IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WP(C).No. 21846 of 2009(A) -------------------------------------- PETITIONER(S): ------------------------ 1. R.NARAYANAN KUTTY, PULIKKAL HOUSE, ALIGN STREET, MANNUTHY P.O., THRISSUR. 2. T.P.JAMES, THOTTAN HOUSE, ALIGN STREET, MANNUTHY P.O., THRISSUR. 3. SHEEJA FRANCIS, W/O.FRANCIS, TOTTAN HOUSE, ALIGN STREET, MANNUTHY P.O., THRISSUR. 4. LIYONS JOSE, THOTTAN HOUSE, ALIGN STREET, MANNUTHY P.O., THRISSUR. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): ------------------------- 1. THE THRISSUR MUNICIPAL CORPORATION, THRISSUR, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, THRISSUR MUNICIPAL CORPORATION, THRISSUR. *ADDL. R3 IMPLEADED. 3. ALLIANCE STREET WELFARE AND ACTION COUNCIL, MANNUTHY, THRISSUR, REP. BY ITS CONVENOR SRI.T.S.ANTO. *ADDL. R3 IS IMPLEADED AS PER ORDER DTD. 13.7.2010 IN IA. 9354/2010. R1 &R2 BY ADVS. SRI.K.B.MOHANDAS,SC,THRISSUR CORPORATION SRI.LELLULAL T.G.THUNDATHIL. ADDL. R3 BY ADV. SRI.SHEJI P.ABRAHAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.21846/2009 APPENDIX PETITIONER'S EXHIBITS P:- COPY OF THE DOCUMENT NO.564/2002 DTD. 15.3.2002 REGISTERED IN SRO, OLLUKKARA BY THE IST PETITIONER. P2:- COPY OF THE DOCUMENT NO.18349 REGISTERED IN SRO, OLLUKKARA BY THE IST PETITIONER. P3:- COPY OF THE SETTLEMENT DEED DTD. 24.8.1988. P4:- COPY OF THE PATTAYAM ISSUED IN FAVOUR OF SRI. THOMAS DT.D 3.8.1973. P5:- COPY OF THE SALE DEED DT. 31.5.2006 REGISTERED IN SRO, OLLUKKARA BY THE 2ND PETITIONER. P6:- COPY OF THE SALE DEED DT.D 31.5.2006 REGISTERED IN SRO, OLLUKKARA BY THE 3RD PETITIONER. P7:- COPY OF THE SALE DEED DTD. 31.5.2006 REGISTERED IN SRO, OLLUKKARA BY THE PETITIONER. P8:- ROUGH SKETCH SHOWING THE LIE OF THE PROPERTY. P9:- COPY OF THE COMPLAINT DT.D 20.7.09 FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS R3:- COPY OF THE REPORT AND SKETCH PLAN FILED BY THE GOVT. IN WPC. 36566/07. R3(a):- COPY OF THE LAND RELINQUISHMENT MEMO SUBMITTED BY THE ORIGINAL OWNER OF LAND IN FAVOUR OF THE IST RESPONDENT CORPORATION. R3(b):- PAPER REPORTS NARRATING THE NON IMPLEMENTATION OF DRAINAGE SCHEME MALAYALA MANORAMA DT. 9.6.10. R3(c):- DO. DO. DT.D 10.6.10. R3(d):- PAPER REPORTS NARRATING THE NON IMPLEMENTATION OF DRAINAGE SCHEME IN RASHTRADEEPIKA DTD. 10.6.10. R3(e):- PAPER REPORTS IN MATHRUBHUMI DT.D 14.6.10. R3(f):- COPY OF THE APPLICATION FILED UNDER RIGHT TO INFORMATION ACT BEFORE THE IST RESPONDENT DT.D 20.7.09 AND IT REPLAY. R3(g):- COPY OF THE PLAINT FILED BY THE IST PETITIONER BEFORE THE MUNSIFF COURT, THRISSUR AS OS. NO.2955/10. TRUE COPY P.A. TO JUDGE tss K.SURENDRA MOHAN, J. ------------------------------------------- W.P.(C) No.21846 of 2009 ------------------------------------------- Dated this the 17th February, 2011 JUDGMENT The petitioners are residents of the Thrissur Municipal Corporation. They own plots of land of varying extents within the Municipal Corporation in which, they have constructed residential houses for themselves. Their properties are by the side of a private road having 3.450 metres width which branches towards west from the Align Street, a Corporation road. The petitioners had purchased their properties under similar documents from one Sri.M.T.Varghese, Menchery House, Mukkattukara. Exts.P1 and P2 are the title deeds of the first petitioner. As per Ext.P1 document, the first petitioner has purchased an extent of 8.56 cents of land and as per Ext.P2, he has purchased a further extent of one cent of land. The document of title of Sri.M.T.Varghese mentioned above is Ext.P3 and his pattayam is Ext.P4. As per Exts.P1 and P2, the first petitioner has also been granted a right of way over a private road having 3.40 WPC No.21846/2009 2 metres width. He has also been given the right to take electric, water, cable connection etc. to his property. Similar rights have been given to the other petitioners also. Ext.P5 is the title deed of the second petitioner. Exts.P6 and P7 are the title deeds of the other petitioners. The petitioners have also produced Ext.P8, a rough plan showing the location of the property and the lie of the other properties in the locality. 2. The complaint of the petitioner is that the respondents are proposing to construct a drainage channel by the side of the private road over which they have a right of easement, thus reducing its width. Though they had requested the first respondent- Corporation to construct a drainage channel along the western side of the Align Street so as to connect to the existing drain on that side, the said request was not acceded to. Since they have a right of way over the private road having a width of 3.45 metres, according to them, their right of way would be affected if a drainage is constructed as proposed. Further, it is pointed out that the waste water flowing through the existing drain from WPC No.21846/2009 3 the fish market on the western side of their properties would flow into their properties causing water logging in the area and making life unbearable for them. According to the petitioners, their properties are situate in a low lying area and therefore, the water would only flow down from Align Street into their properties. It is also contended that there is no proposal to connect the drain that is proposed to be constructed along their private road to any other main drainage. Consequently, implementation of the proposal would only cause annoyance, nuisance and discomfort to the petitioners. Therefore, they have filed this writ petition seeking appropriate directions to restrain the Thrissur Municipal Corporation for proceeding with the proposal and for a declaration that the said proposal is violative of Article 21 of the Constitution. 