Allowed

Sujitha.Y v. State of Kerala

Kerala HC23 Feb 2012WP(C)/2463/2012

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition questioning the inaction of the Panchayat Secretary in executing notices issued against a defaulting party who allegedly obstructed a public drain under the PMGSY scheme.

What did the court decide?

The writ petitionly disposed of directing the respondents 3 and 4 to take effective steps to remove obstructions caused to the public drain by the 5th respondent or anybody else and ensure free flow o

Sujitha.Y Vs State of Kerala — Municipal and Town Planning | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

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THURSDAY, THE 23RD DAY OF FEBRUARY 2012/4TH PHALGUNA 1933

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WP(C).No. 2463 of 2012 (G)

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PETITIONER:

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SUJITH.Y., S/O.YESUMARIAN,LILLY COTTAGE, MELARIYODU, VELIYAMCODE P.O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM.

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BY ADVS.SRI.M.SREEKUMAR, SRI.A.ABDUL KHARIM.

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RESPONDENTS:

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1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2. THE SENIOR TOWN PLANNER (VIGILANCE), LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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3. MARANALLOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KOOVALASSERY P.O, THIRUVANANTHAPURAM - 695 121.

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4. SECRETARY, MARANALLOOR GRAMA PANCHAYATH,KOOVALASSERY P.O, THIRUVANANTHAPURAM - 695 121.

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5. R.JAYADAS, CHRISTU BHAVAN, VADAKKEVILA, VELIYAMCODE P.O, NEYYATTINKARA - 695 512.

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6. DIRECTOR OF PANCHAYATHS, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM.

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R1,R2 & R6 BY GOVT. PLEADER SRI. MUHAMMED SHAFI.M, R3 & R4 BY ADV. SRI.V. PHILIP MATHEW, R5 BY ADV. SMT.LATHA SUSAN CHERIAN.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).NO.2463/2012-G:

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P.1: COPY OF THE LETTER NO. E3/3206/11/T.D.P. DTD. 31/10/2011. EXT.P.2: COPY OF THE PETITION FILED BY FATHER OF PETITIONER BEFORE THE R.4. DTD. 11/01/2012.

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EXT.P.3: COPY OF THE PETITION FILED BY FATHER OF PETITIONER BEFORE THE R.6 DTD. 18/01/2012.

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EXT.P.4: COPY OF THE WRITTEN COMPLAINT FILED BY LOCAL PUBLIC BEFORE THE R.4. DTD. 20/01/2012.

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EXT.P.5: COPY OF THE LETTER NO.C3-1227/2012 DTD. 08/02/2012. EXT.P.6: COPY OF THE ORDER NO.28141/11 DTD. 06/12/2011. RESPONDENT'S EXHIBITS:-

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EXT.R4.A: COPY OF THE REPORT NO.AE/GL/LSGD/MNR/11-12. EXT.R4.B: COPY OF THE NOTICE DTD. 11/01/2012 ISSUED BY SECRETARY. EXT.R4.C: COPY OF THE NOTICE DTD. 20/01/2012 ISSUED BY SECRETARY. EXT.R4.D: COPY OF THE NOTICE DTD. 03/02/2012 ISSUED BY SECRETARY. EXT.R4.E: COPY OF THE REPLY DTD. 13/01/2012 SUBMITTED BY R.5. EXT.R4.F: COPY OF THE REPLY DTD. 21/01/2012 SUBMITTED BY R.5. EXT.R4.G: COPY OF THE COMPLAINT FILED BEFORE THE OMBUDSMAN BY THE PETITIONER.

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EXT.R5.A: COPY OF THE JUDGMENT DTD. 04/01/2012 PASSED BY THIS HON'BLE COURT IN W.P.(C).NO.32919/2011.

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EXT.R5.B: COPY OF THE PLAINT IN O.S. NO.86/2012. EXT.R5.C: COPY OF THE BUILDING TAX RECEIPT DTD. 29/11/2011. EXT.R5.D: COPY OF THE NOTICE DTD. 11/01/2012 ISSUED BY THE R.4. EXT.R5.E: COPY OF THE REPLY LETTER DTD. 13/01/2012. EXT.R5.F: COPY OF THE NOTICE DTD. 20/01/2012 ISSUED BY THE R.4. EXT.R5.G: COPY OF THE REPLY LETTER DTD. 21/01/2012.

//TRUE COPY//

P.A. TO JUDGE

Prv.

C.K. ABDUL REHIM, J.

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W.P.(c) No. 2463 OF 2012

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DATED THIS THE 23^rd DAY OF FEBRUARY, 2012

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J U D G M E N T

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Petitioner is complaining about inaction on the part of the 4^th respondent in not taking any effective steps against the 5^th respondent inspite of being convinced that the 5^th respondent had caused illegal obstruction to a public drain, which was constructed under a Development Scheme, 'Prime Minister's Grama Sabhak Yojan Programme' in Aruvikkara ward of the 3^rd respondent grama panchayat. It is submitted that 5^th respondent had unauthorisedly constructed a shop building in front of his residential house abutting to the public drain and public road by illegally filling up the public drain causing flood of rainwater in the area and causing nuisance and difficulties to the petitioner and others. Exhibits P2 and P3 are the complaints submitted by the father of the petitioner in this regard before respondents 4 and 6. Exhibit P4 is another written

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W.P.(c) No.2463/2012 -2-

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complaint submitted by the local residents of the area before the 4^th respondent. Since no effective steps were taken in this regard, the writ petition is filed. Subsequently the petitioner had also produced Ext.P5 which is a letter issued by the 6^th respondent to the 4^th respondent directing to take effective steps to restore the drain since it was convinced through inspection that the 5^th respondent had illegally reclaimed the drain by putting concrete in front of his house.

