Muhammed Rafeeq vs State Of Kerala
2021 Latest Caselaw 20613 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR.JUSTICE N.NAGARESH
     TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                        WP(C) NO. 5538 OF 2021
PETITIONER:

          MUHAMMED RAFEEQ,
          AGED 60 YEARS,
          S/O.NABEESA BEEVI,
          PUTHUPARAMBIL KIZHAKKETHIL,
          MULAKKUZHA VILLAGE, MULAKKUZHA MURI, PIN - 689 505.

          BY ADVS.
          SRI.P.HARIDAS
          SRI.BIJU HARIHARAN
          SRI.P.C.SHIJIN
          SRI.RISHIKESH HARIDAS


RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY ITS PRINCIPAL SECRETARY,
          DEPARTMENT OF PUBLIC HEALTH, STATE SECRETARIAT,
          THIRUVANANTHAPURAM,
          THIRUVANANTHAPURAM DISTRICT, PIN - 695 001.

    2     KERALA STATE POLLUTION CONTROL BOARD,
          REPRESENTED BY ITS SECRETARY,
          OFFICE OF THE KERALA STATE POLLUTION CONTROL BOARD,
          PATTOM P.O., THIRUVANANTHAPURAM, PIN - 695 004.

    3     ENVIRONMENTAL ENGINEER,
          KERALA STATE POLLUTION CONTROL BOARD,
          ALAPPUZHA, DISTRICT OFFICE, AMC/X/501,
          THATHAMPALLY P.O., ALAPPUZHA, PIN - 688 013.

    4     DISTRICT MEDICAL OFFICER,
          DISTRICT MEDICAL OFFICE, DMO(H),
          GENERAL HOSPITAL ROAD, COMPOUND,
          CHUNGAM, ALAPPUZHA, PIN - 688 011.

    5     REVENUE DIVISIONAL OFFICER,
          REVENUE DIVISIONAL OFFICE,
          MAVELIKKARA KOZHENCHERRY ROAD - SH 10,
          CHENGANNUR, PIN - 689 121.
 WP(C).No.5538/2021

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    6     MULAKKUZHA GRAMA PANCHAYATH,
          REPRESENTED BY ITS SECRETARY,
          OFFICE OF THE MULAKKUZHA GRAMA PANCHAYATH,
          MULAKKUZHA P.O., ALAPPUZHA, PIN - 689 504.
    7     SECRETARY,
          OFFICE OF THE MULAKKUZHA GRAMA PANCHAYATH,
          MULAKKUZHA P.O., ALAPPUZHA, PIN - 689 504.
    8     THE HEALTH INSPECTOR,
          PRIMARY HEALTH CENTRE,
          MULAKKUZHA (P.O.), ALAPPUZHA, PIN - 689 521.
    9     SALIM,
          AGED 50 YEARS,
          S/O.KASIM RAWTHAR, HASHIM MANZIL,
          MULAKUZHA VILLAGE, (PO),
          CHENGANNUR, PIN - 689 505.

          BY ADVS.
          SRI. T.NAVEEN, SC, KERALA STATE POLLUTION CONTROL
          BOARD,
          SRI.N.ASHOK KUMAR
          SRI.VIPIN NARAYANAN, SR. GOVERNMENT PLEADER
          SRI.ABHISHEK V.S. (APPEARS FOR PCB)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.5538/2021

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                           JUDGMENT

Dated this the 5th day of October, 2021

The petitioner, who is a resident of Mulakkuzha

Grama Panchayat has filed this writ petition seeking to direct

the 1st respondent to depute an officer to abate the nuisance

caused by the 9th respondent by removing the faecal collection

tank constructed by the 9th respondent. The petitioner has

also sought for certain other incidental and consequential

reliefs.

2. The petitioner would state that he is a resident of

Ward No.III of Mulakkuzha Grama Panchayat. The 9th

respondent is having a property on the southern side of the

petitioner's property. A private path way exists to the property WP(C).No.5538/2021

owned by the 9th respondent from the MC Road, along the

western side of the petitioner's property. The said pathway is

having approximately 1.5 meter width. According to the

petitioner, Pampa Irrigation Canal is also passing hardly 20

meters away from the said pathway.

