Research › Search › Judgment

Kerala High Court · body

2021 DIGILAW 885 (KER)

M. K. Mahendran v. State Of Kerala

2021-09-29

DEVAN RAMACHANDRAN

body2021
JUDGMENT : Alls well that ends well-more so in litigation. 2. The petitioners, however, had to wait for nearly ten years for their pathetic vexation to end - which has finally happened because of appreciable and deserving-to-be-emulated synergy and unity among the parties and other stakeholders, brought about by a nudge and a prod from this Court. 3. The petitioners came to the Court in the year 2011, when their residences were ingurgitated by storm water virtually around-the-year, because the traditional channels for draining it had been, over a period of time, filled up in the name of 'development'. To exacerbate the misery, their residences are lying lower than the neighbouring ones and hence the collected water stagnates, filling them nearly up to knee level, most time of the year. 4. The proximate cause projected by the petitioners in approaching the Court in the year 2011 was that, allegedly, respondents 3 to 5 had filled up a narrow natural water canal in the locality-called the 'Pandiparambu Thodu', which finally ends in the ‘Vembanadu Kayal’, through another canal by name ‘Panackal Thodu’. Of course, said respondents denied this with equal vehemence. 5. The litigation thus trudged along, with the petitioners applying for reliefs whenever it rained - but no solution was in sight because of the peculiar topographical lie of the properties. 6. In the year 2014, petitioners brought the 8th respondent - M/s Nila Homes, on the array of respondents, alleging that they have constructed an apartment complex on the side of the aforementioned ‘Panackal Thodu’, filling up the ‘Pandiparambu Thodu’ completely. As expected, said respondent denied this with equal force. 7. Many things were tried along the way and many suggestions were attempted, but nothing worked. 8. This Court began hearing the matter on 29.07.2019 and the Secretary of Tripunithura Municipality was directed to explain why no action had been taken until then to evict the encroachments in the ‘Pandiparambu Thodu’. The Secretary, thereupon, filed his pleadings, expressing helplessness because, according to him, the Revenue and Survey Authorities gave the Municipality no assistance to survey the ‘Thodu’, in spite of several requests being made. 9. The Secretary, thereupon, filed his pleadings, expressing helplessness because, according to him, the Revenue and Survey Authorities gave the Municipality no assistance to survey the ‘Thodu’, in spite of several requests being made. 9. This matter was then taken up on 26.10.2019, on which day, this Court suo motu impleaded the District Collector, Tahsildar and the Survey Officials as respondents with the intent of carrying a survey of the ‘Pandiparambu Thodu’ and removal of obstructions in it, if any. 10. Through another order on 26.10.2019 itself, this Court directed the District Collector to ensure that a comprehensive survey of the ‘Pandiparambu Thodu’ was done and I also appointed Sri.L.Rajesh Narayan Iyer as Amicus Curiae and directed him to visit the area and explore the possibility of resolving the problem by involving the Municipality, the Public Works Department (PWD), as also the residents of the locality. 11. Noticing that delay was causing a travesty of justice, I also directed, on that day, the Municipality and the Disaster Management Authority to pump out the water from the petitioners’ properties and keep it constantly dry. 12. The learned Amicus Curiae filed his first report thereafter on 14.11.2019, making certain suggestions. Hence, through the order dated 18.11.2019, the Municipality was directed to examine the said suggestions and this Court also recorded the submission of the then learned Government Pleader, Sri.C.M.Nazar, that survey of the ‘Thodu’ had begun, but that there were some obstacles on account of the resistance from certain property owners in the area. 13. Several orders, more than half a dozen, were thereafter issued, dealing with the progress of the survey and adverting to the further reports of Sri.Rajesh Narayan Iyer from time to time. 14. By an interim report dated 27.02.2020, the learned Amicus Curiae brought to the notice of this Court that twelve persons who reside in the locality will require to be impleaded, since they were resisting the survey conducted by the Revenue and Survey officials. Those persons were thus suo motu brought on the array of parties, through an order dated 04.03.2020. 15. However, in the midst of all these efforts, the residences of the petitioners remained submerged in water and since a permanent solution was still not in sight, this Court issued a further order on 21.06.2020, directing the Municipality to continue to drain out the water using pumps as earlier directed. 16. 15. However, in the midst of all these efforts, the residences of the petitioners remained submerged in water and since a permanent solution was still not in sight, this Court issued a further order on 21.06.2020, directing the Municipality to continue to drain out the water using pumps as earlier directed. 16. The pumping of water, thus done by the Municipality, brought some respite to the agony of the petitioners, but this was costing large sums, on account of the hire charges of the pumps and motors pressed into service. 17. In the meanwhile, Sri.L.Rajesh Narayan Iyer filed reports of his meetings with the Secretary of the Municipality, Engineers of the PWD and other Revenue Officials, who were stated to be offering him full support. 