Asset Homes (P) Ltd. v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932** ## **WP(C).No. 20251 of 2010(F)** **-----------------------------------------** ## **PETITIONER(S):** - **-----------------------** **ASSET HOMES (P) LTD.,NO.4,ANCHORAGE, PALLIYIL LANE, FORESHORE ROAD,ERNAKULAM, COCHIN 682 016,REPRESENTED BY ITS DIRECTOR, ANIL K.VERMA,AGED 42 YEARS, S/O.KERALA VERMA.** ## **BY ADV. SRI.PEEYUS A.KOTTAM** ## **RESPONDENT(S):** ## **-------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY,DEPARTMENT OF LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT, TRIVANDRUM695 001.** **2. OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, BARTON HILL BUNGLOW,KUNNUKUZHY, VANCHIYUR PO,TRIVANDRUM-695 035.** **3. TRIKKAKARA GRAMA PAUCHAYATH,TRIKKAKARA PO, KAKKANAD, COCHIN 682 012,REPRESENTED BY ITS SECRETARY.** **4. K.K.ASYA,AGE NOT KNOW, KANJIRAKANDIYIL, THUVAKUNNU PO, PARAD, PANUR,THALASSERY,KANNUR REPRESENTED BY HER BROTHER P.AHMED NISSAM SHAH, CC NO.XXX/905,TERA-105,MOUNTAIN ROAD,THAIKOODAM, VYTTILA PO, COCHIN 682 019.** **R1 & R2 BY GOVT. PLEADER SMT.SUDHA DEVI** **R3 BY ADVS. SRI.S.SHANAVAS KHAN R4 BY SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR, SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.P.GOPINATH, SRI.MADHU N.NAMBOOTHIRIPAD.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.20251/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE COMPLAINT DTD. 16.9.2009 FILED BY 4TH RESPONDENT BEFORE 2ND RESPONDENT.** **P2:- COPY OF THE REPLY DTD. 19.5.2010 SUBMITTED BY PETITIONER BEFORE 2ND RESPONDENT IN OP. NO.1237/2009.** **P3:- COPY OF THE ORDER DTD. 19.5.2010 ISSUED BY 2ND RESPONDENT IN OP. NO.1237/2009.** **P4:- COPY OF THE ORDER DTD. 16.6.2010 ISSUED BY 2ND RESPONDENT IN OP. 1237/2009.** ## **RESPONDENT'S EXHIBITS** **R4(a):- COPY OF THE PHOTOGRAPHS OF THE ROAD THAT LEADS TO THIS RESPONDENT'S PROPERTY SUBMERGED IN WATER.** **R4(b):- COPY OF THE NOTICE DTD. 6.11.2009 ISSUED BY 4TH RESPONDENT TO THE PETITIONER.** **R4(c):- COPY OF THE REPORT DTD. 16.11.2009 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT.** ## **TRUE COPY** ## **P.A. TO JUDGE** **tss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No.20251 of 2010-F** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 12th day of August, 2010.** ## **JUDGMENT** The power of the Ombudsman for Local Self Government Institutions, to entertain a complaint in a private dispute, is the question raised herein. 2. The petitioner is a private limited company engaged in the development and construction of residential apartments. They have constructed multi storied residential apartment named “Assets Silicon Heights” and “Assets Cyber Heights” in the property having an extent of 93 cents in Vazhakkala Village in Trikkakkara Grama Panchayat. It is further averred in the writ petition that here are 90 individual flats in this residential apartment and they are owned by those who purchased undivided share in the aforesaid property and the right to construct their respective flats. 3. Constructions have been completed and thereafter the petitioner has submitted applications for getting occupancy certificate and numbering, as per the Kerala Municipality Building Rules, 1999. These are required to get electricity and water connection amenities. wpc 20251/2010 2 4. The 4[th] respondent is a neighbouring property owner, who filed a complaint before the learned Ombudsman as per Ext.P1, alleging that the road leading to his properties, has been damaged due to the activities of the petitioner. This was entertained by the learned Ombudsman and notice was issued to the petitioner as well as the Panchayat and the petitioner filed Ext.P2 reply stating that the allegations raised in the complaint are not correct. The allegation that the level of the road was raised using gravel, was emphatically denied. Initially, learned Ombudsman passed Ext.P3 directing the Secretary of the Panchayat not to number the building and issue occupancy certificate. A report was called for and the Secretary filed a report based on which, Ext.P4 final order has been passed. The statement filed by the Panchayat before the learned Ombudsman showed that the road said to have been repaired by the petitioner herein or that is mentioned in the complaint filed by the 4[th] respondent, is not vested with the Panchayat and it is not a public road. 5. Learned Ombudsman directed the 4[th] respondent to avail the remedy to approach the civil court, but maintained the interim order passed as Ext.P3. Learned counsel for the petitioner submitted that Ext.P4 is styled as a final order, that too without any limit of time and it will operate as a prohibition against the petitioner permanently. It is submitted that the wpc 20251/2010 3 complaint is not maintainable or entertain able and no such restriction can be imposed in a private dispute. It is submitted that going by the scheme of the Act, learned Ombudsman is not expected to entertain any complaint with regard to civil disputes and therefor the interim order Ext.P3 which was confirmed in Ext.P4 order, cannot be supported. 6. Learned counsel appearing for the 4[th] respondent submitted that the Ombudsman has got powers to issue such orders. It is pointed out that the road that leads to the property of the 4[th] respondent is water logged. Even though learned counsel for the 4[th] respondent was asked whether a civil suit has been filed, it is submitted that no civil suit has been filed so far. 7. Evidently, the power of the learned Ombudsman and the functions are clearly delineated under Section 271-J of the Kerala Panchayat Raj Act. A Division Bench of this Court in **Ushakumari v. Seetharaman** (2004 (1) KLT 428), has considered in detail the various functions and the nature of the order that has to be passed in the proceedings before the Ombudsman for Local Self Government Institutions. That was a case where an elected Committee of a Local Self Government Institutions was kept under suspended animation and while considering the said question, the powers of the Ombudsman has been considered in detail. It was held that “sub-section wpc 20251/2010 4 (2) of Section 271Q clearly stipulates that the Ombudsman may give suggestions to the Government or Local Self Government Institutions relating to the measures for avoiding recurrence of any complaint, if it is found that the procedure or practice regarding the administration of the Local Self Government Institutions gives room for such complaint. In the absence of any statutory power or authority, the Ombudsman cannot usurp power by which an elected Committee of a Panchayat can be kept under suspended animation. A statutory authority can wield only those powers which are vested in it by the statute. The duties and powers of Ombudsman are clearly delineated and enumerated in the Act.” 8. The complaint herein is not one against the Local Self Government Institution. What is sought for in Ext.P1 is a direction to make the road, travelworthy. Evidently, the direction sought is against the petitioner herein, going by the allegations raised therein. The definition of 'complaint' in Section 271F(1)(c) of the Act is the following: “271F(1)(c): 'Complaint' means a statement of allegation that a public servant or a Local Self Government Institution is guilty of corruption or maladministration and includes any reference to an allegation in respect of which _suo motu_ enquiry has been proposed or recommendation for enquiry has been made by Government.” wpc 20251/2010 5 Going by the definition of 'allegation' in Section 271F(1)(b) of the Act also, it is evident that it should be against a public servant only. There can be an allegation against a Local Self Government Institution also, going by subsection (b) therein. The functions of the Ombudsman under Section 271J of the Act is 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 and to enquire into any complaint in which corruption or maladministration of a public servant or a Local Self Government Institution is alleged. Section 271J(1)(iii) also provides for the manner in which an order will have to be passed by the learned Ombudsman. 9. Therefore, actually the above functions can be exercised to pass an order against a public servant or a Local Self Government Institution in any allegation or complaint. A private dispute therefore cannot be a subject matter of enquiry by the Ombudsman. Evidently, herein, going by the report of the Secretary, the alleged road is only a private road and the Panchayat has no control over it. Actually, learned Ombudsman did not go further with respect to the investigation of the complaint and directed the 4[th] respondent to avail the remedy before the civil court. It is therefore clear that the complaint was not entertainable before the learned Ombudsman also. The 4[th] respondent has also no challenge against Ext.P4. wpc 20251/2010 6 10. In that view of the matter, since the complaint itself was finally disposed of, there cannot be any prohibition also on a permanent basis against the numbering of the building. The nature of the direction in that regard shows that it is unlimited in time. For all these reasons, Exts.P3 and P4 are quashed. The writ petition is allowed. It will be open to the Panchayat to consider the application for numbering the building and issue occupancy certificate in terms of the relevant rules, if the same is pending. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**