Disposed

C.a.Abdul Hakeem v. Sri.D.Saju

Kerala HC21 Jan 2020Con.Case(C)/223/2014

Case brief

AI extract

What is this about?

Incomplete municipal drainage works prompted allegations of wilful disobedience. The court found no wilful disobedience and closed the contempt petition, directing completion within six months of receipt of a certified copy of the judgment, with liberty to approach the Government on failure.

What did the court decide?

Construction directed to be completed within six months of receipt of a certified copy of the judgment; liberty to approach the Government on failure.

C.a.Abdul Hakeem Vs Sri.D.Saju — Municipal and Town Planning | Kerala HC (2020)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 21ST DAY OF JANUARY 2020 / 1ST MAGHA, 1941

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Con.Case(C).No.223 OF 2014(S) IN WP(C). 6613/2013

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AGAINST THE ORDER/JUDGMENT IN WPC 6613/2013 DATED 20-03-2013 OF HIGH COURT OF KERALA

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PETITIONER/PETITIONER:

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C.A.ABDUL HAKEEM, AGED 56 YEARS, S/O C.K.AHAMMED, CHAMBOKADAVIL HOUSE(ECRA-68B), PONEKKARA P.O, EDAPPALLY, KOCHI-682041.

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BY ADV. SRI.P.M.POULOSE

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RESPONDENTS/RESPONDENT NOS.1 & 2:

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1 SRI.D.SAJU, AGED 50 YEARS, (FATHER'S NAME NOT KNOWN),

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SECRETARY,THE TRIKKAKARA MUNICIPALITY, MUNICIPAL OFFICE, TRIKKAKARA, ERNAKULAM DISTRICT.

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2 P.V.NANDAKUMAR, AGED 54 YEARS,(FATHER'S NAME NOT KNOWN), EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, KERALA WATER AUTHORITY, PIPE LINE ROAD, ALUVA,PIN-683101.

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3 SRI.SHIBU P.S., AGED 53,(FATHER'S NAME NOT KNOWN TO THE PETITIONER), PRESENT SECRETARY,THE TRIKKAKARA MUNICIPALITY, MUNICIPAL OFFICE, TRIKKAKARA, ERNAKULAM DISTRICT

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4 SMT.C.O.ANITHA, AGED 54,,(FATHER'S NAME NOT KNOWN TO THE PETITIONER), PRESENT EXECUTIVE ENGINEER, PUBLIC HEALTH DIVISION, KERALA WATER AUTHORITY, PIPE LINE ROAD, ALUVA, PIN-683101.

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**** R3 & R4 ARE IMPLEADED AS PER ORDER DATED 21.01.2020 IN I.A. NO.367 OF 2018.**

¶21

Cont. Case (C) No.223/2014

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R1 & R3 BY ADV. SRI.S.JAMAL, SC,

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THRIKKAKARA MUNICIPALITY

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R1 BY SRI.GEORGE MATHEW, SC, KWA

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R2 & R4 BY ADV.SRI.P.BENJAMIN PAUL, SC,

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KERALA WATER AUTHORITY

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THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 21.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶29

Cont. Case (C) No.223/2014

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JUDGMENT

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Dated this the 21^st day of January, 2020

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S.Manikumar, CJ

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Alleging wilful disobedience of the judgment dated 20.03.2013 in W.P.

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“The petitioner has approached this Court with the following prayers :

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“i) issue a writ of prohibition or any other writ, order or direction, restraining the respondents from proceeding with the construction of the new drainage towards culvert on the southern side in the northern side of Pappu Mestri Junction in Pipeline road in Ward No.33 of Trikkakara Municipality.

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(ii) pass such other writ, order or direction which this Honourable Court deems fit to grant to the facts and circumstances of the case. and

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(iii) to award costs.”

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The facts and figures pointed out by the petitioner have been sought to be rebutted by the respondent Municipality by filing a detailed statement. For the purpose of convenience, this Court finds it fit and proper to have the relevant portion extracted below :

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“3. As regards the averments contained in paragraph No.2 of the writ petition it is submitted that there is a multi-storied apartment built by Apple-a-day properties near to the property of the petitioner. In fact

¶42

Cont. Case (C) No.223/2014

¶43

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the said flat situates in the property of the petitioner itself and the same was a joint venture and he has tactfully suppressed this fact from this Hon'ble Court. The averment that eastern end of the culvert is closed naturally is not known to this respondent and the same is raised only for the purpose of writ petition.

¶45

With regard to the averments in paragraph No.3 of the writ petition that the construction of drainage is for leading waste water from Apple properties flat is not correct. It is submitted that the land situated in and around Papu Mestri Junction is low lying area and there is severe water logging in the said places. Majority of the people living there belong to lower strata of the society and their lives became miserable during rainy season. True copies of the photographs evidencing the plight of the residents is produced herewith and marked for reference as Annexure R1(a) and R1(b). It is for alleviating the grievance of the local people that municipality undertook the construction of drainage. On several occasions the people have approached the municipality pointing out their pathetic situation and requested for construction of drainage. A true copy of the representation dated 15.11.2012 preferred by the residents of the area before the municipality is produced herewith and marked for reference as Annexure R1(c). It is submitted that the work is carried out using the municipality fund. The work involves two phases. The first phase is to construct the drainage and the second phase is to extend the same and connect it to Edappally thodu. The total estimate of the project is 36 lakhs. A

¶46

Cont. Case (C) No.223/2014

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true copy of the letter issued by the Chairman, Development Standing Committee is produced herewith and marked for reference as Annexure R1(d). The connection of the drainage to Edappally thodu will set at rest the grievance of the petitioner as well as the local people.

