Partly allowed

Jainy Simon v. Konni Grama Panchayat

Kerala HC3 Jan 2023WP(C)/5232/2021

Case brief

AI extract

What is this about?

Two writ petitions challenged a Panchayat's decision to lay concrete slabs over a stream ('thodu') to create a road for isolated residents. The court rejected the obstruction claims, uphold the Panchayat's power under the Constitution to provide road access, and directed the project to proceed with safeguards for water flow.

What did the court decide?

Direction to the Panchayat to proceed with the road construction project without obstructing the natural flow of water and ensuring provisions for cleaning the stream.

Jainy Simon Vs Konni Grama Panchayat — Municipal and Town Planning | Kerala HC (2023)

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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 MURALI PURUSHOTHAMAN

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THURSDAY, THE 03^RD DAY OF JANUARY 2023 / 13TH POUSHA, 1944

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WP(C) NO. 5117 OF 2021

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PETITIONER:

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RAJAMMA

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AGED 75 YEARS KIDANGIL HOUSE, ATHUMBUKULAM P.O. KONNI.

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BY ADV BOBBY JOHN

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RESPONDENTS:

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1 THE DISTRICT COLLECTOR CIVIL STATION, PATHANAMTHITTA 689 645.

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2 THE KONNI GRAMA PANCHAYATH , REPRESENTED BY ITS SECRETARY, KONNI 689 691.

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3 ADDL.R3.JAINY SIMON W/O. SIMON, THEKKECHERUVIL HOUSE, ATHUMBUKULAM.P.O., KONNI, PIN-689692.

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4 ADDL.R4. RADHAKRISHNAN, CHERIKKAL HOUSE, ATHUMBUKULAM.P.O., KONNI, PIN-689692.

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5 ADDL.R5.RATHEESH.K.K. KIZHAKKECHERIYIL HOUSE, ATHUMBUKULAM.P.O., KONNI, PIN-689692.

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6 ADDL.R6. T.M. THOMAS, THEKKECHERIYL HOUSE, ATHUMBUKULAM.P.O., KONNI, PIN-689692.

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(ADDL. RESPONDENTS 3 TO 6 ARE IMPLEADED AS PER ORDER DATED 12-03-2021 IN WP(C) 5117/2021).

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BY ADV GEORGE KUTTY MATHEW

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.01.2023, ALONG WITH WP(C).5232/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).No.5117 of 2021. W.P.(C).No.5232 of 2021.

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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 MURALI PURUSHOTHAMAN

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THURSDAY, THE 03^RD DAY OF JANUARY 2023 / 13TH POUSHA, 1944

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WP(C) NO. 5232 OF 2021

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PETITIONERS:

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1 JAINY SIMON AGED 50 YEARS

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W/O. SIMON, THEKKECHERUVIL HOUSE, ATHUMBUKULAM P.O.,KONNI,PIN689 692

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2 RADHAKRISHNAN

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CHERIKKAL HOUSE, ATHUMBUKULAM P.O.,KONNI,PIN-689 692

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BY ADV GEORGEKUTTY MATHEW

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RESPONDENTS:

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1 KONNI GRAMA PANCHAYAT

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REP BY ITS SECRETARY, KONNI P.O., PATHANAMTHITTA DISTRICT, PIN-689 691.

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2 THE SECRETARY,

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KONNI GRAMA PANCHAYATH, KONNI P.O., PATHANAMTHITTA DISTRICT,PIN689 691

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3 RAJAMMA

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KINDANGIL HOUSE, ATHUMBUKULAM P.O., KONNI,PIN-689 692

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4 SAMSON SAMUEL,

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MANALUR, ATTACHAKAL P.O., KONNI-689 692

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.01.2023, ALONG WITH WP(C).5117/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).No.5117 of 2021. W.P.(C).No.5232 of 2021.

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JUDGMENT

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rd Dated this the 03 day of January, 2023 .

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Since common issues arise for consideration, I deem it appropriate to dispose of these writ petitions by this common judgment.

