Dr.Abdul Azeez vs State Of Kerala
2022 Latest Caselaw 2100 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
        THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 24TH DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943
                      WP(C) NO. 29586 OF 2021
PETITIONER:

            DR.ABDUL AZEEZ,
            AGED 65 YEARS
            S/O.M.T.MOHAMMED HAJI, 127/2, MLA ROAD,
            PUNKUNNAM, THRISSUR-680 002.
            BY ADVS.
            AAMIR SOHRAB M. M.
            E.ADITHYAN

RESPONDENTS:

    1       STATE OF KERALA,
            REPRESENTED BY THE PRINCIPAL SECRETARY TO
            GOVERNMENT OF KERALA, FINANCE (PRU) DEPARTMENT,
            SECRETARIAT, THIRUVANANTHAPURAM-695 001.
    2       SECRETARY TO GOVERNMENT,
            IRRIGATION DEPARTMENT, GOVERNMENT OF KERALA,
            SECRETARIAT, THIRUVANANTHAPURAM-695 001.
    3       SUPERINTENDING ENGINEER,
            MINOR IRRIGATION CIRCLE (ERNAKULAM), SHANMUGHAM
            ROAD, ERNAKULAM-682 031.
    4       DISTRICT COLLECTOR, THRISSUR,
            CIVIL STATION, AYYANTHOLE, THRISSUR DISTRICT-680
            003.
    5       A.IBRAHIM KUTTI,
            VALIYATH HOUSE, PUTHENCHANTHA P.O., CHAVARA,
            KOLLAM-686 538.
OTHER PRESENT:

            SMT.DEEPA NARAYANAN, SR.GP


     THIS     WRIT   PETITION    (CIVIL)     HAVING    COME    UP    FOR
ADMISSION     ON   24.02.2022,    THE     COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C).No.29586/2021

                                      2




                     P.V.KUNHIKRISHNAN, J.
                      --------------------------------
                     W.P.(C).No.29586 of 2021
               ----------------------------------------------
            Dated this the 24th day of February, 2022


                             JUDGMENT

This writ petition is filed with following prayers:

i. Issue a writ of Mandamus or any other appropriate writ, order or direction commanding respondent No.3 to act upon Exhibit-P8 representation.

ii. Issue a writ of Mandamus or any other appropriate writ, order or direction commanding respondent No.4 to regluarize the meetings of the committee to be constituted under Exhibit-P2 and to produce the same before this Hon'ble court. iii. Issue an appropriate writ, order or direction to respondent No.3 stating that no further sand excavation be allowed/work permit be issued in favour of respondent No.5 until the meetings of the committee to be constituted under Exhibit-P2 order are regularized and produced before this Hon'ble Court.

iv. Grant/issue any other relief/order/direction which the Hon'ble Court deems fit and just in the light of the facts and circumstances of this case. W.P.(C).No.29586/2021

2. Petitioner is the owner of certain items of property

at Palloor Village, situated near the banks of Bharathapuzha.

The 3rd respondent had allowed the 5 th respondent to extract

56000 cubic meters of sand from the areas adjoining the

petitioner's property by way of a work permit dated

08.06.2020 issued in furtherance of his authority under Ext.P2

order. It is the case of the petitioner that the 3 rd respondent

had failed to comply with the provisions of Ext.P2 order and

the original permit expired on 11.06.2021. It is the further

case of the petitioner that the same was illegally extended

again until 10.12.2021. According to the petitioner, the 5 th

respondent has however been extracting sand in an

unscientific and unregulated manner and this caused

significant damage to the petitioner's property. According to

the petitioner, when this writ petition is filed, there is no work

permit in favour of the 5th respondent and he continues to

illegally extract sand. It is the further case of the petitioner

that Ext.P2 stands violated by respondents 3 and 5. The

petitioner submitted a representation in this regard and when

there is no response, this writ petition is filed.

3. Heard the learned counsel for the petitioner and W.P.(C).No.29586/2021

the learned Government Pleader. None appears for the 5 th

respondent.

4. The learned counsel for the petitioner reiterated his

contentions in the writ petition. The learned counsel

submitted that there is further extension after 31.12.2021 and

there is no review as per Clause 4(h) of Ext.P2 Government

Order. The learned counsel takes me through Clause 4(h) of

Ext.P2 and submitted that even without a review, the 5 th

respondent is extracting sand.

5. The learned Government Pleader, on the other

hand, submitted that the prayers in the writ petition are

infructuous. The learned Government Pleader takes me

through the prayers in the writ petition and also the counter

affidavit filed by the 3rd respondent.

