Kerala High Court
S.A.Aneesh Aged 48 Years vs The Ombudsman For Local Self Government ... on 14 February, 2014
Author: K.M. Joseph
Bench: K.M.Joseph, A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.M.JOSEPH
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
MONDAY, THE 3RD DAY OF MARCH 2014/12TH PHALGUNA, 1935
WA.No. 345 of 2014 () IN WP(C).17002/2012
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AGAINST THE JUDGMENT IN WP(C) 17002/2012 of HIGH COURT OF KERALA DATED 14-02-2014
APPELLANT/PETITIONER IN W.P[C] NO.17002 OF 2012:
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S.A.ANEESH AGED 48 YEARS
S/O.ANIRUDHAN, SREEVILASOM, MAYYANADU
KOOTTIKKADA.P.O., KOLLAM DISTRICT.
BY ADVS.SRI.K.ABDUL JAWAD
SRI.MATHEW A KUZHALANADAN
SMT.VINEETHA V.KUMAR
RESPONDENT(S)/RESPONDENTS IN W.P[C]NO.17002 OF 2012:
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1. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM
PIN-695 001.
2. THE MAYYANAD GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, MAYYANAD.P.O.
KOLLAM DISTRICT. PIN-691 001.
3. AJITH KUMAR
KRISHNAVILASOM, VALATHUNGAL, ERAVIPURAM
KOOTTIKKADA.P.O., KOLLAM DISTRICT. PIN-691 001.
R3 BYADV.SRI.K.SUBASH CHANDRA BOSE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03-03-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sou.
(C.R)
K. M. JOSEPH & A.K. JAYASANKARAN NAMBIAR, JJ
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W.A. No. 345 OF 2014
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Dated this the 3rd day of March, 2014
J U D G M E N T
K.M. Joseph, J The appellant is the petitioner in the writ petition. The writ petition was filed by him on the following brief allegations :
The petitioner and his wife own 12 cents of land and a house. The third respondent is the neighbour. There was a public pathway of 3 metre width in front of the petitioner's house leading to the public road. A portion of the said pathway lie on the side of the 3rd respondent's property was clandestinely annexed to his land and got a decree from civil court fixing boundary accordingly.
The said decree was executed by putting up wall as evident in Exhibit-P1 report of Ameen and P2 photographs. Later, constructions started by the third respondent was stopped by Panchayat being violative of Building Rules. When he tried to annex the presently available 1 metre pathway also to his land, the petitioner filed O.S. No.811/2010 before Munsiff Court, Kollam, produced as Exhibit-P3. Order of injunction is passed. The 3rd respondent filed Written Statement and raised a counter claim to W.A.345/14 2 have a survey of land and refix boundary. The said suit is pending consideration. Meanwhile, he approached the 1st respondent Ombudsman under the guise of the stop memo, who issued Exhibit-P9 order directing Thahsildar to cause a survey and thus the measure of 3rd respondent's land. Though the petitioner filed objection, the same was not considered nor was be heard. The petitioner then filed WP(c)1176/2012 before this Court, who by Ext.P10 judgment set aside Ext.P9 order and directed the Ombudsman to reconsider the matter. Ignoring the contentions in Ext.P11 argument notes, the learned Ombudsman, again passed a similar order to conduct survey and measurement of the land ignoring the pendency of civil suit in the same issue and the specific bar by section 47 of the Civil Procedure Code. The said order in Ext-P12 is challenged.
2. Learned single Judge did not find it fit to interfere with the order impugned, in exercise of the powers conferred under Article 226 of the Constitution of India, and dismissed the writ petition. Hence the appeal.
3. We heard learned counsel for the appellant Sri. K. Abdul Jawad and the learned counsel for the third respondent Sri. K. Subashchandra Bose.
