SUNEERA v. THE SECRETARY

BY ADVS. SRI.M.K.CHANDRA MOHAN DAS,SC SRI.PRATHEESH.P SMT.S.SEETHA SRI.M.R.ARUNKUMAR, SC, POLLUTION CONTROL BOARD SRI.B.S.SYAMANTAK, GP SRI.T.NAVEEN, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

16.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 20214 OF 2015 2 P.V.KUNHIKRISHNAN, J. ------------------------------ W.P.(C)No. 20214 of 2015 ---------------------------------------------- Dated this the 16th day of January, 2024 JUDGMENT The above Writ petition is filed with the following prayers: “i. issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Exbt. P8 and quash the same ; ii. issue a writ of mandamus or any other appropriate writ or order or direction directing the 1st respondent to take immediate and necessary for demolishing the unauthorized construction made by the 5th respondent. ii. Grant such other and further relief as this Hon'ble Court deems fit and proper to grant in the facts and circumstances of this case.”[SIC]

2. Petitioner is the absolute owner and in possession of property having an extent of 5¼ Cents lying in Survey No.599/23 and 599/34 of Mangad Village, Kollam District and the residential WP(C) NO. 20214 OF 2015 3 building therein, is the submission. The 5th respondent is residing on the southern side of the property of the petitioner. It is submitted that the 5th respondent is having compound wall abutting the property of the petitioner and he constructed a septic tank, latrine and bath room illegally by making use of the compound wall as one of the walls of the said septic tank, bath room and latrine without obtaining any permit/permission from the Corporation authorities or from any other statutory body. Hence O.P.No. 1955/2012 was filed before the Ombudsman for Local Self Government Institutions, Trivandrum, raising pollution, contamination of drinking water in her well and violation of the building rules by the 5th respondent. The said case was disposed of on 6.2.2013 by the Ombudsman, directing the Secretary, Kollam Corporation to visit the property with the help of the WP(C) NO. 20214 OF 2015 4 Assistant Engineer to find out whether there is any violation of building rules and also on the question of pollution. Since there was no action on the part of the Corporation, the petitioner approached the Secretary to Local Self Government Institutions for immediate action and accordingly on 2.5.2013 Ext.P6 order was issued directing the Kollam Corporation to demolish the unauthorized construction made by the 5th respondent is the submission. As no action was taken on Ext.P6 order, the petitioner filed WP (C) No.29732/2013 before this Court for implementing Ext.P6 order. In the meanwhile, the Corporation issued Ext.P7 order directing the 5th respondent to demolish the unauthorized construction. Aggrieved by Ext.P7 order issued by the Corporation to demolish the unauthorized construction, Appeal No.233/2014 was filed by the 5th respondent before the Tribunal for WP(C) NO. 20214 OF 2015 5 Local Self Government Institutions, Trivandrum. The above appeal was disposed of on 6.4.2015 setting aside the order issued by the Corporation, finding that even though there is contamination of well water which is used for drinking by the petitioner, there is no evidence that the said contamination was caused due to the septic tank of the 5th respondent. The Tribunal also found that there is no evidence to show that unauthorized construction was made by the 5th respondent. Aggrieved by the order of the Tribunal, this Writ petition is filed.

3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.

4. This Court perused Ext.P8 order passed by the Tribunal. A perusal of the order passed by the Tribunal would show that the Tribunal WP(C) NO. 20214 OF 2015 6 considered the matter in detail. It will be better to extract the relevant portion of Ext.P8 order: “16. So as rightly contended by the learned counsel for the appellant the facts and circumstances and materials produced from the side of the appellant and also the file would probabilize the case of the appellant that appellant has not made any new construction unauthorisedly and the construction now found to be seen was in existence at the time of purchase of property by the appellant and his wife. Since there is no convincing evidence to come to a conclusion that the alleged unauthorized construction has been made after the commencement of the KMBR the respondents cannot insist for compliance of KMBR by providing metre set back. So the impugned order issued by the respondent directing the appellant to demolish the unauthorized construction on the allegation of violation of Rule 24 (4) of the KMBR cannot be upheld.

17. The other allegation is with regard to the pollution of the drinking water in the well of the additional respondent. In this context the learned counsel for the additional respondent took my attention to document No. 7 produced from her side which is a letter issued by the Environmental Engineer to the Assistant Engineer, Kollam WP(C) NO. 20214 OF 2015 7 Corporation in connection with the order in O.P. 1955/2012 passed by the Hon'ble Ombudsman, in which it has been stated that on analysis of sample collected during joint inspection shows the value of faucal coliform is nil and total coliform is to be 20. 1t is also stated that distance of septic tank of the petitioner (additional respondent) is 8.5 metre and that of the appellant satisfied the safe distance criterion of 7.5 metre. It is further stated that however value of total coliform of 20 shows contamination of well water.

18. I don't know how this letter will help the additional respondent since there is clear statement in that letter that the faucal coliform in the water is nil and total coliform though stated as 20 what is there to prove that it is due to the toilet of the appellant, that too, within the safe distance as reported by the Environmental Engineer. So in effect the reason stated in the impugned order with regard to the contamination of well water due to the toilet of the appellant is also not supported with sufficient materials. So, in effect the impugned order directing to demolish the unauthorized construction is not seems to be legal and proper. In the result, impugned order is set aside and appeal allowed.” WP(C) NO. 20214 OF 2015 8 I see no reason to interfere with the above finding. But I make it clear that, if there is any contamination of well water, the petitioner can approach the appropriate authority in accordance with the law. Granting liberty to the petitioner to do the same in accordance with the law, this Writ petition is dismissed. Sd/- DM P.V.KUNHIKRISHNAN JUDGE WP(C) NO. 20214 OF 2015 9 APPENDIX OF WP(C) 20214/2015 PETITIONER EXHIBITS NO.1698885 EXHIBIT P1. TRUE COPY OF THE TAX DATED RECEIPT 20.10.2011 OF THE VILLAGE OFFICE, MANGAD VILLAGE, FOR PAYMENT OF LAND TAX. EXHIBIT P2. TRUE COPY OF THE COMPLAINT DATED 26.11.12 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P3. TRUE COPY OF THE COMPLAINT DATED 04.12.2012 FILED BY THE PETITIONER BEFORE THE MINISTER FOR URBAN AFFAIRS. EXHIBIT P4. TRUE COPY OF THE REPORT DATED 26.12.2012 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT. EXHIBIT P5. TRUE COPY OF THE ORDER DATED 06.02.13 ISSUED BY THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS. EXHIBIT P6. TRUE COPY OF THE ORDER DATED 02.05.2013 ISSUED BY THE SECRETARY, LOCAL SELF GOVERNMENT INSTITUTIONS. EXHIBIT P7. TRUE COPY OF THE ORDER DATED 15.02.14 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P8. TRUE COPY OF THE ORDER 06.04.2015 IN APPEAL NO.233/14 OF WP(C) NO. 20214 OF 2015 10 THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM. RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE