Dismissed

Susamma Luke v. Corporation of Kollam

Kerala HC11 Jun 2019WA/1908/2015

Case brief

AI extract

What is this about?

The High Court dismissed this appeal as the Single Judge was correct in upholding the Corporation Secretary's order directing removal of obstruction to a drain under Chapter 16 of the Municipality Act.

What did the court decide?

Writ Appeal dismissed.

What the court decided

Susamma Luke Vs Corporation of Kollam — Property and Title | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941

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WA.No. 1908 of 2015

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AGAINST THE JUDGMENT IN WPC 34149/2014 of HIGH COURT OF KERALA DATED 09-07-2015

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APPELLANT/PETITIONER:

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SUSAMMA LUKE

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AGED 77 YEARS

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W/O.LATE K.Y.LUKE, PLOT NO.51, SANKAR NAGAR, CHINNAKKADA, KOLLAM.

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BY ADVS. SRI.K.JAYAKUMAR (SR.) SRI.M.SREEKUMAR

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RESPONDENTS/RESPONDENTS:

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1 CORPORATION OF KOLLAM REPRESENTED BY SECRETARY, CORPORATION OFFICE, KOLLAM.

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2 SECRETARY CORPORATION OF KOLLAM, CORPORATION OFFICE, KOLLAM.

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3 GLATIA BALAKRISHNAN

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HOUSE NO.S-50, SANKAR NAGAR, CHINNAKKADA, KOLLAM.

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4 KERALA STATE HOUSING BOARD REPRESENTED BY SECRETARY, OFFICE OF KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM - 01.

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BY ADVS.

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SRI.M.K.CHANDRAMOHANDAS , SC, KOLLAM CORPORATION SRI.GEORGE BOBAN, SC, K.S.H.B. SRI.K.DENNY DEVASSY, SC, K.S.H.B. SRI.N.DHARMADAN (SR.)

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SMT.D.P.RENU FOR R3

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

W.A.1908/15

JUDGMENT

A.K.Jayasankaran Nambiar,J.

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The petitioner in W.P(C) No.34149/2014 is the appellant before us aggrieved by the judgment dated 09.7.2015 of the learned single Judge who dismissed the Writ Petition. The Writ Petition was filed impugning Ext.P17 order passed by the Secretary of the Kollam Corporation, pursuant to a complaint filed by the 3^rd respondent in the Writ Petition, regarding an obstruction caused by the writ petitioner to a drain that was running through his property. The Secretary of the Corporation, who had to consider the matter pursuant to a remand by the Tribunal for Local Self Government Institutions which set aside an earlier order of the Secretary, found based on the material available before him that there was a drain, that was constructed by the Corporation and the Housing Board, which connected with a public drain passing in front of the plots allotted to the writ petitioner and the 3^rd respondent. The said drain, when it reached the plot of the writ petitioner, turned towards North by passing through the property allotted to the writ petitioner. The blockage of that portion of the drain which passed through the allotted property of the petitioner was seen as the reason for the inundation that occurred in the area. The Secretary, therefore, directed the writ petitioner to remove the obstruction illegally made on the northern part of the drain, which obstructed the running of rain water towards North, and also directed the writ petitioner to restore the drain to its original position with a length of 6m towards left within the compound wall of the writ petitioner as constructed by the Kerala State Housing Board. The writ petitioner was also directed to take steps for removing any illegal obstruction to the flow of water and to restore the drain to its original position. It was aggrieved by the said order that the Writ Petition came to be filed.

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W.A.1908/15

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Counter affidavits were filed by the 3^rd respondent and the Corporation of Kollam. The learned single Judge, on a consideration of the pleadings, found that the main issue that arose in the Writ Petition was in respect of the drain which the writ petitioner claimed to be in her ownership and possession. The said averment in the Writ Petition, however, was disputed by the respondents. The blockage of the drain was seen to be an admitted fact and the only issue left for adjudication was with regard to whether the Secretary of the Corporation was within his rights to direct the writ petitioner to remove the obstruction to the free flow of water through the drain running through her property. The learned Judge took note of the stand of the Corporation that, a drain having a length of 250m was constructed by the Housing Board in order to drain water to the nearest public drain – Pullikkada Oda, which proceeded in the western direction and then towards North and reached in front of the petitioner's plot and thereafter the Pullikkada road. The Plan produced by the 1^st respondent, pertaining to the property, showed that the drain, which directly entered into the petitioner's property through the culvert, has been closed by the petitioner thereby obstructing the free flow of drain water, and further that the petitioner had also filled up 6m out of the total 16m of open drain thereby causing difficulty to the neighbouring land owners. Thereafter, the learned Judge referred to the provisions of Chapter 16 of the Municipality Act, which dealt with the powers of the Corporation to ensure the maintenance of public drains as also the free flow of water through the drains without any obstruction by persons in the locality. Tracing the power of the Secretary to pass the impugned order to Section 417 of the Municipality Act, 1994, the learned Judge found no reason to interfere with the impugned order of the Secretary, more so when the writ petitioner had chosen not to

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W.A.1908/15

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impugn the order on factual aspects before the Appellate Authority under the Kerala Municipality Act, 1994.

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Before us, Sri.M.Sreekumar, learned counsel for the Appellant would strenuously argue that the drain passing through the plot allotted to the petitioner by the Housing Board is not a public drain but is one that is under the private ownership of the petitioner/appellant. It is his further contention that the drain in question was not one intended to operate as a public drain and it was meant solely for enabling the petitioner to discharge the excess water collected in his plot, which was situated in a low lying area. We are afraid we cannot accept the said contention of the learned counsel for the appellant for more reasons than one. Firstly, the sale deed by which the plot in question was allotted to the writ petitioner/appellant by the Kerala State Housing Board clearly indicates that what was conveyed to the writ petitioner/appellant was a plot, together with the water drainage and electric connection thereon and all the trees and other improvements and all other things contained therein. This would indicate that even at the time of allotment of the plot, there was a drain passing through the property of the writ petitioner/appellant, that was constructed by the Housing Board. Secondly, if the petitioner had any dispute with regard to any of the factual findings in Ext.P17 order of the Secretary of the Kollam Corporation, then he ought to have impugned the said order before a final fact finding Authority such as the Tribunal for Local Self Government Institutions. For reasons best known to the petitioner, he did not pursue such a course of action. On the facts found against the petitioner by the Secretary of the Kollam Corporation, we are of the view that the findings in the impugned judgment of the learned single Judge cannot be said to be illegal or bereft of justifiable reasons. Under

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W.A.1908/15

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such circumstances, we do not find any reason to interfere with the said judgment of the

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learned single Judge. The Appeal therefore fails and is accordingly dismissed.

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Sd/-

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HRISHIKESH ROY CHIEF JUSTICE

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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okb

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//True copy// P.S. to Judge

Susamma Luke v. Corporation of Kollam

Case brief

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Susamma Luke v. Corporation of Kollam

Case brief

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