IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 32224 of 2008(J) -------------------------- PETITIONER(S): --------------- R.SARASWATHY, MANAGING TRUSTEE, T.C.37/408, KOOPPAKARA MADOM STREET, FORT, THIRUVANANTHAPURAM. BY ADV. SRI.M.BALAGOVINDAN SRI.M.R.SASITH RESPONDENT(S): --------------- 1. CORPORATION OF THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY, CORPORATION BUILDING, THIRUVANANTHAPURAM. 2. OFFICIAL RECEIVER, DISTRICT COURT, THIRUVANANTHAPURAM. ADV. SRI.JACOB SEBASTIAN FOR R2 SRI.S.SANTHOSH KUMAR (BALARAMAPURAM) FOR R2 SRI.PRATAP K.PUSHPAKARAN FOR R2 SRI.P.K.MANOJKUMAR FOR R1 SMT.SUSHYA RAJAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/03/2009, 3THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.32224 of 2008 ================== Dated this the 27th day of March, 2009 J U D G M E N T The petitioner filed a complaint before the 1st respondent seeking removal of an alleged unauthorised construction made in the premises of a temple, of which the 2nd respondent is the official receiver appointed by a civil court. Since there was delay in considering the complaint, the petitioner approached the Ombudsman for Local Self Government Institutions seeking early disposal of the complaint filed by the petitioner. The Ombudsman refused to interfere on the ground that there is a civil dispute pending in respect of the unauthorised construction. The order of the Ombudsman is Ext.P5. The petitioner is challenging the order of Ombudsman. 2. The contention of the petitioner is that the Ombudsman has misread her complaint. Her complaint was not one seeking to establish her rights over the temple or on its properties. She was only seeking a direction for removal of an unauthorised construction. The petitioner, therefore, seeks the following reliefs: “a. Call for the records leading to the passing of Exhibit P5 and quash the same by issuing a writ of certiorari or other appropriate writ, direction or order. b. Issue a writ of mandamus or other appropriate writ direction or order directing the first respondent to consider Ext.P1 untrammeled by the findings in Exhibit P5 pending disposal of the writ petition.” w.p.c.32224/08 2 3. A counter affidavit has been filed by the 1st respondent, in which it is admitted that proper proceedings have been initiated under Section 406 of the Kerala Municipality Act in respect of the complaint in question. But it is admitted that in view of the dispute between the petitioner and the 2nd respondent, no further action has been taken pursuant thereto. 4. The counsel for the 2nd respondent stoutly opposes the prayers of the petitioner. He would submit that in view of the suit pending, no action can be taken in the regard. 5. I have considered the rival contentions in detail. 6. If there is an actual unauthorised construction, pendency of the suit between two private parties cannot stand in the way of the 1st respondent taking appropriate action as contemplated by the Kerala Municipality Act and the Kerala Municipality Building Rules. As such, the order of the Ombudsman refusing to interfere does not appear to be a correct one. Therefore, I quash Ext.P5. After initiating proceedings under 406 of the Municipality Act, the 1st respondent has a duty to take it to its logical conclusion expeditiously. In the above circumstances, this writ petition is disposed of with a direction to the 1st respondent to complete the proceedings initiated against the building in question under Section 406 of the Kerala Municipality Act after affording an opportunity of being heard to the petitioner as well w.p.c.32224/08 3 as the 2nd respondent, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge