T. P. Abdul Hameed Haji & Others v. Kerala Lok Ayukta & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 5[TH] DAY OF APRIL 2023 / 15TH CHAITHRA, 1945 ``` ## **`WP(C) NO. 13167 OF 2016`** ## **`PETITIONER/S:`** ``` 1T.P.ABDUL HAMEED HAJI RAINBOW HOUSE, CHOOTTADU, P.O.MADAYI, KANNUR - 670 304, REPRESENTED BY POWER HOLDERE.K.ABDUL HAMEED HAJI. 2E.K.ABDUL HAMEED HAJI PAP HOUSE, P.O.MADAYI,KANNUR - 670 304. 3DR.P.A.PADMANABHAN GLDEN ENCLAVE, P.O.THOTTADA,KANNUR - 670 007, REPRESENTED BY POWER HOLDER E.K.ABDUL HAMEED HAJI BY ADVS. SRI.V.V.ASOKAN (SR.) SRI.R.JAIKRISHNA SRI.K.I.MAYANKUTTY MATHER ``` ## **`RESPONDENT/S:`** - `1 KERALA LOK AYUKTA REPRESENTED BY ITS REGISTRAR, LEGISLATIVE COMPLEX, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM - 695 033.` - `2 N.PAVITHRAN S/O. KUMARANA, NELLIKKA HOUSE, NEAR AMUKKAPPALLY,NETTOOR P.O., KANNUR - 670 105.` - `3 THE COMMISIONER LAND REVENUE PUBLI OFFICE BUILDING, THRIUVANANTHAPURAM - 695 003.` - `4 CORPORATION OF KANNUR KANNUR - 670 307, REPRESENTED BY ITS SECRETARY.` - `5 DISTRICT COLLECTOR KANNUR - 670 307.` ## **`WP(C) NO. 13167 OF 2016 ..2..`** ``` 6KOYAMMADATH KHADEEJA RAINBOW HOUSE, CHOOTTADU, P.O.MADAYI, KANNUR - 670 304. 7MOHAMMEDKUNHI RAINBOW HOUSE, CHOOTTADU, P.O.MADAYI, KANNUR - 670 304. BY ADVS. SRI.K.H.ASIF SRI.M.SASINDRAN VINEETH KOMALACHANDRAN KOMALACHANDRAN SMT.M.MEENA JOHN, SC, KANNUR MUNICIPAL CORPORATION SMT.S.AMBILY SRI.ABILASH THOMAS SRI.K.K.CHANDRAN PILLAI SR. SMT.ELSA DENNY PINDIS SRI.K.V.KRISHNAKUMAR SRI.M.SASINDRAN SMT.RENU. D.P., SC, LOK AYUKTA SRI.K.P.HARISH, SR.GP ``` ## **`OTHER PRESENT:`** ``` PARVATHY S - petitioner ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 13167 OF 2016 ..3.. ``` ## **JUDGMENT** ## **MURALI PURUSHOTHAMAN, J.** This writ petition is filed to declare that the Kerala Lok Ayukta (for short, 'Lok Ayukta') has no jurisdiction to entertain Ext.P9 complaint. 2. The 2[nd] respondent preferred Ext.P9 complaint before the Lok Ayukta against the petitioners and certain officers, praying to cancel the building permit issued by the Secretary of Edakkad Grama Panchayat to the petitioners and respondents 6 and 7 for the construction of a hospital on the ground that the same has been issued in violation of the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008 ('Paddy and Wetland Act', for short). Though the petitioners objected to the maintainability of the complaint, the Lok Ayukta proceeded with the investigation of the complaint. According to the petitioners, the authority competent to issue building permit is the Secretary of the Panchayat and the Lok ## **`WP(C) NO. 13167 OF 2016 ..4..`** Ayukta has no jurisdiction to entertain any complaint against the officers of the Panchayat after the constitution of the Ombudsman for Local Self Government Institutions ('Ombudsman', for brevity). The petitioners also contend that the 2[nd] respondent had earlier approached the Lok Ayukta alleging that Edakkad Grama Panchayat has issued building permit to the petitioners without ascertaining the fact that the subject land is hit by the provisions of the Paddy and Wetland Act. However, the said complaint was withdrawn and the 2[nd] respondent caused one Sri.Ramakrishnan to file another complaint before the Lok Ayukta raising the same allegation. The said complaint was dismissed by the Lok Ayukta finding that there are no bona fides in the complaint. The petitioners state that the 2[nd] respondent caused one Chandran to file a complaint before the Ombudsman raising the same allegations against the Secretary of the Panchayat and the said complaint was dismissed for default by Ext.P8 order. It ``` WP(C) NO. 13167 OF 2016 ..5.. ``` was thereafter that the 2[nd] respondent preferred Ext.P9 complaint before the Lok Ayukta. As stated, the allegation of the 2[nd] respondent in Ext.P9 is that the subject land is wetland hit by the provisions of Paddy and Wetland Act and therefore, building permit could not have been issued to the petitioners. The petitioners contend that, after the constitution of the Ombudsman, the Lok Ayukta has no jurisdiction to entertain any complaint against a public servant as defined under section 271F (1)(g) of the Kerala Panchayat Raj Act and therefore, Ext.P9 complaint is not maintainable before the Lok Ayukta. 3. Heard Smt.Parvathy S., the learned counsel for the petitioners and Sri.K.P.Harish, the learned Senior Government Pleader. 4. Smt.Parvathy, learned counsel for the petitioners, submitted that the allegation of the 2[nd] respondent in Ext.P9 complaint is that building permit has been issued to the petitioners in violation of the provisions of the Paddy ## **`WP(C) NO. 13167 OF 2016 ..6..`** and Wetland Act. The learned counsel contends that the provisions of the Paddy and Wetland Act are not violated in issuing building permit and if the 2[nd] respondent is aggrieved by the issuance of building permit, the same has to be challenged before the appropriate forum under the Kerala Panchayat Raj Act. It is also contended that if the provisions of the Paddy and Wetland Act are violated, remedies under the said Act has to be resorted to. Smt.Parvathy relies on the decision of this Court in **Jose V.** **Jacob v. Thalayolaparambu Grama Panchayath [2016(1) KHC 88:2016(1) KLT 362]** to contend that complaint pertaining to Local Self Government Institutions, its officers and employees is not maintainable before the Lok Ayukta and the same has to be preferred before the Ombudsman. 5. The main grievance of the 2[nd] respondent in Ext.P9 complaint is against the issuance of building permit to the petitioners as the land is wetland hit by the provisions of ``` WP(C) NO. 13167 OF 2016 ..7.. ``` the Paddy and Wetland Act. The 2[nd] respondent has also sought to take action against the erring officers who have violated the provisions under the Paddy and Wetland Act and these officers are also arrayed as respondents in Ext.P9 complaint along with the petitioners and the Secretary of the Panchayat. 6. While deciding the jurisdiction of the Lok Ayukta to enquire into the complaint, the substance of the complaint has to be looked into. From Ext.P9 complaint, it can be seen that the grievance of the 2[nd] respondent is against granting building permit to the petitioners. In case of allegations of corruption or maladministration in the matter of issuance of building permit, the 2[nd] respondent has to approach the Ombudsman against the Secretary of the Panchayat who has issued the permit. After the constitution of the Ombudsman w.e.f 29.05.2000, the Lok Ayukta has no jurisdiction to entertain any complaint against the Secretary of the Panchayat who is a public ``` WP(C) NO. 13167 OF 2016 ..8.. ``` servant coming within the definition of section 271F(1)(g). A Division Bench of this Court, in **Thrissur Corporation v. Jose K R and others [2022 (6) KHC 314:2022 (4) KLT 868],** has held that, Lok Ayukta has no jurisdiction to entertain any complaint against a public servant as defined in section 271F(1)(g) of the Kerala Panchayat Raj Act and the jurisdiction vests with the Ombudsman. In **Jose V. Jacob** (supra), the Division Bench has held that merely because the complainant has impleaded persons not covered under the definition of public servant as defined under section 271F(1)(g), the jurisdiction of the Ombudsman to investigate into the complaint cannot be taken away. The Court held that while deciding the jurisdiction of the Ombudsman to enquire into the complaint, the substance of the complaint has to be looked into and the investigation of the complaint cannot be permitted to proceed with by the Lok Ayukta merely because some additional persons have been impleaded in ``` WP(C) NO. 13167 OF 2016 ..9.. ``` the complaint. Taking note of the substance of the complaint before the Lok Ayukta, the complaint has to be enquired into by the Ombudsman and not by the Lok Ayukta. Accordingly, we hold that Ext.P9 complaint is not maintainable before the Lok Ayukta. The Lok Ayukta has no jurisdiction to entertain Ext.P9 complaint. It is declared so. The writ petition is allowed. **Sd/S.MANIKUMAR CHIEF JUSTICE** **Sd/MURALI PURUSHOTHAMAN JUDGE** spc ## **`WP(C) NO. 13167 OF 2016 ..10..`** ## **`APPENDIX OF WP(C) 13167/2016`** ## `PETITIONER EXHIBITS` - `EXT.P1 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE EDAKKAD GRAMA PANCHAYAT DT 28.11.2011.` - `EXT.P1(A) TRUE COPY OF THE APPROVAL GIVEN BY CHIEF TOWN PLANNER, TRIVANDRUM DT. 29.2.2011` - `EXT.P2 TRUE COPY OF THE RELEVANT EXTRACT OF THE DATA BANK OF PADDY LAND AND WET LANDS INEDAKKAD GRAMA PANCHAYAT DT. 24.3.2012.` - `EXT.P2(A) TRUE COPY FO THE REPROT OF THE PRINCIPAL AGRICULTRUAL OFFICER, KANNUR DT. 21.3.2011.` - `EXT.P2(B) TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, EDAKKAD DT. 30.4.2011.` - `EXT.P3 TRUE COPY OF THE SITE PLAN DT. 18.12.2014. EXT.P4 TRUE COPY OF THE REVIED BUILDING PERMIT ISSUED BY EDAKKAD GRAMA PANCHAYAT DT. 17.9.2015.` - `EXT.P5 PHOTOGRAPHS DISCLOSING THE PRESENT STAGE OF THE CONSTRUCTION OF HE HOSPITAL BUILDING (EXTERNAL VIEW) DATED NIL.` - `EXT.P5(A) PHOTOGRAPHS DISCLOSING THE PRESENT STAGE OF THE CONSTRUCTION OF HE HOSPITAL BUILDING (EXTERNAL VIEW) DATED NIL.` - `EXT.P5(B) PHOTOGRAPHS DISCLOSING THE PRESENT STAGE OF THE CONSTRUCTION OF HE HOSPITAL BUILDING (INTERIOR VIEW) DATED NIL.` - `EXT.P5(C) PHOTOGRAPHS DISCLOSING THE PRESENT STAGE OF THE CONSTRUCTION OF HE HOSPITAL BUILDING (INTERIOR VIEW) DATED NIL.` - `EXT.P6 TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPODNENT DT. 26.9.2012.` - `EXT.P7 TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DT. 09.5.2014.` - `EXT.P8 TRUE COPY OF THE PROCEEDINGS OF THE OBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM DT. 19.10.2013.`` - `EXT.P9 TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT (COMPLAINT NO.1233/2015D)` - `EXT.P10 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.`