibit-P7, as alleged by the petitioner.
10. The additional 8th respondent, i.e., M.P.Vinod has also filed a detailed counter affidavit in similar lines, contending that he has written a W.P.(C).Nos.41156/17 & 9553/18 -:13:- feature in one of the vernacular dailies about the illegal constructions carried out blocking the natural water course, which is causing threat to the environment as well as to the Scheduled Tribe community residing beneath the hillock. The Sub Collector, Perinthalmanna, respondent No.3, has filed a detailed report along with the counter affidavit dated 2.2.2019 and the report reads thus:
"PARAGRAPH WISE DETAILS
1) Total water logging area of the check dam with sketch and photos In reply to the query of 1, an approximate total water logging area of 10000 sqm at an average of 10 metres of water.
The site sketch and photos are furnished.
2) The depth of water and approximate quantity of water stored Regarding the query no.2, there is an average depth of water of 3 to 6 metres varying from the side to the center and an approximate quantity of 25000 cu.m as on the date of inspection viz 13-11-2018. As the check dam has heigth of 10 metres on the upstream side the maximum depth of water may rise up to 6 meters, from the present water level and then then quantity would be around 75000 cum.
3. Opinion of the expert committee ie. Water logging will cause disaster and danger to the public.
Regarding the query no. 3 the soil survey wing of the Department of soil Survey and Soil Conservation opined that the soils of that area are deep with fine texture and moderate W.P.(C).Nos.41156/17 & 9553/18 -:14:- permeability with high content of clay. Also there is high and horizontal movement of soil underneath on saturation of water. The structure does not seem to be abutted on hard rock. It's also learnt that a Schedule Tribe hamlet (Karimbu Colony) having twenty families is situated in the downstream side. Ramifications that might occur to the ballet in the event of breakage of check dam would be catastrophic.
4. Opinion of the committee that water flowing cannot blocked Regarding the query no. 4 the committee is of the opinion that the party has violated the Kerala Irrigation and Water Conservation Act, 2003 by way of obstructing a natural river course which has its origin in the forest and flows through private lands. Also the construction had been carried out without any scientific backgrounds or obtaining any sanction from any Government Departments. It is also noticed that there is seepage through check dam on the downstream side which might increase during the rainy season and as and when the reservoir is full. This would pose danger to the structure as such.
Apart from this, the forest department opined that the disputed check dam prevents the flow of water to the Cheenkannippally ecological fragile land which would convert the present most deciduous forest to biologically less important over a period of time. Also the wild animals living in this area are now facing acute storage of water. This would adversely affect their population and increase the chance of man-animal conflict.
Also in the event of an untoward incident of collapse of the check dam, it would wipe out a part of the EFL area lying on the downstream side of the check dam. It's also learnt that a Schedule Tribe hamlet (Karimbu Colony) having twenty families is situated on W.P.(C).Nos.41156/17 & 9553/18 -:15:- the downstream side. Ramifications that might occur to the hamlet in the event of breakage of check dam also need to be assessed. Hence the committee emphasize that the water flow should not be blocked.
5) Separate statement shall be filed by all experts of the expert committee Regarding the query No.5 separate statements of expert committee, are furnished herewith.
6) A study report of district disaster management authority and any other statutory bodies.
Regarding the query no. 6, it may be addressed from the District Collectorate, Malappuram.
7) Whether the check dam can be sustained without danger and any benefit in water catching in the upper area.
As to the query no.7 the check dam cannot be sustained at any cost as it is constructed without any scientific background and as it pose threat to the Scheduled Tribe Karimbu colony on the downstream side, wild life and conversion of forest type as such. Though there is a possibility of increasing ground water table in the surrounding areas, the same recharge may cause saturation of soil and further collapse of the structure as such. The threat that might cause in the event of damage to the structure is more alarming than the benefits.
8) Sketch showing the total existing water depth of the check dam and the width of the pit created for the outflow of the water.
Regarding the query no. 8 sketch furnished.
9) Strength and nature of the soil used for the construction of check dam.
W.P.(C).Nos.41156/17 & 9553/18 -:16:- Regarding the query no. 9, it can be addressed only after a detailed soil exploration and analysis.
Considering the above aspects, the committee strongly feels that the authorized construction is posing threat to the public, forest, wild life and the environment as such. The construction has been carried out without obtaining any prior sanctions and violating the Kerala Irrigation and Water Conservation Act, 2003, Kerala Panchayati Raj Act. Considering the fact the area falls under the medium hazard zone and already four landslides and several soil falls have occurred in the last monsoon, the committee strongly recommends that the check dam needs to demolished at once that is before the onset of next monsoon and natural law retained."
11. So also, the Geologist, Malappuram as per communication dated 11.01.2019 addressed to the District Collector, Malappuram, has stated that the petitioner has constructed a check dam across the natural stream which originates in the forest, flows through his property and further takes its course along the property of others. It is also pointed out therein that the check dam has been constructed without conducting any scientific study of the underlying strata and hence, the strength of the structure cannot be ascertained without a detailed study. That apart, it is stated that the excavation carried out on either side of the stream and the construction of Thadayana (check dam) in the downstream side have created a large area for storage of huge quantity of water in the reservoir and that the natural flow of W.P.(C).Nos.41156/17 & 9553/18 -:17:- water is obstructed. That apart, it is stated that the check dam was constructed illegally, without conducting any preliminary scientific studies and hence, there is possibility of its failure in case of storage of water to its full capacity, and if any breakage occurs, it may cause danger to the tribal colony situated in the downstream side of the check dam. Therefore, it was requested that necessary action be taken to maintain natural flow of water and avoid any mishap in future.
