IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 23RD JUNE 2008 / 2ND ASHADHA 1930 WP(C).No. 28932 of 2007(T) -------------------------- PETITIONER: -------------- PURATHUR GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, PURATHUR,TIRUR TALUK MALAPPURAM DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI (SR.) RESPONDENTS: ----------------- 1. OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS,THIRUVANANTHAPURAM. 2. K.K.SASIDHARAN, KADALIKKATTIL HOUSE, PO, PURATHUR, TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.MUJEEB FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2008, ALONG WITH WPC NO. 36810 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ==================== W.P.(C) NO. 28932 OF 2007 (T) AND W.P.(C) NO. 36810 OF 2007 (F) ==================== Dated this the 23rd day of June, 2008 J U D G M E N T The Purathur Grama Panchayat challenges Ext.P5 order of the Ombudsman in WP(C) No.28932/07. Petitioner in W.P.(C)No. 36810/07, Sri. Sasidharan, constructed a commercial building and according to him construction of this building was completed long prior to 1994, when the Kerala Panchayat Raj Act came into force. 2. Noticing some irregularities, Panchayat issued Ext.P1 notice in 2000 directing the petitioner to remove the alleged unauthorised construction. Petitioner replied by Ext.P2 mainly contending that the construction was done during 1990-92 and that for non plastering of three rooms, except those three rooms, the other two rooms were numbered by the Panchayat also. According the Act is inapplicable and hence Section 220(b) is also inapplicable. Nothing further was done in pursuance to Ext.P1. 3. Again Panchayat issued Ext.P3 notice on 22/2/2006. In Ext.P3, the construction was again described as unauthorised and the WPC Nos.28932 & 36810/07 :2 : petitioner was called upon to remove the same. 4. At that stage, the petitioner approached the Ombudsman by filing Ext.P4 complaint. In Ext.P4, petitioner contended that though he had applied for numbering the building, at the instance of some interested parties, the Panchayat has not accepted his request. To prove his contention that the building was constructed prior to 1994, Ombudsman directed the Panchayat to produce the application allegedly made by the petitioner for numbering the building. According to the Panchayat such an application was not received, but however, on the inference that application was declined to be produced by the Panchayat, Ombudsman passed Ext.P5 order directing the Panchayat to number the three shop rooms fo the petitioner immediately. It is challenging Ext.P5, WP(C) No.28932/07 has been filed by the Panchayat and this court granted stay of the order of the Ombudsman. 5. W.P.(C)No.36810 of 2007 has been filed by the petitioner apprehending that taking advantage of the stay of Ext.P5, the Panchayat might demolish the building. In that writ petition Panchayat conceded that there can be an interim order restraining it from initiating any steps against the construction until the W.P.(C) No.28932 of 2007 is decided one way or the other. WPC Nos.28932 & 36810/07 :3 : 6. When the matter came up for hearing, I heard the counsel for the Panchayat and also the builder, who has filed WP(C) No.36810/07. 7. A reading of the Ombudsman's order shows that it was guided mainly by the non production of the application allegedly made by the petitioner for numbering the building. On this basis, Ombudsman found that the case of the Panchayat was contradictory and it proceeded to direct numbering of the building. However, there is absolutely no material produced either before the Ombudsman or before this court to suggest that the builder had in fact made such an application or that such an application was received by the Panchayat. 8. Petitioner contends that since the construction of the building in question was completed prior to 1994, and as a result of which Section 220(b) of the 1994 Act is inapplicable. This is a factual issue which has to be proved by the petitioner by producing material to show that the construction was in fact completed as contended by him. On such material, it is for the Ombudsman to arrive at a factual finding of this issue so that the petitioner will be able to save the building. 9. Though counsel for the Panchayat raised a plea that Ext.P4 complaint was time barred by virtue of Section 271(m)(d) of the Kerala Panchayat Raj Act 1994, this was not a contention raised before the WPC Nos.28932 & 36810/07 :4 : Ombudsman while considering Ext.P4 and therefore, this belated plea now raised for the first time is only to be stated and rejected. 10. However, I am satisfied that the conclusion based on which Ext.P5 has been rendered is erroneous. Therefore, I quash Ext.P5 and I direct that the matter shall be reconsidered by the Ombudsman with notice to the parties. It will be open to the petitioner to produce materials to show that the building in question was completed before 1994 and hence 220(b) on the basis of which notices were issued are inapplicable. On receipt of such evidence, the Ombudsman will reconsider the matter and pass revised orders. 11. It is directed that until orders are passed as above, no further proceedings shall be initiated against the building in question. Writ petitions are disposed of as above. ANTONY DOMINIC, JUDGE Rp