Point of Law : Functions of Ombudsman - Lok Ayukta ought not have proceeded with any complaint or mal administration with regard to a public servant of a Local Self Government Institution.

JUDGMENT :

S. MANIKUMAR, J.

Before Lok Ayukta, Jose K.R., S/o. Rappai, Kanjirathingal House, Laloor P.O., respondent No.1, has filed a complaint alleging that respondent No.6 has constructed a tele communication tower without necessary permission and that the petitioner Corporation is not taking effective steps to demolish the unauthorised construction.

2. Having regard to the averments made in the complaint and the materials on record, Lok Ayukta passed Ext. P1 order dated 14.10.2019 in Complaint No. 1610/2014A. Operative portion of the said order reads thus:

“... In these circumstances, the new Secretary of the Thrissur Corporation is directed to see that the Generator in question is removed without any delay and at any rate, within four weeks from the date of receipt of a copy of this order and report compliance to this Forum before the next posting date of the case.”

3. Contending inter alia that the Upa Lok Ayukta has no jurisdiction to entertain any complaint against a public servant as defined in Chapter XXV of the Kerala Panchayat Raj Act, 1994 ('Act, 1994' for short) after the constitution of Ombudsman, instant writ petition is filed by the Thrissur Corporation.

4. According to the petitioner, telecommunication tower was installed by the 6th respondent without obtaining a permit from it and even though an application for regularisation was submitted on 09.12.2019, the same was rejected by the Corporation. The said order was challenged by filing Appeal No. 424/16 before the Tribunal for Local Self Government Institutions, Thiruvananthapuram. The Tribunal, as per Ext. P2 order dated 14.05.2018, disposed of the appeal finding that the order rejecting the application for regularisation is proper. The Managing Director, M/s. Indus Towers Infratell Ltd., respondent No.6, was given liberty to file a fresh application for regularisation. However, respondent No.6 did not file any application for regularisation.

5. The petitioner Corporation issued a notice to demolish the construction on 07.09.2019. Later, the Managing Director, M/s. Indus Towers Infratell Ltd., respondent No.6, submitted a fresh application and filed W.P.(C) No. 26635 of 2019 seeking a direction to consider the application for regularization. The said writ petition was disposed of as per Ext. P3 judgment dated 15.10.2019 directing the petitioner Corporation to consider the said application and pass orders within two months from the date of receipt of a copy of the judgment.

Thereafter, the application was considered and found that the construction can be regularised.

6. While so, when the matter came up before the Upa Lok Ayukta on 09.12.2019, warrant of arrest has been issued against the Secretary of the Thrissur Corporation noticing that there was no appearance for the petitioner Corporation and that the order to remove the generator has not been complied with.

7. Grounds on the basis of which the impugned order is sought to be quashed are reproduced hereunder:

“B. Upa Lok Ayukta could not have entertained the complaint filed by the first respondent raising an allegation against the Secretary of the petitioner Corporation, who is a 'public servant' as defined in Chapter XXV B of the Kerala Panchayat Raj Act, on or after the constitution of Ombudsman.

C. After enactment of Section 271 O of the Kerala Panchayat Raj Act, 1994, the Lok Ayukta or Upa Lok Ayukta could not have entertained the complaint against a Local Self Government Institutions which is made clear by this Hon'ble Court in the judgment rendered in Jose V. Jacob v. Thalayolaprarmbu Grama Panchayat reported in 2016(1) KLT 362.

D. This Hon'ble Court has issued a direction as per the judgment in W.P.(C) No. 26635/2019 whereby the petitioner has been directed to keep in abeyance all proceedings pursuant to the notice for demolition pending consideration of the application for regularization. Under such circumstances, the petitioner cannot be found fault with in not proceeding with the steps to demolish the const