IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 15TH JANUARY 2008 / 25TH POUSHA 1929 WP(C).No. 24440 of 2007(H) -------------------------- PETITIONER: ------------ MANILAL C.K., AGED 40 YEARS, S/O. LATE KANNUKUTTY, CHAKKANTHARA HOUSE, EDAVANAKKAD P.O., ERNAKULAM-682 502. BY ADV. SRI.V.PHILIP MATHEW RESPONDENTS: ------------- 1. EDAVANAKAD GRAMA PANCHAYAT, REPRESENTED BY SECRETARY, EDAVANAKAD P.O., ERNAKULAM. 2. HEALTH SUPERVISOR, COMMUNITY HEALTH CENTRE, MALIPURAM, ELAMKUNNAPUZHA PANCHAYAT, ERNAKULAM. 3. R.D.O. FORT KOCHI, ERNAKULAM. 4. DISTRICT COLLECTOR, ERNAKULAM. 5. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, KERALA GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 6. SHAJI, S/O. VIDYADHARAN, KANDATHIL HOUSE, EDAVANAKAD P.O., ERNAKULAM. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.K.I.ABDUL RASHEED THIS WRIT PETITION (CIVIL) HAVING COME UP ADMISSION ON 15/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C.KURIAKOSE, J. ------------------------- W.P.(C) No. 24440 of 2007 --------------------------------- Dated, this the 15th day of January, 2008 J U D G M E N T The case of the petitioner is that he is the absolute owner of the properties covered by Exts.P1 to P4 and that respondents 1, 2 & 4, namely the Edavanakkad Grama Panchayat, the Health Supervisor of the Community Health Centre, Malippuram and the District Collector, Ernakulam, are attempting to open a stream through the petitioner’s property on the assumption that the petitioner had filled up an existing stream through which water was flowing. Petitioner was issued with Ext.P5 notice by the Panchayat requesting the petitioner to appear before the Panchayat for a discussion in connection with complaints submitted by 24 persons to the effect that the petitioner had filled up a water stream. On enquiry with the Panchayat Office, the petitioner was informed that a similar complaint was pending before the 3rd respondent RDO also. Therefore, the petitioner filed Ext.P6 representation before the 3rd respondent RDO. After Exts.P5 & P6, there was no response from the sides of the Panchayat and the RDO. Then all of a sudden, the 2nd respondent Health Supervisor issued Ext.P7 notice dated 11/07/2007 to the petitioner directing him to open the stream WP(C) No. 24440/2007 -2- allegedly closed down by him within 10 days. On receiving Ext.P7 petitioner submitted Ext.P8 representation before the 2nd respondent praying that the proceedings initiated against him be dropped. According to the petitioner, he has not closed down any stream as alleged. Water was flowing through the side of the pathway on the northern side of the petitioner’s property and the flow of water was blocked by one Leena, who is the niece of one Parvathy, and also by one Sajeev. The said Leena is looking after the properties of Parvathy. There was another ‘Thodu’ on the southern side of Parvathy’s properties which was blocked in June 2007 by Joshy (H/o. Leena) and Sajeev etc. Free flow of water is possible only if block created by the above mentioned persons is cleared. Petitioner has also received Ext.P9 communication from the District Collector which was sent to the Panchayat. It is stated in Ext.P9 that the District Collector has received a complaint from Shaji & Others regarding filling up of the stream and the Secretary of the Panchayat shall take immediate steps for opening the stream. On receiving Ext.P9 petitioner submitted Ext.P10 further representation before the President stating that he is not responsible for the said blockade of free flow of water. Since there WP(C) No. 24440/2007 -3- was no response to Ext.P10, he submitted Ext.P11 representation by way of reminder. In spite of Ext.P10 & P11, the President has again issued Ext.P12 notice to the petitioner on 27/07/2007 directing the petitioner to open the ‘Thodu’, so as to facilitate free flow of water. On receiving Ext.P12 the petitioner submitted Ext.P13 representation on 31/07/2007 and for that representation there is no response so far. Petitioner alleges that the President, Secretary, Vice President, Members of the 1st respondent Panchayat and certain other persons including the 6th respondent came to his house on 09/08/2007 and informed him that they will cut open the stream through the petitioner’s property on 12/08/2007. 2. Raising various grounds, the petitioner prays in this writ petition that Exts.P5, P7, P9 & P12 be quashed and that a direction be issued to the respondents 1 to 5 not to interfere with his properties. Counter affidavits have been filed by the 1st respondent Panchayat and 6th respondent, to which a reply affidavit has been submitted by the petitioner. Through the counter affidavits, the respondents deny the claims of the petitioner and alleges that a ‘Thodu’ vested in the Panchayat has been filled up by the petitioner and that unless the blockade in the flow of water is removed, the WP(C) No. 24440/2007 -4- neighbouring properties including that of the 6th respondent stand the risk of getting flooded and health related problems are also likely to crop up in the neighbourhood. The 2nd respondent Health Supervisor of the Community Health Centre has filed a report in which also it is contended that the ‘Thodu’ has been in existence even prior to 1964. Unless the blockade is removed, the result will be flooding on neighbouring properties. 3. Through his reply affidavit, the petitioner reiterates these contentions. 4. I have heard the submissions of Shri.Philip Mathew, learned counsel for the petitioner, Shri.K.A.Abdul Rasheed, learned counsel for the Panchayat, Shri.Jaju Babu, learned counsel for the 6th respondent and learned Government Pleader also. 5. I am of the view that the issue, whether the ‘Thodu’ in question is a ‘Thodu’ vested in the Panchayat or whether it is the absolute private property of the petitioner, may ultimately have to be resolved after adjudication in a competent civil court. Petitioner’s remedies before the competent civil court are left open. In the meanwhile, considering the urgency of the situation projected by the respondent I direct the 4th respondent District WP(C) No. 24440/2007 -5- Collector to summon all the parties and to take a decision after hearing the petitioner, the Secretary of the Panchayat as well as the defacto complainant. Since it is seen that the direction in Ext.P9 was issued by the District Collector without hearing the petitioner, the District Collector will conduct hearing as directed above at the earliest, at any rate, within a period of two months of petitioner placing a copy of this judgment before the District Collector. The petitioner and the Panchayat can raise all available contentions before the District Collector. Considering the above direction, I further direct that the order of status quo which is directed to be maintained by this Court will continue to be maintained till the Collector passes orders. Thereafter the Collector's order will operate subject to any order which may be passed by a competent civil court. This writ petition is disposed of as above. (PIUS C.KURIAKOSE, JUDGE) jg