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The petitioner in W.P. (C).No.5117 of 2021 who is residing by the side of a brook locally known as ‘Konnappara thodu’ (hereinafter referred to as ‘thodu’ for short) is aggrieved by the decision taken by the Konni Grama Panchayat (for short, the Panchayat) to construct concrete slabs over the thodu and reducing its size and obstructing free flow of water and causing flood in rainy season. Accordingly, the petitioner has sought for a direction to the Panchayat not to construct any concrete slab over ‘Konnappara Thodu’ pursuant to ‘project No

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W.P.(C).No.5117 of 2021. W.P.(C).No.5232 of 2021.

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207/21 KONNAPPARA KIDANGILPADI MODHIKKAL COVERING SLAB AND RETAINING WALL CONSTRUCTION IN WARD 7’ (hereinafter referred to as the ‘project’, for short) and not to obstruct the free flow of water through it.

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W.P. (C).No.5232 of 2021 is filed by two

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residents of the Panchayat, who are additional respondents 3 and 4 in W.P. (C).No.5117 of 2021 for implementation of the project. According to them, 8 families including Scheduled Caste families are residing in an isolated area in the Panchayat having no road access. The project has been envisaged for the formation of a road to their area by constructing concrete slabs over the thodu. It is contended that due to the encroachment into the 'thodu' by the 3^rd respondent (petitioner in W.P. (C).No.5117 of 2021), the project could not commence.

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W.P.(C).No.5117 of 2021. W.P.(C).No.5232 of 2021.

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A counter affidavit of the Secretary of the Panchayat and two Statements have been placed on record by the learned counsel for the 2^nd respondent in W.P. (C).No.5117 of 2021. Paragraph 3 to 6 of the counter affidavit read as follows:

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“3. The averments in paragraphs I of the writ petition are not fully correct and hence denied. It is true that the petitioner's house is by Konnappara Thodu. However it is not correct the width of the said stream was reduced by encroachment. No complaints have ever been received on the panchayath, even from the petitioner, alleging that it was encroached upon and thereby its width was reduced. No encroachment is visible at the sight upon local inspection. The only complaint that the panchayath has received regarding the stream was that the petitioner who had constructed a latrine closely to it was discharging its waste to the stream. The averment that in monsoon times the petitioner had been experiencing flood in her property is not correct and hence denied.

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The averment in paragraph 2 of the writ petition that the Panchayath had formed a project of forming a road covering the stream with concrete slab is correct. However, the averment

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W.P.(C).No.5117 of 2021. W.P.(C).No.5232 of 2021.

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that it would obstruct free flow of water through the stream is not correct. The present hight of the side wall of the stream is 1 meter and the project envisages raising the side walls up to 2 meters from the bed of the stream and casting concrete slabs over it. Accordingly, the stream would get more room to carry water through it to the downstream and the petitioner's apprehension of flood is unfounded. The project was prepared on the basis of the estimate prepared by the Assistant Engineer of the Grama Panchayath and approved by the Assistant Executive Engineer of Konni Block Panchayath after fulfilling all the applicable rules and norms of public works. Accordingly, the averment in paragraph 3 of the writ petition that the proposed work would obstruct free flow of water and cause flood in the petitioner's property is not correct.

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It is also submitted that the stream is an ephemeral watercourse as it does not possess flow for more than 75 % of time. It carries water only during the rainy seasons. There are no steps to get into it and it is not used as a water source by the local people including the petitioner.

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There are 10 families living across the river. Those families do not have a proper way to their houses. Now they are using footpaths on private properties crossing the stream by a impoverished bridge made up of areca tree stumps. In

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W.P.(C).No.5117 of 2021. W.P.(C).No.5232 of 2021.

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emergencies, including medical urgencies, people suffer very much and they raised the issue in the grama sabha. It was the grama sabha that recommended formation of road by laying concrete slabs over the stream for the benefit the local residents. Nobody, including the petitioner, objected the proposal at its discussion, approval or tender stages……”

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In the Statement dated 13.12.2022 filed on behalf of the 2^nd respondent, it is stated that though the estimate of the project was prepared and the work was tendered, it could not be started due to the interim order passed by this Court in W.P. (C).No.5117 of 2021. It is further stated that the Panchayat will do the periodical cleaning of thodu and ensure free flow of water through the thodu.

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In the light of the averments in the counter affidavit as above, there cannot be any basis for the apprehension of the petitioner in W.P.(C)No.5117/2021 that the construction of the concrete slabs would

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W.P.(C).No.5117 of 2021. W.P.(C).No.5232 of 2021.

