Disposed

C.Anil Kumar v. the Secretary, Kunnamangalam Grama Panchayath

Kerala HC14 Nov 2018WP(C)/16158/2018

Case brief

AI extract

What is this about?

The High Court disposed of two connected writ petitions regarding a building permit and a non-compliant septic tank. The Court directed the petitioner to submit a revised septic tank plan, clean contaminated wells, and submit a water sample for analysis. It also ordered the Panchayat to ensure the gate remains open and inspect the site for nuisances.

What did the court decide?

Writ petitions dismissed with directions: petitioner to submit revised septic tank plan; pump out well water and submit sample for public authority analysis; Panchayat to allow access and inspect site

C.Anil Kumar Vs the Secretary, Kunnamangalam… — Municipal and Town Planning | 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 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940

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WP(C).No. 16158 of 2018

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PETITIONER/S:

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C.ANIL KUMAR, AGED 46 YEARS, CHAPPOTHIL HOUSE, KUNNAMANGALAM P.O., KOZHIKODE DISTRICT PIN - 673 571.

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BY ADV. SRI.GEORGEKUTTY MATHEW

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RESPONDENT/S:

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1 THE SECRETARY, KUNNAMANGALAM GRAMA PANCHAYATH, KUNNAMANGALAM P.O., KOZHIKODE DISTRICT PIN - 673 571.

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*ADDL. KIRALAI RESIDENTIAL ASSOCIATION, R2 REPRESENTED BY ITS SECRETARY, K. VINAYAKUMAR, CHETHUKKADAVU, KUNNAMANGALAM, KOZHIKODE - 673571.

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**ADDL. AJAYAN A.P., R3 AGED 46 YEARS, S/O.PADMANABHA KURUP T.P., PILITHOTTATHIL HOUSE, CHETHUKADAVU, KUNNUMANGALAM P.O., KOZHIKODE. ADDL. RAGHAVAN, R4 AGED 55 YEARS, VELUTHEATHU HOUSE, CHETHUKADAVU, KUNNUMNAGALAM P.O., KOZHIKODE.

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**ADDL. SHENOJ T.V., R5 AGED 42 YEARS, S/O.GANGADHARAN, THAZHEVELUPPAL HOUSE, CHETHUKADAVU, KUNNUMANGALAM P.O., KOZHIKODE. (ADDL.R2 TO R5 ARE IMPLEADED AS PER ORDER DATED 20.08.2018 IN IA 1/2018 IN W.P.(C) NO.16158/18.) BY ADVS. R1 BY SRI.VINOD SINGH CHERIYAN SRI.T.M.KHALID SMT.K.P.SUSMITHA SMT.V.MIMITA ADDL. R2 TO R5, SRI.NANDAGOPAL S.KURUP SRI.K.ASHIS

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.11.2018, ALONG WITH W.P.(C) NO.23525/18 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.16158 & 23525 of 2018

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JUDGMENT

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In the captioned writ petitions, petitioner is one

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and the same person, and the issue relates to the construction carried out by the petitioner and certain consequential actions initiated by the Kunnamangalam Grama Panchayat, Kozhikode District. Therefore, I heard them together and propose to deliver a common judgment.

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W.P.(C) No.16158 of 2018 is filed seeking to

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quash Ext.P2 communication dated 23.02.2018 issued by the Secretary of the Panchayat, directing the petitioner to stop the activities in the building in question, since it

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was reported that, waste water is being flown from the

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septic tank, causing innumerable difficulties and nuisances to the nearby residents. However, as per the

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interim orders dated 20.08.2018 and 31.08.2018, directions were issued to the Secretary of the Panchayat

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to open the gate of the building in question, enabling the petitioner to clean the septic tank and the entire

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compound. Thereupon, petitioner has cleaned up the septic tank and the building. Therefore, virtually the reliefs sought for in the writ petition have become infructuous.

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W.P.(C) Nos.16158 & 23525 of 2018

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However, on 04.07.2018, the gate of the building

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in question was sealed by the 3^rd respondent without any notice other than the notice under challenge in the other writ petition, and has affixed a notice, which according to the petitioner, is pre-dated as 27.06.2018, evident from Exts.P7 and P8 photographs in W.P.(C) No.23525 of 2018. The basic contention advanced by the petitioner is that, the gate was closed and sealed by the Secretary of the Panchayat without providing a notice of hearing to the petitioner, and therefore, it is arbitrary and illegal, liable to be interfered with by this Court.

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As per the order dated 10.10.2018 in W.P.(C) No.23525 of 2018, this Court directed the Deputy Director of Panchayats, Kozhikode to file a report before this Court as to whether the septic tank as well as the soak pit in the property of the petitioner are cleaned up in accordance with the directions issued by this Court. The Panchayat was also directed to file affidavit, verifying the details with respect to the work undertaken by the petitioner in accordance with the directions issued by this Court.

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The 2^nd and 3^rd respondents in W.P.(C) No.16158

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of 2018, who are the residents of the nearby locality have filed a detailed affidavit in both the writ

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W.P.(C) Nos.16158 & 23525 of 2018

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petitions, explaining the inconveniences and difficulties faced by them consequent to the illegal and unscientific manner in which the septic tank was constructed in the premises in question, and also pointing out that the building is used as Quarters and large number of people are residing therein, and therefore, consequent to the frequent use, the septic tank clogged and filthy water flown out of the septic tank. It is also pointed out that, the Panchayat did not take sufficient action in order to abate and remove the illegal constructions carried out by the petitioner.

