Kerala High Court
K.P.Kunhabdulla vs Secretary, Mattool Grama ... on 28 January, 2022
W. P. (C) No. 19036 of 2016 -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 28TH DAY OF JANUARY 2022 / 8TH MAGHA, 1943
WP(C) NO. 19036 OF 2016
PETITIONER/S:
1 K.P.KUNHABDULLA
AGED 50 YEARS
AGED 50 YEARS, NEAR G.H.S.MATTOOL, YASIM ROAD
P.O., MATTOOL, KANNUR DISTRICT
2 PULLUVANTE VALAPPIL SUBAIDA
AGED 42 YEARS, W/O KUNHABDULLA, NEAR G.H.S
MATTOOL, YASIM ROAD PO. MATTOOL, KANNUR DISTRICT
BY ADVS.
SRI.P.U.SHAILAJAN
SRI.M.SURESH KUMAR
D.N. NISHANI
RESPONDENT/S:
1 SECRETARY, MATTOOL GRAMA PANCHAYATH
P.O.MATTOOL, KANNUR DISRICT - 670 302
2 K.P.IBRAHIMKUTTY
N.K.HOUSE.,THEKKUMBAD, CHERUKUNNU (VIA), KANNUR
DISTRICT - 670 301
3 OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS
THIRUVANANTHAPURAM - 695 001
BY ADVS.
SMT.K.K.CHANDRALEKHA
SRI.ALEXANDER GEORGE
SRI.C.KRISHNANKANNUR
SMT.C.LEENA
SRI.K.C.SANTHOSHKUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 28.01.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W. P. (C) No. 19036 of 2016 -2-
JUDGMENT
Dated this the 28th day of January, 2022
This writ petition is filed by the petitioner basically challenging
Ext. P4 notice dated 06.05.2016 issued by the Secretary of Mattool
Grama Panchayat, the 1st respondent, directing the petitioners to
demolish a compound wall which is interfering with a water drain and
Ext. P5 order passed by the Ombudsman for Local Self Government
Institutions dated 28.09.2015 in complaint No. 937 of 2015.
2. The basic contention advanced by the petitioners is that no
notice was served on the petitioners before Ext. P5 order was passed
by the Ombudsman. It is also submitted that the compound wall is
constructed in the property of the petitioners after securing Ext. P2
building permit from the Secretary of the Grama Panchayat and in that
view of the matter, the Panchayat was not right in directing the 2 nd
petitioner as per Ext. P4 notice to remove the compound wall
constructed by the petitioners.
3. That apart it is pointed out that Exts. P4 and P5 orders are
passed by the Secretary of the Panchayat and the Ombudsman in
violation of the principles of natural justice and therefore the notice
and the order suffers from the vice of arbitrariness and illegality
susceptible to be interfered with by this Court exercising the powers
under Article 226 of the Constitution of India.
4. I have heard the learned counsel for the petitioner Sri. P. U.
Shailajan along with Sri. Nitish T. P., Sri. Alexander George for the 2 nd
respondent and Smt. Leena for the Secretary of the Mattool Grama
Panchayat and perused the pleadings and documents on record.
5. The subject issue raised by the petitioner revolves around Ext.
P4 notice issued by the Secretary of the Grama Panchayat and Ext. P5
order passed by the Ombudsman.
6. On a perusal of Ext. P4 notice issued by the Secretary it is
clear that the said notice was issued by the Secretary on the basis of
Ext. P5 order of the Ombudsman. Apparently the Secretary of the
Grama Panchayat and the 2nd petitioner alone were parties in the
complaint before the Ombudsman. It is not clear from Ext. P5 as to
whether any notice was served on the 2 nd petitioner in the complaint,
however it is clear that the Secretary of the Panchayat appeared and
filed a statement.
7. Anyhow on an analysis of Ext. P5 order of the Ombudsman, it
is clear that after taking into account the factual and other
circumstances, the Ombudsman has directed the Secretary of the
Grama Panchayat to take appropriate action lawfully for demolition of
the compound wall within a period of six months. The larger period
provided by the Ombudsman itself shows that no notice was served on
the 2nd petitioner and that the order intended the Secretary of the
Grama Panchayat to proceed in accordance with law.
8. This I say because the petitioners have a specific contention
that they have constructed the compound wall after securing a permit
from the Secretary of the Grama Panchayat. When there is any
violation in the matter of construction deviating from the permit
granted by the Secretary of the Grama Panchayat, necessarily, action
would have to be taken resorting to Section 235W of the Kerala
Panchayat Raj Act, 1994 which by itself is a scheme and the petitioner
is entitled as of right to file an objection to the same and participate in
the proceedings.
9. Taking into account the above aspects, I am of the considered
opinion that the writ petition can be disposed of with appropriate
directions.
10. The Secretary of the Mattool Grama Panchayat, the 1 st
respondent is directed to issue a notice under Section 235W(1) and a
provisional order under Section 235(2) of the Kerala Panchayat Raj
Act, 1994 to the petitioners showing specifically the illegality in the
matter of construction of the compound wall and an objection shall be
received from the petitioners.
Anyhow the petitioners are also directed to participate in the
proceedings by filing objections within the time frame granted by the
Secretary of the Grama Panchayat. The Secretary of the Grama
Panchayat shall finalize the proceedings after providing notice of
hearing to the petitioners as well as the 2 nd respondent namely K. P.
Ibrahimkutty, N. K. House, Thekkumbad, Cherukunnu, Kannur
District, at the earliest and at any rate within three months from the
date of receipt of a copy of this judgment.
Writ petition is disposed of accordingly.
Sd/-
SHAJI P. CHALY
JUDGE
Eb
///TRUE COPY/// P. A. TO JUDGE
APPENDIX OF WP(C) 19036/2016
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.406/2011
DATED 2.2.2011 BEFORE THE S.R.O.
PAZHANGADI
EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT ISSUED
TO THE PETITINERS DATED 1.3.2014
EXHIBIT P3 TRUE COPY OF THE APPROVED PLAN OF THE
COMPOUND WALL
EXHIBIT P4 TRUE COPY OF THE LETTER DATED 6.5.2016
ISSUED BY THE 1ST RESPONDENT
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 28.9.2015
OF THE OMBUDSMAN
