Antony K.N. v. Ombudsman for Local Self Government Institutions and Elankunnapuzha Grama Panchayath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **TUESDAY, THE 31[ST] DAY OF JANUARY 2023 / 11TH MAGHA, 1944** ## **WP(C) NO. 34665 OF 2022** ## **PETITIONERS:** ANTONY. K.N AGED 69 YEARS S/O LATE NICHOLAS, RESIDING AT KURISUPURACKAL (H), OCHANTHURUTH. P.O, KOCHI. ERNAKULAM, PIN - 682508 BY ADVS. ABDUL JALEEL.A M.A.SULFIA M.J.PAVU K.M.ABDUL MAJEED P.J.SHIJO 1 JOSEPH. K.N S/O LATE NICHOLAS, RESIDING AT KURISUPURACKAL (H) MINI INDUSTRIES, OCHANTHURUTH. P.O, KOCHI, ERNAKULAM, PIN - 682508 2 THE SECRETARY ELANKUNNAPUZHA GRAMA PANCHAYATH, MALIPPURAM. P.O, ERNAKULAM, PIN - 682508 3 THE OVERSEER ELANKUNNAPUZHA GRAMA PANCHAYATH, MALIPPURAM. P.O, ERNAKULAM, PIN - 682508 4 ELANKUNNAPUZHA GRAMA PANCHAYATH MALIPPURAM. P.O, ERNAKULAM REPRESENTED BY SECRETARY, PIN - 682508 BY ADVS. R.LAKSHMI NARAYAN Benzir P. M. R.RANJANIE NEVIL ZACHARIA MATHEW PARVATI M. PAI GP SRI.SYAMANTHAK B.S. ## **RESPONDENTS:** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** : 2 : W.P.(C). No.34665 of 2022 ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **W.P.(C). No.34665 of 2022** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 31[st] day of January, 2023 ## **JUDGMENT** The above writ petition is filed challenging Ext.P1 order of the Ombudsman for Local Self Government Institutions. 2. The petitioner is a senior citizen having an extent of 1 ½ cents of land, together with a residential building within the residential limits of Elankunnapuzha Grama Panchayat, which was inherited by the petitioner and in 2010, the residential building was constructed. The petitioner is staying in the said building with his wife and his son and the 1[st] respondent in the writ petition is his elder brother, who is not in a cordial relation with the family of the petitioner. The main grievance against Ext.P1 order issued by the Ombudsman for Local Self Government Institutions is that the same was issued without affording an opportunity of being heard and without verifying the records. The petitioner further contends that the issuance of Ext.P1 order is outside the purview of the powers of the Ombudsman for Local Self Government Institutions, as per the provisions of the Kerala Panchayat Raj Act. W.P.(C). No.34665 of 2022 : 3 : 3. The petitioner and the 1[st] respondent are co-sharers of the family property and he got additional land as his sisters relinquished their rights over the family property. Accordingly, the 1[st] respondent erected a boundary wall on the southern side of his property and the petitioner is residing immediate south of the property of the 1[st] respondent. The 1[st] respondent is conducting a rolling shutter cum welding workshop in his property. Since the property owned by the petitioner is only 1 ½ cents, the petitioner was given no objection by the 1[st] respondent and another brother by name John. The petitioner was granted ownership certificate by the 2[nd] respondent as is evident from Ext.P2 and a building number was also assigned. Due to the unbearable sound and air pollution created by the business establishment run by the 1[st] respondent, there are disputes between the petitioner and the 1[st] respondent and also regarding the construction undertaken by the 1[st] respondent without obtaining any permit from the local authority. Thereupon the 2[nd] respondent issued a notice to the 1[st] respondent to demolish the unauthorised construction, against which he moved an appeal before the Tribunal for LSGD, and the matter is pending consideration. While so, the 1[st] respondent submitted a petition W.P.(C). No.34665 of 2022 : 4 : before the Ombudsman for Local Self Government Institutions against the residential building of the petitioner, which was constructed almost a decade back and without going to the merits of the case, the Ombudsman for Local Self Government Institutions passed Ext.P1 order, without affording an opportunity to the petitioner to counter the allegations. The proceedings in Ext.P1 has been concluded through video conference on the same date scheduled for the appearance of this petitioner who was made 2[nd] respondent in the said proceedings. The petitioner appeared through counsel and sought time for filing counter, which was declined and the impugned order was passed. The further contention of the petitioner is that the order issued as per Ext.P1 is outside the scope of the powers of the Ombudsman and therefore, this Court shall interfere with the said order. In support of the contention that the Ombudsman has no power to issue an order in the nature of Ext.P1, the petitioner relies on the Judgment of this Court in _**Malathi Prabhakaran and others v. Ombudsman For Local Self Government and others (2021 KHC 800)**_ and also the Judgment in _**Mohammed Althaf v. Valavannur Grama Panchayat and Others (2022 (6) KHC 662).