Quashed

Aji v. the Secretary

Kerala HC2 Mar 2023WP(C)/42134/2022

Case brief

AI extract

What is this about?

This writ petition challenged orders issued by the Ombudsman directing a Grama Panchayat to fix boundaries and remove unauthorised construction. The court held that the Ombudsman lacked jurisdiction to issue such positive directions and quashed them, while preserving the Panchayat's authority to act under law.

What did the court decide?

Exts.P6 and P10 orders issued by the Ombudsman were quashed as they exceeded jurisdiction; dismissal does not bar Panchayat from acting under law.

Aji Vs the Secretary — Constitutional and Fundamental Rights | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

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THURSDAY, THE 2^ND DAY OF MARCH 2023 / 11TH PHALGUNA, 1944

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WP(C) NO. 42134 OF 2022

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PETITIONERS:

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1 AJI AGED 51 YEARS S/O MUHAMMED MUSTAFFA, VEDIYANIKKAL, KANAKAPALAM, P.O. ERUMELI, KOTTAYAM DISTRICT, PIN-686 509. 2 JASMI AGED 45 YEARS W/O AJI, VEDIYANIKKAL, KANAKAPALAM, P.O. ERUMELI, KOTTAYAM DISTRICT, PIN-686 509. BY ADVS. K.T.SHYAMKUMAR HARISH R. MENON K.N.ABHA A.G.PRASANTH K.S.SREEJA

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RESPONDENTS:

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1 THE SECRETARY ERUMELY GRAMA PANCHAYAT, ERUMELI, KOTTAYAM DISTRICT, PIN-686 509., PIN - 686509 2 SAJEENA K.A. SAIFA MANZIL, IDAVANASSERI, MAINAGAPALLY P.O., KOTTAYAM, PIN-690 519. 3 SAJITH AMEEN A.M. SAIFA MANZIL, IDAVANASSERI, MAINAGAPALLY P.O., KOTTAYAM, PIN-690 519. 4 THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS BARTON HILL, BARTON HILL COLONY, KUNNUKUZHY, THIRUVANANTHAPURAM, PIN-695 035. BY ADVS.CHITHRA CHANDRASEKHARAN P.K.RESHMA (KALARICKAL)SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C). No.42134 of 2022

: 2 :

VIJU ABRAHAM, J.

- - - - Dated this the 2^nd day of March, 2023

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JUDGMENT

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The challenge in the writ petition is against Exts.P6 and P10 orders issued by the 4^th respondent Ombudsman and the consequential Ext.P11 order issued by the respondent Panchayat. In Ext.P6 order, the Ombudsman directed the respondent Panchayat to fix the boundary with the help of the Taluk Surveyor. Consequently, by Ext.P10 order, a positive direction has been issued to the Secretary of the respondent Panchayat to remove the unauthorised construction and to report the same to the 4^th respondent Ombudsman.

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The petitioners submit that the Ombudsman has exceeded his jurisdiction in issuing Exts.P6 and P10 orders and they rely on the Judgment in Mohammed Althaf v. Valavannur Grama Panchayat and Others [2022 (6) KHC 662] in support of their contentions. The allegation raised against the petitioners is that they have trespassed in the thodu puramboke land and made construction. The petitioners submit that in such matters the Ombudsman has no authority to issue a positive direction to the Panchayat to remove the encroachment reported. At the most, the

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W.P.(C). No.42134 of 2022 : 3 :

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Ombudsman ought to have relegated the matter to the Panchayat to take appropriate action in accordance with law.

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The learned Standing Counsel for the respondent Panchayat submitted that a survey was conducted and it was found that the petitioners have encroached upon the thodu puramboke land and based on that, Ext.P11 notice has been issued to the petitioners, to which Ext.P12 reply has been submitted by them. It is also submitted that a final decision in this matter will be taken, after affording an opportunity of being heard to the petitioners as well as respondents 2 and 3.

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4.Regarding the competency of the Ombudsman to issue orders in the nature of Exts. P6 and P10, it is the settled law that the Ombudsman has no right to interfere in such matters and therefore, the positive directions in Exts.P6 and P10 are accordingly quashed. It is made clear that, setting aside of Exts.P6 and P10 will not stand in the way of the respondent Panchayat to take appropriate action in accordance with law.

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The writ petition is disposed of accordingly.

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Sd/-

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VIJU ABRAHAM JUDGE

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sm/

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W.P.(C). No.42134 of 2022

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: 4 :

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APPENDIX OF WP(C) 42134/2022

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PETITIONERS' EXHIBITS

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Exhibit P1	TRUE COPY ERUMELI S.	OF R.O	THE .	SALE DEED NO. 602/2002 OF
Exhibit P2	TRUE COPY FILED BY T BEFORE THE	OF HE 4T	THE 2ND H RE	COMPLAINT NO. 669/2018 AND 3RD RESPONDENTS SPONDENT.
Exhibit P3	TRUE COPY SUBMITTED PANCHAYAT.	OF BY	THE THE	PETITION DATED 12-6-2018 2ND RESPONDENT BEFORE THE
Exhibit P4	TRUE COPY ISSUED BY	OF THE	THE 1ST	NOTICE DATED 30-7-2019 RESPONDENT.
Exhibit P5	TRUE COPY SUBMITTED 1ST RESPON	OF BY DEN	THE THE T.	REPLY DATED 2-8-2019 PETITIONERS BEFORE THE
Exhibit P6	TRUE COPY ISSUED BY	OF THE	THE 4TH	ORDER DATED 10-6-2022 RESPONDENT.
Exhibit P7	TRUE COPY ISSUED BY	OF THE	THE 1ST	NOTICE DATED 25-7-2022 RESPONDENT.
Exhibit P8	TRUE COPY SUBMITTED 1ST RESPON	OF BY DEN	THE THE T.	REPLY DATED 11-8-2022 PETITIONERS BEFORE THE
Exhibit P9	TRUE COPY 315/2022 O COURT, KAN	OF N T JIR	THE HE F APAL	PLAINT IN O.S. NO. ILES OF THE MUNSIFF'S LY.
Exhibit P10	TRUE COPY ISSUED BY	OF THE	THE 4TH	ORDER DATED 21-11-2022 RESPONDENT.
Exhibit P11	TRUE COPY ISSUED BY	OF THE	THE 1ST	NOTICE DATED 29-11-2022 RESPONDENT.
Exhibit P12	TRUE COPY SUBMITTED RESPONDENT	OF BY .	THE THE	REPLY DATED 6-12-2022 PETITIONER BEFORE THE 1ST
Exhibit P13	TRUE COPY (5) KHC 55	OF 2.	THE	DECISION REPORTED IN 2020
Exhibit P14	TRUE COPY JYOTHI VS.	OF RA	THE TNAK	DECISION REPORTED AS ARAN 2019 (1) KHC 459.

Aji v. the Secretary

Case brief

What is this about?

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Aji v. the Secretary

Case brief

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