12. The Department of Forest and Wildlife, Nilambur by Exhibit-R3(a) communication dated 10.12.2018 addressed to the District Collector, stated that 100 metres away from the Oorangattiri Malavaram (hilly area) in which V.F.C Item No.28 falls in Edavanna range of Nilambur North Forest Division a bund is constructed on the land owned by a private individual, a hilly area standing 45 degrees steep, and is highly sensitive as well as ecologically fragile land, with bio-diversified factors. Accordingly, an area of around 20.24 hectares was taken over by the Government and is protected as Cheengannippally E.F.L Forest Land. It is further reported that, to keep the reservoir filled to capacity water will, not only result in landslides, but also affects the water sources in the area, including the E.F.L Forest Land, and consequently, the environmental protection will be adversely affected, endangering the wildlife in the ecologically fragile forest zone. It is further reported that during the recent deluge, there were four landslides in the area. W.P.(C).Nos.41156/17 & 9553/18 -:18:- But, as the shutter of the reservoir was kept open, on the basis of the order from the District Collector, water flowing from the landslides got drained through the portion, which was left open in the reservoir, resulting in the safety and security of the reservoir/check dam, thus avoiding complete breakdown of the bund. That apart, it is stated that if the reservoir was completely kept shut, then there is a likelihood of natural disaster. It will not have the capacity to withstand pressure of the water in it and in the event of breakdown of the reservoir/check dam, it would adversely affect the lives and properties of nearly 28 tribal families residing in the downstream. Again the Project Officer of the Integrated Tribal Development Project Office, Nilambur, has submitted a report to the Sub Collector, Perinthalmanna dated 11.01.2019, wherein also similar apprehensions are voiced.
13. The petitioner has filed a reply to the counter affidavit filed by the official respondents as well as the additional 8 th respondent, refuting the averments and reiterating the stand adopted in the writ petition that there is no manner of illegality in the construction carried out by him.
14. In W.P.(C) No.9553 of 2018, the basic contention advanced by the petitioner is that the 5th respondent, i.e., P.V.Anvar, MLA has totally flouted the orders passed by the District Collector, Malappuram and other statutory authorities with regard to the illegal constructions carried out, and thus, failed to implement the directives issued. It is also pointed out that the entire action W.P.(C).Nos.41156/17 & 9553/18 -:19:- is violative of Section 218 of the Kerala Panchayat Raj Act, 1994 as well as Sections 3 and 5 of the Act, 2003, whereby it is mandated that all the water courses and rivers running through the Panchayat will stand vested with the Panchayat and no third person has any right to interfere with the water courses. Section 218(1) of the Act reads thus:
"218. Vesting of watercourse, springs, reservoirs, etc., in Village Panchayats. - (1) Notwithstanding anything contained in the Kerala Land Conservancy Act 1957 (8 of 1958) or in any other law for the time being in force, all public water courses (other than river passing through more areas, than the panchayat area which the Government may, by notification in the gazette, specify), the beds and Banks of river streams, irrigation and drainage channels, canals, lakes, back waters and water courses and all standing and flowing water, springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, stand pipes and other water works including those used by the public to such an extent as to give a prescriptive right to their use whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the panchayat or otherwise, and also any adjacent land, not being private property appertaining thereto shall stand transferred to and vest absolutely in the village panchayat:
Provided that nothing contained in this sub-section shall apply to any work which is or is connected with a work or irrigation or to any adjacent land appertaining of any such work."
W.P.(C).Nos.41156/17 & 9553/18 -:20:-
15. It is also pointed out that by virtue of the provisions of the Act, 2003, no person shall carry out any construction in a natural water course, without securing permission from the State Government. Various other contentions are also raised. Anyhow, the material aspects pointed by the petitioner therein is that if the check dam and the water theme park are permitted to continue at the top of the hillock, they would cause serious repercussions and consequences to the environmental stability as well as danger to the poor tribals residing in the downstream of the hillock, where the check dam is constructed.
16. Heard learned counsel for the parties and perused the materials available on record.
17. Apparently, an interim order of stay was granted against Exhibit-P7 order of the District Collector dated 08.12.2017 in W.P.(C) No.41156 of 2017. However, later both the writ petitions were clubbed together and interlocutory orders were being passed by this Court periodically with a view to demolish the constructions carried out, obstructing the natural water course, and further directions were issued to drain out the water. Various reports were filed for and on behalf of the District Collector, Malappuram, and the Sub Collector, Perinthalmanna, stating that necessary measures have been taken to drain out the water stored in the check dam. It is also pointed out that the water was fully drained out from the check dam, which was W.P.(C).Nos.41156/17 & 9553/18 -:21:- disputed by the additional 8th respondent and the public interest litigant in W.P.(C) No.9553 of 2018. As per the directions issued by this Court, a report has been filed by Sri.K.V.Sohan, learned State Attorney, on 01.07.2019, based on the information given by the District Collector, Malappuram. The report reads thus:
"Work Progress Report in Demolition of Check Dam in Cheenkannipali directed by Hon'ble High Court in WP(C) 411556/17, 9553/18
1. Hon'ble High court in judgement in WP(C) 41156/17, 9553/18 dt. 14.06.2019 directed the District Collector, Malappuram, as the head of District Disaster Management Authority (DDMA), to take necessary steps for the demolition of Cheenkannipali check dam to clear the accumulated water in the manner suggested in the report of EE irrigation. The Hon'ble court granted 15 (fifteen) days of time, in case of favourable weather conditions, for the said task to be completed.
2. ln pursuant to the direction, the said work started under the supervision of Sub Collector Perinthalmanna, Tahasildar Ernad, EE Irrigation, District Geologist and other revenue staff, at 8.00 AM on 21.06.2019 using hydraulic excavators. As per the timeline granted by the Hon'ble court, the said work is to be finished by 05.07.2019. lt is also mentioned in the said order that the case is posted for 02.07.2019.Therefore the work progress report has to reach the Hon'ble court by 01.07.2019.
