Kerala High Court
K.M.Geevarghese vs State Of Kerala on 12 June, 2024
Author: P Gopinath
Bench: P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
WP(C) NO. 30452 OF 2018
PETITIONER:
K.M.GEEVARGHESE
AGED 66 YEARS, S/O.MARKOSE,
KOCHUPUTHENPURAYIL HOUSE, NEENDAPARA KARA,
NERIYAMANGALAM VILLAGE, KOTHAMANGALAM TALUK,
NEENDAPARA P.O., ERNAKULAM DISTRICT, PIN - 686 693.
BY ADVS.
ABU MATHEW
ROY THOMAS (MUVATTUPUZHA)
AJU MATHEW
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY TO THE GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT,
PIN - 695 001.
2 KERALA STATE ELECTRICITY BOARD LTD.,
VYDYUTHI BHAVANAM, PATTOM,
THIRUVANANTHAPURAM DISTRICT-695004,
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.
3 PROJECT MANAGER,
KERALA STATE ELECTRICITY BOARD LTD.,
OFFICE OF THE PROJECT MANAGER,
THOTTIYAR HYDRO ELECTRIC PROJECT, KARIMANAL,
THATTEKANNI P.O., IDUKKI DISTRICT-685 606.
4 DIVISIONAL FOREST OFFICER,
MUNNAR DIVISION, OFFICE OF THE DIVISIONAL FOREST
OFFICE, DEVIKULAM P.O., MUNNAR,
IDUKKI DISTTRICT-685 612.
5 TAHASILDAR,
KOTHAMANGALAM TALUK, OFFICE OF THE TAHASILDAR,
REVENUE TOWER, KOTHAMANGALAM, ERNAKULAM DISTRICT,
PIN-686 666.
W.P (C) No.30452/2018 2
6 VILLAGE OFFICER,
NERIYAMANGALAM VILLAGE, NERIYAMANGALAM P.O.,
ERNAKULAM DISTRICT-686 693.
7 C.P.L. CHONGING JV COMPANY,
SITE OFFICE AT THOTTIYAR HYDRO ELECTRIC PROJECT,
KARIMANAL, THATTEKANNI P.O.,
IDUKKI DISTRICT-685 606,
REPRESENTED BY ITS PROJECT MANAGER.
BY ADVS.
SANDESH RAJA.K., SPL. G.P. (FOREST)
G.KEERTHIVAS
RIJI RAJENDRAN (KSEB)
T. P. SAJAN (SPL GP - FOREST)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 12.06.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P (C) No.30452/2018 3
JUDGMENT
This writ petition has been filed stating that the
petitioner is the owner of the property having an extent
of 15 cents in Sy.No.161/1 Part of Neriyamangalam
Village, Kothamangalam Taluk. The said property is
situated on the southern side of the Periyar river.
According to the petitioner, the 2nd respondent (Kerala
State Electricity Board Ltd.) commenced work on a mini
Hydro Electric Project and the 7 th respondent, who was
awarded the work, had deposited granite pieces, soil and
debris into the river, as a result of which, the course of
the river changed and the property of the petitioner was
seriously affected by the same. The petitioner has
therefore approached this Court seeking the following
reliefs:
(a) "To issue a writ in the nature of mandamus or any
other appropriate writ, order or direction
commanding the 1st respondent to conduct a
detailed enquiry and report in to the breach of
contract committed by the 7th respondent and call
for a report of illegal dumping of waste soil,
granite pieces and debris of their construction
into the Periyar River, near Neendapara Kara
Neriyamangalam Village and also initiate
necessary legal action against the 7th respondent
and prosecute them for the violation of the
contract between 3rd respondent and 7th
respondent;
(b) To issue a writ in the nature of mandamus or any
other appropriate writ, order or direction
commanding the 7th respondent to grant a
monetary compensation of Rs.25 lakhs to the
petitioner for the loss sustained due to illegal
dumping and consequential sliding of 10.000
cents of property of the petitioner; and making the
balance property useless and construct retaining
wall to protect balance property;
(c) To issue a writ in the nature of mandamus or any
other appropriate writ, order or direction
commanding the 7th respondent to remove the
waste dumped in the Priyar River and make the
free flow of water through the river smoothly and
also order to pay compensation to the government
for environmental pollution of Priyar River;
(d) To issue a writ in the nature of mandamus or any
other appropriate writ, order or direction
commanding the respondents 3 and 7 to construct
necessary protection wall to the balance property
available to the petitioner and;
(e) Grant such other and further reliefs as are
deemed just and necessary including the costs of
this proceeding".
2. The respondents 2 and 3 have filed a counter
affidavit stating that in connection with the Thottiyar
Hydro Electric Project, a concrete bridge had to be
constructed across the Periyar river, and during the
construction of the said bridge, the river bed had to be
isolated using a cofferdam to divert the water and to
prevent flooding during the construction activities in
connection with the foundation of the bridge. It is
submitted that the cofferdam was constructed adhering
to best industry practices. It is submitted that
immediately after the work was over, the materials used
for the cofferdam were removed from the river and
therefore, the contention of the petitioner that there was
illegal dumping of granite pieces, soil and debris to the
river is completely incorrect. It is submitted that the
photographs produced by the petitioner along with the
writ petition were taken at a time when the cofferdam
was in place and the photographs of the site, which are
produced along with the counter affidavit, indicate that
at present there is no debris or other materials at the
site. It is stated that the flooding of the property
mentioned in the writ petition was on account of the
flood of the year 2018. It is also stated that the property
in respect of which a complaint is raised does not form
part of Sy.No.161/1 Part of Neriyamangalam Village and
the property which was allegedly damaged is a river
poramboke. It is submitted that for this reason also the
petitioner has no right to maintain the present writ
petition.
