Kerala High Court

Thankamony.S vs Karuvatta Grama Panchayath on 24 September, 2021

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
   FRIDAY, THE 24TH DAY OF SEPTEMBER 2021/2ND ASWINA, 1943
                    WP(C) NO. 18901 OF 2014


PETITIONER:

         THANKAMONY S.,
         PANCHAVADY,
         KARUVATTA P.O.

         BY ADV SRI.JOHN K.GEORGE


RESPONDENT:

         KARUVATTA GRAMA PANCHAYATH,
         REPRESENTED BY ITS SECRETARY,
         PANCHAYATH OFFICE,
         KARUVATTA P.O.,
         ALAPPUZHA.

         BY ADVS.
         SRI.T.P.SAJAN
         SRI.P.SANTHOSH KUMAR

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C)No.18901/2014

                                    2




                           JUDGMENT

Dated this the 24th day of September, 2021

The petitioner who is the owner of 20 cents of land in

Kumarapuram Village of Karthikappally Taluk has

approached this Court seeking to quash Ext.P4 order

passed by the Panchayat and to declare that the Panchayat

has no authority to order reclamation of the low-lying

passage inside the petitioner's property.

2. The petitioner would state that she is a widow

holding 20 cents of land in Kumarapuram Village. On the

northern side of the property, there is a Panchayat road.

Drainage canals are not constructed for that road. The

waste water discharged from the neighbouring houses

located on either side of the road enter into petitioner's

property as the petitioner's property is lying at a lower level. WP(C)No.18901/2014

3. Therefore the petitioner made a small channel to

drain the water to the southern paddy filed belonging to the

sister of the petitioner. As the number of dwelling houses

increased in the area, the flow of waste water through the

property of the petitioner also increased resulting in serious

pollution issues. Therefore the petitioner purchased PVC

pipes and laid it from the Panchayat road upto the southern

paddy field through the existing channel so as to drain out

the waste water.

4. One of the neighbours become inimical to the

petitioner and filed a complaint against the petitioner.

Thereupon the Secretary to the Grama Panchayat issued

Ext.P1 notice to the petitioner alleging that the petitioner

has illegally blocked the water channel. The petitioner was

directed to stop the alleged illegal activity and enable free

flow of waste water. The petitioner submitted Ext.P2 reply

to the respondent. The petitioner also approached this WP(C)No.18901/2014

Court filing WP(C) No.31491/2013. This Court disposed of

the writ petition directing the respondent to consider the

objection filed by the petitioner after affording opportunity of

hearing to the petitioner.

5. The respondent thereafter has passed Ext.P4

order dated 07.03.2014 commanding the petitioner to

restrain from blocking the flow of waster water. The

petitioner was required to lay 600 mm RCC pipe through

her property for the flow of waste water. Alternatively, the

respondent stated that the drainage canal can be

constructed in the property of the petitioner and cover the

same with cement slabs. The petitioner challenges Ext.P4

order.

6. It is the contention of the petitioner that Ext.P4

order has been passed invoking Section 254(2) of the

Kerala Panchayat Raj Act. The respondent does not have

any power under the said provision to pass order in the WP(C)No.18901/2014

nature of Ext.P4. In fact Ext.P4 requires the petitioner to

install pipes of a higher dimension to construct a drainage

canal through her private property. The construction is

intended to benefit nearby residents. The petitioner is

being forced by the respondent either to lay pipes through

her land or to construct drainage canal through her

property.

7. The respondent filed counter affidavit and

contested the writ petition. The learned Standing Counsel

for the respondent brought to the notice of this Court

Ext.R1(a) communication of the Revenue Divisional Officer.

The Revenue Divisional Officer on the basis of a report

submitted by the Additional Tahsildar has concluded that

the petitioner has reduced the existing canal through which

the waste water flows and has even levelled some part of

the canal which has resulted in complaints among the local

residents. The directions given to the petitioner have not WP(C)No.18901/2014

been complied with so far. The Revenue Divisional Officer

therefore directed the respondent to take action against the

petitioner.

8. The learned Standing Counsel submitted that the

petitioner can very well install a 600 mm RCC pipe through

the existing water channel. Alternatively, the petitioner can

construct drainage in the place of water channel and place

slabs over the drainage canal, so that the petitioner can use

the space for other purposes. The petitioner is not

amenable to either course of action. The action of the

panchayat is for the benefit of all residents in the locality.

9. I have heard the learned counsel for the

petitioner and the learned Standing Counsel appearing for

the respondent.

10. The case of the petitioner is that for free flow of

waste water coming from various residential premises in

arrangements by constructing a drainage and the Panchyat

authorities cannot compel the petitioner to lay pipe lines of

a higher dimension or to construct a drainage canal through

the property of the petitioner. According to the Panchayat,

there is no other course of action available other than

maintaining the water flow through the property of the

petitioner.

11. Perusing the pleadings in the writ petition and

hearing arguments raised on either side, this Court is of the

considered opinion that the Panchayat authorities shall

strive to arrive at an amicable solution to the issue of free

flow of water. Panchayat authorities are liable to consider

the issue in a realistic manner. The feasilbility of

construction of drainage canal through the public land or

public pathway shall also be explored by the Panchayat.

In such circumstances, the writ petition is disposed of

reconsider the matter after granting a further opportunity of

hearing to the petitioner. Needless to say, the Panchayat

authorities shall explore all possibilities for resolution of the

issue including the possibility of construction of a drainage

canal along the public road. A decision in this regard shall

be taken within a period of two months.

Sd/-

APPENDIX OF WP(C) 18901/2014

PETITIONER'S EXHIBITS

COPY OF THE ORDER DATED NIL EXHIBIT P1 DELIVERED TO THE PETITIONER.

COPY OF THE DETAILED REPLY ON EXHIBIT P2 27.4.13 SUBMITTED BY THE PETITIONER.

                      COPY    OF   THE    JUDGMENT    DATED
  EXHIBIT P3
                      18.12.13 IN WPC 31491/13.
                      COPY OF THE ORDER DATED 7.3.14
  EXHIBIT P4
                      ISSUED BY THE RESPONDENT.
                      TRUE COPY OF THE ORDER DATED
  EXHIBIT P5          17.09.2021      PASSED     BY     THE
                      RESPONDENT TO THE PETITIONER
                      TRUE COPY OF THE DECISION DATED
  EXHIBIT P6          19/12/2016 TO THE NOTICE OF THE
                      DISTRICT COLLECTOR, ALAPPUZHA.

  RESPONDENTS' EXHIBITS

                      TRUE COPY OF ORDER ISSUED BY THE
  EXHIBIT R1 a        REVENUE      DIVISIONAL     OFFICER
                      CHENGANOOR DATED 03.07.2014.
                      TRUE COPY OF THE PHOTOGRAPH OF THE
  EXHIBIT R1 b
                      SITE
                      TRUE COPY OF THE PHOTOGRAPH OF THE
  EXHIBIT R1 c
                      SITE
                      TRUE COPY OF THE PHOTOGRAPH OF THE
  EXHIBIT R1 d
                      SITE
                      TRUE COPY OF THE LOCATION SKETCH
  EXHIBIT R1 e        PREPARED BY THE VILLAGE OFFICER,
                      KUMARAPURAM.