W.A.345/14 3
4. Learned counsel for the appellant addressed the following submissions before us:
This is a case where there is no jurisdiction for the Ombudsman to have passed Ext.P12. He expatiates by pointing out section 271 M(4)(b) of the Kerala Panchayat Raj Act,1994 (for short 'The Act'). It reads thus:
"271M. Investigation.-(1) xxxxxxxxxxxxxxxxxx (4) The Ombudsman shall not enquire into matters relating to,-
(a) xxxxx
(b) any matter in respect of which a remedy is available from the Tribunal for Local Self Government Institutions constituted under Section 271S;"
He would submit that in this case, the third respondent was faced with proceedings under section 235 W of the Act. Section 276 (4) provides for remedy of appeal against such proceedings. It reads as follows :
"276. Appeal and Revision.-(1) xxxxxxxxxxx (4) An appeal on the notice, order or action of the Secretary under Sections 235I, 235 J, 235 N, 235 W and 235 X shall be filed before the Tribunal Constituted for Local Self Government Institutions under Section 271 S, and it may on an application by an order, stay the operation of the said notice, order or action taken pending disposal of the appeal"W.A.345/14 4
5. He would submit that therefore, the complaint itself should not have been entertained by Ombudsman. He would draw our attention to section 271 J of the Act. Section 271 J speaks about the functions to be performed by the Ombudsman. It also provides the manner in which order is to be passed. In particular, he would draw our attention to sections 271 J (iii) (a), (b), (c), (d). He further drew our attention to section 271(Q), which provides the manner for disposal of complaints. He therefore, contends that what the Ombudsman has done is in excess of power granted to him under the Act. He would further contend that the Ombudsman should not have interfered in the matter having regard to section 271 N (c). It reads as follows :
"271 N. Enquiry.-(1) After an investigation if the Ombudsman is satisfied that,-
xxxxxxxxxxxxxxx
(c) other remedies are available to the complainant and it would be more beneficial for the complainant to avail of such remedies in view of the circumstances of the case, it may dispose of the complaint as rejected after recording its findings stating the reason therefor, and communicate the same to the complainant"
6. He would point out that all what happened in this case is the Secretary of the local body was satisfied that there is violation and invoking section 237 W notice was issued accompanied by the W.A.345/14 5 provisional order calling upon the third respondent to show cause. The third respondent could very well have showed cause before the Secretary and ultimately if the Secretary did not accept the explanation, then alone it could be said that the third respondent would be aggrieved. In other words, there was an alternate remedy available to the third respondent which should have been taken note on the facts of this case, by the Ombudsman and he should have relegated the third respondent to that remedy before the Secretary.
7. He would next contend that this is a case where the appellant would be prejudiced by the order of the Ombudsman in so far as after the decree of fixation of boundary, the parties agreed that there would be a pathway. The third respondent constructed a wall accordingly. The appellant has laid a suit when there was declaration made by the third respondent that he intends to make construction in the property, which was used as a pathway.
8. Per contra learned counsel for the third respondent would submit that Ombudsman was justified in interfering in the matter. He would submit that this was further reinforced by the Deputy Director's report. He would submit that there is no basis for the W.A.345/14 6 Secretary to have issued notice accompanied by the order. According to him, objections were filed by the third respondent but no orders were passed and the matter was kept pending. He would submit that there are sufficient allegations in the complaint filed before the Ombudsman which would bring the matter within his jurisdiction.
9. Whether there is ouster of the jurisdiction of the Ombudsman in view of section 271M(4)(b)?
10. The answer to this question would depend upon whether in respect of the proceedings which were impugned before the Ombudsman, there was remedy available to the third respondent before the Tribunal for Local Self Government Institutions as contemplated under section 271M (4)(b). Section 271S provides for constitution of Tribunal for Local Self Government Institutions. Sub section 1 of section 271S provides that Government shall constitute Tribunal for every district or more than one district to consider and dispose of appeal or revision filed against the decisions of the Local Self Government Institutions under section 276 of the Act and 509 of the Municipalities Act.
11. Under Section 276(4) of the act, no doubt, an appeal lies against any notice, order or action of the Secretary under sections W.A.345/14 7 235 I, 235 J, 235 N, 235 W, and 235 X. According to learned counsel for the appellant, even if it be a notice the appeal lies to the Tribunal. For the purpose of attracting the wrath enunciated in section 271M(4)(b) all what is relevant is, whether is there is a remedy open before the Tribunal under section 271S. He would point out that in view of section 276(4) be it a notice or order or action falling under the provisions referred to in 276(4) an appeal is indeed maintainable. In this case, action was taken under section 235W. Section 235W being relevant we extract the same.
