JUDGMENT : W.P (C) No.16901 of 2021 The prayers in the Writ Petition (Civil) are as follows: “(i) issue a writ in the nature of mandamus or such other writ, direction or order, directing respondents 4 to 12, not to interfere with the petitioner's property situated at Resurvey Nos. 17, 32, 33, 60, 61, 62, 63, 64 and 65 of Block No. 35 in Peroorkada Village in Thiruvananthapuram Taluk in Thiruvananthapuram District; (ii) issue a writ in the nature of mandamus or such other writ, direction or order, directing respondents 1 to 10, to restore the original lie and nature of the petitioner's property situated at Resurvey Nos. 17, 32, 33, 60, 61, 62, 63, 64 and 65 of Block No. 35 in Peroorkada Village in Thiruvananthapuram Taluk in Thiruvananthapuram District by filling up the illegally dug water channel/drainage at the instance of 11 th and 12 th respondents; (iii) issue a writ in the nature of mandamus or such other writ, direction or order, directing Respondents 1-4 to institute departmental disciplinary proceedings against Respondents 11 and 12 for their illegal actions in having trespassed into and illegally dug water channel/drainage in the petitioner's property; (iv) issue a writ in the nature of mandamus or such other writ, direction or order, directing 5 th respondent to implement the Ext. P25 decision within a time frame to be decided by this Hon'ble Court; (v) issue a writ in the nature of mandamus or such other writ, direction or order, directing 9 th and 10 th respondents to implement the Ext.P13 order within a time frame to be decided by this Hon'ble Court (vi) pass such other orders that this Honourable Court deems fit and proper in the nature and circumstances of the case; (vii) to award costs” 2. Heard Sri.George Varghese Perumpallikuttiyil, the learned counsel for the petitioner, Sri.Suman Chakravarthy, the learned Standing Counsel for Thiruvananthapuram Corporation and the learned Government Pleader. 3. The learned counsel for the petitioner confined his reliefs to give a direction to Thiruvananthapuram Corporation to restore the channel (cheruthodu) that originally existed in Block No.35 of Peroorkada Village in Thiruvananthapuram Taluk. 4. The petitioner owns the properties in Resurvey Nos.17, 32, 33, 60, 61, 62, 63 and 65 of Block No.35 of Peroorkada Village in Thiruvananthapuram District. The petitioner's properties adjoin Edakkulam Thodu with a ridge pathway beside it. 4. The petitioner owns the properties in Resurvey Nos.17, 32, 33, 60, 61, 62, 63 and 65 of Block No.35 of Peroorkada Village in Thiruvananthapuram District. The petitioner's properties adjoin Edakkulam Thodu with a ridge pathway beside it. The Edakkulam Devi Nagar-Karoorkonam Colony Edavazhi was originally a water channel of approximately about 1 to 1 ½ meters in width and a walking ridge. It served as a stormwater drain during rainy seasons and was used by the local residents as a pathway. The natural flow of water in the region is from north to south and the drain used to proceed south finally joins the drains maintained by the Corporation on the side of the Hindustan Latex-Devi Nagar road. 5. As time passed, with a view to developing a new road over the natural drain, some local residents filled up the channel. They represented that steps had been taken by the Kerala Water Authority to lay sewage pipes to facilitate the smooth flow of drain water. 6. Consequently, the natural flow of the water became blocked, and the area started flooding. In her attempt to eliminate the nuisance by way of flooding and restore the channel that originally existed, the petitioner approached the District Collector, Thiruvananthapuram (Respondent No.4), under Section 133 Cr.PC seeking to abate nuisance. She approached the Water Authority by filing a petition to restore the channel which functioned as a drainage. She preferred a petition before the District Collector seeking issuance of directions to the competent authorities to redress her grievances. 7. The learned counsel for the petitioner submitted that the petitioner had approached this Court after exhausting all alternative efficacious remedies. The learned counsel further submitted that the reports submitted by the revenue authorities during different stages of the proceedings in the petitions filed by the petitioner establish that a channel/cheruthodu was in existence in Block No.35 of Peroorkkada Village that adjoins the property of the petitioner and nuisance resulting from flooding during rainy season is a problem faced by the petitioner and the other residents. 8. The learned counsel for the petitioner submitted that the 'cheruthodu' vested with the Corporation under Section 208A of the Kerala Municipality Act, 1994 (for short 'the Act'). 9. Respondent No.9, the Executive Engineer, Minor Irrigation Division filed a counter affidavit stating that the only way to abate the nuisance is to construct a drain in this area. 10. 8. The learned counsel for the petitioner submitted that the 'cheruthodu' vested with the Corporation under Section 208A of the Kerala Municipality Act, 1994 (for short 'the Act'). 9. Respondent No.9, the Executive Engineer, Minor Irrigation Division filed a counter affidavit stating that the only way to abate the nuisance is to construct a drain in this area. 10. Thiruvananthapuram Municipal Corporation (respondent No.13) filed a statement, which reads thus: “It is submitted that at about 50 meters above the road, there is a natural stream flowing to the property of the petitioner and ends in her property, creating a small water body in the property of the petitioner. It is submitted that in order to prevent flooding in the property of the petitioner, it is necessary to construct a drain near the pathway, and the same has to be connected to the main drain flowing through the side of the main road.” 11. The learned Standing Counsel for the Corporation submitted that, as of now, a road with an average width of 1 ½ meters runs through the place where the channel originally existed. The learned Standing Counsel further submitted that the Corporation does not maintain the said road as it is not in its Assets Register. 12. The learned counsel for the petitioner has taken me to the various documents relied on by the petitioner. Exhibit P1 is the copy of the resurvey plan prepared as per the Kerala Survey and Boundaries Act. Exhibit P1 shows the strip of land where originally the thodu existed in sub-division 37. Exhibit P3 is the report submitted by the Village Officer to the District Collector in a proceeding based on the complaint filed by the petitioner. In Ext.P3 report, the Village Officer reported thus: 13. Exhibit P8 is the statement filed by the Deputy Collector (General), Civil Station, Thiruvananthapuram in W.P(C) No.15463/2018 before this Court. In the said statement, the Deputy Collector pleaded thus: “3. It is further submitted that the petition was forwarded to the Village Officer, Peroorkada with a direction to inspect the site and furnish a detailed report in this regard within 4 days. In the said statement, the Deputy Collector pleaded thus: “3. It is further submitted that the petition was forwarded to the Village Officer, Peroorkada with a direction to inspect the site and furnish a detailed report in this regard within 4 days. The Village Officer visited the site on 19.04.2018 and vide Report No.181/18 dated 24.04.2018 reported that an alternate sewerage route was cut open from the western side of the bylane around the other side of the properties adjacent to the bylane North of the petitioner's property to drain the wastewater towards the middle of the petitioner's property. It is also reported that bylane which existed in this area was a 'thodu' cum bylane having a width of 1.5 meters and that was waterlogged during rainy season and water was flowing through the bylane into the culvert situated at the end of the bylane. (sic)” 14. Exhibit P22 is the report submitted by the Tahsildar, Thiruvananthapuram to the Sub Collector, Thiruvananthapuram in a proceeding based on the complaint filed by the petitioner. In Ext.P22, the Tahsildar reported thus: 15. In the proceedings initiated by the Sub-divisional Magistrate, based on the complaint of the petitioner, an enquiry was conducted. After conducting enquiry, the Sub-divisional Magistrate (respondent No.5) recommended the following: 16. Exhibit P29 is the report submitted by the Village Officer, Peroorkada, on 09.08.2024, before the Taluk authorities based on the complaint filed by the petitioner. The relevant portion of the report reads thus: 17. On a perusal of the materials placed by the petitioner, the necessary inference is that originally, a channel (cheruthodu) and a walking ridge on the side of it existed in Block No.35 of Peroorkada Village, which was converted as a road by filling earth. The Corporation cannot take a stand that they have no responsibility to restore the channel that originally existed. 18. As per Section 208A of the Act, the channel shall absolutely vest in the Municipality. Section 208A of the Act reads thus: “208A. The Corporation cannot take a stand that they have no responsibility to restore the channel that originally existed. 18. As per Section 208A of the Act, the channel shall absolutely vest in the Municipality. Section 208A of the Act reads thus: “208A. Transfer of water courses, springs, reservoirs, etc, to Municipalities.- (1) Notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 (8 of 1958) or in any other law for the time being in force, all public watercourses including those which the public have been using so as to give them easement rights over them, (other than rivers flowing through the municipal areas and other areas as may be specified by Government, by notification in the Gazette) whether existing at the commencement of this Act or were made; set up or constructed, thereafter whether made or constructed at the cost of the Municipality or not, along with their river beds, banks, springs, channels for irrigation and drainage, canals, lakes, backwaters, water courses all water whether standing, or flowing streams, reservoirs, ponds, water beds, fountains, wells, 'Kappus' channels stand pipes, and other water reservoirs and any land appertaining there to other than