Kerala High Court
Reethamma vs State Of Kerala on 23 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
WP(C) NO. 18642 OF 2021
PETITIONERS:
1 REETHAMMA, W/O. YOHANNAN JOSE, KURISSUMALA (VAREETHRA)
HOUSE, THAKAZHY P.O., ALAPPUZHA DISTRICT-688 562.
2 LAILAMMA MATHEW, W/O. MATHEW VARGHESE, VAZHEKKALAM
HOUSE, KARUMADI P.O., KIZHAKKEMURI, ALAPPUZHA DISTRICT
688 562.
BY ADV UNNI. K.K. (EZHUMATTOOR)
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY, REVENUE
DEPARTMENT, GOVERNMENT OF KERALA, GOVT. SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 DISTRICT COLLECTOR
CIVIL STATION, ALAPPUZHA-688 012.
3 REVENUE DIVISIONAL OFFICER
REVENUE DIVISIONAL OFFICE, ALAPPUZHA-688 001.
4 THAHASILDAR, TALUK OFFICE, KUTTANADU,
THEKKEKKARA P.O., ALAPPUZHA DISTRICT-690 101.
5 VILLAGE OFFICER, VILLAGE OFFICE, THAKAZHY,
ALAPPUZHA DISTRICT-688 562.
6 SECRETARY, THAKAZHY GRAMA PANCHAYATH, THAKAZHY P.O.,
ALAPPUZHA DISTRICT-688 562.
7 THAKAZHY GRAMA PANCHAYATH
REPRESENTED BY SECRETARY, THAKAZHY GRAMA PANCHAYATH,
THAKAZHY P.O., ALAPPUZHA DISTRICT-688 562.
8 ANISH B. SOMAN, REVATHY BHAVAN, KURISSUMOOLA COLONY,
VIRUPALLA, THAKAZHY 688 562.
WP(C) NO. 18642 OF 2021
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9 AMBILY SARASSAPPAN, ABHIJITH BHAVAN,
KURISSUMOOLA COLONY, VIRUPALA, THAKAZHY 688
562.
10 STATION HOUSE OFFICER
AMBALAPUZHA POLICE STATION, ALAPPUZHA 688 001.
SRI.BRIJESH MOHAN
SRI.R.RAJPRADEEP
SR GP - SMT AMMINIKKUTTY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.11.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 18642 OF 2021
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JUDGMENT
The petitioners have approached this Court impugning
Exts.P7 and P9, as per which, their request to allow them to
construct a pathway through their property has been
interdicted for the reason that it is remaining as a storm
water channel ("Chal"), benefiting the rest of the locality.
2. The petitioners say that the statements in Exts.P7
and P9 have no bearing on their property at all, since it is a
private one, over which no other person or persons have
obtained any vested right; and that the Panchayat cannot,
therefore, obstruct them from making construction of the
road, because this is the only method to access their
residential property. They, therefore, pray that Exts.P7 and
P9 be set aside and the Panchayat be directed to issue them
a development permit, as sought for by them in Ext.P6.
3. I have heard Sri.K.K.Unni, learned counsel for the
petitioners and Sri.R.Rajpradeep, learned standing counsel
for the Panchayat and Sri.E.C.Bineesh, learned Government
Pleader.
4. Sri.R.Rajpradeep, learned standing counsel for the
WP(C) NO. 18642 OF 2021
Panchayat submitted that the property of the petitioners
contains a storm water channel and therefore, that they
cannot be allowed to fill it up since it would inundate the
entire locality in the event of monsoons. However, to a
pointed question from this Court, Sri.R.Rajpradeep was
unable to point out any document - be that the survey
records or the resurvey records - to establish that a storm
water canal is running through the property of the
petitioners but he submitted that this has been so for the
time immemorial and therefore, that the same is vested with
his client under the Kerala Panchayat Raj Act.
5. Even when I hear Sri.R.Rajpradeep as afore, the fact
remains that normally a water canal through a private
property can be sustained only there are documents to show
its existence affirmatively. In the absence of any such
document being available on record, I am of the view that
the Panchayat and the petitioners must now sit together and
decide the manner in which the storm water can be drained
through the petitioners' property including by extension of a
pipe which is stated by Sri.K.K.Unni to be still existing.
