The petitioner has filed this writ petition seeking the following reliefs :
“i) issue a Writ, order or direction in the nature of mandamus directing the 1st respondent to ensure that, pursuant to Exhibit P1 letter, the waste water pipelines, placed by the 2nd respondent in the compound wall of his residential house which causes continuous nuisance of waste water drainage into the property of the petitioner, be removed with immediate effect.
ii) issue a Writ, order or direction in the nature of mandamus directing the 1st respondent panchayat to ensure compliance of Exhibit P1 letter AND to ensure opening up of the common water channel through the eastern boundary of the property belonging to the petitioner by getting the garden soil removed by the 3rd respondent from the 'thondu' or from the common water channel so as to ensure free flow of rain water though the common water channel into the paddy fields lying in the northern side of the properties belonging to the parties herein.
iii) issue such other appropriate writ order as this Honourable Court may deem just and proper to issue in the circumstances of the case.”
The case of the petitioner is that, the 2nd respondent has installed pipes in his compound wall for letting out waste water from his property. The pipes are opening into the property of the petitioner. The discharge of waste water, which includes water from the drains as well as toilets, into the property of the petitioner is causing untold misery and hardship to the petitioner. The petitioner had therefore raised serious objections to the acts of the 2nd respondent. By Ext.P1, the 1st respondent had directed the 2nd respondent to remove the pipes. The petitioner complains that the said order was not implemented. Therefore, the nuisance continues unabated till date. In view of the above, he seeks the issue of appropriate directions to the 1st respondent Panchayat in the matter.
2. Adv.Sri.Sajan Varghese K appears for respondents 2 and 3.
A counter affidavit has been filed. According to respondents 2 and 3, the pipes for discharge of waste water have been installed in their own property. The pipes had to be installed for the reason that, for the purpose of construction of their house, they had raised the level of area marked out for such construction, which includes the house as well as the land appurtenant thereto. In order to demarcate such portion, a retaining wall has been constructed. The pipes are installed in the retaining wall. The waste water is flowing into the own property of respondents 2 and 3. It is contended that the above facts could be evident on a proper measurement of the property of the petitioner as well as respondents 2 and 3. The dispute has arisen only because the petitioner is not willing for such a measurement to be conducted. Reliance is placed on Ext.R2(a) to point out that, the 1st respondent had also required such a measurement to be conducted as early as on 11.05.2012. However, no measurement could be conducted because of non co-operation on the part of the petitioner.
3. Adv.Sri.P.Prijith appears for the 1st respondent. According to the counsel, the dispute between the petitioner and the 2nd respondent is essentially a civil dispute. The boundary dispute between the petitioner and the 2nd respondent could be resolved only in a proper civil suit to be filed by the parties. The Panchayat is not in a position to enforce its direction to have both the private properties measured. Therefore, it is pointed out that, any order in the present writ petition would only serve to confer an advantage on one or the other of the parties. The counsel points out that, in the above circumstances, it is only appropriate that the parties are relegated to their civil remedies.
4. Having heard the learned counsel appearing for the respective parties, I am of opinion that, the dispute involved in this case is essentially a boundary dispute between the petitioner and the 2nd respondent. The said dispute could be resolved only by having a proper measurement of properties of both the parties conducted. Evidence would also have to be let in, in support of the contentions advanced by the respective parties. Such an inquiry cannot be undertaken within the limits of the summary jurisdiction exercised by me under Article 226 of the Constitution. Therefore, it is only appropriate for the parties to approach the civil court seeking appropriate remedies.
In view of the above, this writ petition is dismissed without prejudice to the rights of the petitioner as well as the 2nd respondent to approach the appropriate civil court for an adjudication of their disputes.
Sd/-
K.SURENDRA MOHAN, JUDGE.
AV