IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 SA.No. 515 of 1997(B) --------------------- AS.45/1994 of SUB COURT, QUILANDY OS.50/1990 of MUNSIFF COURT, QUILANDY .................... APPELLANT/1ST RESPONDENT/PLAINTIFF: ----------------- NADUVULLADERI KUNHIKANARAN, PALOLI HOUSE, MUDADI, QUIANDY. BY ADV. SRI.K.I.MAYANKUTTY MATHER SMT.JIJIMOL J.VADAKKEN RESPONDENTS/APPELLANT & RESPONDENTS 2 AND 3/DEFENDANTS: --------------------- 1. PADINJAREPALOLI CHANDUKUTTY, VELLARAKKAD DESOM, MUDADI, QUILANDY TALUK. 2. PAINJAREPALOLI KUNHISNKARAN, VELLARAKKAD DESOM, -DO- -DO- 3. MUDADI PANCHAYAT REPRESENTED BY ITS SECRETARY, -DO- -DO- ADV. SRI.C.VATHSALAN FOR R1 ADV. SRI.SIBY MATHEW FOR R3 ADV.SRI.WILSON URMESE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------- S.A.NO.515 OF 1997 ------------------------------- DATED THIS THE 12TH DAY OF NOVEMBER, 2010 JUDGMENT The substantial questions of law formulated in the appeal are as follows: “a) When the statute (Kala Building Rules) specifically provides certain specifications in the matter of construction of latrine and septic tank, can the same be dispensed with or its rigour liberalised on the reasoning that no nuisance will result consequent to such constructions in violation of the specification? b) Is the Lower Appellate Court justified in interfering with the well considered judgment of the trial court without assigning cogent reasons to upset the finding of the trial court? 2. Plaintiff in O.S.No.50/1990 on the file of the Munsiff's Court, Koyilandy is the appellant. The appeal is directed against the judgment and decree in A.S.No.45/94 on the file of the Sub Court, Koyilandy. The suit was filed for mandatory injunction directing defendants 1 and 2 to demolish the latrine constructed by them and further to restrain them from using the -2- S.A.No.515/97 said latrine which will render water in the paint schedule well unfit for human consumption. The trial court decreed the suit as prayed for. The Lower Appellate Court set aside the judgment and decree of the trial court and dismissed the suit. The plaintiff and defendants 1 and 2 are neighbours. The plaintiff had constructed a house and a well in his property and he is residing therein. Defendants 1 and 2 are in possession of the property lying on the eastern side of the plaint schedule property. The plaint schedule property and the property in possession of defendants 1 and 2 are lying adjacent to to each other and separated by a mud varamba. The 2nd defendant had constructed a latrine in his property, which is very near to the well in the plaint schedule property. It is the plaintiff's case that the tank of the said latrine is seven metres away from the well. He requested defendants 1 and 2 not to construct the latrine so near to the well; but they did not heed his request. Therefore, the plaintiff lodged a complaint to the Panchayat requesting to issue orders prohibiting defendants 1 and 2 from -3- S.A.No.515/97 constructing a tank of the latrine very near to the well in the plaint schedule property. The plaintiff lodged a complaint before the Health Department also. It is pleaded that defendants 1 and 2 are influential people having considerable influence. Therefore, the 3rd defendant has not taken any action against them. It is also pleaded that the construction of the septic tank by the 2nd defendant is in clear violation of the Building Rules. The Building Rules specify that septic tank is to be constructed 15 metres away from any existing well. The plaintiff apprehends that the water in the well will be contaminated and he will not be able to use the water for any purpose and it will cause irreparable injury and damage to him. If defendants 1 and 2 are permitted to use the latrine, the excreta will percolate into the well creating irreparable injury to the plaintiff and his family. On the aforesaid factual matrix the plaintiff sued for reliefs as stated above. 3. The defendants filed separate written statements denying the plaint averments and prayed for dismissal of the suit. In -4- S.A.No.515/97 the written statement filed by the 2nd defendant it is stated that the his property is not any where near the well in the plaint schedule property, that the dirty water goes out from the plaintiff's property as well as from the defendants' property through the drain, which separated two properties and that it is not correct to say that the latrine is at a distance of 7 metres from the well in the plaint schedule property. It is also stated in the written statement that pursuant to the complaint lodged by the plaintiff, the Officers of the Panchayat had visited the place and after inspection on being satisfied that the distance between the latrine and the well is more than seven metres, granted permission to the 2nd defendant to use the latrine on 8/12/1989. It is contended that the Panchayat had granted permission for the construction of the house and latrine. The 3rd defendant Panchayat filed a written statement contending that the 2nd defendant was given permission for construction of a house, but as it is found that the construction violated the Rules and Regulations, the Panchayat had cancelled the licence given to the -5- S.A.No.515/97 2nd defendant and the said fact was informed to him. It is also contended that the Panchayat is not liable for the acts done by the 2nd defendant in violation of the Rules. It is further stated that the plan submitted by the 2nd defendant for licence does not show the existence of the well in the plaint schedule property and that as the plan was presented by suppressing the fact that the well was in existence and on the basis of the complaint filed by the plaintiff, enquiries were made and on that basis the licence granted to the 2nd defendant had been cancelled by the 3rd defendant. It is also stated that the 2nd defendant had submitted an application for renewal of the licence, which was already cancelled for violating the Rules and Regulations; but that application was rejected. 4. The parties adduced oral and documentary evidence. PWs.1 and 2 and DWs. 1 and 2 were examined and Exts.A1 to A6 and B1 to B4 were marked on the side of the plaintiff and defendants respectively. Exts.C1 and C2 were marked as court exhibits. The trial court appreciated the facts of the case -6- S.A.No.515/97 and the contentions raised by the parties. Ext.A1 is the certified copy of the partition deed as per which the plaintiff got title over the plaint schedule property. Ext.A2 is the copy of the receipt for payment of tax. Exts.A5 and A6 are the complaints lodged regarding the construction of the septic tank. 5. PW1 deposed before the court below that the 2nd defendant had constructed a latrine and a tank only 6 metres away from the plaintiff's well. He also deposed that the plaintiff has objected to the construction of the septic tank in violation of the Building Rules. The plaintiff apprehends that unless the Court directs to remove the septic tank, the existence of the tank will contaminate the water in the well situated in his property. PW2 is is a neighbour. He also testified that the water in the plaintiff's well has become unfit for human consumption. The trial court also appreciated the oral evidence tendered by the 2nd defendant, who was examined as DW2. DW-2 deposed that he has constructed a tank and a latrine as per Rules, that the tank had been inspected by -7- S.A.No.515/97 the Health Inspector, who was examined as DW1, that he had completed the tank as per the instruction in Ext.B1 and thereafter the Health Inspector granted permission to use the latrine. He denied the allegation of the plaintiff that the water became contaminated because of the situation of the septic tank. 6. The trial court perused the report and plan submitted by the Commissioner and other materials on record. The report and plan of the Commissioner would show that the distance rule has been violated by the 2nd defendant. One of the conditions stipulated in the permission issued by the Panchayat to the 2nd defendant also shows that the septic tank shall be constructed at a distance of 15 metres from the nearby well. Taking into consideration the evidence and attendant circumstances, the trial court was convinced that the plaintiff has approached the court with a valid and genuine reason as he apprehends that the water which he takes from the well for drinking purpose will be contaminated because of its nearness to the tank constructed in the 2nd defendant's -8- S.A.No.515/97 property. The trial court also relied on Rule 31(7)((i) of the Building Rules, which provides that septic tank or water closet which is not connected to public sewage system has to be constructed only at a distance of 15 metres from well. The plan and report submitted by the Commissioner shows that the distance of the 2nd defendant's tank from the plaintiff's well is just below 27 feet and that the said state of affairs factually show that the 2nd defendant has constructed the tank in violation of the Building Rules and that the plaintiff is entitled to get an order of mandatory injunction against him. Thus the trial court decreed the suit as prayed for with costs as against the 2nd defendant. The trial court issued a direction to the 2nd defendant to demolish the septic tank attached to the latrine constructed by him in his property within a period of 30 days from the date of the order. The trial also issued a permanent prohibitory injunction restraining the 2nd defendant and his men from using the latrine and septic tank in his property, unless and until it is constructed as per the Building Rules -9- S.A.No.515/97 following procedure. Further direction was also issued by the trial court stating that if the 2nd defendant does not comply with the direction within the specified period, the 3rd defendant is directed to get the said tank demolished as per the Rules and procedure. 