Citation : 2025 Latest Caselaw 8339 Ori
Judgement Date : 17 September, 2025
ORISSA HIGH COURT : CUTTACK
WP(C) No.20514 of 2025
An application under Articles 226 & 227 of the Constitution of
India.
***
Niranjan Kumar Jena & Another ... Petitioners.
-VERSUS-
State of Odisha & Others
... Opposite Parties.
Counsel appeared for the parties:
For the Petitioners : Mr. Debasish Samal, Advocate.
For the Opposite Parties : Mr. G. Mohanty, Standing Counsel.
(for Opp. Party Nos.1 to 3)
Mr. K.K. Rath, Advocate (for Opp. Party No.4).
P R E S E N T:
HONOURABLE MR. JUSTICE ANANDA CHANDRA BEHERA
Date of Hearing : 18.08.2025 :: Date of Judgment :17.09.2025
J UDGMENT
ANANDA CHANDRA BEHERA, J.--
1. This writ petition under Article 226 & 227 of the
Constitution of India, 1950 has been filed by the petitioners
praying for directing the Opp. Parties through issuance of a
Writ of Mandamus not to record any portion of their house
Plot No.647/2312 under Khata No.329/1417 in Mouza-
Srikanthapur, Unit No.13 under Balasore Town P.S. in the
district of Balasore in the name of the Government illegally,
not to sewage municipal drain water into their house plot
No.647/2312 and to direct the Opp. Parties to compensate
them (petitioners) for their physical and mental injuries
suffered by them (petitioners) due to the nuisances caused by
the Opp. Parties draining out the municipal foul and dirty
water through the house plot No.647/2312 of the petitioners
deliberately, intentionally and continuously and to pass such
other order or orders as the Courts deem just fit and proper.
2. Heard from the learned counsel for the petitioner, the
learned Standing Counsel for the State (Opp. Party Nos.1 to 3)
and the learned counsel for the Opp. Party No.4 (Executive
Officer, Balasore Municipality, Balasore).
3. The factual backgrounds of this writ petition, which
prompted the petitioners for filing of the same is that, they
(petitioners) are the owners of their house Plot No.647/2312
Ac.0.0550 dec. under Khata No.329/1417, in Mouza-
Srikanthapur Unit No.13 inside Balasore Municipality in the
district of Balasore. The R.o.R of Khata No.329/1417 vide
Annexure-1 stands in the name of the petitioners, in which,
no other person including the Opp. parties had/have any
interest. They (petitioners) have their residential house on that
plot No.647/2312 under Khata No.329/1417. They
(petitioners) and their family members are residing in their
house situated on their above house plot No.647/2312. The
Opp. Parties including the Opp. Party No.4 (Executive Officer,
Balasore Municipality, Balasore) without any lawful authority
have been draining out dirty and foul municipal drain water of
Balasore Municipality through the southern side and eastern
side of the house plot No.647/2312 of the petitioners
forcefully, intentionally and deliberately. The foul and dirty
water of the areas of Jhadeswar Temple, Nayabazar,
Ranipatana and Neliabag are passing through the municipal
drain inside the house plot No.647/2312 of the petitioners
towards Chunavati area.
The aforesaid continuous flowing of dirty and foul
municipal sewage water inside the house Plot No.647/2312 of
the petitioners had/has been creating unbearable nuisances
to the petitioners and their family members. Both the
petitioners have become the heart patients.
As such, the petitioners and their family members
had/have been affecting seriously due to the aforesaid
continuous nuisances caused by the Opp. Parties.
Though, the petitioners had requested time and again to
the Opp. Parties through their local authorities for diversion of
the municipal drain from their house plot No.647/2312, but
they did not pay any heed to the same. For which, they
(petitioners) sent written applications (Annexure-3 series) to
the Opp. Parties on dated 19.06.2025 through Registered
Post requesting them (Opp. Parties) for the diversion of the
municipal drain from their house plot No.647/2312 and to
save them (petitioners) and their family members from the
affect of nuisances, but in spite of receiving the said written
applications, the Opp. Parties did not respond to the same,
but in stead of which, they (Opp. Parties) tried to record the
portion of house plot No.647/2312 of the petitioners (on
which the Opp. Parties are draining out municipal drain
water) illegally in the name of the Government, for which,
without getting any way, the petitioners approached this
Court by filing this writ petition seeking the above directions
and compensations against the Opp. Parties.
