Kerala High Court
K.Udayakumar vs Ombudsman For Local Self Government on 24 March, 2017
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
FRIDAY, THE 24TH DAY OF MARCH 2017/3RD CHAITHRA, 1939
WP(C).NO. 2549 OF 2010 (P)
---------------------------
PETITIONER(S):
-------------
K.UDAYAKUMAR,
T.C.36/542-1,APRA 122, ELANJIPPURAM LANE,, VALLAKKADAAN PO,
THIRUVANANTHAPURAM-8.
BY ADV. SRI.K.I.MAYANKUTTY MATHER
RESPONDENT(S):
--------------
1. OMBUDSMAN FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, BARTON HILL BUNGLOW, KUNNUKUZHI,
VANCHIYOOR PO, THIRUVANANTHAPURAM35.
2. SECRETARY, OFFICE, OF THE CORPORATION
OF THIRUVANANTHAPURAM.
3. CORPORATION OF THIRUVANANTHAPURAM
REPRESENTED BY ITS SECRETARY,, THIRUVANANTHAPURAM.
4. UDAYAKIRAN RESIDENTS ASSOCIATION,
REPRESENTED BY ITS SECRETARY,, A.P.T.PILLAI, KRISHNAN KOVIL
ROAD, KAITHAMUKKU, THIRUVANANTHAPURAM.
5. N.R.MAHADEVAN,
T.C.NO.28/535-3,UDAYAKIRAN APARTMENTS, KRISHNAN KOVIL
ROAD, PETTA, THIRUVANANTHAPURAM.
6. MANILAL,
T.C.NO.28/535-4,, UDAYAKIRAN APARTMENTS,, KRISHNAN KOVIL
ROAD, PETTA, THIRUVANANTHAPURAM.
7. HARIKUMAR,
T.C.NO.28/535-5,UDAYAKIRAN APARTMENTS,, KRISHNAN KOIVL
ROAD, PETTA PO, THIRUVANANTHAPURAM.
8. C.S.KUMARI CHANDRALEKHA,
T.C.NO.28/535-6,,UDAYAKIRAN APARTMENTS,, KRISHNAN KOIVL
ROAD, PETTA PO,, THIRUVANANTHAPURAM.
9. SURESHKUMAR.S.K,
T.C.NO.28/535-7, UDAYAKIRAN APARTMENTS,, KRISHNAN KOIVL
ROAD, PETTA PO, THIRUVANANTHAPURAM.
W.P.(C).NO.2549 OF 2010
10. JAWAHAR,
T.C.NO.28/535-8,,UDAYAKIRAN APARTMENTS,, KRISHNAN KOIVL
ROAD, PETTA PO,, THIRUVANANTHAPURAM.
11. JAGATHEESH PRASAD,
T.C.NO.28/535-9,,UDAYAKIRAN APARTMENTS,, KRISHNAN KOIVL
ROAD, PETTA PO,, THIRUVANANTHAPURAM.
12. ARUNKUMAR,
T.C. T.C.NO.28/535-11,UDAYAKIRAN APARTMENTS,, KRISHNAN
KOIVL ROAD, PETTA PO,, THIRUVANANTHAPURAM.
R4,R5,R7-R11 BY ADV. SRI.M.AJAY (IRUMPANAM)
R4,R5,R7-R11 BY ADV. SMT.M.C.SHIJIMOL
R2 & R3 BY ADV. SRI.N.NANDAKUMARA MENON (SR.)
R2 & R3 BY ADV. SRI.P.K.MANOJKUMAR
R4,R5,R7-R11 BY ADV. SRI.M.S.KALESH
R4,R5,7-R11 BY ADV. SRI.R.S.KALKURA
R4,5,R7-R11 BY ADV. SMT.KVP.JAYALEKSHMY
R4,5,R7-R11 BY ADV. SRI.HARISH GOPINATH
R4,5,R7-R11 BY ADV. SRI.V.VINAY MENON
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
24-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).NO. 2549 OF 2010
APPENDIX
PETITINERS EXHIBITS:-
EXHIBIT P1:COPY OF THE DOCUMENT NO.130/1998, SRO, THIRUVANANTHAPURAM.
