Chandrakumar v. Ombudsman for Local Self Government Institutions

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945** ## **WP(C) NO. 32432 OF 2023** **PETITIONER: CHANDRAKUMAR AGED 45 YEARS,S/O. KUTTAPPAN, PALKULAM HOUSE, AYINKAMAM, PARASSALLA, PARASSALLA P.O., THIRUVANANTHAPURAM, PIN - 695502 BY ADVS. BIJITH S.KHAN N.ANAND RAJESH O.N.** ## **RESPONDENTS:** |**1**|**THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT**| |---|---| ||**INSTITUTIONS**| ||**REPRESENTED BY ITS SECRETARY**| ||**SAPHALYAM COMPLEX, TRIDA BUILDINGS,**| ||**UNIVERSITY P.O., PALAYAM**| ||**THIRUVANANTHAPURAM, PIN - 695034**| |**2**|**L. SAKUNTHALA**| ||**SREEKRISHNAVILASAM,**| ||**VARIKKAMMOODU, AYINKAMAM,**| ||**PARASSALLA, PARASSALLA P.O.,**| ||**THIRUVANANTHAPURAM, PIN - 695502**| |**3**|**PRATHEENATH**| ||**SECRETARY,**| ||**PARASSALA GRAMA PANCHYATH PARASSALA,**| ||**THIRUVANANTHAPURAM, PIN - 695502**| |**4**|**BABURAJ**| ||**SECTION CLERK**| ||**PARASSALA GRAMA PANCHYATH PARASSALA,**| ||**THIRUVANANTHAPURAM, PIN - 695502**| |**5**|**SECRETARY**| ||**PARASSALA GRAMA PANCHYATH PARASSALA,**| ||**THIRUVANANTHAPURAM, PIN - 695502**| |**6**|**PARASSALA GRAMA PANCHYATH**| ||**PARASSALA, THIRUVANANTHAPURAM**| ||**REPRESENTED BY ITS SECRETARY, PIN - 695502**| ||**BY ADVS.**| ||**S.K.BALACHANDRAN**| W.P.(C) No.32432/23 **-:2:-** **N.D.DEEPA SMT.SHYNIMOL V.O., GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.32432/23 **-:3:-** **“C.R.”** **BECHU KURIAN THOMAS, J.** **----------------------------------------W.P.(C) No.32432 of 2023 ---------------------------------------Dated this the 12[th] day of December 2023** ## **JUDGMENT** Petitioner challenges orders issued by the Ombudsman for Local Self Government Institutions in Complaint No.486/2019 and also seeks for a direction to dismiss the said complaint. A declaration has also been sought that the first respondent has no jurisdiction to entertain the complaint of the second respondent or to issue orders in the nature of those impugned in this writ petition. 2. Petitioner claims to have succeeded to one cent of property of his father, over which a house is situated. Alleging that petitioner has not constructed a soak pit and is discharging septic waste into the property of the second respondent, a complaint was filed before the Ombudsman, pointing out that, despite complaints to the Panchayat, no action has been initiated. 3. Even though the Panchayat Secretary filed a statement before the Ombudsman that earlier, petitioner's father used to discharge waste into the second respondent's property, at present, there was no such **-:4:-** W.P.(C) No.32432/23 nuisance still, by Ext.P4 order, the Ombudsman directed the Panchayat Secretary to inspect the property and to give instructions to install a sewage treatment facility in the petitioner's property and also directed to ensure that the nuisance is abated. After the petitioner's father died, petitioner was impleaded in the proceedings before the Ombudsman. Thereafter, on 26-06-2023, the Ombudsman was informed by the Secretary that a notice had been issued to the petitioner abate the nuisance. However, after observing that issuance of a notice by the Secretary is not sufficient and instead, the waste treatment facility itself must be installed, the Ombudsman directed the parties to be heard Secretary and to initiate action to compel such installation, failing which it was threatened that the salary of the Secretary shall be withheld. Various orders have also been issued by the Ombudsman on 11-10-2022 and 1704-2023 in a bid to abate the alleged nuisance being caused to the second respondent. 4. Sri. N. Anand, the learned counsel for the petitioner, contended that the jurisdiction of the Ombudsman to issue orders in the nature of Ext.P4 and Ext.P6 is questionable. The learned counsel contended that as per the provisions of Section 271J of the Kerala Panchayat Raj Act, 1994 (for short ‘the Act’), such a power is not available and that the jurisdiction of the Ombudsman arises only when there is a _prima facie_ finding regarding the existence of corruption or maladministration by a W.P.