4. Having been noticed from this Court, in this writ
petition, the Opp. Party Nos.2 to 4 filed their counter
supported with an affidavit on being sworn by the Opp. Party
No.4 (Executive Officer, Balasore Municipality, Balasore)
stating as follows:
"It is true that, the petitioners are the owners of Plot No.647/2312 in Mouza-Srikanthapur under Town P.S, the rain water is passing through the petitioners plot, because there is no other Government Land or vacant land to be utilized for the drainage of household water or rain water. In order to seek the public welfare and for the petitioners welfare, the water is being drained for the last 20 years for benefit of the public at large. The petitioners could have taken the shelter before the Civil Court earlier, but without taking shelter before the appropriate Court, they have taken the shelter before the Hon'ble Courts, which is not maintainable. As per their filed verification, it is revealed that, the drain is flowing outside the boundary of the petitioners and there is no any other option to divert the drain, as there is no any Government land available for this and there is every possibility of water logging and artificial flooding in that area and many people including the petitioners will be affected by this and again the petitioners will have to take shelter of the Hon'ble Court. The Municipality is ready to construct slabs over the drain passing through the house of the petitioners for maintaining hygienic atmosphere. The project detail with estimates are annexed here for construction of cover slab, which will be executed after due approval in the Municipal
Council. The petitioners for the first time in June 2025, after 20 years of construction of drain came and ventilated their grievances. So an efflux of time has been elapsed, and many houses have been constructed during this period hence the petitioners grievances for stoppage of drain water may not be entertained and the contents of the writ petitioners is liable to be rejected. The Municipality is ready to help the petitioners amicably by considering the petitioners grievance and the petitioners should also cooperate with the Municipality for the welfare of the society."
5. Here in this matter at hand, the petitioners have sought
for the following reliefs:
I) for a direction to the Opp. Parties not to record any portion of their house Plot No.647/2312 in the name of the Government illegally, II) to take immediate and effective steps by the Opp. Parties for the stoppage of flowing of Municipal drain water into the house plot No.647/2312 of the petitioners and to save them (petitioners) and their family members from the affect of the nuisances, III) for a direction to the Opp. Parties to compensate the losses and injuries suffered by the petitioners due to continuous sewage of foul and dirty municipal water inside their residential house Plot No.647/2312 by the Opp. Parties forcefully, deliberately and intentionally.
6. So far as the 1st relief sought for by the petitioners i.e. for
a direction to the Opp. Parties not to record any portion of
their house Plot No.647/2312 in the name of the Government
illegally is concerned;
As per Article 19, 31 and 300A of the constitution of
India, 1950, Right to Property is now considered to be not only
constitutional or statutory Right, but also Human Right.
Government or its Department or any other else cannot
deprive any person in enjoying his property. Because, the
owner of the property is the Master of his own land and he
can use the same as per his sweet will without
hampering/affecting the rights of others in any manner.
On this aspect, the propositions of law has already been
clarified in the ratio of the following decisions:
I. In a case between Tukaram Kana Joshi & Others through Power of Attorney Holder Vs. M.I.D.C. & Others reported in 2012 (IV) Civ.L.T. 333 (SC) that, as per Article 19,31 & 300A of the Constitution of India, right to property is now considered to be, not only constitutional or statutory right, but also a Human Right. (Para Nos.6 & 7) II. In a case between P.T. Munichikkanna Reddy & Ors vs Revamma And Ors. reported in AIR 2007 (SC) 1753 that, Right of Property is not only a Constitutional Right or statutory Right, but also a Human Right. Everyone has the Right to own property alone as well as in
association with others. No one shall be arbitrarily deprived of his property.(Para Nos.15 & 17)
7. Here in this matter at hand, when undisputedly, the
petitioners are the owners of their house Plot No.647/2312
and when they (petitioners) are the Master of their own land
plot vide Plot No.647/2312 and when they (petitioners) have
right to enjoy their house plot No.647/2312 as per their sweet
will, then, at this juncture, the Opp. Parties have no authority
under law to record any portion of their house Plot
No.647/2312 in the name of the State/Government without
acquiring the same as per law.