3. The learned Special Government Pleader refers
to the statement filed on behalf of the 4 th respondent and
submits that the case of the petitioner that he is in
possession of the property having an extent of 15 cents
in Sy.No.161/1 Part of Neriyamangalam Village is
incorrect. It is submitted that the petitioner is a sheer
trespasser and encroacher into the land in question and
he cannot raise any claim on the basis of Ext.P2
document. It is submitted that Ext.P2 does not have any
force of law and it is not a joint verification report
prepared in accordance with the provisions of the Kerala
Land Assignment (Regularisation of Occupations of
Forest Lands prior to 01.01.1977) Special Rules, 1993. It
is submitted that the 4th respondent has already
addressed the District Collector to take action for the
recovery of the land stated to be in the possession of the
petitioner.
4. The learned counsel for the petitioner, in reply,
places reliance on the opinion of the House of Lords in
Corporation of Greenock v. Caledonial Railway
Company; (1917) AC 556, to contend that it is the duty
of any one who interferes with the course of a stream to
see that the work which he substitutes for the channel
provided by nature are adequate to carry off the water
brought down even by extraordinary rainfall, and if
damage results from the deficiency of the substitute
which he has provided for the natural channel he will be
liable to compensate the person aggrieved by the
damage so caused.
5. Having heard the learned counsel for the
petitioner, the learned Special Government Pleader and
the learned Standing Counsel appearing for respondents
2 and 3, I am of the view that the petitioner has not made
out any case for grant of the reliefs sought for in the writ
petition. It is the specific case of the 4 th respondent that
the petitioner is a trespasser and encroached into the
land which was allegedly damaged owing to the work
carried out for respondents 2 and 3 by the 7 th
respondent. The petitioner has not produced any
document other than Ext.P2 to claim any right over the
property in question. According to the statement filed by
the 4th respondent, Ext.P2 is not even a joint verification
report in terms of the provisions contained in the Kerala
Land Assignment (Regularization of Occupations of
Forest Lands Prior to 01.01.1977) Special Rules 1993.
Even though the statement was filed on 29-07-2019, the
petitioner has not filed any document which would
indicate that the said averment in the statement filed by
the 4th respondent is wrong. While there can be no
dispute with the proposition in Corporation of
Greenock (Supra), since the damage is claimed in
respect of a property over which the petitioner is stated
to have no right. I am of the opinion that the reliefs
sought for in the writ petition cannot be granted. That
apart, the photographs produced along with the counter
affidavit filed by respondents 2 and 3 indicate that, at
present, there is no debris or other materials on the bed
of the river. While the petitioner has a case that such
debris and material were not removed and they were
washed away in the floods of 2018, the present position
is that no debris or other material is seen at the site in
question. For all the above reasons, the writ petition
fails and it is accordingly dismissed.
Sd/-
GOPINATH P.
JUDGE
ats
APPENDIX OF WP(C) 30452/2018
RESPONDENT EXHIBITS
EXHIBITR2-A(i) A TRUE COPY OF THE PICTURE TAKEN ON 12 APRIL
2023, SHOWING THE PERIYAR RIVER AFTER REMOVAL
OF MATERIALS USED FOR THE CONSTRUCTION OF
COFFERDAM IS PRODUCED HEREWITH AND MARKED AS
EXHIBIT R2-A(I)
EXHIBIT R2-A(ii) A TRUE COPY OF THE PICTURE TAKEN ON 12 APRIL
2023, SHOWING THE PERIYAR RIVER AFTER REMOVAL
OF MATERIALS USED FOR THE CONSTRUCTION OF
COFFERDAM IS PRODUCED HEREWITH AND MARKED AS
EXHIBIT R2-A(II)
PETITIONER'S EXHIBITS
EXHIBIT P1 TRUE COPY OF THE AGREEMENT DATED 18.10.2006
EXECUTED BETWEEN THE PETITIONER AND LILLY
JOSEPH.
EXHIBIT P2 TRUE COPY OF THE PROFORMA SUBMITTED BY THE
PREDECESSOR IN INTEREST OF THE PETITIONER TO
THE 4TH RESPONDENT.
EXHIBIT P3 THE PHOTOGRAPH SHOWING SOIL, GRANITE PIECES
AND DEBRIS DUMPED IN THE PERIYAR RIVER (FOUR
NOS.)
EXHIBIT P4 TRUE COPY OF THE NEWS REPORTED IN MATHRUBOOMI
DAILY DATED 27.7.2013.
EXHIBIT P4(a) TRUE COPY OF THE NEWS REPORTED IN MATHRUBOOMI
DAILY DATED 25.2.2017
EXHIBIT P5 TRUE COPY OF THE REPORT DATED 25.11.2015 OF
THE 6TH RESPONDENT TO THE 5TH RESPONDENT
EXHIBIT P5(a) TRUE COPY OF THE REPORT DATED 25.11.2015 OF
THE 6TH RESPONDENT TO THE 5TH RESPONDENT
