S. Kamatchi and Others vs G. Saraswathy and Mayiladuthurai Municipality

R. Mala, J.—The Second Appeal is filed by the defendants 3 to 9 who are the legal heirs of the deceased first defendant, against the

judgment and decree dated 7.9.2001 in A.S. No. 45 of 2001 on the file of the Principal Subordinate Judge''s Court, Mayiladuthurai, confirming

the judgment and decree dated 28.2.2001 in O.S. No. 1001 of 1995 on the file of the Principal District Munsif Court, Mayiladuthurai.

The averments in the plaint are as follows:

(a) The plaintiff is the owner of the house bearing Door No. 5 with its backyard in Sarathattai Street in T.S. No. 480/1B in Ward No. 6 at

Koranad, Mayiladuthurai Town. The deceased first defendant is the owner of the house bearing Door Nos. 5-A and 4 respectively on the west

and east of the plaintiff''s house. The deceased first defendant''s house and backyard bearing Door No. 4 are situated in T.S. Nos. 477, 478 and

479 and the other house and backyard bearing Door No. 5-A are situated in T.S. No. 480/1.A. The plaintiff''s house and backyard is shown as

ABCD in the plaint plan, whereas the deceased first defendant''s house on the west and east are shown as ADEF and BCHG respectively.

(b) The plaintiff has a Well measuring 14'' x 13'', used for drinking, bathing and for all other domestic purposes by the plaintiff and other members

of her family and has got no other source of water for the above purposes except the said Well.

(c) The deceased first defendant has purchased the house property bearing Door No. 5-A on the western side of the plaintiff''s house, i.e., shown

as ADEF, from the plaintiff''s husband''s brother. The deceased first defendant also wanted to purchase the plaintiff''s property in Door No. 5,

shown as ABCD, but the plaintiff was not willing to convey her property to the deceased first defendant as desired by him and aggrieved by the

same, the deceased first defendant developed an idea to coerce the plaintiff by foul means and thereby to make her to convey her property to him.

(d) On 30.9.1994, the deceased first defendant started digging two trenches to construct septic tanks in his property on the east and west of the

plaintiff''s property very near to the Well of the plaintiff. It is stated that the construction of two septic tanks would pollute the water in the Well and

it would become unfit for human consumption. On the same day, the plaintiff made a complaint to the Health Officer of the second defendant-

Municipality and the Health Officer in turn who inspected the property, directed the deceased first defendant not to construct the septic tank in the

proposed place. The deceased first defendant kept quiet for some time and again started constructing the two septic tanks in the very same place

on 24.8.1995. The plaintiff again made a complaint to the second defendant-Municipality and the official of the second defendant-Municipality

made an inspection on 29.8.1995 and instructed the deceased first defendant not to do any further construction work. But the deceased first

defendant completed the construction of the latrine and septic tank on the western side in his property shown as ADEF and also partly constructed

the septic tank alone in his property on the east of the plaintiff''s property as shown as BCHG.

(e) It is stated that the septic tank on the western side of the plaintiff''s Well, has been constructed within a distance of 50'', whereas the septic tank

pit that has been dug up on the eastern side of the plaintiff''s Well has been constructed at a distance of about 20'' from the plaintiff''s Well. It is the

case of the plaintiff that these two septic tanks have been purposely constructed to pollute the Well water of the plaintiff. The deceased first

defendant made construction of the septic tanks without the permission and consent of the second defendant-Municipality and against the

standards and specifications prescribed by law. According to the plaintiff, if the septic tanks are allowed to function as such, they will be a constant

source of pollution and health hazard. The plaintiff issued a notice through her lawyer to the second defendant-Commissioner of Mayiladuthurai

Municipality, calling upon him to cause the removal of the unauthorised construction of the two septic tanks very near to the Well of the plaintiff

and not to issue any licence to the deceased first defendant approving the construction. The second defendant-Municipality, having acknowledged

the receipt of the said notice, not even informed the plaintiff as to whether any licence has been granted or not to the deceased first defendant.

