Kerala High Court
Omana Bhuvaneswaran Nair vs Perumbavoor Municipality on 21 October, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 21ST DAY OF OCTOBER 2022 / 29TH ASWINA, 1944
WP(C) NO. 28349 OF 2022
PETITIONER:
OMANA BHUVANESWARAN NAIR
AGED 86 YEARS
W/O. LATE BHUVANESWARAN NAIR,
BHUVANA MANDIRAM HOUSE, NEAR KSEB OFFICE,
PERUMBAVOOR,
ERNAKULAM DISTRICT - 683 542
BY ADVS.
MATHEW KURIAKOSE
K.R.ARUN
T.G.SUNIL (PERUMBAVOOR)
MONI GEORGE
RESPONDENTS:
1 PERUMBAVOOR MUNICIPALITY
PERUMBAVOOR, ERNAKULAM DISTRICT - 683 542
REPRESENTED BY ITS SECRETARY
2 THE SECRETARY,
PERUMBAVOOR MUNICIPALITY, PERUMBAVOOR,
ERNAKULAM DISTRICT - 683 542
3 THE HEALTH INSPECTOR,
PERUMBAVOOR MUNICIPALITY, PERUMBAVOOR,
ERNAKULAM DISTRICT - 683 542
4 THE JUNIOR HEALTH INSPECTOR,
PERUMBAVOOR MUNICIPALITY, PERUMBAVOOR,
ERNAKULAM DISTRICT - 683 542
5 V. C. SUKUMARAN,
VATTAPPARA HOUSE, VICHAT LANE, PRRA HOUSE NO. 23,
PMC-8/459, PERUMBAVOOR P.O; KUNNATHUNAD,
ERNAKULAM - 683 542
6 THE OMBUDSMAN
FOR LSG INSTITUTIONS,
OFFICE OF THE OMBUDSMAN FOR LSG INSTITUTIONS,
THIRUVANANTHAPURAM-695 034
WP(C) NO. 28349 OF 2022
2
BY ADVS.
SHRI.MATHEW B.KURIAN, SC, PERUMBAVOOR MUNICIPALITY
MATHEW B KURIAN
Biju P.P
OTHER PRESENT:
BY
Sr. G.P. Smt. Sheya Binoy
Sr.K.T.Thomas - SC (R1 & R2)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.10.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 28349 OF 2022
3
JUDGMENT
The petitioner has approached this Court aggrieved by Exhibit P4
order passed by the Ombudsman for Local Self Government Institutions
and Exhibit P5 notice-cum-provisional order issued by the 2 nd respondent.
2. The 5th respondent made a complaint before the Ombudsman
that mosquitos and larvae are found in the 'U trap' of the outside toilet in
the property of the petitioner. The Ombudsman passed Exhibit P4 order
directing the Municipality to seal the toilet. Pursuant to Exhibit P4, the 2 nd
respondent issued Ext. P5 in implementation of Ext.P4. The petitioners
contends that Exhibit P4 order is passed by the Ombudsman without
notice to her in violation of the principles of natural justice and that Exhibit
P5 is issued without reference to the reports of the Health Officer and
earlier proceedings of the Municipality.
3. At the time of admission of the Writ Petition, this Court passed an
interim order staying the operation of Exts. P4 and P5.
4. The 5th respondent has entered appearance and filed a detailed
counter affidavit.
WP(C) NO. 28349 OF 2022
5. Heard the learned counsel for the petitioner and the learned
counsel for the 5th respondent and Sri.K.T.Thomas, the learned Standing
Counsel for the Municipality.
6. The complaint filed by the 5th respondent before the Ombudsman
is not produced in the Writ Petition. The Ombudsman can entertain the
complaint only if there is an allegation of corruption or mal-administration
on the part of public servants, namely, the employees of the Local Self
Government Institutions or its elected representatives.
7. The learned counsel for the 5th respondent submits that the
petitioner has got an alternative remedy before the Tribunal for Local Self
Government Institutions against Exhibit P5.
