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.
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W.P.(C).No.28542 of 2016
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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
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
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
Exts.P2 and P3 shall be deferred till
final orders are passed as directed
above.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
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.
