Kerala High Court
P.A. Nazeer Huzain vs The State Of Kerala on 31 July, 2013
Author: K.M. Joseph
Bench: K.M.Joseph, A.Hariprasad
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
FRIDAY, THE 29TH DAY OF NOVEMBER 2013/8TH AGRAHAYANA, 1935
WA.No. 1578 of 2013 () IN WP(C).8073/2013
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AGAINST THE JUDGMENT IN WP(C) 8073/2013 of HIGH COURTOF KERALA DATED 31-07-2013
APPELLANT(S)/PETITIONERS IN WPC:
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1. P.A. NAZEER HUZAIN
S/O. ABU SALI, KADAVILAKATH PUTHEN VEEDU, PANACHAMOODU
PANACHAMOODU P.O., VELLARADA
THIRUVANANTHAPURAM DISTRICT
2. P.SSHAMSAM NIHAR.,
D/O.ABU SALI, KADAVILAKATH PUTHEN VEEDU, PANACHAMOODU
PANACHAMOODU P.O., VELLARADA
THIRUVANANTHAPURAM DISTRICT.
BY ADV. SRI.T.RAJASEKHARAN NAIR
RESPONDENT(S):
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1. THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY
LOCAL SELF GOVERNMENT GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM-695 001
2. VELLARADA GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY
PANACHAMOODU PANACHAMOODU P.O., VELLARADA
THIRUVANANTHAPURAM-695 001.
3. THE SECRETARY
VELLARADA GRAMA PANCHAYAT, PANACHAMOODU P.O.
THIRUVANANTHAPURAM-695 001.
4. THE EXECUTIVE ENGINEER
PUBLIC WORKS DEPARTMENT (ROADS), SUB-DIVISION OFFICE
NEYYATTINKARA 695 001.
R2 & 3 BY SRI.J.S.AJITHKUMAR
R1 & 4 BY GOVERNMENT PLEADER SRI. SYAMKUMAR
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-11-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sou.
K. M. JOSEPH & A. HARIPRASAD, JJ
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W.A. No. 1578 OF 2013
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Dated this the 29th day of November, 2013
J U D G M E N T
K.M. Joseph, J Appellants are the writ petitioners. The prayer sought in the writ petition is as follows:
"i) issue a writ of mandamus or any other appropriate writ or order or direction, directing the respondents to immediately close/shut down the culvert permanently, that opens into the property of the petitioners;
ii) issue a writ of mandamus or any other appropriate writ or order or direction, directing the respondents to take immediate steps to arrest the flow of waste water and other waste materials into the property of the petitioners through the opening of the culvert, constructed by the 2nd respondent panchayath"
2. Very Briefly put, the case of the petitioner is as follows :
"Petitioners are the absolute owners in possession and enjoyment of a total extent of 59.14 Cents of property comprised in Rer-survey No.587/7 and 100 Cents (40.47 Ares) of property comprised in Re-survey No.587/8 of Vellarada Panchayath, respectively as evidenced by Exhibits-P1 and P2, and they are having a residential building and a saw mill in the said property also. The grievance of the petitioners is that, through the 'opening' of a culvert which opens into the said property of the petitioners; as evidenced by Exhibit-P6 series of photographs, WA.No.1578/13 2 waste water including animal waste and other waste materials from the nearby public market, public comfort stations, fish stalls, meat shops that are functioning in the building of the 2nd respondent Panchayat, discharges into the property of the petitioner; as evidenced by Exhibit P7 photographs. In fact, from the public market, which is just 500 metres away from the property of the petitioners, some 20,000 litres of waste water flows daily , on an average, through this culvert and ultimately it falls into the property of the petitioners through its 'opening'. Due to this, not only the petitioners and his family, but also the workers of the saw mill are under constant threat from contagious diseases because of the unhygienic conditions now prevailing in the said property. Petitioners had submitted several complaints before the authorities concerned of the 2nd respondent panchayat, which dates back to the year 2007, as evidenced by Exhibit P9. Even though the same was accepted by the respondents, no action was seen taken. As the discharge of waste water and other waste materials into the property of the petitioners continues, unabatedly, yet another complaint was also submitted by the petitioners before the 3rd respondent as evidenced by Exhibit P11 to which Exhibit P12 receipt was also issued by the 3rd respondent. But as nothing has turned out in positive, the 1st WA.No.1578/13 3 petitioner approached this Court by filing a writ petition as WP(c). No.28432/12, consequent to which Exhibit P13 judgment was passed. Subsequently the 3rd respondent, without addressing the real issue projected by the petitioners, had passed Exhibit P14 order, by making some baseless and unfounded allegations. As the petitioner's grievance is still unresolved, this writ petition (Civil) is filed.
3. A statement was filed on behalf of respondents 2 and 3, wherein it is stated as follows :
"3. It is submitted that pursuant to the direction contained in Ext. P13 judgment of this Honourable Court the 3rd respondent passed Ext.P14 and intimated the 1st petitioner herein to give consent in writing to construct retaining wall of the natural rain water channel in existence from time immemorial.
4. It is submitted that the property of the petitioners is lying at lower level and it is impossible to close the culvert in existence.
5. The respondents 2 and 3 has already taken measures to prevent the flow of drainage from the adjoining houses lying adjacent to Panachamoodu-Panchakuzhi.
6. Petitioners are aware of the existence of the water course (Neerchal) as well as culvert in existence evident from Ext.P.15.
8. The drainage canal and appended road (Panachamoodu-Panchakuzhi Road) was constructed and maintained by PWD and not by the Vellarada Grama Panchayat and hence Ext.P17 lacks any bonafides."
4. Learned Single Judge noted that apparently it is a WA.No.1578/13 4 question relating to title of the property which cannot be resolved by adjudication. Learned single Judge also took note of the stand of the appellant that various title deeds are produced to prove his title. Learned single Judge proceed to took the view that the Writ Court cannot decide the question of title and remedy of the petitioner is to file a civil suit. Accordingly the writ petition was dismissed without prejudice to the right of the petitioner to approach the appropriate authorities for adjudication of the matter in dispute.
5. We heard learned counsel for the appellant and the learned Government Pleader.
6. Learned counsel for the appellant would submit that there is no title dispute. We have already noted the stand of the respondent Panchayat is that essentially the property of the petitioner is lying in a lower level and it is impossible to close the culvert in existence. We further notice that in Ext.P14, which was passed pursuant to Ext.P13 judgment obtained by the appellant, it is inter alia stated that the first appellant was asked to seek consent in writing to construct a retaining wall.
7. Further more learned counsel for the appellant would submit that after the filing of the Writ Petition, the appellants were constrained to move civil court against certain private WA.No.1578/13 5 parties. He would also submit that subsequently the Panchayat was itself impleaded as a party.
8. Learned Government Pleader would point out that Ext.P14 is not challenged as such. Of course the explanation of the appellants is that essentially Ext.P14 is in favour of the appellants.
We would think that at any rate after filing of the writ petition, the appellants have approached the Civil Court and the matter is pending before the Civil Court. We have already noticed that the actual stand of the Panchayat was that the property of the petitioner was lying at a lower level and it is impossible to close the culvert in existence. In such circumstances, we uphold the judgment relegating appellants to approach the competent court which in fact the appellants had already approached. Without prejudice to all the contentions which he could raise before the competent forum, this appeal is disposed of.
Sd/-
K. M. JOSEPH, JUDGE Sd/-
A. HARIPRASAD, JUDGE.
Sou. // True copy //