¶49

In reply to the averments in remaining paragraphs it is submitted that this respondent has no intention to construct drainage so as to lead waste water into petitioner's property. The drainage is constructed to prevent the problem of water logging in the area by connecting the same to Edappally thodu. This respondent is not responsible for the present water logging in the property of the petitioner. The same occurred due to filling up of his property, which was a paddy land, for constructing the Apple properties flat. The said land was low lying and due to filling up free flow of water was affected resulting in water logging in the entire area. Petitioner is responsible for his present situation. The status quo order obtained by the petitioner is standing in the way of the continuation of work as the period fixed for completion is 31.3.2013, failing which funds will lapse. The petitioner is not entitled to get any reliefs as prayed for.”

¶50

The learned counsel for the petitioner submits that, the respondent Municipality has conceded that the drain is being constructed to prevent the water logging and the same is intended to be connected with the 'Edappally Thodu'. The learned counsel submits that the petitioner will be satisfied, if the drain is connected to the Edappally Thodu and a direction might be

¶51

Cont. Case (C) No.223/2014

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given to the Municipality in this regard, to have it finalised within a specified time.

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The learned Standing Counsel for the Municipality submits that, as pointed out in paragraph 4, the work involves two different phases and the first one is to construct the drainage and the second phase is to extend the same and connect it to 'Edappally thodu'. The learned counsel further submits that the total estimate of the project is Rs. 36 lakhs, as given in the statement and that the matter has been recommended by the Chairman of the Development Standing Committee for further steps, as borne by Ext.R1(d). It is also stated that the Municipality is taking further steps and that the entire work will be completed in accordance with law, without any culpable delay.

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Heard the learned Standing Counsel for the Water Authority as well, who makes submission with reference to the statement filed, paragraph 4 of which is relevant and hence extracted below :

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“4. Thus it is respectfully submitted that there is no cause of action for the petitioner to approach this Hon'ble Court and none of the grounds raised in the writ petition are also sustainable and the reliefs prayed for also cannot be granted. Hence it is humbly prayed that this Hon'ble Court may be pleased to dismiss the above writ petition with cost of this respondent and is prayed accordingly.”

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In view of the stand taken by the respondent Municipality and the Water Authority, this Court finds that no further orders are warranted in this writ petition. The above version/submission is recorded and the writ petition is closed accordingly.”

¶58

Cont. Case (C) No.223/2014

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Short facts leading to the contempt are as follows:

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Petitioner is the owner in possession of 75.80 ares of landed property, which is on the eastern side of the pipeline road in Ward No.33 of Trikkakara Municipality. According to him, there are two culverts; one on the northern side and another on the southern side; both on the north of Pappu Mestri Junction. Respondent Municipality has started construction of a drainage through the eastern side of pipeline road from north. According to the petitioner, if the construction reaches the south culvert, waste water and other water would flow into his property and the same would get inundated. Petitioner, in such circumstances, filed the writ petition, wherein it was stated that if the drainage is extended and connected to Edappally Thodu, water would not flow into his property and thereby, his grievance would be redressed. Respondents have filed statement in the W.P.(C) stating that drainage will be extended to Edappally Thodu and there was no intention to drive the water into petitioner's property. It is also stated that construction of drainage will be completed without any delay. Recording the version/submission, writ petition was closed by judgment dated 20.03.202013. Eleven months are already over. The drainage has not been extended to Edappally Thodu as agreed by the respondents in the judgment till date. According to the petitioner, the inaction on the part of the respondents amounts to deliberate disobedience and wilful violation.

¶62

Cont. Case (C) No.223/2014

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The then Secretary of Thrikkakara Municipality, respondent No.1, has filed a counter affidavit contending, inter alia , that W.P.(C) No.6613 of 2013 was filed by the petitioner suppressing the material facts. The grievance voiced in the writ petition is that Municipality is constructing a drainage which, in turn, would result in accumulation of waste water from 'Apple Flats' in the petitioner's property. The writ petition was filed merely on apprehension that the construction of aforesaid flats is not yet completed and nobody is occupying the same. Apart from that, the aforesaid flat is constructed in petitioner's own property under a joint venture agreement. The 1^st respondent filed a detailed statement in the writ petition explaining the true state of affairs and on the basis of the contentions in the statement, writ court disposed of the writ petition by judgment dated 20.03.2013 recording the submission made by Municipality as well as the 2^nd respondent. Municipality submitted before the writ court that people in the locality approached it for constructing a drainage to avoid water logging. Hence, the Municipality has decided to construct drainage in two phases so as to alleviate the problem of water logging. It was further contended that they had no intention to construct drainage so as to lead waste water into the property of the petitioner.