(f) The deceased first defendant was giving threats that he would complete the construction of the other partly constructed septic tank also, as he

has obtained licence. It is stated by the plaintiff that the second defendant has got a statutory duty to prevent the deceased first defendant from

polluting the plaintiff''s Well water and to see as to whether the construction of the septic tanks was in conformity with the standards specified, as

the Well was being used for drinking purposes by the plaintiff and her family members. Since the deceased first defendant has completed the

construction of the flush-out latrine as well as the septic tank in his property on the west of the plaintiff''s property, and he has also partly

constructed the septic tank on the east of the plaintiff''s property, both these constructions have to be removed by means of mandatory injunction

and also sought for permanent injunction restraining the deceased first defendant from constructing any septic tank within the distance of 50 feet

from the plaintiff''s Well.

(g) Hence, the plaintiff has filed the suit for a mandatory injunction directing the defendants 3 to 9 to remove the septic tanks that have been

constructed on the east and west of the plaintiff''s Well; for a permanent injunction restraining the deceased first defendant from constructing any

septic tank within a distance of 50 feet from the plaintiff''s Well and also to direct the defendants to pay the costs.

The gist and essence of the written statement filed by the then first defendant are as follows:

The deceased first defendant was having houses on the eastern and western sides of the plaintiff''s house. He was not personally aware as to

whether the Well is being maintained neat and clean. He never expressed his desire to purchase the property of the plaintiff. There is no enmity at

all between the parties. The first defendant submitted plans before the second defendant and the officials concerned inspected the property and

finding that the first defendant adhered to all the sanitary rules, they have accorded sanction for construction of the septic tanks. As per the sanitary

rules, there should be a gap of 20 feet between the Well and the septic tank. In the modern days, it is also not possible to construct the septic tank

at a distance of 50 feet, because, in most of the houses, there will not be such a big backyard. So, the Health Department has been prescribing the

specifications and only subject to the guidelines, the septic tank is being put up and in that process, there cannot be any leakage of any water.

Hence, it is highly impossible to apprehend that the Well water was being polluted. If the plaintiff was really aggrieved, she ought to have filed the

suit immediately after the work was commenced, but she has simply stood by and allowed the first defendant to construct the same and after the

construction was nearing completion, she came with the present suit. There is no cause of action for filing the present suit. The first defendant

therefore prayed for dismissal of the suit.

The gist and essence of the written statement filed by the second defendant-Commissioner of Mayiladuthurai Municipality, are as follows:

The position of the second defendant-Municipality with respect to the construction of the flush-out latrine by the then first defendant in his property,

is that the first defendant submitted a plan to construct a flush-out latrine in his property bearing T.S. No. 480/1.A at Sarathattai Street, on

12.9.1995 and thereafter, the Municipal Officials inspected the site on 14.9.1995 and found that the proposed construction of latrine was in

accordance with the building rules, the provisions of the Tamil Nadu Public Health Act and the circulars issued by the Government Health

Department, and hence, the second defendant issued licence to the first defendant for the construction of the flush-out latrine on 14.9.1995. After

receipt of the communication from the plaintiff raising objections, the site was again inspected by the officials of the second defendant-Municipality

and at that time, the construction of the flush-out latrine was in progress and it was also found that the first defendant was constructing the same as

per the approved plan. According to the second defendant, there is no chance for pollution of the plaintiff''s Well water by the construction of the

first defendant''s septic tank, as there had been a distance of 27 feet between the soak-pit and the plaintiff''s Well on the eastern side and there is a

distance of 25 feet between the same soak-pit and the plaintiff''s another Well on the western side. The construction is not an unauthorised one and

hence, the question of removing the same by the second defendant did not arise. Due to personal enmity for a long time between the plaintiff and

the deceased first defendant and as there was also a race between them in purchasing the properties, they have pitted against each other in the suit.

There is no cause of action for the plaintiff to file the suit. It is further stated that the second defendant is an unnecessary party and prayed for

dismissal of the suit.

The trial Court, after considering the averments both in the plaint and in the written statement, framed necessary issues and considering the

evidence of P.W.1 (plaintiff) and D.W.1 (D5) and Exs.A-1 to A-4 and Exs.B-1 and B-2 and Exs.C.1 and C.2, decreed the suit as prayed for by

the plaintiff and granted three months'' time to remove the septic tanks. During the pendency of the suit, the first defendant died and his legal heirs

have been impleaded as defendants 3 to 9 and against the said decretal of the suit, the legal heirs of the deceased first defendant, namely

defendants 3 to 9, preferred First Appeal and the first appellate Court, after hearing the arguments of both the counsel and after framing necessary

points for consideration, concurred with the findings of the trial Court and dismissed the First Appeal and gave two months'' time to remove the

septic tanks and latrines. Against that, the present Second Appeal has been preferred by the defendants 3 to 9 (legal heirs of the deceased first

defendant).

