Quashed

Mulloorkkara Grama Panchayath v. the Ombudsman for Local Self Government Institutions

Kerala HC10 Oct 2019WP(C)/18046/2013

Case brief

AI extract

What is this about?

Petitioner Panchayath challenged an Ombudsman order mandating culvert construction. Court found the Ombudsman acted without assessing technical feasibility or considering the Assistant Engineer's report stating no construction was needed, also ignoring the third respondent's land rights. Order set aside.

What did the court decide?

Ext.P8 order passed by the Ombudsman is set aside, and the writ petition is disposed of accordingly.

Mulloorkkara Grama Panchayath Vs the Ombudsman for… — Writ and Judicial Review | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE N.NAGARESH

¶4

THURSDAY, THE 10TH DAY OF OCTOBER 2019 / 18TH ASWINA, 1941

¶5

WP(C).No.18046 OF 2013(E)

¶6

PETITIONER:

¶7

THE MULLOORKKARA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, MULLURKARA P.O, THRISSUR DISTRICT.

¶8

BY ADV. SRI.T.RAJASEKHARAN NAIR

¶9

RESPONDENTS:

¶10

1 THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM 695 001.

¶11

2 BALAKRISHNAN BALASADAN, SREEPADAM AVENUE P.O, CITY POST OFFICE, THRISSUR 680 020.

¶12

3 T.N.SUDARSANA THEKKAN NAMBADI VEEDU, IRUNILAMCODU P.O, MULLURKARA, THRISSUR 680 583.

¶13

ADDL.R4 THE EXECUTIVE ENGINEER, LSGD SECTION, DISTRICT PANCHAYAT OFFICE, AYYANTHOLE, THRISSUR-680001

¶14

(ADDL.R4 IMPLEADED AS PER ORDER DATED 24.07.2013 IN IA 10162/2013)

¶15

R3 BY ADV. SRI.AJITH KRISHNAN R1 & R2 BY ADV. SRI.G.SREEKUMAR CHELUR

¶16

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

WP(C).No.18046 OF 2013(E)

¶18

¶19

JUDGMENT

¶20

Dated this the 10th day of October 2019

¶21

The Mullurkara Grama Panchayath has filed this writ petition aggrieved by Ext.P8 order of the first respondentOmbudsman.

¶22

The second respondent herein, who is a resident of the Panchayath filed a complaint before the first respondentOmbudsman for Local Self Government Institutions alleging that the Panchayath has constructed a granite culvert across the road for the free flow of water during rainy season. In spite of this culvert the storm water is still lodging in his property due to the insufficient culvert.

¶23

The first respondent-Ombudsman considered the complaint of the petitioner initially and passed Ext.P5 order. In Ext.P5 order the Ombudsman observed that there is no method left out other than to direct the Panchayath to remove this problem by resorting to technical methods. The Ombudsman therefore directed the Panchayath that a culvert is necessary and

¶24

WP(C).No.18046 OF 2013(E)

¶25

¶26

it has to be constructed at the earliest, but not later than 31.03.2012. Aggrieved by Ext.P5 order of the Ombudsman, the Panchayath preferred WP(C)No.4171/2012 before this Court. This Court after perusing the pleadings held that the Ombudsman has not adverted to the contentions raised by the petitioner or the Panchayath and therefore the order is not sustainable. Accordingly, this Court quashed Ext.P3 order of the Ombudsman and directed the Ombudsman to re-consider the matter.

¶27

After so remitting the matter, the Panchayath filed objection statement by way of Ext.P7. In Ext.P7 the Panchayath stated that there is sufficient provision for draining the water passing through the compound of the second respondent. The Panchayath also stated that none has raised any complaint in this regard in the Grama Sabha. The Assistant Engineer of the Panchayath has visited the place and submitted a report specifically stating that there is sufficient provision for drainage of the entire quantity of water in this area and there is no necessity to re-construct the culvert or for any other provision. The Panchayath also pointed out that the second respondent-

¶28

WP(C).No.18046 OF 2013(E)

¶29

¶30

complainant is not a resident of the area and is residing in Thrissur town. The land in question is not used for residence purpose and it is an agricultural land.