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The 1^st respondent has further contended that the disputed property is situated in Ward No.XXXIII of Thrikkakara Municipality. Pursuant

¶66

Cont. Case (C) No.223/2014

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to the complaint of the local people that there is water logging during rainy season, Municipality has decided to construct a drainage in order to alleviate the said problem. The total length of the proposed drainage is 298 metres. Accordingly, an estimate of Rs.35 lakhs for construction of a drainage was prepared. Due to paucity of funds, it was decided to complete the work in two phases and an amount of Rs.14,44,000/- was earmarked in the year 2013-14 for starting the work. Technical sanction was also obtained as per Communication No.474(a)/AEE/EBP/13-14 for the said work. Along with the other works, steps were taken for inviting tenders from suitable persons. In the meantime, Lok Sabha election was declared and hence, further proceedings in respect of the said work was temporarily stopped. It is further stated that after the election, Municipality invited tenders in respect of the said work and completed the first phase, in a time bound manner. As far as the second phase of the work is concerned, no fund has been allotted. However, it is stated that the same would be completed on receipt of funds without further delay. It is finally contended that there is no direction to the Municipality as per the judgment dated 20.03.2013, to complete the work in a time bound manner and, therefore, they have not committed any contempt of court.

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Respondent No.2, the Executive Engineer of Public Health Division, Kerala Water Authority (KWA), Pine Line Road, Aluva, has filed an affidavit

¶70

Cont. Case (C) No.223/2014

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stating that,- through the pipeline road from Aluva treatment plant to Ernakulam, three main pipelines having diameter of 36", 42" and 48" are passing. The above mentioned pipelines are used for pumping water to Kochi Corporation as well as the adjoining areas, under the control of Public Health Division, Aluva. As per the request of Thrikkakara Municipality, NOC was issued for constructing the drainage at Kennedymukku, by the side of pipeline road without disturbing the pumping of water by Kerala Water Authority (KWA), and an undertaking is made by Thrikkakara Municipality in this regard. According to the 2^nd respondent, the area comes under Thrikkakara Municipality and the work is being done and managed by the Municipality. KWA has only permitted crossing of the pipeline road which is under its control.

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The 2^nd respondent has further contended that it was the 1" respondent, who has made undertaking with regard to the construction of the drainage. For the first phase, NOC was issued and the work was also completed. It was pursuant to the undertaking given by the Municipal Engineer of Thrikkakara Municipality that NOC was given for construction. Pursuant to the undertaking given by the 1^st respondent, judgment dated 20.03.2013 was passed by the writ court. The 1^st phase of the work was over, for which NOC was issued. There arose several complaints with regard to encroachments, unauthorised activities and other usage of pipeline road

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Cont. Case (C) No.223/2014

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through which three main pipelines having diameter of 36", 42" and 48" are passing. The above mentioned pipe lines are used for pumping water to Kochi Corporation and adjoining areas under the control of Public Health Division, Aluva. The Chief Engineer has also issued direction in this regard as per letter No.KWA/CE/CR/CHN /4141/2010 Vol. IV dtd. 12.05.2014 [Annexure R2(a)]. It was at this stage, the Municipal Engineer of Thrikkakara Municipality addressed the 2^nd respondent seeking NOC for the 2" phase as per letter No.E1/771/14 dtd. 06.06.2014 [Annexure R2 (b)].

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It was further contended that the issue has to be discussed at higher levels and since the 2^nd respondent was not in a position to take a decision, Annex.R2(c) letter dated 20.06.2014 was forwarded to the Superintending Engineer, P.H. Circle, KWA, Kochi. Annex.R2(c) was forwarded to the Municipal Engineer of Thrikkakara Municipality also for information. Thus, without obtaining orders from the higher offices, the 2^nd respondent was not in a position to issue NOC as requested by Thrikkakara Municipality. Thereafter, Annexure-R2 (d) reminder dated 22.09.2014 was received in the office of the 2^nd respondent on 15.11.2014. Pursuant to the same, a report was called for from the Assistant Executive Engineer, wherein it was stated that NOC can be issued only after obtaining order from the higher offices.

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It was further contended that the 2^nd respondent again addressed the Superintending Engineer, P.H. Circle, KWA, Kochi and pursuant to the

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Cont. Case (C) No.223/2014

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discussions, he was directed to take a decision in the matter. After conducting inspection through his subordinates, orders were passed for granting NOC subject to strict restrictions and also entering into an agreement for the same as per by order dtd.06.12. 2014 [Annexure R2 (e)].

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The petitioner thereafter filed I.A. No.642 of 2016 for re-opening the contempt petition, wherein it is stated that despite the directions in the judgment dated 20.03.2013, extracted above, no action was taken by the respondents to comply with the same. Therefore, the petitioner filed this contempt proceedings. In the contempt, respondent No.1 has stated that construction of drainage extending the same upto Edappally Thodu would be completed within six months. Further, respondent No.2 stated that appropriate steps would be taken to give consent, subject to conditions to be stipulated in order to safeguard the pipelines. The writ court recording the above submissions, closed the contempt proceedings by judgment dated 9.9.2015. Relevant portion of the said judgment is extracted hereunder:

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“3. Heard the learned counsel for the first respondent, with reference to the contents of the affidavit filed before this Court, stating that earnest efforts have been taken to give effect to the verdict. It is stated that the respondent Municipality decided to construct drainage culverts from Madathiparambu to Edappally thodu, which however was sought to be resisted by the petitioner herein by seeking to direct the concerned respondent to prohibit them from proceeding with the construction of the new drainage

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Cont. Case (C) No.223/2014

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towards culvert on the southern side and the northern side of Pappu Mastri Junction in Pipe line road in Ward No.33 of the Thrikkakara Municipality, which prayer has been extracted by this Court while disposing of the writ petition.

