Anwar Sadique V.M. v. Mukkom Municipality and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY ,THE 03RD DAY OF JANUARY 2019 / 13TH POUSHA, 1940** ## **WP(C).No. 29364 of 2018** ## **PETITIONER/S:** **ANWAR SADIQUE V.M., AGED 45 YEARS, S/O.TAHA KOYA, VELLARAMKUNNATH HOUSE, MUKKAM P.O., KOZHIKODE - 673 602.** **BY ADVS. SRI.A.RANJITH NARAYANAN SMT.A.SIMI** ## **RESPONDENT/S:** |**1**|**MUKKOM MUNICIPALITY,**| |---|---| ||**MUNICIPAL OFFICE,**| ||**MUKKOM, KOZHIKODE - 673 602,**| ||**REPRESENTED BY ITS SECRETARY.**| |**2**|**STATE OF KERALA,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**DEPARTMENT FOR LOCAL SELF GOVERNANCE,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**3**|**STATE OF KERALA,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**PUBLIC WORKS DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**4**|**EXECUTIVE ENGINEER,**| ||**P.W.D.ROAD DIVISION,**| ||**CIVIL STATION ROAD,**| ||**KARAPPARAMBA,**| ||**KOZHIKODE - 673 009.**| |**5**|**ASSISTANT ENGINEER,**| ||**P.W.D.ROAD DIVISION,**| ||**CIVIL STATION,**| ||**KOZHIKODE - 673 009.**| W.P.(C) No.29364 of 2018 2 **6 DISTRICT COLLECTOR, KOZHIKODE, COLLECTORATE, CIVIL STATION, KOZHIKODE - 673 009. 7 ASSISTANT ENGINEER, P.W.D.ROAD DIVISION, KUNNAMANGALAM ROAD SECTION, KUNNAMANGALAM, KOZHIKODE - 673 571.** **BY ADVS. R1 BY SRI.SURESH KUMAR KODOTH SRI.K.P.ANTONY BINU R2 TO R7 BY SMT. RAJI T.BHASKAR, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.29364 of 2018 3 ## **JUDGMENT** This writ petition is filed by the petitioner seeking the following reliefs: _“1. To issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 1[st] respondent or all the respondents jointly or severally to forthwith remove waste and block in the culvert situated near the Bye Pass road, Mukkom and passing underneath the EdavannaThamarassery State Highway thus aiding free flow of water and prevention of accumulation of waste and thereby preventing entry/ingress of water and waste water into the petitioner's office, and to effectively maintain it timely and periodically;_ _2. To issue a writ of mandamus or any other appropriate writ, order or direction, commanding the 1[st] respondent or all the respondents jointly or severally to take action on Exhibits P1 and P3 forthwith;_ _3. To issue a writ of certiorari or any other appropriate writ, order or direction, calling for the original of Ext.P6 reply, peruse the same, quash it and direct the respondent jointly or severally to redress the grievances projected in Exts.P1 and P3 forthwith;_ _4. To direct the 1[st] respondent or all the respondents jointly or severally to compensate the petitioner by payment of Rs.2 lakhs as “monetary amends” for dereliction of statutory duty by the State and resulting in infringement of the fundamental rights of the petitioner;_ _5. To mould the remedy in the interest of justice due to change in circumstances and/or by efflux of time and grant such appropriate moulded relief/reliefs to the petitioner;_ _6. To direct the respondents to pay the costs of this proceedings to the petitioner; and_ _7. To grant such other appropriate relief/reliefs as the petitioner may pray for from time to time and which this Honourable Court may deem fit and proper to grant in the interest_ W.P.(C) No.29364 of 2018 4 _of justice”._ 2. Brief material facts for the disposal of the writ petition are as follows: 3. Petitioner is a practising lawyer and a Notary within the limits of the 1[st] respondent Municipality. Petitioner had preferred Exts.P1 and P3 complaints to the 1[st] respondent Municipality as well as to respondents 1 to 6 respectively on 28.06.2018, in respect of waste water accumulation and block occurring in a culvert nearby his office. But the Municipality or any other respondents have taken any action. According to the petitioner, resultantly, waste water inundated in his office causing damage to several of his case files, other office materials and the Notarial Register maintained by him. The case of the petitioner is that, the Municipality as well as other statutory authorities have failed to discharge their duties in accordance with the provisions of the Kerala Municipality Act, 1994, the Kerala State Highway Protection Act and the PWD Manual etc. etc., which has caused the present irreparable loss and injury to the petitioner. **==> picture [396 x 12] intentionally omitted <==** respondent, wherein it is admitted that the PWD (Roads) W.P.