Kerala High Court
Vivek Rajapadmanabhan vs Sarath Chandran V.K on 28 May, 2024
W. P. (C) No. 21995 of 2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 21995 OF 2022
PETITIONERS:
1 VIVEK RAJAPADMANABHAN, AGED 64 YEARS,
3/444, KAILASH, NADAKAVU P.O., KOZHIKODE - 673
011.
2 ARUNA PRABHAKARAN,
3/444, KAILASH, NADAKAVU P.O., KOZHIKODE - 673
011.
BY ADVS.M/S.AVM.SALAHUDIN & A.D.DIVYA
RESPONDENTS:
1 SARATH CHANDRAN V.K
3/701, VENAD, WEST NADAKAVU, KOZHIKODE -673 011.
2 THE SECRETARY,
KOZHIKODE CORPORATION, KOZHIKODE - 673 001.
3 KOZHIKODE CORPORATION
REPRESENTED BY ITS SECRETARY, KOZHIKODE
CORPORATION, KOZHIKODE - 673 001.
4 THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT
INSTITUTIONS,
THIRUVANANTHAPURAM, PIN- 695 001.
W. P. (C) No. 21995 of 2022
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BY ADV. SRI.ANIL KUMAR K.P., FOR R1
ADV. SRI. G.SANTHOSH KUMAR (P)., FOR R2 & R3
ADV.SMT.P.K.RESHMA (KALARICKAL) FOR R4
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W. P. (C) No. 21995 of 2022
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MOHAMMED NIAS C. P. , J.
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W. P. (C) No. 21995 of 2022
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Dated this the 28th day of May, 2024
JUDGMENT
The Writ Petition is preferred by builders who were granted a
building permit on 19.11.2009 based on which an apartment complex was
constructed. The 1st respondent had preferred a complaint against the
construction made by the writ petitioners, which is evidenced by the
receipt issued by the Corporation dated 23.2.2010. The Corporation
considered the complaint and gave replies, as Ext.R1(b) and R1(c),
stating that there is no violation of the building rules. Dissatisfied by the
reply given by the Corporation, in the year 2015, the 1st respondent made
a complaint before the Ombudsman for the Local Self Government
Institutions, Ext.P1. Before the Ombudsman, the Corporation had
produced a copy of the report of the expert committee appointed by the
Corporation, who opined that the cracks in the building of the
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1st respondent cannot be said to be caused due to the construction
effected by the writ petitioners. The Ombudsman found that the expert
committee did not look into all aspects raised by the 1 st respondent and
passed Exts.P3, P4 and P7 orders. The writ petitioners had given Ext.P6
statement before the Ombudsman. This Writ Petition was filed on
5.7.2022 challenging the proceedings initiated before the Ombudsman,
mainly contending that the Ombudsman did not have power under
Section 271 of the Kerala Panchayat Raj Act, 1994, to entertain the
complaint and sought to quash the proceedings before him.
2. The learned counsel for the petitioners, Sri.A.V.M.Salahuddeen,
cites the judgment of this Court in Jyothi T.P. v. Ratnakaran and Others
[2019 (1) KHC 459] to say that the Ombudsman does not have the
jurisdiction to entertain the complaint.
3. Counter affidavits have been filed on behalf of the 1 st respondent
(complainant) as well as the Corporation. The Corporation points out, on
facts, that there is no violation in the construction made by the writ
petitioners and that, based on the complaint preferred by the 1 st
respondent, an expert committee was appointed, which had also opined
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the same.
4. The learned counsel for the 1st respondent brings to my notice
the judgment in WP(C). No. 31941/2009 dated 20.2.2013 to argue that,
the inaction on the part of the Corporation, in not answering the
complaint preferred by a party, would also come within the ambit of the
term 'maladministration', as held in the above judgment.
