KARTHIKEYAN NAIR Vs. ASSISTANT EXECUTIVE ENGINEER

JUDGEMENT

(1.) 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. 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 mala fide intention. The mala fides 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.

(2.) 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.

(3.) The additional 7th respondent has also filed counter affidavit. He is a member of the Panchayat and he resides near the dam. According to him the reservoir is used as a water source for the general public of five Panchayats and if the vessel is plying without any restriction, it will cause pollution to the water body which will effect the public at large.