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Taking note of the facts and circumstances, the first respondent Municipality had also agreed to complete the construction till the end of border of the petitioner's property and thereafter to have it connected to the Edappally thodu and under such circumstances, there may not be any water logging in the petitioner's land. The learned counsel submits that the construction was being proceeded further to have it connected with the Edappally thodu and it could not be completed because of the paucity of funds. It is asserted that construction will be completed to the said extent at the earliest. It is stated that by virtue of the construction already effected, connecting drainage to the Edappally thodu, there is no water logging in the petitioner's property, however adding that the remaining construction will be completed at the earliest, at any rate within six months.

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The learned standing counsel appearing for the Water Authority submits that, in view of the periodical consent required from the authority to complete the works, appropriate steps will be taken to give the consent, subject to appropriate condition to be stipulated so as to safeguard the pipe lines.

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The contempt matter stands closed, recording the submission as above.”

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To the above said application, as per the direction of this Court dated 12.07.2017, respondent No.1 has filed an affidavit stating that,- the contempt case filed by the petitioner has been closed by this Court vide

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Cont. Case (C) No.223/2014

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Judgment dated 9-9-2015, recording the submission of the standing counsel appearing for the 2^nd respondent, Kerala Water Authority, that appropriate steps would be taken to give periodical consent required for the completion of the second phase of the construction of the drainage culverts. The allegation of the petitioner is that after a period of six months of passing the above judgment, no work has been done for extension of the drainage upto Edappally Thodu, as agreed by the respondents. It was further stated that first phase of the drainage construction in Division No.33 of the Municipality was completed by the 1^st respondent after obtaining NOC from the 2^nd respondent. The second phase of the drainage construction to an extent of 88.80 metres is now pending, due to the non response of the 2^nd respondent, even after repeated request and reminders, since the drainage construction is being done in the Pipe Line Road where more than one heavy pipe lines of Kerala Water Authority are passing through. As submitted earlier, the second phase of construction have some technical difficulties due to the involvement of heavy pipe lines carrying drinking water maintained by the 2^nd respondent. Communications were made by the 1^st respondent, as per letters dated 6-6-2014 and 22-9-2014, to the 2^nd respondent seeking estimate to construct the drainage culverts and thereby complete the second phase also. In such a circumstances, considering the importance of the works being done in the light of the judgment of this Court dated 9-9-2015, the Municipal

¶94

Cont. Case (C) No.223/2014

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Council in its meeting held on 31-5-2016, decided to construct drainage culverts as a deposit work by Kerala Water Authority. Accordingly, communications were made by the respondent vide letter dated 20.7.2016 to the 2^nd respondent.

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It was further stated that the 1^st respondent received a reply dated 8-8-2016, from the 2^nd respondent against the reminder letter sent by it appraising the time limit to complete the work, wherein the 2^nd respondent stated that the instant work does not come under their jurisdiction. In such circumstances, the 1^st respondent issued another letter dated 17-9-2016, to the 2^nd respondent requesting to take urgent steps to complete the projects, in the light of the judgment in the contempt case. It was further stated that the 1^st respondent has taken all the earnest efforts to complete the work at the earliest, but the area involved in the works comes under the jurisdictional authority of the 2^nd respondent and there are risk factors in the constructions due to the passing of heavy pipe lines carrying drinking water, it is highly essential to complete the drainage construction by deposit work by Kerala Water Authority. There is no willful laches or negligence on the part of the 1^st respondent to enforce the Judgment in the above cases.

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Thereafter, the then Executive Engineer of Kerala Water Authority filed an affidavit dated 16.08.2017, wherein it was stated that the office has

¶99

Cont. Case (C) No.223/2014

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submitted an application to the Managing Director of Kerala Water Authority through the Chief Engineer (CR) to sanction No Objection Certificate to commence the work as desired by respondent No.1. The Managing Director has placed the same before the meeting of the Board of Directors held on 10.08.2017 for approval. It was further stated that the minutes of the meeting would be ready and it should be communicated to the 1^st respondent Municipality. Thereupon, the 2^nd respondent had issued a No Objection Certificate by her proceedings No.A2-2462/14 dated 20.09.2017. In view of the No Objection Certificate, the writ court closed the contempt proceedings again by judgment dated 26.09.2017. Said judgment is extracted hereunder:

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“It is now reported before this Court by the learned standing counsel for the Water Authority that earnest efforts were taken on war footing to report full compliance of the direction given by this Court as per the judgment dated 20.03.2013 and it was accordingly that an order bearing No.A2-2462/14 dated 20.09.2017 has been passed by the Executive Engineer of the Water Authority, granting NOC to the Local Authority/Thrikkakara Municipality to construct drainage upto “Edappally thodu” with certain conditions mentioned therein. In the particular facts and circumstances, this Court finds that no further action does require to be pursued in connection with the alleged contumacious Act.

