Kerala High Court

Brinner M.D.J vs Prestige Estates Projects ... on 22 December, 2022

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
              THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                     &
                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
         Thursday, the 22nd day of December 2022 / 1st Pousha, 1944
                             WA NO. 1911 OF 2022

 AGAINST COMMON JUDGMENT DATED 22.11.2022 IN WP(C) 6706/2022 OF THIS COURT

APPELLANT/2ND RESPONDENT:

     BRINNER M.D.J., AGED 56 YEARS , S/O M.O DEVASSY, LIVRA-8, LINK
     VALLEY, KUSUMAGIRI P.O, KAKKANAD, KOCHI - 682030.

BY ADVS.M/S. MANU RAMACHANDRAN, M.KIRANLAL,

R.RAJESH (VARKALA), ANSU VARGHESE, SAMEER M NAIR,

DHANALAKSHMI V.K.,   GEETHU KRISHNAN & SAILAKSHMI MENON

RESPONDENTS/WRIT PETITIONER & RESPONDENTS 1,3 & 4:

  1. PRESTIGE ESTATES PROJECTS LIMITED, 801, 8TH FLOOR, PRESTIGE TMS
     SQUARE, NH 66, BYPASS, PADIVATTOM, EDAPPALY,
     KOCHI-682024. REPRESENTED BY ITS SENIOR VICE PRESIDENT MR.
     THANKACHAN V. THOMAS.
  2. THE SECRETARY THRIKKAKARA MUNICIPALITY, KAKKANAD, ERNAKULAM, KOCHI-
     682030.
  3. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, SAPHALYAM
     COMPLEX, 4TH FLOOR, TRIDA BUILDING,UNIVERSITY
     P.O., THIRUVANANTHAPURAM - 695034.
  4. THE REGIONAL JOINT DIRECTOR, DEPARTMENT OF URBAN AFFAIRS, BROADWAY,
     MARINE DRIVE, ERNAKULAM, KOCHI - 682031.

BY SENIOR ADVOCATE SRI.JOSEPH MARKOS FOR R1

STANDING COUNSEL SMT.P.K.RESHMA FOR R3


     Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation of the common judgment dated 22.11.2022 in W.P.(C)
No.6706/2022 passed by the learned Single Judge of this Hon'ble Court,
pending disposal of the writ appeal.


     This Writ Appeal coming on for orders along with connected case on
22/12/2022 upon perusing the appeal memorandum, the court on the same day
passed the following:
 EXT.P5:TRUE COPY OF THE ORDER DATED 23.11.2021

ISSUED BY THE 3RD RESPONDENT IN I.A.NO.03/2021

IN O.P.NO.465/2021.

EXT.P6:TRUE COPY OF THE STOP MEMO DATED 25.11.2021

ISSUED BY THE 1ST RESPONDENT.

EXT.P12:TRUE COPY OF THE COMPLAINT DATED 15.11.2021

OF THE 2ND RESPONDENT WITHOUT ANNEXURES.

EXT.P15:TRUE COPY OF THE ORDER DATED 19.01.2021.

RECEIVED ON 07.02.2022, PASSED BY THE 3RD RESPONDENT.

EXT.P16:TRUE COPY OF THE INSPECTION NOTICE

DATED 23.02.2022 ISSUED BY THE 4TH RESPONDENT.
                        S. Manikumar, C.J.
                                &
                        Shaji P. Chaly, J.
                =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
                 W.A.Nos.1911 & 1912 of 2022
                =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
           Dated this the 22nd day of December, 2022

                                 ORDER

S. Manikumar, C.J.

Instant writ appeals are filed by respondent No.2 in W.P.

(C)Nos.26781 of 2021 and 6706 of 2022, challenging the

common judgment of the learned single Judge dated

22.11.2022, by which the writ court granted the reliefs sought

for and allowed the writ petitions.

2. Before the writ court, the petitioner in W.P.(C)No.26781

of 2021 - Prestige Estates Projects Limited, Kochi, has sought for

the following reliefs:

"(i) Call for the records relating to Exhibit P15 Order of the 3 rd Respondent and quash the same by issue of a writ of certiorari or such other appropriate writ, direction or order;

(ii) Call for the records relating to Exhibit P12 complaint filed before the 3rd respondent and quash the same by issue of a writ of certiorari or such other appropriate writ, direction or order;

W.A.Nos.1911 & 1912 of 2022

(iii) Stay the operation and implementation of all further proceedings pursuant to Exts. P15 and P16 and further proceedings in O. P. No. 465 of 2021 before the 3rd Respondent pending final disposal of the present writ petition."