(C) No.29364 of 2018 5 Department had constructed a culvert of 15 metres length, 4 metres width and 1.75 metres depth. However, the outflow from this culvert passes through a pipeline having length of 50 metres and 75 cm girth, laid by the PWD, and it would appear that the intake capacity of the pipe is insufficient to facilitate free and smooth flow of water, in the event of heavy rain. That being the reason, the Municipality is unable to handle the issue and PWD is responsible for necessary alteration and maintenance of the pipes. Further, it is submitted that, the alleged incident was happened due to change of topography of the land and surrounding area over the years. It is also submitted that, even though the cleaning work is carried out by the Municipality, the maintenance of the culvert is to be done by the PWD. 5. I have heard learned counsel for the petitioner, learned Standing Counsel for the Municipality and the learned Government Pleader. Perused the pleadings and the documents on record. 6. From the pleadings put forth by the petitioner as well as the counter affidavit filed by the 1[st] respondent, it is quite clear and evident, due to the insufficient pipe provided to drain out the waste water, waste water is being collected and causing W.P.(C) No.29364 of 2018 6 serious prejudice to the petitioner and other persons who are occupying a nearby building. This is also clear from Ext.P7 series of photographs, from where, it is evident that, waste water was being collected in the building premises, which caused serious difficulties to the petitioner. The contention put forth by the petitioner is substantially established by virtue of the recitals contained in the counter affidavit filed by the 1[st] respondent that due to the nature of pipe provided to drain out waste water, flooding is being occurred, especially during rainy season. According to the Municipality, the culvert and the pipe is to be maintained by the PWD and the Municipality is unable to do the same. 7. I have considered the rival submissions made across the Bar. It is quite clear from Section 30 of the Kerala Municipality Act, 1994 (for short, 'the Act, 1994') read along with the Schedule provided therein that maintenance of drainage and maintaining cleanliness is a mandatory duty on the part of the Municipality. As per Sl. Nos.5 and 7 of First Schedule of Act, 1994, the Municipality has to take necessary steps to maintain waterways and canals under the control of the Municipality. As per the Schedule, the W.P.(C) No.29364 of 2018 7 Municipality is bound to maintain environmental hygiene also. In that view of the matter, the Municipality cannot be at liberty to contend that there is no duty left with the Municipality to maintain a drain, since the same was constructed by the PWD. Being a statutory function, I am of the considered opinion, the Municipality will have to take appropriate steps in order to ventilate the grievances of the petitioner at the earliest possible time. 8. The very same issue was considered by this Court in ' _**Baby S. Supriya and Others v. Kollam**_ _**Corporation and Others**_ ' [2018 (4) KHC 1], and held that the Municipality will have to discharge such functions as are provided under Sec.30 read along with First Schedule of Act, 1994. The principles of law laid down thereunder will apply to this case also. 9. Therefore, there will be a direction to the 1[st] respondent Municipality to take immediate steps to look into the complaints submitted by the petitioner viz., Exts.P1 and P3 and take appropriate action, at the earliest, and at any rate, within two months from the date of receipt of a copy of this judgment. The Municipality is also directed to provide an opportunity of participation and hearing to the petitioner before W.P.(C) No.29364 of 2018 8 finalizing the issue. I make it clear that, in that process, the Municipality will be at liberty to seek necessary assistance of the PWD or any other Government agencies, so as to avert the possibility of any inundation. The writ petition is disposed of accordingly. **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/04.01.2019 W.P.(C) No.29364 of 2018 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED 28/06/2018 ISSUED TO THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 28/06/2018 ENTERED AS INWARD NO.6898 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 28/06/2018. EXHIBIT P4 TRUE COPIES OF THE POSTAL RECEIPTS (5 NUMBERS). EXHIBIT P5(A) TRUE COPIES OF THE ACKNOWLEDGMENT CARDS. EXHIBIT P5(B) TRUE COPIES OF THE ACKNOWLEDGMENT CARDS. EXHIBIT P5(C) TRUE COPIES OF ACKNOWLEDGMENT CARDS. EXHIBIT P5(D) TRUE COPIES OF THE ACKNOWLEDGMENT CARDS. EXHIBIT P5(E) TRUE COPIES OF THE ACKNOWLEDGMENT CARDS. EXHIBIT P6 TRUE COPY OF THE REPLY VIDE ORDER NO.G1GENERAL/2018 DATED 05/07/2018 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P7 FIVE PHOTOGRAPHS.** RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-