Back
2022 Supreme(Online)(KER) 51531
HIGH COURT OF KERALA
P. G. Ajithkumar, J
VIJU V NAIR – Appellant
Versus
CHENGANNUR MUNICIPALITY – Respondent
WP(C)/15243/2022
M.NARENDRA KUMAR, HARSHADEV M., S.HARIKRISHNAN
Municipalities have the authority to prevent private constructions that cause public nuisances, supported by specific provisions in the Kerala Municipality Act.
Headnote:
Nuisance - Public Nuisance - Kerala Municipality Act - Sections 360, 361, 362 - The court emphasized the authority and obligations of the municipality in addressing public nuisance caused by private property modifications, reinforcing the need for adherence to municipal regulations for construction.
Fact of the Case:
Residents filed writ petitions due to water logging caused by a check dam built by a property owner, which obstructed drainage on a public road. The municipality was allegedly unresponsive to complaints about the nuisance affecting local residents and a school.
Finding of the Court:
The court recognized the municipality's duty to address water logging complaints and directed appropriate actions based on representations from affected residents, citing the need for compliance with the Kerala Municipality Act's provisions.
Issues: Whether the municipality acted within its jurisdiction when addressing the water logging issue and the legality of the notices issued to the property owner.
Ratio Decidendi: The municipality has the authority under the Kerala Municipality Act to take necessary action against constructions that obstruct public drainage, ensuring the maintenance of public infrastructure.
Final Decision: The court directed the municipality to consider representations and take appropriate action within specified timelines.
JUDGMENT
These two writ petitions are connected and therefore, I am disposing these writ petitions by a common judgment.
2. I will narrate the facts in W.P.(C). No.15243 of 2022 first.
The prayers in this writ petition are extracted hereunder:
i. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1 to 3 to take immediate steps for abating public nuisance of water logging at the Vellavur-Kizhakkenada road by removing the Thadayana (checkdam) put up by the 4th respondent in his property.
ii. Allow cost of the petition to the petitioner.
iii. Grant such other and further reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case. (SIC)
3. The petitioners are residents of Chengannur town.
They are aggrieved by the water logging of the Vellavur Kizhakkenada road, which is a road at the heart of Chengannur town. According to the petitioners, this road is a connecting road from the State Highway MC road to the Mangalam bye-pass and the Chengannur Mahadevar temple. It is the definite case of the petitioners that the water logging of the said road is caused by construction of a thadayana (check dam) for preventing the passage of water to the Perunkalam Padasekharam. The Chinmaya School is situated in the locality. The 2nd petitioner is the manager of Chinmaya School. The residents of the said locality and also the school children are highly affected by the water logging of the said road. In the said circumstances the petitioners as well as several other persons including school authorities submitted complaints to the respondents for taking necessary action for preventing water logging. It is the case of the petitioners that there was no response from the side of the respondents. In such circumstances, this writ petition is filed.
4. W.P.(C). No.18902 of 2022 is filed by one Nisha Chandran. The prayers in the said writ petition are as follows:
(A). Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit - P3 and quash the same as illegal and without jurisdiction.
(A)(a).Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit - P4 and quash the same as illegal and without jurisdiction.
(B). Grant such other reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (SIC)
5. She is aggrieved by Exts.P3 and P4. Ext.P3 was issued under under Sections 360 , 361 and 362 of the Kerala Municipality Act to restore the free flow of water. Ext.P4 is the show cause notice. The grievance of the petitioner is that Ext.P3 is issued without authority and the Municipality has no jurisdiction to issue such a notice. It is the further grievance of the petitioner that the petitioner made certain construction is his own property and the Municipality has no right to interfere with the same. The learned counsel for the petitioner submitted that the remedy is to construct a drainage for which the Municipality is reluctant. Therefore the above writ petition is filed.
6. This Court considered the contentions of the petitioners in these writ petitions. I perused Ext.P3 in W.P.(C). No.18902 of 2022, which is a notice issued by the Municipality. A perusal of Ext.P3 will show that the Municipality is convinced that there is water logging in the area and certain remedial measures were directed to be done by the petitioner in that writ petition as per Exts.P3 and P4 show cause notice. I am of the considered opinion that this Court need not consider the validity of Exts.P3 and P4 at this stage. If the petitioner has got a grievance against Exts.P3 and P4, she is free to submit a representation before the Municipality and the Municipality can be directed to consider the same in accordance to law.
7. As far as W.P.(C). No.15243 of 2022 is concerned, a statement is filed by respondents 1 and 2. it will be better to extract paragraphs 5 to 11 of th