(C) No.32432/23 ## **-:5:-** public servant and that, in none of the orders impugned, has the Ombudsman found any maladministration or corruption. It was further submitted that the Ombudsman could not have issued any order directing a particular act to be performed in a particular manner. Even otherwise, it was contended that the nature of orders that can be issued by the Ombudsman is limited in scope, and it cannot dictate the manner or nature of orders that are to be issued by the local authorities. It was further submitted that the order issued by the Panchayat Secretary as Ext.P7 and Ext.P9 were at the dictation of the Ombudsman, and therefore, the petitioner was not even granted an opportunity of hearing. 5. Sri.S.K.Balachandran, the learned counsel for the second respondent, on the other hand, contended that the discharge of faecal waste into the second respondent's property was causing serious prejudice and that the orders of the Ombudsman were only intended to redress the said grievance. According to the learned counsel, despite repeated directions, petitioner had not taken any effort to avoid such discharge. It was further submitted that the complaint before the Ombudsman had clearly mentioned instances of corruption and maladministration by the Secretary, and therefore, the Ombudsman has the jurisdiction to issue orders of this nature. ## 6. I have considered the rival contentions. **-:6:-** W.P.(C) No.32432/23 7. Before dealing with the factual aspects, it is essential to briefly delve into the limits of the jurisdiction of the Ombudsman, which is limited in nature. Only when a complaint consists of allegations of corruption or maladministration would it be entitled to proceed with an enquiry. Even regarding allegations of maladministration, the action must be with reference to the exercise of the administrative and legal functions, and further, when there are other remedies available, as specified in section 271M of the Act, the Ombudsman ought not to investigate. 8. In Section 271J of the Act dealing with the functions of the Ombudsman, it is specified that the power of the Ombudsman is only to investigate an allegation contained in a complaint or to enquire into complaints of corruption or maladministration of a public servant or Local Self Government Institution. The Ombudsman cannot pass orders as if it were a civil court nor can it adjudicate on a private dispute. Furthermore, there is a limitation on the scope of powers in passing interim orders. Though, as per sub-section (2) of Section 271J, interim orders can be passed by the Ombudsman, they are to be confined to restraining the Local Self Government Institution from doing anything detrimental to the interest of the complainant if it is satisfied that much loss or injury will be caused to the complainant due to the alleged act. The said power does not entitle the Ombudsman to issue positive orders in the nature of an adjudication, compelling third parties or even the Secretary of the local W.P.(C) No.32432/23 ## **-:7:-** Authority to perform an act in a particular manner. As a creature of the statute, the Ombudsman has to confine itself within the four corners of the said statute. 9. As mentioned earlier, the scheme of the statutory provisions indicate that private disputes between two individuals are not intended to be considered by the Ombudsman. Section 271M of the Act postulates in sub-clause (4) that the Ombudsman shall not enquire into matters where a remedy is available before the Tribunal under Section 271S of the Act. A Tribunal is constituted to decide matters that fall under Section 276 of the Act or Section 509 of the Kerala Municipality Act, 1974. Such an appeal or revision can be filed against any notice, order or action of the Secretary taken under Sections 235I, 235J, 235N, 235W and 235X of the Act and those under Sections 390, 391, 395, 406, 408 of the Kerala Municipalities Act, 1994. Apart from the above, in cases where the Ombudsman is satisfied that other remedies that are more beneficial to the complainant are available, the complaint is to be rejected as per section 271(1)(c) of the Act. 10. Notwithstanding the above, the Tribunal For Local Self Government Institutions Rules, 1999 provides, in its schedule, the matters that can be considered by the Tribunal either as an appeal or as a revision. Serial No.8 in the Schedule to the said Rules deal with the **-:8:-** W.P.(C) No.32432/23 removal and processing of rubbish, solid waste and filth in the Local SelfGovernment areas. Thus, the complainant before the Ombudsman had specific other remedies before the Tribunal. 