EXHIBIT P1(A):COPY OF THE DOCUMENT NO.2088/1998, SRO,THIRUVANANTHAPURAM.
EXHIBIT P2:COPY OF THE BUILDING PERMIT OBTAINED BY THE PETITIONER.
EXHIBIT P2(A):COPY OF THE REVISED BUILDING PERMIT OBTAINED BY THE
PETITIONER.
EXHIBIT P2(B):COPY OF THE APPROVED LAN OBTAINED BY THE PETITIONER.
EXHIBIT P3:COPY OF THE PROPERTY TAX ASSESSMENT ORDER GIVEN IN THE NAME
OF THE PETITIONER.
EXHIBIT P3(A):COPY OF THE PROPERTY TAX ASSESSMENT ORDER GIVEN IN THE
NAME OF THE PETITIONER.
EXHIBIT P3(B):COPY OF THE PROPERTY TAX ASSESSMENT ORDER GIVEN IN THE
NAME OF THE PETITIONER.
EXHIBIT P3(C):COPY OF THE PROPERTY TAX ASSESSMENT ORDER GIVEN IN THE
NAME OF THE PETITIONER.
EXHIBIT P3(D):COPY OF THE PROPERTY TAX ASSESSMENT ORDER GIVEN IN THE
NAME OF THE PETITIONER.
EXHIBIT P3(E):COPY OF THE PROPERTY TAX ASSESSMENT ORDER GIVEN IN THE
NAME OF THE PETITIONER.
EXHIBIT P3(F):COPY OF THE PROPERTY TAX ASSESSMENT ORDER GIVEN IN THE
NAME OF THE PETITIONER.
EXHIBIT P3(G):COPY OF THE PROPERTY TAX ASSESSMENT ORDER GIVEN IN THE
NAME OF THE PETITIONER.
EXHIBIT P3(H):COPY OF THE PROPERTY TAX ASSESSMENT ORDER GIVEN IN THE
NAME OF THE PETITIONER.
EXHIBIT P3(I):COPY OF THE PROPERTY TAX ASSESSMENT ORDER GIVEN IN THE
NAME OF THE PETITIONER.
EXHIBIT P3(J):COPY OF THE PROPERTY TAX ASSESSMENT ORDER GIVEN IN THE
NAME OF THE PETITIONER.
EXHIBIT P4:COPY OF THE RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX BY
THE PETITIONER.
EXHIBIT P4(A):COPY OF THE RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX
BY THE PETITIONER.
EXHIBIT P(B):COPY OF THE RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX BY
THE PETITIONER.
W.P.(C).NO.2549 OF 2010
EXHIBIT P4(C):COPY OF THE RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX
BY THE PETITIONER.
EXHIBIT P4(D):COPY OF THE RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX
BY THE PETITIONER.
EXHIBIT P4(E):COPY OF THE RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX
BY THE PETITIONER.
EXHIBIT P4(F):COPY OF THE RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX
BY THE PETITIONER.
EXHIBIT P4(G):COPY OF THE RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX
BY THE PETITIONER.
EXHIBIT P(H):COPY OF THE RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX BY
THE PETITIONER.
EXHIBIT P4(I):COPY OF THE RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX
BY THE PETITIONER.
EXHIBIT P4(J):COPY OF THE RECEIPT EVIDENCING PAYMENT OF PROPERTY TAX
BY THE PETITIONER.
EXHIBIT P5:COPY OF THE SALE DEED EXECUTED BY THE PETITIONER AND HIS
WIFE IN FAVOUR OF MR.JAWAHAR.
EXHIBIT P6:COPY OF DOCUMENT NO.4260/2005.
EXHIBIT P7:COPY OF DOCUMENT NO.5267/2004.
EXHIBIT P8:COPY OF THE BUILDING PERMIT ISSUED BY THE CORPORATION OF
THIRUVANANTHAPURAM.
EXHIBIT P9:COPY OF THE ASSIGNMENT DEED.
EXHIBIT P10:COPY OF AN EYE SKETCH SHOWING THE LIE OF 14 CENTS AS WELL
AS THE 2 = CENTS OF LAND.
EXHIBIT P11:COPY OF THE COMPLETION PLAN SUBMITTED BY THE PETITIONER TO
THE 2ND RESPONDENT.
