IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 WP(C).No. 5287 of 2008(D) -------------------------------------- PETITIONER(S): ----------------------- MOHANDAS, RESIDING AT K-38, KAILAS NAGAR, KESAVADASAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.C.S.AJITH PRAKASH, SRI.T.D.SALIM, SRI.C.S.YESUDAS. RESPONDENT(S): -------------------------- 1. THE CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. G. NAGAPPAN NAIR, SECRETARY, KAILAS NAGAR RESIDENTS ASSOCIATION, GOKULAM K-34 C, PATTOM, THIRUVANANTHAPURAM. 3. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY. R1 BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, ADV. SRI.P.K.MANOJKUMAR. R2 BY ADV. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 5287/2008-D APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAN PREPARED BY THE TALUK SURVEYOR. EXT.P2: COPY OF THE COMPLAINT DATED 02/03/2005 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. EXT.P3: COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT IN O.P. NO. 377/2006 DATED 02/08/2006. EXT.P4: COPY OF THE JUDGMENT AND DECREE IN OS.537/2005 DATED 05/08/2006 OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM. EXT.P5: COPY OF THE COMPLAINT DATED 17/05/2006 FILED BY THE 2ND RESPONDENT BEFORE THE 3RD RESPONDENT. EXT.P6: COPY OF THE REPLY STATEMENT FILED BY THE PETITIONER IN O.P. NO. 430/2006. EXT.P7: COPY OF THE ORDER DATED 08/11/2006 OF THE 3RD RESPONDENT IN O.P. NO. 430/2006. EXT.P8: COPY OF THE INTERIM ORDER DATED 28/11/2006 IN WP(C) NO. 31495/2006. EXT.P9: COPY OF THE LETTER DATED 05/12/2006 ISSUED BY THE CORPORATION. EXT.P10: COPY OF THE JUDGMENT IN WP(C) NO. 31495/2006 DATED 14/02/2007. EXT.P11: COPY OF THE ORDER NO.TP.1/1169/06 DATED 11/06/2007 OF THE CORPORATION, THIRUVANANTHAPURAM. EXT.P12: COPY OF THE ORDER DATED 01/11/2007 PASSED BY THE 3RD RESPONDENT. EXT.P13: COPY OF THE ORDER DATED 06/12/2007 PASSED BY 3RD RESPONDENT. EXT.P14: COPY OF THE ORDER DATED 28/01/2008 PASSED BY THE 3RD RESPONDENT IN O.P. NO. 430/2006. RESPONDENT'S EXHIBITS: EXT.R2: COPY OF THE RE-SURVEY PLAN. EXT.R2(a): COPY OF THE REPORT OF THE TALUK SURVEYOR DATED 28/06/2007. WP(C) NO. 5287/2008-D EXT.R2(b): COPY OF THE SKETCH PREPARED BY THE TALUK SURVEYOR DATED 28/06/2007. EXT.R2(c): COPY OF THE LETTER DATED 15/03/2008 ISSUED BY THE VILLAGE OFFICER. EXT.R2(d): COPY OF THE PHOTOGRAPHS SHOWING THE PETITIONER'S COMPOUND WALL. EXT.R2(e): COPY OF THE STOP MEMO ISSUED BY THE 1ST RESPONDENT DATED 09/03/2008. EXT.R2(f): COPY OF THE STATEMENT FILED BY THE 1ST RESPONDENT BEFORE THE OMBUDSMAN DATED 01/08/2006. //TRUE COPY// P.S. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.5287/2008-D ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 14th day of September, 2010 J U D G M E N T The petitioner is aggrieved by Ext.P14 order passed by the learned Ombudsman for the Local Self Government Institutions. 2. The petitioner purchased 10 cents of land in 1988 in Kailas Nagar within Thiruvananthapuram Corporation and constructed a house and a compound wall. According to the petitioner, the property is next to a private road used by the residents of the Association. Initially, he effected certain renovation work of the compound wall and the structure, which according to him is within the limits of his property. 3. Alleging encroachment on the road, the second respondent submitted a complaint to the Corporation as per Ext.P2. It appears that another complainant, a member of the Association, namely, Shri C.Dharan had approached the learned Ombudsman and, ultimately, O.P was closed as per Ext.P3 order. It is the case of the petitioner that a suit O.S.No.537/2005 filed by the said member and his wife Smt.Geetha Dharan was also dismissed. It appears that the second respondent again approached the learned Ombudsman by Ext.P5 complaint. In the reply to the said complaint W.P.(C). No.5287/2008 -:2:- registered as O.P.No.430/2006, the petitioner took a stand that the matter is already covered by a decree of the Civil Court. Initially, Ext.P7 order was passed by the learned Ombudsman in O.P.No.430/2006 which was challenged by the petitioner in W.P.(C).No.31495/2006. W.P.(C).No.31495/2006 was finally disposed of by Ext.P10 Judgment directing the Corporation to take a decision in the matter. Ext.P11 is the proceedings issued by the Secretary of the Corporation rejecting the complaint filed by the second respondent. 4. It appears that the learned Ombudsman again proceeded with the matter and Exts.P12 and P13 interim orders were passed. Finally, by Ext.P14, O.P.No.430/2006 was disposed of declaring that the road in question is a public road and directing the Corporation to demolish the unauthorised construction of the wall within two weeks. This is under challenge in this writ petition. 5. The learned Standing Counsel for the Corporation has filed a statement and there is a counter affidavit filed by the second respondent also. 6. In the statement filed by the Secretary of the Corporation, the history of the dispute has been addressed in para (3). In the counter affidavit filed by the second respondent, various aspects have been pointed out. Learned counsel for the second respondent invited my attention to Ext.R2(c) to show that the property in Survey No.141/B1-1 W.P.