For which, by applying the principles of law enunciated
in the ratio of the aforesaid decisions, it is held that, the Opp.
Parties cannot record any portion of the house plot
No.647/2312 of the petitioners in their names.
8. So far as the 2nd relief sought for by the petitioners i.e.
to take immediate and effective steps by the Opp. Parties for
the stoppage of flowing of Municipal drain water into the
house plot No.647/2312 of the petitioners and to save them
(petitioners) and their family members from the affect of the
nuisances is concerned;
Nuisance means-:
Something noxious or offensive. Any unauthorized Act which, without direct physical intereference materially impairs the use and enjoyment by another of his properties or prejudicedly affects his helath, comfort or convinience is a nuisance.
An inconvinience materially interefering with ordinary comforts of human existence. Anything injurious or obnoxious to the community or to an individual as a member of it, for which, some legal remedy may be found.
Nuisance is of two kinds:
Public and private.
If a nuisance affects the helath, comfort or convinience of the general public, or of all persons, who happen to come within its operation, it is a public nuisance.
If however, it affects the helath, comfort or convinience of only one or two persons, it is a private nuisance, not a public nuisance.
In the case of private nuisance, the usual remedy is an action for an injunction and damages.
9. The allegations alleged by the petitioners against the
Opp. Parties in this matter at hand is coming within the
purview of private nuisance.
The averments made in the counter affidavit of Opp.
Party Nos.2 to 4 indicated above in Para No.4 of this
Judgment are fully corroborating the case of the petitioners.
Because, in the aforesaid counter affidavit of the Opp.
Party Nos.2,3 & 4, they (Opp. Party Nos.2,3 & 4) have candidly
admitted to the case of the petitioners stating specifically in
their counter affidavit that,
"It is true that the petitioners are the owners of plot No.647/2312 in Mouza-Srikanthapur and the municipal drain water is passing through the house of the petitioners, as there is no other Government Land or vacant land to be utilized for the drainage of household water or rain water. The said water is being drained for the last 20 years. For which, the petitioners should have taken shelter before the Civil Court instead of this Writ Court. As the petitioners had not ventilated their grievances earlier, for which, they have lost their right to
get any relief in this writ petition due to efflux of time. Therefore, the prayers of the petitioners to direct the Opp. Parties for the stoppage of draining out of municipal water through their Plot No.647/2312 cannot be entertained."
10. It is the settled propositions of law that, environment is
the basic source of life. The people have the right of enjoyment
of pollution free water and air for full enjoyment of their lives.
If, anything endanger or impairs the quality of life, the
Court can interfere with the same and shall pass order to
remove the pollution of water and air, which is causing or
expected to cause detrimental to the quality of life.
The protection of the environment is premised not only
on the active role of courts, but also on robust institutional
frameworks, within which, every stakeholder complies with its
duty to ensure sustainable development.
A framework of environmental governance committed to
the rule of law requires a regime which has effective,
accountable and transparent institutions. Equally important
is responsive, inclusive, participatory and representative
decision making. Sustainable development is premised not
merely on the redressal of the failure of democratic
institutions in the protection of the environment, but ensuring
that, such failures do not take place.
On this aspect, the propositions of law has already been
clarified in the ratio of the following decisions:
I. In a case between Rourkela Shramik Sangha Union vs Steel Authority Of India Ltd. & Anr. reported in 2010 (1) OLR 325 (DB) that, Right to Life does not mean that, it is merely an animal existence, but it should have the Right to live with dignity including the enjoyment of pollution free air and water and to live in a healthy and conducive atmosphere which is required for existence of a human being. (Para No.9) II. In a case between Subhash Kumar Vs. State of Bihar & Others reported in AIR 1991 SC 420 that, Right to life is a fundamental Right under Article 21 of the Constitution and it includes the Right of enjoyment of pollution free water and air for full enjoyment of life.
