Disposed

Renchu Oommen v. Pathanamthitta Municipality

Kerala HC7 Nov 2018WP(C)/12090/2018

Case brief

AI extract

What is this about?

Court connected two writ petitions regarding disputes over a water channel and property boundaries. It disposed of petitions by directing the Municipality to re-consider the orders after providing a hearing to interested parties.

What did the court decide?

Directed 2nd respondent to re-consider the issue after providing opportunity of hearing to petitioners and interested persons.

Renchu Oommen Vs Pathanamthitta Municipality — Public Procurement and Tenders | Kerala HC (2018)

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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 SHAJI P.CHALY

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WEDNESDAY,THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940

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WP(C).No. 12090 of 2018

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PETITIONER/S:

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RENCHU OOMMEN, AGED 34, S/O. LATE OOOMMEN VARGHESE, MANAGER, MAR PHILEXINOS VOCATIONAL & HIGHER SECONDARY SCHOOL (M.P.V & H.S.S), KUMBAZHA P.O., PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.V.PHILIP MATHEW

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RESPONDENT/S:

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1 PATHANAMTHITTA MUNICIPALITY, PATHANAMTHITTA-689645, REPRESENTED BY ITS SECRETARY.

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2 THE SECRETARY, PATHANAMTHITTA MUNICIPALITY, PATHANAMTHITTA-689645.

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3 THE ASSISTANT ENGINEER, PATHANAMTHITTA MUNICIPALITY, PATHANAMTHITTA-689645.

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4 VARGHESE SAMUEL, THEKUMMOOTTIL HOUSE, KUMBAZHA, PATHANAMTHITTA DISTRICT-689653.

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5 T.V.THOMAS, THEKUMMOTTIL HOUSE, KUMBAZHA, PATHANAMTHITTA DISTRICT-689653.

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BY ADVS. R1 TO R3 BY SRI. GEORGE ABRAHAM PACHAYIL, SC R4 & R5 BY SRI. MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.R.RAJESH (K) SRI.T.S.SARATH

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.11.2018, ALONG WITH W.P.(C)NO.16143/18, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.12090 & 16143 of 2018

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JUDGMENT

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The captioned writ petitions are materially

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connected in respect of a water channel ordered to be restored by the Revenue Divisional Officer, in favour of the petitioner in W.P.(C) No.12090 of 2018 and against the petitioner in W.P.(C) No.16143 of 2018. Therefore, I heard them together and propose to deliver a common judgment.

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W.P.(C) No.12090 of 2018 is filed seeking direction to respondents 1 and 2 to enforce Ext.P5 order passed by the 2^nd respondent, i.e., the Secretary of the Pathanamthitta Municipality dated 07.07.2016, directing one T.V.Thomas to remove the soil stacked in the boundary by and between the petitioner's properties and also to restore the water channel on the eastern boundary of the property of T.V.Thomas. Material facts stated by the

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petitioner therein are as follows:

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Petitioner is the Manager of Vocational Higher Secondary School, Kumbazha, Pathanamthitta District. Respondents 4 and 5 are having properties on the western side of the property of the school. According to the petitioner, there is a water channel in between the property of the school and properties of respondents 4

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W.P.(C) Nos.12090 & 16143 of 2018

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and 5. Respondents 4 and 5 encroached into the said

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water channel and filled up the same. The 4^th respondent constructed a boundary over the water channel using granite stones, thus preventing the flow of water through the channel. Due to the illegal filling up of channel and the obstruction caused thereby, the water which was flowing through the said channel started to flow through the property of the school, and various damages are occurred to the property of the school. Thereupon, on the application submitted by the petitioner, the 2^nd respondent, i.e., the Secretary of the Municipality, has passed Ext.P9 order, directing to restore the water channel to its original state, within seven days. Even though the order is dated 05.08.2017, in spite of earnest efforts of the petitioner, no action was initiated.

