This court dismissed a writ petition challenging an Ombudsman order directing a Panchayath to investigate pollution allegations. The court held the petition lacked legal sustenance as the petitioner failed to prove the Ombudsman lacked jurisdiction under the Kerala Panchayath Raj Act, 1994.
The Writ Petition is dismissed for lack of legal sustenance.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943
WP(C).No.2779 OF 2014(V)
PETITIONERS:
1 SHARMILA HARIKUMAR
AGED 43 YEARS
W/O.S.HARIKUMAR,SREESYLAM,KANNACODE,VATTAPPARA.P.O, TRIVANDRUM-695028.
2 S.HARIKUMAR,AGED 42 YEARS, S/O.SADASIVAN,SREESYLAM,KANNACODE,VATTAPPARA.P.O, TRIVANDRUM-695028.
BY ADV. SRI.M.R.SUDHEENDRAN
RESPONDENTS
2 THE SECRETARY VEMPAYAM GRAMA PANCHAYATH,VEMPAYAM,TRIVANDRUM-695028.
R2 BY ADV. SRI.M.SREEKUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-022017, THE COURT ON 25-03-2021 DELIVERED THE FOLLOWING:
WP(C).No.2779 OF 2014(V)
JUDGMENT
Dated this the 25th day of March 2021
This writ petition is filed by the petitioners
seeking to quash Ext.P3 order passed by the Ombudsman for Local Self Government Institutions, Thiruvananthapuram, dated 10.10.2013 in
O.P.No.598/2013, the order reads thus:-
“ Petitioner and his counsel are present. Respondent 1 & 2 are represented by R1. Panchayath is represented by its representative. After hearing all concerned the subject matter of the case is regarding the sound pollution as well as the dust pollution alleged to be created by the functioning of a unit run by R1 & R2 in the name and style Sreesylam enterprises. The 1st respondent would submit that there is no pollution at all and licence is obtained. Now the grievance is about the noise and dust pollution and if it is of such a nature that is likely to be caused danger to the health and property of a person which is a matter that has to be looked into by scientific expert and appropriate decision and directions have to be given. If it is a residential area there is a limit on the sound that can be produced and similarly if it produces huge quantity of dust then certainly it will lead to complications in the form of allergy which can affect person in the locality. Therefore, it requires a scientific study about the matter. Therefore, I direct the Secretary to the Panchayath along with the Environmental Engineer, Pollution Control Board after due notice to both parties visit the property and find out regarding the alleged problems faced by the petitioner and after obtaining the report of the Environmental Engineer give notice to both parties, hear them and pass
WP(C).No.2779 OF 2014(V)
appropriate orders. Send a copy of this order to the Pollution Control Board for necessary guidance and help. If the problems can be ceased by adopting adequate safety measures then such direction have to be given to them otherwise the Panchayath has to proceed in accordance with law. Op is disposed of accordingly.”
Ext.P3 impugned order, especially to the Pollution Control Board. According to the petitioners, they have been conducting the steel cutting yard by securing appropriate consent/permission/licence from the appropriate statutory authorities and therefore there was no requirement at all for issuing any direction. It is further contented that
the Ombudsman for Local Self Government Institutions is only vested with powers to consider any issues in relation to corruption activities of the Panchayath authorities and the allied officers and therefore, Ext.P3 has no sustenance being arbitrary and illegal liable to be interfered with
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WP(C).No.2779 OF 2014(V)
by this Court in a proceeding under Article 226 of the Constitution of India.
the petitioners Adv.Sanjay Johnson representing Adv. M.R.Sudheendran on record and the learned counsel for the Secretary of the Grama Panchayth Smt.V.P.Sathy representing Adv.M.Sreekumar and perused the pleadings and documents on record.
whether any manner of interference is warranted in Ext.P3. Going through Ext.P3 order extracted above, it is clear that it is an innocuous direction
issued by the Ombudsman to the Secretary of the Grama Panchayath to take into account the aspects put forth by the 1st respondent herein as to the pollution occurred due to conduct of the cutting of steel yard by the petitioners.
directions are issued to interfere with the
WP(C).No.2779 OF 2014(V)
business conducted by the petitioners. However, the
Ombudsman was attempting to resolve a dispute
raised by the 1st respondent in regard to the
pollution occurred in the area.
thereto, I am of the considered opinion that the Secretary of the Grama Panchayath/the Grama Panchayath are vested with sufficient powers to
look into the aspect as to whether the pollution is occurred consequent to the functioning of any industrial establishment in any premises within
jurisdiction of the Panchayath. Therefore, irrespective of the consent granted by the Pollution Control Board, the Secretary of the Grama Panchayath is vested with ample power to look into the issues as directed by the Ombudsman.
any directions to the Pollution Control Board
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cannot be sustained for a reason that the direction
issued to the Secretary is applicable to the
Secretary. Moreover I would like to differ from the contention put forth by the petitioners, the Ombudsman can look into only the real corrupt
practices that take place within the panchayath and indulged in such activities by the officers of the panchayath.
account the factual circumstances and has issued
the said directions. Therefore, it can only be
legally presumed that the Omdudsman has exercised
the power of jurisdiction in terms of the
provisions of the Kerala Panchayath Raj Act, 1994. Therefore, the issue foils down to one issue,
whether the petitioners have established before
this Court that the Ombudsman did not have any power to pass the order, which was dependent on various factual circumstances.
WP(C).No.2779 OF 2014(V)
not produced any documents or made sufficient pleadings to establish that the Ombudsman has exceeded the jurisdiction or power conferred under the Act, 1994 and the laws thereto.
Needless to say, the writ petition has no
legal sustenance. Accordingly, it is dismissed.
SD/-
SHAJI P.CHALY
JUDGE
hmh
WP(C).No.2779 OF 2014(V)
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 EXT.P1 A TRUE COPY OF THE COMPLAINT DATED 25.3.2013. EXHIBIT P2 EXT.P2 COPY OF THE STATEMENT FILED BY THE 2ND RESPONDENT EXHIBIT P3 EXT.P3 COPY OF THE ORDER DATED 10.10.2013.
RESPONDENT'S/S EXHIBITS: NIL
2 issues framed by the court
Whether the Writ Petition alleging lack of power in the Ombudsman to issue directions under the Kerala Panchayath Raj Act has legal sustenance.
Whether the petitioners established that the Ombudsman exceeded the jurisdiction conferred under the Kerala Panchayath Raj Act, 1994.
2 provisions across 2 enactments
Sharmila Hari Kumar
S. Harikumar
G.P Kumar Raj Bhavan
Secretary Vempayam Grama Panchayath
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