III. In a case between M.C. Mehta and Another vs. Union of India & Others reported in AIR 1987 SC 1086 & (2004) 12 SCC 118 that, the approach of the Court has to be liberal towards ensuring social justice and protection of Human Right, public health and ecology, which has priority over unemployment and loss of revenue IV. In a case between M.C. Mehta Vs. Union of India & Others reported in 2017 (2) CCC (SC) 160 that, health of the people cannot be compromised even in the smallest measure. (Para Nos.4 & 7)
V. In a case between Subash Kumar Vs. State of Bihar & Others reported in AIR 1991 (SC) 420 that, people have the right of enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs the quality of life, in derogating of laws a citizen has right to have recourse for removing the pollution of water and air which, may detrimental to the quality of life.
VI. In a case between Bengaluru Development Authority Vs. Mr. Sudhakar Hegde decided in Civil Appeal No.2566 of 2019 (SC) (Para Nos.77 and 79) that, the Courts today, are facing with increasing environmental litigations. The protection of the environment is premised not only on the active role of Courts but also on robust institutional framework within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision making. Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognized value under Article 21 of the Constitution, proper structures for environmental decision making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place.
11. When in the counter affidavit submitted by the Opp.
Party Nos.2 to 4, as stated above in Para No.9, the Opp. Party
Nos.2 to 4 have admitted that, sewage (drain) of the
Municipality has passed through house of the petitioners
stating their exoneration from any liability for the same on the
ground that, "the petitioners had not ventilated their grievances
earlier and the right of the petitioners to protest against the
sewage of drain water through their house has already been
elapsed due to efflux of time cannot be acceptable under law."
Because, the Opp. Parties have no right or authority
under law to drain out the dirty and foul municipal water of
several areas of the municipality through the house Plot
No.647/2312 of the petitioners, even if, they (petitioners) had
not protested earlier against the same. Rather, it was/is the
lawful duties of the Opp. Parties to stop such flowing of
municipal drain water through the house plot No.647/2312 of
the petitioners.
On this aspect, the propositions of law has already been
clarified in the ratio of the following decisions:
I. In a case between Sukh Dutt Ratra Vs. The State of Himachal Pradesh & Others reported in 2022 (7) SCC 508 that, plea of the State that, verbal consent and lack of objection by the land owner for the use of the land by the State, not sustainable under law.
II. In a case between Nokhia & Others Vs. State of Himachal Pradesh and Others reported in ILR 1984 (HP) 906 that, the State Government had used the land for the construction of the link road without acquiring the same. The State has to bring the material on record to show that, free and informed consent was given and consent, based on the representation that, payment of compensation would be made, is no consent at all.
III. In a case between Lata Vs. State reported in 2009 (1) Shimla Law Cases 107 that, it is the mere bald assertion of the State that, the land owners had orally consented for taking of possession of that land on a verbal assurance is not sufficient. The State has to give the details, when the consent was obtained, who was the authority, obtained the consent and in what manner.
12. Here in this matter at hand, when there is no material in
the record on behalf of the Opp. Parties to show that, the
petitioner had consented the Opp. Parties to drain out the
dirty and foul municipal water of several areas of the
Balasore municipality through their house Plot No.647/2312,
then, at this juncture, in view of the principles of law
enunciated in the ratio of the aforesaid decisions, the
petitioners are not estopped under law to prevent the Opp.
Parties through issuance of a Writ of Mandamus from
draining out the dirty and foul municipal sewage water of
several areas of Balasore Municipality through their
residential house Plot No.647/2312 .
13. So far as the third relief sought for by the petitioners i.e.
for a direction to the Opp. Parties to compensate the losses
and injuries suffered by the petitioners due to continuous
sewage of foul and dirty municipal water inside their
residential house Plot No.647/2312 by the Opp. Parties
forcefully, deliberately and intentionally is concerned;
On this aspect, the propositions of law has already
been clarified in the ratio of the following decisions:
I. In a case between Brijbala Prasad & Others Vs. Patna Municipal Corporation & Others reported in AIR 1959 Patna 273 that, municipal authorities don't have statutory powers to operate drains or canals causing nuisance to others. The corporation had a statutory duty to prevent its drainage from becoming a nuisance, and liability could not be escaped by arguing that, the harm was non-feasance rather than misfeasance.
