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2017 Supreme(Ker) 903

IN THE HIGH COURT OF KERALA AT ERNAKULAM
DEVAN RAMACHANDRAN, J.
A. Abdul Rasheed - Petitioner
Versus
The State of Kerala, Rep. by The Principal Secretary to Government, Revenue Department & Others - Respondents
W.P.(C) Nos. 16280 of 2007, 24182 of 2008, 29162 of 2010, 38250 & 33282 of 2010 & 22769 of 2012
Decided On : 23-08-2017

Advocates Appeared:
For the Petitioner: Anil Thomas (T), K.V. Reshmi
For the Respondents: Renjith Thampan, N. Nandakumara Menon, P.K. Manojkumar, P. Benjamin Paul, Ambika Devi, Joseph John

Headnote:

Kerala Water Supply and Sewerage Act 1986 - Section 46 A - Private property - Connection of pipeline - Proposed construction of Building - Condition of leaving set back area - Held, Permission for construction can be subject to a condition that before they are allowed to start construction based on this building permit, the Secretary of the Thiruvananthapuram Corporation shall call the petitioners and the concerned competent officer of the Water Authority for a hearing and verify, from the building permit now approved, whether there is a minimum of 5 meters set back from the center of the pipeline till the proposed construction on either side

JUDGMENT :

1. At the epicenter of the controversies in these cases, is a Water pipeline laid by the Kerala Water Authority in the city of Thiruvananthapuram under an erstwhile water supply scheme called 'The Willington Water works.' According to the Water Authority, this pipeline was laid as early as in the year 1929, and started functioning in the year 1933. It appears that certain portions of this pipeline run through the properties owned by the various petitioners in this batch of writ petitions.

2. The Water Authority claims that the properties claimed by the petitioners are in fact water works 'puramboke', and that they are entitled to hold possession and ownership over the same. The essential contention of the Water Authority is that unless they hold possession and ownership of the lands in question, the water pipes installed sub terrain, cannot be maintained or repaired, if such cause arises.

3. The petitioners in W.P.(C)Nos.24182/2008, 38250/ 2010 and 22769/2012 are co-owners of 31 cents of land comprised of in Block No.1, Re.Sy.No.5 of the Sasthamangalam Village. As regards W.P.(C)Nos.16280/2007 and W.P.(C) No. 29162/2010 are concerned, they are both filed by the same petitioner, who claims to be the owner of 17 cents of land comprised of in Survey No.184/3-A of the same village, namely, Sasthamangalam Village. It appears that the writ petitioners in W.P.(C)No. 24182/2008 and the two other connected matters intend to make certain constructions in their property, which is objected to by the Water Authority whereas the writ petitioner in W.P.(C)No.16280/2007 and W.P.(C) 29162/2010 have been asked to remove certain offending constructions in his land on the allegation that such properties are also part of the water works puramboke.

4. The petitioners in W.P.(C)No.24182/2008, who will herein after be called as K.G. Abraham and his sons, attempts to construct a building in the 31 cents owned by them, for which purpose, they made an application for a building permit before the Thiruvananthapuram Corporation. When the Thiruvananthapuram Corporation refused to issue the building permit, they filed W.P.(C)No.24182/2008 seeking a direction for the issuance of the building permit notwithstanding the fact that there is an underground pipeline running through a portion of their property and for such other incidental reliefs. It appears that while so, proceedings were initiated by the District Collector to cancel the mutation of the properties remaining in their names, which led to the petitioners filing W.P.(C)No.22769/2012 challenging such orders. Consequent to the cancellation of the mutation, the Thirivuvananthapuram Corporation issued a show cause notice and a stop memo to the petitioners and it was also threatened that the building permit would be cancelled. This lead to Sri. K.G. Abraham and his sons to challenge the show cause notice and orders of the Corporation of Thiruvananthapuram by filing W.P.(C)No. 38250/2010.

5. When such proceedings were initiated by K.G. Abraham and sons, the Water Authority did not sit quiet. They filed W.P.(C) No.33282/2010 against K.G. Abraham and his sons, seeking that the building permit granted to them by the Thiruvananthapuram Corporation be set aside and that the order cancelling the mutation of the land in their name be sustained.

6. As regards W.P.(C)No.16280/2007 is concerned, it has been filed by a person called Sri.Abdul Rasheed. This writ petition was filed challenging a notice issued by the District Collector, under the provisions of Section 12 of the Land Conservancy Act, on the allegation that the petitioner's property is part of the water works puramboke. While the writ petition was pending, the Tahsildar issued an order, which has been produced on record as Exts.P18 and P18 (a) finding that the properties owned by the petitioners are not puramboke but patta land. However, the District Collector went on to issue final orders cancelling the mutation which lead to the petitioner to file































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