Asset Homes (P) Ltd. vs State Of Kerala on 12 August, 2010

Kerala High Court
Asset Homes (P) Ltd. vs State Of Kerala on 12 August, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 20251 of 2010(F)


1. ASSET HOMES (P) LTD.,NO.4,ANCHORAGE,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY
                       ...       Respondent

2. OMBUDSMAN FOR LOCAL SELF GOVERNMENT

3. TRIKKAKARA GRAMA PAUCHAYATH,TRIKKAKARA

4. K.K.ASYA,AGE NOT KNOW, KANJIRAKANDIYIL,

                For Petitioner  :SRI.PEEYUS A.KOTTAM

                For Respondent  :SRI.S.SHANAVAS KHAN

The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :12/08/2010

 O R D E R
                      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 4th 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 4th respondent, is not vested with the

Panchayat and it is not a public road.

5. Learned Ombudsman directed the 4th 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 4th 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 4th respondent is water logged.

Even though learned counsel for the 4th 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 sub-

section (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

4th 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 4th 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/

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