II. In a case between M.C. Mehta v. Union of India (Ganga Pollution Case) reported in AIR 1988 SC 1037 that, Public authorities have a duty to prevent pollution and
mismanagement of sewage systems. Improper sewage discharge even via municipal drains must be stopped. III. In a case between Naider Mal Vs. Ugar Sain & Another reported in AIR 1966 (P & H) 509 that, anything done, which unwarrantably affects the rights of others, endangers life or health and violates the law of decency or obstructs the comfortable and reasonable use of property amounts to nuisance.
IV. In a case between Municipal Council, Ratlam Vs. Vardhichand & Others reported in AIR 1980 (SC) 1622 that, nuisance in a locality due to existence of open drains, pits and public excretion, Court can require officers of Municipality to abate it by affirmative action on time bound basis.
V. In a case between Madhabananda Pal Vs. The Executive Officer and Others reported in 78 (1994) CLT 332 that, municipal authorities cannot be permitted to take the plea of expenditure for the discharge of its lawful duties.
13. When in the counter affidavit of the Opp. Party Nos.2 to
4, they (Opp. Parties) have admitted that, municipal drain is
passing through the house of the petitioners and when the
petitioners and their family members are residing in their
house on plot No.647/2312 and when it is the case of the
petitioners that, the said Municipal drain passed through
their house Plot No.647/2312 is causing nuisances and
affecting the health of the petitioners and their family
members seriously and when the petitioners are sufferings
from heart diseases and when it was/is the lawful duties of
the Opp. Parties to keep all the residents inside the Municipal
areas including the petitioners free from the affect of
nuisances and when instead of keeping the petitioners and
their family members free from the affect of nuisances, the
Opp. Parties including the Opp. Party No.4 have become the
party for creation of such nuisances against the petitioners
and their family members affecting their health, comfort and
convenience depriving them (petitioners) illegally from
enjoying their house Plot No.647/2312 as per their sweet will
and when it has already been clarified in the ratio of the
decisions of the Apex Court in a case between P.T.
Munichikkanna Reddy & Ors vs Revamma And Ors.
reported in AIR 2007 (SC) 1753 that, when by the act of the
State, the owner is deprived from enjoying its property as per
his sweet will, the State Government should pay damages to
the owner for such depravation. For which, by applying the
principles of law enunciated in the ratio of the aforesaid
decision, it is held that, the Opp. Parties should be made
liable jointly and severally to pay compensation to the
petitioners for their depravation by them (Opp. Parties) from
enjoying their house Plot No.647/2312 as per their sweet will
due to the flowing of municipal drain through their house plot
No.647/2312 by them (Opp. Parties), if they (Opp. Parties)
fails to divert the municipal drain from the house plot
No.647/2312 of the petitioners through the public road
situated to the west, one plot after the house plot
No.647/2312 of the petitioners running towards its north
touching the main road, as shown in the Annexure A/4
(Sketch Map) of the Opp. Parties in their Counter.
Because, it is well evident from the Annexure-A/4
(sketch map) attached with the counter of the Opp. Party
Nos.2 to 4 that, the municipal drain has entered into the
southern side of house Plot No.647/2312 of the petitioners
coming/following from its western side and there is a public
road to the west one plot after the house plot No.647/2312 of
the petitioners, which has touched to the main road running
towards north. The Opp. Parties having their full scope/
provisions/ facility for diverting the municipal drain from the
house plot No.647/2312 of the petitioners through the public
road as shown by their own sketch map vide Annexure-A/4,
(which is to the west, one plot after the house plot
No.647/2312 of the petitioners) they (Opp. Parties)
intentionally and deliberately allowing to flow the municipal
drain water through the house plot No.647/2312 of the
petitioners.
The above conduct of the Opp. Parties for non-diversion
of municipal drain from the house plot No.647/2312 of the
petitioners and their objection to the case of the petitioners
only on a technical ground of non-ventilation of such
grievances earlier cannot preclude/debar the petitioners to
raise the same through this Writ Petition.
