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2009 DIGILAW 775 (KER)

R. Reghuvara Panicker v. The Secretary

2009-08-18

THOTTATHIL B.RADHAKRISHNAN

body2009
Judgment : 1. The petitioner and the second respondent are neighbors. The petitioner challenges orders issued by the Ombudsman for Local Self Government Institutions on a complaint by the second respondent alleging inaction of the first respondent, the secretary of a grama panchayat, on his complaint regarding overhanging branches of a tree belonging to the petitioner. The writ petitioner appeared before the Ombudsman. It was noticed by the learned Ombudsman that the second respondent stands to face a suit filed by the petitioner for injunction against trespass and felling of the tree by committing trespass. Learned Ombudsman rightly took the view that the pendency of that suit will not stand in the way of the panchayat authorities exercising statutory jurisdiction under the Kerala Panchayat Raj Act, 1994, hereinafter the 'Act', for short. It was also noted that the panchayat is not a party to that suit. Accordingly, Ext.P4 was issued, requiring the secretary of the panchayat to look into the objections of the petitioner and consider the request of the second respondent herein and to proceed with the matter in accordance with law. This is under challenge. 2. It is true that the learned Ombudsman has stated in Ext.P4 that the aforesaid shall be done, if necessary, with police protection. While the learned counsel for the petitioner points out that the Ombudsman had no jurisdiction to issue an order for police protection, I am clear in my mind that Ext.P4 does not contain any direction to any police authority. It only alerts the panchayat officials that in case it ultimately issues orders against the petitioner and the situation warrants intervention of police to secure enforcement of such an order, the panchayat authorities shall not desist from doing the needful even by applying for police interference. In my view, Ext.P4, in no manner, indicates the decision that the secretary of the panchayat may take. 3. After Ext.P4 was issued, the authorities were again heard by the learned Ombudsman. That led to the issuance of Ext.P5. It was stated in that order that the secretary of the panchayat can make a local inspection and issue appropriate directions to the petitioner, if found necessary. It is also stated that the local inspection should be with notice to the petitioner and the second respondent. That led to the issuance of Ext.P5. It was stated in that order that the secretary of the panchayat can make a local inspection and issue appropriate directions to the petitioner, if found necessary. It is also stated that the local inspection should be with notice to the petitioner and the second respondent. That order is criticized as one in excess of jurisdiction in as much as, according to the petitioner, the spread of authority of the learned Ombudsman in Chapter XXV-B of the Act does not provide any authority to interfere in such matters and issue directions as has been done. It is also argued that by virtue of the provisions in Section 238 of the Act, the secretary does not have the power to decide on the issue as to whether the tree has to be felled or trimmed or whether one of its branches has to be cut down. Relying on the decision reported in Thankamma v. Ezhumattur Grama Panchayat [2001(2) KLT 596], it is pointed out by the petitioner that action could follow only from the panchayat and not from the secretary and the power of the secretary gets confined to sub section 2 of Section 238. 4. Ext.P3 complaint of the second respondent contains the clear averment that his grievance made to the panchayat secretary has not been attended to duly. 5. Section 271-J (1) enumerates the different functions of the Ombudsman. It includes the power to look into the allegations contained in complaints. Complaint as defined in Section 271- F (1) (b) (c) means a statement of allegation. In so far as an LSGI is concerned, allegation, going by Section 271-F (1) (b)(b), means any affirmation that the LSGI has defaulted in the discharge of its functions. Section 271-K enumerates the power of the Ombudsman. Section 271-M provides for investigation and Section 271-N provides the modality for enquiry. The final disposal of complaints is governed by Section 271-Q and in terms of Section 271-L, the Ombudsman would get the service of officers and employees of government in terms of that provision. The institution of Ombudsman for LSGI is a concept quite unique in the legislations that govern LSGIs in India. The final disposal of complaints is governed by Section 271-Q and in terms of Section 271-L, the Ombudsman would get the service of officers and employees of government in terms of that provision. The institution of Ombudsman for LSGI is a concept quite unique in the legislations that govern LSGIs in India. The Act which makes such a provision has to be taken to be the one that has made a salutary break-through providing an alternate, efficacious, statutory and speedy justice delivery mechanism to the common man. The evolution of the concept of a supervisory jurisdiction being given to the Ombudsman, on a proper appreciation, should advise that unless it is shown that the Ombudsman has clearly traversed beyond its jurisdiction, the superior courts should loath interfere with its proceedings except in cases where clear injustice is demonstrated. The functions of the Ombudsman should also get the protective insulation of a policy of non interference by the constitutional courts. Evolving such a policy would definitely be in consonance with the policy of law that remedy should be available then and there, from where there is a negation of substantial justice. The prescription of remedy and its enjoyment has to be provided for and ensured only in accordance with the rule of law. That does not mean that every technical objection or a slight swing in the jurisdictional parameters would call for interference, except where there is a clear demonstration of injustice having been meted out. 6. The impugned orders are not issued by the learned Ombudsman prescribing any particular official decision to be taken at the hands of the panchayat. The jurisdictional fact on which the Ombudsman has started the exercise is the assertion of the second respondent that the panchayat secretary has defaulted in the discharge of his duties. This is only the opening point. The nature of powers of the Ombudsman and the methodology and procedure that could be adopted in the light of the available powers and jurisdiction, tend to indicate that what is ultimately aimed at, is the guarantee that relief is secured. This is only the opening point. The nature of powers of the Ombudsman and the methodology and procedure that could be adopted in the light of the available powers and jurisdiction, tend to indicate that what is ultimately aimed at, is the guarantee that relief is secured. In the case in hand, while the petitioner, on the strength of the decision in Thankamma (supra), may be justified in pointing out that the ultimate authority to decide on the felling of a tree or cutting of a branch that does not spread over a public way is with the panchayat committee and not with the secretary, it needs to be immediately mentioned that when a citizen makes a complaint to the secretary, it is the bounden duty of the secretary to place it before the panchayat, if the jurisdiction is exclusively with the panchayat committee. The secretary is a public servant. He cannot sleep over his duties and responsibilities. If he does, he will also be adding himself on to the band wagon of those who eat from the state exchequer; which, essentially, belongs to the People; but continuously refuse and fail to discharge their statutory and constitutional obligations to perform official and public functions. So much so, the alleged inaction of the panchayat secretary was sufficient jurisdictional material for the learned Ombudsman to initiate action. The whip of the Ombudsman has often cleared many a smug. All that is required to be ensured is that the authorities act in terms of the law. If it is the panchayat committee and not the panchayat secretary who has to decide on an issue, the panchayat secretary is duty bound to bring the issue to the notice of the panchayat and get resolution of the issue at the earliest. But that does not mean that the learned Ombudsman could be criticized of having overstepped the jurisdiction for issuing the directions as done. For the aforesaid reasons, while dismissing this writ petition finding no jurisdictional error or legal infirmity warranting interference with the impugned decision of the learned Ombudsman, it is ordered that the proceedings following the orders of the learned Ombudsman shall be ensured to be strictly in accordance with law.