3. During the course of work visit was conducted by District Collector and all expert committee members on W.P.(C).Nos.41156/17 & 9553/18 -:22:- 25.06.2019 and 28.06.2019 respectively to supervise the progress. A meeting of Expert committee was conducted to assess the progress of work by District Collector, who is also the Chairman of DDMA, comprising EE irrigation, District Geologist Manjeri, Sub Collector Perintalmanna, Tahasildar Ernad and other District level officers. The committee opined that the work is being done as per the drawings prepared earlier and after maximum efforts of 8 days a quantity of around 800 m3 sand was removed from the place and 1200 m3 sand yet to be removed. lf continued in the original manner proposed, the expected time for completing this work may enhance to 20-25 days due to the following practical problems being faced by the team at the site:
(i) intermittent rains,
(ii) soil nature in the region leading to soil slips,
(m) presence of wild elephants causing threat to the team,
(iv) proximity issues causing difficulty for excavation vehicles to reach the location which also affected to and fro mud transportation,
(v) economic considerations i.e per day expenses of this work is around Rs. 40,000/- and the sanction to utilise the amount of 5 Iakhs rupees from District Disaster Management Fund for this work is yet to be received from Govt due to which advance money could not be sanctioned.
4. ln order to attain a finality and the progress of compliance of the Hon'ble High Court order, the committee suggested to explore the alternate options to complete the work in minimal time and having above constraints. The engineers opined before the committee that " lack of adequate space for heaping the cut spoil and threat of soil slips are weakening the steady process of demolition. lt is submitted that the land owner had earlier cut open the W.P.(C).Nos.41156/17 & 9553/18 -:23:- check dam, towards the right bank, which was indeed the only access to the site. This has drastically reduced the accessibility conditions to the working site resulting excavators being not able to be easily brought forward to the site for the process of demolition. Hence the right bank of the stream, at the check dam portion had to be cut to comply with the court direction."
5. In order to expedite the process of demolition, the said committee discussed the matter in detail and it was decided to cut minimal quantity on the right bank side to ensure the free flow of water from the stream without affecting the possible soil erosion site .For which right bank of the check dam could be cut to a depth of 6 m from the existing cut level, and a minimal required flow can be achieved so as to prevent the impounding water at the check dam. If so, it is estimated that an average quantity of 500 cum of earth and boulders will have to be cut and removed to ensure adequate flow of water. It was further suggested that this place being a natural reservoir will have some water accumulated which will naturally flow and manual removal of water is not required. The sketch of proposed work is enclosed herewith for reference.
6. lt the work is done in the manner proposed in para 5 above the work can be completed in 7-10 days in favourable weather conditions in anticipation of all the adverse circumstances listed above.
7. In the above circumstances, Hon'ble Court may kindly be requested :
A. To issue a revised order allowing the District Disaster Management Authority to proceed with the work assuggested by the expert committee meeting held on 28.06.2019, i.e., W.P.(C).Nos.41156/17 & 9553/18 -:24:- to cut open the right bank of check dam to a depth of 6 m from the existing cut level and remove quantity of around 500 m3 soil from there to ensure free flow of water.
B. To allow an extension of 10 days time w.e.f 03.07.2019 (in favourable weather conditions) to complete the work as proposed in para 5 above.
Sd/-
District Collector Malappuram"
18. Ultimately an affidavit has been filed by the District Collector, Malappuram, on 14.10.2019 before this Court in W.P.(C) No.41156 of 2017, pursuant to the directions issued on 16.08.2019 and subsequently on 19.09.2019, whereby it is stated that a joint inspection by the officers of Revenue, Irrigation, Geology, District Soil Conservation, Tahsildar, Ernad, Tribal Extension Officer, Edavana, and Village Officer, Vettilappara was conducted on 03.10.2019, and it was noticed that vent way is adequate enough to drain out the water even during the monsoon as well. It was also reported that despite the centennial flood occurred in the month of August, 2019, the entire water that has come to the reservoir was drained out through the vent way established and the joint inspection report is produced as Annexure-R2(a). Therefore, virtually during the pendency of the writ petitions, the reliefs sought for by the petitioner in the public interest litigation is satisfied by draining out the water. In fact, learned counsel for the petitioner in W.P.(C) No.41156 of 2017 has submitted before this Court W.P.(C).Nos.41156/17 & 9553/18 -:25:- that the subject matter has virtually become infructuous consequent to the draining out of the water from the check dam and, therefore, nothing survives to be considered to that effect.
19. Perusal of the order dated 08.12.2017 (Exhibit-P7 in W.P.(C) No.41156 of 2017) issued by the District Collector, Malappuram, we find that the said order was passed taking into account various factual circumstances.
The District Collector has visited the site along with the Sub Collector, Perinthalmanna and other statutory authorities, and found that there is a clear blockade created to a natural water course by the construction of a check dam. The water containing capacity of the dam is also mentioned, and it was also reported that if the water is accumulated in the check dam and since the construction carried out is not in a scientific manner, there is every likelihood of breakage of the dam during monsoon season, when water pressure accumulates. The report also reveals that various statutory authorities as well as a private individual have pointed out that the accumulation of water will cause damage not only to the ecology and the environment, but also to the 20 tribal families residing beneath the hillock.
20. Even though various contentions are raised by the petitioner with respect to the illegality of Exhibit-P7 order passed by the District Collector, Malappuram, including the one that the water is accumulated in a natural pond which was in existence in the hillock, the District Collector as well as W.P.(C).Nos.41156/17 & 9553/18 -:26:- the statutory authorities had found that constructions were carried out with concrete poles in order to retain the water in the hillock. It is also an admitted fact that petitioner has not produced any document to show that the construction was carried out after securing permission from the authorities concerned. It is quite clear and evident that as per Section 218 of the Kerala Panchayat Raj Act, 1994, watercourse, springs, reservoirs, etc. vest in Village Panchayats. So also, Sections 3 and 5 of Act, 2003 make it clear that nobody has any power or authority to carry out any construction in a running stream.
