Allowed

K. O. George, v. Secretary, Puthanvelikkara Grama Panchayat

Kerala HC4 Jun 2024WP(C)/16338/2023

Case brief

AI extract

What is this about?

A landowner sought directions to the Panchayat to strengthen and maintain a canal running through his property, after the Panchayat refused citing use of public funds on private land. The Court held the Panchayat cannot shirk its statutory duty over vested watercourses and directed completion of strengthening works within six months.

What did the court decide?

Respondents directed to strengthen and maintain the thodu through concrete reinforcement or otherwise within six months; scheme left to Panchayat's discretion.

K. O. George, Vs Secretary, Puthanvelikkara Grama… — Municipal and Town Planning | Kerala HC (2024)

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W. P. (C) No. 16338 of 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 MOHAMMED NIAS C.P. TUESDAY, THE 4^TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 WP(C) NO. 16338 OF 2023

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PETITIONER:

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K. O. GEORGE, AGED 72 YEARS, S/O OUSEP, KUDIYIRIKKAL HOUSE, KAROTTUKARA, PUTHANVELIKKARA P.O., PIN – 683594.

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BY ADVS.M/S.RUBEN GEORGE ROCK, C.A.MAJEED, K.H.ASIF, MOLTY MAJEED & P.B.UNNIKRISHNAN NAIR

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RESPONDENTS:

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1 SECRETARY, PUTHANVELIKKARA GRAMA PANCHAYAT, PUTHANVELIKKARA GRAMA PANCHAYAT, PUTHANVELIKKARA.P.O., ERNAKULAM DISTRICT, PIN – 683594.

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2 PUTHANVELIKKARA GRAMA PANCHAYAT, PUTHANVELIKKARA.P.O., ERNAKULAM DISTRICT, REPRESENTED BY ITS SECRETARY, PIN – 683594.

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BY ADV K.S.ARUN KUMAR, SC, PUTHENVELIKKARA GRAMA PANCHAYAT

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W. P. (C) No. 16338 of 2023

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MOHAMMED NIAS C. P. , J.

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W. P. (C) No. 16338 of 2023

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Dated this the 4^th day of June, 2024

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J U D G M E N T

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The petitioner is a resident of the 2^nd respondent Panchayat and is stated to be the owner of 40 cents of land in Survey No. 341/7B of Puthanvelikkara Village, where his residential house is also situated. In the said property, the petitioner's father had permitted the respondent Panchayat to construct a 'thodu' (canal) through the property for the development of Karottukara. Rainwater from Karottukara to Manancherikkunnu drains through this thodu. The thodu that starts from Manancherikkunnu enters the petitioner's property through the north-western boundary and flows east. Both the thodu join in the petitioner's property and flow in the southern direction. The thodu runs approximately 75 meters long through the petitioner's property and has a depth of 12 feet and a width of 10 feet.

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The complaint of the petitioner is that the respondent Panchayat is not taking any action for maintenance work for the safety of that portion of the canal running through the petitioner's property and the Panchayat is only taking measures for

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W. P. (C) No. 16338 of 2023

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maintenance and safeguarding that portion of the thodu that is running through roadside by concrete reinforcement. The petitioner had submitted a complaint dated 3.11.2018 before the respondents. Since no action was taken the petitioner had approached this Court by filing WP(C). No. 13259/2022, which resulted in Ext.P2 judgment directing the respondents to take appropriate action. The said request of the petitioner was rejected by Ext.P3 order dated 23.3.2023 stating that, public funds cannot be used for maintaining or to protect the thodu running through the private land of the petitioner. It is also stated that, they cannot find any alternate to drain water other than through the very same thodu.

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The Panchayat has filed a counter in which it states that the maintenance sought by the petitioner cannot be included in the Mahatma Gandhi National Rural Employment project and that the Assistant Engineer concerned had reported that the quantity of water running through the thodu is higher than the capacity of the existing drain, and therefore, it is difficult to drain the water through an inlet through the existing canal.