11. In the decision in **SMA Restaurant Service Pvt. Ltd. vs. State of Kerala** (2013 (1) KHC 252), it was held that disputes between a builder and an apartment owner cannot be decided by the Ombudsman. Similarly, in the decision in **Kuriyakose Thomas v. Ombudsman for Local Self Government Institution, Tvm** (2013 (4) KHC 455), it was held that demarcation of boundaries, removal of encroachment, etc. are not within the realm of enquiry of the Ombudsman. 12. In Ext.P4 order dated 17-03-2022, it is recorded that the Secretary of the Panchayat had categorically stated that there is no discharge or nuisance caused by any waste disposal from the petitioner's property. It is clearly indicative of the character of the dispute that is pending before the Ombudsman, which, in other words, is only a private dispute, that too relating to the removal of waste or rubbish within the Panchayat area. When a private dispute is raised, the Ombudsman does not have jurisdiction to decide such a dispute and must relegate the parties to resolve the dispute through another available forum. Since other alternative remedies are available to those aggrieved, Ext.P4 and Ext.P6 orders must be set aside. **-:9:-** W.P.(C) No.32432/23 13. As far as Ext.P5, Ext.P7 and Ext.P9 proceedings issued by the secretary are concerned, though the same has been issued pursuant to the direction of the Ombudsman, I am of the view that, those proceedings, which take into account the grievance of the second respondent regarding waste disposal, ought to be treated as show cause notices. Since Ext.P9 is the last of the notices issued, an opportunity ought to be given to the petitioner to file an objection, and thereafter, the Secretary ought to pass orders on merits, untrammelled by any observation of the Ombudsman. 14. In the result, Ext.P4 and Ext.P6, orders issued by the first respondent on the basis of the complaint filed by the second respondent are set aside. Since the complaint filed by the second respondent has not been produced, the declaration as sought for cannot be allowed, but the said question is left open to the petitioner to be taken up either before the Ombudsman itself or before the appropriate forum in accordance with law. There will be a further direction to the fifth respondent to treat Ext.P5, Ext.P7 and Ext.P9 as show cause notices, and the petitioner is given the liberty to file an objection within 30 days from the date of receipt of a copy of this judgment. On receipt of the objection, the fifth respondent shall consider the same and pass appropriate orders in accordance with law after granting an opportunity of hearing to the petitioner as well as the second respondent. W.P.(C) No.32432/23 ## **-:10:-** 15. Needless to mention, the fifth respondent shall issue appropriate orders untrammelled by any observation made in this judgment or the orders of the Ombudsman. This writ petition is disposed of as above. Sd/- **BECHU KURIAN THOMAS JUDGE** AJM W.P.(C) No.32432/23 ## **-:11:-** ## **APPENDIX OF WP(C) 32432/2023** **PETITIONER'S/S' EXHIBITS** **Exhibit P1 TRUE COPY OF THE SALE DEED DATED 22.02.2010 BY KUTTAPPAN IN PETITIONER AND HIS WIFE'S FAVOUR Exhibit P2 A TRUE COPY OF THE TAX RECEIPT DATED 15.07.2023 ISSUED BY THE PARASSALLA VILLAGE OFFICE IN RECEIPT NO. KL01042008109/2023 Exhibit P3 PHOTOGRAPHS OF THE TANK CONSTRUCTED TO COLLECT THE WATER WASTE Exhibit P4 A TRUE COPY OF THE ORDER DATED 17.03.2022 PASSED BY THE OMBUDSMAN, TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN COMPLAINT NO. 486/2019 Exhibit P5 A TRUE COPY OF THE ORDER DATED 15.06.2023 PASSED BY THE RESPONDENT NO. 5 IN NO. SC3-3998/2023 Exhibit P6 A TRUE COPY OF THE ORDER DATED 26.06.2023 Exhibit P7 A TRUE COPY OF THE ORDER DATED 14.08.2023 PASSED BY RESPONDENT NO. 5 IN ORDER NO. SC3/5952/2023 Exhibit P8 A TRUE COPY OF THE PETITION DATED 21.08.2023 FILED BY THE PETITIONER BEFORE THE SECRETARY Exhibit P9 A TRUE COPY OF THE ORDER DATED 12.09.2023 ISSUED BY RESPONDENT NO. 5 IN NO. SC3/5952/2023 Exhibit P10 A true copy of the statement dated 04.01.2022 filed by the respondent No. 5 before respondent No.1 Exhibit P11 A true copy of the order dated 11.10.2022 issued by the respondent No.1 Ombudsman Exhibit P12 A true copy of the order dated 17.04.2023 passed by respondent No. 1 in Complaint No. 486/2019 Exhibit P13 A true copy of the order dated 29.11.2022 passed by respondent No.1 in Complaint No. 486/2019 Exhibit P14 A true copy of the order dated 17.03.2022 issued by respondent No.1 in No. 486/2019**