IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 22ND JULY 2008 / 31ST ASHADHA 1930 WP(C).No. 14469 of 2007(V) ---------------------------------------- PETITIONER: -------------------- C.G.ZACHARIA,S/O.LATE GEORGE, CHENNUMKARA,WARD NO.IV,EDATHUA P.O., EDATHUA VILLAGE,KUTTANADU TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY SMT.THANKOM.G SRI.E.M.MURUGAN RESPONDENTS: ------------------------- 1. THE EDATHUA GRAMA PANCHAYATH, REP.BY ITS SECRETARY, PANCHAYAT OFFICE,EDATHWA. 2. THE SECRETARY, EDATHWA GRAMA PANCHAYAT. 3. THE TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTIONS, THIRUVANANTHAPURAM. 4. THE DISTRICT MEDICAL OFFICER, HEALTH,ALAPPUZHA. 5. K.M.GEORGE,AGED 75, S/O.LATE MATHEW,KATTUMBHAGAM VEETTIL, EDATHWA P.O.,EDATHUA VILLAGE, KUTTANADU TALUK,ALAPPUZHA DISTRICT. ADV. SRI.P.VINODKUMAR FOR R1 & R2 SRI.ELVIN PETER P.J. FOR R5 SRI.S.RAMESH FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.14469/2007 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE REPORT DTD. 12/12/2005. EXT.P2: COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DTD. 18/01/2006. EXT.P3: COPY OF THE APPEAL SO PREFERRED BY THE PETITIONER. EXT.P4: COPY OF THE JUDGMENT IN WP(C) NO.4991/2006 ON THE FILES OF HONOURABLE HIGH COURT OF KERALA. EXT.P5: COPY OF THE DECISION NO.III (8) OF THE EDATHUA GRAMA PANCHAYAT. EXT.P6: COPY OF THE REVISION PETITION BEFORE THE 3RD RESPONDENT BY INVOKING SECTION 276 OF THE KERALA PANCHAYAT RAJ ACT. EXT.P7: COPY OF THE ORDER IN I.A.NO.703/2006. EXT.P8: COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT. 5TH RESPONDENT'S EXHIBITS: EXT.R5(A): COPY OF THE COMPLAINT DTD. 17/06/2005 SUBMITTED BY THE 5TH RESPONDENT TO THE D.M.O. EXT.R5(B): COPY OF THE COMPLAINT DTD. 26/11/2005 SUBMITTED BY THE 5TH RESPONDENT TO THE 2ND RESPONDENT. EXT.R5(C): COPY OF THE ORDER DTD. 18/01/2006 ISSUED BY THE 2ND RESPONDENT. EXT.R5(D): COPY OF THE DECISION DTD. 26/10/2006 OF THE 1ST RESPONDENT. EXT.R5(E): COPY OF THE NOTICE DTD. 18/01/2006 ISSUED BY THE 2ND RESPONDENT. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ---------------------------------------------------------- W.P.(C).NO.14469/2007 ---------------------------------------------------------- Dated this the 22nd day of July, 2008 JUDGMENT Challenge in this writ petition is against Exts.P2,P5 and P8. Ext.P2 is an order passed by the second respondent, Secretary of the Panchayat. Ext.P5 is the appellate order passed by the Panchayat itself and Ext.P8 is the order rendered by the Tribunal for Local Self Government in a revision filed against Ext.P5. 2. The facts as canvassed by the counsel for the petitioner are that, sometime in 1965 he had purchased a property from the brother of the 5th respondent and in 2002, he constructed a toilet with a septic tank. According to him, long thereafter, on 17.6.2005, the 5th respondent submitted a complaint to the 2nd and 4th respondent, the Secretary of the Panchayat and the District Medical Officer respectively. Accordingly, an enquiry was conducted into the WP(c).No.14469/2007 2 complaint and the DMO submitted Ext.P1 report to the second respondent. Acting upon Ext.P1 report, the second respondent passed Ext.P2 order. In Ext.P2, reference is made to Ext.P1 and also to an inspection conducted by the Panchayat itself. On that basis, finding that, there is substance in the allegations made by the 5th respondent that, because of discharge of waste water from the septic tank of the petitioner, difficulty is created and on that basis petitioner was directed to remove his septic tank within 7 days. Petitioner filed Ext.P3 appeal to the Panchayat invoking the appellate remedy under Section 276 of the Kerala Panchayat Raj Act. It is stated that while the appeal was pending, the 5th respondent filed a writ petition as WP (c).No.4991/2006. That writ petition was disposed of by Ext.P4 judgment, directing the appellate authority to consider and pass orders on Ext.P3 appeal filed by the petitioner. WP(c).No.14469/2007 3 3. In pursuance to Ext.P4 judgment, the appellate authority considered the appeal and passed Ext.P5 order. In Ext.P5, the appellate authority found that the septic tank is located within 7.5 meters of the well in the 5th respondent's residential premises and that the septic tank needs to be shifted from the place. On that basis, the petitioner was directed to remove the septic tank from the present location. Against Ext.P5 order of the Panchayat, petitioner filed Ext.P6 revision to the Tribunal for Local Self Government Institutions and Ext.P8 is the order passed by the Tribunal rejecting the revision. 