3. As per Order dated 13.7.2010 in I.A.No.9354/2010, the additional third respondent has got impleaded representing the residents of Align Street. The additional third respondent is stated to be an organization formed for the welfare of the residents. According to the WPC No.21846/2009 4 additional third respondent, the first and second petitioners have encroached upon a drainage channel that was in existence and has reduced the same to their possession after filling up the same. Consequently, water logging has been the result, putting the residents to a lot of inconvenience and trouble. The additional third respondent relies on Ext.R3 report produced by the Government and to various paper reports and photographs produced, showing the condition of the road during the rainy season. It is contended that as a result of the encroachment committed by petitioners 1 and 2, the natural source of draining the rain water has been blocked and consequently, the water floods on to the Street and the surrounding properties during the rainy season. Therefore, it is contended that unless the encroachment is removed and the drainage channel made free of all obstructions, the problem of water logging in the area would continue to plague the residents. It was with a view to remedying the above situation that the Panchayat has initiated the impugned action. It is to stop the said proceedings that the present writ petition has WPC No.21846/2009 5 been filed. Therefore, the additional third respondent prays for dismissal of this writ petition. 4. A counter affidavit has been filed on behalf of respondents 1 and 2 contending that the properties purchased by the petitioners originally belonged to one M.T.Varghese and was part of a common property. While selling the property as small plots, the said Sri.M.T.Varghese had provided a common pathway to each plot of land that was sold. The land that was earmarked for formation of the common pathway belonged absolutely to Sri.M.T.Varghese and later on, he surrendered the said property to the Corporation for the purpose of the road. There was also a provision for draining out the waste water from the land. However, the petitioners filled up the said drainage channel and the said act is the cause of the flooding that occurs in the said area. According to the Corporation, on such surrender of the land by Sri.M.T.Varghese, the same was declared as purambokku land and the drainage channel by its side became purambokku thodu, which has been reduced to their possession by petitioners 1 and 2. It was when the WPC No.21846/2009 6 Corporation attempted to restore the purambokku thodu to its original condition that the present writ petition has been filed. Therefore, it is contended by the Corporation that the writ petition may be dismissed. 5. I have heard Sri.Elvin Peter, Advocate on behalf of the petitioner, Sri.K.B.Mohandas for respondents 1 and 2 and Sri.Sheji P.Abraham for the additional third respondent. I have been taken through the pleadings as well as the documents produced. Elaborate arguments have been addressed by the counsel for the contesting parties. I have considered the rival contentions anxiously. 6. Exts.P1, P2, P5, P6 and P7 are the title deeds of the petitioners. A reading of the said documents show that the petitioners have been given only a right of way over an existing pathway having a width of 3.40 metres with liberty to take electric, water, cable and other connections. The recitals clearly show that the title to the property over which the pathway is situate was not conveyed to any of the petitioners. Therefore, Sri.M.T.Varghese continued to be vested with title to the said property. According to the Thrissur Municipal WPC No.21846/2009 7 Corporation, the said title has been surrendered by Sri.M.T.Varghese to the Corporation. Therefore, though no document to evidence such surrender has been produced before me, it appears that the title to the land over which the pathway passes is vested in the Thrissur Municipal Corporation. At any rate, the petitioners do not have title in respect of the said property. The limited right that the petitioners have is the right of way and the right to take electric connection, water connection, cable connection etc. Therefore, the petitioners do not have any right to complain as long as their right of way over the path way of 3.40 metres width is not affected in any manner. 