18. A few suggestions were made, both by the learned Amicus Curiae and the Municipality -when this matter was listed several times thereafter but none of them were feasible for one reason or the other; and most of such time, it was because the petitioners' properties were situated in the lowest point in the locality. 19. Time was running out, while the burden on the Municipality was mounting towards the charges for hiring motors used for pumping water, but they still acceded to do so, in support of the effort to solve the problem. 20. A breakthrough was at last reported by Sri.Rajesh Narayan Iyer, suggesting laying of underground pipes below a common pathway being used by the other residents of the locality, so as to create a drain into the 'Pandiparambu Thodu'. However, he voiced an apprehension that the neighbouring owners of the property - who had already been earlier suo motu impleaded by this Court -may object, on a misapprehension that their pathway was being converted into a drain. 21. I, therefore, ordered the Municipality on 24.06.2020 to consider the suggestion of the learned Amicus Curiae and inform this Court of a feasible but permanent solution to the problem. Appreciably, Sri.C.M.Nazar, the then Special Government Pleader, offered full support and assistance of the District Administration to the Municipality for this purpose, and this was recorded in the order dated 20.08.2020. 22. Appreciably, Sri.C.M.Nazar, the then Special Government Pleader, offered full support and assistance of the District Administration to the Municipality for this purpose, and this was recorded in the order dated 20.08.2020. 22. On 24.09.2020, Sri.Manu Vilson - learned Standing counsel for the Municipality, submitted that, though their Engineers were exploring many solutions, they did not have enough technical expertise in matters of canals and sought for the assistance of the Superintending Engineer of the Minor Irrigation Department. This was immediately acceded to by Sri.C.M.Nazar. 23. This led to the Superintending Engineer, Minor Irrigation Department, filing a detailed report before this Court dated 24.02.2021, suggesting construction of an open drain through the existing pathway to divert water into the aforementioned ‘Panackal Thodu’. However, the learned Amicus Curiae insisted on an underground drain, saying that the local residents may be more amenable to that, than an open one, which will render the pathway difficult to use. Thus, through the order of that date, this Court directed the Municipality to inform when they can complete the construction of an underground pipe drain. 24. This case was then listed on 03.03.2021, on which day, Sri.Manu Vilson, learned Standing Counsel for the Municipality, informed that his client has budgeted an amount of Rs.15 lakhs to construct the underground drain, but voiced a concern that residents of the locality may object to the work. However, since all such persons were already on record as respondents 14 to 25 and since none of them raised any objection against the work before this Court, the following order was issued, which I deem to extract in full, because it contains an apercus of the entire litigation: Through the travel of the several interim orders issued in this case, one thing now becomes certain - as is also admitted by all stakeholders - that unless there is a proper drainage from the area where the petitioners' residences are situated till the 'Panakkal thodu', the issues projected in this case can never be properly resolved. 2. 2. The learned Amicus Curiae, Sri.Rajesh Narayanan Iyer, submitted that - as has been reported before this Court by the Superintending Engineer of the Minor Irrigation Department, Central Circle, Ernakulam - the most effective method of providing drainage is to have pipes of sufficient diameter laid sub-terraneously through a pathway, which is presently being used by the neighbours, so that the work can be completed quickly and the pathway restored immediately thereafter. He submitted that this is also because, even if any private property is found to be involved, when the work taken forward, such persons cannot raise any objection, since no part of their property will be acquired and after the pipes are laid, their properties can be brought back to the situation prior to it. 3. I further notice that a suggestion has also been made by the Superintending Engineer that an open drain can be constructed. However, based on the afore submissions of Sri.Rajesh Narayanan Iyer, I had, through the order dated 24.02.2021, directed the Municipality to inform this Court whether they are willing to complete the work as suggested by him. 4. Today, Sri.Manu Vilson, learned Standing Counsel appearing for the Municipality, submitted that they are willing to construct the drainage by using necessary pipes, after providing requisite manholes at regular intervals; and that an amount of Rs.15 lakhs has already been budgeted for this purpose. He thereafter, voiced an apprehension that if any property, through which the drainage to be so constructed, is owned by a private person, there may be objections from such quarters. 5. Now that the Municipality has also agreed to construct the drain using pipes of requisite diameter, the only impediment that stands in the way is a possible objection in future by any person/s who may have rights over the property, through which it is to be constructed. 6. Even though Shri.L.Rajesh Narayan Iyer asserts that no individual rights will be affected, I deem it appropriate to make some provisions to ensure that there will be no problem when the work is being executed. 7. I see that all the persons in the locality, whose properties may or may not be affected by the construction proposed, have been impleaded on record as additional respondents 14 to 25. 7. I see that all the persons in the locality, whose properties may or may not be affected by the construction proposed, have been impleaded on record as additional respondents 14 to 25. None of then have raised any objection to the suggestion now made by the learned Amicus Curiae, Shri.L.Rajesh Narayan Iyer; and am, therefore, of the view that they will not create any impediment when the work is completed. In the afore circumstances, I direct the Thripunithura Municipality to forthwith commence the work of constructing a drainage, using pipes of requisite diameters as recommended by the competent Engineers, after providing for manholes at regular distances as is mandated scientifically, so as to connect the area where the petitioners residences are situated to the “Panakkal Thodu”. It is made clear that the pipes will be laid subterraneously and that after the work is completed, the land will be restored to its original position, so as not to affect any rights -either that of the public or private individuals. It is further made clear that merely because the pipes are laid so, it will not grant any right over the land to the Municipality, except when they require to maintain it, which shall be done as per the applicable laws. The learned Special Government pleader Shri.C.M.Nassar, at this time, offered that the Superintending Engineer, Minor Irrigation Department, Central Circle, Ernakulam, will oversee the work; and prayed that if there is any objection from any quarters, this Court may also allow the stakeholders to seek police assistance. This request was supported by Shri.L.Rajesh Narayan Iyer. I, therefore, further make it clear that the work as afore directed will be under the overall supervision of the Superintending Engineer, Minor Irrigation Department, Central Circle, Ernakulam; and if either the Municipality or the Engineers or the Amicus Curiae deem it appropriate to obtain any assistance of the Police, they shall be at liberty to do so and the Station House Officer of the Local Police Station, which is stated to be the Hill Palace Police Station, Thripunithura, will be obligated to offer such without requiring any further orders from this court. The learned Amicus Curiae, Shri.L.Rajesh Narayan Iyer submits that the work as now proposed will not take more than 10 or 14 days. I, therefore, adjourn this matter to be called on 31/03/2021. 25. The learned Amicus Curiae, Shri.L.Rajesh Narayan Iyer submits that the work as now proposed will not take more than 10 or 14 days. I, therefore, adjourn this matter to be called on 31/03/2021. 25. Nearly a month after the afore order, Sri.Rajesh Narayan Iyer, on 31.03.2021, brought to my notice that the work had not even begun. The Municipality, thereupon, explained the delay, saying that construction could not be begun due to the coming into force of the ‘Model Code of Conduct’ with respect to the ensuing General Elections. This Court did not take this kindly and being aware of this, the Municipality undertook to complete the work immediately. 26. However, nothing happened for the next three months and the petitioners were, therefore, forced to file Contempt of Court Case No.901/2021, which was listed on several days on 06.07.2021, 13.07.2021 and 14.07.2021; thus leaving no option to this Court but to order personal appearance of the Secretary of the Municipality. On 29.06.2021, Sri.Manu Vilson submitted that the Municipality faced certain technical obstacles, particularly that its Engineers felt that laying of underground pipes may not drain away the water from the properties of the petitioners because of its low-lying attributes. He then added that the Municipal Council has, nevertheless, decided to comply with the directions of this Court in the afore extracted order dated 03.03.2021. 27. At last, on 14.07.2021, the Municipality reported that the works of laying of the underground pipes had been completed and that water from the properties of the petitioners had drained full through it. Sri.Manu Vilson, however, prayed that this Court grant some more time to the Municipality to clear and decongest the ‘Pandiparambu Thodu’ fully, for which, he sought directions to the Police to afford protection. This request was acceded to by this Court through the order dated 14.07.2021. 28. It is thus that this matter has been listed today. 29. Sri.Rajesh Narayan Iyer, learned Amicus Curiae, reported that the ‘Thodu’ has been cleaned out; but prayed that this Court direct the Municipality to periodically clean it, as also the underground drainage now constructed, so as to ensure flow of water through it continually. 30. Sri.Manu Vilson undertook on behalf of the Municipality to do so and it is so recorded. It thus now brings down the curtains on a very long pending case; and that too, with a happy ending. 30. Sri.Manu Vilson undertook on behalf of the Municipality to do so and it is so recorded. It thus now brings down the curtains on a very long pending case; and that too, with a happy ending. This Court records the appreciation for Smt.Jeena Joseph -learned counsel for the petitioners, in exhibiting great perseverance on behalf of her clients for over a decade; Sri.Manu Vilson in prevailing upon an ‘at-times’ unwilling Municipality; Sri.C.M.Nazar -the then learned Special Government Pleader, for rising to the occasion whenever this Court sought his assistance and Sri.L.Rajesh Narayan Iyer - learned Amicus Curiae for having acted diligently and thoroughly much beyond his duty - even having supervised the work borrowing time from his professional engagements, thus enabling this Court to close this Writ Petition in this manner. This Writ Petition is thus ordered.