IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 RSA.No. 1049 of 2009() ---------------------- AS.72/2000 of SUB COURT,ATTINGAL OS.345/1997 of MUNSIFF COURT,VARKALA .................... APPELLANT/APPELLANT/DEFENDANT --------------------------------------- PUSHPARAJAN, S/O.BHASKARAN, VAYALIL VEEDU, VAKKOM DESOM, VAKKOM VILLAGE, FROM MUKKUVANVILAKATHU VEEDU, VAKKOM DESOM, VAKKOM VILLAGE. BY ADV. SRI.D.KISHORE RESPONDENT/RESPONDENT/PLAINTIFF ------------------------ P.K.SUKUMARAN, S/O.KRISHNAN, SARALA BHAVAN, VAKKOM DESOM, VAKKOM VILLAGE, THIRUVANANTHAPURAM DISTRICT. ADV. SRI.NAGARAJ NARAYANAN FOR R1 SRI.SAIJO HASSAN FOR R1 SRI.SABU SREEDHARAN FOR R1 SRI.RAFEEK. V.K. FOR R1 SRI.BENOJ C AUGUSTIN FOR R1 SRI.PRATHAP PILLAI FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2010, ALONG WITH RSA NO. 1050 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.Nos.1049 and 1050 of 2009G --------------------------------------- Dated this 23rd day of March, 2010 JUDGMENT These appeals arises from common judgment and decree of learned Sub Judge, Attingal in A.S.Nos.72 of 2000 and 71 of 2000, respectively arising from common judgment and decree of learned Munsiff, Varkala in O.S.Nos.345 of 1997 and 342 of 1997, respectively. Appellant filed O.S.No.342 of 1997 (which is the leading case) seeking decree for prohibitory injunction against demolishing the latrine and septic tank constructed by him in the suit property which he claimed title and possession as per assignment deed No.1231 of 1991. Appellant claimed that in connection with construction of a residential building he, after obtaining permission from the local authority constructed a latrine and septic tank which are situated about 25 meters away from the well situated in the property of respondent but, respondent is trying to trespass into the suit property and demolish the latrine and septic tank. Respondent filed O.S.No.345 of 1997 for a decree for prohibitory injunction to restrain appellant from using the said latrine and septic tank alleging that the latrine and septic tank are constructed near her well with the possibility of drinking water in the well getting contaminated. It is her case that appellant had not obtained sanction from the panchayath and that construction is in violation of the Kerala Municipality Building Rules (for short, “the R.S.A.No.1049 and 1050 of 2009 2 KMBR”) and suppressing the material facts. It is also her case that construction was made violating order of the Executive Magistrate, Chirayinkeezhu to whom she had preferred a complaint. Trial court observed that perusal of Ext.A4 would show that construction of the latrine and septic tank were in violation of the KMBR, in that a request was made to the panchayath for permission to construct bath room but, what was constructed by the appellant was latrine and septic tank. Trial court was also of the view that appellant had tried to avoid order passed by Executive Magistrate (Ext.B3) by avoiding to receive the same and in the meantime constructed the septic tank and latrine. Trial court noted that application for permission to construct (bath room) was put up before the panchayath on 15-11-1997 and the same day sanction was granted which indicated that panchayath had not enquired the matter. The further finding is that appellant had not maintained the statutory distance while constructing the latrine and septic tank. On these grounds O.S.No.342 of 1997 was decreed and O.S.No.345 of 1997 was dismissed. Appellant challenged the common judgment and decree but, in vain. Hence the second appeals. It is contended by learned counsel for appellant that the KMBR was made applicable to the panchayaths in the State only as per notification dated 27-07-2007, prior to that no permission was required from the panchayath for construction of a latrine unless KMBR had been made applicable to the panchayath concerned by a special resolution under section 274 of the Kerala Panchayath Raj Act (for short, “the Act”). There is no case or evidence that before 27-07-2007 the KMBR was R.S.A.No.1049 and 1050 of 2009 3 made applicable to the panchayath concerned. Hence courts below went wrong in holding that construction of the latrine and septic tank violated the KMBR. It is alternatively contended by learned counsel that even if it is assumed that the KMBR applied, no question of violation of statutory distance arose since as per Rule 104(4) of Chapter 16 of the KMBR prohibition is only for construction of sock pit, earth closet or septic tank within a radius of 7.5meters of the well. Evidence shows that distance at the least between the latrine/septic tank of the appellant and the well of the respondent is 10 meters. Still, courts below illegally held that distance rule had not been complied by the appellant. Learned counsel argued that sanction from the panchayath concerned was not necessary for construction of the latrine/septic tank since as stated earlier the KMBR was made applicable to the panchayath only on 27-07-2007 and before that, under section 220(b) of the Act panchayath authorities were to consider only whether construction of the building is in accordance with the distance rule from the public way adjoining the plot where the building is constructed. Learned counsel would contend that as a matter of precaution appellant had obtained Ext.A4, sanction from the local authority and it was not correct for the courts below to have presumed that obtaining of sanction on the date of the application itself was tainted. Learned counsel for respondent would contend that application of KMBR was not a matter in dispute in the courts below and hence it is not open to the appellant to canvas that point at this stage. Learned counsel would contend that health hazards arising R.S.A.No.1049 and 1050 of 2009 4 from contamination of drinking water was one of the grounds on which user of the impugned latrine/septic tank was sought to be prevented and evidence on