EXHIBIT P11(A):COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT.
EXHIBIT P12:COPY OF THE COMPLAINT FILED BY THE 4TH RESPONDENT BEFORE
THE 2ND RESPONDENT.
EXHIBIT P12(A):COPY OF THE COVERING LETTER ADDRESSED TO THE 1ST
RESPONDENT FORWARDING EXT.P12.
EXHIBIT P13:COPY OF THE OBJECTION FILED BY THE PETITIONER.
EXHIBIT P14:COPY OF THE INTERLOCUTORY PROCEEDINGS OF THE 1ST RESPONDENT.
EXHIBIT P15:COPY OF THE REORT SUBMITTED BY THE 2ND RESPONDENT BEFORE
THE 1ST RESPONDENT.
W.P.(C).NO.2549 OF 2010
EXHIBIT P16:COPY OF THE REPORT SUBMITTED BY THE REGIONAL JOINT DIRECTOR
OF URBAN AFFAIRS BEFORE THE 1ST RESPONDENT.
EXHIBIT P17:COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE
1ST RESPONDENT TO EXT.P16 REPORT.
EXHIBIT P18:COPY OF THE OBJECTION FILED BY THE 4TH RESPONDENT BEFORE
THE 1ST RESPONDENT TO EXT.P16 REPORT.
EXHIBIT P19:COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT.
RESPONDENTS EXHIBITS: NIL
/TRUE COPY/
P.A. TO JUDGE
SKV
DEVAN RAMACHANDRAN, J
===================
W.P.(C). No.2549 of 2010
=======================
Dated this the 24th day of March, 2017
JUDGMENT
The petitioner impugns Ext.P19 order of the Ombudsman for Self Government Institutions on various grounds but primarily for the version that it has been issued without jurisdiction and that many of the recommendations contained therein fall beyond the purlieu of the statutory competence vested with it. He has also impugned this order as being issued without proper application of mind and without taking into account the factors inhibiting jurisdiction viz-a-viz the statutory prescriptions which authorise proceedings before the learned Ombudsman.
2. I have heard the learned counsel for the petitioner Shri.K.I.Mayankutty Mather and learned Standing Counsel appearing for Thiruvananthapuram Corporation and learned Government Pleader.
3. I do not propose to go into the details of the allegations or assertions of the petitioner regarding the factual matrix of the disputes involved. I am aware that my jurisdictional limitations would W.P.(C).No.2549of 2010 2 not permit me, while acting under Article 226 of the Constitution of India, to enter into areas which are completely and exclusively within the realm of disputation of facts. I, therefore, propose to examine Ext.P10 solely from the stand point whether it has been issued within the limits of jurisdiction available to the learned Ombudsman for the Local Self Government Institutions.
4. Chapter XXVB of the Kerala Panchayath Raj Act, 1994 provides for the constitution and powers of an Ombudsman for Local Self Government Institutions. Section 271G, though carries a heading, "term of office and condition of service of Ombudsman,"
effectively prescribes and defines the jurisdiction under which the Ombudsman is to operate. It, therefore, is fructiferous to read Section 271 in its full text and I extract it as under:
"Staff of the Ombudsman- (I) The Ombudsman shall have a Secretary and such other officers and employees as the Government may determine in consultation with the Ombudsman to assist the Ombudsman in the exercise of its powers and discharge of its functions under this Act."
5. Ineluctably, Section 271G of the Act provides that an Ombudsman can cause investigation and enquiries in respect of charges on any action involved in corruption and maladministration and that a complaint can be made by any one making such W.P.(C).No.2549of 2010 3 allegations. The word "action" is defined under 271F of the Act which reads under:-
"271F Definition--(1)For the purpose of this Chapter
(a) 'action' means action taken by way of decision, recommendation, resolution or in execution thereof or in exercise of administrative or legal functions in any other manner and includes wilful default in taking action or omission and all other expressions connoting such action shall be construed accordingly;"
The word "complaint" is also defined under 271F(c) which is as under:
"'complaint' means a statement of allegation that a public servant or a Local Self Government Institution is guilty of corruption or maladministration and includes any reference to an allegation in respect of which suo motu enquiry has been proposed or recommendation for enquiry has been made by Government;."