¶31

The first respondent-Ombudsman thereafter passed Ext.P8 order. Going by Ext.P8, it appears that the Ombudsman required the Executive Engineer present before him to make any suggestion for removing the difficulties faced by the second respondent. After considering the oral statement made by the Executive Engineer, the first respondent-Ombudsman directed the Panchayath Committee to consider the said suggestion favourably, prepare a project and implement it before monsoon. Pursuant to Ext.P8 order of the Ombudsman the Panchayath Committee held a meeting and decided to comply with the order of the Ombudsman. But, for this NOC from the third respondent, who is an affected party, was required. Therefore, as per Ext.P10 the Panchayath required the third respondent to give her NOC for the work. The third respondent gave a reply as per Ext.P11 reiterating that no such fresh culvert or any other opening is required in the area and in case any such work is implemented the land of the third respondent will be inundated. Since the third

¶32

WP(C).No.18046 OF 2013(E)

¶33

¶34

respondent did not give the requisite NOC, the Pamchayath could not implement Ext.P8 order of the Ombudsman and hence the Panchayath is before this Court filing this writ petition.

¶35

I have considered the pleadings in the case and arguments raised by the learned Standing Counsel for the petitioner as well as the learned counsel for the third respondent.

¶36

It is evident from Ext.P8 that before passing an order directing the Panchayath to prepare a project and implement it before monsoon the Ombudsman has not properly considered the technical, financial or administrative feasibility of any such project. In fact, along with Ext.P7 statement, the Panchayath had produced a report of the Assistant Engineer which unequivocally stated that no further construction or alteration is necessary in the area. It is without considering the report of the Assistant Engineer and without considering the administrative, technical and financial feasibility of making such construction that the Ombudsman has passed the order.

¶37

It is also relevant to note that the construction as directed by the Ombudsman would affect the rights of the third respondent who owns adjacent land. Therefore, the third

¶38

WP(C).No.18046 OF 2013(E)

¶39

¶40

respondent was a necessary party to the proceedings and this factum also was also not taken into account by the Ombudsman. In the circumstances, Ext.P8 order passed by the Ombudsman cannot stand the scrutiny of law. Therefore, Ext.P8 order is set aside.

¶41

The writ petition is disposed of as above.

¶42

Sd/-

¶43

N.NAGARESH

¶44

dlk/10.10.19 JUDGE

¶45

WP(C).No.18046 OF 2013(E)

¶46

¶47

APPENDIX

¶48

PETITIONER'S EXHIBITS:

¶49

EXHIBIT P1	COPY OF THE COMPLAINT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE HONOURABLE OMBUDSMAN.
EXHIBIT P2	COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE OMBUDSMAN.
EXHIBIT P3	COPY OF THE REPORT OF THE ASSISTANT ENGINEER LSGD SECTION, ERUMAPETTY/MULLURKARA GRAMA PANCHAYATH SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE OMBUDSMAN.
EXHIBIT P4	COPY OF ONE OF THE COMPLAINTS SUBMITTED BY SMT.T.N.SUDHARSANA, RESIDING AT THEKKAN NAMBIDY HOUSE, BEFORE THE PANCHAYATH.
EXHIBIT P5	COPY OF THE ORDER DATED 23.8.2011 PASSED BY THE OMBUDSMAN IN OP NO.519/2011.
EXHIBIT P6	COPY OF THE JUDGMENT DATED 8.6.2012 PASSED BY THIS COURT IN WPC NO.4171/2012.
EXHIBIT P7	COPY OF THE EXPLANATION SUBMITTED BY THE PANCHAYATH BEFORE THE OMBUDSMAN IN OP NO.519/2011.
EXHIBIT P8	COPY OF THE ORDER DATED 19.3.2013 PASSED BY THE OMBUDSMAN IN OP NO.519/2011.
EXHIBIT P9	COPY OF THE RESOLUTION PASSED BY THE PANCHAYATH COMMITTEE ON 27.5.2013.
EXHIBIT P10	COPY OF THE LETTER DATED 16.5.2013 ISSUED BY THE PANCHAYATH TO THE 3RD RESPONDENT.
EXHIBIT P11	COPY OF THE REPLY NOTICE SUBMITTED BY THE 3RD RESPONDENT.
EXHIBIT P12	COPY OF THE DECISION TAKEN BY THE PANCHAYATH COMMITTEE.

Mulloorkkara Grama Panchayath v. the Ombudsman for Local Self Government Institutions

Case brief

What is this about?

What did the court decide?

Mulloorkkara Grama Panchayath v. the Ombudsman for Local Self Government Institutions

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Skyline Builders and Developers (India) Private Limited Vs Kottayam Municipality

Rahel Abraham Vs Pampakuda Grama Panchayat

Pay & Accounts Officer Vs T.Santhakumari

Neyyapadath Hamza Vs Kottopadam Grama Panchayat

Ubaidath Beevi Vs Manamboor Grama Panchayat

V.T.Mahesh, Vs Mohammed Saheer M.