Review petition filed challenging a judgment in W.A. No. 695/2022 wherein the Superintending Engineer was directed to assess damages. Court noted compliance and dismissed the review petition.
Review petition dismissed; order dated 27.08.2022 by Superintending Engineer formed part of the record.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY,THE 23RD DAY OF NOVEMBER 2022/2ND AGRAHAYANA, 1944
R.P.NO. 577 OF 2022
AGAINST THE JUDGMENT IN W.A.NO.695/2022 DATED 15.06.2022 OF THE HIGH COURT OF KERALA
REVIEW PETITIONER/RESPONDENT/WRIT PETITIONER:
M/S. KAIKARA CONSTRUCTION COMPANY, KAITHAVARAM BUNGLOW, THIRUMULLAVARAM P.O, KOLLAM 691 012, A PARTNERSHIP FIRM, REP. BY ITS MANAGING PARTNER, A. ABDUL SALAM, KAITHAVARAM BUNGALOW, THIRUMULLAVARAM P.O, KOLLAM 691 012.
BY ADV.K.BABU THOMAS
RESPONDENTS/APPELLANTS/RESPONDENTS:
1 STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001
R.P. No. 577/2022 in W.A. No. 695/2022
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BY SRI.K.V.MANOJ KUMAR,SPECIAL GOVERNMENT PLEADER
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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ORDER
S. Manikumar, C.J.
Being aggrieved by the judgment in W.A.No.695/2022, dated 15.06.2022, instant review petition is filed, mainly on the ground that the Superintending Engineer, Harbour Engineering North Circle, Eranhipalam P.O., Kozhikode, is not the competent authority to assess and determine the damages or to take a decision on the claim made by the review petitioner.
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was eventually terminated. Mr.Babu Thomas K., learned counsel for the review petitioner, further contended that in as much as the jurisdiction of the authority of the third respondent is questioned in the review petition, review petitioner did not appear or respond to the notice issued to him. Submission of the learned counsel for the review petitioner is placed on record.
“7. On a perusal of Ext. P7 order dated 28.05.2009, we are of the view that no opportunity has been given to the respondent/writ petitioner before assessing the damages and
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therefore, the writ court has not committed any manifest error in arriving at such a conclusion. Rightly observed, it is a unilateral decision of the Government.
8. Further, when as rightly observed by the writ court, an assessment is disputed by respondent No.1, principles of natural justice would be attracted and in such circumstances, the respondent/writ petitioner is entitled to get an opportunity. When the same was pointed out, Mr. K.V. Manoj Kumar, learned Special Government Pleader, submitted that the respondent/writ petitioner would be given an opportunity of hearing by the competent authority before the assessment of any damages, if any, sustained by the party.
9. At this juncture, Mr. K. Babu Thomas, learned counsel for the respondent No.1/writ petitioner, submitted that the Government has to make certain payments and Ext. P18 demand dated 31.07.2017 has been submitted by the writ petitioner to the State of Kerala, represented by the Secretary to Government, Fisheries and Ports Department, Secretariat, Thiruvananthapuram - 695 001 and the Superintending Engineer, Harbour Engineering (North Circle), Eranhipalam, Kozhikode – 673 006. The submission made by the learned counsel for the appellants is placed on record.
10. When an opportunity of hearing to be provided before the assessment of the damages, it is not necessary for either of the parties to approach the civil court for the redressal of the same. That apart, adjudication of matter before civil court takes a longer time, which would not be beneficial to either of the parties and for the settlement of disputes regarding the damages/demands made in Ext. P18.
11. In that view of the matter, we sustain the impugned judgment dated 11.03.2022 made in W.P.(C) No. 31363 of 2009 quashing Ext. P7, P22 and P23 respectively. However, we set aside the impugned judgment to the extent
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it directs the parties to approach the civil court concerned. In that view of the matter, the competent authority shall issue a notice setting out the details to the respondent/writ petitioner before showing the details of the alleged damages. On receipt of such a notice, the respondent/writ petitioner shall submit appropriate reply with supporting documents, within two weeks thereafter.
12. While doing so, it is always open to the respondent/writ petitioner to place Ext. P18 demand with supporting documents before the concerned authority, who, after considering the entire materials on record and providing an opportunity of hearing, shall take appropriate decision on the issue of assessment of damages/demand made by the respondent. The entire exercise shall be completed within two months from the date of receipt of a copy of this judgment.
13. However, we make it clear that the outcome of the above said exercise shall not be challenged in proceedings under Article 226 of the Constitution of India being a matter that would be surrounded by facts and evidence as regards the damages/demand; and depending on the outcome, the aggrieved party may approach the civil court.
With the above observations and modifications, this appeal is allowed in part.”
dated 15.06.2022 in W.A.No.695/2022 is acted upon and that
an order, as supra, has been passed. The question as to whether the third respondent, Superintending Engineer, is competent to assess the damages/take a decision on a claim made by the review petitioner, can always be raised before the Civil Court.
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correctness of the order on merits and on all tenable grounds raised.
Superintending Engineer, Harbour Engineering North Circle, Kozhikode, shall form part of the record.
The review petition is dismissed, accordingly.
Sd/-
S. MANIKUMAR CHIEF JUSTICE
Sd/-
SHAJI P. CHALY JUDGE
DCS/23.11.2022
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APPENDIX
PETITIONER'S ANNEXURE
ANNEXURE A1 TRUE COPY OF SYNOPSIS AND CHRONOLOGY OF EVENTS IN W.P.(C.) NO. 31363 OF 2009 ANNEXURE A2 TRUE COPY OF REPLY SUBMITTED BY THE REVIEW PETITIONER TO THE NOTICE DATED 17.08.2022
2 issues framed by the court
Whether the review petitioner could challenge the competency of the Superintending Engineer to assess damages.
Whether the directions issued in the reviewed judgment regarding suit filing have been complied with.
M/s Kaikara Construction Company
State of Kerala
The Chief Engineer, Harbour Engineering Department
The Superintending Engineer, Harbour Engineering North Circle
The Executive Engineer, Harbour Engineering Division
The District Collector, Malappuram
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
