Ratnamma vs Ombudsman For Local Self Government Institutions, Thiruvananthapuram 695001

Mohammed Nias. C.P.,J

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 4th 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 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 4th 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.

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 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.

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.

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 4th 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.

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.