IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 3RD DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944
WP(C) NO. 3153 OF 2023
PETITIONER:
VARGHESE V P
AGED 77 YEARS
S/O PHILIPOSE, VADAKKEMECHERIL HOUSE,
ANCHELPETTY P.O, ONAKKOOR,
ERNAKULAM DISTRICT, PIN - 686667
BY ADV MANOJ P.KUNJACHAN
RESPONDENTS:
SUPERINTENDING ENGINEER
IRRIGATION DEPARTMENT,
MUVATTUPUZHA VALLEY IRRIGATION PROJECT,
PROJECT CIRCLE, MUVATTUPUZHA,
PIN - 686669
SMT.DEEPA.N,SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.3153 of 2023
2
JUDGMENT
Dated this the 3rd day of February, 2023 This writ petition is filed by the petitioner seeking to quash the order passed by the Superintending Engineer, water Resources Department, Project Circle, Muvattupuzha dated 18.01.2023, whereby the petitioner, who was permitted to construct a culvert was directed to pay an amount of Rs.1,43,030/- towards cost of 81.90 M3 sand used by the petitioner for his own purposes. The prime contention put forth by the petitioner is that, petitioner has not taken away the ordinary sand and the petitioner has completed the works in terms of Ext.P3 agreement executed by and between the parties. It is also submitted that Ext.P6 order is passed without taking into consideration Ext.P5 representation submitted by the petitioner and without hearing the petitioner and therefore Ext.P6 order suffers from the vice of arbitrariness and illegality.
2. Learned Senior Government Pleader on instructions submitted that as per clause 10 of Ext.P3 agreement the property, structures, bunds, appurtenants and the like W.P.(C) No.3153 of 2023 3 belonging to the Irrigation Department shall not be used by the permit holder without the written permission of the Irrigation Officer and Custodian Officer; any damage to any of the above, identified by the Irrigation Officer and Custodian Officer shall be treated as caused by the permit holder and accordingly treated as his sole liability. Learned Senior Government Pleader also pointed out that, Ext.P6 order was passed by the Superintending Engineer also taking into consideration the inspection conducted by the Superintending Engineer on 17.12.2022. The sum and substance of the contention advanced by the learned Senior Government Pleader is that no interference is required to Ext.P6 order passed by the Superintending Engineer.
3. I have evaluated the rival submissions made across the bar. In my considered opinion Ext.P6 is a non speaking order, it only states that the petitioner has removed ordinary sand measuring 81.90 M3 from MVIP property and therefore the petitioner is liable to pay an amount of Rs.1,43,030/-. In my considered opinion before a quantification is done at least the Superintending Engineer should have taken note of the W.P.(C) No.3153 of 2023 4 submission made by the petitioner in Ext.P5 representation, wherein it is stated that the ordinary sand was used for filling up a pit. In my opinion, when a liability was to be fixed on a person, the aggrieved person should have been heard before passing the orders especially when recovery is contemplated by the statutory authority. In that view of the matter, I think the writ petition can be allowed setting aside Ext.P6 and direct the Superintending Engineer to reconsider the matter after providing an opportunity of hearing and participation of the petitioner.
Therefore, the writ petition is allowed, Ext.P6 is quashed and consequently, there will be a direction to the Superintending Engineer to issue a notice to the petitioner within three weeks from the date of receipt of a copy of this judgment and finalize the proceedings at the earliest, at any rate, within six weeks from thereafter.
Sd/-
SHAJI P. CHALY JUDGE AP W.P.(C) No.3153 of 2023 5 APPENDIX OF WP(C) 3153/2023 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE RESPONDENT DATED 15/07/2020 Exhibit P2 TRUE COPY OF THE RESOLUTION PASSED BY THE THIRUMARADY GRAMA PANCHAYATH DATED 01/07/2020 Exhibit P3 TRUE COPY OF THE PERMIT DATED 27/01/2021 ISSUED BY THE RESPONDENT Exhibit P4 TRUE COPY OF THE AGREEMENT DATED 30/01/2021 Exhibit P5 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 02/12/2022 Exhibit P6 TRUE COPY OF THE COMMUNICATION ISSUED BY THE RESPONDED DATED 18/01/2023