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The contempt matter stands closed. Taking note of the facts and circumstances of the case, the Municipality shall comply with the direction contained in the judgment dated 20.03.2013 in

¶104

Cont. Case (C) No.223/2014

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W.P.(C) No.6613 of 2013, at the earliest, at any rate, within four months from today.”

¶107

Petitioner has further stated that apart from issuing No Objection Certificate by the 2^nd respondent, nothing has been done by the respondents in compliance of the judgments extracted above. Hence, the petitioner has sought for re-opening the contempt proceedings by filing I.A. No.1 of 2018.

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The writ court by order dated 03.09.2018 passed the following:

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“This is a petition to re—open the contempt of court proceedings, which was closed as per order dated 26.09.2017.

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The sequence of events reveals that the writ petition was finalized on 20.03.2013, also referring to the specific stand taken by the Municipality as per their statement, the relevant portion of which was extracted therein. The stand of the Water Authority was also made clear and it was accordingly, that the matter was disposed of, based on the, submissions as aforesaid. Alleging contumacious act on the part of the respondent concerned, Contempt of Court proceedings No. 223 of 2014 came to be filed before this Court. While considering the contempt matter, the learned counsel for the petitioner pointed out that there was no earnest effort from the part of the Water Authority in granting NOC to the Local Authority and that no proper action was taken from the part of the Local Authority as well, but for the insinuation levelled against each other, virtually paying only scant regards to the observation and direction. After hearing both sides, the said contempt matter was closed as per order dated 26.09.2017 recording the submission that NOC had been issued by the Water Authority and hence granting further time of 4 weeks for the

¶111

Cont. Case (C) No.223/2014

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¶113

Municipality to give effect to the direction contained in the judgment dated 20.03.2013. Since nothing has taken place so far, the petitioner is again before this Court with the above proceedings.

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Heard the learned counsel for the petitioner; the learned standing counsel for the Water Authority and the learned standing counsel for the Municipality.

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The learned counsel for the Water Authority submits that they have already issued 'NOC' and as such, the duty cast upon them stands satisfied.

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The learned standing counsel for the Municipality submits that a number of conditions have been incorporated by the Water Authority in the 'NOC', which are practically impossible to be complied with and hence there is procedural difficulty in proceeding with the matter, for which the Kerala Water Authority alone can be blamed.

¶117

Taking note of the diverging stands now being taken by the Kerala Water Authority and the Municipality, it cannot but be held that the directions given are yet to be complied with and the grievance of the petitioner still subsists. In the said circumstances, this Court finds it appropriate to reopen the matter. It is ordered accordingly and the I.A. stands allowed.

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Contempt Case

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After hearing both the sides, this Court is of the view that the matter requires to be considered in terms of the relevant provisions of the Contempt of Court Act. This Court is prima facie satisfied as to the contumacious conduct on the part of the respondents concerned. In the said circumstances, the matter is referred to the Division Bench dealing with the contempt matters as per second proviso to Rule 6 of the Contempt of Courts (High Court of Kerala) Rules under the Contempt of Court Act, 1971. The Registry is

¶120

Cont. Case (C) No.223/2014

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directed to place the matter before the Hon'ble Chief Justice for further steps.”

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Respondent No.1 has filed an affidavit dated 03.10.2019, wherein

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it was stated as under:

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“Following the order of this Court dated 26-9-2017, respondent No.1 had taken urgent steps to construct and complete the drainage and for that myself along with the Chairman Public Works Committee, Ward Councilor, Municipal Engineer personally examined the site in question and interacted with the petitioner and other neighbouring property owners. The area in question is the place where the main drinking water large Pipes of Kerala Water Authority supplying drinking water from Aluva to Ernakulam is passing through. In the joint examination of the site, it was noticed that to construct the drainage by providing sufficient slop, deep level digging of ground in between the two large pipe line of Kerala Water Authority need to be done, which is risky and require high technical skill, support and supervisions. If there is any lapse or pitfall, that would cause heavy damage to the locality itself in addition to loss of human life and cut off of drinking water supply to Cochin city as well as surrounding areas. Therefore, since the place where the work is required to be carried out comes under the Water Authority and to be undertaken its direct supervision through our letters No: E1-771/14 dated 6-62014 and 26-8-2014, the KWA had to carryout the work by itself.

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(b) Since the request of the Secretary was not conceded to, the matter was placed before the Municipal Council especially in view of the judgment of this Court and the conditional NOC No: A2-2462/2014 dated 20-9-2017. The Municipal Council by its decision No: 17 dated 13-8-2018, decided and requested the

¶127

Cont. Case (C) No.223/2014

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Kerala water Authority to take steps to complete the work as deposit work. In that respect, respondent No.1 has issued letter dated 14-8-2018 to the 2^nd respondent and reminded the same by issuing another letter on 9-10-2018.