21. Apparently, the petitioner in W.P.(C) No.41156 of 2017, has not secured any permission from the statutory authorities. He could not produce any convincing evidence before this Court to show that there was a natural pond existing at the top of the hillock, which was cleaned up and water was collected during monsoon. Apart from all these aspects, on inspection by the statutory authorities, it was clearly found that even though the check dam is constructed in a private property, a nearby hillock was demolished for the purpose of its construction and the construction carried out using soil is not safe enough to hold the water, when there is full capacity of water in the check dam. Moreover, it was found that a running stream was blocked, which originated from a nearby reserve forest area situated in a higher terrain and, therefore, it is evident that the petitioner has blocked the running of a water W.P.(C).Nos.41156/17 & 9553/18 -:27:- course so as to get it collected in the check dam for utilisation by the water theme park conducted by him. In this regard, it is useful to refer to a decision of the Hon'ble Supreme Court in M.C. Mehta v. Kamal Nath and Others reported in (1997) 1 SCC 388, which, in turn, has taken into account various judgments and at paragraphs 23 to 35, held as follows:
"23. The notion that the public has a right to expect certain lands and natural areas to retain their natural characteristic is finding its way into the law of the land. The need to protect the environment and ecology has been summed up by David B. Hunter (University of Michigan) in an article titled An ecological perspective on property : A call for judicial protection of the public's interest in environmentally critical resources published in Harvard Environmental law Review Vol. 12 1988 p. 311 is in the following words:
"Another major ecological tenet is that the world is finite. The earth can support only so many people and only so much human activity before limits are reached. This lesson was driven home by the oil crisis of the 1970's as well as by the pesticide scare of the 1960's. The current deterioration of the ozone layer is another vivid example of the complex, unpredictable and potentially catastrophic effects posed by our disregard of the environmental limits to economic growth. The absolute finiteness of the environment, when coupled with human dependency on the environment, leads to the unquestionable result that human activities will at some point be constrained. W.P.(C).Nos.41156/17 & 9553/18 -:28:- Human activity finds in the natural world its external limits. In short, the environment imposes constraints on our freedom; these constraints are not the product of value choices but of the scientific imperative of the environment's limitations. Reliance on improving technology can delay temporarily, but not forever, the inevitable constraints. "There is a limit to the capacity of the environment to service...growth, both in providing raw materials and in assimilating by-product wastes due to consumption. The largesse of technology can only postpone or disguise the inevitable."
Professor Barbara Ward has written of this ecological imperative in particularly vivid language:
'We can forget moral imperatives. But today the morals of respect and care and modesty come to us in a form we cannot evade. We cannot cheat on DNA. We cannot get round photosynthesis. We cannot say I am not going to give a damn about phytoplankton. All these tiny mechanisms provide the preconditions of our planetary life. To say we do not care is to say in the most literal sense that "we choose death".' There is a commonly-recognized link between laws and social values, but to ecologists a balance between laws and values is not alone sufficient to ensure a stable relationship between humans and their environment. Laws and values must also contend with the constraints imposed by the outside environment. Unfortunately, current legal doctrine rarely accounts for such constraints, and thus environmental stability is threatened.
Historically, we have changed the environment to fit our conceptions of property. We have fenced, plowed and W.P.(C).Nos.41156/17 & 9553/18 -:29:- paved. The environment has proven malleable and to a large extent still is. But there is a limit to this malleability, and certain types of ecologically important resources - for example, wetlands and riparian forests - can no longer be destroyed without enormous long-term effects on environmental and therefore social stability. To ecologists, the need for preserving sensitive resources does not reflect value choices but rather is the necessary result of objective observations of the laws of nature.
In sum, ecologists view the environmental sciences as providing us with certain laws of nature. These laws, just like our own laws, restrict our freedom of conduct and choice. Unlike our laws, the laws of nature cannot be changed by legislative flat; they are imposed on us by the natural world. An understanding of the laws of nature must therefore inform all of our social institutions."
24. The ancient Roman Empire developed a legal theory known as the "Doctrine or the Public Trust. It was founded on the ideas that certain common properties such as rivers, seashore, forests and the air were held by Government in trusteeship for the free and unimpeded use of the general pubic. Our contemporary conceded about 'the environment' bear a very close conceptual relationship to this legal doctrine. Under the Roman Law these resources were either owned by no one (res nullious) or by every one in common (res communious). Under the English common law, however, the Sovereign could own these resources but the ownership was limited in nature, the Crown could not grant these properties to private owners if the effect was to interfere with the public interests in navigation or fishing.
Resources that were suitable for these uses were deemed to W.P.(C).Nos.41156/17 & 9553/18 -:30:- be held in trust by the Crown for the benefit of the public Joseph L. Sax, Professor of Law, University of Michigan proponent of the Modern Public Trust Doctrine - in an erudite article "Public Trust Doctrine in Natural Resource Law:
Effective Judicial Intervention". Michigan Law Review Vol. 68 Part I p. 473 has given the historical background of the Public Trust Doctrine as under:
"The source of modern public trust law is found in a concept that received much attention in Roman and English law - the nature of property rights in rivers, the sea, and the seashore. That history has been given considerable attention in the legal literature, need not be repeated in detail here. But two points should be emphasized, First, certain interests, such as navigation and fishing, were sought to be preserved for the benefit of the public; accordingly, property used for the those purposes was distinguished from general public property which the sovereign could routinely grant to private owners. Second, while it was understood that in certain common properties - such as the seashore, highways, and running water - "perpetual use was dedicated to the public," it has never been clear whether the public had an enforceable right to prevent infringement of those interests. Although the State apparently did protect public uses, no evidence is available that public rights could be legally asserted against a recalcitrant government."
25. The Public Trust Doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone W.P.(C).Nos.41156/17 & 9553/18 -:31:- irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority:
"Three types of restrictions on governmental authority are often though to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third property must be maintained in particular types of uses".
26. The American law on the subject is primarily based on the decision of the United States Supreme Court in Illinois Central Railroad Co. v. People of the State of Illinois 146 US 387 : 36 L Ed 1018 (1892). In the year 1869 the Illinois Legislature made a substantial grant of submerged lands - a mile strip along the shores of Lake Michigan extending one mile out from the shoreline - to the Illinois Central Railroad. In 1873, the Legislature changed its mind and repealed the 1869 grant. The State of Illinois sued to quit title. The Court while accepting the stand of the State of Illinois held that the title of the State in the land in dispute was a little different in character from that which the State held in lands intended for sale. It was different from the title which the United States held in public lands which were open to pre-emption and sale. It was a title held in trust - for the people of the State that they may enjoy the navigation of the water, carry on commerce over them, and have liberty of fishing therein free from obstruction or interference of W.P.(C).Nos.41156/17 & 9553/18 -:32:- private parties. The addiction of the general control of the State over lands in dispute was not consistent with the exercise of the trust which required the Government of the State to preserve such waters for the use of the public. According to Professor Sax court in Illinois [146 US 387 : 36 L Ed 1018 (1892)] Central "articulated a principle that has become the central substantive thought in public trust litigation. When a State holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated either to relocate that resource to more restricted uses or to subject public uses to the self-interest of private parties".
