(2013) 301 KLR 400 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE FRIDAY, THE 22ND DAY OF MARCH 2013/1ST CHAITHRA 1935 WP(C).No. 15401 of 2012 (A) ---------------------------- PETITIONER: ------------------ KARTHIKEYAN NAIR M.R. , AGED 57 YEARS S/O. BHASKARAN NAIR MADATHIPARAMBIL HOUSE, VELLOORKONAM, ANACHAL MARKET P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN:686691. BY ADVS.SRI.P.K.IBRAHIM SMT.A.A.SHIBI RESPONDENTS: ---------------------- 1. THE ASSISTANT EXECUTIVE ENGINEER PERIYAR VALLEY, IRRIGATION PROJECTS SUB DIVISION , BHOOTHATHANKETTU, ERNAKULAM DISTRICT PIN:686691 2. DEPARTMENT OF IRRIGATION, GOVERNMENT OF KERALA REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001. 3. DEPARTMENT OF COASTAL SHIPPING AND INLAND NAVIGATION GOVERNMENT OF KERALA REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-695 001. 4. THE SECRETARY, DEPARTMENT OF PORT GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695 001. 5. DIRECTOR OF PORTS, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 6. THE LICENSING AUTHORITY UNDER INLAND VESSELS RULES, 2010 MUNAMBAM, KODUNGALLUR PORT, PIN: 680 664. ADDL.R7 IMPLEADED ------------------------------- BINOY M. THOMAS, AGED 49 YEARS, S/O.THOMAS, MANNACHERIL HOUSE, PERUMAN P.O. PIN 686 693, IMPLEADED AS PER ORDER DATED 2.11.12 IN IA.14473/12. ADDL.R8 IMPLEADED ------------------------------ DR.PYARILAL S.K., AGED 54 YEARS, S/O.K.R.KRISHNAN, RESIDING AT SREENILAYAM, KOCHI UNIVERSITY P.O., KOCHI 682 022, IMPLEADED AS PER ORDER DATED 2.11.12 IN IA.1464/12 BY SRI.P.VIJAYARAGHAVAN, STATE ATTORNEY BY GOVERNMENT PLEADER SRI.P.K.ABDUL SALAM BY ADV. SRI. M.AJAY, SC, KERALA STATE POLLUTION CONTROL BOARD ADDL.R7 BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JAGAN GEORGE SRI.K.A.NOUSHAD SRI.P.G.PRAMOD SRI.C.P.KOSHY BY SRI.PYARILAL.S.K. (PARTY-IN-PERSON) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 15401 of 2012 (A) --------------------------------------- APPENDIX ---------- PETITIONER(S) EXHIBITS -----------------------
RESPONDENTS' EXHIBITS : --------------------------------------
/ TRUE COPY / PA. TO JUDGE VK A.M. SHAFFIQUE, J --------------------------------------- W.P.(C). NO. 15401 OF 2012 ---------------------------------------- Dated this the 22nd day of March, 2013 Head Note:- Kerala Irrigation and Water Conservation Act, 2003 - Sections 37 & 43 - Inland Vessels Act, 1917 - Kerala Inland Vessels Rules, 2010 - Defence of India Rules, 1962 - 'irrigation work' - navigation - Government may by notification prohibit or redeem by license or otherwise navigation for commercial purpose in an irrigation work. Navigation for commercial purpose includes carriage of persons or goods in connection with business, trade or commerce. Unless a permission is granted by the Government in terms of Section 43 or a permission is obtained from the Irrigation Officer as defined under the Act, the petitioner or similarly placed persons cannot ply their vessels in the reservoir. The absolute control of the Government in respect of areas which constitutes the reservoir as well. Government has absolute authority to control plying of vessels in the irrigation work and in the absence of any such permission, it is open for the 1st respondent to prevent the petitioner from operating the vessel. J U D G M E N T The petitioner challenges Ext.P5 an order issued by the 1st respondent restraining the petitioner from operating a vessel in the reservoir area of Thattekkad and Boothathankettu. The reason for issuing Ext. P5 is that, the petitioner had not obtained any permission from the Irrigation Department for conducting boat service in the said area. Since the boat is anchored in the catchment area, there is a direction to remove it from the said area. 2. The main contention urged by the petitioner is that he is having a valid registration for the vessel under the Inland Vessels Act, 1917 read with Kerala Inland Vessels Rules, 2010. The area now specified by the 1st respondent is also an inland water where no further permission is required and therefore Ext. P5 is primarily illegal and issued with malafide intention. The malafides according to the petitioner is the malice that had developed on account of the Rules framed by which authority is given to the Port Officer under the Kerala Inland Vessels Rules, 2010, consequent to which the Irrigation Department does not have any role in the matter. Illegality is pointed out by stating that Ext. P5 is issued in violation of the principles of natural justice and that there is no provision enabling the Irrigation Department to exercise jurisdiction to stop an activity which is permissible under the Inland Vessels Act and the Rules framed thereunder. A further contention urged is that the petitioner's livelihood had been effected on account of the immediate action of stopping the operation in the catchment area of Thattekkad and Boothathankettu. 3. Counter affidavit is filed by the 1st respondent inter alia contending that the entire area is forming part of the reservoir of the dams and therefore the Irrigation Department have absolute jurisdiction to issue such orders like Ext. P5 under the provisions of the Kerala Irrigation and Water Conservation Act, 2003. It is also contended that the area is declared as protected area under the Defence of India Rules, 1962 and therefore any activity in the said area could be done only with the permission of the Irrigation Department who is the absolute authority to decide whether a vessel could ply in the catchment area of the reservoir. That apart it is contended that for security reasons as well it has to be verified whether the vessel could ply or not, especially in view of the fact accidents have happened on earlier occasions causing death of many. That apart it is contended when the dams are opened there will be tremendous flow of water towards the dam and at that point of time if the vessels are plied it will be totally unsafe for the vessel as well as the passengers, who are generally tourists. 4. The additional 7th respondent has also filed counter affidavit. He is a member of the Panchayath and he resides near the dam. According to him the reservoir is used as a water source for the general public of five Panchayaths and if the vessel is plying without any restriction, it will cause pollution to the water body which will effect the public at large. 5. The first question to be decided in the writ petition is whether the 1st respondent has jurisdiction to pass Ext. P5 order. 6. Heard the learned counsel for the petitioner and the learned Government Pleader and the learned counsel appearing for the 7th respondent. 7. It is not in dispute that once a registration is obtained for a vessel under the Inland Vessels Act, 1917 and the Rules framed thereunder, it is open for the registered owner of the vessel to ply the vessel in the navigable channels as defined under Section 2(1)(y) of the Inland Vessels Act, 1917. In other words no further permission is required under any other provision of law. 8. The question is whether in respect of the aforesaid reservoir which is a catchment area of two dams whether any permission is required at all. The learned Government Pleader as well as the learned counsel appearing for the 7th respondent relied upon the provisions of the Kerala Irrigation and Water Conservations Act, 2003 (hereinafter referred as the KIWC Act). Specific reference is made to Section 37 and Section 43 which reads as under. 37. No encroachment shall be allowed in the irrigation land.- (1) No person shall occupy any irrigation land for cultivation or for any other purpose and the irrigation officer shall take all necessary steps to remove encroachment on such lands. Explanation:- For the purposes of this sub-section 'irrigation land' means any land owned, controlled or maintained by Government for the purposes of an irrigation work but shall not include a poramboke. (2) The Government may declare any project area or any irrigation land or part thereof as protected area and entry to such area shall be restricted by the concerned officers. (3) No person shall let out any industrial effluent or domestic effluent to any water course without proper treatment. 43. Control of Navigation.- The Government may, by notification, prohibit or regulate by license or otherwise navigation for commercial purpose in an irrigation work. Explanation:- For the purpose of this Section, navigation for commercial purpose shall include carriage of persons or goods in connection with any business, trade or commerce. 9. The contention urged by the respondent is that the catchment area of Dams would come under the definition of irrigation work as defined under Section 2(w) of the Act. Specific reference is made to Section 2(w)(i) and 2(w)(vi) which reads as under. 