3. The petitioner states that the 9 th respondent

constructed a three storied building with lodging facility for

migrant workers. The construction itself is illegal, contended

the petitioner. The 9th respondent has installed an

underground tank on the pathway, for collecting feacal waste

from the toilet of the lodge. The said tank is less than 10

metres away from the well of the petitioner, which is the source

of drinking water for the petitioner. The tank is hardly 20

Meters far from Pamba Irrigation Canal.

4. The petitioner would state that the waste water and

faecal matters are percolating from the said tank to the well

situated in the petitioner's property, causing severe pollution. WP(C).No.5538/2021

The petitioner submitted Exts.P2 and P4 complaints to the

Panchayat Authorities and Ext.P6 complaint to the Public

Health Department of the Government of Kerala. The RDO

has addressed the Panchayat Authorities and required to take

necessary steps to prevent any health hazards.

5. The learned counsel for the petitioner submitted

that as per Ext.P3 report of the Kerala Water Authority,

Coliforms and Ecoli are present in abundance in the well

water. The water can be used only after disinfection. The

learned counsel for the petitioner also relied on Ext.P7 report.

In Ext.P7 report, the analysis found that the total Coliforms

content is 700/100 ML and Ecoli content is 250/100 ML. In

fact no Coliform or Ecoli should be found in any 100 ML

sample, contended the learned counsel for the petitioner.

6. All these facts would only show that the tank

constructed by the 9th respondent is contaminating the well of

the petitioner. The respondents are therefore liable to be WP(C).No.5538/2021

compelled to take preventive measures restraining the 9 th

respondent from further contaminating the drinking water

source of the petitioner.

7. The learned counsel for the 6th respondent-

Panchayat submitted that as per Rule 92 of the Kerala

Panchayat Building Rules 2011, the statutory distance to be

maintained by such tanks from an existing well is only 7.5

metres. The Panchayat Authorities have caused inspection of

the site and found that the distance between the well of the

petitioner and the tank in question, is more than 11 meters. In

such circumstances, it cannot be said that the 9 th respondent

has violated the Kerala Panchayat Building Rules, 2011.

However, the Panchayat is ready to enquire into the grievance

of the petitioner as the allegations involve issues of public

health.

8. The respondents 2 and 3 also entered appearance

and filed their reports. The Standing Counsel for the 2 nd WP(C).No.5538/2021

respondent-Pollution Control Board stated that on receipt of

complaints regarding the existence of such a tank polluting the

drinking water in the nearby area, an inspection was

conducted by the Pollution Control Board Officials. In fact the

9th respondent is running the Unit without obtaining a Consent

to Operate. The Pollution Control Board Officials checked the

samples of drinking water in the area. However, the drinking

water did not contain Ecoli. The Pollution Control Authorities

have already issued a Closure Intention Notice to the 9th

respondent on 16.09.2020. Annexure R3(c) notice has been

issued as the 9th respondent has not taken necessary pollution

control measures.

9. Heard the learned counsel for the petitioner, the

learned Government Pleader representing the respondents 1,

4, 5 and 8, the learned Standing Counsel for respondents 2

and 3 and the learned Standing Counsel for respondents 6

and 7.

WP(C).No.5538/2021

10. The Exts.P4 and P6 reports produced by the

petitioner would show that his well, which is the source of

drinking water is already contaminated. The samples taken

from the water showed presence of Coliforms and Ecoli in

excess of the permissible limits. The learned Standing

Counsel for the Panchayat would submit that even if

Coliforms and Ecoli were found in the drinking water, it cannot

be treated as violation of Building Rules, because the tank

constructed by the 9th respondent satisfies the requirements of

Kerala Panchayat Building Rules.

