IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 16TH SEPTEMBER 2010 / 25TH BHADRA 1932 WP(C).No. 24598 of 2010 (Y) -------------------------- PETITIONER: -------------------- DR.JOSE EMMANUEL, AGED 48 YEARS, DENTAL SURGEON, S/O.CHERIYAN MANI, VATTUKALLEL HOUSE, THALAPPALAM VILLAGE, MEENACHIL TALUK NOW RESIDING AT 1/83A, ARACKAKADAVU, EROOR DESOM, NADAMA VILLAGE, KANAYANNOOR TALUK. BY ADVS. SRI.V.K.ISAC SRI.K.K.APPU RESPONDENTS: ---------------------- 1. TRIPUNITHURA MUNICIPALITY REPRESENTED BY SECRETARY, TRIPUNITHURA MUNICIPALITY, MUNICIPAL OFFICE, TRIPUNITHURA. 2. STATE OF KERALA, REPRESENTED BY SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-1. R1 BY ADV. SRI.V.M.KURIAN, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 24598 OF 2010 -------------------------- Dated this the 16thday of September, 2010 J U D G M E N T The petitioner, a Dentist by profession, has filed this writ petition seeking the following relief: “(a) To issue a writ of prohibition or such other writ, order or direction prohibiting respondents from initiating any action as proposed under Exts.P2, Ext.P6 and Ext.P7 notice during the period allowed under the statute for filing appeal/revision before the Tribunal for Local Self Government Institutions.” 2. Ext.P2 notice dated 12.7.2010 is one issued by the Secretary of Tripunithura Municipality calling upon the petitioner to remove the obstruction caused by him to the flow of surface water along the public road lying on the western side of the petitioner's residence. Upon receipt of Ext.P2, the petitioner submitted Ext.P3 appeal before the Municipal Council. While that appeal was pending, the Secretary of Tripunithura Municipality issued Ext.P6 notice dated 24.7.2010 reiterating the demand made in Ext.P2. A week later, the Secretary of Tripunithura Municipality issued Ext.P7 notice dated 31.7.2010 informing the petitioner that the Council will hear the appeal on 3.8.2010. These notices are under challenge in WPC No.24598/2010 2 this writ petition wherein the petitioner has sought a writ in the nature of prohibition resisting the respondents from enforcing the impugned notices before the period of limitation prescribed for filing an appeal or revision to the Tribunal for Local Self Government Institutions expires. 3. A statement dated 14.9.2010 has been filed on behalf of the first respondent. Paragraph 3 and 4 thereof read as follows: “3. The Municipality received a complaint from the Councilor of Ward No.II alleging that there is flooding of water in the Kadavu road due to the unauthorised filling of the road by the petitioner. Though Municipality engaged its employees to remove the flooding, due to obstruction by petitioner and other residents, the work could not be done. Thereafter both the parties were called for a hearing on 8.7.2010 by the Secretary. Both parties were not amenable to any settlement to remove the accumulated earth. 4. As there was chance of spread of epidemic due to continuous rains, this respondent issued Ext.P2 notice dated 12.7.2010 directing the petitioner to remove the accumulated earth for effecting free flow of water. The petitioner submitted reply raising untenable contentions. The application was rejected and he was directed to take immediate measures to remove the flooding of water. Against Ext.P2 order, petitioner filed appeal before the Municipal Council and also sought for stay of the order passed by the Secretary. On consideration of the appeal, the Chairperson personally visited the spot on 31.7.2010 and directed immediate removal of the obstruction to the flow of water by cutting open a drain for free flow of water to the nearby river. Further the WPC No.24598/2010 3 appeal was posted for hearing on 3.8.2010 and the same was intimated to the petitioner also. However, on 3.8.2010 petitioner informed that he could not appear on 3.8.2010 and requested to post the appeal for hearing to any day after 5.8.2010. In the meanwhile on 2.8.2010 itself a drain was cut open and accumulated water was drained out to the river. Petitioner has filed this writ petition on 3.8.2010 when the appeal was pending consideration before the Council. Due to the pendency of the appeal, the Council has not passed final order in the appeal petition. There is no merit in the contentions raised by the petitioner. Due to the illegal acts of the petitioner, the Kadavu road is getting flooded during rainy season, affecting the public.” 4. It is evident from the statement filed on behalf of the first respondent that Exts.P2 and P6 notices were issued upon a complaint received from the Councilor of Ward No.II about some overt act committed by the petitioner leading to the flooding of the public road. It is stated that though an attempt at conciliation was made on 8.7.2010, it failed and thereupon Ext.P2 notice was issued followed by Ext.P6. It is also stated that aggrieved by Ext.P2, the petitioner has filed Ext.P3 appeal, that the said appeal was posted for hearing on 3.8.2010, that though notice of hearing was given, the petitioner did not appear but sought an adjournment of the hearing and on the next day filed this writ petition. It is also stated that in the meanwhile, a drain was cut open and the water that had WPC No.24598/2010 4 accumulated on the public road was drained out to the river. 5. It is evident from the statement filed on behalf of the first respondent that the appeal filed by the petitioner challenging Ext.P2 notice is pending before the Municipal Council. I am therefore of the opinion that no relief can be granted to the petitioner in this writ petition except to direct the Municipal Council of the Tripunithura Municipality to consider Ext.P3 appeal filed by the petitioner and to take an appropriate decision thereon expeditiously and in any event within one month from today, after affording the petitioner an opportunity of being herd. It is clarified that if the petitioner does not make use of the opportunity afforded to him for a personal hearing, it will be open to the Municipal Council to proceed to dispose of the appeal without affording the petitioner any further opportunity of being heard. The writ petition is disposed of as above. No costs. P.N.RAVINDRAN, (JUDGE) vps WPC No.24598/2010 5