At the time of admission of the Second Appeal, the following substantial questions of law were framed for consideration:

(i) Whether the Courts below erred in referring to the provisions of Section 32 of the Tamil Nadu Public Health Act, 1939 for decreeing the suit as

prayed for by the first respondent/plaintiff?

(ii) Whether the Courts below erred in decreeing the suit applying the provisions of Section 32 of the Tamil Nadu Public Health Act, 1939 to the

case on hand where the right of appellants to maintain septic tanks, but not cesspool, is in question? and

(iii) Can the Courts below decree the suit without giving a finding as to whether the maintenance of septic tanks really affect the Well water of the

first respondent/plaintiff?

Heard both sides.

The first respondent as plaintiff filed the suit for mandatory injunction for removal of the septic tanks situated on the west and east of the

plaintiff''s property and also for permanent injunction not to construct septic tank in the place and also for costs, stating that the construction of the

septic tanks is in violation of Section 32 of the Tamil Nadu Public Health Act and the Government circulars. The defendants took their stand in the

written statement that there is no violation of the provisions of law and the approval was granted by the second defendant-Municipality, to the first

defendant to construct the septic tanks, only after inspection by their officials. The trial Court has considered the said provisions of Section 32 of

the Act and decreed the suit, which was confirmed in the First Appeal by the first appellate Court.

Learned Counsel for the appellants/D3 to D9 contended that the distance mentioned by the learned Advocate Commissioner in the plan and

report, between the septic tanks and the Well, is not correct. Learned Counsel for the appellants/D3 to D9 further contended that as per Section

32 of the said Act, the distance between the alleged ""cesspool"" and the water resource, should be 50 feet and above and not within 50 feet and he

further submitted that Section 32 of the Act deals only with the ""cesspool"" and not the ""septic tank"" and both are entirely different and to

substantiate the same, he culled out the Dictionary meaning of ""cesspool"" from Oxford and other Dictionaries and hence, he stated that both the

Courts below have committed error while construing that ""cesspool"" mentioned in Section 32 of the Act only related to ""septic tank"" and hence he

prayed for setting aside the impugned judgments and decrees of both the Courts below and to allow the Second Appeal.

Learned Counsel for the first respondent/plaintiff contended that as per the learned Advocate Commissioner''s report, the distance between the

Well of the first respondent/plaintiff and the septic tanks, is within 50 feet, which is in violation of the provisions of Section 32 of the Tamil Nadu

Public Health Act. There is no difference between the ""cesspool"" and the ""septic tank"" and both the terms are synonymous to each other. He also

relied upon the Oxford Dictionary meaning of ""cesspool"" and prayed for confirming the judgments and decrees of both the Courts below and to

dismiss the Second Appeal.

Learned Counsel for the second respondent/D2/Municipality contended that only after considering the relevant provisions of law and the

circulars of the Government, the permission has been accorded to the then first defendant (deceased) for construction of the alleged septic tanks.

He further stated that there is no violation of any rules while according permission for construction of the septic tanks. He relied upon Sections 138

and 191 of the Tamil Nadu District Municipalities Act and also Rule 17 of the Tamil Nadu District Municipalities Building Rules and left the matter

to the Court for consideration.

Substantial questions of law:

The first respondent as plaintiff filed the suit for mandatory injunction to remove the septic tanks and for permanent injunction restraining the

first defendant from constructing any septic tank and also for costs. Both the Courts below relied upon Section 32 of the Tamil Nadu Public Health

Act and stated that the learned Advocate Commissioner was appointed to find out the distance between the septic tanks put up by the deceased

first defendant and the Well of the first respondent/plaintiff. As per the learned Advocate Commissioner''s report, the distance between the Well

and the Septic tanks is below 50 feet.

In this connection, it is appropriate to extract Section 32 of the Tamil Nadu Public Health Act, as follows:

Section 32: Construction and closure of cesspools.-(1) No person shall construct a cesspool-

(a) beneath any part of any building or within fifty feet of any tank, reservoir, water-course or well or within such other distance therefrom as the

Health Officer may consider to be practicable having regard to the circumstances of the locality; or

(b) within any local area, or outside such area but within three hundred feet of any reservoir used for the storage of filtered water to be supplied to

such area, except upon a site and in a position which have been approved in writing by the Health Officer.