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(c) It was further stated that in addition to the above, as a second option, respondent No.1 after joint inspection, had put forward another suggestion before the petitioner that if the petitioner provides sufficient undeveloped water logged land in his ownership, through which flood water was flowing for a long period, the construction of the drainage would be completed at the expense of the respondent Municipality. This would have resulted in a perpetual solution to the whole menace. since the first phase of the drainage is ending on a culvert and the water is now flowing from there to the undeveloped wetland of the petitioner, to settle the entire issue for ever, respondent No.1 has agreed to construct the drainage through the undeveloped water logged land of the petitioner by utilizing the fund of Municipality. In that respect, the 1^st respondent has issued two letters on 14-82018 and 9-10-2018 to the petitioner seeking his permission. However, no reply has been received from him.

¶131

(d) It was further stated that the NOC given by the 2^nd respondent imposed 7 stringent conditions, making the NOC virtually an Objection Certificate in reality.

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(f) In the above facts and circumstances, though the 1^st respondent is bound to honor the undertaking given earlier, the present situation prevents the Secretary to effect the undertaking already given, which is not willful or intentional but only due to the reasons explained above. It was further stated that judgment dated 20-3-2013 in WP(C) No.6613/2013, does not contain any positive mandamus to the Municipality to do anything within a

¶133

Cont. Case (C) No.223/2014

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¶135

specifically stipulated period. The Municipality is in law duty bound to fulfill its obligation as well as undertaking to this Court. Respondent No.1 has taken all earnest efforts to complete the second phase of the work. However, the area involved in the work comes under the jurisdictional authority of the 2^nd respondent, the Kerala Water Authority.”

¶136

Heard the learned counsel for the parties and perused the material available on record.

¶137

Material on record discloses that while giving No Objection Certificate by the Kerala Water Authority, respondent No.2, for the construction of the second phase vide Order No.A2-2462/14 dated 20.09.2017 [Annexure-A(iv)], the 2^nd respondent as per condition No.1 therein, made it clear that the Kerala Water Authority is not willing to carry out the work as a deposit work. Said order is extracted hereunder:

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“ PROCEEDINGS OF THE EXECUTIVE ENGINEER, P.H.DIVISION,

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ALUVA

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(Present : Er.C.O.Anitha)

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Sub:- Construction of culvert in Ward No.33 of Thrikkakkara Municipality - CCC No.223 of 2014 against WP(C) No.6613 of 2013 of Hon'ble High Court of Kerala - Issue of No Objection Certificate - regarding -

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KERALA WATER AUTHORITY

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No.A2-2462/14

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Dated: 20-09-2017

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..................................................................................... Read: 1) No.E1/771/14 dated 6/6/2014 of the Secretary, Thrikkakkara Municipality.

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1. No.E1-771/14 dated 26/8/2016 of Secretary, Thrikkaraka Municipality.

¶147

Cont. Case (C) No.223/2014

¶148

¶149

1. Judgment dated 9/9/2015 on CCC No.223 of 2014 against WP(C) No.6613 of 2013 of Hon'ble High Court of Kerala.

¶150

1. This office letter No.A2-2462/14 dated 20/6/2014 addressed to the Superintending Engineer, P.H.Circle, Kochi.

¶151

1. Letter No. KWA/PHSA/D2/Crisis-07/08 Vol.II of Asst. Exe. Engineer, P.H.Sub Division, Aluva dated 13/9/2017.

¶152

1. This office letter No.A2-2462/14 dated 13/9/2017 addressed to the Superintending Engineer, P.H.Circle, Kochi.

¶153

1. Letter No.KWA/CE/CR/ALY/2488/2017 of Chief Engineer (CR) dt.13/9/2017.

¶154

1. Letter No.15426/AE1(SU)/2017/KWA dt. 18/9/2017 of Managing Director, KWA, Thiruvananthapuram.

¶155

ORDER

¶156

Thrikkakkara Municipality has applied for NOC for construction of the second phase of the drain in Ward No. 33, for a length of 83.8m along pipeline road vide reference (1) cited and requested vide reference (2) again for the completion of the drain constructed halfway by the Municipality itself consequent to the court-order referred (3) above. The contempt was closed by the Hon'ble Court on the submission that appropriate steps will be taken to give the consent to the Municipality subject to appropriate conditions to be stipulated to safeguard the pipelines.

¶157

Vide reference (4) cited it has been made out that the then Executive Engineer has issued NOC for the construction of the drain for the first reach of the Drain. Accordingly, the Municipality has constructed the drain in the 1^st Phase of their proposed drain.

¶158

As per the site inspection report of the Asst. Executive Engineer, P.H.Sub Division, Aluva, referred (5) above the construction of the drain was completed in the first phase from Kennedy Mukku Junction to Pappu Mastri Junction in pipe line road. In Pappu Masteri Junction a narrow culvert is crossing the pipeline road. The already

¶159

Cont. Case (C) No.223/2014

¶160

¶161

constructed drain carries drainage water in large volumes from areas on both sides of the pipeline road. The existing narrow culvert is not having the capacity to drain out this huge volumes of drainage water or there is no expansion facility for increasing the flow through the culvert as the surroundings does not permit further extension. Hence the whole drainage water gushes to the land of the Petitioner Sri.C.A. Abdul Hakkim of the WP(C) and CCC referred (3) above. The second phase of the drain is proposed by the Thrikkakara Municipality to solve this issue by extending the first phase drain to Edappally thodu.