4. On a perusal of Exts.P2 and P5 orders passed by the Secretary and the Panchayat, it can be seen that both these authorities have decided the issue for the reason that the septic tank is located within 7.5 meters from the well in the 5th respondent's residential premises. This distance factor is fixed on the basis of the rules contained in the Kerala Municipality Building Rules. Accepting the contention of the WP(c).No.14469/2007 4 petitioner that, at the relevant time, the said Rule was not made applicable within the area of the 2nd respondent Panchayat, the Tribunal in Ext.P8 order, held the rule to be inapplicable to the case. However, proceeding further the Tribunal accepted the contention of the 5th respondent that in view of the provisions contained in Section 30(1) of the Travancore Cochin Public Health Act, (here-in-after referred as the TC Act), construction of septic tank beneath any part of any building or within 50 feet of any well is prohibited. On that basis, accepting the plea of the 5th respondent that the septic tank in question was situated within the prohibited distance, the revision was rejected by Ext.P8. It is challenging Exts.P2,P5 and P8, this writ petition has been filed. 5. The contentions urged by the learned counsel for the petitioner are two fold. One is that, Section 30(1) of the TC Act, is applicable only in respect of “cesspool” and what he has constructed is only a septic tank and therefore Section WP(c).No.14469/2007 5 30(1) is not applicable. The other contention is that Section 30(2) of the TC Act provides that the Health Officer may, at any time, by notice require any person within whose premises, any cesspool is constructed in contravention of Sub Section (1) to remove such cesspool or to fill it up with such materials as may be approved by him. It is contended that it is only the Health Officer who is competent to invoke the powers under Section 30(2) and since the impugned proceedings are initiated by the Secretary of the Panchayat, the whole proceedings are without jurisdiction and hence incompetent. 6. On the other hand the counsel for the 5th respondent contend that Ext.P1 report of the District Medical Officer is based on a report submitted by the Medical Officer. That medical officer's report has been relied on by the Tribunal in paragraph 4 of Ext.P8 order, where it is stated that “the petitioners septic tank is leaking and it is causing contamination of the water in the well in the property of WP(c).No.14469/2007 6 the 3rd counter petitioner”. It is also contended that the petitioner has no case that the septic tank is situated beyond 7.5 meters from his well. In view of this, it is contended that the admitted position is that the septic tank in question comes within the prohibited distance of 50 feet mentioned in Section 30 of the TC Act. 7. According to the counsel for the 5th respondent, the Panchayat is the authority to protect public health and reference is made to Schedules I and III of the Kerala Panchayat Raj Act. He would also contend that even apart from the statutory provisions contained in the TC Act and the Kerala Panchayat Raj Act, by virtue of his fundamental rights guaranteed under Article 21 of the Constitution he is entitled to have unpolluted drinking water and where there is a denial of this right, the authorities are bound to interfere. In support of his contentions, counsel would make reference to the decision reported in K. Attakoya Thangal V. The Union of India(ILR 1990(2) Kerala 190), Ramji WP(c).No.14469/2007 7 Patel & Ors V. Nagrik Upbhokta Margdarshak Manch and Ors.(2000(3)SCC 29) & D.R. Joshi V. Chief Secretary, State of U.p & Ors.(1999(9)SCC 578). 8. It is also argued that `Cesspool' is not a term defined in the T.C Act and in the absence of which, this court is entitled to make reference to the meaning assigned to this term in the dictionary, as held by the Apex Court in its judgment in Union of India & Ors. V.Harjeet Singh Sandhu (2001(5)SCC 593). It is stated that if the meaning available in the dictionary is adopted, what is available in the petitioner's premises is a cesspool and if so section 30 of the TC Act would squarely apply. 9. It is contended that the findings of the District Medical Officer in its report dated 25.10.2005 has been accepted by the Tribunal in Ext.P8 order and that these findings are not challenged by the petitioner. In such circumstances, this court should not be fettered the procedural formalities and even if there is any irregularity, WP(c).No.14469/2007 8 the order should not be interfered with, while exercising the powers under Article 226 of the Constitution of India. Reference is made to the decision of the Full Bench in Babu Raj V. State of Kerala (1994(2) KLT 679 and in particular para 9 thereof. 