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2022 Supreme(Online)(KER) 19555
HIGH COURT OF KERALA
Murali Purushothaman, J
SAJEEVAN @ RAJEEVAN – Appellant
Versus
THE SECRETARY – Respondent
WP(C)/30345/2022
SRINATH GIRISH P.JERIL BABU V.NAMITHA PRASUDHA S.RE
The Secretary of the Municipality holds the authority to address unauthorized construction issues, and the Ombudsman lacks jurisdiction to compel such actions.
Headnote:
Jurisdiction - Ombudsman - Kerala Municipality Act Section 406 - The act recognizes the authority of the Secretary in cases of unauthorized constructions and delineates the procedural requirements for issuing notices in such situations.
Fact of the Case:
The petitioners challenged a notice from the Municipality Secretary for demolishing their constructions due to alleged violations of the Kerala Municipality Act following a complaint to the Ombudsman regarding unauthorized constructions.
Finding of the Court:
The court identified that the Ombudsman overstepped jurisdiction by directing actions against the petitioners, which should originate from the Municipality Secretary as provided in Section 406 of the Kerala Municipality Act.
Issues: Whether the Ombudsman had the jurisdiction to direct the Municipality Secretary to take action against the petitioners for unauthorized constructions.
Ratio Decidendi: The judgment established that the Secretary of the Municipality, per Section 406, has the authority to issue notices related to unauthorized constructions and that the Ombudsman cannot issue direct orders in that regard.
Final Decision: The court directed the Municipality to consider the petitioners' objection and defer any coercive actions until a decision is made.
JUDGMENT
This writ petition is filed challenging Ext.P11 notice issued by the 1st respondent, the Secretary of the Municipality directing the petitioners to demolish certain constructions carried out by them.
2. The 2nd respondent approached the Ombudsman for Local Self Government Institutions (for short, 'Ombudsman') alleging that the petitioners have carried out certain constructions in violation of the provisions of the Kerala Municipality Act and Kerala Municipality Building Rules and encroaching on a public path way.
3. Pursuant to the directions of the Ombudsman, Ext.P2 show cause notice was issued to the petitioners as to why steps shall not be taken against unauthorised construction. The Ombudsman later passed Ext.P9 order stating that the Secretary of the Municipality has admitted that there is encroachment and directing the Secretary to take steps to remove the encroachment and unauthorised constructions. Exts.P10 and P11 are consequential orders passed by the 1st respondent.
4. The contention of the petitioners is that the Ombudsman has no jurisdiction to issue directions to the 1st respondent to take action for removal of encroachment or to demolish the alleged construction. The powers and functions of the Ombudsman has been statutorily fixed under Sections 271 J and M of the Kerala Panchayat Raj Act , 1994. As per the said provisions, the Ombudsman can initiate action against the officers of the Municipality or the elected representatives of the Municipality in case of any complaint regarding allegations of corruption, maladministration or irregularities. The direction of the Ombudsman in Ext.P9 is without jurisdiction.
5. However, Section 406 of the Kerala Municipality Act provides that, if the Secretary is satisfied that any building or any structure has been unauthorisedly constructed, the Secretary shall issue a provisional order under (1) and if not satisfied with the reply of the person who has carried out unauthorised construction, shall issue a final order under (3). Ext.P2 has, therefore, to be treated as a notice under (1). The petitioners shall file fresh objection to Ext.P2 and the 1st respondent shall consider the objection and pass appropriate orders within a period of one month from the date of receipt of a copy of this judgment after hearing the petitioners and the 2nd respondent. Till such time, all coercive steps against the petitioners shall be deferred.
The writ petition is disposed of with the above direction.
Sd/-
MURALI PURUSHOTHAMAN JUDGE
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE OMBUDSMAN (LSGI), THIRUVANANTHAPURAM, DATED 01-02-2022, IN COMPLAINT NO.27/2020.
EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 10-02
2022 ISSUED BY THE SECRETARY, PAYYOLI MUNICIPALITY, TO THE PETITIONERS.
EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 11-02
2022 ISSUED BY THE SECRETARY, PAYYOLI MUNICIPALITY, TO THE PETITIONERS.
EXHIBIT P4 TRUE COPY OF THE OBJECTIONS DATED 15-
02-2022 SUBMITTED BY THE 1ST PETITIONER BEFORE THE SECRETARY, PAYYOLI MUNICIPALITY.
EXHIBIT P5 TRUE COPY OF THE PLAINT DATED 23-12-
2015 IN O.S 139/2015 ON THE FILE OF THE MUNSIFF COURT, PAYYOLI.
EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT DATED 22-03-2016 IN IN O.S 139/2015 ON THE FILE OF THE MUNSIFF COURT, PAYYOLI.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 07-10 -2017 IN O.S 139/2015 ON THE FILE OF THE MUNSIFF MAGISTRATE, PAYYOLI.
EXHIBIT P8 TRUE COPY OF THE REPORT DATED 08-01-
2016 SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S 139/2015 ON THE FILE OF THE MUNSIFF COURT, PAYYOLI.
EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS OF THE OMBUDSMAN (LSGI), THIRUVANANTHAPURAM, DATED 07-03-2022 IN COMPLAINT NO.27/2020.
EXHIBIT P10 TRUE COPY OF THE NOTICE DATED 06-05-
2022 ISSUED BY THE SECRETARY, PAYYOLI MUNICIPALITY, TO THE PETITIONERS.
EXHIBIT P11 TRUE COPY OF THE NOTICE DATED 17-09-
2022 ISSUED BY THE SECRETARY, PAYYOLI MUNICIPALITY, TO THE PETITIONERS.
RESPONDENTS EXHIBITS:-
EXHIBIT R2(a) A TRUE COPY OF THE DETAILED ESTIMATE PREPARED
