Chellamma vs State Of Kerala

Gopinath P., J

The petitioner has approached this court seeking implementation of Ext.P5 order dated 27-10-2011 of the Ombudsman for Local Self Government Institutions, Thiruvananthapuram in OP Nos.485/2010 and 332/2011 through which the learned Ombudsman had directed the 7th respondent to restore an irrigation canal [which was illegally converted by certain persons] with the assistance of the Irrigation Department. It appears that Ext.P5 order had been challenged before this court by filing W.P (C) No.1292/2012 which was disposed of by this court on 28-10-2022 as follows;

“8. The learned counsel for the petitioner also submitted that the Panchayat is taking appropriate action in order to maintain the channel which was existing and constructing a road over the said channel by providing slabs. In my considered opinion, the facts and circumstances being so and the petitioner and others have converted the channel which is a public property into a road, it cannot be said that the impugned order passed by the Ombudsman is in any manner arbitrary or illegal susceptible to be interfered in a proceeding under Article 226 of the Constitution of India. Therefore, I decline interference with Ext.P4 order. This I say because from the judgment of the Munsiff's Court, Neyyattinkara it is clear that there is a permanent prohibitory injunction from reclaiming the channel. However, the learned counsel for the petitioner submitted that the liberty of the petitioner and others may be left open to approach the Government or other statutory authorities to find out a solution for the present situation or to seek assignment in order to make a road for the convenience of the families residing nearby.

Therefore, the writ petition is disposed of leaving open the liberty of the petitioner to approach any of the statutory authorities for any reliefs. It is also made clear that if the Panchayat is taking any action in order to retain the channel and construct a road above, the same by providing slabs, the Panchayat will also be at liberty to do so.

When this writ petition was admitted to the files of this Court, an interim order was passed staying the operation of the Ext.P4 order, which is still in force. The said interim order will continue to be in force for a period of six months.”

The petitioner herein was the 5th respondent in W.P (C) No.1292/2012. In the light of the directions issued by this court and considering the fact that the petitioner is also a party to the judgment of this court in W.P (C) No.1292/2012 no direction contrary to the directions issued in W.P (C) No.1292/2012 can be issued in this writ petition. Since this court has already upheld Ext.P5 order in W.P (C) No.1292/2012, it is the bounden duty of the 7th respondent panchayat to implement that order in the manner indicated in that order or in the manner permitted by this court in the judgment in W.P (C) No.1292/2012. Therefore this writ petition will stand disposed of directing the 7th respondent to take steps to implement Ext.P5 order forthwith in the manner directed by this court in W.P (C) No.1292/2012 without further delay and within a period of 6 months from the date of receipt of a certified copy of this judgment. Respondents 2 and 4 shall extend all necessary assistance to the panchayat to implement the directions issued above.