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W.P.(C) No.16143 of 2018 is filed by the 4^th

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respondent in the connected writ petition, seeking to quash Exts.P12 and P15 orders passed by the Secretary of the Municipality and the Municipal Engineer dated 05.08.2017 and 11.05.2018 respectively, directing to restore the water channel. The contention raised by the petitioner therein is that, the property admeasuring 32.½ cents lying in Survey No.K86/7B as per Schedule No.1 of Partition Deed No.1553/1986 has devolved upon the

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W.P.(C) Nos.12090 & 16143 of 2018

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petitioner, his brothers and mother by way of intestate succession, which was partitioned among themselves as per

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Ext.P2 Partition Deed. According to the petitioner, orders are passed by the Secretary of the Municipality against the said petitioner without hearing any of the property owners and directed to restore the water channel. It is further submitted that, the Manager of the school has earlier filed complaints against the petitioner, alleging that petitioner has caused obstruction to the flow of rain water through a channel, which is flowing between the property of the petitioner and the property of the school. It is also submitted that, the property of the petitioner as well as the property of the school are lying as part of a hilly terrain having slope from north to south and both the properties are lying at different layers and many of the properties of the school are lying at a higher level.

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According to the said petitioner, petitioner has not committed any illegality or filled up any water channel. Even though the Manager of the school approached the Ombudsman for Local Self Government Institutions, the Ombudsman had directed only the Municipality to take a decision within three months, evident from Ext.P4 dated 05.07.2016. Thereafter, the

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W.P.(C) Nos.12090 & 16143 of 2018

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Secretary of the Municipality has issued notices to the petitioner and his brother, T.V. Thomas, which was duly replied, evident from Ext.P5. Thereafter, petitioner has preferred another application to the 2^nd respondent, stating that the hearing was conducted by the Municipal Engineer and Assistant Engineer and they are not considering the matter in a proper manner at the influence of the Manager of the school, evident from Ext.P6. The existence of any water channel through the

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property of the petitioner is disputed. It is also stated that, the building was constructed in the property of the petitioner after securing building permit from the Secretary of the Municipality. However, without understanding the real implications, now notices are issued by the Municipal Secretary and the Engineer to restore the water channel. Therefore, according to the petitioner therein, the order passed by the Municipal authorities cannot be sustained under law.

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Counter affidavits are filed by the respective respondents, who are petitioners in the writ petitions.

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I have heard respective counsels across the Bar and perused the pleadings and the documents on record.

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The sum and substance of the contention advanced by the petitioner in W.P.(C) No.16143 of 2018 is that,

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W.P.(C) Nos.12090 & 16143 of 2018 6

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without providing any opportunity of hearing, on the

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basis of the direction issued by the Revenue Divisional Officer, the Municipal Secretary has passed an order directing the petitioner to restore the water channel, which was not in existence. However, on the other hand, the petitioner in the connected writ petition submits that, water was flowing through the water channel which was existing through the property of the petitioner. It is also the case of the petitioner in W.P.(C) No.16143 of 2018 that the subject matter is a civil dispute and the issues can be identified only by adjudicating the issue by a competent civil court.

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I am of the considered view that, since the issue relates to existence of a water channel through which water from the property of the school was being drained out, the Secretary of the Municipality is vested with ample powers under the Municipality Act, 1994, to ascertain the issue and take appropriate action. However, according to the petitioner in W.P.(C) No.16143 of 2018, without providing opportunity, orders were passed by the Municipal Secretary as well as the

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Municipal Engineer, directing to restore the water channel.

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W.P.(C) Nos.12090 & 16143 of 2018

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Taking into account the rival submissions, I am

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of the considered opinion that, the writ petitions can be disposed of directing the 2^nd respondent to re-consider the issue after providing opportunity of hearing to the petitioners in the writ petitions or any other interested persons. I am also of the considered opinion that, such a course is to be adopted, since it is not clearly reflected from the orders passed by the Municipality as to whether an opportunity was provided to the property owners before passing the adverse orders against them.

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In that view of the matter, the orders passed by

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the Municipal Secretary dated 05.08.2017 and the Municipal Engineer dated 11.05.2018 are treated as show cause notices and the petitioners in the writ petitions are given the liberty to file suitable

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representations/objections to the said notices within three weeks from the date of receipt of a copy of this judgment, which, if received, shall be considered by the 2^nd respondent, i.e., the Secretary of the Municipality within two months thereafter, after providing sufficient opportunity of participation and hearing to the petitioners in the writ petitions and all other interested persons. If required, the Municipal Secretary will be at liberty to seek the assistance of any revenue

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W.P.(C) Nos.12090 & 16143 of 2018

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officers, and if any such request is made, necessary assistance shall be given by the revenue authorities to the Municipal Secretary in order to decipher the issues

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raised by the rival parties.

