IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24598 of 2010(Y)
1. DR.JOE EMMANUEL, AGED 48 YEARS,
... Petitioner
Vs
1. TRIPUNITHURA MUNICIPALITY REPRESENTED
... Respondent
2. STATE OF KERALA, REPRESENTED BY
For Petitioner :SRI.V.K.ISSAC
For Respondent :SRI.V.M.KURIAN
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :16/09/2010
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C) No. 24598 OF 2010
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Dated this the 16thday of September, 2010
J U D G M E N T
The petitioner, a Dentist by profession, has filed this writ
petition seeking the following relief:
“(a) To issue a writ of prohibition or such other writ, order
or direction prohibiting respondents from initiating any
action as proposed under Exts.P2, Ext.P6 and Ext.P7
notice during the period allowed under the statute for
filing appeal/revision before the Tribunal for Local Self
Government Institutions.”
2. Ext.P2 notice dated 12.7.2010 is one issued by the
Secretary of Tripunithura Municipality calling upon the petitioner to
remove the obstruction caused by him to the flow of surface water
along the public road lying on the western side of the petitioner’s
residence. Upon receipt of Ext.P2, the petitioner submitted Ext.P3
appeal before the Municipal Council. While that appeal was
pending, the Secretary of Tripunithura Municipality issued Ext.P6
notice dated 24.7.2010 reiterating the demand made in Ext.P2. A
week later, the Secretary of Tripunithura Municipality issued Ext.P7
notice dated 31.7.2010 informing the petitioner that the Council will
hear the appeal on 3.8.2010. These notices are under challenge in
WPC No.24598/2010 2
this writ petition wherein the petitioner has sought a writ in the nature
of prohibition resisting the respondents from enforcing the impugned
notices before the period of limitation prescribed for filing an appeal
or revision to the Tribunal for Local Self Government Institutions
expires.
3. A statement dated 14.9.2010 has been filed on behalf of
the first respondent. Paragraph 3 and 4 thereof read as follows:
“3. The Municipality received a complaint from the
Councilor of Ward No.II alleging that there is flooding of
water in the Kadavu road due to the unauthorised filling
of the road by the petitioner. Though Municipality
engaged its employees to remove the flooding, due to
obstruction by petitioner and other residents, the work
could not be done. Thereafter both the parties were
called for a hearing on 8.7.2010 by the Secretary. Both
parties were not amenable to any settlement to remove
the accumulated earth.
4. As there was chance of spread of epidemic due to
continuous rains, this respondent issued Ext.P2 notice
dated 12.7.2010 directing the petitioner to remove the
accumulated earth for effecting free flow of water. The
petitioner submitted reply raising untenable contentions.
The application was rejected and he was directed to
take immediate measures to remove the flooding of
water. Against Ext.P2 order, petitioner filed appeal
before the Municipal Council and also sought for stay of
the order passed by the Secretary. On consideration of
the appeal, the Chairperson personally visited the spot
on 31.7.2010 and directed immediate removal of the
obstruction to the flow of water by cutting open a drain
for free flow of water to the nearby river. Further theWPC No.24598/2010 3
appeal was posted for hearing on 3.8.2010 and the
same was intimated to the petitioner also. However, on
3.8.2010 petitioner informed that he could not appear
on 3.8.2010 and requested to post the appeal for
hearing to any day after 5.8.2010. In the meanwhile on
2.8.2010 itself a drain was cut open and accumulated
water was drained out to the river. Petitioner has filed
this writ petition on 3.8.2010 when the appeal was
pending consideration before the Council. Due to the
pendency of the appeal, the Council has not passed
final order in the appeal petition. There is no merit in
the contentions raised by the petitioner. Due to the
illegal acts of the petitioner, the Kadavu road is getting
flooded during rainy season, affecting the public.”
4. It is evident from the statement filed on behalf of the first
respondent that Exts.P2 and P6 notices were issued upon a
complaint received from the Councilor of Ward No.II about some
overt act committed by the petitioner leading to the flooding of the
public road. It is stated that though an attempt at conciliation was
made on 8.7.2010, it failed and thereupon Ext.P2 notice was issued
followed by Ext.P6. It is also stated that aggrieved by Ext.P2, the
petitioner has filed Ext.P3 appeal, that the said appeal was posted
for hearing on 3.8.2010, that though notice of hearing was given, the
petitioner did not appear but sought an adjournment of the hearing
and on the next day filed this writ petition. It is also stated that in the
meanwhile, a drain was cut open and the water that had
WPC No.24598/2010 4
accumulated on the public road was drained out to the river.
5. It is evident from the statement filed on behalf of the first
respondent that the appeal filed by the petitioner challenging Ext.P2
notice is pending before the Municipal Council. I am therefore of the
opinion that no relief can be granted to the petitioner in this writ
petition except to direct the Municipal Council of the Tripunithura
Municipality to consider Ext.P3 appeal filed by the petitioner and to
take an appropriate decision thereon expeditiously and in any event
within one month from today, after affording the petitioner an
opportunity of being herd. It is clarified that if the petitioner does not
make use of the opportunity afforded to him for a personal hearing, it
will be open to the Municipal Council to proceed to dispose of the
appeal without affording the petitioner any further opportunity of
being heard.
The writ petition is disposed of as above. No costs.
P.N.RAVINDRAN,
(JUDGE)
vps
WPC No.24598/2010 5