Vishwanathan Nair S/o. Late Kesavan Nair v. Chittar Grama Panchayat
2025-02-20
NITIN JAMDAR, S.MANU
body2025
DigiLaw.ai
JUDGMENT : Nitin Jamdar, C. J. This group of cases relate to the Kariyakam Small Hydro Electric Project across the Kakkad River in the Pathanamthitta District. There are five proceedings before us, four petitions which are pending before the learned Single Judge are tagged along with a writ appeal. W. P. (C) Nos. 33889 and 36613 of 2016 and 12736 of 2017 and W. A. No. 220 of 2017 are filed by the villagers/residents of Chittar Grama Panchayat who are having their houses and agricultural fields within the periphery of the dam. W. P. (C) No. 3008 of 2024 is filed by Ayyappa Hydro Power Ltd., a power company which constructed the dam under a Build Own Operate Transfer agreement with the Government of Kerala. 2. We have heard Mr. V. Philip Mathews, learned counsel representing the Villagers, Mr. K. Shaj, learned counsel for the power company, Mr. Sergi Joseph Thomas, learned counsel for the Grama Panchayat, Mr. S. Biju, learned Senior Central Government Counsel appearing for the Union of India and Mr. K. R. Ranjith, learned Senior Government Pleader for the State. 3. The prayers made by the Petitioner-Villagers range from prevention of encroachment, stoppage of construction in front of their houses which are causing damage to their houses and the direction to maintain a particular water level in the said dam to not threaten the houses and the agricultural fields of the villagers. The challenge is also raised to the conversion of the nature of the Power Plant from Captive Power Producers to Independent Power Producers. 4. W. A. No. 220 of 2017, because of which these writ petitions are tagged, arises from the order passed by the learned Single Judge in W. P. (C) No. 24020 of 2016 dated 6 January 2017. This petition was primarily filed in respect of the water level in the Karikayam dam and the conversion of the nature of the dam. It is also the contention of the Petitioners that the construction of the dam and other activities of this project are in contravention of the Forest (Conservation) Act, 1980 (Act of 1980). As regards the conversion of the nature of the dam and the applicability of the Act of 1980, the learned Single Judge held that, by the passage of time, the relief sought was not practicable and also belated.
As regards the conversion of the nature of the dam and the applicability of the Act of 1980, the learned Single Judge held that, by the passage of time, the relief sought was not practicable and also belated. As regards raising the water level of the dam, the learned Single Judge in the impugned order laid down a methodology after obtaining a report from the Dam Safety Authority as to how to increase the water level and how it should be monitored. Being aggrieved by the disposal of the petition in this manner, the Petitioner Villagers are in appeal along with their writ petitions which are tagged along. 5. As far as the first aspect i.e. the change in the nature of the dam from Captive Power Producers to Independent Power Producers is concerned, it is to be noted that this has taken place over a substantially long period of time in the year 2006 and based on this conversion, the project is now being continued and it is difficult to reverse the position. Similarly, as far as the other infringements of the Act of 1980 are concerned, the dam has now come up, and the power unit has also been functional for more than ten years. Thus we find no error in the view taken by the learned Single Judge, in not exercising writ jurisdiction on the ground of delay and the consequence. The writ jurisdiction is not to be exercised for correcting every error and the learned Single Judge has chosen to take a pragmatic view in the matter in view of the irreversible position. 6. With that, we turn to the main concern of the Petitioner Villagers regarding the water level to be maintained in the dam and the safety of their houses, agricultural fields, roads, houses, etc. The learned Single Judge has entered into this dispute by calling for a report of the Authority and based on the report, directed how the water level should be increased. 7. The subject of maintaining water level in a dam is a matter of expertise and requires inputs from different disciples. Various aspects have to be considered, such as the need for power generation, need for conservation of forests, need to avoid and minimize damages to the property of the residents living on the banks of the dam, etc. Expert inputs from different source need to be reconciled.
Various aspects have to be considered, such as the need for power generation, need for conservation of forests, need to avoid and minimize damages to the property of the residents living on the banks of the dam, etc. Expert inputs from different source need to be reconciled. This is provided in the Kerala Irrigation and Water Conservation Act, 2003 (Act of 2003). 8. The Act of 2003 is an Act to consolidate and amend the laws relating to the construction of irrigation works, conservation and distribution of water and to provide for involvement of farmers in water utilisation systems and for matters connected therewith or incidental thereto. Chapter II deals with the conservation of water in water courses. Chapter III of the Act of 2003 deals with the construction of irrigation works and their classification. Chapter XII constitutes the Dam Safety Authority under Section 57 of the Act of 2003. The Dam Safety Authority (Authority) under Section 58 of the Act of 2003 consists of a retired Judge of the High Court as the Chairman of the Authority; the Secretary to Government, Water Resources Department; the Chief Engineer, Investigation and Design and Chief Engineers of the Water Resources Department; the Chief Engineer of Central Water Commission; the Chief Engineer (Civil) of the Kerala State Electricity Board; the Chairman of the Kerala State Pollution Control Board; two experts in the field of conservation of water resources and dams; an eminent Geologist and the Director of Centre for Earth Science Studies (CESS); the Principal, Chief Conservator of Forests; a Police Officer not below the rank of an Inspector General of Police; and the Chief Engineer, Investigation and Design shall be the Member Secretary of the Authority. Thus, it can be seen that the Authority consists of senior officers from different departments. 9. Section 62 of the Act of 2003 lays down the functions of the Authority. The Authority has to evaluate the safety and security of all dams in the State considering among other factors, the age of the structures, geological and seismic factors, degeneration or degradation caused over time or otherwise. It has to conduct periodical inspections of all the dams. The Authority is to to advise the Government on security measures to be adopted in respect of any dam considering its vulnerability to terrorism, sabotage and the like.
