Mini Jayan vs Asst. Executive Engineer

Kerala High Court

Mini Jayan vs Asst. Executive Engineer on 23 May, 2024

Author: P.V.Kunhikrishnan

Bench: P.V.Kunhikrishnan

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
          THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
                     WP(C) NO. 28542 OF 2016
PETITIONERS:

      1    MINI JAYAN
           W/O.K.C.JAYAN, POLAKKAL HOUSE,KAVIYOOR TALUK,
           THIRUVALLA,PATHANAMTHITTA-689 582.
      2    JYOTHI LAKSHMI
           W/O.MOHANDAS, SREEPADMAM (HOUSE),KAVIYOOR TALUK,
           THIRUVALLA, PATHANAMTHITTA-689 582.
           BY ADVS.
           SRI.VARUGHESE M EASO
           SMT.JISEMOL THOMAS
           SRI.VIVEK VARGHESE P.J.

RESPONDENTS:

      1    ASST. EXECUTIVE ENGINEER
           PWD MALLAPPALLY ROADS DIVISION,
           MALLAPPALLY PO-689 582.
      2    THE ASSISTANT ENGINEER
           PWD MALLAPPALLY ROADS DIVISION,
           MALLAPPALLY PO-689 585,
           PATHANAMTHITTA DISTRICT.
      3    C.C.KRISHNANKUTTY
           CHERIYAPOLAKKAL,NJAL BHAGAM,
           KAVIYOOR PO-689 582,THIRUVALLA,
           PATHANAMTHITTA.
           BY ADV SRI.K.N.RADHAKRISHNAN THIRUVALLA

OTHER PRESENT:

           SRI.B.S.SYAMANTAK, GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   23.05.2024,   THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C).No.28542/2016

                                    2




                   P.V.KUNHIKRISHNAN, J.
                    --------------------------------
                   W.P.(C).No.28542 of 2016
             ----------------------------------------------
            Dated this the 23rd day of May, 2024


                               JUDGMENT

This writ petition is filed with following prayers:

i. a writ of certiorari calling for the records pertaining to Ext.P2 and P3 and quash the same; ii. a writ of mandamus, direction or order directing the 1st respondent to dispose of the Exhibits P4 and P5 representations within a time frame in accordance with law and on merits after providing an opportunity of hearing to the petitioners or their representatives. iii. a writ of Mandamus, direction or order to the 1 st and 2nd respondents not to demolish the constructions which are continuing in the use of petitioners as boundary wall and car shed, as narrated in Exhibit P4 and P5;

     iv.    cost of the proceedings;
     v.     to grant any other reliefs which this Honourable

Court may deem fit and proper considering the nature and circumstances of the case.

(SIC)

2. Petitioners are aggrieved by Exts.P2 and P3 WP(C).No.28542/2016 3 notices. According to the petitioners, their properties are lying about 3 meters below level from the road and they are legally entitled to continue to use the access way to their residential home from the PWD Road. It is also the case of the petitioners that they have not encroached any road area for any construction and from Ext.P1 photograph itself it is clear that the boundary wall is situated 3 feet away from the electric post and there is no way to affect the traffic of the PWD Road is the submission. The petitioners received Exts.P2 and P3 notices issued by the 1st respondent, directing to remove the construction activities within 7 days from the receipt of the notices. The petitioners submitted Exts.P4 and P5. The same is not considered. Hence this writ petition.

3. Heard the learned counsel for the petitioners and the learned Government Pleader.

4. When this writ petition came up for consideration on 29.08.2016, this Court stayed the impugned notices for a period of three weeks and the same was extended until further orders on 24.10.2016. The interim order is in force even now.

5. After hearing both sides, I am of the considered opinion that Exts.P2 and P3 are issued without giving WP(C).No.28542/2016 4 sufficient opportunity of hearing to the petitioners. Therefore, Exts.P2 and P3 can be treated as show-cause notices and the petitioners can be allowed to file a reply to the same within a time frame and there can be a direction to dispose the same after giving an opportunity of hearing to the petitioners.

Therefore, this writ petition is disposed of with following directions:

1. Exts.P2 and P3 shall be treated as show-

cause notices.

2. The petitioners shall submit their reply to Exts.P2 and P3 within ten days from the date of receipt of a copy of this judgment.

3. Once the reply is received, the 1 st respondent will consider the same and pass appropriate orders in it, after affording an opportunity of hearing to the petitioners, as expeditiously as possible, at any rate, within four months from the date of receipt of the reply.

4. All further proceedings consequent to WP(C).No.28542/2016 5 Exts.P2 and P3 shall be deferred till final orders are passed as directed above.

sd/-

                                     P.V.KUNHIKRISHNAN
JV                                          JUDGE
 WP(C).No.28542/2016

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                 APPENDIX OF WP(C) 28542/2016

PETITIONER EXHIBITS
EXHIBIT P1 :      TRUE   PHOTOGRAPHS   SHOWING    EXISTING
                  CONSTRUCTIONS.
EXHIBIT P2 :      TRUE COPY OF NOTICE NO.D1 74/15-16 DT

11-7-2016 ISSUED BY THE 1ST RESPONDENT TO 1ST PETITIONER.

EXHIBIT P3 : TRUE COPY OF NOTICE NO.D1 74/15-16 DT NIL ISSUED BY THE 1ST RESPONDENT TO 2ND PETITIONER.

EXHIBIT P4 : TRUE COPY OF THE REPLY DT 18-7-2016 BY THE 1ST PETITIONER TO THE ASST.

ENGINEER, PWD, MALLAPPALLY.

EXHIBIT P5 : TRUE COPY OF THE REPLY DT 18-7-2016 BY THE 2ND PETITIONER TO THE ASST.

ENGINEER, PWD, MALLAPPALLY.

EXHIBIT P6 : TRUE COPY OF ORDER DATED 5-5-2016 OF THE OMBUDSMAN, LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM.