IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

     THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                               &

         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

 FRIDAY, THE 14TH DAY OF FEBRUARY 2020 / 25TH MAGHA, 1941

                    WA.No.166 OF 2020

AGAINST THE JUDGMENT IN WP(C) 19575/2019(V) OF HIGH COURT
                OF KERALA DATED 26.9.2019

APPELLANT/PETITIONER IN WPC:

           T.G.MANIYAMMA
           AGED 57 YEARS, W/O P.P.SASIDHARAN,
           PUTHUMPARAMBIL HOUSE, KOIPPURAM,
           PULLAD.P.O,PATHANAMTHITTA DISTRICT.

           BY ADVS.
           SRI.FRANKLIN ARACKAL
           SRI.M.B.SOORI
           KUM.NEETHU SOMAN

RESPONDENT/RESPONDENTS 1-5 IN WPC:

     1     KOIPPURAM GRAMA PANCHAYAT
           KOIPPURAM,PULLAD.P.O,
           PATHANAMTHITTA DISTRICT-689 548,
           REPRESENTED BY ITS SECRETARY.

     2     THE SECRETARY,
           KOIPPURAM GRAMA PANCHAYAT,
           KOIPPURAM,PULLAD.P.O,
           PATHANAMTHITTA DISTRICT-689548.

     3     THE ASSISTANT ENGINEER,
           LSGD SECTION,KOIPPURAM GRAMA
           PANCHAYAT,KOIPPURAM,PULLAD.P.O,
           PATHANAMTHITTA DISTRICT-689548.

     4     THE KERALA STATE POLLUTION CONTROL BOARD,
           THIRUVANANTHPAURAM,
           REP.BY ITS SECRETARY,
           THE KERALA STATE POLLUTION CONTROL BOARD,
           THIRUVANANTHAPURAM-695001.
   W.A.166/2020
                                 2


      5          THE ENVIRONMENTAL ENGINEER,
                 KERALA STATE POLLUTION CONTROL BOARD,
                 DISTRICT OFFICE,PATHANAMTHITTA -689647.

                 R1-2 BY ADV. SRI.M.R.VENUGOPAL
                 R2 BY ADV. SMT.DHANYA P.ASHOKAN
                 R3 BY SR.GOVERNMENT PLEADER SRI.ARAVINDAKUMAR
                                                       BABU
                 R4 & 5 BY SRI. T. NAVEEN, STANDING COUNSEL

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
14.02.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
   W.A.166/2020
                                    3

                               JUDGMENT

Dated this the 14th day of February, 2020 S. Manikumar, CJ Challenging the judgment made in W.P(C). No.19575 of 2019 dated 26.9.2019, instant appeal is filed.

2. The short facts leading to filing of writ petition No.19575 of 2019 are :

Petitioner is a retired Secretary from a co-operative society. Husband of the petitioner and their only son are working abroad. Petitioner and her husband are the joint owners of the property situated in Re-Sy. No.431/19-5, 431/19-2 and 431/19-3, block 22 of Kolpuram Panchayat, Kolpuram Village. The property of the petitioner is lying in between the Panchayat road and a large stretch of paddy field. The respondents are constructing a new canal having a length of 260 meters along the border of the Panchayat road touching the boundary of the petitioner and other residents. The canal is constructed with no open ends in a closed manner and that there will be no provision for outflow of water or other effluents which gets accumulated in it. The adjacent property owners are not willing to give a cut across their property to the paddy field lying behind for outflow of water from canal. The respondents ended the construction of the canal near to the property of the petitioner. The petitioner's property is the lowest lying area. As a result, water and other effluents will get accumulated in the W.A.166/2020 4 canal and will get discharged into the property of the petitioner before flowing into the paddy field. This will ultimately ruin the crops in the property of petitioner and will cause soil erosion. Besides, the closed end canal will cause the effluents to stagnate, raising health concerns. There is a small opening from the canal/road in between the property of two local residents or the canal is to be extended up to an existing canal situated a few meters from the point where the canal now ends. However, respondents are not willing to make use of the said existing opening lying, in between the property of two other residents.

3. A statement has been filed by the first respondent Grama Panchayat, which inter aila states that:

"2. The Panchayat is doing the renovation of road starting from Palamparambil Padi to Thazhampal Padi having a length of 3.450 Kms. During rainy season one kilometer stretch of the said road starting from Palamparambil would be water logged causing serious damage to the road. During the flood of last year the road was almost destroyed in that area. It was because of this reason, the Panchayat had decided to renovate the road before the monsoon season. The 1st phase of the work has already been completed. During the 2 nd phase, it was decided to divert the stagnated water on W.A.166/2020 5 the road to a culvert situated nearby. Hence, a small channel along the length of the road was constructed for about 260m. Now the re-tarring work of the road is in progress. The rain water in the area during monsoon season, after flowing through this culvert would naturally reach the nearby paddy field. That was how it has been working.

