Immanuel vs Sherly Thomas @ Mary Soosan
2021 Latest Caselaw 868 Ker

WA.No.1770 OF 2020              -1-


               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                  &

               THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

    MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                          WA.No.1770 OF 2020

AGAINST THE ORDER/JUDGMENT IN WP(C) 13585/2020(W) OF HIGH COURT
                           OF KERALA


APPELLANT/S:

                IMMANUEL
                AGED 46 YEARS
                S/O.POULOSE CLEMANT, MANIAPOZHIYIL, ARTHUNKAL,
                CHERTHALA-688524.

                BY ADVS.
                SRI.J.OM PRAKASH
                SRI.T.G.SUNIL (PRANAVAM)

RESPONDENT/S:

      1         SHERLY THOMAS @ MARY SOOSAN
                AGED 68 YEARS
                W/O.C.A.THOMAS, CHERIYA THAYYIL HOUSE, ARTHUNKAL
                P.O., CHERTHALA, ALAPPUZHA-688524.

      2         CHERTHALA SOUTH GRAMA PANCHAYATH,
                CHERTHALA SOUTH P.O., ALAPPUZHA-688552, REPRESENTED
                BY ITS SECRETARY.

      3         THE SECRETARY,
                CHERTHALA SOUTH GRAMA PANCHAYATH, CHERTHALA SOUTH
                P.O., ALAPPUZHA-688552.

      4         THE ASSISTANT ENGINEER,
                LSGD SECTION, CHERTHALA SOUTH GRAMA PANCHAYATH,
                CHERTHALA P.O-688552.

      5         THE DISTRICT COLLECTOR,
                ALAPPUZHA-688001.
 WA.No.1770 OF 2020           -2-


      6      THE TAHSILDAR (LR),
             CHERTHALA TALUK, CHERTHALA-688524.

      7      THE VILLAGE OFFICER,
             ARTHUNKAL VILLAGE, CHERTHALA-688524.

      8      THE AGRICULTURAL OFFICER,
             CHERTHALA SOUTH AREA OFFICE, CHERTHALA-688001.

      9      THE ASST.EXECUTIVE ENGINEER,
             HARBOUR ENGINEERING SUB DIVISION, ARTHUNKAL P.O.,
             CHERTHALA-688530.

PRESENT:

             SRI. B.PRAMOD FOR R1, SRI ARAVIND KUMAR BABU, SR GP
             FOR R4 TO R9, SRI. RAAJESH S. SUBRAHMANIAN, FOR R2
             AND R3

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA.No.1770 OF 2020                    -3-




                             JUDGMENT

Dated this the 11th day of January, 2021

Shaji P. Chaly, J.

The appeal is preferred by the 9th respondent in W. P. (C) No.

13585 of 2020 challenging the judgment dated 05.10.2020, whereby

the learned Single Judge has disposed of the writ petition with the

following observations and directions:-

"3. Placing reliance on Ext.P25 report submitted by the

second respondent to the Assistant Director of Panchayat

concerned, the learned counsel for the ninth respondent

submitted that the ninth respondent has already restored the

width of the canal to its original position.

4. It is not evident from Ext. P25 reports that the ninth

respondent has restored the width of the canal. Be that as it may,

having regard to the facts and circumstances of the case, I deem

it appropriate to dispose of the writ petition directing the second

respondent to conduct an inspection of the premises of the ninth

respondent with notice to the petitioner as also the ninth

respondent and ascertain as to whether the ninth respondent has

complied with the direction contained in Ext.P20 notice. Ordered

accordingly. Needless to say that if it is found that the direction

contained in Ext.P20 notice has not been complied with by the

ninth respondent, steps shall be taken by the second respondent

immediately to ensure that the width of the canal is restored by

the ninth respondent to its original position. This shall be done

within two months from the date of receipt of a copy of this

judgment."

It is thus challenging the legality and correctness of the said

judgment, the appeal is preferred.

2. Necessary facts for the disposal of the appeal discernible from

the pleadings in the writ petition are as follows:-

The appellant / 9th respondent has constructed a compound wall

on the boundary of his property which lies on either side of a canal.

