Disposed

Somasekharan Nair v. Nellikuzhy Grama Panchayat

Kerala HC1 Dec 2022WP(C)/24103/2022

Case brief

AI extract

What is this about?

It is a writ petition seeking orders to restrain respondents from illegal flowing of rainwater and wastewater to the petitioner's property. The Court found the grievance regarding wastewater redressed and treated rainwater flow as a disputed factual question not fit for adjudication in this writ.

What did the court decide?

The writ petition was disposed of as the Court found no scope for wastewater flow; disputes on rainwater flow are to be agitated in an appropriate forum.

Somasekharan Nair Vs Nellikuzhy Grama Panchayat — Pension and Retirement Benefits | Kerala HC (2022)

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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 N.NAGARESH

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THURSDAY, THE 1^ST DAY OF DECEMBER 2022/10TH AGRAHAYANA, 1944 WP(C) NO. 24103 OF 2022

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PETITIONER:

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SOMASEKHARAN NAIR AGED 54 YEARS KANNIKUNNATH HOUSE, ELAMBRA KARA, ERAMALLOOR VILLAGE, NELLIKUZHI P.O, PIN – 686691.

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BY ADVS. ABRAHAM P.GEORGE M.SANTHY JOHNY THOMAS M.B.RATHEESH C.A.ANAS JOSE K.V.

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RESPONDENTS:

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1 NELLIKUZHY GRAMA PANCHAYAT, REP. BY ITS SECRETARY, NELLIKUZHI P.O, KOTHAMANGALAM,, PIN - 686691

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2 THE SECRETARY, NELLIKUZHI GRAMA PANCHAYAT, NELLIKUZHI P.O, KOTHAMANGALAM, PIN - 686691

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3 SRI. MURALI AGED 62 YEARS S/O SEKHARAN NAIR, KARIYANIKKAL HOUSE, ELAMBRA KARA, ERAMALLOOR VILLAGE, NELLIKUZHI P.O, PIN - 686691

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4 SRI. NOBY PARATHUVAYALIL MANAGER, ELAMBRA L.P. SCHOOL, ELAMBRA KARA, ERAMALLOOR VILLAGE, NELLIKUZHI P.O, PIN - 686691

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W.P.(C) No.24103 of 2022

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BY ADVS. SRI.K.S.ARUN KUMAR, STANDING COUNSEL, NELLIKKUZHY GRAMA PANCHAYATH SMT.VEENA VALLIKANTHAN SRI.M.N.SANJITH SRI.JAISON JOSEPH

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.24103 of 2022

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J U D G M E N T

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Dated this the 1^st day of December, 2022

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The petitioner, who is a permanent resident of Nellikuzhi, is before this Court seeking to command respondents 1 and 2 to proceed with further steps in pursuance of Exts.P3 and P4 notices issued against respondents 3 and 4, take such action deemed necessary to restrain the illegal flowing of rain water and waste water to the property of the petitioner, thus abate nuisance and redress the grievance of the petitioner, within a period of time as states by this Court in the interest of justice.

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The petitioner states that he is absolute owner of 86 Cents of land in Nellikuzhi. Respondents 3 and 4 are the neighbours of the petitioner’s property. The land of respondents 3 and 4 lies at higher level. The property of the 3^rd respondent is protected by a retaining wall made out of granite stone. He has installed drainpipes in the retaining wall

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W.P.(C) No.24103 of 2022

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and the excess rain water and the waste water from his cattle

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shed etc is flowing to the property of the petitioner.

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The 4^th respondent is the Manager of Lower Primary

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School at Elambra. The rain water and waste water coming from the sock pit attached to the septic tank of the school also is flowing through the property of the petitioner.

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The petitioner submitted complaints to the respondents. The 2^nd respondent issued Ext.P3 notice to respondents 3 and 4 invoking the provisions of the Kerala Panchayat Raj Act, requiring respondents 3 and 4 to abstain from their illegal acts. According to the petitioner, the 4^th respondent filed an objection. Thereafter, no steps are being taken by the 2^nd respondent to redress the grievance of the petitioner.

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The petitioner argued that in spite of notices issued by the Panchayat authorities, respondent Nos.3 and 4 are illegally flowing rain water and waste water to the property of the petitioner and the Panchayat authorities are keeping a

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W.P.(C) No.24103 of 2022

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blind eye on the illegal activities of respondents 3 and 4. Therefore, unless this Court interferes in the matter and passes appropriate orders, the petitioner will be put to lasting damage.