11. However, it is to be noted that under Section 219K

of the Kerala Panchayat Raj Act "No owner or occupier of any

premises shall allow the water from any sink, drain, latrine or

stable or any other filth to flow out of such premises to any

portion of a street except a drain or a cess-pool or to flow out

of such premises so as to cause an avoidable nuisance by the

soakage of the said water or filth into the walls or ground at the WP(C).No.5538/2021

side of drain forming a portion of a street". In this case it is

the specific case of the petitioner that the filth water in the tank

constructed by the 9th respondent on the pathway is

percolating into his property and also contaminating the well

water. The report dated 18.09.2021 filed by the Assistant

Environmental Engineer would also reveal that they have

found some leakages in the flow pipes to the faecal collection

tank. In such circumstance, this Court is of the considered

view that remedial and preventive actions are required from

the Panchayat Authorities as well as the Pollution Control

Board.

12. The Pollution Control Board has already issued a

Closure Intention Notice upon the 9th respondent on

16.09.2021. Therefore, the 3rd respondents is directed to

consider the grievance of the petitioner also as regards

contamination of his well water while finalising the Closure

Intention Notice. The proceedings initiated by the 3 rd WP(C).No.5538/2021

respondent by issuing the Closure Intention Notice shall be

brought to a final conclusion within a period of two months,

after giving an opportunity of hearing to the 9 th respondent as

well as the petitioner. The 3 rd respondent shall ensure that the

tanks maintained by the 9th respondent satisfy the current

Pollution Control norms. The 7th respondent is directed to

inspect the premise once again and cause the water in the

petitioner's well tested and analysed and take such steps to

ensure that the water in the petitioner's well is not

contaminated due to the existence of the tank constructed by

the 9th respondent.

The writ petition is disposed of with the afore

directions.

Sd/-

N. NAGARESH JUDGE SR WP(C).No.5538/2021

APPENDIX OF WP(C) 5538/2021

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LOCATION SKETCH OF THE PROPERTIES OF THE PETITIONER, 8TH RESPONDENT AND ADJACENT ROAD DATED 23/03/2016.

EXHIBIT P2 TRUE COPY OF THE COMPLAINT BEFORE THE 4TH RESPONDENT DATE 12/06/2012 ALONG WITH RECEIPT.

EXHIBIT P3 TRUE COPY OF THE REPORT OF THE ASST.

EXECUTIVE ENGINEER, QUALITY CONTROL SUB DIVISION OF KERALA WATER AUTHORITY, THIRUVALLA ALONG WITH COVERING LETTER DATED 18/06/2012.

EXHIBIT P4 TRUE COPY OF THE COMPLAINT FILED BY PETITIONER'S MOTHER BEFORE THE 4TH RESPONDENT DATED 27/05/2020 ALONG WITH THE RECEIPT.

EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 7TH RESPONDENT DATED 25/01/2021.

EXHIBIT P6 TRUE COPY OF THE COMPLAINT BEFORE THE 1ST RESPONDENT BY THE PETITIONER DATED 02/02/2021.

EXHIBIT P7 TRUE COPY OF THE WATER ANALYSIS REPORT BY THE H20 CARE DATED 23.04.2021.

RESPONDENTS' EXHIBITS:

EXHIBIT R7(a) A TRUE COPY OF THE PROCEEDING DATED 17.05.2021 OF THE 7TH RESPONDENT EXHIBIT R7(b) A TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT DATED 21.05.2021 ANNEXURE R3(a) TRUE COPY OF THE NOTICE DATED 05.04.2021 ISSUED BY THE PCB TO THE 9TH RESPONDENT ANNEXURE R3(b) TRUE COPY OF THE LABORATORY ANALYSIS REPORT DATED 03.04.2021 WP(C).No.5538/2021

ANNEXURE R3(c) TRUE COPY OF THE NOTICE DATED 16.09.2021 ISSUED BY THE PCB TO THE 9TH RESPONDENT ANNEXURE R3(d) TRUE COPY OF THE LABORATORY ANALYSIS REPORT DATED 18.09.2021

SR