(2) 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.

At this juncture, it is appropriate to consider the argument of the learned Counsel for the appellants/D3 to D9 that Section 32 of the Act deals

only with ""cesspool"", and does not deal with the ""septic tanks"" and both are different. To substantiate the same, learned Counsel for the

appellants/D3 to D9 relied upon the Dictionary meaning of both the words ""cesspool"" and ""septic tank"" from ""The New Lexicon"" of Webster''s

Dictionary of the English language, as found in page 56 of the typed set of papers filed along with the Second Appeal, which reads as follows:

Cesspool: A deep hole into which sewage drains.

Septic tank: A tank in which sewage is broken down by anaerobic bacterial activity.

Learned Counsel for the appellants/D3 to D9 also relied upon another Dictionary meaning of ""cesspool"" by giving a xerox copy of the same, which

reads as follows:

Cesspool:

(1) a trap made under a drain etc. to retain solid matter. Also, a rainwater head in guttering.

(2) An underground chamber for the temporary storage or disposal of foul water or sewage.

In this regard, it is worthwhile to refer the meaning of ""cesspool"" and ""septic tank"" as found in ""Concise Oxford English Dictionary"" (11th

Edition, Revised, 2008 and first Indian edition 2009), as follows:

Cesspool: an underground container for the temporary storage of liquid waste and sewage.

Septic tank: a tank, typically underground, in which sewage is allowed to decompose through bacterial activity before draining by means of a

soakaway.

It is also useful to refer the ""Chambers Concise Dictionary"" (2007 first Indian publication) meaning of ""cesspool"" and ""septic tank"" as follows:

Cesspool: (1) a tank, well etc. for the collection and storage of sewage and waste water;

(2) a rotten and putrid place.

Septic tank: a tank, usually underground, in which sewage is decomposed by anaerobic bacteria.

The other Dictionary meanings of the ""cesspool"" as culled out from the Website (Internet), are as follows:

(a) The Free Dictionary:

A covered hole or pit for receiving drainage or sewage, as from a house.

(b) Dictionary.com:

A cistern, well, or pit for retaining the sediment of a drain or for receiving the sewage from a house.

(c) Merriam Webster Dictionary:

An underground reservoir for liquid waster (as household sewage).

From the above meanings of ""cesspool"" and ""septic tank"", it is clear that both the words are synonymous to each other. Hence, I do not find

any merit in the argument advanced by learned Counsel for the appellants/D3 to D9 regarding the interpretation given by the Courts below for

cesspool"". The first respondent/plaintiff has come forward with the suit, on the ground that as the drainage/sewage water will be soaked in the

septic tank, the Well water will be contaminated by the bacterial infection, which causes health hazard to the inmates of the house of the first

respondent/plaintiff. In such circumstances, I am of the view that even though Section 32 of the Tamil Nadu Public Health Act, deals with

cesspool"", it would also include ""septic tank"", as both are synonymous to each other.

Now, this Court has to consider the argument of the learned Counsel for the second respondent/D2-Municipality based on Sections 138 and

191 of the Tamil Nadu District Municipalities Act and Rule 19 of the Tamil Nadu District Municipalities Building Rules.

Sections 138 and 191 of the Tamil Nadu District Municipalities Act, read as follows:

Section 138: Control over house-drains and cess-pools.--All house-drains whether within or without the premises to which they belong and all

private latrines and cess-pools within the municipality shall be under the control of the municipal council but shall be altered, repaired, cleaned and

kept in proper order, at the expense of the owner of the premises to which the same belong or for the use of which they were constructed, and in

conformity with by-laws and regulations framed by the council in this behalf.

Section 191: Building rules.--(1) The State Government may make rules-

(a) for the regulation or restriction of the use of sites for building, and

(b) for the regulation or restriction of building.

(2) Without prejudice to the generality of the power conferred by Sub-section (1), Clause (a), rules made under that clause may provide.

(a) that no insanitary or dangerous site shall be used for building, and

(b) that no site shall be used for the construction of a building intended for public worship, if the construction of the building thereon will wound the

religious feelings of any class of persons.