¶162

Based on the report of Chief Engineer, Central Region vide reference(7) cited and considering the existing contempt case in the Hon'ble High Court, direction has been issued by the Managing Director Kerala Water Authority vide reference (8) cited to issue necessary NOC for the construction of the drain to Thrikkakkara Municipality subject to the conditions so as to safeguard the pipelines.

¶163

In compliance of the direction of the Managing Director, No Objection Certificate to the Thrlkkakara Municipality for constructing 83.80 m culvert in ward 33 of Thrikkakkara Municipality from the bridge near Pappu Mestry Jn. to Edappally Thodu is hereby issued subject to the following conditions:

¶164

KWA is not willing to carry out the work as a deposit work,

¶165

The alignment to be fixed after joint inspection with KWA officers clearly marking the clearance between the pipe lines and equal clearance from both 1200mm line and 1050 mm line. The whole construction from unloading the materials to finishing of the work shall be carried out in the presence of KWA officers. The whole work

¶166

Cont. Case (C) No.223/2014

¶167

¶168

should be done with manpower and heavy machineries like JCB, ready mix concrete mixer shall not be permitted. No heavy vehicles are permitted to enter pipeline road as part of this construction.

¶169

All provisions of protecting the pipelines including steel shoring on both sides throughout the length shall be incorporated in the estimate. Width of the drain shall not exceed 1.0 m, walls of the drain shall be with RCC M30. The whole drain shall be Water proofed using the compounds suggested by KWA in order to prevent any possible leakage from the drain. The drain shall be covered with 10mm thick RCC slab

¶170

Only run off water shall be permitted to flow through the drain. Grey water or Sewerage from households shall not he permitted to flow through the canal. The Municipality shall ensure own treatment facilities of waste water in nearby flat complexes. The quality of effluent from flats shall be ensured by the pollution control board and copy of monthly reports shall be produced to KWA for verification and record. The drain shall be periodically cleaned by the Municipality to ensure uninterrupted flow. The alignment shall be fixed after meticulous surveying to avoid any back flow from the main thodu. Any interruption in flow shall be rectified within minimum time i.e. on the day of blockage itself.

¶171

The Municipality shall execute an agreement with KWA incorporating the conditions and committing to should all responsibilities for safety of pipelines. The Municipality shall deposit a security amount equal to 8% of the estimate amount to KWA which shall be released on term wise as fixed by KWA. The Municipality shall remit supervision charges to KWA. The Secretary Municipality shall be responsible for any damages to the high pressure pumping mains. All consequent hardships to the public such as loss to

¶172

Cont. Case (C) No.223/2014

¶173

¶174

resources like life and wealth including revenue loss to KWA shall be at the risk of the Secretary Municipality.

¶175

EXECUTIVE ENGINEER, PUBLlC HEALTH DIVISION KWA ALUVA

¶176

¶177

The Secretary, Thrikkakara Municipality.”

¶178

The 1^st respondent has filed a technical report of the Assistant

¶179

Executive Engineer, Thrikkakara Municipality dated 14.08.2018, which is reproduced hereunder:

¶180

KAKKARA MUNICIPALITY KAKKANAD, KOCHI – 30 PHONE NO. 0484-2422383

¶181

C 1-2119/17 14.08.2018

¶182

TECHNICAL REPORT

¶183

The 1" phase of the drainage construction in the Division No: 33 of the Thrikkakara Municipality from the eastern side of the Pipeline Road from Pappumesthri junction to the culvert at a distance of 90 Meter has been completed in between the two heavy drinking water pipe line (as per the sketch from A to B). In that area the drinking water pipe lines are lying in the ground level only, hence the construction has been done by the Municipality directly.

¶184

However in the 2^nd phase, ( as per the sketch from B to C ), the ground level of the two heavy pipe line at a distance of 180 meter is higher and the distance between the two line are less than 2 meter and to construct drainage needs to dug in great depth of 3.05 meter and width of 1.20 meter, which is technically risky. Further, it is noticed that in the NOC given by the technically skilled Kerala Water

¶185

Cont. Case (C) No.223/2014

¶186

¶187

Authority, it was instructed by imposing conditions that the work has to be completed under their supervision, following their directions to be given in the matter of water proofing and without utilizing any heavy vehicles or machineries, etc which has every chance to happen damages to the high pressure pumping main line or to occur any dangers. Since the Municipality has no available facility to construct the drainage under our risk and cost as per the specification / conditions of the water authority, feasibility may be examined to find that the work may be done by the water authority alone or to resolve the water log by any other suitable way by the water Authority since the drainage was blocked due to the construction of the pipe line road of the water authority.

¶188

The plan and section of the site is enclosed herewith.