3. It is learned that the petitioner had unauthorisedly blocked the natural exit of the culvert to the paddy fields by filling waste materials including mud and soil and as a result, now water is not flowing to the paddy field as before. The entire area around the culvert is classified as paddy fields in the revenue records. This is evident from Ex.P2 itself. The petitioner had reclaimed her land by filling earth by which the natural lie of the property was changed. Those illegal filling of earth had caused blockage to the flowing water through the culvert to the paddy fields. As a result now, water is being stagnated in the road. The problems became worse during the unprecedented floods happened in the previous year.

4. At present the Panchayat estimates at least W.A.166/2020 6 Rs.50 Lakhs for the renovation including the construction of canal, re-tarring of road and its allied works. The apprehension of the petitioner that the waste liquid and semi solid wastes from the nearby houses will enter to the paddy field is baseless. The canal is constructed using Irish technology which allows only the rain water to enter this canal and to reach the culvert. The alternative way suggested by the petitioner is not practical and there is no sanction also for the same. Moreover it will create additional financial burden to the Panchayat and also inconvenience to many local residents. The petitioner is the only person who has objected to the construction of the said canal and diversion of water which is based on his mere apprehensions.

5. The apprehension of the petitioner that the residents of the locality will use the drainage for discharging filth etc. is not correct. The purpose of the construction itself is only to drain the stagnated rain water of that locality. The question of closing both ends of the canal as apprehended in Paragraph 13 is not at all arising in this case. The one side of drainage will W.A.166/2020 7 collect rain water and it will be discharged through the other side. The other contentions are all mere apprehensions of the petitioner."

4. A reply affidavit has been filed by the petitioner, which is as under:

"3. All the averments and allegations in the said statement filed by the 1st respondent is denied except to the extent specifically admitted hereunder:

4. The averments in paragraph 2 of the statement that rain water used to stagnate in the road is denied. The canal under construction starts at the highest lying end of the road and ends near the property of the petitioner, which is the lowest lying part of the road. The entire length of road which is the issue herein is lying in a slanting angle. Because of the slop of the road, water never gets stagnated on the road but if the canal is completed water will overflow near to the property of petitioners ultimately damaging/destroying the property of the petitioner. The averments in this regard is false and hence denied. It is submitted in the month of August 2018, the water level in the area rose up to the height of a two storied building. So the W.A.166/2020 8 reference to the last years flood is unwarranted and misleading.

5. The petitioner purchased the property covered by Ext.P1 in 2004. Since then she has not reclaimed any portion of the property or has changed the lie of the property. In the property even trees having an age of 50 years still grows. The entire houses situated on the western side of the road is low lying hence houses are erected on pillars. The reference to the culvert is also denied. A culvert is constructed for a free flow of water across road. If the contention of the 1st respondent is taken into account, on either side of the road a thodu/canal should exist or on either side of the road low lying water logged properties should exist. Here the property on eastern side of the road is a high land and the property of the petitioner on western side is also high land. So the question of the existence of culvert or its blocking by the petitioner is imaginary, false and hence denied. It is mandatory for every panchayat to maintain an Asthi Register, which is a record of roads, canals, culvert, drain etc. vested in panchayat to show the existence of these. Hence the respondent may be W.A.166/2020 9 directed to produce the Asthi register to show the existence of canal, drain or culvert near the property covered by Exhibit P1.

6. There is already provision for cut flow of water from canal or road as can be seen from Ext.P5 which can be made use of or in the alternative there is already a free flowing thodu across the road, a few meters away near from the property of the petitioner, if the road is extended up to that point which can also be contained within the present budget, whole issues can be settled. It is uncertain how a canal running along the line of the load can collect entire rain water. The said averment is also false. Other local residents are silent as they are not on the receiving end of the misdeed of the panchayat.

7. If the attempt of the respondent No.1 is materialized, this will cut petitioner's property into two making it worthless. The paddy filed lying behind the petitioner's property belongs to a private party, as learned who is currently in north India. The respondent No.1 is not supposed to discharge water into a private property on that ground as well. Hence the averments W.A.166/2020 10 in the statement filed by the 1 st respondent are liable to be rejected."