7. According to Mr.Elvin Peter who appears for the petitioner, the construction of a drainage channel over any portion of the 3.40 metres wide pathway would drastically reduce its width and would affect the right of way of the petitioners and others. It is no doubt true that if the width is reduced by the construction of the proposed drainage, certainly, the right of easement of the petitioners would be affected. However, it is common WPC No.21846/2009 8 knowledge that the construction of a drainage channel need not reduce the width of the pathway. The drainage channel could be covered with slabs to restore and maintain the width of the pathway without the same being reduced in any manner. It is for the Corporation to take necessary steps to ensure that the construction of the drainage channel does not reduce the width of the pathway from 3.40 metres. 8. The further contention of the counsel for the petitioner is that the properties of the petitioners are situate in a low lying area, in comparison with the other plots of land abutting the Align Street and the roads both on the north and south of their properties. Therefore, it is contended that the construction of a drainage channel along the side of their private road would result in the flow of water carrying waste from even the fish market on the south-western side into their properties. In such an eventuality, their properties would get flooded with waste water and harmful effluents coming from other properties causing annoyance, nuisance and discomfort to them. It is also contended that the Corporation does not have any WPC No.21846/2009 9 proposal to connect the proposed drainage to any of the main drainage channels and consequently, the water from all the surrounding properties would flow only into the properties of the petitioners. Thus, construction of the drainage channel would cause serious prejudice to the petitioners, their properties and their peaceful lives. 9. In the context of the above submission of the learned counsel for the petitioners, the counsel of Thrissur Municipality was directed to ascertain and to file an affidavit in this writ petition explaining whether there was any proposal to connect the proposed drainage channel to any of the main drainage channels and also to explain how the alignment of such interconnection was proposed. Though time was sought for for filing such an affidavit, the additional counter affidavit filed on 14.2.2011 on behalf of the Thrissur Municipal Corporation is silent on the above aspect. Instead, the affidavit only states that there is no other alternative available for draining rain water from Align Street. I am not in a position to say whether the omission to supply the details that the Municipal Corporation was directed to WPC No.21846/2009 10 furnish was deliberate or not. Be that as it may, the Corporation has no right or authority to construct a drainage channel and drain out water from Align Street in such a way as to cause flooding of the properties of the petitioners. Nor do they have any right to cause nuisance, annoyance or discomfort to the petitioners and their peaceful lives by permitting waste water from other properties including the fish market on the south-western side to flow through the proposed drainage channel along the private road. Therefore, while constructing the proposed drainage channel, the Corporation would certainly have to take adequate and effective safeguards to ensure that the said drainage channel does not result in the flow of water from other properties and the fish market into the properties owned by the petitioners or other similar low lying areas and to result in flooding of the said properties. If any of the petitioners have trespassed into any public water channel that was available in the properties as alleged, the Corporation is certainly within its rights to initiate proceedings for removing such encroachments and to keep such water WPC No.21846/2009 11 channels clear of all obstructions so as to avoid flooding and water logging in the area. It is made clear that the Corporation is free to proceed with the proposal to construct the drainage channel subject to the above safeguards. 10. In the result, this writ petition is disposed of with the following directions:- 1) The Thrissur Municipal Corporation is free to proceed with the construction of the proposed drainage channel along the private road over which the petitioners have been granted a right of way as per the recitals in their sale deeds evidenced herein by Exts.P1, P2, P5, P6 and P7. However, the construction shall not be in such a way as to reduce the width of the road from 3.40 metres. 2) The Corporation shall take adequate and effective safeguards to ensure that the flow of water along the drainage channel that is proposed to be constructed by them does not result in flooding of the properties of the petitioners or in the flow of waste water from other properties into their properties. 3) The Corporation shall be free to initiate WPC No.21846/2009 12 appropriate proceedings in accordance with law for removing encroachments, if any made by any of the petitioners on any drainage channel that has been in existence in the area and to keep the same free of all obstructions so as to ensure the free flow of water through such channels. K.SURENDRA MOHAN, JUDGE css/