7. The Appellate Court reversed the findings of the trial court and dismissed the suit. The Appellate Court accepted the contention of the appellant/2nd defendant that he has started to use the latrine only after the Health Inspector issued a certificate certifying that there is no possibility of percolation to the well from the leach pit connected to the latrine. The Appellate Court found fault with the decision of the trial court in discarding the evidence of the Health Inspector. The Appellate Court relied on the evidence of the Health Inspector and held that the reasons stated in paragraphs 14 and 16 of the trial court judgment to discard the evidence of DW1 appear to be baseless. On the same set of evidence the Appellate Court differ from the reasons stated by the learned Munsiff in not placing reliance on the oral evidence of -10- S.A.No.515/97 DW1 and Ext.B2 certificate. The Appellate Court held that the evidence in this case would indicate that DW2 had concreted the bottom of the leach pit under the instruction of DW1 and that DW1 was satisfied that percolation was prevented before granting fitness certificate, Ext.B2. The learned Judge also observed that the main dispute is whether the plaintiff's well water would be contaminated only for the reason that 15 metres distance is not left between the latrine and well. The learned Judge strangely observed that the Panchayat did not examine anybody to hold a view that by leaving 15 metres distance the apprehended percolation could be totally prevented. The learned Judge also observed that if it is established that the apprehended percolation is totally prevented by adopting required precautions, the distance quoted by the Building Rule appears to be immaterial, since it is not based on scientific observations. The Appellate Court also held that it is abundantly proved that the pit is protected resulting prevention of percolation. It was observed that exterior and interior portions of the well are -11- S.A.No.515/97 plastered and therefore percolation through the sides is not possible and that the depth of the well is more than the disputed pit and therefore even remote possibility of the percolation could be over ruled. On the basis of the aforesaid observations, the Appellate Court held that it is not possible to hold a view that the water in the well would be contaminated due to the existence of a sufficiently protected leach pit at a distance of 23 ¾ feet. The learned Judge observed that the object for prescribing 15 metres is a rule formulated only for abating the apprehended percolation, which could be achieved by adopting other alternatives as well. The Appellate Court also held that for the reasons of not adhering to the 15 metes distance rule only, the court cannot presume that the water in the disputed well is rendered unfit for human consumption as observed by the learned Munsiff. 8. On an examination of the reasons stated by the Lower Appellate Court for reversing the judgment and decree passed by the trial court, this Court is of the view that the court's -12- S.A.No.515/97 approach is against law and the materials on record. The contentions proved by facts were also not appreciated. I have gone through the permit issued by the Panchayat. The permit shows that the permit holder is prohibited from installing a septic tank within 15 metres from the nearby well. The relevant rules in the Building Rules quoted in the preceding paragraphs would show that no septic tank can be constructed within 15 metres from the nearby well. The trial court answered the questions after reading the Rules and the evidence in the right perspective. The Lower Appellate Court reversed the judgment and decree by misreading the evidence on record and the Building Rules. The relevant facts, circumstances and the documents were not considered in the proper perspective and so also the effect of those documents on the rights of parties. In the circumstances, this court is interfering with the decisions taken by the Lower Appellate Court. This Court finds that in the facts, evidence and circumstances, the plaintiff is entitled -13- S.A.No.515/97 to the relief sought for. The question of law raised in this case is answered. Accordingly, the appeal is allowed. The judgment and decree of the Appellate Court in A.S.No.45/94 is set aside. The judgment and decree passed by the Munsiff's Court in the suit is restored. There will be no order as to costs. HARUN-UL-RASHID, Judge. kcv.