B.Shaji vs The Ombudsman For Local Self … on 30 November, 2006

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 9304 of 2006(G)


1. B.SHAJI, PRASANTHI, PRAKKULAM CHERRY,
                      ...  Petitioner

                        Vs



1. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT
                       ...       Respondent

2. THE SECRETARY, THRIKKARUVA GRAMA

3. KRISHNAN GOPINATHAN, KRISHNA NIVAS,

                For Petitioner  :SRI.K.SUBASH CHANDRA BOSE

                For Respondent  :SRI.K.S.MANU (PUNUKKONNOOR)

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :30/11/2006

 O R D E R
                          PIUS C.KURIAKOSE,J.

                        ```````````````````````````

                       W.P.(C) NO. 9304 OF 2006

                        ```````````````````````````

            Dated this the 30th day of November, 2006


                              J U D G M E N T

The petitioner impugnes Exhibit P11 order passed by the

Ombudsman. Under Exhibit P11, the Ombudsman set aside the

order of the Panchayat registering the name of writ petitioner

Shaji as the owner of the building having door No.X/64, and

directed that the name of the 3rd respondent be entered in the

relevant register as the owner of the building in question. Exhibit

P12 order will show that the order of the Ombudsman has been

faithfully implemented by the Panchayat. Thus going by Exhibit

P12, the name of the petitioner stands deleted and the same has

been substituted by the name of the 3rd respondent. The

petitioner in this writ petition seeks a direction that his name be

restored to Exhibit P12. In other words, the prayer is that Exhibit

P10 be cancelled and everything that has been done on the

strength of Exhibit P10 be undone.

2. I heard the submissions of Sri.Subash Chandra Bose,

learned counsel for the petitioner and those of Sri.K.S.Manu,

learned counsel for the 3rd respondent. The Panchayat

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interestingly has not entered appearance before this court. I feel

that it would have been very convenient if the Panchayat had

entered appearance or produced original of the property tax

assessment register.

3. My attention was drawn by Mr.Subash Chandra Bose to

the various documents placed on record by the parties,

particularly Exhibits P3, P5 and P12 assessment registers. A

scrutiny of Exhibits P3 and P5 will show that the building over

which the petitioner claims ownership is a tiled building with

cement floor having three rooms while going by Exhibit P5, the

building over which the third respondent claims ownership is a

building having an area of 500 Sq.ft, a portion of which is terraced

while another portion is tiled. Significantly, the building shown in

Exhibit P5 has got nine rooms as against the petitioner’s building

in Exhibit P3 which has got only three rooms. True, title over the

land upon which the building or buildings are constructed seems

to be with the third respondent. But the position is fairly settled

that ownership over the building constructed on the land need not

necessarily be with the owner of the land itself. The situation is

that ownership of a building can remain with a person other than

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the one who has ownership over the land.

4. For want of materials, particularly the original of the

property tax assessment register, I am unable to settle the issue

finally. I am told that the parties are already before the Munsiff

Court, Kollam in OS 417/05. I am sure that the learned Munsiff

will be in a better position to settle the issue.

Under these circumstances, I direct the parties to agitate the

issue relating to ownership over the building which is subject

matter of Exhibits P3 and P12, i.e., building having door No.X/64

of Thrikkaruva Grama Panchayat by producing evidence before

that court. I direct the learned Munsiff to take an early decision

on the suit uninfluenced by the order of the Ombudsman and also

by the entires which have been made in the property tax

assessment register as per Exhibit P12. The issue as to ownership

of the building having Door No.X/64 will be decided by the learned

Munsiff, taking into account the principle which obtains in this

country that ownership over the building need not necessarily be

with the owner of the land upon which the building is constructed.

The learned Munsiff will dispose of the suit at the earliest, and at

any rate, within four months of receiving copy of this judgment.

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All the entries made in Exhibit P12 on the strength of Exhibit P11

order of the Ombudsman will be treated as provisional.

PIUS C.KURIAKOSE, JUDGE

Rp