6. This Court considered the contentions of the

petitioner and the learned Government Pleader. The main

prayer in the writ petition is to consider Ext.P8. In paragraph

11 of the counter affidavit it is clearly stated that the

representation is considered and all steps were taken. As far

as the second and third prayers are concerned, the learned

Government Pleader takes me through paragraphs 9 and 10 of W.P.(C).No.29586/2021

the counter affidavit. It will be better to extract paragraphs 9

and 10:

"9. As per agreement No. 01/SEMICC/2020-21 dated 08.06.2010, the time of the completion of the work undertaken by the 5th respondent was 10.06.2021. But due to various factors like lockdown in Covid 19 pandemic situation to raise water tables during summer seasons for agriculture and for drinking water purpose by lowering the shutter, intermittent rain falls etc. the contractor could not complete the work in the prescribed time of completion. Hence as per the provisions in PWD manual para 2112, in case of failure to complete the work on the stipulated date due to any unexpected problems like natural calamity, Department delays and construction problems during KER execution the contractor can apply for an extension of time through Assistant Engineer before the expiry of the period of completion and agreement authority has the power to take decision in such cases with the recommendations from executing authorities. Hence as per the application submitted by the contractor on 20.05.2021 and after considering the recommendation from Executive Engineer M 1 Division Palakkad vide letter to A4.

D1-Desiltating/2020 dated 21.05.2021, the agreement authority (3rd respondent) extended the time of completion up to 31.12.2021 vide order No. D7(D1)118 dated 24.05.2021 and supplemental W.P.(C).No.29586/2021

agreement was executed for the same. It is submitted that there were no dishonest vested interest or unreasonable conditions regarding the extension of time of completion and the contractor is allowed to remove only 56000 cubic meter silt as per the original agreement.

10. It is true that as per clause 4.sub clause of GO 0/2019/WRD dated 08/11/2018, a committee with concerned District Collector as its Chairman, concerned Superintending Engineer as its Convenor and concerned District Police Chief, Executive Engineer, PWD (Roads) Joint road transport officer. Divisional Forest officer, Geologist, Revenue divisional officers as its members is required to meet every 2 months to supervise observe and integrate all desiltation activities carried out as per Government order. Based on the same several meetings were conducted and the last meeting was held on 11.11.2021. A true copy of the minutes of meeting dated 11.11.2021 is produced herewith and marked as Exhibit R3(a). Therefore, the petitioner's contention that Committee with 4th respondent as it Chairman has not convened a meeting to supervise, observe and integrate all desiltation activity is incorrect."

7. Now the learned counsel for the petitioner

submitted that there is further extension given to the 5 th

respondent from 31.12.2021 and there is no review as per W.P.(C).No.29586/2021

Clause 4(h) of Ext.P2 order. If that is the case, there can be a

direction to the authority concerned to do the needful to

conduct the review in accordance to Clause 4(h) of Ext.P2

Government Order.

Therefore, this writ petition is disposed of in the

following manner:

1. The 4th respondent will convene the meeting of

Committee as per Clause 4(h) of Ext.P2 and

will do the needful in accordance to the

Government Order, if it is not already done.

The Committee will also consider the

contention of the petitioner that the 5 th

respondent already extracted 56000 cubic

meters of sand.

2. If the above review is not done as per Clause

4(h), the same should be done, as expeditiously

as possible, at any rate, within two weeks from

the date of receipt of a copy of this judgment.

sd/-

                                            P.V.KUNHIKRISHNAN
JV                                                 JUDGE
 W.P.(C).No.29586/2021






                 APPENDIX OF WP(C) 29586/2021

PETITIONER EXHIBITS
Exhibit P1        TRUE COPY OF THE TAX RECEIPT DATED

27.09.2017 ISSUED IN LIEU OF THE LAND TAX PAID BY THE PETITIONER FOR HIS 71.75 ARES OF PROPERTY.

Exhibit P2 TRUE COPY OF THE GOVERNMENT ORDERDATED 08.11.2019.

Exhibit P3 TRUE COPY OF A PHOTOGRAPH SHOWING THE EXTRACTION ACTIVITY CARRIED OUT BY RESPONDENT NO.5 RIGHT BESIDE THE PETITIONERS PROPERTY.

Exhibit P4 TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT DATED 09.08.2021.

Exhibit P5 TRUE COPY OF THE ORDER DATED 24.05.2021 AND BEARING NUMBER D7(D1)/118/PQ/2020 ISSUED BY RESPONDENT NO.3.

Exhibit P6 TRUE COPY OF THE SUPPLEMENTAL AGREEMENT DATED 11.06.2021 EXECUTED BY RESPONDENT NO.3 IN FAVOUR OF RESPONDENT NO.5.

Exhibit P7 TRUE COPIES OF THE PHOTOGRAPHS SHOWING THE DESTRUCTION AND DAMAGE THAT HAS BEEN CAUSED TO THE PETITIONERS PROPERTY BY THE ILLEGAL EXTRACTION CARRIED OUT BY RESPONDENT NO.5.

Exhibit P8 TRUE COPY OF REPRESENTATION FILED BY PETITIONER BEFORE RESPONDENT NO.3 DATED 08.12.2021.