The Kerala High Court on Wednesday ordered the State government and the Idukki Collector not to demolish the controversial check-dams on two estates of Kannan Devan Hills Plantations Company in Munnar for three weeks. The court referred three writ petitions filed by the company challenging a show-cause notice issued by the Collector with regard to the check-dams and an electric fencing at a rose plantation of the company to the Green Bench.

Justice T.R. Ramachandran Nair passed the order holding that the writ petitions were maintainable. The court was of the view that an authoritative pronouncement by the Green Bench was required in view of the important questions involved in the case. The court noted Advocate-General C.P. Sudhakara Prasad’s submission that the government was taking steps to preserve the ecological balance at Munnar and other places in Idukki district in compliance with various directions issued by the Green Bench.

The court ordered that status quo be maintained with respect to the erection of electric fencing in the plantation.

The Judge held that the action taken by the Collector “is prima facie without jurisdiction and therefore the writ petitions are maintainable.” The court was prima facie of the view that a situation like the one available in these cases required initiation of action by the Dam Safety Authority and not by the government or the Collector.

The petitioners contended that the Collector had no power under the Kerala Irrigation and Water Conservation Act, 2003 to issue the show-cause notice. Counsel for the petitioners argued that it was the Dam Safety Authority under the Act which should have inspected the check-dams and recommended action if there were complaints. If decommission or demolition of the check-dams was required, it should be done only after obtaining a report from the authority and based on experts’ opinion. A subsequent government orders authorising the Collector to take action under the Act would “not save the present action from the total lack of jurisdiction.”

The Advocate-General contended that appropriate previous sanction was required under Section 5 of the Act to construct any permanent dam and that in the absence of any such sanction, the government or the authority authorised by the government could take action for such violation.

The court noted that the pleadings prima facie showed that the two check-dams, one at the Chundavurrai estate and other at the Letchmi estate, had been there for decades. The court pointed out that the check-dams were mentioned in the draft project of the Devikulam grama panchayat for 2006-07. The court noted that Section 5 contemplated previous sanction for constructing any reservoir, etc., across a water course for diverting water. The section did not mention about getting “continued sanction” for the construction already made in a water course.

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