10. I have considered the submissions made by both sides. At the outset I must state that since the contentions raised are purely of technical nature, the petitioner is otherwise accepting the factual findings rendered by the respective authorities. Question is, whether in such a case, this court should exercise its powers under Art.226 and come to the rescue of the petitioner. Be that as it may, I shall proceed to deal with the legal contentions raised before me. 11. The first issue that calls for consideration is whether what is constructed by the petitioner is a cesspool. True cesspool is not a term that is defined in the TC Act. If that be so, as rightly contended by the counsel for WP(c).No.14469/2007 9 the petitioner, referring to the decision reported in Union of India V. Harjeet Singh 2001(5)SCC 593) this court can certainly make reference to the dictionary meaning of the expression. Cesspool, as per the Oxford Dictionary, means “well sunk for soil from water, closet etc., retaining solids and letting liquid escape”. The meaning of this term available in the Websters dictionary is “a deep hole or pit in the ground usually covered to receive drainage or seepage from the toilets etc.” 12. Going by the contention of the petitioner before the Tribunal and from the pleadings, he himself described the construction as a septic tank and also as a latrine, which is the terminology used in the common parlance. In my view, on appreciating the facts as available in the pleading and from the dictionary meanings assigned to the word, I should accept the plea of the 5th respondent that what is constructed by the petitioner in his premises is a cesspool. If that be so, the contention that Section 30 of the T.C Act is WP(c).No.14469/2007 10 inapplicable to the construction in question is only to be rejected. 13. Now what remains to be considered is the contention of the learned counsel for the petitioner that only the Health Officer has been conferred the power under section 30(2) of the T.C Act. True, Section 30(2) provides that a Health Officer may by notice require any person within whose premises cesspool is constructed to remove the cesspool if the same is in contravention of Section 30(2). Heal44th Officer is defined in Section 2(15) of the Act as the Health Officer employed by the local authority concerned or in any other case, other officer appointed or authorised by the Government to exercise the power and discharge the duties as a Health Officer. 14. Admittedly, the proceedings in this case were initiated by the Secretary of the Panchayat and there is no material on record to indicate that the Secretary of Panchayat has been authorised to exercise the powers and WP(c).No.14469/2007 11 discharge the duties of the Health Officer. But then the question is whether, the fact that the Secretary has not been authorised to act as a Health Officer by itself warrants interference and that too when challenge against the orders are purely on technical grounds alone. As rightly pointed by the counsel for the 5th respondent, one of the mandatory functions of the Panchayat specified in the IIIrd schedule to the Act, includes maintenance of environmental hygiene and public health. Sanitation is yet another mandatory function as per the said schedule. Therefore, what has been done by the Secretary, is to issue orders in discharge of these mandatory functions of the Panchayat. It may be true that he is not a Health Officer, but then so long as what the Secretary has done is the issuance of the orders in his capacity as the Executive Officer of the Panchayat, to discharge the mandatory functions, of the Panchayat I do not think this court will be justified in interfering with such orders for the only reason that he has not been conferred WP(c).No.14469/2007 12 with the authority of the Health Officer as contained in the T.C Act. This is for the further reason that finding in the report of the Medical Officer that there is leakage from the septic tank is not even disputed by the petitioner so far. 15. This view of mine is fortified by the conclusion of the Full Bench in Babu Raj V. State of Kerala (1994(2)KLT 679). It is the settled legal position that if interference by this court will result in irretrievable injustice, even if the act complained of is irregular, this court need not interfere in such matter. On facts, I am satisfied that if this court interferes in the matter, the result will be that injustice will be caused only to the 5th respondent. Therefore, I am not prepared to interfere with the orders impugned in this writ petition for the only reason that the Secretary of the Panchayat is not a Health Officer as defined in the T.C Act. 16. Even otherwise as rightly pointed out by the counsel for the petitioner he is entitled to unpolluted water by virtue of his fundamental right guaranteed under Article WP(c).No.14469/2007 13 21 of the Constitution of India. If this right is denied by anyone, it is the bounden duty of the State to interfere in such matters and pass appropriate orders. This position is settled by various judgments of this Court and Apex Court. I do not think that it is necessary to have a more detailed discussion on this aspect. For that reason also no interference is called for. On an over all consideration of the matter, I am satisfied that, Exts.P3, P5 and P8 shall not be interfered with. Writ Petition fails and is dismissed. ANTONY DOMINIC JUDGE vi. WP(c).No.14469/2007 14