The Municipality has the authority to divert water courses for public purposes, and judicial review is limited in interfering with reasonable proposals of the Local Self Government Institution.

The petitioner owns 10 cents of land in Survey No.1015/1 of Kothamangalam Village. The said property is situated on the banks of Kuroor thodu and the petitioner in the above writ petition raises serious concerns on the decision of the respondent Municipality to divert Kuroor thodu.

2. The thodu is said to be a rivulet, which is not man made and a tributary of the Periyar River. The thodu cuts through the Municipal Town area and is said to have made the outward precincts of the Municipality, suitable for paddy cultivation. In passing, it is also stated that there are encroachments on the banks of the thodu; but no such encroacher has been made a party in the above writ petition.

3. The cause of action for the above writ petition is said to have its origin in a proposal of the Municipality to acquire certain property, for construction of a Town Hall. Ext P4 is the Government sanction for such acquisition and Ext.P5 indicates Section 17 of the Land Acquisition Act, 1894; the emergency clause, having been invoked for acquisition of the said property. Ext.P6 is the location sketch drawn up for the purpose of acquisition. Obviously, the acquisition materialsed but the plan to construct a Town Hall was allegedly shelved. The property remained as such and Kuroor thodu flowed through the boundary of the said property. The Survey sketch showing the thodu and the proposed diversion is produced at Ext.P10. The location sketch shows that the thodu runs through the northern and eastern boundary of the property comprised in Survey No.1015/1. The proposed diversion is adjacent to the southern boundary of Survey No.1015/1. The serpentine course of the thodu is sought to be straightened and a portion attempted to be diverted through the center of the acquired property, which acquisition was for the purpose of constructing a Town Hall. The new proposal to divert the water course is evident at Ext.P8, which is a communication from the Chairman of the Municipality to the Chief Engineer, Irrigation, Thiruvananthapuram.

4. The petitioner's contention is that, the thodu had 40 meters width, which is now sought to be reduced to 24 meters and this would, in fact, cause flooding of the property in Survey No.1015/1. The challenge, according to the learned counsel appearing for the petitioner, is raised on multifarious grounds, as indicated below:

(i) The land acquired through which the diversion of the thodu is now proposed was acquired for a specific purpose and the same cannot be utilised for another purpose.

(ii) There can be no filling up of the existing thodu since, though the thodu vests in the Local Self Government Institution, the power conferred under Section 30 of the Kerala Municipality Act, 1994, read with Schedule I entry 5 is only for maintenance of the thodu, and not for filling it up. The learned counsel would also rely on Kuriyakose Thomas v. Ombudsman for Local Self Government Institution and others - 2014 (1) ILR 366 to buttress the above contention.

(iii) Even according to the 4th respondent, the Officer of the Irrigation Department, there is to be no filling up of the thodu, but the diversion now proposed definitely would require filling up of certain portion of the thodu.

(iv) The Municipality has attempted to exchange a portion of the property, acquired by the Municipality to the property owner who has land in Survey No.1015/3 and that coupled with the diversion proposed, would render a portion of the acquired property land-locked.

(v) There are trespassers on the thodu which trespass has to be removed and the thodu restored to its original state. That alone would suffice to mitigate the issue of flooding and roads being inundated during monsoon, which presumably is sought to be addressed by the diversion. Hence, no purpose would be served.

(vi) The drainage of the Municipality opens into the thodu at the portion which is now sought to be filled up, and the diversion would only flood the town area more during monsoon.

(vii) Ma