Mohamed Shari vs The Pwd Assistant Executive ...
2021 Latest Caselaw 4134 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                      W.P.(C) No.29236 OF 2020(D)

PETITIONER:

               MOHAMED SHARI,
               AGED 65 YEARS, S/O. KUNJUMOIDHEN,
               MARAAPARAMBIL, KUNJITHI,
               N. PARAVUR, ERNAKULAM DISTRICT.

               BY ADVS.
               SRI.K.S.RAJESH
               SRI.M.SHAJU PURUSHOTHAMAN

RESPONDENTS:

      1        THE PWD ASSISTANT EXECUTIVE ENGINEER,
               PWD ROAD DIVISION, N. PARAVUR,
               ERNAKULAM DISTRICT, PIN-683 513.

      2        GIRIVAASAN,
               S/O. VELAYUDHAN,
               EAARUTHARA HOUSE,
               KUNJITHAI, ERNAKULAM DISTRICT,
               PIN-683 522.

      R1       SMT A.C.VIDHYA, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.29236 OF 2020(D)
                                        -2-


                                JUDGMENT

The petitioner, who is conducting an ice plant under the

license issued by Vadakkekara Grama Panchayat bearing No.A3-

2165/2019-20-120, has filed this writ petition under Article 226 of

the Constitution of India, seeking a writ of mandamus

commanding the 1st respondent to consider and pass appropriate

orders on Ext.P1 representation dated 13.10.2020, at the earliest,

within a time limit to be fixed by this Court.

2. Going by the averments in the writ petition, the

petitioner's ice plant is situated on the side of a public road having

a width of 4 metres lying in East-West direction starting from

Kunjithi Ferry to Munambam Kavala. The grievance of the

petitioner is against a bunk erected by the 2 nd respondent, which

is causing obstruction to the use of public road by the petitioner

and others. Pointing out the said fact, the petitioner submitted

Ext.P1 representation before the 1 st respondent Assistant

Engineer, PWD Roads Division, North Paravur.

3. On 04.01.2021, when this writ petition came up for

admission, the learned Government Pleader took notice for the 1 st

respondent. Urgent notice on admission by speed post was

ordered to the 2nd respondent, returnable within ten days. The W.P.(C) No.29236 OF 2020(D)

learned Government Pleader sought time to get instructions from

the 1st respondent.

4. Heard the learned counsel for the petitioner and also

the learned Government Pleader appearing for the 1 st respondent.

Despite service of notice, none appears for the 2nd respondent.

5. The learned Government Pleader, on instructions, would

submit that Ext.P1 representation made by the petitioner is still

pending consideration before the 1st respondent.

6. The learned counsel for the petitioner would submit

that an early disposal of that representation is highly essential,

with notice to the petitioner.

7. Having considered the submissions made by the

learned counsel on both sides, this writ petition is disposed of,

without expressing anything as to the merits of the complaint

made by the petitioner in Ext.P1, by directing the 1 st respondent

to consider and take an appropriate decision on Ext.P1

representation made by the petitioner, with notice to the

petitioner and also to the 2nd respondent, and after affording them

an opportunity of being heard, as expeditiously as possible, at any

rate, within two months from the date of receipt of a certified W.P.(C) No.29236 OF 2020(D)

copy of this judgment.

8. In State of U.P. v. Harish Chandra [(1996) 9 SCC

309] the Apex Court held that no mandamus can be issued to

direct the Government to refrain from enforcing the provisions of

law or to do something which is contrary to law. In Bhaskara Rao

A.B. v. CBI [(2011) 10 SCC 259] the Apex Court reiterated

that, generally, no Court has competence to issue a direction

contrary to law nor can the Court direct an authority to act in

contravention of the statutory provisions. The courts are meant to

enforce the rule of law and not to pass the orders or directions

which are contrary to what has been injected by law.

9. Therefore, in terms of the direction contained in this

judgment, the 1st respondent shall take an appropriate decision in

the matter, strictly in accordance with law, taking note of the

relevant statutory provisions and also the law on the point.

No order as to costs.

Sd/-

ANIL K. NARENDRAN JUDGE bpr W.P.(C) No.29236 OF 2020(D)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 13.10.2020 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

RESPONDENTS' EXHIBITS: NIL