IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4895 of 2009(G)
1. IVRCL INFRASTRUCTURES AND PROJECT
... Petitioner
Vs
1. BHARAT SANCHAR NIGAM LIMITED,
... Respondent
2. THE KERALA WATER AUTHORITY,
3. THE PROJECT MANAGER, JBIC ASSISTED
4. THE DISTRICT COLLECTOR, ALAPPUZHA.
5. THE DEPUTY TAHSILDAR (R.R), CHERTHALA.
6. THE VILLAGE OFFICER, THANNIRMUKKAM
7. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.K.K.CHANDRAN PILLAI
For Respondent :SRI.MATHEWS K.PHILIP,SC, BSNL
The Hon'ble MR. Justice K.M.JOSEPH
Dated :02/03/2009
O R D E R
K. M. JOSEPH, J.
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W.P.C. NO. 4895 OF 2009 G
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Dated this the 2nd March, 2009
JUDGMENT
Petitioner challenges Exts.P40 and P41 as evidenced by
Clause 4 of Ext.P38. The prayers, inter alia, are as follows:
“ii. Issue a writ in the nature of certiorari or
such other appropriate writ, order or directions
quashing Exts.P40 and P41 and the decision
evidenced by Clause 4 of Ext.P38.
iii) Issue a writ in the nature of mandamus
or such other appropriate writ, order or direction
commanding the 1st respondent to co-operate for
the joint inspection on the basis of Exts.P20, P25
etc. and abide by the results of such inspection.
iv) Declare by issuance of appropriate writ,
order or direction that the petitioner is not liable
to pay any compensation to the 1st respondent on
the basis of the agreement between the petitioner
and the 2nd respondent.”
There are further prayers relating to the irrecoverability under
the Revenue Recovery Act, including without deciding actual
WPC. 4895/09 G 2
damage.
2. Petitioner Company entered into an agreement with the
second respondent for the laying of pipes in the area covered by
Phase II and III from Thaikkattukara to different villages of
Cherthala Taluk. The Project is intended to give drinking water
to more than six lakhs of people. It is the case of the petitioner
that digging is to be done by the petitioner by using JCB. The
first respondent BSNL is alleged to have interfered stating that
the cables were damaged, meetings were convened and
decisions were taken. Ext.P2 is a tripartite agreement between
the petitioner, the BSNL and the Kerala Water Authority.
Clauses 3 and 4 being relevant, they are extracted below:
“3. If local/OF cable is damaged on course
of the work, IVRCL has to settle all the dispute
regarding the claim in consultation with BSNL.
BSNL will prepare the estimate in consultation
with M/s. IVRCL (BSNL has to ensure the
correctness of the estimate before sending it to
IVRCL for making (4) payment) and raise demand
note as per BSNL HQ instructions for damage vide
WPC. 4895/09 G 3
letters No:110-7/2002-Regin dated 5th October,
2004 and No:110-7/2002-Regin dated 16-01-2003
of Jt. DDG (Regulation-1, BSNL HQ.Delhi (copies
attached) to M/s. IVRCL, if M/s. IVRCL is not
paying the bill within 30 days, KWA JBIC project
will pay the amount to BSNL within 30 days by
recovering the amount from Running bill at KWA
Office, Tvm.”
The revenue recovery notices, in short, are raised at the instance
of the first respondent claiming compensation for the alleged
damage done by the petitioner. A Counter Affidavit is filed on
behalf of the first respondent BSNL.
3. I heard the learned counsel for the petitioner, learned
standing counsel appearing on behalf of respondents 1 and 2,
and also the learned Government Pleader. Exts.P37 and P39 are
the Minutes of the District Collector. Ext.P44 is the Minutes of
the Meeting held by the Additional Secretary, Water Resources
Department. In short, it is contended that there may be a joint
inspection. Of course, according to the learned counsel for the
WPC. 4895/09 G 4
first respondent BSNL, as also the Kerala Water Authority, a
joint inspection was already commenced on 20.9.2008.
4. After having heard the parties, I am of the view that
interest of justice will be subserved, if a joint inspection is
ordered to be conducted in the presence of the representatives of
the petitioner, the first respondent and the Water Authority and
under the watchful eyes of the representative of the District
Collector, Alappuzha. In this regard, I take note of clause 3 of
Ext.P2 tripartite agreement which, undoubtedly, contemplates
the first respondent taking the petitioner into confidence in the
matter of raising a claim for damage, if any, caused by the
petitioner. Accordingly, the Writ Petition is disposed of as
follows:
A joint inspection will be conducted in regard to the
various demands of the first respondent in the presence of the
representatives of the petitioner, the first respondent and also the
second respondent Water Authority. The fourth respondent
District Collector will convene a meeting of the representatives
WPC. 4895/09 G 5
of the petitioner, and respondents 1 and 2. No notice need be
issued to them and in view of the urgency of the matter, the
representatives as aforesaid will be present in the office of the
fourth respondent at 11 AM on 10.03.2009. The fourth
respondent District Collector will, after deliberations with the
representatives, fix a schedule of the dates on which the
inspections in regard to the various demands are to be held.
The representatives of the petitioner and respondents 1 and 2
will be present, so that the joint inspection is carried on
smoothly. The schedule of dates shall be so arranged that the
joint inspection should be completed within ten weeks from
10.03.2009. The representative of the fourth respondent will be
present at the time of all the joint inspections. Should there arise
any dispute during the carrying out of the joint inspection, the
representative of the District Collector shall immediately bring it
to the notice of the fourth respondent and further steps will be
taken as directed by the fourth respondent. The costs will be
defrayed by the party who was meeting the costs earlier. I also
WPC. 4895/09 G 6
make it clear that the joint inspection which was already
completed need not be reopened. The revenue recovery
proceedings against the petitioner will be kept in abeyance
unless and until the inspections are completed as directed.
Provided the second respondent will ensure that there are
sufficient funds to meet the demands due to the first respondent
from the petitioner, it will be open to the second respondent to
release monthly payments.
Sd/=
K. M. JOSEPH, JUDGE
kbk.
// True Copy //
PS to Judge