Rajamma vs District Collector
2023 Latest Caselaw 5805 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

         THE HONOURABLE THE ACTING CHIEF JUSTICE MR.S.V.N.BHATTI

                                    &

                 THE HONOURABLE MR.JUSTICE BASANT BALAJI

         WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945

                           WA NO. 690 OF 2023

  (AGAINST THE JUDGMENT IN WP(C) 5117/2021 OF HIGH COURT OF KERALA)

APPELLANT/PETITIONER:


            RAJAMMA, AGED 72 YEARS, KIDANGIL HOUSE,
            ATHUMBUKULAM- P.O, KONNI, PATHANMTHITTA DISTRICT-689 692
            BY ADV B.SAINU


RESPONDENTS/RESPONDENTS 1 AND 2 AND ADDITIONAL RESPONDENTS 3 TO 6:


     1      DISTRICT COLLECTOR, THE DISTRICT COLLECTOR,
            CIVIL STATION, PATHANMTHITTA DISTRICT-689 645
     2      KONNI GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, KONNI,
            PATHANAMTHITTA DISTRICT-689 691
     3      JAINY SIMON, W/O.SIMON, THEKKECHERUVIL HOUSE,
            ATHUMBUKULAM.P.O, KONNI, PATHANAMTHITTA DISTRICT-689 692
     4      RADHAKRISHNAN, CHERIKKAL HOUSE, ATHUMBUKULAM.P.O, KONNI,
            PATHANAMTHITTA DISTRICT, PIN - 689 692
     5      RATHEESH.K.K, KIZHAKKECHERIYIL HOUSE, THUMBUKULAM.P.O,
            KONNI,PATHANAMTHITTA DISTRICT-689 692
     6      T.M.THOMAS, THEKKECHERIYIL HOUSE, ATHUMBUKULAM.P.O,
            KONNI,PATHANAMTHITTA DISTRICT-689 692
            BY ADV V.K.SUNIL
            GOVERNMENT PLEADER, SRI.V.TEKCHAND


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                       2

W.A. No.690 of 2023




                               JUDGMENT

(Dated: 24thMay, 2023)

Basant Balaji, J.

Aggrieved by the judgment of the learned single in

W.P.(C)No.5117 of 2021, the appellant has filed this writ appeal.

2. The appellant filed the writ petition for the issuance

of a writ of mandamus directing the 2nd respondent not to

construct any concrete slab over Konnappara

thodu (hereinafter referred to as 'thodu' for short), obstruct the

free flow of water through it.

3. The petitioner is residing in a small house in Ward No.

7 of Konni Panchayat. Her house is by the side of the thodu. Her

grievance in the writ petition is that the respondent Panchayat

has formed a project for constructing a road over the road with

W.A. No.690 of 2023

concrete slabs as if it is a dream. The proposed work of the

Panchayat would obstruct the free of water, and it would cause

flood to the petitioner's property. Though representations were

submitted before the respondents, they have not acted on

them and the construction continues.

4. A counter affidavit has been filed by the 2nd

respondent wherein it was denied that the stream's width was

reduced by encroachment, and no complaints have been

received from any person regarding the encroachment and

reducing the width. The only complaint is that the petitioner

had constructed a latrine close to it and discharged the waste

into the stream. According to the 2nd respondent, the present

height of the side wall of the stream is one meter, and the

project envisages raising the side wall up to 2 meters from the

W.A. No.690 of 2023

bed of the stream and casting concrete slabs over it. Thus, there

would be more room to carry water, and there would not be any

flood. More than 10 families live across the river, and they

need a proper way to their house. It is to give a proper way to

them also that the Panchayat has recommended for the

formation of the road by laying concrete slabs.

5. The learned single Judge took note of the

contentions raised in the counter affidavit filed by the

Panchayat, came to the definite conclusion that the

apprehension raised by the petitioner was unfounded and,

therefore the writ petition was disposed of, directing Panchayat

to proceed with the project without obstructing the natural flow

of water through the thodu and ensuring the cleanliness of the

thodu.

W.A. No.690 of 2023

6. The apprehension of the petitioner is only that if

slabs are put over the thodu, the water flow could be reduced,

causing a flood to the property of the petitioner. Raising the

stream's side wall from 1 meter to 2 meters will increase the

flow of water as there is more room. The learned single Judge

relying on the averments in the counter affidavit, has clearly

held that there cannot be any basis for the apprehension of the

petitioner. While disposing of the writ petition, it was also made

clear that the construction shall be without obstructing the

natural flow of the water through the thodu by ensuring that

the same is cleaned and eradicated.

A perusal of the judgment of the learned single Judge

would show that the learned single Judge has taken care of the

apprehension of the petitioner and proper directions have been

W.A. No.690 of 2023

given to see that there is no obstruction of the free flow of the

water. We do not find any grounds to interfere with the

judgment of the learned single Judge, and therefore the Writ

Appeal fails, and the same is dismissed.

Sd/-

S.V.N.BHATTI, ACTING CHIEF JUSTICE

Sd/-

BASANT BALAJI, JUDGE ss