Allowed

K.v.Varkey v. Monsi.T.S.

Kerala HC15 Jul 2016WP(C)/6691/2007

Case brief

AI extract

What is this about?

This writ petition challenged an Ombudsman order directing the recovery of legal fees from Panchayat members. The Court held the Ombudsman's finding on the necessity of counsel objectionable since payment was based on a resolution by 16 out of 17 members. The order relying on recovery was set aside.

What did the court decide?

Exhibits P3 and P4 were set aside. The writ petition was allowed with observations for the Panchayat to bear in mind for future entrustment of cases.

K.v.Varkey Vs Monsi.T.S. — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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FRIDAY, THE 15TH DAY OF JULY 2016/24TH ASHADHA, 1938

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WP(C).No. 6691 of 2007 (V)

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PETITIONER(S) :

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K.V. VARKEY, KARUVANPLACKAL HOUSE, KODENCHERRY P.O., THAMARASSERY (VIA), KOZHIKODE.

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BY ADV. SRI.T.SANJAY

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RESPONDENT(S) :

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1. MONSI. T.S., THENTHEL VEEDU, HOUSE NO.44 A KP, MYKKAVU P.O., KOZHIKODE.

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2. THE SECRETARY, KODENCHERRY GRAMA PANCHAYAT, KODENCHERRY P.O., KOZHIKODE DISTRICT.

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3. THE HON'BLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, BARTON HILL BUNGLOW, KUNNUKUZHI P.O., THIRUVANANTHAPURAM.

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R2 BY ADVS. SRI.K.PRAVEEN KUMAR SRI.Y.M.BALAGOPAL SMT.T.J.SEEMA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 6691 of 2007 (V)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: A TRUE PHOTOCOPY OF THE SAID NOTE SUBMITTED BY THE SECRETARY AND THE DIRECTION ISSUED BY THE PRESIDENT DATED 24.11.2003.

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EXHIBIT P2: A TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT DATED 25.11.2003 IN W.P(C).NO.35059/2003.

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EXHIBIT P3: A TRUE PHOTOCOPY OF THE JUDGMENT IN W.P(C).NO.35059/2003 DATED 26.02.2003.

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EXHIBIT P4: A TRUE PHOTOCOPY OF THE ORDER OF THE 3RD RESPONDENT IN OP.NO.704/2004 DATED 06.12.2006.

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EXHIBIT P5: A TRUE PHOTOCOPY OF THE NOTICE DATED 31.01.2007.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

P.V.ASHA, J.

W.P.(C) No.6691 of 2007

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Dated this the 15^th day of July, 2016

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JUDGMENT

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The petitioner challenges Ext.P4 by which the Ombudsman for Local Self Government Institutions held that the engagement of a Lawyer in W.P.(C) No.35059 of 2003 was unnecessary and directed the President and the members of the Kodenchery Grama Panchayat to remit the amount paid towards the Lawyer's fee at the rate of Rs.4,000/- (Rupees Four thousand only) each within a period of three months to the Panchayat.

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The first respondent filed a complaint before the Ombudsman against the engagement of a Lawyer in W.P.(C) No.35059 of 2003 alleging that the writ petition was one filed against the membership of the President and 3 other members in the Panchayat and therefore the Panchayat ought not have spent its funds for defending a case where the litigation was not against the Panchayat but against the then President and other members. It was alleged that the expenditure of the sum of Rs.20,000/- (Rupees Twenty thousand only) towards the fee of the counsel, where the Panchayat was only a nominal party was exorbitant. Observing that any prudent man would know that a writ petition challenging membership in Pachayat is not maintainable in the

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:2:

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W.P.(C) No.6691 of 2007

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High Court, since a statutory forum is provided for that and the High Court had accordingly dismissed the writ petition and that the writ petition filed in the High Court was a personal matter of the President and the members, the Ombudsman held that the Panchayat could not have used its funds for defending such a writ petition and therefore the amount paid to the Lawyer had to be recouped to the account of the Panchayat deducting a nominal amount and directed the 4 persons whose membership were under challenge should remit the amount to the Panchayat at the rate of Rs.4000/- each.

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Learned counsel for the petitioner points out that the writ petition was one in which an interim direction was sought to postpone the no-confidence motion against the petitioner therein while seeking disqualification of the President and other 3 members and the Lawyer was engaged on receipt of writ petition from the High Court and on the basis of the resolution passed by the Panchayat, in terms of the notice. The petitioner has also filed a copy of the counter affidavit filed in W.P. (C) No.35059 of 2003.

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There is no representation for the first respondent. None of the respondents have filed any counter affidavit.

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I heard the learned counsel for the petitioner and respondents 2 and 3 who have entered appearance.

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:3:

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W.P.(C) No.6691 of 2007

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It is seen that the counsel was engaged by the Panchayat on receipt of notice issued from this Court and the writ petition which was admitted in the year 2003 is seen disposed of by Ext.P3 judgment dated 26.2.2004, after the Panchayat had filed its counter affidavit. The contention of the petitioner is that there were serious allegations against the Panchayat as well as the President with respect to the noconfidence motion and that the writ petition was not one merely challenging the membership of the President and 3 members. These contentions remain uncontroverted. From Ext.P3 judgement, it is seen that the writ petition was disposed of when it was submitted before the Court that it became infructuous since the petitioner therein had already approached the Election Commission.

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On consideration of the contentions, I am unable to approve the finding of the Ombudsman that any prudent man would be aware of the fate of such a writ petition and therefore the engagement of senior Lawyer was unnecessary. At any rate when payment is made on the basis of a resolution of the Panchayat supported by 16 out of the 17 members, the learned Ombudsman was not right in directing recovery of the amount from the 4 members who were involved in the case, on the ground that engagement of a senior counsel was unnecessary. In the above circumstances, I set aside Exts.P3 and P4.

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W.P.(C) No.6691 of 2007

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:4:

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However it will be in the interest of the Panchayat to bear in

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mind the observations of the Ombudsman in its future course of action with respect to the entrustment of cases.

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The writ petition is allowed accordingly with the above observations.

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Sd/-

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P.V.ASHA JUDGE

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rkc

K.v.Varkey v. Monsi.T.S.

Case brief

What is this about?

What did the court decide?

K.v.Varkey v. Monsi.T.S.

Case brief

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