**_ W.P.(C). No.34665 of 2022 : 5 : 4.The contesting respondent (1[st] respondent) has filed a detailed counter affidavit supporting Ext.P1 order passed by the Ombudsman for Local Self Government Institutions mainly contending that the constructions were found to be unauthorised and that is why Ext.P1 order was issued. The specific case is that the petitioner has made unuthorised construction in the residential building in violation of the Kerala Panchayat Building Rules that too without leaving the set back distance required as per the rules. He further contends that the case of the petitioner that Ext.P1 order was issued without hearing him, is without any basis. The specific allegation against the petitioner is that he has erected three windows and an air conditioner on the southern wall of his building, in violation of the rules. The 1[st] respondent submits that in spite of many complaints and representations given to the authorities pointing out the illegalities by the petitioner, the local authority has not taken any positive action on the representations submitted by him. Ext. R1(f) is the complaint preferred by the 1[st] respondent. The 1[st] respondent further contends that Ext. R1(e), a notice issued by the local authority would show that the building constructions undertaken by the petitioner is unauthorised. W.P.(C). No.34665 of 2022 : 6 : 5. The 1[st] question to be considered is as to whether the Ombudsman has power to issue an order in the nature of Ext.P1. Ext. P5 is the complaint preferred by the 1[st] respondent before the Ombudsman, in which it is specifically stated that even though a complaint was preferred as early as on 03.03.2022, no action was taken by the local authority and that the inaction is due to the influence of the petitioner on the Panchayat authorities and therefore, further actions must be taken in this regard. The Ombudsman in Ext.P1 has found that the issue regarding the numbering of the building etc., are all coming within the jurisdiction of the Tribunal for Local Self Government Institutions, and the Ombudsman is not interfering in the said issue and if there is any grievance, the complainant have to approach the Tribunal in this regard. But as regards the unauthorised construction of the window as well as fixing of the air conditioner, the Ombudsman has issued a positive direction that the petitioner shall be issued a notice in this regard and the air conditioner as well as the windows shall be removed within a period of two months. 6. The learned counsel for the petitioner submitted that in _**Malathi Prabhakaran**_ 's case(Supra), the Court has held that the : 7 : W.P.(C). No.34665 of 2022 basic requirements of complaint before the Ombudsman should be an allegation about the loss or waste or misappropriation of the fund of the local body. That was a case where Ombudsan directed the Panchayat to recover the loss suffered in respect of a contract award. In the said contest, the Court held that the Ombudsman could have proceeded with the complaint before it, only if there were at least some basic allegations with respect to the misappropriation of money or Panchayat fund, which is totally absent in the complaint and for the said reason the Court interfered with the order passed by the Tribunal. In the case of _**Mohammed Althaf**_ (Supra), this Court held that for proceeding under Section 271M of the Kerala Panchayat Raj Act, the powers of the Ombudsman is confined to deal with any irregularity, corruption, maladministration etc., or to investigate into any allegation contained in a complaint or on a reference form the Government or which has come to the notice of the Ombudsman and that, when the empowerment under law is specific and clear, the authority is not expected to traverse beyond the same, assuming the power from general law of the land and adjudicate the issue. A perusal of Ext.P5 reveals that a specific complaint has : 8 : W.P.(C). No.34665 of 2022 been raised that unauthorised construction has been undertaken and due to influence of the petitioner over the officers of the local authorities, even though a complaint has been preferred as early as on 03.03.2022, no action has been taken in this regard. Section 271 J of the Panchayat Raj Act deals with the functions of the Ombudsman which gives power to the Ombudsman to pass an order on the allegation and going by Section 271 J(1)(iii)(d), where the irregularity is due to omission or inaction, the Ombudsman can direct to cause to supply the omission and to rectify the mistake. Section 271J clearly mandates that the Ombudsman has power to investigate into any allegation contained in a complaint or on a reference from Government, or that has come to the notice of the Ombudsman. The 'allegation' is defined in Section 271 F (b) says that in relation to a public servant means he has abused his position as such for any gain or favour to himself or to any other person or to cause undue harm or hardship to any other persons or was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives is guilty of any action as public servant. The specific complaint raised before the Ombudsman was the inaction on the part of the public W.P.(C). No.34665 of 2022 : 9 : servant, the Secretary of the Panchayat, in discharging his function. Section 108(2) of the Kerala Panchayat Building Rules, 2019 deals with the powers of the Tribunal for Local Self Government Institutions and in which all circumstances, the complaint could be filed before the Tribunal, whereas Section 108(3) deals with the powers of the Ombudsman, which mandates that any person aggrieved by any of the action in the discharge of the administrative functions by the local self government institutions or an employee or an officer of the local self Government institutions as explained herein may submit there grievances to the ombudsman for redressal. Based on this, it was contended that the Ombudsman has sufficient power to issue a direction to the local authority when some inaction or failure to discharge the duties as per the Act is brought to the notice of the Ombudsman. This Court in _**Reghuvara Panicker R. v. Secretary, Maranallur Grama Panchayat and Another [2009 (4) KHC 170]**_ has considered the said issue and the relevant paragraphs is extracted below: “5.Section 271-J(1) enumerates the different functions of the Ombudsman. It includes the power to look into the allegations contained in complaints. Complaint as defined in Section 271- F(1) : 10 : W.P.(C). No.34665 of 2022 (b)(c) means a statement of allegation. In so far as an LSGI is concerned, allegation, going by Section 271-F(1)(b)(b), means any affirmation that the LSGI has defaulted in the discharge of its functions. Section 271-K enumerates the power of the Ombudsman. Section 271-M provides for investigation and Section 271-N provides the modality for enquiry. The final disposal of complaints is governed by Section 271-Q and in terms of Section 271-L, the Ombudsman would get the service of officers and employees of government in terms of that provision. The institution of Ombudsman for LSGI is a concept quite unique in the legislations that govern LSGIs in India. The Act which makes such a provision has to be taken to be the one that has made a salutary break-through providing an alternate, efficacious, statutory and speedy justice delivery mechanism to the common man. The evolution of the concept of a supervisory jurisdiction being given to the Ombudsman, on a proper appreciation, should advise that unless it is shown that the Ombudsman has clearly traversed beyond its jurisdiction, the superior courts should loath interfere with its proceedings except in cases where clear injustice is demonstrated. The functions of the Ombudsman should also get the protective insulation of a policy of non interference by the constitutional courts. Evolving such a policy would definitely be in consonance with the policy of law that remedy should be available then and there, from where there is a negation of substantial justice. The prescription of remedy and its enjoyment has to be provided for and ensured only in accordance with the rule of law. That does not mean that every technical objection or a slight swing in the jurisdictional parameters would call for interference, : 11 : W.P.(C). No.34665 of 2022 except where there is a clear demonstration of injustice having been meted out. 6.The impugned orders are not issued by the learned Ombudsman prescribing any particular official decision to be taken at the hands of the panchayat. The jurisdictional fact on which the Ombudsman has started the exercise is the assertion of the second respondent that the panchayat secretary has defaulted in the discharge of his duties. This is only the opening point. The nature of powers of the Ombudsman and the methodology and procedure that could be adopted in the light of the available powers and jurisdiction, tend to indicate that what is ultimately aimed at, is the guarantee that relief is secured. In the case in hand, while the petitioner, on the strength of the decision in Thankamma (supra), may be justified in pointing out that the ultimate authority to decide on the felling of a tree or cutting of a branch that does not spread over a public way is with the panchayat committee and not with the secretary, it needs to be immediately mentioned that when a citizen makes a complaint to the secretary, it is the bounden duty of the secretary to place it before the panchayat, if the jurisdiction is exclusively with the panchayat committee. The secretary is a public servant. He cannot sleep over his duties and responsibilities. If he does, he will also be adding himself on to the band wagon of those who eat from the state exchequer; which, essentially, belongs to the People; but continuously refuse and fail to discharge their statutory and constitutional obligations to perform official and public functions. So much so, the alleged inaction of the panchayat secretary was sufficient jurisdictional material for the W.P.(C). No.34665 of 2022 : 12 : learned Ombudsman to initiate action. The whip of the Ombudsman has often cleared many a smug. All that is required to be ensured is that the authorities act in terms of the law. If it is the panchayat committee and not the panchayat secretary who has to decide on an issue, the panchayat secretary is duty bound to bring the issue to the notice of the panchayat and get resolution of the issue at the earliest. But that does not mean that the learned Ombudsman could be criticized of having overstepped the jurisdiction for issuing the directions as done.” 7. Therefore, I am of the opinion that when an inaction has been pointed out before the Ombudsman, the Ombudsman has every manner of power to issue direction to the public servants of the local authorities to act in accordance with the rules. But in the present case, the Ombudsman has issued a direction to the Secretary of the Panchayat to issue notice to the petitioner herein, with a further positive direction that the air conditioner and the windows are to be removed within a period of two months, which, I am of the opinion that the Ombudsman has overstepped its powers; inasmuch as, at the first instance, the Ombudsman ought to have directed the 2[nd] respondent, Secretary to take appropriate action on the complaint preferred by the 1[st] respondent, as the 2[nd] respondent is the competent authority to look into the matter and if any violations are found, to take action in accordance with law. : 13 : W.P.(C). No.34665 of 2022 Therefore, Ext.P1 order to that limited extent directing the removal of the air conditioner and the windows, is set aside. The 1[st] respondent shall file an appropriate complaint before the 2[nd] respondent Secretary, who shall take further action on the same, in accordance with law, after affording an opportunity of being heard to the petitioner as well as the 1[st] respondent and a decision in this regard shall be taken within a period of two months from the date of filing of such complaint by the 1[st] respondent. With the above said directions, the writ petition is disposed of. Sd/- **VIJU ABRAHAM JUDGE** sm/ W.P.(C). No.34665 of 2022 : 14 : ## **APPENDIX OF WP(C) 34665/2022** ## **PETITIONER EXHIBITS** |**PETITIONER EXHIBITS**|| |---|---| |Exhibit P1|TRUE COPY OF THE ORDER OF THE HONOURABLE| ||OMBUDSMAN FOR LOCAL SELF GOVERNMENT| ||INSTITUTIONS, TRIVANDRUM DATED 25/08/2022| |Exhibit P2|TRUE COPY OF THE OWNERSHIP CERTIFICATE| ||BEARING NO. A3/411/10 DATED 20/12/2010| ||ISSUE TO THE PETITIONER| |Exhibit P3|TRUE COPY OF THE REPORT OF THE PANCHAYATH| ||STANDING COMMITTEE OF 2ND RESPONDENT| |Exhibit P4|TRUE COPY OF THE NOTICE ISSUED BY 2ND| ||RESPONDENT IN THIS REGARD| |Exhibit P5|TRUE COPY OF THE PETITION FILED BEFORE THE| ||HONOURABLE OMBUDSMAN| |**RESPONDENT EXHIBITS**|| |Exhibit R1(a)|TRUE COPY OF THE LETTER DATED 21/04/2022| ||ISSUED BY THE JUNIOR SUPERINTENDENT AND| ||STATE PUBLIC INFORMATION OFFICER,| ||ELAMKUNNAPUZHA GRAMA PANCHAYAT TO THE 1ST| ||RESPONDENT.| |Exhibit R1(b)|THE TRUE COPY OF THE APPLICATION DATED| ||30/07/2022 SUBMITTED BY THE 1ST| ||RESPONDENT.| |Exhibit R1(c)|THE TRUE COPY OF THE RESPONSE DATED| ||24/08/2022 ISSUED BY THE ASSISTANT PUBLIC| ||INFORMATION OFFICER.| |Exhibit R1(d)|THE TRUE COPY OF THE APPLICATION DATED| ||26/03/2022 FILED BY 1ST RESPONDENT UNDER| ||RTI ACT.| |Exhibit R1(e)|THE TRUE COPY OF THE RESPONSE DATED| ||21/04/2022 ISSUED BY SECRETARY OF| ||ELAMKUNNAPUZHA GRAMA PANCHAYAT.| |Exhibit R1(f)|THE TRUE COPY OF THE COMPLAINT DATED| ||30/03/2022 SUBMITTED BY JOHN.K.N., BROTHER| ||OF PETITIONER AS WELL AS 1ST RESPONDENT,| ||AGAINST THE PETITIONER.| |Exhibit R1(g)|THE TRUE COPY OF THE PHOTOGRAPHS SHOWING| ||THE CONSTRUCTION OF TRESS WORK AND THE AIR| ||CONDITIONER OF THE PETITIONER PROTRUDING| ||THE PROPERTY OF THE 1ST RESPONDENT.|