Varghese V P vs Superintending Engineer
2023 Latest Caselaw 2003 Ker

               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

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

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

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