private property shall stand transferred to and shall absolutely vest in the Municipality: Provided that nothing contained in this sub-section shall apply to an irrigation project or any work connected therewith or any land appertaining thereto. (2) Subject to the provisions of this Act, all rights and liabilities of the Government in respect of the water- courses, springs, reservoirs, ponds, water beds, fountains, wells, channels, standpipes and other works connected with water shall be vested on the Municipality under sub- section (1) and shall be the rights and liabilities of the municipality from the date of such vesting. (3) Notwithstanding anything contained in sub-section (1) and sub-section (2), the Government may, after consultation with the Municipality and after giving due consideration to its objections, if any, take over the administration of any public water source and the public land appertaining thereto. (3) Notwithstanding anything contained in sub-section (1) and sub-section (2), the Government may, after consultation with the Municipality and after giving due consideration to its objections, if any, take over the administration of any public water source and the public land appertaining thereto. (4) It shall be unlawful for any person to reserve or take for himself from any land whether poramboke or otherwise transferred or vested in the Municipality under this Act, any tree, earth, sand, metal, laterite, limeshell or other valuable articles which may be notified by the Municipality, without a permit issued by the Municipality in this behalf and in accordance with the terms and conditions thereof and on payment of fee or compensation at such rates as may be fixed by the Municipality.” 19. As per Sections 30 and 30A of the Act, the Corporation is responsible for restoring and maintaining the channel. The learned counsel for the petitioner relied on Baby S. Supriya and Others v. Kollam Corporation and Others [ 2018 (4) KHC 1 ] in support of his contentions. While considering the scope of Sections 30 and 30A of the Act, this Court in Baby S. Supriya observed thus: “12. In my considered opinion, S.30 of the Kerala Municipality Act clearly prescribes the obligations, duties and responsibilities to be discharged by the Municipal Corporation, which reads thus: "30. Powers, functions and responsibilities of Municipality. - (1) The administration of a Municipal area in respect of the matters enumerated in the First Schedule shall, subject to the provisions of this Act and such other provisions as may be prescribed in this behalf and the provisions of other Acts and the rules made thereunder vest in the Municipality and it shall have the power and responsibility to prepare and implement schemes for economic development and social justice in relation to the matters enumerated in the First Schedule: Provided that, it shall be the duty of the Municipality to render necessary service to the inhabitants of the Municipal area in respect of the matters enumerated as mandatory functions in the First Schedule; (2) Municipality shall have such powers, authority and responsibilities of the Government as prescribed, to enable it to function as an institution of self Government in respect of the matters entrusted to it. (3) The Government shall, as soon as may be after the coming into force of this Act, transfer all institutions, schemes, buildings, other properties, assets and liabilities connected with the matters mentioned in the First Schedule, to the Municipalities concerned. (4) The Central and State Plan allocations, for the time being in force and the annual budget allocation in respect of the subjects transferred to the Municipalities by the Government shall be wholly allotted to the respective Municipalities. (5) The municipality shall manage to institutions and administer the schemes transferred to it, subject to the guidelines and technical directions from the Government and in accordance with the State and National policies. (6) Every institutions transferred by Government to the Municipality shall be in the name of that Municipality and shall be known accordingly. (7) The Municipality shall not have power to sell, transfer, alienate or mortgage any property transferred to it under sub-section (3). (8) Government may resume any property transferred to the Municipality, if it is no more required by the Municipality for the purpose for which it was so transferred. (9) There shall be constituted a Managing Committee consisting of not more than fifteen members including its chairman in the prescribed manner for public health institutions transferred to the Municipality. (10) Where any scheme, project or plan involves selection of beneficiaries, the criterion for the eligibility and priority for such selection shall be determined by the Municipality subject to the terms and conditions of the scheme, project or plan and such criteria shall be published in the prescribed manner and shall be intimated to the Ward Committee or the Ward Sabha concerned. (11) The Municipality shall invite applications for the selection of beneficiaries and prepare the draft priority list after making enquiry on the applications received in this behalf and send it for the consideration of the Ward Committee or the Ward Sabha concerned. (12) The Ward Committee or the Ward Sabha shall scrutinize the draft priority list for the selection of beneficiaries in a meeting convened inviting the applicants also and prepare the final list and forward it for the approval of the council. (13) The Council shall not alter the priority of the list prepared by the Ward Committee or the Ward Sabha." 