(3) Without prejudice to the generality of the power conferred by Sub-section (1), Clause (b), rules made under that clause may provide for the

following matters.-

(a) information and plans to be submitted together with applications for permission to build;

(b) height of buildings, whether absolute or relative to the width of streets;

(c) level and width of foundation, level of lowest floor, and stability of structure;

(d) number and height of storeys composing a building and height of rooms;

(e) provision of sufficient open space, external or internal, and adequate means of ventilation;

(ee) number of trees to be planted and preserved around a building;

(f) provision of means of egress in case of fire;

(g) provision of secondary means of access for the removal of filth;

(h) materials and methods of construction of external and party walls, roofs and floors;

(i) position, material and methods of construction of hearths, smoke-escapes, chimneys, staircases, latrines, drains, cess-pools;

(j) paving of yards;

(k) restrictions on the use of inflammable materials in building; and

(l) in the case of wells, the dimensions of the well, the manner of enclosing it, and if the well is intended for drinking purposes, the means which shall

be used to prevent pollution of the water.

Rule 19 of the Tamil Nadu District Municipalities Building Rules, reads as follows:

Rule 19: Grant of exemptions-(1)(a) The Government or any other authority empowered by the Government by a notification published in the

Tamil Nadu Government Gazette, may either suo motu or on application exempt from the operation of all or any of the provision of these rules, for

reasons to be recorded in writing, any building or any specified class of buildings provided that such application is made within sixty days from the

date of receipt of the order of the executive authority against which such application is made to the Government or the authority empowered by the

Government, as the case may be.

(b) The Government, may either suo motu or on appeal against any orders of the authority empowered by them, pass such orders, as deemed fit,

provided such an appeal is made within thirty days from the date of receipt of the order of the authority empowered by the Government.

Provided that it is open to the Government or the authority empowered by the Government, as the case may be, to condone any delay for reasons

to be recorded in writing, if applications under bye-law (a) above or appeals under the clause are not made to Government or the authority

empowered by the Government, as the case may be, within the prescribed time.

(2) Any exemption granted under this rule shall not be deemed to be approval or permission for construction or reconstruction of any building

required by or under the Tamil Nadu District Municipalities Act, 1920.

In view of the above provisions of law, the argument advanced by learned Counsel for the second respondent-D2-Municipality is neither

helpful to the first respondent/plaintiff, nor to the appellants/D3 to D9, because, in the provisions of neither the Tamil Nadu District Municipalities

Act nor the Tamil Nadu District Municipalities Building Rules, the distance between the water course and the septic tank/cesspool, has been

stated. The second respondent/D2-Municipality through its Commissioner, himself admitted in the written statement that there had been a distance

of 27 feet between the soak-pit and the plaintiff''s Well on the eastern side and there is a distance of 25 feet between the same soak-pit and the

plaintiff''s another Well on the western side. This will clearly prove that there is violation of Section 32 of the Tamil Nadu Public Health Act.

While considering Section 32 of the Tamil Nadu Public Health Act along with the learned Advocate Commissioner''s report and plan, I am of

the view that the the word ""cesspool"" is synonymous to the word ""septic tank"". Further, the appellants/D3 to D9 have never let in any evidence in

respect of the maintenance of septic tanks. But as per Section 32 of the Tamil Nadu Public Health Act, the distance between the water course and

the cesspool should be minimum 50 feet. Admittedly, in this case, the alleged septic tanks are constructed by the then first defendant (deceased)

within 50 feet of the Well of the first respondent/plaintiff and hence, it has to be held that the septic tanks are constructed in violation of Section 32

of the Tamil Nadu Public Health Act. In such circumstances, there is also no necessity to give any finding as to whether the septic tanks have been

properly maintained or not, and it is also not necessary to give a finding that if the septic tanks have been properly maintained, it will not affect the

Well water.

Therefore, the trial Court and the first appellate Court have considered all the above aspects in proper perspective and came to the correct

conclusion. I do not find any merits in the argument advanced by learned Counsel for the appellants/D3 to D9. The substantial questions of law are

answered in favour of the first respondent/plaintiff and against the appellants/D3 to D9. There is no infirmity or illegality or irregularity in the

impugned judgments and decrees of both the Courts below and the same are liable to be confirmed.

In fine:

(a) The Second Appeal is dismissed.

(b) The impugned judgments and decrees of both the Courts below are confirmed.

(c) No costs.

(d) Time limit for removing the septic tanks by the appellants/D3 to D9 (legal heirs of the deceased first defendant), is three months from today.