-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 317 OF 2006 Shri Vishnu R. Kurdikar (since deceased) 1(a) Smt. Veena V. Kurdikar (since deceased) represented through their legal heirs herein below 1(b) Shri Anand V. Kurdikar 1(c) Shri Satish V. Kurdikar 1(d) Nita V. Kurdikar 1(e) Shri Shashikant V. Kurdikar 1(f) Shri Ravindra V. Kurdikar 1(g) Geeta V. Kurdikar 1(h) Shri Umesh V. Kurdikar All r/o Fontainhas, Mala, Panaji, Goa. 1(i) Smt Savita Chandrakant Cuncolienkar 1(j) Shri Chandrakant Cuncolienkar Both residing at Borim, Goa. …... Appellants/ Original Plaintiffs V e r s u s 1. State of Goa Through the Chief Secretary, Secretariat, Panaji, Goa. 2. The Chief Engineer, P.W.D., Government of Goa, Altinho, Panaji, Goa. 3. The Executive Engineer, P.H.E., W/Div. III P.W.D., Government of Goa, Panaji, Goa. FA-317-06 -2- 4. The Chief Officer Panjim Municipal Council, Panaji, Goa. 5. Mr. Govind V. Naik, (since deceased) through L.Rs 5(a) Smt. Susheela Govind Naik, 5(b) Shri Krishna Govind Naik 5(c) Mrs Sharda Krishna Naik All r/o House No.64, Ward 6 Fontainhas, Panaji, Goa. 5(d) Mrs Rajani Venkatesh Kamat 5(e) Mr Venkatesh Kamat, Both r/o. Cortalim, Sancaole, Goa. …... Respondents Ms. A. Fernandes, Advocate for the Appellant. Coram :- F. M. REIS, J Date : 14 th December, 2011. ORAL JUDGMENT Heard Ms. A. Fernandes, learned Counsel appearing for the Appellants. 2. The Respondents though served, failed to remain present. 3. The above Appeal challenges the Judgment and Decree dated 03.08.2006, passed by the learned Addl. District Judge, at Panaji, in Civil Suit no. 86/2004. The Appellants filed the suit on the ground that they are residing in the house bearing no. 62 of ward no.6 at Portais, Panjim, and that the said house is FA-317-06 -3- shown in the survey records under Chalta No.81 of P.T. Sheet 91 of Panaji city. It is further their case that the house is indicated under Chalta no. 80 and the said land is in possession of the Appellants for the last over 40 years. It is further their case that there is a well located in the property surveyed under Chalta no. 80 and they are using the water from the said well for their domestic purpose as well as for their drinking purpose. It is further their case that there is shortage of water in Panjim City which makes the water of the well essential for daily chores. It is further their contention that the Respondent no.5 along with Respondent nos. 2 and 3 were trying to put a sewage chamber inside the said property on the edge of the said well since 1982. The Appellants raised objections to such activities on the part of the Respondents but further in 1988 they learnt that the activity would be restarted by the Respondents. It is further their case that if the inspection chamber is allowed to be put up in the suit property, there is likelihood of the water of the suit well being contaminated or polluted thereby depriving them from the only source of drinking water. It is further their case that as such they are entitled for injunction to restrain the Respondents from interfering in the suit property and the suit well and directing them not to built any sewage chamber at the edge of the suit well and that the same should be located at a distance of not less than 50 metres from the suit well. 4. The suit came to be resisted by the original Respondent no.5 who filed their written statement and it is their case that they have sought necessary permission from the P.W.D. for connecting the sewage chamber in the public passage owned by the Government. It is further their case that the original FA-317-06 -4- Appellants themselves have taken sewage connection passing near to their well. It is also their contention that there is a Government policy that all open latrines are prohibited and that the machinery has been put in place under the Goa, Daman & Diu Public Health Act, 1986. It is further their case that no harm or prejudice shall occasion to the Appellants in case such sewage passes through the Government passage and that it is the responsibility of the Government to protect such sewage systems. For the other reasons stated in the written statement, it was submitted that the suit deserves to be rejected. 5. The learned Judge after framing the issues and recording of evidence by the impugned Judgment dated 03.08.2006, dismissed the suit filed by the Appellants. 6. Ms. A. Fernandes, learned Counsel appearing for the Appellants has assailed the impugned Judgment and pointed out that in case the Respondents are permitted to construct sewage chamber, there is every likelihood of the well water being contaminated. Learned Counsel further pointed out that in case the Appellants are deprived to drinking water, it will cause grave and irreparable injury to the Appellants. It is further her case that Section 303 of the Goa Daman and Diu Municipalities Act, 1968, Rule 26 clearly provides that where the arrangements are not made by the Government or by the Council for the removal of the waste water by the drainage by provision of public dran sewer, etc. it will be obligatory for every applicant for a new construction or any alteration, addition, etc. to submit the application accompanied by plans for properly designed septic tanks and soak pits FA-317-06 -5- or any other approved waste disposal system within the curtelage of the plot.Any soak pit/septic tank system or any other approved system shall be at least 15 mtrs. away from any existing drinking water well in the vicinity of the site. The learned Counsel further pointed out that the inspection chamber is located at a distance of less than 15 metres and, as such, the question of permitting such sewage system to be situated at the site, does not arise at all. The learned Counsel has taken me through the impugned Judgment and evidence on record and pointed out that the learned Judge has misconstrued the relevant provisions of law and has passed an erroneous Judgment. The learned Counsel further submits that the impugned Judgment deserves to be quashed and set aside. 7. The Respondents though served, have remained absent. 8. Having heard the learned Counsel appearing for the Appellants and having gone through the material on record, the following point for determination arises in the present Appeal : POINTS FOR DETERMINATION 1. Whether the Appellants are entitled to restrain the Respondents from using the inspection chamber located in the suit property ? 9. Upon plain reading of the said provisions of Rule 26 of the Goa Daman and Diu Municipalities Act, relied upon by the learned Counsel appearing FA-317-06 -6- for the Appellants, it is evident that the restriction to put up structures within the distance of 15 metres from the drinking water well is with regard to put up soak pit or septic tank or any other approved waste disposal system. In the present case, it is not the case of the Appellants that the Respondents have put up any soak pit or a septic tank at the site nor it is the case of the Appellants that any waste disposal system has been installed by the Respondents in the vicinity of the drinking water well. Hence, the contention of the learned Counsel appearing for the Appellants based on Rule 26 of the Municipalities Act, cannot be accepted. But, however, considering the fact that the Respondents have inspected chamber in the vicinity of the drinking water well, in case any situation arises whereby there is any leakage of any waste material which pollutes the drinking water in the said well, the Appellants are always at liberty to prevent such acts of nuisance by initiating appropriate proceedings. At this stage, on the basis of the material on record, there is nothing to establish that there was any pollution of the drinking water well on account of the inspection chamber. 10. The learned Judge has come to the conclusion that the allegations of the Appellants to the effect that the drinking water well is being polluted on account of such activities on the part of the Respondents cannot be accepted. In case in future any such situation arises, the Appellants are always at liberty to initiate proceedings in accordance with law to seek such reliefs as they may be entitled. The learned Trial Judge has rightly appreciated the evidence on record and I do not find any reason to interfere with the impugned Judgment. The point for determination is answered accordingly. FA-317-06 -7- 11. In view of the above, I find no merits in the above Appeal and the same stands dismissed accordingly. F .M. REIS, J. arp/* FA-317-06