"235W. Demolition or alteration of building works unlawfully commenced, carrying on or completed.- (1) Where the Secretary is satisfied that-
(i) the construction, or reconstruction or alteration of any building-
(a) has been commenced without obtaining the permission of the Secretary or in contravention of the decision of the Village Panchayat; or
(b) is being carried on, of has been completed otherwise than in accordance with the plans, specifications or information on which such permission or decision was based; or
(c) is being carried on, or has been completed in contravention of any of the provisions of this Act or any rule or bye-law or order made or issued thereunder or any direction or requisition lawfully given or made under this Act, such rule, bye-law or order; or
(ii) any alteration required by notice issued W.A.345/14 8 under Section 235 N has not been duly made; or
(iii) any alteration of or addition to any building or any other work made or done for any purpose in or upon any building has been commenced or is being carried on or has been completed in contravention of the provisions of Section 235-V, he may make a provisional order requiring the owner or the person for whom the work is done, to demolish the work done, or any part of it as, in the opinion of the Secretary, has been unlawfully executed or to make such alteration as may be necessary to bring the work in conformity with the provision of this Act, bye-laws, rules, direction, order or requisition as aforesaid or with the plans and specifications on which such permission or decision was based, and may also direct that until the said order is complied with, the owner or such person shall refrain from proceeding with the work:
Provided that the Secretary may, on realisation of a compounding fee as my be fixed by Government, regularise any construction, re-
construction, or alteration of the building, commenced, carried on or completed without getting a plan approved by the Secretary or in deviation of the plan approved by him, if such construction or alteration of the building does not contravene any of the criteria or specifications mentioned in the Act or the rules made thereunder.
(2) The Secretary shall serve a copy of the provisional order made under sub-section (1) on the owner or the person for whom such work is done together with a notice requiring him to show cause within a reasonable time, to be specified in such notice, why the order should not be confirmed.
(3) Where the owner or the person for whom W.A.345/14 9 the work is done fails to show cause to the satisfaction of the Secretary, the Secretary may confirm the order or modify the order to such an extent as he may think fit to make and such order shall then be binding on the owner or the person for whom the work is done and on the failure to comply with the order, the Secretary may himself cause the building or part thereof, demolished, as the case may be, and expenses thereof shall be recoverable from the owner or such person.
(4) Notwithstanding anything contained in sub-section (2) or sub-section (3), prosecution proceedings may be initiated against the owner or the person for whom the work is done.
(5) Where the Government is satisfied that the construction, re-construction or alteration of any building has been carried out in violation of any of the provisions of this Act or any rule made thereunder or any direction lawfully given by the Government or Secretary, the Government may direct the Secretary of the Village Panchayat to cause the demolition of such construction, re- construction or alteration and if such direction is not complied within the time limit specified in such direction, the Government may arrange its demolition and the cost there of shall be recovered from the Village Panchayat."
12. According to learned counsel for the third respondent, action which is impugned before the Ombudsman as per section 235W(1), is only a provisional order. The notice was issued along with the provisional order and calling upon the third respondent to submit explanation why the provisional order is not to be finalised. To the same, the third respondent submitted explanation. However W.A.345/14 10 matter was kept pending. He would pose the question as to what purpose would be served if he was to challenge the very notice accompanied by the provisional order before the Tribunal and what the Act contemplated is an opportunity being given to the alleged violator to give his explanation and consideration of the same by the Secretary.
13. Though at first blush the argument of learned counsel for the appellant may sound attractive, on a deeper scrutiny, we would think that the contentions cannot be accepted. Section 276(4) no doubt provides for appeal against notices, orders or action. It refers to five provisions namely sections 235 I, 235 J, 235 L, 235 W, 235 X.
14. We would think that the proper principle to be applied to the facts of this case would be the principle of Reddendo Singula Singulis. We would think that the following statement contained in the work - Principles of Statutory Interpretation by G.P. Singh would be very enlightening and we refer to the same.
(e) Reddendo Singula Singulis The rule may be stated from an Irish case in the following words: "Where there are general words of description, following an enumeration of particular things such general words are to be construed distributively, reddendo singula singulis; and if the general words will apply to some things W.A.345/14 11 and not to others, the general words are to be applied to those things to which they will, and not to those to which they will not apply; that rule is beyond all controversy". Thus, 'I devise and 'bequeath' all my real and personal property to A' will be construed, reddendo singula singulis by applying 'devise' to 'real' property and 'bequeath' to 'personal' property and in the sentence: 'If any one shall draw or load ant sword or gun' the word 'draw' is applied to 'sword' only and the word 'load' to gun only, because it is impossible to load a sword or draw a gun.
An example of the application of the rule is furnished in the construction of section 59(1) of the Local Government Act, 1933, which reads : 'A person shall be disqualified for being elected or being a member of a local authority if he has within five years before the day of election or since his election been convicted of any offences and ordered to be imprisoned for a period of not less than three months without the option of fine'. CLAUSON, J. construing the section said: "The section provides for two matters: first what is to be disqualification for election? And, secondly what is to be disqualification for being a member after election ? And it provides for two disqualifications:
first, conviction within five years before the day of election; and secondly,conviction since election. It is obvious that the second disqualification mentioned does not fit the first case mentioned, namely that of election, but does fit the second case, and the second case only. It is also obvious that the first disqualification mentioned fits the first case, and it does not seem at all apt to fit the second case". And, after referring to certain strange results, if the first disqualification, were applied to the second case, he proceeded on to say: "All difficulty can be avoided by applying the well-known method of construction commonly known as reddendo singula singulis; and applying the first disqualification mentioned to first case W.A.345/14 12 dealt with, and the second disqualification to the second case dealt with-". It was, therefore, held that a conviction prior to election although a disqualification for the election was not a disqualification for continuing to be a member and if the election was not challenged by election petition within the time limited therefor, the member did not vacate his seat.
Another example of the application of the rule is found in the construction of the Proviso to Article 304 of the Constitution which reads:
'Provided that no Bill or amendment for the purpose of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President'. It was held by the Supreme Court that the word 'introduced' referred to 'Bill' and the word 'moved' to Amendment'.
15. Section 235 N reads as follows :
"235N. Power of Secretary to required alteration in work.- (1) Where it comes to the notice of the Secretary that a work,-
(a) is not in accordance with the plans or specifications approved, or
(b) is in contravention of any of the provisions of this Act or any rule, bye-law, order of declaration made thereunder, he may by notice, require the person for whom such work is done,-
(i) to make such alteration as may be specified in the said notice to bring the work in conformity with the plans or specification approved or the provisions so contravened; or
(ii) to show cause why such alteration should not be made, within such period as may be specified in the notice:
Provided that any construction made in W.A.345/14 13 deviation from such approved plan or specifications may not be required to be altered unless it contravenes any specifications or provisions mentioned in this Act or building rules made thereunder.
(2) Where such person does not show cause as aforesaid, he shall be bound to make the alterations specified in such notice.
(3) Where such person shows sufficient cause as aforesaid, the Secretary shall, by order confirm, modify or cancel the notice issued under sub-section (1)"
16. Under section 235 N, a notice is to be given to the person concerned to show cause under section 235 N(1). If he does not show cause, he is bound to make the alterations specified in the notice. Sub section 3 of section 235N provides that when he shows sufficient cause as aforesaid, the secretary is to order confirmation, modification or cancellation of the notice. What is important is that if he does not show cause, the notice becomes final. If he shows cause depending on the facts, the Secretary is to confirm, modify or cancel the notice. The word used is 'notice'. In other words when section 276 (4) refers to notices being appealable, applying the principle Reddendo Singula Singulis, we would think that it must be confined to the case falling under section 235N. When a person is given a notice and an opportunity to show cause and he either does not show cause or cause shown W.A.345/14 14 is not sufficient the notice attains finality and becomes a decision. No doubt, later on for non-compliance of such a notice action can be taken and it can result in a provisional order and again an opportunity is contemplated under section 235 W. But matters finalised under section 235N cannot be reopened and it can only possibly relate to reasons shown for not complying with the final notice. In other words, notice which is confirmed or modified under sub section (3) of section 235N or notice which is sent under subsection 1 of section 235N which a noticee under sub section 2 of section 235N is bound to comply with are the notices which can be appealed under section 276(4). In regard to the decision under section 235W in our considered view, it falls into two parts. There is provisional order which is accompanied by a notice. At that stage the matter is not final. The Secretary is to consider any objections the party may raise and it is after considering the matter, and when an order is passed, it becomes a final order. It is such an order, which is appealable. This interpretation which we have placed on the provisions has the support of the principle of Reddendo Singula Singulis. It also has the salutary effect of obviating unnecessary appeals.
