Point of Law: Section 3 to 5 of Chapter II of Chapter II of the Act, 2003 deals with 'conservation of water in water courses.

JUDGMENT :

SHAJI P. CHALY, J.

The captioned appeal is filed by the petitioner in W.P.(C) No. 3250 of 2022 challenging the judgment of a learned single Judge dated 26.10.2022, whereby the following reliefs sought for in the writ petition were declined:

1. To issue a writ of certiorari or such other writ, direction or order calling for the records leading to Ext.P3 order of the first respondent and quash the same;

2. To issue a writ, direction or order in the nature of mandamus or such other appropriate writ, direction or order directing the first respondent to reconsider Ext.P3 order on the basis of Ext.P4 and after hearing the views of the 4th respondent, the petitioner and other stake holders.

2. The challenge in the writ petition was against Exhibit P3 order dated 30.08.2021 passed by the District Collector on the basis of a direction issued by a learned single Judge of this Court in W.P.(C) No. 29037 of 2020-D dated 22.12.2020 filed by the General Secretary of the Kerala River Protection Committee, whereby the District Collector, taking into account Sections 3, 4 and 5 of the Kerala Irrigation and Water Conservation Act, 2003 (‘Act, 2003’ for short) directed the appellant to demolish the check dam constructed in his property by blocking a stream flowing through the property.

3. The paramount contention advanced by the appellant is that the impugned order passed by the District Collector is not in accordance with law and that the term “thadayana’ is a malayalam term having a meaning ‘check dam’ intended to restrain the flow of water or collect water. According to the appellants, what is now constructed is a structure to ensure free flow of water without affecting the movement of the people across the land on either side. It is also submitted that the pipelines were laid before putting tiles and making it a road to ensure the free flow of water across the lands. It is further pointed out that the Grama Panchayat did not oppose it for the reason that it will help the people to make use of the same as a public way to go to different places.

4. It is further contended that in the light of Exhibit P3 order, tenders are invited for undertaking the demolition work of the pipelines and that if the said road is demolished, it will adversely affect the right of the people to move freely from one place to another. So also, it is stated that the local people who are making use of the road has approached the District Collector — respondent No.1, to review the decision taken as per Exhibit P3, evident from Exhibit P4.

5. It is also submitted that if the pipelines are removed, it will damage the road and will put a lot of people, including the petitioner, into difficulties. It is also contended that the District Collector has no independent power as Chairman to pass orders under the Disaster Management Act, 2005 and further that powers are conferred on him to pass such orders only in emergent situations, which are unavoidable. Therefore, it is contended that Exhibit P3 order is illegal and arbitrary. It is also submitted that the construction made by the appellant would not affect the free flow of the natural course of water and the construction was made to ensure free flow of water and there wouldn't any adverse effect by blocking the running water.

6. The 5th respondent complainant has filed a detailed counter affidavit supporting Exhibit P3 order passed by the District Collector. An Advocate Commissioner was appointed by this Court to ascertain the factual circumstances and the Commissioner has also filed a detailed report. Additional documents are also produced by the appellant and a reply affidavit is also filed.

7. The learned single Judge, after considering the rival submissions made by the parties, has arrived at the conclusion that as the water course belongs to the Government, the doctrine of public trust would come into play and it enjoins the Government to protect the resources for the enjoyment of the general public, rather than to per