(C). No.5287/2008 -:3:- is puramboke land and nobody is paying tax. It appears that the contention of the second respondent is that the property is a public road and is not a private road as contended by the petitioner. 7. The petitioner's case is that the road in question is a private road. It is also pointed out that the learned Ombudsman has no power to conduct enquiries and investigations in civil disputes and in respect of a private road and therefore, Ext.P14 order cannot be supported. 8. Evidently, the petitioner had approached this Court earlier by filing W.P.(C).No.31495/2006 against Ext.P7 order passed by the learned Ombudsman in the very same case, i.e. O.P.No.430/2006. In Ext.P7, the learned Ombudsman had directed the Corporation to take action against the petitioner herein and report on or before 13/12/2006. In W.P.(C).No.31495/2006, by Ext.P10 Judgment, this Court directed the Corporation to take a decision in the matter and communicate the decision to the parties concerned. Ext.P11 is the resultant order passed by the Secretary of the Corporation. The Secretary of the Corporation was of the view, based on the local inspection, that the width of the road is maintained in the opening portion as well as in the portion where it ends and there W.P.(C). No.5287/2008 -:4:- is a width of 12 feet available and, therefore, the second respondent's complaint cannot survive. 9. In Ext.P12, the learned Ombudsman found fault with the stand taken by the Corporation in Ext.P11 order. Again in Ext.P13, the criticism was repeated and finally, the order Ext.P14 was passed after taking adverse inference. The order Ext.P14 shows that as no reply was filed by the Corporation, adverse inference has been drawn that it is a public road and, accordingly, a direction was issued to demolish the wall. Of course, the learned counsel for the second respondent submitted that in the light of the communication by the Taluk Surveyor, it is a puramboke land but such question has to be pursued by him in a civil suit or by challenging Ext.P11 by any process known to law. The learned Ombudsman cannot take upon himself the power to take a decision in such a disputed question. The learned counsel for the second respondent tried to emphasise that there is a failure on the part of the Corporation to take action and, therefore, the complaint before the learned Ombudsman is maintainable. Herein, evidently, the petitioner had approached this Court earlier by challenging Ext.P7 interim order passed by the learned Ombudsman challenging the very jurisdiction which culminated in Ext.P10 Judgment and the Secretary of the Corporation was directed to take a decision. That decision went against W.P.(C). No.5287/2008 -:5:- the second respondent herein. Evidently, he had to challenge the same under Section 509 of the Kerala Municipality Act. It appears that inspite of Ext.P10 Judgment, the learned Ombudsman proceeded with the investigation of the complaint which was registered prior to Ext.P10 Judgment. The said procedure appears to be incorrect in the light of the fact that it would have been perfectly open for the second respondent to challenge Ext.P11 in a competent forum. Evidently, the learned Ombudsman is not an appellate authority under the Municipalities Act to consider the validity of Ext.P11 order especially, in a matter like this where the dispute is with regard to the question whether the road is a public road or a private road and, whether there is encroachment etc.. Evidently, the same requires detailed evidence to be taken including oral and documentary. The matters which can be considered by the learned Ombudsman are covered by Chapter XXV B of the Kerala Panchayat Raj Act and the functions of the learned Ombudsman, which are delineated in Section 271 J. Sub-Section 4 of Section 271 M of the Kerala Panchayat Raj Act specifically bars enquiry into a matter where remedy is available from the Tribunal for Local Self Government Institutions constituted under Section 271 S. Section 271 N(c) also is relevant in this context. Evidently, as rightly contended by the learned W.P.(C). No.5287/2008 -:6:- counsel for the Corporation, Ext.P11 was appealable before the Tribunal under Section 509(6) of the Municipality Act. Further, even if for arguments sake, as contended by the learned counsel for the second respondent, the learned Ombudsman is having power to consider the mal- administration by the Secretary or other officials, I am not satisfied that this is a fit case where such powers should be exercised, in view of the disputed question with regard to the nature of the road itself, whether it is private one or a public one. The order Ext.P14 has drastic consequences by way of declaration of the road as a public road by the learned Ombudsman, which cannot be traced to any of the functions of the Ombudsman covered by Section 271 J of the Panchayat Raj Act. Therefore, Ext.P14 cannot be supported. 10. The writ petition is allowed. Ext.P14 is quashed. But, this will not stand in the way of the second respondent availing any other legal remedy in the matter. No costs. (T.R. Ramachandran Nair, Judge.) ms