It has to conduct periodical inspections of all the dams. The Authority is to to advise the Government on security measures to be adopted in respect of any dam considering its vulnerability to terrorism, sabotage and the like. It can direct the custodians to carry out any alteration, improvement, replacement or strengthening measures to any dam found to pose a threat to human life or property. It can also direct the custodian to suspend the functioning of any dam, to decommission any dam or restrict the functioning of any dam if public safety or threat to human life or property, so requires. The Authority has to advise the Government, custodian, or other agencies about policies and procedures to be followed in site investigation, design, construction, operation and maintenance of dams. The Authority has to conduct studies, inspect and advise the custodian or any other agency on the advisability of raising or lowering of the maximum water level or full reservoir level of any dam, not being a scheduled dam, taking into account the safety of the dam concerned. The custodian, or any other agency to whom it is addressed by the Authority, shall act thereon and take action within the time specified by the Authority. Where the direction is issued to any agency other than the Government by the Authority, the Government shall ensure that such other agency carries out the directions of the Authority within the time frame stipulated and all officers of the State and all legal remedies available to the State shall be utilised to ensure that the directions of the Authority are complied with. 10. Under Section 62B, the Authority while dealing with the matter of increasing augmentation or adding to the storage level or increasing maximum water level, has the power of a civil court for summoning or enforcing attendance, requiring discovery or production of documents. The proceedings before the Authority shall be deemed to be judicial proceedings under Section 62B(2). 11. Thus it is clear from the conjoint reading of Section 62 (1)(g) with Section 62 B that the Authority, not only has the duty but has collective expertise to deal with the issue of raising or lowering the maximum water level. For which it can conduct studies for lowering and raising the maximum water level. It can deal with applications for increase of maximum water level.
For which it can conduct studies for lowering and raising the maximum water level. It can deal with applications for increase of maximum water level. The proceedings for determining this aspect will be treated as judicial proceedings. Kerala Irrigation and Water Conservation Rules, 2005, have been framed under Section 94 of the Act of 2003. This Rule also deals with the procedure to be followed by the Authority. 12. Once on the specialized topic such as capping the water level in a dam, its reduction or increase, is entrusted by the Legislature to an expert authority drawn from senior officers from different departments headed by a retired High Court Judge, proceedings of which Authority are considered as judicial proceedings, the matter has to be dealt with by that Authority under the Act of 2003. This Authority, as its composition would show, will take care of various aspects which would affect their decision regarding lowering and increasing the water level of the dam. That being the position, according to us, instead of directing the manner in which the water level is to be fixed in writ jurisdiction, it ought to have left a considered decision to be taken by the statutory authority. It is the Dam Safety Authority, being the primary Authority for considering this aspect, should consider the concerns expressed by the Petitioners in the writ petitions and the need for power generation which is the concern of the Respondent Power Company and other relevant aspects while determining the water level to be maintained. 13. Accordingly, we direct that the State shall place the record compilation of W. A. No. 220 of 2017 and W. P. (C) Nos. 33889 and 36613 of 2016, 12736 of 2017 and 3008 of 2024 filed by the villagers and the power company before the Kerala Dam Safety Authority for consideration under its function under Section 62 read with Section 62B of the Act of 2003 within a period of two weeks from the date the order is uploaded. The Authority thereafter will have to take a considered decision after considering all the aspects which have been highlighted in these cases including the counter affidavits and the reply affidavits filed.
The Authority thereafter will have to take a considered decision after considering all the aspects which have been highlighted in these cases including the counter affidavits and the reply affidavits filed. Though we do not set a specific time limit for the Authority to decide the issue, considering the subject matter, we expect that the Authority will take a considered decision in the matter at the earliest. We note that the Dam Safety Authority had submitted a report, however, that was for the purpose of deciding the matter in writ jurisdiction. Now since we have entrusted the matter to the Authority as per its statutory function, the observations made by the Dam Safety Authority in the report will be considered as their prima facie opinion as the report at that time had not considered all the aspects which we have highlighted above. 14. In light of these observations, the order passed by the learned Single Judge dated 6 January 2017 in W. P. (C) No. 24020 of 2016 stands suitably modified. The Appeal is accordingly disposed of. 15. The grievance raised by the Petitioners in W. P. (C) Nos. 33889 and 36613 of 2016 and 12736 of 2017 also stands redressed in light of what we have observed above. Therefore, the above writ petitions also stand disposed of accordingly. 16. As far as W. P. (C) No. 3008 of 2024 filed by the power company is concerned, it is for a direction to consider the proposal for renewal of the lease. The learned Senior Central Government Counsel appearing for the Union of India states that according to his instructions, the proposal has been rejected and if the Petitioner Power Company so desires, they will have to apply afresh. Learned counsel for the Petitioner Power Company states that he has not been communicated with any decision. If the decision has not been communicated, the same shall be communicated to the power company within a period of six weeks from the date this judgment is uploaded. If a decision is already taken, then that decision can also be supplied within the said period. Thereafter, the remedies of the parties are left open. Accordingly, W. P. (C) No. 3008 of 2024 also stands disposed of. 17. All the proceedings are closed with the above directions.