5. True, inaction on the part of an official in not considering a
complaint which alleged violation of building rules would come within
the expression 'maladministration'. However, in this case, it is seen that
pursuant to the complaint given by the 1st respondent, the Corporation had
acted and passed Exts.R1(b) and R1(c), which are produced by the
1st respondent himself. It cannot be said that the Corporation did not act
on the complaint made by the 1 st respondent. Under such circumstances,
the complaint before the Ombudsman, made five years after the
complaint he preferred to the Corporation in the year 2010, must be held
as time-barred as well, going by the statutory provisions of Sec.271 of the
Act. That apart, the counter filed by the Corporation shows no violation
in the construction made by the writ petitioners. For the reasons
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mentioned above, the proceedings before the Ombudsman cannot be
sustained. Accordingly, the Writ Petition is allowed, and the impugned
orders are quashed.
6. In the nature of the proceedings before this Court, under Article
226 of the Constitution of India, factual adjudication on the alleged
violations of the permit or the building rules cannot be effectively made.
Needless to say, if it is the complaint of the 1 st respondent that though the
construction is in accordance with the permit granted, it will be open to
him to establish, that he has suffered injury on account of the construction
made by the writ petitioners, before the Civil Court. Except for the
matters considered in this Writ Petition, all other contentions of the
parties are left open.
Subject to the above, the Writ Petition is allowed accordingly.
Sd/-
MOHAMMED NIAS C. P., JUDGE
MMG
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APPENDIX OF WP(C).NO.21995/2022
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE COMPLAINT NO.
1599/2015 DATED 31/08/2015 FILED BY
THE 1ST RESPONDENT BEFORE THE 4TH
RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE STATEMENT DATED
22/04/2016 FILED BY THE 2ND RESPONDENT
BEFORE THE 4TH RESPONDENT IN COMPLAINT
NO. 1599/2015.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED
28/04/2016 PASSED BY THE 4TH
RESPONDENT IN COMPLAINT NO. 1599/2015.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED
08/04/2022 PASSED BY THE 4TH
RESPONDENT IN CMP. NO. 16/2019 IN
COMPLAINT NO. 1599/2015.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED
12/05/2022 PASSED BY THE 4TH
RESPONDENT IN CMP. NO. 16/2019 IN
COMPLAINT NO. 1599/2015.
EXHIBIT P6 TRUE COPY OF THE STATEMENT DATED
06/06/2022 FILED BY THE PETITIONERS IN
COMPLAINT NO. 1599/2015.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED
10/06/2022 PASSED BY THE 4TH
RESPONDENT IN CMP. NO. 16/2019 IN
COMPLAINT NO. 1599/2015.
EXHIBIT P8 PHOTOGRAPH OF THE DISPUTED PROPERTY.
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EXHIBIT P9 PHOTOGRAPH OF THE PETITIONERS SITE
EXHIBIT P10 PHOTOGRAPH OF THE PETITIONERS SITE
EXHIBIT P11 PHOTOGRAPH OF THE PETITIONERS SITE
RESPONDENTS' EXHIBITS:
EXHIBIT R1(A) TRUE COPY OF THE RECEIPT BEARING
NO.14922 DT.23/2/2010 ISSUED BY THE
2ND RESPONDENT
EXHIBIT R1(B) TRUE COPY OF THE NOTICE ISSUED BY THE
3RD RESPONDENT TO THE PETITIONER
EXHIBIT R1(C) TRUE COPY OF STOP MEMO DT.28/9/2010
EXHIBIT R1(D) TRUE COPY OF THE COMMUNICATION FROM
3RD RESPONDENT DT.08-12-2010
EXHIBIT R2 TRUE COPY OF SANCTIONED PLAN
EXHIBIT R3 TRUE COPY OF THE REPORT
EXHIBIT R4 TRUE PHOTOGRAPHS OF THE NAME BOARD
ATTACHED TO THE BUILDING
ANNEXURE R1(H) TRUE COPY OF THE EXPERT COMMITTEE
REPORT DATED 25.1.2022
