Kerala High Court
Ratnamma vs The Ombudsman For Local Self ... on 24 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
WP(C) NO. 13550 OF 2014
PETITIONER:
RATNAMMA, AGED 47 YEARS
W/O.KARTHIKEYAN, RESIDING AT PULIMOOTTIL
VADAKATHIL HOUSE,CHINGOLI POST AND
VILLAGE,KARTHIKAPPALLY TALUK,
ALAPPUZHA DISTRICT
BY ADVS.
SRI.T.MADHU
SRI.B.K.RAJAGOPAL
RESPONDENTS:
1 THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, THIRUVANANTHAPURAM 695 001
2 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT INSTITUTIONS,
THIRUVANANTHAPURAM 695 001
3 THE CHINGOLI GRAMAPANCHAYATH
REPRESENTED BY ITS SECRETARY,CHINGOLI,
CHINGOLI P.O,ALAPPUZHA DISTRICT 690 532
4 RADHAKRISHNAN
THOTTUKADAYIL KIZHAKATHIL HOUSE,
CHINGOLI P.O,KARTHIKAPPALLY TALUK,
ALAPPUZHA DISTRICT 690532
BY ADVS.
SRI.G.BENO
SRI.M.R.SUDHEENDRAN
BY SRI.ARAVIND V. MATHEW, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 15.02.2023, THE COURT ON 24.02.2023 DELIVERED
THE FOLLOWING:
WP(C)No.13550 of 2014
2
MOHAMMED NIAS. C.P.,J
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WP(C)No.13550 of 2014
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Dated this the 24th day of February, 2023
JUDGMENT
The petitioner had purchased an extent of 1.24 Ares of landed
property in resurvey No.400/2, Block No.15 of Chingoli Village as per
Ext.P1 sale deed dated 26.12.2013 and is stated to be in enjoyment and
possession of the property since then. It is stated that the 4 th
respondent had filed an application prior to the execution of Ext.P1 sale
deed before the Obmudsman for Local Self Government Institutions ,
Thiruvananthapuram, as OP 1824 of 2013 alleging that the petitioner's
predecessor in interest one Vijaya Prasad had made constructions in
the said property in violation of Section 220 (b) of the Kerala
Panchayath Raj Act (for short 'the Act'). It is alleged that in the said
complaint neither the petitioner nor her predecessor in interest were
made parties and behind the back the Ombudsman had passed an order
dated 27.3.2014, Ext.P2 which directed the Panchayath to give notice
to the petitioner and her predecessor in interest and to pass a
considered order regarding the violation and also to demolish the
construction after giving a breathing time to the petitioner. The
WP(C)No.13550 of 2014
Panchayath was directed to complete demolition on or before
31.5.2014. Thereafter on 8.5.2014 by proceedings purportedly in
obedience with Ext.P2 order, a notice was issued requiring the
petitioner to demolish the constructions. A copy of the said notice is
marked as Ext.P3 in the writ petition. It is stated that both the orders
had totally illegal and ultra vires the provisions of the Act, 1994. It is
stated that the Ombudsman do not have the authority to pass an order
like Ext.P2 and in the absence of any allegation regarding corruption of
maladministration by the Panchayath, the first respondent Ombudsman
had no jurisdiction to entertain a complaint. The complaint of the 4 th
respondent ought to have been made before the Panchayath or to
approach the Tribunal constituted under the Act. Challenging Exts.P2
and P3 order in the above grounds this writ petition was filed. All the
coercive steps pursuant to Ext.P3 was stayed by the interim order
dated 25.9.2014.
2. A counter affidavit has been filed on behalf of the third
respondent Panchayath stating that in spite of their instructions and
directions in the Office of the District Collector, Alappuzha and the
Deputy Director of Panchayath, Alappuzha against the illegal
construction the Panchayath did not take any action and thus
favouritism was shown to the encroacher and as the Panchayath failed
to discharge the statutory obligations and responsibilities as an officer
WP(C)No.13550 of 2014
of the Local Self Government Institutions, Ext.R3(a) complaint was
made before the first respondent. It is stated by the Panchayath that
the compliant filed comes within the ambit of Section 271(f)(b) of the
Act. In such circumstances, and therefore, the order passed by the
Ombudsman cannot be faulted. It is stated that it was only after
verifying the records and after the site inspection that Ext.P3 order was
passed, in these grounds the impugned orders were sought to be
sustained.
3. I have heard Sri.T.Madhu, the learned counsel for the
petitioner, Sri.B.Beno, the learned standing counsel for the third
respondent and the learned Government Pleader.
3. A reading of Ext.P2 clearly shows that it was passed with no
notice to either the petitioner or the predecessor in interest. It was not
found that there was any illegality in construction or at least the same
is not reflected in Ext.P2 order. It is to be noted that the very
maintainability of the petition before the Ombudsman is in doubt even
the nature of the complaint made by the 4 th respondent against the
petitioner. Ext.P3 is the consequential order passed after Ext.P2. None
of the objections from the petitioner are seen considered in Ext.P3. In
view of the above facts, I have hold that there is a total violation of
principle of natural justice while passing the impugned orders.
WP(C)No.13550 of 2014
Impugned orders are accordingly quashed. Though I find considerable
force in the argument of the learned counsel for the petitioner that the
Ombudsman did not have the jurisdiction to entertain a complaint and
finally pronouncing of the same as the impugned orders are liable to be
interfered with for other reasons. I make it clear that though the
impugned orders are quashed, it will be open to the Panchayath to
issue a proper notice to the petitioner in case there are violations under
the provisions of the Act, in which event, the petitioner will be free to
take up all the contentions available to her. The Panchayath will have to
consider the objection in accordance with law and pass a speaking
order dealing with the contentions and also provide an opportunity of
the petitioner to cure the defects, if any, so as to make the construction
in question in order.
The writ petition is allowed as above.
Sd/- MOHAMMED NIAS C.P., JUDGE
dlk/22.2.2023
WP(C)No.13550 of 2014
APPENDIX OF WP(C) 13550/2014
PETITIONER'S EXHIBITS
EXHIBIT P1 THE TRUE COPY OF THE SALE DEED NO 2166/2013
DATED 26-12-2013 OF CHEPAD SRO
EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 27-03-2014
IN O.P NO 1824/2013 ON THE FILE OF THE HON'BLE OMBUDSMAN
FOR LOCAL SELF GOVERNMENT
INSTITUTIONS,THIRUVANANTHAPURAM
EXHIBIT P3 THE TRUE COPY OF THE NOTICE DATED 8-5-2014
ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER
RESPONDENTS EXHIBITS
EXHIBIT R3(a)-TRUE COPY OF THE O.P.NO.1824/14 BEFORE THE
1ST RESPONDENT.
EXHIBIT R3(b)- TRUE COPY OF THE REPORT NO.59/13 DATED
4.6.2013
EXHIBIT R3(C)- TRUE COPY OF THE STOP MEMO O.A8.3897/12
DATED 30.10.2012.
EXHIBIT R3(d)- TRUE COPY OF THE LETTER 2947/12 DATED
6.11.2012