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In W.P.(C) No.23525 of 2018, the 2^nd respondent has also filed an affidavit before this Court. Along with a memo, the learned Government Pleader has produced a report of inspection conducted by the Deputy Director of Panchayats, Kozhikode, wherein various deficiencies and illegalities in the construction of the septic tank are pointed out. However, it is stated that, the septic tank was cleaned up by the petitioner. In the affidavit filed by the 2^nd respondent, it is pointed out that there is violation of the Building Rules in the matter of construction of the septic tank. Learned counsel for the party respondents also submitted that, consequent to the overflow of filthy water from the septic tank, the nearby

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W.P.(C) Nos.16158 & 23525 of 2018

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wells have become contaminated. So also, the water in

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the well situated in the property in question is also contaminated, and therefore, unless and until that well is cleaned up, it will cause innumerable nuisance to the nearby residents also.

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Having heard the respective counsel across the

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Bar, I am of the considered opinion that the writ

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petitions can be disposed of with appropriate directions. It is an admitted fact that the building was constructed by the petitioner after securing a building permit from the Panchayat. Now it has come out in evidence that on the basis of the report submitted by the Deputy Director of Panchayats, as well as from the affidavit filed by the

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Panchayat that the septic tank is constructed in violation of the Kerala Panchayat Building Rules, 2011, especially, Rule 28(1). The overflow of the septic tank and the consequential inconveniences faced by the public

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in the locality are virtually admitted. The case put forth by the petitioner is that, now the septic tank is cleaned and there is no adverse circumstances prevailing at present. However, petitioner has also submitted that, petitioner is prepared to construct the septic tank in accordance with the Rules, 2011, and he will function the building only after rectifying all the defects. However,

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W.P.(C) Nos.16158 & 23525 of 2018

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it is also a matter of fact that the wells situated in

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the property have become contaminated consequent to the flow of filthy water.

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Taking into account all these aspects, there will be a direction to the petitioner to submit a revised plan in respect of the septic tank in accordance with the Kerala Panchayat Raj Act, 1994 and the Rules, 2011. If

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any such plan is submitted, it shall be considered by the Panchayat in accordance with law, and attain finality

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within a month from the date of receipt of revised plan, as directed above. There will also be a direction to the petitioner to pump out the water from the well situated in the premises in question, within three weeks from the

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date of receipt of a copy of this judgment, and thereafter, water sample from the said well shall be

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taken in the presence of the Public Health Authorities, and the same shall be subjected to analysis and secure a report accordingly.

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The Panchayat, while considering the directions above, in respect of the revised plan, shall take into account the report submitted by the Public Health Authority also. The Secretary of the Panchayat is also

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directed to visit the site frequently and examine the hygienic conditions prevailing in the site and to

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W.P.(C) Nos.16158 & 23525 of 2018

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ascertain whether any obnoxious smell and is creating any nuisance to the neighbouring residents. In order to enable the petitioner to carry out the activities, necessary action shall be taken by the Panchayat Secretary, if the building continues under lock and key

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of the Secretary of the Panchayat.

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The writ petitions are disposed of accordingly.

Sd/-

SHAJI P.CHALY

JUDGE

W.P.(C) Nos.16158 & 23525 of 2018

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APPENDIX IN W.P.(C) NO.16158/2018

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY BUILDING PERMIT BEARING NO. 211/2011-2012 DATED 21/06/2011. EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 23/02/2018 ISSUED BY THE RESPONDENT TO THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE PROJECT PREPARED BY THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 11/05/2018 ALONG WITH POSTAL RECEIPT SEND BY THE PETITIONER TO THE RESPONDENT.

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R(1) COPY OF THE REPORT NO WQD/WA/2018 OF THE SCIENTIST AND HEAD WQD,CENTER FOR WATER RESOURCES DEVELOPMENT AND MANAGEMENT, KOZHIKODE DATED 19.1.2018 EXHIBIT R(2) COPY OF THE REPORT OF THE HEALTH INSPECTOR, PRIMARY HEALTH CENTRE,KUNNAMANGALAM DATED 22.2.2018 EXHIBIT R(3) COPY OF THE LETTER OF THE TOWN PLANNER,KOZHIKODE DATED 13.4.2018 EXHIBIT R(4) COPY OF THE EXTRACT OF SECTION 219 S OF THE KERALA PANCHAYATH RAJ ACT,1994. EXHIBIT R2(A) TRUE COPY OF THE PHOTOGRAPHS DATED 18.9.2018 OF THE SEPTIC TANK SITUATED IN THE COMPOUND OF THE PETITIONER'S APARTMENT COMPLEX. EXHIBIT R2(B) TRUE COPY OF THE PHOTOGRAPHS DATED 18.9.2018 OF THE SEPTIC TANK SITUATED IN THE SOAKAGE PIT OF THE PETITIONERS APARTMENT COMPLEX.

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//TRUE COPY//

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P.S. TO JUDGE

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St/-

C.Anil Kumar v. the Secretary, Kunnamangalam Grama Panchayath

Case brief

What is this about?

What did the court decide?

C.Anil Kumar v. the Secretary, Kunnamangalam Grama Panchayath

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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