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2021 Supreme(Ker) 868
IN THE HIGH COURT OF KERALA AT ERNAKULAM
DEVAN RAMACHANDRAN, J.
M.K.Mahendran - Appellant
Versus
State Of Kerala - Respondent
WP(C) No. 21269 of 2011
Decided on : 29-09-2021
Advocate Appeared:
For the Appellant : SRI.G.D.PANICKER, SMT.JEENA JOSEPH
For the Respondent: SMT.G.ANADHALAKSHMI, SRI.G.VENU, M/S.NILA HOMES, K.T.THOMAS, SRI.MATHEW B. KURIAN, SRI.SREELAL N.WARRIER, Sri.C.V.MANU VILSON, SRI.V.M.KURIAN, SRI.G.RAJAGOPAL
Point of Law: Merely because pipes are laid so, it will not grant any right over land to Municipality, except when they require to maintain it, which shall be done as per applicable laws.
Headnote:
Constitution of India,1950 - Natural water canal in locality - Denied this with equal vehemence - Petitioners came to Court in year 2011, when their residences were ingurgitated by storm water virtually around-the-year, because traditional channels for draining it had been, over a period of time, filled up in name of 'development'. To exacerbate misery, their residences are lying lower than neighbouring ones and hence collected water stagnates, filling them nearly up to knee level, most time of year - proximate cause projected by petitioners in approaching - Allegedly respondents 3 to 5 had filled up a narrow natural water canal in locality-called 'Pandiparambu Thodu' - Court began hearing matter Secretary of Tripunithura Municipality was directed to explain why no action had been taken until then to evict encroachments in ‘Pandiparambu Thodu’. Secretary, thereupon, filed his pleadings, expressing helplessness.
Finding of the Court: Court but to order personal appearance of Secretary of Municipality submitted that Municipality faced certain technical obstacles, particularly that its Engineers felt that laying of underground pipes may not drain away water from properties of petitioners because of its low-lying attributes - Municipality reported that works of laying of underground pipes had been completed and that water from properties of petitioners had drained full through prayed that this Court grant some more time to Municipality to clear and decongest ‘Pandiparambu Thodu’ - Court direct Municipality to periodically clean it, as also underground drainage now constructed, so as to ensure flow of water through it continually - Municipality to do so and it is so recorded. It thus now brings down curtains on a very long pending case; and that too, with a happy ending - Court records appreciation for Smt. Jeena Joseph -learned counsel for petitioners, in exhibiting great perseverance on behalf of her clients for over a decade - Curiae for having acted diligently and thoroughly much beyond his duty - even having supervised work borrowing time from his professional engagements.
Result: Ordered Accordingly
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. 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 resi