27. In Gould v. Greylock Reservation Commission [350 Mass 410 (1966)], the Supreme Judicial Court of Massachusetts took the first major step in developing the doctrine applicable to changes in the use of lands dedicated to the public interest. In 1886 a group of citizens interested in preserving Mount Greylock as an unspoiled natural forest, promoted the creation of an association for the purpose of laying out a public park on it. The State ultimately acquired about 9000 acres, and the legislature enacted a statute crating the Greylock Reservation Commission. In the year 1953, the legislature enacted a statute creating an Authority to construct and operate on Mount Greylock an Aerial Tramway and certain other facilities and it authorised the Commission to lease to the Authority any portion of the Mount Greylock Reservation. Before the project commenced, five citizens brought an action against both they Greylock Reservation Commission and the Tramway Authority. The plaintiffs brought the suit us beneficiaries of the pubic trust. W.P.(C).Nos.41156/17 & 9553/18 -:33:- The Court held both the lease and the management agreement invalid on the ground that they were in excess or the statutory grant of the authority. The crucial passage in the judgment of the Court is as under:
"The profit sharing feature and some aspects of the project itself strongly suggest a commercial enterprise. In addition to the absence of any clear or express statutory authorization of as broad a delegation of responsibility by the Authority as is given by the management agreement, we find no express grant to the Authority or power to permit use of public lands and of the Authority's borrowed funds for what seems, in part at least, a commercial venture for private profit."
Professor Sax's comments on the above-quoted paragraph from Gould decision are as under:-
"It hardly seems surprising, then, that the court questioned why a State should subordinate a pubic park, serving a useful purpose as relatively undeveloped land, to the demands of private investors for building such a commercial facility. The court, faced with such a situation, could hardly have been expected to have treated the case as if it involved nothing but formal legal issues concerning the State's authority to change the use of the certain tract of land ..... Gould, like Illinois Central, was concerned with the most overt sort of imposition on the public interest; commercial interests had obtained advantages which infringed directly on public uses and promoted private profits. But the Massachusetts court as also confronted a more pervasive, if more subtle, problem - that concerning projects which clearly have some public justification. Such cases arise when, for example, a highway department seeks W.P.(C).Nos.41156/17 & 9553/18 -:34:- to take a piece of parkland or to fill a wetland."
28. In Sacco v. Development of Public Works 532 Mass 670, the Massachusetts Court restrained the Department of Public Works from filling a great pond as part of its plan to relocate part of State Highway. The Department purported to act under the legislative authority. The court found the statutory power inadequate and held as under:-
"the improvement of public lands contemplated by this section does not include the widening of a State highway. It seems rather that the improvement of public lands which the legislature provided for ... is to preserve such lands so that they may be enjoyed by the people for recreational purposes."
29. In Robbins v. Department of Public Works 244 N.E. 2d 577, the Supreme Judicial Court of Massachusetts restrained the Public Works Department from acquiring Fowl Meadows, "wetlands of considerable natural beauty ... often used for nature study and recreation" for highway use.
30. Professor Sax in the article (Michigan Law Review) refers to Priewev v.. Wisconsin State Land and Improvement Co. 93 Wis 534 (1896), Crawford County Lever and Drainage Disst. Nos.1, 182 Wis 404, City of Milwaukee v. State 193 Wis 423, State v. Public Service Commission 275 Wis 112 and opines that "the Supreme Court of Wisconsin has probably made a more conscientious effort to rise above rhetoric and la work out a reasonable meaning for the public trust doctrine than have the courts or any other State".
31. Professor Sax stated the scope of the public trust doctrine in the following words:-
"If any of the analysis in this Article makes sense, it is clear that the judicial techniques developed in public trust W.P.(C).Nos.41156/17 & 9553/18 -:35:- cases need not be limited either to these few conventional interests or to questions of disposition of public properties. Public trust problems are found whenever governmental regulation comes into question, and they occur in a wide range of situations in which diffuse public interests need protection against tightly organized groups with clear and immediate goals. Thus, it seems that the delicate mixture of procedural and substantive protections which the courts have applied in conventional public trust cases would be equally applicable and equally appropriate in controversies involving air pollution, the dissemination of pesticides, the location of rights of way for utilities, and strip mining or wetland filling on private lands in a state where governmental permits are required."
32. We may at this stage refer to the judgment of the Supreme Court of California in National Audubon Society v. Superior Court of Alpine County 33 Cal 3d 419. The case is popularly known as "the Mono Lake Case", Mono lake is the second largest lake in California. The lake is saline. It contains no fish but supports a large population of brine shrimp which feed vast numbers of nesting and migrating birds. Islands in the lake protect a large breeding colony of California gulls, and the lake itself serves as a haven on the migration route for thousands of birds. Towers and spires of tura (sic) on the north and south shores are matters of geological interest and a tourist attraction. In 1940, the Division of Water Resources granted the Department of Water and Power of the city of Los Angeles a permit to appropriate virtually the entire flow of 4 of the 5 streams flowing into the lake. As a result of these diversions, the level of the lake dropped, the surface area diminished, the W.P.(C).Nos.41156/17 & 9553/18 -:36:- gulls were abandoning the lake and the scenic beauty and the ecological values of the Mono Lake were imperiled. The plaintiffs environmentalist - using the public trust doctrine - filed a law suit against Los Angeles Water Diversions, the case eventually came to the California Supreme court, on a Federal Trial Judge's request for clarification of the States public trust doctrine. the Court explained the concept of public trust doctrine in the following words:-
"By the law of nature these things are common to mankind - the air, running water, the sea and consequently the shores of the sea." (Institutes of Justinian 2.1.1.) From this origin in Roman law, the English common law evolved the concept of the public trust, under which the sovereign owns "all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people."
