WP(C) NO. 10642 OF 2013 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
WP(C) NO. 10642 OF 2013
PETITIONER/S:
THE PALAKKAD MUNICIPALITY
REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PALAKKAD-
678001.
BY ADVS.
SRI.BINOY VASUDEVAN
RESPONDENT/S:
1 THE STATE OF KERALA
DEPARTMENT OF LOCAL SELF GOVERNMENT, REPRESENTED BY ITS
SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS
SAPHALYAM COMPLEX, TRIDA BUILDING, UNIVERSITY P.O.,
PALAYALAM, THIRUVANANTHAPURAM-695034.
3 M.HARIKRISHNAN
RESIDING AT MANNAZHI (SAKETHAM), KADAMPAZHIPURAM,
PALAKKAD-678633.
BY ADV SRI.MILLU DANDAPANI R3
OTHER PRESENT:
SMT.DEEPA NARAYANAN, SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 10642 OF 2013 2
P.V.KUNHIKRISHNAN, J
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W.P.(C) No.10642 of 2013
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Dated this the 7th day of July, 2022
JUDGMENT
The above writ petition is filed with following prayers :
(i) Call for the records leading to the issue of Ext.P2 and quash the same by the issue of a writ in the nature of certiorari or other appropriate writ , order or direction
(ii) Declare that the second respondent cannot interfere in the functioning of the Municipality unless as stipulated under Section 271J of the Panchayat Raj Act.
(iii) Issue such other writ, order or direction as this Honourable court deems fit and proper in the circumstances of the case." [SIC]
2. The petitioner - Municipality is aggrieved by Ext.P2 order by which the Ombudsman for Local Self Government Institutions passed certain directions. According to the Ombudsman, strange procedure is adopted by the Palakkad Municipality to change the mutation. It is also stated by the WP(C) NO. 10642 OF 2013 3 Ombudsman that the Municipal Council has passed a resolution deciding to charge different rates for the purpose of changing the name of ownership of the persons. According to the Ombudsman, the slab is fixed in accordance with the price shown in the documents, which start from Rs.100/- and ends at Rs. 50,000/-. It is observed by the Hon'ble Ombudsman that there is no statutory backing and there is no rule making power for the Municipality to do the same. So it is not only undesirable but also absolutely necessary for the Municipal council not to take illegal decision and therefore, it is directed to reconsider the decision, which according to the Ombudsman is necessary because the Municipality has exceeded its limit in doing so. There is also a direction to the Principal Secretary of the Local Self Government Department, Government Secretariat, Thiruvananthapuram in order to bring it to the notice of the Local Self Government Institutions about their power in such matters and also to inform them that the power is vested only with the Government and that too under the enactment. It is WP(C) NO. 10642 OF 2013 4 also stated in the order that after reconsideration, the Municipality has to make reimbursement of the amount to the persons from whom it has been collected when they request for the same. Aggrieved by this order, this writ petition is filed.
3. Heard the learned counsel for the petitioner and the learned counsel appearing for the 3rd respondent.
4. The learned counsel for the petitioner submitted that Ext.P2 order passed by the Municipality is without jurisdiction and it is beyond the powers of the Ombudsman under Sec.271J of the Kerala Panchayat Raj Act. The counsel for the petitioner submitted that there is nothing wrong in Ext. P1 procedure adopted by the petitioner. The counsel also submitted that the Ombudsman passed Ext.P2 order without giving an opportunity of hearing and without giving an opportunity to file an objection. The counsel appearing for the 3rd respondent submitted that there is nothing wrong in Ext.P2 order. The counsel submitted that Ext.P1 is without backing of any law.
5. This Court considered Ext.P2 order. Even as per WP(C) NO. 10642 OF 2013 5 Ext.P2, the Government is the authority to look into this matter. According to the petitioner, the petitioner was not able to file any objection to the complaint. In such circumstances, according to me, the matter can be referred to the Government for a decision after giving an opportunity of hearing to the petitioner and the 3rd respondent. For facilitating the Government to decide the matter, Ext.P2 can be set aside.
Therefore, this writ petition is allowed in the following manner :
1) Ext.P2 is set aside.
2) The petitioner and the 3rd respondent shall submit
a representation narrating their contentions before the 1st respondent within three weeks from the date of receipt of a copy of this judgment.
3) Once those representations are received, the 1st respondent will consider those representations and pass appropriate orders in it, after giving an opportunity of hearing to the petitioner and the 3rd respondent. WP(C) NO. 10642 OF 2013 6
4) The above exercise should be completed by the 1 st respondent as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment.
SD/-
P.V.KUNHIKRISHNAN JUDGE SKS WP(C) NO. 10642 OF 2013 7 APPENDIX OF WP(C) 10642/2013 PETITIONER EXHIBITS EXHIBIT P1 : TRUE COPY OF THE SCHEDULE OF RATES.
EXHIBIT P2 : TRUE COPY OF THE ORDER ISSUED BY R2 DT.18-12-2012.
EXHIBIT P3 : TRUE COPY OF THE COMPLAINT DATED NIL.
RESPONDENTS EXHIBITS EXHIBIT R3(A) TRUE COPY OF THE REPLY ISSUED BY THE DIRECTORATE OF URBAN AFFAIRS, THIRUVANANTHAPURAM DATED 19.7.2013 EXHIBIT R3(B) TRUE COPY OF THE CIRCULAR ISSUED BY THE DIRECTOR OF URBAN AFFAIRS, THIRUVANANTHAPURAM DATED 7.5.2013 T