5. After considering the rival submissions, the writ court ordered thus:

"2. Smt.Dhanya.P. Ashokan-learned Standing Counsel appearing for the Panchayat, submits that the allegations of the petitioner are completely untrue, because all that the Panchayat is now doing is to create a water drain on the side of the road, so that it will not be destroyed during the monsoons and further that the water is flowing through it only as it has been done for the last several decades, following its natural course. She says that there is already a culvert just ahead of the petitioner's property, through which rain water was always flowing to the lands below and that the petitioner appears to have blocked the culvert, presumably to illegally convert his property which is originally a paddy field. She says that the attempt of the petitioner by filing this writ petition is to ensure that no water flows into his property as was happening in the past, because this is the normal and natural direction of its flow and therefore, that this writ petition be dismissed without any further orders.

3. The learned standing Counsel appearing for the 4th respondent-Pollution Control Board-Sri.T.Naveen, submits that they have not been approached by the Panchayat for any consent to make construction and he says that, prima facie, it does not appear to be necessary either, since all that thePanchayat appears to be doing is to construct a canal to drain away rain water. He says that the Pollution W.A.166/2020 11 Control Board will abide by any direction being issued by this Court.

4. I have considered the afore submissions and I have also examined the materials and pleadings on record. As is indubitable from the afore narration, the internecine disputes between the parties are in the realm of facts and it will not be normally possible for this Court to make affirmative declarations on the same. However, what is pertinent in this case is that the Panchayat maintains that they are only creating a water drain on the side of the public road, so as to aid the natural water flow, as was happening in the decades past; while the petitioner alleges that a new drain is being created with the specific intent of draining water into her property. She also has a case that there is a public canal nearly 100 meters away, to which the new canal can be connected, so that the unnecessary flooding of her property can be avoided.

5. On hearing the petitioner as above, I asked the learned Standing Counsel for the Panchayat-Smt.Dhanya P. Ashokan, whether the afore suggestion of the petitioner can be acceded, to which she submitted that it will not be possible because, for such an arrangement, more than 50 lakhs will have to be expended, which the Panchayat does not have. Obviously, therefore, this is not an issue that this court can conclusively declare or direct, while acting under Article 226 of the Constitution of India. In the afore circumstances, since the issues presented in this case are squarely the realm of facts, I deem it appropriate to close this writ petition; however, leaving liberty to the petitioner to either invoke alternative remedies W.A.166/2020 12 as are available to her under the civil law or to approach the respondents with a request to have the new drain connected to the public canal so that the same can be considered by the competent Authorities as per law and taking into account, the fiscal obligations."

6. Being aggrieved, instant appeal is filed on the grounds inter alia that :

1. The learned Single Judge has not appreciated and applied the law applicable at the point of dispute and the decision rendered is contrary to the facts and circumstances of the case.

2. Under Section 25C of Water (Prevention and Control of Pollution) Act 1974 "no person shall without the previous consent of the State Board begin to make any new discharge of sewage. Here the respondent panchayat constructed a new Canal without obtaining permission from the Kerala State Pollution Control Board. The 1 st and 2nd respondents have not obtained permission of the 4 th respondent for construction of the said new canal. The said fact has been affirmed by 4th respondent at the time of hearing but the said issue has not been considered by learned Single Judge.

3. The learned Single Judge ought to have found that the small opening in between the property of two local residents W.A.166/2020 13 can be utilized effectively for the discharge of the water. The said issue was not properly considered by learned Single Judge.

4. The finding of learned Single Judge that the petitioner can invoke alternative remedies as are available under the civil law is prima facie wrong since e issue raised b the appellant herein is not really of civil nature by the act of the respondent 1 to 3 is infringing the right of the appellant guaranteed under Article 21 of the Constitution of India. The learned Single Judge had ignored this fact and replaced it with its own opinion without any cogent reasoning. Hence the judgment of the learned Single Judge is liable to be set aside.

5. The Single Judge ought to have found that the action of construction of new canal without any effective drainage is in violation of Section 25 of the Travancore Cochin Public Health Act 1955 which says "every urban and local authority shall so far as the funds as its disposal may permit provide and maintain sufficient and satisfying system of public drains for the effectual draining of its local area.

7. Heard learned counsel for the parties and perused the materials on record.

W.A.166/2020 14

8. On consideration of the rival submissions and the pleadings, we are of the view that, complex fact situations are involved in the case, and the issue cannot be sorted out in a summary proceedings under Article 226 of the Constitution of India. It was accordingly that the learned Single Judge refused to grant the relief sought. Therefore, such a course adopted by the learned Single Judge cannot be said to be bad or illegal. Moreover the learned Single Judge has already granted liberty to the petitioner to either invoke alternative remedies available to her under the civil law or to approach the respondents with a request to have the new drain connected to the public canal so that the same can be considered by the competent Authorities as per law and taking into account, the fiscal obligations. We see no reason to interfere with the impugned judgment.

The writ appeal is dismissed.

Sd/-

S. Manikumar, Chief Justice Sd/-

Shaji P. Chaly, Judge sou.