¶189

Sd/- Asst. Executive Engineer Thrikkakara Municipality

¶190

Encl: Site Plan, Section of the construction of phase II”

¶191

The sole questions emerges for consideration in this contempt case is, whether there is any wilful default on the part of the respondents in complying with the directions contained in the judgment in W.P.(C) No.6613 of 2013 dated 20.03.2013. The facts discussed above would make it clear that on earlier two occasions, contempt petition was closed on the basis of the submissions made by learned standing counsel for the KWA as well as the Municipality, that adequate and effective measures were being taken for complying with the directions of this Court. It is also evident from the

¶192

Cont. Case (C) No.223/2014

¶193

¶194

affidavits filed by the Municipality and the Water Authority that part of the judgment was complied with and the construction to be made to drain out the water so as to avoid water logging, by putting up a drain to Edappally thodu is under process. The problem faced by respondent Municipality earlier was that Kerala Water Authority was not granting permissions, since the culvert has to be widened for the purpose of construction of the drain. However, three main pipelines of the Water Authority for pumping water from Periyar river are passing through that area in an elevated terrain and, therefore, much precaution and safety measures are to be adopted for carrying out construction of the culvert. Later, Kerala Water Authority has granted permission to the Municipality for constructing the drain. However, from the affidavit of the Municipality, it is clear that it has requested the Water Authority to carry out construction after ensuring safety of the pipelines. But, the Water Authority was not prepared to carry out the construction, since it has to be carried out by the Municipality as per the provisions of the Kerala Municipalities Act and allied rules. The Municipality is of the opinion that construction can only be carried out through experts, since huge pipelines are passing over the proposed culvert, and unless and until sufficient safety measures are undertaken, there is every likelihood of breakage of the pipelines which would cause interruption to the free flow of water supply and danger to the public residing in that area.

¶195

Cont. Case (C) No.223/2014

¶196

¶197

Materials on record disclose that Municipality has now taken adequate measures to comply with the directions issued by this Court. It is also submitted that reasonable time is required for completing the construction. Moreover, it is evident from the pleadings putforth by the respondents that the situations are complex and the responsible officers of the Municipality and the Kerala Water Authority alone can be mulcted with any liability. We are also of the view that the issues are to be looked at a higher level to solve the situation.

¶198

Taking into account the present emergent situation of pandemic and other adverse situations prevailing in the country, and the complicated issues discussed above, we are of the considered opinion that there is no wilful disobedience on the part of the respondents in complying with the directions in the judgment dated 20.03.2013 in W.P.(C) No.6613 of 2013 and the undertaking made in the subsequent contempt petitions. It is evident from the affidavits that the respondents require reasonable time and sufficient time in order to tackle the situation.

¶199

In that view of the matter, we find no reason to keep this contempt petition pending. Accordingly, it is closed, however with a direction to the respondents to ensure that constructions are to be completed in accordance with the directions in the judgment dated 20.03.2013, expeditiously, at any rate, within a period of six months from the date of receipt of a certified

¶200

Cont. Case (C) No.223/2014

¶201

¶202

copy of this judgment, and also taking into account the observations made above. On its failure, contempt petitioner would be at liberty to take up the matter at Government level.

¶203

Sd/-

¶204

S.MANIKUMAR CHIEF JUSTICE

¶205

Sd/SHAJI P.CHALY JUDGE

¶206

Krj

¶207

Cont. Case (C) No.223/2014

¶208

¶209

APPENDIX

¶210

PETITIONER'S/S EXHIBITS:

¶211

ANNEXURE I TRUE COPY OF JUDGMENT DATED 20.03.2013

¶212

¶213

ANNEXURE-AIV:- COPY OF THE COVERING LETTER DATED 14.11.2017 ISSUED BY PETITIONER TO THE 1ST RESPONDENT.

¶214

ANNEXURE-AV:- COPY OF THE POSTAL ACKNOWLEDGMENT DATED 16.11.2017.

¶215

ANNEXURE-a(IV):- COPY OF THE ORDER NO.A2-2462/14 DATED 20.09.2017 ISSUED BY THE 2ND RESPONDENT.

¶216

RESPONDENTS' ANNEXURES:-

¶217

R1(E):- COPY OF THE LETTER NO.E1-771/2014 DATED 26.08.2016.

¶218

R1(F):- COPY OF THE LETTER DATED 14.8.2018 TO THE 2ND RESPONDENT ALONG WITH ENGLISH TRANSLATION.

¶219

R1(G):- COPY OF THE LETTER DATED 9.10.2018 TO THE 2ND RESPONDENT ALONG WITH ENGLISH TRANSLATION.

¶220

R1(H):- COPY OF THE LETTER DATED 14.8.2018 TO THE PETITIONER ALONG WITH ENGLISH TRANSLATION.

¶221

R1(I) COPY OF THE LETTER DATED 9.10.2018 TO THE PETITIONER ALONG WITH ENGLISH TRANSLATION.

¶222

R2(A): COPY OF THE LETTER NO.KWA/CE/CR/CHN/4141/2020 VO.IV DTD. 12.05.2014.

¶223

R2(B):- COPY OF THE LETTER NO.E1/771/14 DTDF.06.06.2014.

¶224

R2(C):- COPY OF THE LETTER NO.A2-91/08 DATED 20.06.2014.

¶225

R2(D):- COPY OF THE LETTER NO.E1/771/14 DTD. 22.09.2014.

¶226

R2(E):- COPY OF THE LETTER NO.A2-91/08 DATED.06.12.2014 ALONG WITH DRAFT UNDERTAKING.

C.a.Abdul Hakeem v. Sri.D.Saju

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C.a.Abdul Hakeem v. Sri.D.Saju

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