17. As far as the contention of learned counsel for the W.A.345/14 15 appellant that it is a case where there is no power for the Ombudsman to entertain the matter, we notice that there are allegations made referring to statutory ingredients, which confer jurisdiction on the Ombudsman We need not think in the writ appeal, when the writ petition has been decided against the appellant, in exercise of discretionary jurisdiction we should probe the said matter further.
18. Equally without merit is the contention of the learned counsel for the appellant that Ombudsman should not have proceeded to consider the matter having regard to section 271(1)
(c). No doubt, section 271(1)(c) provides that after the investigation though the Ombudsman is satisfied that there are other remedies open to the complainant and it would be more beneficial to avail such remedy, the complaint can be rejected. We would think that this is a matter which involves the exercise of discretionary power. The appellant cannot be permitted to contend that invariably on account of the fact that there is a remedy open to the third respondent to have gone before the Secretary, a decision should be taken by the Ombudsman to so relelgate. We must in this context, notice that this is a case where report of the Deputy Director was obtained. According to learned counsel for W.A.345/14 16 the third respondent, the property was measured and found that there is no basis for issuance of a provisional order in the first place. Still further the matter was complicated by the pendency of the civil suit by the appellant.
19. We would think that in such circumstances, the Ombudsman thought to give a quietus to the matter. The matter is be decided with reference to the decree between the parties. It may not be appropriate for us in a writ appeal to interfere with the exercise of discretionary jurisdiction in not relegating the complainant to avail the remedy of showing cause before the Secretary who incidentally had kept the matter pending without taking any decision apparently noticing pendency of the civil suit. The pendency of the suit could not have resulted in the statutory authority putting off taking a decision on the objection submitted by the third respondent pursuant to the notice and the provisional order. Under section 235 W a decision had to be taken.
20. We also did not find merit in the contention of learned counsel for the appellant that the order passed by the Ombudsman was unauthorised, having regard to the section 271 J read with section 271Q. We notice that the powers of Lok Ayuktha includes the power of to dispose of the complaint under section 271 Q by W.A.345/14 17 ordering supply of omission or rectification of defects due to inaction. It further includes ordering other necessary remedial measures considering the facts and circumstances of the case. While it is true that expressly there is no mention about there being delay in the complaint filed by the third respondent, it would appear that there was delay in the matter of taking a decision by the secretary in the objection. Therefore, in the facts and circumstances of this case, we would think that the said contention also need not be considered by us further.
21. No doubt, the principle bone of contention of the parties would appear to be effect of direction on the pending suit. According to learned counsel for the appellant, after the suit was decreed, the decree was executed and the wall was constructed in terms of the decree on the western side and therefore there can be no going back on the same.
22. On the other hand, learned counsel for the third respondent would submit that what happened was, after fixing the boundaries pursuant to the decree, there was an oral understanding by the appellant and the third respondent to put up a wall by leaving aside one metre width way for easy access to the public road, to the appellant. But the appellant broke the promise W.A.345/14 18 to pay the amount.
23. Learned counsel for the appellant also would point out explanation 7 to section 11 of the Civil Procedure Code.
24. We would think that on the facts of this case, at this distance of time we need not interfere with the direction as given by the learned Ombudsman. We would only think that we need to observe that the implementation of the said order will not take away the right of the appellant to urge explanation 7 to section 11 CPC before the civil court as indeed to take up all the contentions available to him in law. Without prejudice to the right of the appellant, to raise all the contentions including explanation 7 to section 11 of CPC., the appeal is closed.
Sd/-
K. M. JOSEPH, JUDGE Sd/-
A.K. JAYASANKARAN NAMBIAR, JUDGE.
// True copy // Sou.