IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 WP(C).No. 16280 of 2011(H) ---------------------------------------- PETITIONER(S): ------------------------- ASHARAF, S/O. LATE IBRAHIMKUTTY, KALLARAYATHUKIZHAKKETHIL, KIDANGAYAM NADUVIL, PATHARAM P.O., SOORANADU SOUTH, KOLLAM DISTRICT - 690 567. BY ADV. SRI.V.PHILIP MATHEWS RESPONDENT(S): ---------------------------- 1. THE S.I. OF POLICE, SOORANADU, KOLLAM DISTRICT, PIN - 690 567. 2. THE SUPERINTENDENT OF POLICE, KOLLAM - 691 001. 3. SOORANADU SOUTH GRAMA PANCHAYAT, SOORANADU SOUTH, PATHARAM P.O., KOLLAM DISTRICT, PIN - 690 567, REPRESENTED BY ITS SECRETARY. 4. THE SECRETARY, SOORANADU SOUTH GRAMA PANCHAYAT, SOORANADU SOUTH, PATHARAM P.O., KOLLAM DISTRICT, KOLLAM DISTRICT, PIN - 690 567. 5. THE VILLAGE OFFICER, VILLAGE OFFICE, SOORANADU SOUTH, PATHARAM P.O., KOLLAM DISTRICT, PIN - 690 567. Kss ..2/- ..2.... WPC.NO.16280/2011 H 6. THE THASILDHAR, KUNNATHOOR, SASTHAMCOTTA - 690 521. 7. GEETHA S.PILLAI, W/O. SANKARAPILLAI, GEETHA SOUDHAM, KIDANGAYAM NADUVIL, PATHARAM P.O., SOORANADU SOUTH, KOLLAM DISTRICT, PIN - 690 567. 8. SASIDHARAN PILLAI, S.J.BHAVANAM, MANIDATHUTHEKKETHIL, KIDANGAYAM NADUVIL, PATHARAM P.O., SOORANADU SOUTH, KOLLAM DISTRICT, PIN - 690 567. R1,2,5 & 6 BY GOVERNMENT PLEADER SMT.C.M.CHARISMA R3 BY ADVS. SRI. SIJU KAMALASANAN, SRI.A.MUHAMMED RAFFI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.16280/2011 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF SALE DEED NO.2286/2010 OF SOORANADU SRO. P2: COPY OF PHOTOGRAPHS OF PRESENT POSITION OF THE THODU. P3: COPY OF THE APPLICATION DTD.27/01/2011 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. P4: COPY OF THE DECISION NO.V(3) DTD. 25/02/2011 OF THE SOORANADU PANCHAYAT COMMITTEE. P5: COPY OF THE REPORT DTD. 07/04/2011 SUBMITTED BY THE SECRETARY OF THE 3RD RESPONDENT PANCHAYAT. P6: COPY OF THE REPRESENTATION DTD. 02/05/2011 SUBMITTED BY PETITIONER BEFORE THE 6TH RESPONDENT. P7: COPY OF THE CERTIFICATE DTD. 07/05/2011 ISSUED BY THE 5TH RESPONDENT. P8: COPY OF THE REPRESENTATION DTD. 14/05/2011 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. P9: COPY OF THE ROUGH SKETCH PREPARED BY THE PETITIONER. RESPONDENT'S EXHIBITS: R3(A): COPY OF REPRESENTATION SUBMITTED BEFORE THE RDO AND SERVED ON THE PANCHAYATH ON 12/05/2011. /TRUE COPY/ P.A.TO JUDGE Kss PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------- W.P.(C) No.16280 of 2011 ------------------------------- Dated this the 12th day of July, 2011. J U D G M E N T C.K.ABDUL REHIM, J. Petitioner is the owner of 12.81 Ares of property comprised in Survey No.490/6 and 490/19 of Sooranadu South Village in Kollam District, upon which the petitioner derived title as per Ext.P1 deed. It is stated that a water channel (thodu) is flowing through the midst of the above said property and the water channel run across the panchayat road situated on its eastern side through a culvert constructed by the panchayat, across the road. According to the petitioner, during rainy season water flaws from the culvert into the property of the petitioner through the above said channel (thodu) and is causing damage in the property preventing the beneficial enjoyment. It is stated that the 'thodu' in question is not a public water channel or the property of the 'thodu' is not a puramboke property. Hence 2 W.P.(C) No.16280 of 2011 the petitioner made an attempt to divert the said 'thodu' through the northern boundary of his property, so that the property in question can be used as a single unit. But when the petitioner made an attempt to divert the said 'thodu', the respondents 7 and 8 and their men created obstructions. 2. Eventhough no permission is necessary for diverting the 'thodu', he submitted an application before the 3rd respondent seeking permission for effecting such diversion. Ext.P3 application submitted in this regard was considered by the 3rd respondent and the matter was entrusted to the 4th respondent, the Secretary. After conducting an enquiry, the Secretary reported that there is no puramboke land in the petitioner's property and the 'thodu' in question is situated in the private property and the panchayat has no right over the said water channel. Thereafter, the petitioner approached the 6th respondent seeking permission for making the proposed diversion of the 'thodu'. The 6th respondent conceded through Ext.P7 3 W.P.(C) No.16280 of 2011 report of the Village Officer that, no such permission is required since the 'thodu' in question remains absolutely within the property owned by the petitioner. 3. Inspite of the above factual situation, when the petitioner attempted diversion of the 'thodu' by constructing the water way through his northern boundary, the respondents 7 and 8 have created obstructions. Eventhough the petitioner submitted Ext.P8 complaint before the 1st respondent, no effective action was taken to remove such obstructions. Hence the petitioner is seeking directions from this court to the respondents 1 and 2 to grant adequate police protection for effecting the work without being obstructed by respondents 7 and 8 or anybody claiming under them. 4. Inspite of service of notice from this Court, the respondents 7 and 8 had not chosen to enter appearance or to contest the writ petition. Learned counsel for respondents 3 and 4 conceded about the stand taken by the petitioner with respect to ownership of the property as well 4 W.P.(C) No.16280 of 2011 as ownership of the portion of the land, which is the water channel (thodu). It is also conceded that no permission is required from the panchayat authorities for diverting the thodu through the boundary of the property of the petitioner. Learned Government Pleader appearing for the police officials, on the basis of the instructions received from respondents 5 and 6, conceded that the water channel in question is not a puramboke 'thodu' but it situates within the private property of the petitioner. 5. Considering the factual situation as stated above, it seems that the proposed diversion of the 'thodu' attempted by the petitioner is purely within his private property and it is for the beneficial enjoyment of his property. Since it is not a public water channel, we do not find any legally tenable ground available to respondents 7 and 8 to create any such obstruction. Under the above mentioned circumstances, we are of the opinion that respondents 7 and 8 are not entitled to trespass into the property of the petitioner and to create any physical obstructions. If any 5 W.P.(C) No.16280 of 2011 complaint is received by respondents 1 and 2 regarding any such physical obstructions, the same shall be looked into and appropriate steps shall be taken to remove such obstructions. 6. Therefore, the writ petition is disposed of directing respondents 1 and 2 to take effective actions to facilitate the petitioner to complete the work as proposed, without being obstructed by respondents 7 and 8 or anybody claiming under them. PIUS.C.KURIAKOSE, JUDGE C.K.ABDUL REHIM, JUDGE ami/