Municipalities have the jurisdiction to enforce public nuisance regulations against private constructions obstructing drainage, reinforcing the primacy of public welfare over private interests under municipal law.

JUDGMENT

S. Manikumar, C. J.

Before the writ court, two persons, viz., Viju V. Nair and Ashok C., who were aggrieved by the water logging of Vellavur Kizhakkenda road, Chengannur, have filed W. P. (C) No. 15243 of 2022, seeking the following relief:-

“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.”

2. Yet another person one Ms. Nisha Chandran, who was aggrieved by the issuance of Ext. P4 show cause notice, has filed W. P. (C) No. 18902 of 2022, seeking the following reliefs:- “[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.”

3. As both the writ petitions relate to the issue of water logging on Vellavoor – Kizhakkenda road, causing inconvenience to residents and for restoration of free flow of water, both writ petitions were taken up together and disposed of by common judgment dated 11.07.2022.

4. After considering the rival submissions, writ court ordered thus:-

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 the statement:

“5. However, in the 1st quarter of the year 2022, it is known that the daughter of the 4th respondent, namely, Ms.Nisha Chandran, Chennamvelil, Aarattupuzha, Aranmula purchased a portion of the 1st petitioner's ancestral property. She unilaterally closed down the storm water drainage route passing along her property by constructing a cement concrete 'check dam' across the water flow, thereby leading to severe blockage and water logging on the adjacent Vellavoor-Kizhakkenada public street.

6. The 2nd respondent came to know that the above purchaser constructed the said check dam during the course of construction of a private street to her property from the above municipal road in the 1st quarter of year 2022. Such laying of new private street is done without the mandatory prior approval of the municipality u/s. 360 of the Kerala Municipality Act, 1994 . A prior clearance from the local body in the creation of new private street would have ensured adequate gradient approach, levelling and drainage at such private street viz-a-viz the adjacent public street.

7. Respondents 1 and 2 have received Exts. P2, P5, P6 and P10 representations from the petitioners and similarly situated complaining of water logging along the municipal street.

8. Consequently, 2nd respondent issued notice no. E1- 2609/22 dt.27.05.2022 calling upon the owner of property to take urgent steps to restore flow of storm water along the pre-existed drainage route.

9. However, so far the property owner failed to obey the directive. Consequently, 2nd respondent has now issued a show cause notice u/s.361 of the Kerala Municipality Act calling upon property owner to show caus