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Respondents 1 and 2 entered appearance and filed counter affidavit. The Standing Counsel representing respondents 1 and 2 submitted that the 3^rd respondent has already sold his cattle and therefore, now there is no issue of waste water from cattle shed flowing to the property of the petitioner. On inspection, it was found that the outlet of the toilets of the 4^th respondent are open to a septic tank. Therefore, there is no question of any septic wastage flowing into the petitioner’s compound.

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The counsel for the petitioner, on the other hand, pointed out that in the counter affidavit filed by the Panchayat, it has been stated that during monsoon season, rainwater accumulating in the compound of the school represented by the 4^th respondent flows through the property of the petitioner. The 2^nd respondent has instructed the 4^th respondent to fill soil

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W.P.(C) No.24103 of 2022

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to increase the height of the 4^th respondent’s land by 1.5 feet in such a way that the rain water flows into the northern side of the school's property into a six feet deep pit situated in the said property, thereby removing the difficulty caused to the petitioner due to the flow of rainwater into his property.

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The counsel for the petitioner, relying on paragraph 6 of the counter affidavit, pointed out that obviously the Panchayat authorities have noted nuisance to the petitioner due to the water flow from the 4^th respondent's compound. Therefore, the respondents are compellable to take remedial action.

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I have heard the learned counsel for the petitioner, the learned Standing Counsel representing respondents 1 and 2 and the learned counsel for the 4^th respondent.

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The grievance of the petitioner originally was relating to flow of waste water from the cattle shed of the 3^rd respondent and from the urinals and toilets of the 4^th respondent-School. On inspection made by the Panchayat

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W.P.(C) No.24103 of 2022

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authorities, it has been noted that the 3^rd respondent has already sold his cows and therefore there is no question of any waste from the cattle shed of the 3^rd respondent flowing to the petitioner’s property. As regards the allegation of waste water from the toilets and urinals of the 4^th respondent, the Panchayat authorities have found that the outlet of the toilets are open to a septic tank. Therefore, this Court do not find that there is any scope for flowing of septic tank waste or waste water into the property of the petitioner.

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The allegation of the petitioner is that to the compound wall of the 4^th respondent an opening has been made and rainwater / storm water accumulating in the 4^th respondent’s property is being flowed into the petitioner’s property. The counsel for the 4^th respondent alleged that the petitioner has about three years ago, excavated substantial amount of soil from his property and therefore, at present the petitioner’s property is lying at a much lower level. That is the reason why the water is flowing from the 4^th respondent’s

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W.P.(C) No.24103 of 2022

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compound to the petitioner’s compound. According to the 4^th respondent, water flow from the compound of the 4^th respondent was there even earlier through the compound of the petitioner.

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I find that this is a disputed question of fact which cannot be adjudicated by this Court. As the substantial grievance of the petitioner relating to waste water from cattle shed and toilets, stands redressed, this Court is of the view that no further adjudication or orders are warranted in this writ petition under Article 226 of the Constitution of India.

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Accordingly, the writ petition is disposed of recording the above findings. The petitioner will be free to agitate his grievance relating to flow of storm water into his property in any other appropriate manner, through appropriate forum / court.

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Sd/N.NAGARESH JUDGE

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sss

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W.P.(C) No.24103 of 2022

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APPENDIX OF WP(C) 24103/2022

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PETITIONER'S EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE COMPLAINT LODGED BY THE PETITIONER DATED 12.4.2022 BEFORE THE REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA.

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EXHIBIT P2 TRUE COPY OF THE REPORT NO. JC4/180/2022 DATED 12.4.2022 OF NELLIKUZHI GRAMA PANCHAYAT. EXHIBIT P3 TRUE PHOTOCOPY OF THE NOTICE DATED 25.5.2022 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT.

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EXHIBIT P4 TRUE PHOTOCOPY OF THE NOTICE DATED 25.5.2022 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.

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RESPONDENTS' EXHIBIT

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EXHIBIT R4(A) TRUE COPY OF THE FITNESS CERTIFICATE DATED 30/05/2022 ISSUED BY ASSISTANT ENGINEER, LSGD SECTION, NELLIKUZHY. EXHIBIT R2(A) A TRUE COPY OF THE NOTICE ISSUED BY THE PHC HEALTH INSPECTOR. EXHIBIT (R2B) A TRUE COPY OF THE REPORT OF THE PHC HEALTH INSPECTOR STATING THAT THE 3RD RESPONDENT HAS SOLD HIS CATTLE AND REMOVED THE CAUSE OF FLOW OF WASTE WATER INTO THE PETITIONER'S PROPERTY.

Somasekharan Nair v. Nellikuzhy Grama Panchayat

Case brief

What is this about?

What did the court decide?

Somasekharan Nair v. Nellikuzhy Grama Panchayat

Case brief

What is this about?

What did the court decide?

What the court decided

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