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The writ petitions are disposed of accordingly.

Sd/-

SHAJI P.CHALY

JUDGE

W.P.(C) Nos.12090 & 16143 of 2018

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1: COPY OF REPRESENTATION DATED 19.3.2016 SUBMITTED BEFORE THE 2ND RESPONDENT.

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EXHIBIT P2: COPY OF NOTICE NO.E2-2689/2016 DATED 22.3.2016 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.

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EXHIBIT P3: COPY OF REPRESENTATION DATED 30.5.2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

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EXHIBIT P4: COPY OF ORDER DATED 5.7.2016 PASSED BY THE OMBUDSMAN OF LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM.

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EXHIBIT P5: COPY OF ORDER NO.E2-4983/16 DATED 7.7.2016 PASSED BY THE SECOND RESPONDENT.

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EXHIBIT P6: COPY OF NOTICE DATED 7.7.2016 ISSUED BY THE 2ND RESPONDENT TO THE 5TH RESPONDENT.

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EXHIBIT P7: COPY OF COMPLAINT DATED 5.9.2016 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXHIBIT P8: COPY OF NOTICE DATED 12.4.2017 ISSUED BY THE 2ND RESPONDENT TO THE 5TH RESPONDENT. EXHIBIT P9: COPY OF ORDER NO.E2-8656/2017 DATED 5.8.2017 PASSED BY THE SECOND RESPONDENT. EXHIBIT P10: COPY OF REPRESENTATION DATED 9.1.2018 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT EXHIBIT P11: COPY OF RECEIPT DATED 10.1.2018 ISSUED FROM THE OFFICE OF THE FIRST RESPONDENT AFTER ACCEPTING EXHIBIT P10.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R4(A) THE TRUE COPY OF THE PARTITION DEED NO.1553/1986 OF PATHANAMTHITTA SRO.

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EXHIBIT R4(B) THE TRUE COPY OF THE PARTITION DEED NO.75/2015 OF PATHANAMTHITTA SRO.

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EXHIBIT R4(C) THE TRUE COPY OF THE LAND TAX RECEIPT DATED 12.3.2018 OF PATHANAMTHITTA VILLAGE.

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W.P.(C) Nos.12090 & 16143 of 2018

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EXHIBIT R4(D) THE TRUE COPIES OF THE OBJECTION FILED BY THE PETITIONER AND HIS BROTHER, T.V.THOMAS. EXHIBIT R4(E) THE TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 13.12.2016. EXHIBIT R4(F) THE TRUE COPY OF THE APPROVED BUILDING PLAN AS PER BA.NO,305 /85-86 DATED 02.1.1986. EXHIBIT R4(G) THE TRUE COPY OF THE APPROVED BUILDING PLAN AS PER BA.NO.356/15-16 DATED 25.1.2016 ALONG WITH OCCUPANCY CERTIFICATE DATED 04.1.2017. EXHIBIT R4(H) THE TRUE COPY OF THE OCCUPANCY CERTIFICATE VIDE FILE NO.E-2/3614/2016 DATED 05.7.2017 ISSUED BY 3RD RESPONDENT TO 5TH RESPONDENT. EXHIBIT R4(I) THE TRUE COPY OF THE CERTIFICATE NO.2540/2016 DATED 22.6.2016 ISSUED BY THE 5TH RESPONDENT. EXHIBIT R4(J) THE TRUE COPY OF THE REPORT VIDE .S.4697/16 DATED 29.12.2016 ISSUED BY THE OFFICE OF THASILDAR, KOZHENCHERY UNDER RTI. EXHIBIT R4(K) THE PHOTOGRAPHS DEPICTING THE TRUE STATE OF AFFAIRS INCLUDING LIE OF PROPERTY, ABSENCE OF ANY WATER CHANNEL;.

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//TRUE COPY//

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P.S. TO JUDGE

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St/-

Renchu Oommen v. Pathanamthitta Municipality

Case brief

What is this about?

What did the court decide?

Renchu Oommen v. Pathanamthitta Municipality

Case brief

What is this about?

What did the court decide?

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