There were complaints from various corners that by putting up the

compound wall on the southern and northern boundary of his property,

appellant is obstructing the flow of water through a canal having an

average width of 3 meters. Anyhow, action was initiated on the basis

of the complaint submitted by the writ petitioner by the Secretary of

Cherthala South Grama Panchayat, the 3rd respondent in the appeal,

against the appellant. Ext. P20 notice was issued to the appellant and

in terms of the same, the Secretary of the Grama Panchayat has called

upon the appellant to restore the width of the canal to its original

position. The grievance highlighted by the writ petitioner in the writ

petition was that the Secretary of the Grama Panchayat was not taking

adequate steps to conclude the proceedings initiated pursuant to Ext.

P20 notice to a logical end by directing the appellant to restore the

width of the canal. In fact, Ext. P25 report dated 23.04.2020 was

drawn by the Secretary of the Grama Panchayat and submitted before

the Assistant Director of Panchayat, Alappuzha, wherein it is stated

that having found that the construction of the compound wall by the

appellant would cause interference with the smooth flow of water

through the canal, necessary directions were issued to the appellant to

remove the obstructions. In fact, in Ext. P25 report, it was mentioned

by the Secretary of the Grama Panchayat that the Village Officer,

Arthunkal has conducted an inspection and a report was submitted

before the Tahsildar and has in fact informed the Secretary of the

Grama Panchayat to remove the obstruction caused across the canal

by the appellant. Anyhow, from Ext. P25 it is clear that when a notice

was issued to the appellant, a reply was given stating that the

construction made by the appellant has not caused any obstruction to

the free flow of water through the canal. However, after realizing that

the construction would impede the free flow of water, notice was

issued to the appellant to remove the constructions put across the

canal creating obstruction to the free flow of water. Anyhow, it is also

evident from Ext. P25 that the appellant has informed the office of the

Grama Panchayat that if any obstruction is created consequent to the

construction, that would be removed without fail. It was accordingly

and in terms of the submission so made before the Court that the

learned Single Judge issued the directions as contained above after

recording the submission of the appellant as extracted above.

3. We have heard Sri. T. G. Sunil, learned counsel for the

appellant, Sri. B. Promod, learned counsel for the 1 st respondent, Sri.

Aravinda Kumar Babu, learned Senior Government Pleader and Sri.

Rajesh S. Subrahmanian, learned counsel for the Grama Panchayat

and Secretary and perused the pleadings and materials on record.

4. The basic contention advanced by the appellant in the appeal

is that pursuant to the direction issued by this Court, an inspection was

conducted by the Secretary, however, without the presence of the

appellant, and even though his wife infected with Covid - 19, has

requested for more time for conducting the inspection, the request was

overlooked and the inspection was conducted and there is every

likelihood of demolishing the construction carried out by the

appellant.

5. In our considered view, that means the Secretary of the Grama

Panchayat has acted upon in accordance with the directions contained

in the judgment, which can never be a subject matter of cause of

action in an appeal filed against the judgment impugned. Moreover,

the directions were issued by the learned Single Judge, taking into

account the submission made by the learned counsel for the appellant

that the appellant has already restored the width of the canal to its

original position.

6. Taking into account all the above aspects and materials on

record, we are of the considered opinion that the appellant has not

made out a case to interfere with the directions of the learned Single

Judge since the learned Single Judge has exercised the discretionary

jurisdiction, only in accordance with law and on the basis of the

submissions made at the Bar by the learned counsel for the appellant

apparently on due instructions. That apart, it is evident from Ext. P25

reports that the petitioner has approached the Secretary of the Grama

Panchayat and has undertaken to remove obstruction, if any, created

consequent to the construction of the compound wall across the canal

interfering with the free flow of water. Therefore in view of the stand

adopted by the appellant himself before the secretary of the Grama

Panchayat and the learned Single Judge in regard to the construction

made by him as narrated above we do not think that the appellant has

made out any legal and justifiable circumstances in the appeal. To put

it otherwise, due to the conduct of the appellant himself he is duty

bound to concede for an enquiry by the Secretary of the Grama

Panchayat.

Circumstances being so, we do not think that the appellant has

made out a case so as to interfere in an intra court appeal submitted

under Section 5 of the Kerala High Court Act. Needless to say, the

writ appeal fails. Accordingly, it is dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-

SHAJI P.CHALY

JUDGE Eb

///TRUE COPY/// P. A. TO JUDGE