The Court explained the purpose of the public trust as under:-
"The objective of the public trust has evolved in tandem with the changing public perception of the values and uses of waterways. As we observed in Marks v. Whitney, 6 Cal.3d 251, "public trust easements were traditionally defined in terms of navigation, commerce and fisheries. They have been held to include the right to fish, hunt, bathe, swim, to use for boating and general recreation purposes the navigable waters of the state, and to use the bottom of the navigable waters for anchoring, standing, or other purposes. We went on, however, to hold that the traditional triad of uses-navigation, commerce and fishing- did not limit the public interest in the trust res. In language of special importance to the present setting, we stated that W.P.(C).Nos.41156/17 & 9553/18 -:37:- "[t]he public uses to which tidelands are subject are sufficiently flexible to encompass changing public needs. In administering the trust the State is not burdened with an outmoded classification favouring one mode of utilization over another. There is a growing public recognition that one of the most important public uses of the tidelands-a use encompassed within the tidelands trust-is the preservation of those lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the secondary and climate of the area."
Mono Lake is a navigable waterway. It supports a small local industry which harvests brine shrimp for sale as fish food, which endeavour probably qualifies the lake as a "fishery" under the traditional public trust cases. The principal values plaintiffs seek to protect, however, are recreational and ecological-the scenic views of the lake and its shore, the purity of the air, and the use of the lake for nesting and feeding by birds. Under Marks v. Whitney 6 Cal 3d 251, it is clear that protection of these values is among the purposes of the public trust."
The Court summed up the powers of the State are trustee in the following words:-
"Thus, the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust......"
W.P.(C).Nos.41156/17 & 9553/18 -:38:- The Supreme Court of California, inter alia, reached the following conclusion:-
"The State has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. Just as the history of this state shows that appropriation may be necessary for efficient use of water despite unavoidable harm to public trust values, it demonstrates that an appropriative water rights system administered without consideration of the public trust may cause unnecessary and unjustified harm to trust interests. (See Johnson, 14 U.C. Davis L. Rev. 233, 230-256-57/; Robie, Some Reflections on Environmental Considerations in Water Rights Administration, 2 Ecology L.Q. 695, 710-711 (1972); Comment, 33 Hastings L.J. 653, 654.) As a matter of practical necessity the State may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the state must bear in mind its duty as trustee to consider the effect of the taking on the public trust (see United Plainsmen v. N.D. State Water Cons. Comm'n, 247 N.W. 2D 457 (ND 1976) at pp. 462-463, and to preserve, so far as consistent with the public interest, the uses protected by the trust."
The Court finally came to the conclusion that the plaintiffs could rely on the public trust doctrine in seeking reconsideration of the allocation of the waters of the Mono basin.
33. It is no doubt correct that the public trust doctrine under the English Common Law extended only to certain traditional uses such as navigation, commerce and fishing. But the American Courts in recent cases have W.P.(C).Nos.41156/17 & 9553/18 -:39:- expanded the concept of the public trust doctrine. The observations of the Supreme Court of California in Mono Lake case clearly show the judicial concern in protecting all ecologically important lands, for example fresh water, wetlands or riparian forests. The observation of the Court in Mono Lake case to the effect that the protection of ecological values is among the purpose of public trust, may give rise to an argument that the ecology and the environment-protection is a relevant factor to determine which lands, waters or airs are protected by the public trust doctrine. The Courts in United States are finally beginning to adopt this reasoning and are expanding the public trust to encompass new types of lands and waters. In Phillips Petroleum Co. v. Mississippi 108 SCt 791 (1988), the United States Supreme Court upheld Mississippi's extension of public trust doctrine to lands underlying non-navigable tidal areas. The majority judgment adopted ecological concepts to determine which lands can be considered tide lands. Phillips Petroleum case assumes importance because the Supreme Court expanded the pubic trust doctrine to identify the tide lands not on commercial considerations but on ecological concepts. We see no reason why the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources.
34. Our legal system - based on English Common Law
- includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to W.P.(C).Nos.41156/17 & 9553/18 -:40:- protect the natural resources. These resources meant for public use cannot be converted into private ownership.
35. We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open land sin their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasing complex society, find it necessary to encroach to some extent open lands heretofore considered in-violate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public goods and in public interest to encroach upon the said resources."
22. It is pertinent to note that in order to controvert the reports of official authorities, no convincing evidence is produced before us by the petitioner in W.P.(C) No.41156 of 2017, the owner of the property, so as to interfere with Exhibit-P7 order dated 08.12.2017, exercising the power of W.P.(C).Nos.41156/17 & 9553/18 -:41:- judicial discretion under Article 226 of the Constitution of India. Taking into account the totality of legal and factual circumstances, we are of the view that there is no illegality, arbitrariness or unfairness on the part of the District Collector, Malappuram in passing Exhibit-P7 order dated 08.12.2017 under the provisions of the Disaster Management Act, 2005, directing the petitioner in W.P.(C) No.41156 of 2016 to demolish the structure. It is also an admitted fact that 20 tribal families are residing in the downstream of the hillock, which is about 750 metres from the check dam and if any landslide or other disaster happens, the calamities which occur in pursuance of the same would cause serious threat to human life. Therefore, the challenge made to Exhibit- P7 order dated 08.12.2017 specified above fails and accordingly, W.P.(C) No.41156 of 2017 is dismissed.
23. However, the fact remains that water was drained out from the check dam during monsoon season by creating a vent way, in accordance with the interim orders issued by this Court periodically. Though the public interest litigant has a contention that even now there is water in the check dam, it is evident from the report filed by the District Collector that the vent way created was sufficient enough to drain out the water, so as to avert any possible danger that may occur due to accumulation of water in the dam.