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In the counter affidavit filed by the 5^th respondent all the allegations were denied. However, it is admitted that Ext.R5 (d) notice issued by the 4^th respondent was received, in which a direction was issued to stop the construction. According to the 5^th respondent on receipt of Ext.R5 (d) a reply was submitted as per Ext.R5 (e) denying the allegation with regard to reclamation of the public drain. It is also conceded that a further notice, as per Ext.R5 (f), was received from the 4^th respondent requesting to implement the directions contained in Ext.R5 (d), with immediate effect, otherwise threatening to take coercive action. It is

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W.P.(c) No.2463/2012 -3-

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stated that even on receipt of Ext.R5 (f) a detailed reply was submitted to the 4^th respondent as per Ext.R5 (g), denying the allegation of putting obstruction to the public drain.

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In the counter affidavit filed on behalf of respondents 3 and 4 it is stated that all the notices as mentioned above were issued to the 5^th respondent. But according to them the 5^th respondent had carried out only minor repairs inside the existing building, for which no permission was required. It is averred that the 3^rd respondent panchayat has been included in category No.II under the Kerala Panchayat Building Rules, 2011, and therefore with respect to works specified in Rule 10 no permit is required. Since the 5^th respondent is not constructing any beams or pillars as alleged, it does not require any permit, is the stand taken. It is further stated in the counter affidavit of respondents 3 and 4 that, the petitioner had already filed OP No.144/2012 before the Ombudsman for Local Self Government Institutions on the very same issue, which he had suppressed deliberately, and that Petitioner cannot continue parallel proceedings.

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W.P.(c) No.2463/2012

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-4-

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Learned counsel for the petitioner had raised specific allegations that the 5^th respondent and the Secretary of the 3^rd respondent Panchayat (4^th respondent) are close relatives and the inaction on the part of the 4^th respondent is due to such extraneous reasons. However, counsel for respondents 3 and 4 as well as counsel for the 5^th respondent had denied those allegations. According to learned counsel for respondents 3 and 4, the petitioner and the 5^th respondent are relatives and the dispute arose only due to to personal rivalry.

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While considering the facts and circumstances based on the rival contentions, I take note of the fact that in the counter affidavit of Respondents 3 and 4 they have denied the allegation raised by the petitioner that the 5^th respondent had reclaimed the public drain. If that be so, there is no justification at all in the action initiated by the 4^th respondent by issuing Exts.R5 (d) and R5 (f) notices (Exts.R4 (b) and R4 (c) in the counter affidavit of respondents 3 and 4). The respondents 3 and 4 have produced Ext.R4 (a), a report of enquiry submitted by the

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Assistant Engineer. But conspicuously the report is silent about any findings based on the allegation raised by the petitioner to the effect that the 5^th respondent had illegally filled up the public drain. On the other hand the report is only to the effect that a person named Shibu C. Nelson had put some building materials blocking the public drain. However, the counter affidavit of respondents 3 and 4 is also silent about any further action persued against the 5^th respondent based on Ext.R4 (b) and (c) notices. The counter affidavit is also silent as to whether any reply has been received from the 5^th respondent and as to whether such reply was satisfactory or not. Nothing is stated about disposal of the matter or about culmination of the steps initiated. From Ext.P5 it is clearly evident that the Deputy Director of Panchayats, after conducting inspection, became convinced that the 5^th respondent had filled up the public drain by putting concrete in front of his house. The above aspect reveals that the grievance voiced by the petitioner that there is inaction on the part of the 4^th respondent in taking effective steps to protect the public drain, which is

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admittedly constructed under a Development Scheme sponsored by the Central Government by expending huge amounts, is genuine and justified. However, since it is evident that action has been initiated against 5^th respondent by issuing two notices and since the 5^th respondent had already replied to those notices, it will be sufficient if a direction is issued to respondents 3 and 4 to take effective steps on the basis of such notices, after considering the objections raised by the 5^th respondent. Further question raised is regarding unauthorised construction of the building in question. Learned counsel for the petitioner contended that the exemption claimed on the basis of Rule 10 of the Kerala Panchayat Building Rules is not applicable in the case of alleged construction, because the building in question is a commercial building. However, I am not expressing any opinion on the merits of the said issue.

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Under the above mentioned circumstances the writ petition is disposed of directing respondents 3 and 4 to take effective steps pursuant to Exts.R4 (b) and R4(c) notices considering the replies submitted by the 5^th respondent to

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W.P.(c) No.2463/2012 -7-

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such notices, taking note of the directions issued by the Deputy Director of Panchayats in Ext.P5. The needful effective steps shall be taken to remove obstructions if any caused to the public drain by the 5^th respondent or anybody else, and to protect the drain and to ensure free flow of water. Final decision and actions in this regard shall be taken at the earliest possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. There will be a further direction to respondents 3 and 4 to look into the complaint regarding alleged unauthorised construction of the building by the 4^th respondent, and to take necessary steps if there is any such unauthorised construction.

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Sd/- C.K. ABDUL REHIM, JUDGE.

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AMG

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True copy

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P.A to Judge

Sujitha.Y v. State of Kerala

Case brief

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Sujitha.Y v. State of Kerala

Case brief

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