record would show that the soil is loose as it is adjascent to the lake. 2. So far as the contention based on health hazards or other nuisance is concerned, I must say that no acceptable evidence in that line is let in by the respondent. In Exts.C1 and C2 distance between septic tank and well is given as 16 meters while in Ext.C3, another report that distance is stated as 10 meters. Ext.X1 states the distance as 14.5 meters. But from the mere proximity if any of the well from the septic tank alone no inference that drinking water contaminated can be drawn. That is a matter to be decided after examination of the water in the well and also taking into account the nature of the soil and possibility of percolation of waste material from the latrine and septic tank into the well. As I stated evidence in that way is lacking and hence no decree could be granted on the ground of health hazards or other nuisance. 3. So far as application of KMBR is concerned, learned counsel submits that it was made applicable to the panchayath only with effect from 27-07-2007 and that if the KMBR was to be applied prior to that day it required a special resolution under section 274 of the Act. Section 274 of the Act deals with extension of the provisions of the municipal law or the rules thereunder (which includes the KMBR) and states that the Government may, whether at the request of the panchayath or otherwise, by notification in the Gazette, declare that R.S.A.No.1049 and 1050 of 2009 5 any of the provisions of the law relating to Municipalities in the State in force for the time being or of any rules made thereunder shall be extended to, and be in force, in a panchayath area or any specific place therein. There is no evidence to show that prior to 27-07-2007 any such resolution was passed by the panchayath concerned so that the KMBR was made applicable to that panchayath and hence it was necessary for the appellant to have obtained permission from the panchayath before making construction of latrine/septic tank. I think that is a matter on which evidence is required. Respondent has to be given an opportunity to show that the KMBR was made applicable to that panchayath before 27-07-2007. 4. The more forcible argument is that even if it is assumed that the KMBR was made applicable to the panchayath before 27-07- 2007 prohibition as provided under Rule 104(4) of the said rule was only against construction of latrine, septic tank etc. within a radius of 7.5 meters from the well. In this case, going by Exts.C1 to C3 and X1, minimum distance at the least is 10 meters. Hence even if it is assumed that the KMBR had been made applicable to the panchayath during the relevant time Rule 104(4) must apply and the construction did not offend that rule. 5. Then the next question is whether prior sanction of the local authority was required for construction of latrine and septic tank. Learned counsel invited my attention to section 235(b) of the Panchayath Raj Act. That provision was introduced with effect from 01-10-1999 which obviously does not apply to the facts of this case. R.S.A.No.1049 and 1050 of 2009 6 What then applied is Section 220(b) of the said Act. As per that provision restriction is for construction of building or structure other than a compound wall in any land abutting any National Highway, State Highway, District road or any other roads notified by the Village Panchayath within a distance of 3 meters from the boundary of his land abutting the road. That provision has nothing to do with construction of latrine/septic tank. Hence, unless it is shown that the KMBR was made applicable to the panchayath concerned prior to 27-07-2007 the question of getting prior sanction of the panchayath for construction of latrine/septic tank did not arise. As regards that point I stated that respondent has to be given an opportunity to prove that the KMBR was made applicable to that panchayath during the relevant time. In the above situation, judgment and decree of the courts below permanently prohibiting appellant from making use of the latrine and septic tank in his property cannot be sustained. I answer the substantial questions of law framed in the above lines. 6. In the light of what I have stated above, a remand of these cases to the trial court for fresh disposal has become necessary. To decide whether prior sanction of the panchayath was required for construction of the latrine/septic tank respondent has to show that the provisions of KMBR was made application to the panchayath during the relevant time as provided under section 274 of the Act. It will be open to the respondent to adduce such evidence. It will also be open to the respondent to prove that due to the impugned latrine and septic tank there is the possibility of drinking water in the well situated in her R.S.A.No.1049 and 1050 of 2009 7 property being contaminated resulting in health hazards and other nuisances. It will also be open to the respondent to prove what all precautionary measures appellant has to take to prevent contamination of drinking water in the well due to the use of the latrine and septic tank. 7. It is contended by learned counsel that there was an order of injunction restraining appellant from using the latrine and septic tank. The question whether use of the latrine and septic tank poses any health hazard to the respondent is yet to be decided. Hence I direct that there will be an order of injunction restraining the appellant from using the impugned latrine and septic tank till the disposal of the suit. Resultantly these appeals are allowed by way of remand. Common judgment and decree of the trial court are set aside and these cases are remitted to the court of learned Munsiff, Varkala for fresh disposal in the light of the observations made above. Parties shall appear in the trial court on 15-05-2010. Registry shall send the records of the case to the trial court forthwith. No cost. THOMAS P JOSEPH, JUDGE Sbna/