24. Insofar as W.P.(C) No.9553 of 2018, the relief sought for by the petitioner to demolish the water theme park established by the 5 th W.P.(C).Nos.41156/17 & 9553/18 -:42:- respondent, i.e. Sri. P. V. Anvar, M.L.A., has virtually become infructuous consequent to the draining out of water from the check dam, as specified above. However, we make it clear that the District Collector, Malappuram, shall be at liberty to conduct periodical inspection and identify whether, any activities are taking place in the check dam area, without securing permission from the statutory authorities concerned, and whether, water is being accumulated in the check dam, so as to cause danger and damage to the ecology, the environment, and the tribals residing in the nearby area. The said writ petition is disposed of recording that already the water from the check dam is drained out. As we have upheld Exhibit-P7 order of the District Collector, Malappuram dated 08.12.2017 in W.P.(C) No.41156 of 2017, authorities are directed to ensure that no further activities are conducted in the area in question by blocking the natural water course.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE krj W.P.(C).Nos.41156/17 & 9553/18 -:43:- APPENDIX OF WP(C) 41156/2017 PETITIONER'S/S EXHIBITS:
EXHIBIT P1: TRUE COPY OF THE REPORT BEARING NO.H2-15628/2015 DATED 12.8.2015.
EXHIBIT P2: TRUE COPY OF THE REPORT BEARING NO.A2-6338/20196 DATED 17.12.2016.
EXHIBIT P3: TRUE COPY OF THE ORDER DATED 7.9.2015.
EXHIBIT P4: TRUE COPY OF THE NOTICE BEARING DATED 19.8.2017 FROM THE 3RD RESPONDENT ON 23.8.2017.
EXHIBIT P5: TRUE COPY OF THE OBJECTION DATED 24.8.2017.
EXHIBIT P6: TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER IN THE FORM OF A STATEMENT DATED 30.8.2017.
EXHIBIT P7: TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DISTRICT COLLECTOR BEARING NO.37277/15/B2 DATED 8.12.2017 SERVED ON THE PETITIOENR ON 12.12.2017.
EXHIBIT P8: TRUE COPY OF THE STATEMENT MADE BY THE HONOURABLE CHIEF MINISTER IN THE LEGISLATIVE ASSEMBLY ON 21.8.2017.
EXHIBIT P9: TRUE COPY OF THE REPORT DATED 23.5.2015. RESPONDENTS' EXHIBITS:-
ANNEXURE I:- COPY OF THE REPORT DATED 1/7/2019 SENT BY THE DISTRICT COLLECTOR, MALAPPURAM REGARDING THE PROGRESS OF WORK.
ANNEXURE II:- COPY OF REPORT DATED 28.06.2019 SUBMITTED BY THE EXECUTIVE ENGINEER, IRRIGATION DIVISION, MALAPPURAM ALONG WITH SKETCH PLAN TO THE DISTRICT COLLECTOR, MALAPPURAM.
ANNEXURE-R2(A):- COPY OF THE STOP MEMO DATED 17/08/2015 ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(A):- COPY OF THE JOINT INSPECTION REPORT DATED 03.10.2019.
ANNEXURE-R2(B):- COPY OF THE ORDER REF. NO.B2/37277/2015 (1) DATED 20.08.2015 ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(C):- COPY OF THE NOTICE NO.B2/37277/2015(2) DATED 20.08.2015 ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(D):- COPY OF THE STATEMENT SUBMITTED BY SRI.SANKARAN NAMBOOTHIRI, FATHER OF NISHA NAMBOOTHIRI ALONG WITH ENGLISH TRANSLATION. W.P.(C).Nos.41156/17 & 9553/18 -:44:- ANNEXURE-R2(E):- COPY OF THE DIRECTION DATED 07/09/2015 ISSUED BY THE DISTRICT COLLECTOR TO THE SUB COLLECTOR, PERINTHALMANNA ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(F):- COPY OF THE REPORT DATED 03.03.2016 OF THE SUB COLLECTOR, PERINTHALMANNA.
ANNEXURE-R2(G):- COPY OF THE STATEMENT DATED 30/08/2017 BY SRI.P.V.ANWAR ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(H):- COPY OF THE STATEMENT DATED 30.08.2017 SUBMITTED BY SRI.C.K.ABDUL LATHEEF.
ANNEXURE-R2(I):- COPY OF THE REPORT DATED 8.12.2017 ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(J):- COPY OF THE RATIFICATION ORDER DATED 11.12.2017 ALONG WITH ENGLISH TRANSLATION.
R3(A):- COPY OF THE REPORT OF THE EXPERT COMMITTEE SUBMITTED BY THE EXECUTIVE ENGINEER, IRRIGATION DEPARTMENT, MALAPPURAM ALONG WITH ENGLISH TRANSLATION.
R8(A):- COPY OF THE STOP MEMO DATED 17/8/2015 ISSUED BY VILLAGE OFFICER ALONG WITH ENGLISH TRANSLATION.
R8(B):- COPY OF THE REPORT OF THE TAHSILDAR DATED 15/1/2016 SUBMITTED BY THE TAHSILDAR TO THE SUB COLLECTOR, PERINTHALMANNA ALONG WITH ENGLISH TRANSLATION.
R8(C):- COPY OF THE REPORT OF THE SUB COLLECTOR DATED 3/3/2016 ALONG WITH ENGLISH TRANSLATION.
R8(D):- COPY OF THE COMPLAINT DATED 14/03/2017 SUBMITTED TO THE SUB COLLECTOR, PERINTHALMANNA ALONG WITH ENGLISH TRANSLATION.
R8(E):- COPY OF THE COMPLAINT DATED 24/09/2017 SUBMITTED TO THE SUB COLLECTOR PERINTHALMANNA ALONG WITH ENGLISH TRANSLATION.
R8(F) COPY OF THE LETTER DATED 5/12/2017 ISSUED BY THE 7TH RESPONDENT ALONG WITH ENGLISH TRANSLATION.
R8(G):- COPY OF THE ORDER DATED 13.11.2017 ISSUED BY THE KERALA STATE SCHEDULED CASTE AND SCHEDULED TRIBE COMMISSION ALONG WITH ENGLISH TRANSLATION.