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Pending the Writ Petition, the Panchayat Committee again considered the issue and discussed the possibility of including the construction works related to the thodu either in the Mahatma Gandhi National Rural Employment project or in the Yearly project,

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W. P. (C) No. 16338 of 2023

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and is awaiting a final decision.

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The learned counsel for the petitioner, Sri.K.H.Asif, submits that as per Section 218 of the Kerala Panchayat Raj Act which deals with the vesting of watercourse, springs, reservoirs, etc., in the Village Panchayat, all rights and liabilities of the Government in relation to the water courses, springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, standpipes and other water works vested in the panchayat shall be the rights and liabilities of the Village Panchayat. He also relies on Section 166 which speaks about the powers, duties and functions of Village Panchayat that, it shall be the duty of the village panchayat to meet the requirements of the village panchayat area in respect of the matters enumerated in the Third Schedule.

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Section 166(2) also lays down that, the village panchayat shall have exclusive power to administer the matters enumerated in the Third Schedule and to prepare and implement schemes relating thereto for economic development and social justice. The third Schedule, under Sub-section (1) of Section 166 enumerates Mandatory Functions. Serial no.5 of the same relates to the maintenance of waterways and canals under the control of Village Panchayats.

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In view of the above provisions, it is clear that the Panchayat cannot shirk its responsibility because of the vesting of

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W. P. (C) No. 16338 of 2023

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the canal in them, despite the canal running through private property and especially when the Panchayat has strengthened the other portions of the thodu, there is no justification for not strengthening the thodu with respect to the portion running through the petitioner's property. Though the decision taken pending the Writ Petition suggests that they are exploring the possibility, no concrete measures are spelt out in the counter affidavit.

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Under such circumstances, there will be a direction to the respondents to take such measures to strengthen and maintain the thodu (canal) running through the petitioner's property through concrete reinforcement or other ways. The scheme under which the same shall be done and the manner of implementing the same are all left to the choice of the Village Panchayat. Appropriate steps shall be taken at the earliest and the same shall be completed within a period of six months from the date of receipt of a copy of this judgment.

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The Writ Petition is allowed as above.

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Sd/-

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MOHAMMED NIAS C. P., JUDGE

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MMG

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W. P. (C) No. 16338 of 2023

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APPENDIX OF WP(C).NO.16338/2023

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	A TRUE COPY DATED 01.04.20	OF 22	THE REPRESENTATION
EXHIBIT P2	A TRUE COPY	OF	THE JUDGMENT DATED
	08.04.2022 IN	WPC	NO. 13259/2022
EXHIBIT P3	A TRUE COPY	O	F THE ORDER DATED
	23.03.2023 PAS	SED	BY RESPONDENTS

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RESPONDENTS' EXHIBITS:

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EXHIBIT R1(A)	A TRUE COPY OF THE MINUTES DATED 06.06	PANCHAYAT COMMITTEE .2022
EXHIBIT R1(B)	A TRUE COPY OF ASSISTANT ENGINEER DATED 12.12.2022	THE REPORT OF THE OF LSGD SECTION
EXHIBIT R1(C)	A TRUE COPY OF ASSISTANT ENGINEER NATIONAL RURAL DATED 09.01.2023	THE REPORT OF THE OF MAHATMA GANDHI EMPLOYMENT PROJECT
EXHIBIT R1(E)	A TRUE COPY OF THE MINUTES DATED 02.08	PANCHAYAT COMMITTEE .2023
EXHIBIT R1(D)	A TRUE COPY OF THE DECISION DATED 14.0	STEERING COMMITTEE 3.2023

K. O. George, v. Secretary, Puthanvelikkara Grama Panchayat

Case brief

What is this about?

What did the court decide?

K. O. George, v. Secretary, Puthanvelikkara Grama Panchayat

Case brief

What is this about?

What did the court decide?

What the court decided

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