6. On a careful purlustration of all the three provisions extracted above, it becomes irrefragable that the learned Ombudsman would acquire jurisdiction, to consider issues before it for investigation or enquiry, only if the complaint made alleges that there is any action involving corruption or maladministration or irregularities in the discharge of administrative function by local self Government Institutions or attributable to the Public Servants working under them. Without such a complaint and without an allegation of such maladministration or irregularity, it is indubitable that the learned W.P.(C).No.2549of 2010 4 Ombudsman does not obtain jurisdiction or acquire the authority to act under the provisions of 25B of the Act.
7. In the case at hand, respondents 4, 5, 7 to 12 have preferred Ext.P12 complaint before the learned Ombudsman. I have examined Ext.P12 quite in extenso, not so much as to evaluate the merits of the contentions therein but to see whether it exposes or even whispers that any public authority under the Thiruvananthapuram Corporation has acted in any manner involving corruption or maladministration. I am afraid even a very close reading of Ext,P12 this is not disclosed. Further more, Ext.P12 does not even carry allegation of such kind against any public authority or the local self Government Institution. The contents of Exts.P12 are in the nature of allegations and facts against the petitioner herein, that he has obtained a building permit by causing misrepresentation and fraud on the competent authorities of the Thiruvananthapuram Corporation. This one allegation in its broad sense would itself indicate, without much of a doubt, that what is alleged is not that there is any maladministration or corruption at the hands of the public authorities but that the petitioner has employed chicanery in W.P.(C).No.2549of 2010 5 obtaining a building permit.
8. Going by the tenor and terms of Ext.P1, I am firm in my mind that the learned Ombudsman could not have acquired jurisdiction to consider the same. It is indubitable that if what is stated in Ext.P12 is true then there is a cause for action against the petitioner, but the question is which is the Authority who would be competent, under the various statues to enter into adjudication of such.
9. It is not my province to advise the respondents, and neither do I intent to do so, but I am of the view that the contents of Ext.P12 ought to have been placed before the competent Authority of the Corporation, perhaps seeking a cancellation of the permit under which the petitioners had commenced and completed the construction. Had the competent Authorities, after consideration of such complaint, taken a particular view or issued a particular order, it would have then possibly given the hypostasis for the respondents to mount the challenge against such proceedings or orders either under the provisions of Chapter XXVB or under the relevant Building Act and Rules. This having not been done, I cannot condone or W.P.(C).No.2549of 2010 6 countenance the action of the respondents in having approached the learned Ombudsman directly under Ext.P12 representation or complaint without having exhausted the statutory remedy available to them under the provisions of the applicable building Rules or the Kerala municipality Act. I say this specifically because even in Ext.P12, as I have indicated above, there is not even a whisper that the public authorities have committed maladministration or that they have indulged in corruption and in such view, therefore, Ext.P12, in a strict sense, would not be even a complaint for the purposes of the Chapter XXVB of the Kerla Panchayath Raj Act.
10. On a conspectus of all what has been stated above, and on a survey of the pleadings and materials on record, I am certain in my mind that Ext.P15 order has been issued by the learned Ombudsman without jurisdiction. It is obvious that the directions contained in that said order has been issued much beyond the powers vested in it and in such circumstances, I am afraid that I have no other option but to quash the same. I do so .
11. That having been said that it does not mean that respondents are without remedies against the alleged W.P.(C).No.2549of 2010 7 transgressions of the petitioner, as has been detailed in Exts.P12. They certainly can invoke the statutory remedies available to them under the various provisions of the Kerala Municipality Building Rules or the provisions of Municipalities Act, as they would be advised.
12. I, therefore, order this writ petition as above, however, reserving liberty to the respondents 4,5, 7 to 12 to invoke and pursue such remedies as are available to them under the provisions of other relevant and applicable Statutes, Rules or Regulation.
I make it clear that I have not considered Ext.P19 on its merits at all and that, therefore, all the allegations made by respondents 4, 5 7 to 12 are left open and to be agitated by them in appropriate proceedings, as is available to be invoked by them.
This Writ Petition is thus ordered and I direct the parties to suffer their respective costs.
Sd/-
DEVAN RAMACHANDRAN, JUDGE SKV