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obstruct free flow of water through the thodu. If, by providing concrete slabs over the thodu access can be provided to the dwellings of some residents of the Panchayat, that too, without any acquisition or private purchase, this Court finds no reason to stall the implementation of such project. Article 243 G of the Constitution of India provides for endowment of powers to the Panchayats to implement schemes for economic development and social justice including matters listed in the Eleventh Schedule to the Constitution. Entry 13 of the Eleventh Schedule provides for the powers of the Panchayats with regard to implementation of schemes for construction of roads, culverts, bridges, ferries, waterways and other means of communication. Entry 27 of the Eleventh Schedule provides for the powers of the Panchayats with regard to implementation of schemes for the welfare of the weaker sections, and in particular,

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W.P.(C).No.5117 of 2021. W.P.(C).No.5232 of 2021.

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of the Scheduled Castes and the Scheduled Tribes. The Panchayat has, thus, Constitutional obligation to provide roads for communication as far as possible. The beneficiaries of the project are weaker sections, including members of the Scheduled Castes. It is stated by the Panchayat that the thodu is not used as a water source by the local people. Laying concrete slabs over thodu which is not a drinking water source and thereby forming a road by the Panchayat where the same is feasible, would serve a public purpose without acquisition or private purchase. However, such construction shall not obstruct the natural flow of water through the thodu or change the course of water channel and there shall also be provision to remove the accumulated silt by lifting the slabs at suitable points.

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Accordingly, the writ petitions are disposed of with direction to the Panchayat to proceed with the project

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W.P.(C).No.5117 of 2021. W.P.(C).No.5232 of 2021.

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without obstructing the natural flow of water through the thodu and by ensuring provisions to carry out cleaning work of the thodu.

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Sd/- MURALI PURUSHOTHAMAN JUDGE

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Raj.

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W.P.(C).No.5117 of 2021. W.P.(C).No.5232 of 2021.

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APPENDIX OF WP(C) 5117/2021

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PETITIONER EXHIBITS

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EXHIBIT P1

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TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 8/10/2020.

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EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE PRESIDENT OF THE 2ND RESPONDENT PANCHAYAT ON 2/2/201.

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W.P.(C).No.5117 of 2021. W.P.(C).No.5232 of 2021.

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APPENDIX OF WP(C) 5232/2021

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE TREATMENT CERTIFICATE DATED 18.02.2020 ISSUED BY THE REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM

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EXHIBIT P2 TRUE PHOTOGRAPH

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EXHIBIT P3 TRUE COPY OF THE ESTIMATE OF THE PROJECT NO.207/21 OF THE RESPONDENT PANCHAYAT

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EXHIBIT P4 TRUE PHOTOGRAPH EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 01.02.2021 SUBMITTED BEFORE THE DISTRICT COLLECTOR, PATHANAMTHITTA

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EXHIBIT P6 TRUE COPY OF THE COMPLAINT DATED 05.02.2021 SUBMITTED BEFORE THE PATHANAMTHITTA DISTRICT LEVEL COMMITTEE OF 'SATHWANAM SPARSAM ADALATH'

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EXHIBIT P7 TRUE COPY OF THE LETTER DATED 13.02.2021 ISSUED BY THE REVENUE DIVISIONAL OFFICER, ADOOR TO THE 1ST PETITIONER EXHIBIT P8 TRUE COPY OF THE LETTER DATED 13.02.2021 ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER EXHIBIT P9 TRUE COPY OF THE PETITION DATED 24.02.2021 SUBMITTED BY THE PETITIONERS

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W.P.(C).No.5117 of 2021. W.P.(C).No.5232 of 2021.

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BEFORE THE 2ND RESPONDENT Exhibit P10 TRUE COPY OF THE REPORT DATED 17.05.2022 SUBMITTED BY THE ASSISTANT ENGINEER LID & EW SECTION OF THE RESPONDENT PANCHAYATH BEFORE THE SECRETARY OF THE RESPONDENT PANCHAYATH.

Jainy Simon v. Konni Grama Panchayat

Case brief

What is this about?

What did the court decide?

Jainy Simon v. Konni Grama Panchayat

Case brief

What is this about?

What did the court decide?

What the court decided

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