13. (13) The Council shall not alter the priority of the list prepared by the Ward Committee or the Ward Sabha." 13. By virtue of S.30(A), First Schedule is constituted to the Kerala Municipality Act, 1994 , from which, it is evident that, there are Mandatory Functions to be discharged by the Municipality, which reads thus: "A. Mandatory Functions 1. Regulating building construction. 2. Protection of public land from encroachment. 3. Conservation of traditional drinking water sources. 4. Preservation of ponds and other water tanks. 5. Maintenance of waterways and canals under the control of the Municipality. 6. Collection and disposal of solid waste and regulation of disposal of liquid waste. 7. Stream water drainage. 8. Maintenance of environmental hygiene. 9. Management of public markets. 10. Vector control. 11. Regulation of slaughtering of animals and sale of meat, fish and other easily perishable food stuffs etc. 12. Control of eating houses. 13. Prevention of food adulteration. 14. Maintenance of roads and other public properties. 15. Street lighting and its maintenance. 16. Adopt immunisation measures. 17. Effective implementation of National arid State level strategies and programmes for prevention and control of diseases. 18. Establishment and maintenance of burial and burning grounds. 19. Issue of licences to industries, trades and services protecting public interests such as environment, public safety and public health. 20. Registration of births and deaths. 21. Providing bathing and washing ghats. 22. Arranging ferries. 23. Providing parking spaces for vehicles. 24. Construction of waiting sheds for travellers. 25. Providing toilet facilities and bathing ghats at public places. 26. Regulating the conduct of fairs and festivals. 27. Issue licence to domestic dogs and destroy stray dogs. 28. Providing basic facilities in slum areas. 29. Amenities including foot path and road crossing facilities for pedestrians. 30. Preparation of detailed town planning and Action plan for implementation in a phased manner." 14. It is clear from Sl. Nos. 5 and 7 that the construction and maintenance of canals is a mandatory duty of the Municipality. So also, Sl. No. 8 makes it clear that, Municipality is duty - bound for the maintenance of environmental hygiene. 30. Preparation of detailed town planning and Action plan for implementation in a phased manner." 14. It is clear from Sl. Nos. 5 and 7 that the construction and maintenance of canals is a mandatory duty of the Municipality. So also, Sl. No. 8 makes it clear that, Municipality is duty - bound for the maintenance of environmental hygiene. That apart, other functions are also there, which are mandatorily to be discharged including maintenance of roads and other public properties, effective implementation of the national and State level projects and programmes for prevention and control of diseases, and for preparation of detailed town planning and action plan for implementation in a phased manner. Apart from all these, other general functions are also to be carried out by the Municipality. Therefore, in my considered opinion, the 1st respondent Corporation cannot be indifferent to the mandatory functions conferred on them by stating that the construction of the drain has to be carried out through the PWD road, and therefore, PWD is to carry out the construction of the drainage. In my considered opinion, the petitioners are entitled to succeed in this writ petition.” 20. It is submitted that a large number of the public use the strip of land as a way for the ingress and egress to their residences. It is submitted that the Corporation can restore the channel and maintain it without affecting the right of user of the public laying slabs on the channel. Therefore, the following directions are issued: (i) Respondent Nos.4 and 13 shall see that the channel that existed in Block No.35 of Peroorkada Village (referred to in Ext.P1) is restored to its original position without affecting the right of user of that strip of land by the local residents. (ii) Respondent No.13 shall place slabs over the channel to facilitate the use of the strip of land as a way under the supervision of respondent No.4. 21. Respondent Nos.4 and 13 shall comply with the directions as expeditiously as possible, at any rate, within a period of three months from this day. 22. The Original Petition is disposed of as above. Writ Petition (C) Nos.1391 of 2016, 29380 of 2019, 3298 of 2019 and 22952 of 2020 In view of the disposal of Writ Petition (C) No.16901/2021, Writ Petition Nos.1391 of 2016, 22952 of 2020, 29380 of 2019 and 3298 of 2019 stand closed.