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2021 Supreme(Online)(KER) 44879
HIGH COURT OF KERALA
N. NAGARESH, J
MUHAMMED RAFEEQ – Appellant
Versus
STATE OF KERALA – Respondent
WP(C)/5538/2021
SRI.P.HARIDAS, SRI.BIJU HARIHARAN, SRI.P.C.SHIJIN, SRI.RISHIKESH HARIDAS, SRI. T.NAVEEN, SRI.N.ASHOK KUMAR, SRI.VIPIN NARAYANAN, SRI.ABHISHEK V.S.
The case establishes the obligation of local authorities to address public health nuisances and enforce compliance with sanitation regulations.
Headnote:
Nuisance - Writ Petition - Kerala Panchayat Raj Act Section 219K - Summary: The court addressed a nuisance claim regarding faecal contamination near a residential well, interpreting Section 219K of the Kerala Panchayat Raj Act, emphasizing health and sanitation standards, and imposing obligations on local authorities for remedial action.
Fact of the Case:
The petitioner alleged that a faecal collection tank installed by the 9th respondent was contaminating his well water. Despite initial inspections deeming the distance compliant with building regulations, evidence showed the water was polluted with harmful bacteria.
Issues: Whether the construction and operation of the faecal collection tank violated statutory health and safety norms, and the responsibilities of local authorities concerning public health.
Ratio Decidendi: The court held that municipal authorities have a duty to prevent pollution that threatens public health under Section 219K of the Kerala Panchayat Raj Act.
Final Decision: Writ petition disposed of with directions for immediate inspection and action on water contamination.
JUDGMENT
Dated this the 5th day of October, 2021 The petitioner, who is a resident of Mulakkuzha Grama Panchayat has filed this writ petition seeking to direct the 1st respondent to depute an officer to abate the nuisance caused by the 9th respondent by removing the faecal collection tank constructed by the 9th respondent. The petitioner has also sought for certain other incidental and consequential reliefs.
2. The petitioner would state that he is a resident of Ward No.III of Mulakkuzha Grama Panchayat. The 9th respondent is having a property on the southern side of the petitioner's property. A private path way exists to the property owned by the 9th respondent from the MC Road, along the western side of the petitioner's property. The said pathway is having approximately 1.5 meter width. According to the petitioner, Pampa Irrigation Canal is also passing hardly 20 meters away from the said pathway.
3. The petitioner states that the 9th respondent constructed a three storied building with lodging facility for migrant workers. The construction itself is illegal, contended the petitioner. The 9th respondent has installed an underground tank on the pathway, for collecting feacal waste from the toilet of the lodge. The said tank is less than 10 metres away from the well of the petitioner, which is the source of drinking water for the petitioner. The tank is hardly 20 Meters far from Pamba Irrigation Canal.
4. The petitioner would state that the waste water and faecal matters are percolating from the said tank to the well situated in the petitioner's property, causing severe pollution.
The petitioner submitted Exts.P2 and P4 complaints to the Panchayat Authorities and Ext.P6 complaint to the Public Health Department of the Government of Kerala. The RDO has addressed the Panchayat Authorities and required to take necessary steps to prevent any health hazards.
5. The learned counsel for the petitioner submitted that as per Ext.P3 report of the Kerala Water Authority, Coliforms and Ecoli are present in abundance in the well water. The water can be used only after disinfection. The learned counsel for the petitioner also relied on Ext.P7 report. In Ext.P7 report, the analysis found that the total Coliforms content is 700/100 ML and Ecoli content is 250/100 ML. In fact no Coliform or Ecoli should be found in any 100 ML sample, contended the learned counsel for the petitioner. 6. All these facts would only show that the tank constructed by the 9th respondent is contaminating the well of the petitioner. The respondents are therefore liable to be compelled to take preventive measures restraining the 9th respondent from further contaminating the drinking water source of the petitioner.
7. The learned counsel for the 6th respondent-
Panchayat submitted that as per Rule 92 of the Kerala Panchayat Building Rules 2011, the statutory distance to be maintained by such tanks from an existing well is only 7.5 metres. The Panchayat Authorities have caused inspection of the site and found that the distance between the well of the petitioner and the tank in question, is more than 11 meters. In such circumstances, it cannot be said that the 9th respondent has violated the Kerala Panchayat Building Rules, 2011. However, the Panchayat is ready to enquire into the grievance of the petitioner as the allegations involve issues of public health.
8. The respondents 2 and 3 also entered appearance and filed their reports. The Standing Counsel for the 2nd respondent-Pollution Control Board stated that on receipt of complaints regarding the existence of such a tank polluting the drinking water in the nearby area, an inspection was conducted by the Pollution Control Board Officials. In fact the 9th respondent is running the Unit without obtaining a Consent to Operate. The Pollution Control Board Officials checked the samples of drinking water in the area. However, the drinking water did not contain Ecoli. The Pollution Control Authorities have already issued a Closure
