Disposed

M/S.Mallelil Industries Pvt. Ltd. v. the Assistant Executive Engineer

Kerala HC11 Jul 2024WP(C)/30390/2015

Case brief

AI extract

What is this about?

The petitioner challenged a notice demanding payment of centage value for a bridge constructed over a thodu. The court found the notice violated natural justice due to the lack of prior notice and hearing, ordering the respondent to treat the document as a notice and decide within two months after affording an opportunity to be heard.

What did the court decide?

Directed respondent to treat Ext. P7 as notice, provide time for reply, and decide within two months of judgment copy after hearing opportunity.

M/S.Mallelil Industries Pvt. Ltd. Vs the Assistant… — Property and Title | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.M.MANOJ

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THURSDAY, THE 11TH DAY OF JULY 2024 / 20TH ASHADHA, 1946

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WP(C) NO. 30390 OF 2015

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PETITIONER:

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M/S.MALLELIL INDUSTRIES PVT. LTD ATTACHAKKAL P.O, KONI, PATHANAMTHITTA, REPRESENTED BY ITS MANAGING DIRECTOR, R. SREEDHARAN NAIR.

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BY ADVS.
SRI.PHILIP J.VETTICKATTU
SRI.B.PREMNATH E

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RESPONDENTS:

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1 THE ASSISTANT EXECUTIVE ENGINEER IRRIGATION DEPARTMENT, PATHANAMTHITTA- 689 645.

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2 THE ASSISTANT ENGINEER IRRIGATION SECTION, PATHANAMTHITTA -689 645.

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3 STATE OF KERALA REPRESENTED BY ITS SECRETARY, IRRIGATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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BY ADV GOVERNMENT PLEADER
SRI.VENUGOPAL.V- GP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
11.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 30390 of 2015

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JUDGMENT

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The petitioner company is the holder of an extent of

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32.99 Ares comprised in Sy. Nos. 228/1A2 and 230/1A2/1 of Konni Thazham Village, Konni Taluk, Pathanamthitta District. It is stated by the petitioner that the land is locked by private properties on its three sides except the western boundary. By the western side of the boundary, a small thodu, namely Attachakkal Valiya Thodu, flows. On the further west of the thodu there lies the Panchayat Road, namely Attachakkal Vanchipadi-Kollothukadavu Road. It is stated to be vested with the panchayath. It is further asserted that the petitioner has no other means of access to the said road. Therefore, constructed a culvert across the said thodu for easy access to the panchayath road. It is further stated that the said construction was after obtaining necessary permission from the panchayat and also from the 1^st respondent.

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Now the grievance of the petitioner is that even

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WP(C) NO. 30390 of 2015

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thereafter the 1^st respondent issued Ext. P7 notice whereby directed to remit an amount of Rs. 1,29,375/- as the centage value on calculating the total estimate of the construction. It is asserted by the petitioner that the issuance of Ext. P7 notice demanding a huge amount is without hearing the petitioner and without issuing a prior notice.

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Under such circumstances, seeking a direction to quash Ext. P7 and to direct the respondent not to interfere with the usage of the bridge (culvert) constructed by the petitioner, across the Attachakkal Valiya Thodu. The writ petition was preferred.

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When the matter came up for consideration on 07.10.2015, there was an interim order for a period of one month. It is stated by the petitioner that, on the strength of the interim order and extension granted by this court, the petitioner still keeps using the bridge.

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In response to the writ petition, a counter affidavit

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WP(C) NO. 30390 of 2015

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has been filed by the 1^st respondent, thereby contended that as per the Kerala Government Water Policy enacted by the State in 2005, the rivers, thodu, streams, etc. are vest with the irrigation department. It is a fact that Attachakkal Valiya Thodu is flowing through the Konni panchayat, but the panchayat authorities are not competent enough to sanction construction of a bridge across the thodu. Under such circumstances, the panchayat authority is directed the petitioner to approach the irrigation department for permission for the construction of the bridge. Accordingly, permission was sought from the 1^st respondent, and after necessary inspection, sanction was accorded to construct the bridge at the petitioner’s risk and costs on certain conditions as per Ext. P2. It is further stated by the 1^st respondent that the construction was carried out by the petitioner at his own cost, including all the materials, and as per the terms of Ext. P3. The maintenance of the bridge also vests with the petitioners on the directions of the departmental

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WP(C) NO. 30390 of 2015

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authorities. The 1^st respondent also denies the contention that

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there was no supervision from the part of the departmental authorities. As per the prevailing rules, the petitioner is liable to pay 2.5% of the estimated costs as estimate preparation charges

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and 10% as security deposit. In that regard, a detailed calculation is also provided in the counter affidavit. On the strength of such assertions, it is stated that there is nothing wrong in Ext. P7.

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Heard, Sri. Philip J. Vettickattu, learned counsel for

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the petitioner and the Senior Government Pleader.

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On evaluating the contentions raised, it appears that

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no prior notice was issued before raising the demand as per Ext. P7. The said demand appears to be in violation of the principles of natural justice.

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Under such circumstances, I deem it appropriate to

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direct the 1^st respondent to treat Ext. P7 as a notice, and the petitioner shall be provided with sufficient time to make his

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WP(C) NO. 30390 of 2015

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reply. On considering such a reply, the 1^st respondent shall take

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a decision, needless to say after affording the opportunity to be

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heard within a period of two months from the date of receipt of

copy of Judgment.

Sd/-

P.M. MANOJ

JUDGE

sjb

WP(C) NO. 30390 of 2015

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APPENDIX OF WP(C) 30390/2015

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PETITIONER EXHIBITS

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`EXIBIT-P1`	`TRUE COPY OF` `REMITTANCE OF` `DATED 13.02.20`	`THE` `LAND` `15`	`LAND TAX RECEIPT SHOWING` `FOR THE PERIOD 2013-14`
`EXIBIT-P2`	`TRUE COPY OF` `ISSUED BY THE`	`THE` `1ST R`	`ORDER DATED 19/11/2014` `ESPONDENT.`
`EXIBIT-P3`	`TRUE COPY OF` `EXECUTED BY TH`	`THE` `E PET`	`AGREEMENT DATED 19/11/2014` `ITIONER.`
`EXIBIT-P4`	`TRUE COPY OF` `TAKEN BY THE K`	`THE` `ONNI`	`DECISION DATED 10/02/2015` `GRAMA PANCHAYATH`
`EXIBIT-P5`	`TRUE COPY OF` `CONSTRUCTION O`	`THE` `F THE`	`PHOTOGRAPHS SHOWING THE` `BRIDGE.`
`EXIBIT-P6`	`TRUE COPY OF T` `ISSUED BY THE`	`HE CE` `VILLA`	`RTIFICATE DATED 14/07/2015` `GE OFFICER.`
`EXIBIT-P7`	`TRUE COPY OF` `ISSUED BY THE`	`THE` `1ST R`	`LETTER DATED 22/06/2015` `ESPONDENT.`

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RESPONDENT’S EXHIBITS : NIL

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//TRUE COPY// PA TO JUDGE

M/S.Mallelil Industries Pvt. Ltd. v. the Assistant Executive Engineer

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M/S.Mallelil Industries Pvt. Ltd. v. the Assistant Executive Engineer

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