Dismissed

Erimayur Grama Panchayat, v. the Ombudsman for Local Self Government Institutions

Kerala HC3 Jun 2024WP(C)/16694/2022

Case brief

AI extract

What is this about?

A Panchayat challenged an Ombudsman order directing it to remove concrete it had laid over a private road not in its Asset Register. The court held the right to property is a constitutional and human right, distinguished the cited precedent, upheld the Ombudsman's order, and dismissed the writ petition.

What the court decided

AI extract

Erimayur Grama Panchayat, Vs the Ombudsman for… — Municipal and Town Planning | Kerala HC (2024)

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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 MOHAMMED NIAS C.P.

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MONDAY, THE 3^RD DAY OF JUNE 2024 / 13TH JYAISHTA, 1946

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WP(C) NO. 16694 OF 2022

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PETITIONERS:

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1 ERIMAYUR GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, ERIMAYUR, ERIMAYUR P.O, PALAKKAD DISTRICT. PIN.678546.

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2 THE SECRETARY, ERIMAYUR GRAMA PANCHAYAT, ERIMAYUR, ERIMAYUR P.O, PALAKKAD DISTRICT. PIN.678546.

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BY ADV T.K.AJITHKUMAR (VALATH)

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RESPONDENTS:

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1 THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, SAPHALYAM COMPLEX, PALAYAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, SAPHALYAM COMPLEX, PALAYAM, THIRUVANANTHAPURAM, PIN.695033.

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2 K.UNNIKUMARAN,

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AGED ABOUT 80 YEARS, NO.20, ANNIE BASANT STREET, VIJAYALAKSHMIPURAM, AMBATHOOR, CHENNAI, PIN-600053. TAMIL NADU.

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BY ADVS.

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RAJESH SIVARAMANKUTTY ARUL MURALIDHARAN

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SMT.AMMINIKUTTY K., SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

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03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C)No.16694/2022

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MOHAMMED NIAS C.P., J.

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WP(C) No.16694 of 2022

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Dated this the 3^rd day of June, 2024

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JUDGMENT

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Petitioners challenge Ext.P7 order passed by the Ombudsman for Local Self Government Institutions, Thiruvananthapuram, which directed the Panchayath to restore the concrete road constructed in the property of the second respondent without it being included in its Asset Register or taking any steps to acquire the same. As per Ext.1, some of the locals gave a complaint to the Panchayth stating that the property adjoining a lane is kept idle with loads of waste and that they are put to all difficulties and also sought for laying concrete over the road.

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The Panchyath based on Ext.P1 request laid concrete over the road in question which forced the second respondent to file Ext.P5 complaint before the Ombudsman. Through an order, Ext.P6 dated 10.03.2022, the Ombudsman directed the Panchayat to produce documents showing whether the property in question was included in the Asset Register, and also the relinquishment documents, if any submitted by the second respondent allowing the Panchayath to construct a concrete road. By Ext.P7, the impugned order dated 12.4.2022 the Ombudsman found there was no basis for including the property in the Asset Register and that the allegations of the petitioner, prima facie, shows that the

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WP(C)No.16694/2022

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Panchayath had done so without any authority and directed the Panchayath to remove the concrete and also to restore the property to its original nature to prevent the water logging in the property.

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Learned counsel for the petitioner relying on the Panchayath Raj Act, 1994 (Kerala), in particular, Section 169 argues that seven families were using the road in question, and therefore it must be treated as a public road He also contends that under such circumstances, it must be treated that the road is vested with the Panchayath even it is a private property. He also relies on the judgment of this Court in Mariam Beevi. v. Athirampuzha Grama Panchayath [2015 (2) KLT 768] for the above proposition. It has to be straightaway noticed that in the said case there was a pathway being used by six persons including the petitioner in that case and the pathway was included in the Asset Register and the writ petition came to be filed as the request to remove the property from the Asset Register was not allowed. The said judgment cannot have any application to the facts of the case as there is nothing to show that the Panchayath had any authority to lay concrete over the road in question.

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Section 169 deals with the vesting of roads in the village panchayaths and section 169(4) deals with the manner of the vesting of such roads. The above judgment cannot be understood to state a proposition that the Panchayath will be absolutely free to encroach upon private property and to construct a road under the guise of public use without taking recourse to law or acquisition or without getting a relinquishment from the land owner. I do not find anything in the said

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judgment to help the petitioner in the instant case.

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Admittedly the road in question is not included in the Asset Register, and there were no proceedings for relinquishment or acquisition is also undisputed. Under such circumstances constructing a road using private property affects the rights of the citizens. The right to property though not a fundamental right is still a constitutional right and above all a human right and no person can be deprived of that right without the authority of law.

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I find the order passed by the Ombudsman, Ext.P7, following Ext.P6 order, to be perfectly in order. No grounds are tenable to grant relief to the petitioner. Accordingly, the writ petition is dismissed, and the learned Ombudsman is directed to pass final orders on the application submitted by the second respondent without further delay.

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The writ petition is dismissed.

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Sd/-

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MOHAMMED NIAS C.P.

JUDGE

dlk/3.06.2024

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APPENDIX OF WP(C) 16694/2022

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PETITIONERS EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE SUBMITTED TO THE 2	REPRESENTATION DATED NIL ND PETITIONER
EXHIBIT P2	THE TRUE COPY OF NO.03/2019/AE/LSGD ASSISTANT ENGINEER	THE TENDER NOTIFICATION /EYR ISSUED BY THE (LSGD)
EXHIBIT P3	THE TWO PHOTOGRA NATURE OF THE PUBL	PHS SHOWING THE LIE AND IC ROAD.
EXHIBIT P4	THE PHOTO COPY OF 12-2021 SUBMITTED	THE COMPLAINT DATED 29- BY THE 2ND RESPONDENT
EXHIBIT P5	THE TRUE COPY O DATED NIL SUBMITTE	F THE WRITTEN STATEMENT D BY THE 2ND PETITIONER
EXHIBIT P6	THE TRUE COPY OF ISSUED BY THE 1ST	THE ORDER DATED 10-3-2022 RESPONDENT
EXHIBIT P7	THE TRUE COPY OF ISSUED BY THE 1ST	THE ORDER DATED 12-4-2022 RESPONDENT

Erimayur Grama Panchayat, v. the Ombudsman for Local Self Government Institutions

Case brief

What is this about?

What the court decided

Erimayur Grama Panchayat, v. the Ombudsman for Local Self Government Institutions

Case brief

What is this about?

What the court decided

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