2(w)(i). all canals, field channels, reservoirs and tanks, tube wells and filter point wells which are intended or which may be used for the supply, collection, storage or retention of water for agricultural purposes; 2(w)(vi). all lands and works in all lands occupied by the Government or a local authority for the purpose of such canals, channels, reservoirs or tanks and all buildings, machinery, fences, gates and other erections on such lands; and 10. Going by the definition given to 'irrigation work' it cannot be disputed that reservoirs or dams do come under the definition of irrigation work. If that definition is applied Section 37 imposes a restriction on any person to enter into or occupy any irrigation land which includes irrigation work also, in terms of the explanation. The prohibition is to restrict any person to occupy any irrigation land for cultivation or for any other purpose and it is open for the Irrigation Officer to take all necessary steps to remove such encroachment on lands. Section 43 however imposes a restriction regarding navigation which indicates that the Government may by notification prohibit or redeem by license or otherwise navigation for commercial purpose in an irrigation work. The explanation also carries importance insofar as it states that navigation for commercial purpose includes carriage of persons or goods in connection with business, trade or commerce. It is therefore the contention of the respondents that unless a permission is granted by the Government in terms of Section 43 or a permission is obtained from the Irrigation Officer as defined under the Act, the petitioner or similarly placed persons cannot ply their vessels in the reservoir. This argument appears to be justified. A conjoint reading of the aforesaid provisions indicates the absolute control of the Government in respect of areas which constitutes the reservoir as well. Government has absolute authority to control plying of vessels in the irrigation work and in the absence of any such permission, it is open for the 1st respondent to prevent the petitioner from operating the vessel. 11. Therefore, I am of the view that Ext. P5 is issued pursuant to the powers available to the Irrigation Officer under the provisions of the KIWC Act. 12. The further contention is that the order is issued without notice. First of all there was no permission to operate the vessel in the said area and therefore it is open for the authorities concerned to prohibit plying of the said vessel and for removing of the same. Unless permission is obtained either from the Government or the Officer concerned, it is not possible for any person to ply a vessel in an "irrigation work which includes a reservoir". That being the situation, absence of issuing notice will not amount to any prejudice to the petitioner and no useful purpose will be served in issuing such a notice which will only be an empty formality. 13. The learned counsel for the petitioner submits that the impugned order is bad on account of malafides. The petitioner relies upon the judgment of the Supreme Court in Ravi Yashwant Bhoir v. District Collector, Raigad and Others [2012(4) SCC 407]. As I have already held that the authority concerned have a statutory right to prohibit the petitioner from operating the vessel. Hence I do not think that the reason stated alleging malafides is in any way justified. Further argument is raised by the learned counsel for the petitioner based on the judgment of the Supreme Court in D.K.Yadav v. J.M.A. Industries Ltd. [1993 (3) SCC 259] to contend that his right to livelihood have been taken away by virtue of Ext. P5 order. As already indicated that right to operate the vessel which is his livelihood should flow from a right to operate the vessel in the said area. In so far as the petitioner did not have such a permission no right is available which can crystalise into a right under Article 21 of the Constitution of India. That apart it is open for the petitioner to operate the said vessel in any other inland water for which he does not require permission from the Irrigation Department. It is also open for the petitioner to approach the Irrigation Department for permission and it shall be open for them to give such permission as envisaged under the provisions of the KIWC Act. The contention urged by the learned Government Pleader with reference to the Defence of India Rules and based on Ext. R1(b) does not arise for consideration as the area notified is only "PVIP Head Works at Planthode River Regular at Boothathankettu". It does not extent to the entire catchment area of the reservoir. The restriction is to a particular area alone. Having regard to the aforesaid findings, I do not think that any other question arises for consideration in the above writ petition. Accordingly the writ petition is dismissed. This judgment shall not preclude the petitioner from approaching the Government or the appropriate Officer for obtaining permission to ply the vessel in terms of provisions of KIWC Act. Sd/- A.M. SHAFFIQUE JUDGE DCS |