PARATHODU PANCHAYAT Vs. KANJIRAPPALLY PANCHAYAT

JUDGEMENT

(1.) The Petitioner in the Original Petition is the Parathodu Panchayat. There is a canal by name Padapady canal that flows through the Parathodu Panchayat and the adjacent downstream Kanjirappally Panchayat. The 1st respondent is the Kanjirappally Panchayat and the 2nd respondent is its President. One Abraham who is the 6th respondent constructed a stone bund across the canal inside the Parathodu Panchayat with the Panchayat's permission and on condition that the Panchayat could demolish it whenever necessary. The object of the bund was to dam the water for irrigating the lands of the 6th respondent and possibly of others. Certain persons of the Kanjirappally Panchayat moved that Panchayat obviously complaining against the construction of the bund on the ground that it would obstruct or stop the flow of water into the Panchayat. The Kanjirappally Panchayat thereupon passed a resolution on 31-5-1983 on the matter. The 2nd respondent filed a petition before the 4th respondent, the Sub Divisional Magistrate, Kottayam complaining that the bund was obstructing the flow of water and affecting the cultivation downstream. It appears that the 6th respondent's son one K. I. Varkey filed a petition before the District Collector, Kottayam explaining the circumstances in which the bund was constructed. On 4-6-1983 the 4th respondent passed an order Ext. P1 under S.144(1), Crl. Procedure Code, that the construction of the bund was causing the stoppage of the flow of water and was detrimental to the interests of the Kanjirappally public who were depending upon the canal water for their drinking and other purposes. After observing that it had become necessary to make immediate arrangements to remove the obstruction the order directed the 6th respondent to remove the bund within 3 days of receipt of the order and report compliance and that in default it would be forcibly removed at his cost. The petitioner seeks to quash Ext. P1.

(2.) The 6th respondent thereupon filed an application Ext. R3(a) dated 6-6-1983 requesting a review of the order and its modification so that instead of demolishing the bund, provision might be made to let out a portion of the water to the Kanjirappally Panchayat or to conserve the water without affecting the requirements of the Parathodu Panchayat. The 4th respondent however dismissed the application by the order Ext. P2 dated 8-6-1983. The order also directed the removal of the obstruction before 10-6-1983 with a default clause as in Ext. P1. In the course of the order the 4th respondent observed that there was no legal provision to allow the continuance of the bund, whatever be its height across the canal detrimental to the people downstream, that a total restraint such as that caused was not allowable in the eye of law whatever be the volume of water reaching the lower levels, that there should not be any kind of obstruction to the flow of water or its storage by any other form and that neither the petitioner nor the 6th respondent could be allowed to put up the bund.

(3.) The petitioner has amended the Original Petition to quash Ext P2 also.