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 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 6th 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 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, th