IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 WP(C).No. 21007 of 2004(A) -------------------------- PETITIONER: ----------------- BRIHANTHALA, SRECRETARY, CHATHANOOR GRAMA PANCHAYAT, CHATHANOOR P.O., KOLLAM DISTRICT. BY ADV. SMT.V.P.SEEMANDINI (SR.) SMT.K.P.GEETHA MANI SMT.LEKSHMY RAMANATHAN RESPONDENTS: ---------------------- 1. OMBUDSMAN FOR LOCAL SELF GOVT. INSTITUTIONS, TRIVANDRUM. 2. SUDARSANAN.J., SOORYA BHAVAN, EARAN NORTH,, CHATHANOOR P.O., KOLLAM. 3. SUVARNAKUMARY, CLERK, CHATHANOOR GRAMA PANCHAYAT, CHATHANOOR, KOLLAM. BY ADVS. SRI.P.N.PURUSHOTHAMA KAIMAL FOR R3 SRI.K.SUBASH CHANDRA BOSE FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: : TRUE COPY OF THE NOTICE DATED 15.7.2003 ISSUED BY THE HON'BLE OMBUDSMAN. EXHIBIT P2 : TRUE COPY OF THE ORDER DATED 1.10.2003 IN O.P. 46/2003 ISSUED BY THE HON'BLE OMBUDSMAN. EXHIBIT P3 : TRUE COPY OF THE ORDER DATED 21.2.2004 IN R.P. 32/2003. RESPONDENT'S EXHIBITS: EXHIBIT R2(a) : TRUE COPY OF THE TAX RECEIPT NO. 87 DATED 6.7.2002. EXHIBIT R2(b) : TRUE COPY OF THE TAX RECEIPT NO. 73 DATED 20.10.2006. /TRUE COPY/ P.A. TO JUDGE. vkm ANTONY DOMINIC, J. = = = = = = = = = = = = = = = W.P.(C) No. 21007 OF 2004 (A) = = = = = = = = = = = = = = = Dated this the 10th day of July 2008 J U D G M E N T The challenge in this writ petition is against Ext. P2, an order passed by the Ombudsman for Local Self Government Institutions, on a complaint filed by the 2nd respondent. 2. According to the petitioner, on a complaint filed by the 2nd respondent, Ext. P1 notice was issued requiring appearance of the petitioner before the Ombudsman. Ext. P1 notice only stated that within 15 days of receipt of the notice, appearance should be entered and that documents should be produced before the Ombudsman. It is stated that with the consent of the Panchayat, petitioner had engaged counsel for appearance on her behalf before the Ombudsman when the matter was scheduled to be considered by it. However, the fact remains that the petitioner did not secure the leave of the Ombudsman in terms of the provisions contained under Section 271(N) of the Kerala Panchayat Raj Act and therefore W.P.(C) No. 21007 OF 2004 -2- she was not permitted to be represented by a counsel. 3. Be that as it may, the Ombudsman proceeded to consider the complaint of the 2nd respondent which was in relation to his request for an ownership certificate in respect of one of the buildings constructed in a plot allegedly owned by him. On facts it is seen that an application was made by the complainant and on that, a certificate was issued by the petitioner herein certifying that the complainant and his wife were the owners of the building. It was aggrieved by this certificate that the complaint was filed. 4. However, taking note of the absence of the petitioner and that the building was already given a number, the Ombudsman concluded that the petitioner was raising untenable contentions to deny the legitimate right of the complainant to get ownership certificate. On that basis, with adverse comments the Ombudsman passed Ext. P2 order directing the petitioner to appear before the Ombudsman and explain as to why disciplinary proceedings shall not be initiated. Further cost of Rs.5,000/- was also imposed and was directed to be paid by the petitioner herself. It is challenging this order to the extent costs is imposed, this writ petition has been W.P.(C) No. 21007 OF 2004 -3- filed. 5. The learned counsel appearing for the 2nd respondent complainant before the Ombudsman would contend that the 2nd respondent is the exclusive owner of the building in question. It is also contended that in respect of other two buildings the Panchayat has already issued certificates to the effect that the 2nd respondent is its absolute owner. According to him, since certificate as above has already been issued there is no justification for the petitioner to certify that the building in question is in the co-ownership of himself and his wife. It is also submitted that by Ext. R2(a), tax has been remitted by the 2nd respondent alone and it is only thereafter that in Ext. R2(b) the theory of co-ownership has been introduced by the petitioner. It is stated that the whole motive of the petitioner was to harass him and therefore the Ombudsman was justified in imposing cost on the petitioner. 6. Though the learned counsel for the petitioner has raised several contentions on the merits of the order, the relief sought for in the writ petition is only regarding the cost that is imposed by the Ombudsman. Ombudsman has imposed cost basically for two W.P.(C) No. 21007 OF 2004 -4- reasons. One is that the petitioner has admittedly absent in the proceedings and the other is that the petitioner was creating problems to deny the legitimate right of the 2nd respondent to get a building certificate. 7. On facts, I am satisfied that the petitioner's failure to appear before the Ombudsman cannot be said to be deliberate. Petitioner's positive case is that when the case was taken up on 1.10.2003 and that was the first posting of the case pursuant to Ext.P1 notice, on that day she had, though erroneously, made arrangements for the appearance of a counsel. If that was not possible, the Ombudsman could have given yet another opportunity to the petitioner to appear in the matter and thereafter disposed of the complaint. On the other hand, the Ombudsman unnecessarily took offence in her conduct and disposed of the complaint. In so far as the issuance of the certificate in the ownership in the name of the complainant and his wife is concerned, it is the specific case of the petitioner that such a certificate was issued on the basis of the building tax assessment register maintained by the Panchayat. Though the learned counsel for the respondents would contend that W.P.(C) No. 21007 OF 2004 -5- the building tax assessment register was also manipulated by the petitioner, neither is there any material to support such a contention nor has even the Ombudsman made such an inference. Facts being so, if the petitioner has taken action on the basis of the building tax assessment register certificate could have been issued only on the joint name of the complainant and his wife. I do not think that such conduct of the petitioner can be characterised as an ill motivated, deserving imposition of costs. 8. For these reasons, I am satisfied that there is absolutely no justification for imposing cost on the petitioner by Ext. P2. 9. Ext. P2 will stand modified to that extent cost is imposed on the petitioner. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE jan/-