Because, the Opp. Parties are not the private Parties,
but they (Opp. Parties) are State and its instrumentalities. As
per law, when the State and its instrumentalities deal with
their citizens like the petitioners, they should not ordinarily
rely on technicalities, and if the State and its instrumentalities
are satisfied that, the case of their citizens is a just one, even
though legal defences may be open to it, they must act, as
honest persons.
On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:
I. In a case between Committee-GFIL Vs. Libra Buildtech Private Limited reported in (2015) 16 SCC 31 that, when the State and its instrumentalities deals with a citizen, they should not ordinarily rely on technicalities, and if the State and its instrumentalities are satisfied that, the case of the citizens is a just one, even though legal defences may be open to it, it must act, as honest person. II. In a case between Sri Nakula Charan Gochhayat Vs. Secretary, Jagatsinghpur Sub-divisional House Building Cooperative Society Limited & Others reported in 2013 (Supp.I) OLR 95 that, when the action of the State or its instrumentalities is not in accordance with the provisions of the Act, Rules or Regulations, the Court must exercise its discretionary and supervisory jurisdiction to declare such action to be illegal and invalid and grant consequential relief to a party, for which he or she is entitled to in law. (Para No.40).
14. As per the discussions and observations made above,
when it is held that, the Opp. Parties being the State and its
instrumentalities cannot debar the petitioners to get the reliefs
sought for by them on the ground of their delay in
approaching the court for the same, only for the reason that,
the case of the petitioners is a just one, then, at this juncture,
there is no other alternative for this Court, but to allow the
writ petition filed by the petitioners.
15. As such, there is merit in the writ petition filed by the
petitioners. The same must succeed.
16. In result, the writ petition filed by the petitioners is
allowed on contest.
17. The Opp. Parties are directed through issuance of a Writ
of Mandamus not to record any portion of house Plot
No.647/2312 under Khata No.329/1417 in Mouza-
Srikanthapur, Unit No.13 of the petitioners in their names.
They (Opp. Parties) are directed to take steps for
prevention of entry of Balasore municipal sewage water in to
the house Plot No.647/2312 under Khata No.329/1417 in
Mouza-Srikanthapur, Unit No.13 of the petitioners and to
divert the said municipal drain from the house plot
No.647/2312 of the petitioners through the public road
situated to the west, one plot after the house plot
No.647/2312 of the petitioners running towards its north
touching the main road, as shown in the Annexure-A/4
(Sketch Map) of the Opp. Parties in their counter affidavit by
the end of January 2026 positively and to report about its
compliance before this Court and in case of failure of the Opp.
Parties to comply the above directions within the stipulated
period as indicated above, the Opp. Parties shall be made
jointly and severally liable to pay Rs.1000/- (rupees one
thousand only) for each day as compensation to the
petitioners starting from 1st February, 2026 onwards for
continuance of nuisances against them (petitioners) till the
diversion of the municipal drain from house plot No.647/2312
of the petitioners.
18. The petitioners can realize compensation amount either
jointly or severally from the Opp. Parties as per law.
19. All the Opp. Parties including Opp. Party No.4 (Executive
Officer, Balasore Municipality, Balasore) are directed to keep
the municipal drain passed through the house plot
No.647/2312 of the petitioners in a proper hygienic condition
for non-emission of any pungent smell therefrom engaging
men, machineries, staffs and health officers of the Opp.
Parties for the same according to the satisfaction of the
petitioners till the diversion of municipal drain from the house
plot No.647/2312 of the petitioners.
20. Registry is directed to communicate the copy of this
Judgment along with the copy of Annexure-A/4 to the Opp.
Party No.4 (Executive Officer, Balasore Municipality, Balasore)
immediately for proper implementation of the directions made
in this Judgment.
21. As such, the writ petition filed by the petitioners is
disposed of finally.
(ANANDA CHANDRA BEHERA) JUDGE
High Court of Orissa, Cuttack The 17 .09. 2025// Rati Ranjan Nayak Sr. Stenographer
Location: High Court of Orissa, Cuttack, India.
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