Ancy Rajan vs Kochi Municipal Corporation
2021 Latest Caselaw 27 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

                  WP(C).No.21939 OF 2020(N)


PETITIONER:

              ANCY RAJAN, AGED 64 YEARS
              W/O.RAJAN FEDERIC,PARAYIL HOUSE,
              CHILAVANNOOR ROAD,KADAVANTHRA,
              KOCHI-20,REPRESENTED BY POWER OF ATTORNEY
              HOLDER,ROJY KUNNUMPURATHU PHILIP,S/O.RAJAN
              PHILIP,KUNNUMPURATHU HOUSE,
              EZHUMATTOOR VILLAGE,MALLAPPALLY
              TALUK,VALKUZHY.P.O, PATHANAMTHITTA-689544.

              BY ADVS.
              SRI.DEEPU THANKAN
              SMT.UMMUL FIDA
              SMT.LAKSHMI SREEDHAR

RESPONDENTS:

     1        KOCHI MUNICIPAL CORPORATION
              REP.BY ITS SECRETARY,KOCHI-682011.

     2        THE MAYOR,
              KOCHI MUNICIPAL CORPORATION,
              KOCHI-682011.

              R1-2 BY SRI.K.ANAND, SC, COCHIN CORPN.

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 16-12-2020, THE COURT ON 04-01-2021 DELIVERED THE
FOLLOWING:
 W.P.(C). No.21939 of 2020
                                      ..2..


                        P.B.SURESH KUMAR, J.

                   -------------------------------------
                       W.P.(C). No.21939 of 2020
                   --------------------------------------
             Dated this the 4th day of January, 2021



                                 JUDGMENT

Petitioner holds an item of property measuring 9.10

cents within the limits of the first respondent, the Kochi

Corporation. 6 cents out of the said 9.10 cents comprises under

survey No.745/2 of Poonithura Village. There exists a drainage

channel through the southern and western boundaries of the said 6

cents. A public drainage channel ends at the south-eastern corner

of the property of the petitioner and the outlet of the said public

drainage channel is connected to the inlet of the drainage channel

constructed through the property of the petitioner. Similarly, the

outlet of the drainage channel constructed through the property of

the petitioner is connected to the inlet of another public drainage

channel starting from the north-western corner of the property of

the petitioner. It is stated by the petitioner that she acquired the

said property with the drain and she does not know as to who

constructed the drainage channel through the property. It is

alleged by the petitioner that the position of the drainage channel W.P.(C). No.21939 of 2020 ..3..

is in such a way that it divides the property of the petitioner into

two, making it impossible for the petitioner to make use of the

property in a convenient manner. The case set out by the petitioner

in the writ petition is that she has therefore constructed a new

drainage channel connecting the inlet and outlet of the existing

drainage channel through the eastern and northern boundaries of

the said 6 cents, so as to enable her to enjoy the property in a

convenient manner and thereupon preferred Ext.P2 representation

before the Corporation seeking permission to divert the drain water

through the newly constructed drainage channel. Ext.P4 is the

communication issued to the petitioner by the Secretary of the

Corporation in this regard. In Ext.P4, it is stated by the Secretary

that appropriate decision on the request made by the petitioner will

be taken by the Council of the Corporation. The petitioner is

aggrieved by Ext.P4 communication. According to the petitioner,

permission of the Council of the Corporation is not required in a

matter like this and that appropriate decision can be taken by the

Secretary of the Corporation himself. The petitioner, therefore,

seeks appropriate directions in this regard in the writ petition.

2. A counter affidavit has been filed by the

Corporation. In the counter affidavit, it is stated, among others,

that the permission sought by the petitioner can be granted only if

the natural flow of drain water is not affected on account of the W.P.(C). No.21939 of 2020 ..4..

shifting of the drain water and that a decision in this regard has to

be taken by the Council of the Corporation. It is however admitted

by the Corporation in the counter affidavit that the existing

drainage channel runs through the property of the petitioner.

3. Heard the learned counsel for the petitioner as

also the learned Standing Counsel for the Corporation.

4. If the existing drainage channel is one passing

through the property of the petitioner, the right of the petitioner to

divert the drain water through another channel constructed by her

through her property for the convenient enjoyment of the property

cannot be questioned by anybody. Of course, insofar as the

existing drainage channel is connected to a public drainage

channel, as rightly stated by the Corporation in their counter

affidavit, it is the duty of the Corporation to ensure that the natural

flow of the drain water is not affected in any manner while diverting

the drain water to another drainage channel. The request made by

the petitioner before the Corporation in the circumstances can be

considered only as one preferred by the petitioner to enable the

Corporation to ensure that the natural flow of drain water would not

be affected, if the drain water is diverted as proposed by the

petitioner. The Kerala Municipality Act, 1994 (the Act) and the

various rules made thereunder do not give any indication as to who

should consider a request in the nature of one made by the W.P.(C). No.21939 of 2020 ..5..

petitioner, as a situation of the instant nature is not dealt with

therein. However, the provisions contained in Chapter XVI of the

Act dealing with water supply, lighting and sanitation, especially

Section 317 gives an indication that the scheme of the Act is that

matters of this nature can be dealt with by the Secretary of the

Municipality himself.

In the said view of the matter, the writ petition is

disposed directing the Secretary of the first respondent to cause an

inspection to be made in the property of the petitioner and

ascertain whether the natural flow of drain water would be affected

in any manner, if drain water through the existing drainage channel

is diverted to the newly constructed drainage channel. It is also

directed that if it is found that the natural flow of the drain water

will not be affected in any manner, if drain water through the

existing drainage channel is diverted to the newly constructed

drainage channel, the permission sought by the petitioner as per

Ext.P2 representation shall be granted. The aforesaid directions

shall be complied with, within one month from the date of receipt of

a copy of this judgment.

Sd/-

P.B.SURESH KUMAR JUDGE ds 31.12.2020 W.P.(C). No.21939 of 2020 ..6..

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1              A TRUE COPY OF THE SKETCH OF THE
                        PETITIONER'S PROPERTY

EXHIBIT P2              TRUE COPY OF THE REPRESENTATION
                        SUBMITTED BY THE PETITIONER TO THE 1ST
                        RESPONDENT DATED 17/09/2018

EXHIBIT P3              A TRUE COPY OF THE JUDGMENT DATED
                        28/11/2018 IN WP(C)NO.36650/2018
                        PASSED BY HON'BLE HIGH COURT OF
                        KERALA.

EXHIBIT P4              A TRUE COPY OF THE ORDER DATED
                        08/02/2019 PASSED BY THE FIRST
                        RESPONDENT.

EXHIBIT P5              A TRUE COPY OF THE REPRESENTATION
                        SUBMITTED BY THE PETITIONER TO THE
                        SECOND RESPONDENT DATED 27/02/2020.