8. Section 271 M(4)(b) interdicts the Ombudsman from enquiring
into matters in respect of which a remedy is available from the Tribunal
for Local Self Government Institutions.
9. If the toilet of the petitioner is causing nuisance or is a health
hazard, the 2nd respondent can take appropriate action in accordance with
the provisions of the Kerala Municipality Act, 1994.
10. In the facts and circumstances of the case, I direct that Exhibit P5
is only to be treated as notice and the 2 nd respondent shall pass orders
pursuant to Exhibit P5, after hearing the petitioner and the 5 th respondent
WP(C) NO. 28349 OF 2022
and untrammeled by the observations in Exhibit P4. Till an order is passed
as above, further proceedings pursuant to Exhibit P5 shall be kept in
abeyance. The order shall be passed within a period of one month from
the date of receipt of a copy of this judgment. It is made clear that, taking
note of the age of the petitioners and the 5 th respondent, the parties can
appear for hearing before the 2nd respondent through their authorized
representatives.
The Writ Petition is disposed of with the above directions.
Sd/-
MURALI PURUSHOTHAMAN
JUDGE
APA
WP(C) NO. 28349 OF 2022
APPENDIX OF WP(C) 28349/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE COMPLAINT DATED 20.06.2022 PREFERRED
BY THE PETITIONER TO THE HON'BLE CHIEF MINISTER OF
KERALA.
Exhibit P2 TRUE COPY OF THE COMMUNICATION DATED 06.07.2022
ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.
Exhibit P3 TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE 2ND
RESPONDENT TO THE GRIEVANCE CELL OF THE HON'BLE CHIEF
MINISTER OF KERALA
Exhibit P4 TRUE COPY OF THE ORDER DATED 18.07.2022 PASSED BY
OMBUDSMAN FOR LSG INSTITUTIONS, THIRUVANANTHAPURAM IN
COMPLAINT NO. 342/2022
Exhibit P5 TRUE COPY OF THE COMMUNICATION CUM ORDER DATED
11.08.2022 ISSUED BY THE 2ND RESPONDENT
Exhibit P6 . PHOTOGRAPHS OF THE TOILET OF THE PETITIONER AND THE
PIT IN THE 5TH RESPONDENT'S PROPERTY
RESPONDENTS EXHIBITS
EXHIBIT R5(a) True copy of the medical certificate dated 25.11.2017
issued from the Amrita Institute of Medical Sciences
and Research Centre
EXHIBIT R5(b) True copy of the medical certificate dated 28.01.2017
issued from the Apollo Hospital Chennai
EXHIBIT R5(c) True copy of the complaint dated nil submitted by the
5th respondent to the District Medical Officer
EXHIBIT R5(d) True copy of the complaint dated 15.02.2021 submitted
by the 5th respondent to the 2nd respondent
EXHIBIT R5(e) True copy of the report dated 01.03.2021 submitted by
the 3rd respondent to the 1st respondent obtained by
the 5th respondent under right to information Act
EXHIBIT R5(f) True copy of the notice No.PH2-2197/21 dated
08.03.2021 issued by the Health Supervisor,
Perumbavoor Municipality
WP(C) NO. 28349 OF 2022
EXHIBIT R5(g) True copy of the notice No.PH2-2197/21 dated
09.06.2021 issued by the 2nd respondent
EXHIBIT R5(h) True copy of the report dated 17.08.2021 submitted by
the 3rd respondent
EXHIBIT R5(i) True copy of the notice No.PH2-2197/21 dated
01.09.2021 issued by the Health Supervisor
EXHIBIT R5(j) True copy of the complaint submitted by the 5th
respondent to the Chief Minister's complaint
redressal cell dated 13.11.2021
EXHIBIT R5(k) True copy of the replay dated 11/5/2022 along with
the statement submitted by the 2nd respondent to the
6th respondent