R8(H):- COPY OF THE AGREEMENT FOR SALE EXECUTED BETWEEN THE PRIOR OWNERS AND SRI.P.V.ANWAR ALONG WITH ENGLISH TRANSLATION. W.P.(C).Nos.41156/17 & 9553/18 -:45:- APPENDIX OF WP(C) 9553/2018 PETITIONER'S/S EXHIBITS:
EXHIBIT P1: COPY OF THE REPORT DATED 2.7.2015 SUBMITTED BY THE DIVISIONAL FOREST OFFICER, NILAMBUR NORTH DIVISION TO THE 3RD RESPONDENT, WITH ITS TRANSLATION.
EXHIBIT P2: COPY OF THE LANDSLIDE SUSCEPTIBILITY MAP EXTRACTED FROM THE DISTRICT DISASTER MANAGEMENT PLAN.
EXHIBIT P3: COPY OF THE REPORT DATED 13.2.2017 SUBMITTED BY THE DIVISIONAL FOREST OFFICER, NILAMBUR NORTH DIVISION TO THE 3RD RESPONDENT, WITH ITS TRANSLATION.
EXHIBIT P4: COPY OF THE ORDER DATED 10.8.2017 ISSUED BY KERALA STATE POLLUTION CONTROL BOARD TO THE 4TH RESPONDENT, WITH ITS TRANSLATION.
EXHIBIT P5: COPY OF THE REPORT DATED 31.8.2017 SUBMITTED BY THE DISTRICT COLLECTOR, KOZHIKODE, BEFORE THE 2ND RESPONDENT, WITH ITS TRANSLATION.
EXHIBIT P6: COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT ON 8.12.2017, WITH ITS TRANSLATION.
EXHIBIT P7: COPY OF THE ORDER ISSUED BY THE SCHEDULED-CASTE AND SCHEDULED TRIBE COMMISSION ON 8.12.2017 IN COMPLAINT NO. 5899/A3/MLP/2016/KSCSC & ST, WITH ITS TRANSLATION.
EXHIBIT P8: COPY OF THE REPRESENTATION DATED 5.10.2017, SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT, WITH ITS TRANSLATION.
EXHIBIT P9: COPY OF THE RELEVANT EXTRACT OF THE DECLARATION, SUBMITTED BY THE 5TH RESPONDENT BEFORE THE RETURNING OFFICER, WITH ITS TRANSLATION.
RESPONDENTS' EXHIBITS:-
EXT.R5(A):- COPY OF THE FACT FINDING REPORT DATED 9/02/2018 ALONG WITH THE TRUE ENGLISH TRANSLATION.
EXT.R5(B):- COPY OF THE CONSENT VARIATION ORDER ISSUED BY THE POLLUTION CONTROL BOARD ON 3.01.2018.
ANNEXURE I:- COPY OF THE REPORT DATED 1/7/2019 SENT BY THE DISTRICT COLLECTOR, MALAPPURAM REGARDING THE PROGRESS OF WORK.
ANNEXURE II:- COPY OF REPORT DATED 28.06.2019 SUBMITTED BY THE EXECUTIVE ENGINEER, IRRIGATION DIVISION, MALAPPURAM ALONG WITH SKETCH PLAN TO THE DISTRICT COLLECTOR, MALAPPURAM.
ANNEXURE-R2(A):- COPY OF THE STOP MEMO DATED 17/08/2015 ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(A):- COPY OF THE JOINT INSPECTION REPORT DATED 03.10.2019. W.P.(C).Nos.41156/17 & 9553/18 -:46:- ANNEXURE-R2(B):- COPY OF THE ORDER REF. NO.B2/37277/2015 (1) DATED 20.08.2015 ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(C):- COPY OF THE NOTICE NO.B2/37277/2015(2) DATED 20.08.2015 ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(D):- COPY OF THE STATEMENT SUBMITTED BY SRI.SANKARAN NAMBOOTHIRI, FATHER OF NISHA NAMBOOTHIRI ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(E):- COPY OF THE DIRECTION DATED 07/09/2015 ISSUED BY THE DISTRICT COLLECTOR TO THE SUB COLLECTOR, PERINTHALMANNA ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(F):- COPY OF THE REPORT DATED 03.03.2016 OF THE SUB COLLECTOR, PERINTHALMANNA.
ANNEXURE-R2(G):- COPY OF THE STATEMENT DATED 30/08/2017 BY SRI.P.V.ANWAR ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(H):- COPY OF THE STATEMENT DATED 30.08.2017 SUBMITTED BY SRI.C.K.ABDUL LATHEEF.
ANNEXURE-R2(I):- COPY OF THE REPORT DATED 8.12.2017 ALONG WITH ENGLISH TRANSLATION.
ANNEXURE-R2(J):- COPY OF THE RATIFICATION ORDER DATED 11.12.2017 ALONG WITH ENGLISH TRANSLATION.
EXT.R4(A):- COPY OF THE ORDER DATED 18.06.2018 ISSUED BY RESPONDENT NO.4 ALONG WITH ENGLISH TRANSLATION.
EXT.R4(B):- COPY OF THE PRELIMINARY STUDY REPORT DATED 20.06.2018 SUBMITTED BY THE DISTRICT GEOLOGIST.
EXT.R4(C):- COPY OF THE LETTER DATED 11/07/2018 ADDRESSED BY THE RESPONDENT NO.4 TO THE ADDITIONAL CHIEF SECRETARY, DISASTER MANAGEMENT DEPARTMENT ALONG WITH ENGLISH TRANSLATION.
EXT.R4(D):- COPY OF THE LETTER DATED 6.9.2018 ADDRESSED BY THE TAHSILDAR, THAMARASSERY TO DISTRICT COLLECTOR, KOZHIKODE ALONG WITH ENGLISH TRANSLATION.
EXT.R4(E):- COPY OF THE ORDER DATED 7.9.2018 ALONG WITH ENGLISH TRANSLATION.
//TRUE COPY// P.A. TO CJ