6. I notice that the controversy in question is because
WP(C) NO. 18642 OF 2021
the Panchayat insists that the petitioners construct a
drainage canal through their property; while the petitioners
affirm that they are willing to extend the pipeline which has
already been installed by the Panchayat for the purpose of
draining out the storm water in the locality. I am certain,
therefore, that this is a matter that will have to be decided
by the Secretary of the Panchayat, in consultation with the
petitioners, so that, if an amicable solution is obtained, the
controversy can be allayed.
7. In the afore perspective, I direct the petitioners to
mark appearance before the sixth respondent - Secretary at
11 a.m. on 02.12.2021; on which day, the said Authority will
hear the petitioners and then decide a suitable course of
action, so as to enable them to make the construction in
terms of the request made in Ext.P6, as also to drain the
storm water - either by acceding to their suggestion that
they will extend the existing pipeline which is stated to be
already installed by the Panchayat or through such other
methods.
8. If, after the afore exercise, an amicable settlement is
not found possible, then the Secretary will inform the
WP(C) NO. 18642 OF 2021
petitioners through an appropriate proceedings as to the
course to be adopted by them for the purpose of
construction of road and I leave full liberty to the petitioners
to challenge the same, if it is to their detriment, in terms of
law. However, on the contrary, if the decision afore is
acceptable to them, then the Panchayat will ensure that they
are allowed to make the construction of the road as per law
and making provision for the flow of water, as may be found
feasible.
9. At this time, Sri.K.K.Unni, learned counsel for the
petitioners, intervened to say that the afore directions may
be misunderstood by the Panchayat to mean that they are to
reject the offer of his clients to extend the pipeline.
However, Sri.R.Rajpradeep, learned standing counsel for the
Panchayat, submitted that his client has understood the
intent of this Court very clearly and that a positive mindset
will be maintained, while considering all suggestions, so that
the petitioners can construct a road, while the discharge of
water can be done, as is practically possible.
10. Needless to say, in the event the petitioners are
allowed to make the construction in terms of the afore
WP(C) NO. 18642 OF 2021
directions, then they will be at liberty to approach the tenth
respondent - Station House Officer, if any obstruction is
caused to them; and the said Authority will afford them
necessary protection, in terms of law, at that time, without
any avoidable delay.
This writ petition is thus ordered.
Sd/- DEVAN RAMACHANDRAN
JUDGE
stu
WP(C) NO. 18642 OF 2021
APPENDIX OF WP(C) 18642/2021
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE POSSESSION CERTIFICATE
ISSUED BY THE VILLAGE OFFICER
Exhibit P2 TRUE COPY OF THE PETITION WITH RECEIPT
DATED 15.12.2020 ISSUED BY THE 10TH
RESPONDENT.
Exhibit P3 COPY OF THE LETTER DATED 29.12.2020 OF
THE 4TH RESPONDENT TO THE 3RD
RESPONDENT.
Exhibit P4 TRUE COPY OF THE REQUEST DATED
17.12.2021 SUBMITTED BY THE DAUGHTER OF
THE IST PETITIONER.
Exhibit P5 TRUE COPY OF THE ORDER DATED 13.1.2021
OF THE 3RD RESPONDENT.
Exhibit P6 TRUE COPY OF THE APPLICATION ALONG WITH
THE PLAN.
Exhibit P7 TRUE COPY OF THE ORDER DATED 15.6.2021
OF THE 6TH RESPONDENT.
Exhibit P8 TRUE COPY OF THE APPEAL PETITION WITH
RECEIPT DATED 29.6.2021.
Exhibit P9 TRUE COPY OF THE DECISION DATED
25.8.2021 OF THE 7TH RESPONDENT.
RESPONDENT EXHIBITS
Exhibit R6(a) TRUE COPY OF THE RESOLUTION NO.1(1)
DATED 24/09/2021 OF THE 7TH RESPONDENT.
Exhibit R6(B) TRUE PHOTOGRAPHS OF THE 'CHAL' (CANAL)
WHICH THE PETITIONER WANTS TO RECLAIM.
