IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 W.P(C).No. 16303 of 2006(N) -------------------------- PETITIONER: ------------ K.KRISHNAN, AGED 57, S/O.KOCHU RAMAN NADAR, KOLLABHAGATHU VARU VILAKATHU VEEDU, MALAYAM P.O. NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.THIRUMALA P.K.MANI RESPONDENTS: ------------- 1. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM. 3. THE SECRETARY, VILAVOORKKAL GRAMA PANCHAYAT, VILAVOORKKAL. 4. KERALA STATE POLLUTION CONTROL BOARD, DISTRICT OFFICE, THIRUVANANTHAPURAM. 5. RAJENDRAN, KOLLABHAGATHU VARUVILAKATHU VEEDU, VILAVOORKKAL GRAMA PANCHAYAT, MALAYAM P.O., THIRUVANANTHAPURAM. BY ADV.SRI.JAMES KURIAN, SC,POLLUTION C.BOARD- R4 SRI.TOMY SEBASTIAN - R5 SRI.SANTHAN V.NAIR - R5 SRI.K.C. SANTHOSH KUMAR, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 16303/ 2006 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: PHOTO COPY OF THE REPLY DATED 31/03/2005 FROM THE 3RD RESPONDENT. EXHIBIT P2: PHOTO COPY OF THE PETITION DATED 2/04/2005 BEFORE THE 2ND RESPONDENT. EXHIBIT P3: PHOTO COPY OF THE REPORT ISSUED BY THE 4TH RESPONDENT. EXHIBIT P4: PHOTO COPY OF THE NOTICE DATED 27/06/2005 BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT. EXHIBIT P5: PHOTO COPY OF THE PETITION BEFORE THE 1ST RESPONDENT DATED 16/02/2006. EXHIBIT P6: PHOTO COPY OF THE REMAND ORDER TO THE 2ND RESPONDENT BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXHIBIT R5-A : THE ORDER ISSUED BY THE 3RD RESPONDENT AS A2393/2005 DATED 8/07/2005 TO THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE scm ANTONY DOMINIC, J ------------------------------------------------------- W.P.(C).No.16303/2006 ------------------------------------------------------- Dated this the 23rd day of July, 2008 JUDGMENT In this writ petition, the main complaint of the petitioner appears to be regarding the inaction of the second respondent in implementing Ext.P4. Petitioner claims to be the owner of 3 cents of land in which, he has put up a house where he is residing with his family. It is stated that there is a well, which is the only source of water for him and his family. On the East of the petitioner's property, petitioner says that the 5th respondent has a plot of land having an extent of 7 cents. According to the petitioner, he noticed that the 5th respondent was constructing a septic tank, 5.5.meters away from his well. In view of the close proximity, in which the septic tank is situated, the petitioner apprehended that his well water will be contaminated. WP(c).No.16303/2006 2 Thereupon, he moved the 3rd respondent by filing a representation and received Ext.P1 reply informing that appropriate action is being taken. 2. As he found that the work in connection with the setting up of the septic tank was progressing despite Ext.P1, petitioner filed Ext.P2 to the second respondent. It is stated that, on receipt of Ext.P2, the second respondent conducted necessary enquiry and also called for a report from the Pollution Control Board. In Ext.P3 the Board stated that the location of the septic tank was not suitable in view of the possibility of contamination of the well water. It is also intimated that, it is advisable to construct a lined septic tank at about 2 meter further from the proposed earthen pit. 3. It is contended that acting upon Ext.P3, the 3rd respondent issued Ext.P5 notice requiring the petitioner to demolish and remove the septic tank within 7 days. Ext.P4 was not implemented and there upon, the petitioner again WP(c).No.16303/2006 3 filed Ext.P5, a representation to the District Collector. It is stated that Ext.P5 was forwarded to the Revenue Divisional Officer for necessary action and that there was no progress in this matter. It is in this background this writ petition has been filed. 4. The 5th respondent has filed a counter affidavit. In the counter affidavit the 5th respondent submits that his plot has an extent of only 4 cents. It is stated that, the cause of pollution is not the septic tank constructed by him but the constructions made by the petitioner in his own property. It is stated that in addition to his residential house, there is a cattle shed, a cow dung pit and a dog shed within the 3 cents of land that the petitioner has. The 5th respondent has also produced Ext.R5(a) an order issued by the 3rd respondent on 8.7.2005, where it is stated that his septic tank is situated at a level below the well in the petitioner's premises and there is no possibility of sweepage of contaminants from the septic tank. In viewb of the cattle WP(c).No.16303/2006 4 shed, dog shed, cowdung pit etc, there was possibility of the well water getting polluted from the petitioner's own premises, and hence the Panchayat has required the petitioner to remove the aforesaid construction made by him and get the water tested thereafter. It is stated that knowing fully well the consequences, the petitioner has not obeyed the directions in Ext.R5(d). 5. The learned counsel for the petitioner on the other hand submits that the contents of Ext.R5(a) are against facts. According to him it is only because of the septic tank constructed by the petitioner that his well water has become unfit for potable purpose. 6. Having heard both sides, I am inclined to think that the petitioner should have first complied with the direction in Ext.R5(a). It is a fact that both the petitioner and 5th respondent are residing in small plots of land adjacent to eachother. It is seen from Ext.R5(a) that the petitioner has constructed cattle shed cow dung pit and dog shed in his WP(c).No.16303/2006 5 plot. Ext.R5(a) also makes reference to the septic tank that is constructed by the petitioner. Since all these are in a plot of 3 cents of land, before accusing his neighbor of having caused pollution to his well water, it is the bounden duty of the petitioner to ensure that the possibility of pollution within his premises is removed initially. It was with this object that Ext.R5(a) has been issued. It is therefore that I am inclined to think that the petitioner should have complied with Ext.R5(a). Necessarily, once Ext.R5(a) is complied with and the water is tested and still the water is polluted, then it is the duty of the Panchayat to take necessary action at that stage. As at present, what is to be done is that the petitioner should comply with Ext.R5(a) report to the Panchayat. Accordingly the writ petition is disposed of as follows; Initially, the petitioner shall comply with the direction in Ext.R5(a). Once Ext.R5(a) is complied with, he should get the well water tested by an authorisied agency and produce WP(c).No.16303/2006 6 the report before the Panchayat. Thereupon, if the Panchayat is satisfied that the report is genuine and the situation needs remedial action, the Panchayat should hear the petitioner and the 5th respondent and thereafter take appropriate action for remedying the surviving grievance if any of the petitioner. ANTONY DOMINIC JUDGE vi. WP(c).No.16303/2006 7