Point of Law : A comparison of Kerala Municipality Act, 1994 published in Malayalam and translated version published as per gazette notification would reveal that there is a marked difference in wordings in Section 337 of Kerala Municipality Act, 1994

JUDGMENT :

Petitioner has approached this Court aggrieved by Ext.P7 order issued by the 2nd respondent whereby action was initiated against the petitioner for flowing the waste water from the various flats in the apartment complex to the public drain. Petitioner is a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Act, 1955, and is represented by its Secretary. The members of the petitioner society are the owners of apartments in the building by name Platinum Tower situated at Kakkanad and it is a multi-storied apartment building with 41 units. On 03.08.2011, the petitioner submitted Ext.P1 application before the 2nd respondent, the Secretary of the Thrikkakara Municipality for cutting the road in front of its building for taking connection to the drain at the opposite side of the road. After Ext.P1 application in this regard was allowed, the petitioner deposited an amount of Rs.4,000/- towards the charges for road cutting as is evident from Ext.P2 receipt. For treating the septic waste generated in the apartment, the petitioner has a sewage treatment plant (STP) with a valid consent to operate, issued by the Kerala State Pollution Control Board and the discharge is through the soak pit as stipulated in the consent. Ext.P3 is the consent granted by the Pollution Control Board in this regard. While so, it was noticed that the neighbouring apartment complex by name Platinum Heights which has 27 apartment units was also connected to this STP, and the issues which cropped up between the two associations were resolved by convening a joint meeting by the Kerala State Pollution Control Board and as per Ext.P4 minutes it was decided to permit the Platinum Heights to continue with the connection to the STP of the petitioner. While so, on 18.03.2022 the petitioner was issued with Ext.P5 notice by the 2nd respondent invoking the provisions of the Kerala Municipality Act alleging that the petitioner has illegally connected a pipe to the public drain for discharge of waste water from its premises and called upon the petitioner to dismantle the same within seven days and to pay an amount of Rs.20,000/- as fine. Petitioner submitted Ext.P6 reply stating the true and relevant facts and pointed out that the invocation of Section 337 of the Kerala Municipality Act was misplaced since it deals with a situation where the water flows to any portion of a street except a drain and that even from Ext.P5 notice it is clear that the water was only flowing into the drain by the side of the road and not causing any unavoidable nuisance by soaking into the walls or ground at the side of the drain. Thereafter, petitioner was issued with Ext.P7 notice on 19.04.2022 whereby action was initiated against them. It is aggrieved by Ext.P7 the present writ petition has been filed.

2. The specific contention of the petitioner is that the connection to the drain on the opposite side of the road was made after making an application and after paying the cutting charges as is evident from Ext.P2. After sanctioning the application and collecting the charges, the 2nd respondent has absolutely no authority or jurisdiction to direct the petitioner to dismantle it. The said connection was taken more than a decade ago. The 2nd respondent did not consider any of the contentions taken by the petitioner in Ext.P6 reply while issuing the Ext.P7 notice and therefore issuance of Ext.P7 notice is vitiated by total non-application of mind and arbitrariness. Though Ext.P5 notice specifically invoked Section 337 of the Kerala Municipality Act, 1994 for propping up a case of nuisance, the contentions urged in Ext.P6 reply would clearly demonstrate that the said Section is not attracted even remotely.

3. A detailed counter affidavit was filed by the 2nd respondent mainly contending that Exts.P5 and P7 notices are issued strictly in accordance with the law. The said notices were issued after conducting a site inspection and finding that the petit