3. Yet another writ petition, W.P.(C)No.6706 of 2022, was

also filed by the very same petitioner for the following reliefs:

"(i) Call for the records relating to Exhibits P5 Order dated 23.11.2021 issued by the 3rd Respondent and Exhibit P6 Stop Memo dated 25.11.2021 issued by the 1 st Respondent and quash the same by issue of a writ of certiorari or such other appropriate writ, direction or order;

(ii) Stay the operation and implementation of all further proceedings pursuant to Exts. P5 and P6 pending final disposal of the present writ petition."

4. As both the writ petitions pertain to the jurisdiction of

the Ombudsman for Local Self Government Institutions in

entertaining complaints against construction of buildings based

on building permits issued by the Local Self Government

Departments, they were taken up together and after

considering the rival submissions; Chapter XXVB of the Kerala W.A.Nos.1911 & 1912 of 2022

Panchayat Raj Act, 1994, in particular, Section 271(F)(1)(b),

Sections 29 and 30 of the Kerala Municipalities Act and the

decisions of this court in Mayor of Kochi v. Ombudsman For

Local Self Government Institutions reported in 2004 (2) KLT

621, Reghuvara Panicker R. v. Secretary, Maranallur Grama

Panchayat & Anr. reported in 2009 (4) KHC 170, Krishnan Nair

v. Secretary, Corporation of Thiruvananthapuram reported in

2010 (2) KLT 128, Kulukkalloor Grama Panchayat v.

Ombudsman for Local Self-Govt. Institutions & Ors. reported

in 2013 (2) KHC 133 and Fr.Laberin Yesu V. K.Biju, I.A.S. and

Others reported in (2020 (5) KHC 552), writ court, vide

judgment dated 22.11.2022, ordered thus:

"9. In the case on hand, a reading of the complaint filed before the Ombudsman would show that it relates to the manner in which the petitioner is carrying out the construction on the strength of the building permit which has been issued to him. The allegations are that the construction is made violating the Building Rules and that even though complaints were filed before the Secretary of the Municipality, action is not being taken. It is stated that W.A.Nos.1911 & 1912 of 2022

the Municipality is helping violators and hence the Ombudsman may intervene. A reading of the complaint would show that without a finding by appropriate authority regarding the violation of the Building Rules in the construction that has been effected by the petitioner, an action before the Ombudsman would not be possible in terms of Section 271M(4). The Municipality Building Rules contains several provisions regarding the manner in which the construction is to be carried out and the power of the Secretary to regulate construction that is being made on the basis of building permit which has been issued. A complaint regarding violation can only be taken up before the Tribunal and if the Tribunal renders a finding in favour of the 3rd respondent, necessarily, the 3rd respondent will be able to maintain an application before the Ombudsman, if he has a case that the violations have been permitted by the Officials of the Corporation by action or inaction which can be brought within the meaning of the word "maladministration". I am in respectful agreement with the view expressed by this Court in Fr.Laberin Yesu (supra).

In the above view of the matter, the petitioner is entitled to succeed in these writ petitions. The order Ext.P5 dated 23.11.2021 in W.P.(C)No.26781 of 2021 is quashed.

The order Ext.P15 issued by the 3rd respondent and Ext.P16 issued by the 4th respondent in W.P.(C)No.6706 of 2022 are also quashed. It is declared that Ext.P12 complaint is not W.A.Nos.1911 & 1912 of 2022

maintainable before the 3rd respondent. The Secretary of the Thrikkakara Municipality, who is the 1st respondent, has to consider whether Ext.P6 stop memo dated 25.11.2021 has to be continued, untramelled by the orders issued by the 3rd respondent. It is made clear that this Court has not expressed any view regarding the merits of the allegations contained in the complaint filed by the 2 nd respondent before the 3rd respondent and all the contentions of the 2 nd respondent as against the construction that is being effected by the petitioner are left open to be agitated before the appropriate forum."

Being aggrieved, instant writ appeals are filed.

5. Mr.Joseph Markos, learned Senior Counsel for the

Prestige Estates Projects Limited, Kochi/respondent No.1 in

both the appeals submitted that construction, as per the

permit granted, has already been completed and occupancy

certificate issued. Said submission is placed on record.

6. Considering the grounds raised, we are inclined to

adjudicate the same.

W.A.Nos.1911 & 1912 of 2022

Though Mr.Manu Ramachandran, learned counsel for the

appellant has sought for a stay of the operation of the common

judgment in W.P.(C)Nos.26781 of 2021 and 6706 of 2022 dated