IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 WA.No. 449 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.12984/2007 Dated 17/01/2008 .................... APPELLANT: ----------- MOHAMMED HAFEEL, S/O. S.A.P. HAMEED HAJI, AGED 38 YEARS, CHEELAN HOUSE, VADIKKAL P.O. MADAYI,KANNUR DIST. (REPRESENTED BY THE POWER OF ATTORNEY HOLDER, S.A.P. HAMEED HAJI, CHEELAN HOUSE, VADIKKAL P.O. MADAYI). BY ADV. SRI.S.MAMMU RESPONDENTS: ------------- 1. OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, REPRESENTED BY ITS SECRETARY, BARTEN HILL BUNGLAVU, KUNNUKUZHI P.O., THIRUVANANTHAPURAM. 2. MADAYI GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, MADAYI P.O., KANNUR DISTRICT. 3. K. SAFIYA, W/O. KUNHIMOIDEEN, KUNHAMINA MANZIL, NEAR PUTHIYANGADI U.P.SCHOOL, P.O. MADAYI, KANNUR DISTRICT. BY ADV. SRI.JOHNSON MANAYANI FOR R3 SRI.KESAVA KAIMAL FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- W.A.NO.449 OF 2008-E ---------------------------------------------------- Dated this the 10th day of July, 2008. JUDGMENT Koshy, J: By Ext.P14 a direction was issued by the Ombudsman for Local Self Government Institutions, Trivandrum to demolish a portion of the building of the petitioner. Ombudsman obtained a report from the Assistant Executive Engineer and passed the order. Since the order is very short, we quote the entire order. "As per my order dated 31.8.2006, Assistant Executive Engineer, LSGD, Payyannur Block Panchayat has visited the controversial house and filed a report. He has stated that on the front side of the building and on the back side of the building are touching upon each other. The Secretary should demolish those portion which is abutted on both side. While doing so, the Secretary should keep in mind the age of the buildings because latest building only tends to violate the rules." 2. According to the petitioner, there is no application of mind. The order itself shows that there is no finding regarding violation of any of the building rules at the time of construction of the building. The Ombudsman only heard the complainant and the grama WA.NO.449/08 . 2 panchayat. No notice was issued to the petitioner. His objections were not considered. According to the petitioner, one of the buildings involved was sold by him. Earlier Ext.P3 order was passed by the Ombudsman in a similar fashion. When it was challenged, Ext.P4 judgment was passed in O.P.No.14464 of 2001, where the learned Single Judge ordered as follows: "2. In the facts and circumstances of the case, I direct that if the petitioner makes an application before the Ombudsman within a period of one month from today, notwithstanding the earlier orders passed, the Ombudsman may consider the matter and pass fresh orders, after giving an opportunity to the petitioner to present his case properly." 3. Thereafter, Ext.P5 order was passed with identical directions. The above order was also set aside by this Court by Ext.P7 judgment and directed the Ombudsman to pass order after hearing the petitioner. Consequently fresh order was passed with similar directions (Ext.P8). The above order was set aside by this Court by Ext.P9 judgment with the following directions: "Needless to say, the first respondent is a statutory authority. When its earlier decision was set aside by this Court as per Ext.P7 judgment and WA.NO.449/08 . 3 the matter remitted with a direction to consider the issue afresh, in my considered view, the impugned Ext.P10 order does not stand. The Ombudsman had issued Ext.P10 order by merely stating that the contention of the writ petitioner herein cannot be considered because the issue is concluded by the earlier order, i.e. the order which was set aside by this Court by Ext.P7 judgment". 4. Thereafter R.P was filed by the complainant, who approached the Ombudsman, and the present writ petitioner was asked to pay Rs.5,000/= for the delay in filing objections before the Ombudsman. He then filed Ext.P11 objection before the Ombudsman. But without referring to the same and without hearing the petitioner, Ext.P4 was passed. 5. It is submitted that the Ombudsman has no power to order demolition of the building. It is further submitted that it is the Secretary of the Grama Panchayat to find out whether there is violation of the building rules and if there is violation, order demolition. If such an order is passed by the Secretary of the Grama Panchayat and if anybody is aggrieved by the same, he can approach the Tribunal for Local Self Government Institutions. If no orders are passed by the Secretary , the Ombudsman can direct the Secretary to pass appropriate orders according to law. In case the WA.NO.449/08 . 4 Ombudsman obtained report from the Assistant Executive Engineer, the Ombudsman can direct the Secretary to pass orders considering that report also. But it was not done. In any event, the Ombudsman in Ext.P14 order has not considered the question of jurisdiction. The learned Single Judge in the impugned judgment refused to interfere with Ext.P14 order holding that no grounds are made out to challenge the jurisdiction under Article 226 of the Constitution without considering the contentions. While passing orders like demolition of building, natural justice shall be complied with. The objections filed by the affected parties shall be considered with notice to them. Ext.P14 order was passed without issuing notice to the petitioner. Only Secretary of the Grama Panchayat and the complainant were heard. Ext.P14 order was passed without considering the question of locus standi of the third respondent and the objections raised by the petitioner against the directions of the judgment of this Court in earlier proceedings. Without issuing notice to the aggrieved parties, the Ombudsman cannot pass final orders for demolition of the building. The contentions raised by the parties should be considered by the Ombudsman. In the above circumstances we allow the writ appeal by setting aside Ext.P14 and direct the Ombudsman to pass orders after considering the WA.NO.449/08 . 5 objections including the question of jurisdiction after hearing all concerned parties as early as possible. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. cl