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. 1448 of 2008() ------------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.17759/2008 Dated 13/06/2008 .................... APPELLANT/ PETITIONER ------------------------------------- EZHUPUNNA GRAMA PANCHAYATH, REP. BY ITS SECRETARY, ERAMALLOOR.P.O, ALAPPUZHA DT. BY ADV. SRI.P.N.PURUSHOTHAMA KAIMAL RESPONDENT/ RESPONDENT ------------------------------------------- JOSEPH JOSEPH, MURIKKUTHARA HOUSE, ERAMALLOOR, CHERTHALA, ALAPPUZHA DT. BY THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10/07/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B.Koshy & P.N.Ravindran, JJ. ===================== W.A.No.1448 of 2008 ===================== Dated this the 10th day of July, 2008. JUDGMENT Ravindran,J. The petitioner in W.P.(C) No.17759 of 2008 is the appellant. The Writ Petition was dismissed in limine by the learned Single Judge. Hence, this Writ Appeal. 2. The petitioner is the Ezhupunna Grama Panchayat represented by its Secretary. The respondent in the Writ Petition constructed a building in a parcel of land belonging to him. On the allegation that the construction was causing obstruction to the drainage constructed by the Panchayat and was in violation of Section 220(B) of the Kerala Panchayat Raj Act, hereinafter referred to as the "Act" for short, the petitioner - Panchayat issued a stop memo evidenced by Ext.P1. The neighbouring owner also filed a complaint evidenced by Ext.P2 alleging the same irregularity and further alleging that if the construction is allowed to be carried out, waste water will flow to his lands. It appears that the respondent moved the Hon'ble Ombudsman for Local Self Government Institutions. By Ext.P8 order passed on 31.10.2006, the Ombudsman directed the Panchayat to issue licence to the respondent within two weeks. By an earlier order passed on 18.8.2006, the Ombudsman held that the building was WA 1448/08 -: 2 :- put up on a foundation which was in existence prior to 1991. By the said order, the Ombudsman had also directed the respondent herein to produce a copy of his title deed before the Panchayat. The Panchayat thereupon disputed the title of the respondent. The Ombudsman thereafter passed Ext.P8 order on 31.10.2007 directing the Panchayat to issue the necessary licence to the respondent. The Panchayat did not challenge Ext.P8. The neighbouring land owner Mr.Nicholas Holten challenged Ext.P8 in W.P.(C)No.31395 of 2006. By Ext.P9 judgment delivered on 10.8.2007, a learned Single Judge of this Court quashed Ext.P8 and directed the Ombudsman to hear Mr.Nicholas Holten, the Secretary of the Panchayat and the respondent herein and others and to pass fresh orders in the matter. The Ombudsman thereafter passed Ext.P10 order dated 19.10.2007. By the said order, the Panchayat was directed to number the house constructed by the respondent. As regards the complaint voiced by Mr.Nicholas Holten, the Ombudsman directed the Secretary of the Panchayat to look into the grievance voiced by him with regard to the latrine constructed by the respondent. The Secretary of the Panchayat was also directed to abate the nuisance if the latrine is constructed in violation of the rules or it causes nuisance to Mr.Nicholas Holten. The Panchayat thereupon filed this Writ Petition challenging Ext.P10. The earlier order passed by the Ombudsman on 31.10.2006 (Ext.P8) was not challenged by the Panchayat and by Ext.P10 order passed on 18.10.2007, the Ombudsman had only reiterated the direction in WA 1448/08 -: 3 :- Ext.P8. The learned Single Judge therefore held that the Writ Petition is highly belated. As regards the contention that the construction is in violation of Section 220(B) of the Act, the learned Single Judge held that as such a plea was not raised before the Ombudsman, the petitioner Panchayat is not entitled to raise such a contention. The Writ Petition was accordingly dismissed. 3. We have heard Sri.P.N.Purushothama Kaimal, the learned counsel appearing for the appellant. As rightly held by the learned Single Judge, the plea that the construction is in violation of Section 220(B) of the Act was not raised before the Ombudsman at the time when Exts.P8 and P10 orders were passed. Further, Ext.P10 is only a reiteration of the direction issued in Ext.P8. The order passed by the Ombudsman on 31.10.2006 (Ext.P8) was not challenged by the Panchayat. Therefore the Panchayat is not entitled to challenge Ext.P10 also. As regards the alleged violation of Section 220(B) of the Act also, we agree with the learned Single Judge that such a contention was not raised before the Ombudsman by the Panchayat. The Ombudsman had found in the order dated 18.8.2006 that the respondent has constructed the building on the old foundation which was in existence before 1991. The Ombudsman had relied on the recitals in the title deeds to come to the said conclusion. No material has been produced before us to establish that the said finding of the Ombudsman is in any way infirm or perverse. WA 1448/08 -: 4 :- For the reasons stated above, we hold that that there is no merit in this Writ Appeal. The Writ Appeal accordingly fails and it is dismissed in limine. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 16/7