Ombudsman for Local Self Government Institutions v Prestige Estates Projects Limited and Others

# **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 22[ND] DAY OF DECEMBER 2022 / 1ST POUSHA, 1944 WA NO. 1959 OF 2022** **AGAINST THE JUDGMENT DATED 22.11.2022 IN WP(C) NO.** **26781/2021 OF HIGH COURT OF KERALA** **APPELLANT/3RD RESPONDENT IN W.P.(C.):** **THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS SAPHALYAM COMPLEX, 4TH FLOOR, TRIDA BUILDING, UNIVERSITY P.O., THIRUVANANTHAPURAM, PIN – 695034** **BY ADV. P.K.RESHMA (KALARICKAL)** ## **RESPONDENTS/WRIT PETITIONER AND RESPONDENTS 1 AND 2 IN WP(C):** **1 PRESTIGE ESTATES PROJECTS LIMITED, 801, 8TH FLOOR, PRESTIGE TMS SQUARE, NH 66, BYPASS, PADIVATTOM, EDAPALLY, KOCHI, REPRESENTED BY ITS ASSISTANT VICE PRESIDENT MR. SUNIL KUMAR K., PIN – 682024** **2 THE SECRETARY, THRIKKAKARA MUNICIPALITY KAKKANAD, ERNAKULAM, KOCHI, PIN – 682030** W.A. No. 1959/2022 2 **3 BRINNER M.D.J. JOINT SECRETARY, LINK VALLEY RESIDENTS ASSOCIATION, RESIDING AT LIVRA -8, LINK VALLEY, KUSUMAGIRI P.O, KAKKANAD, KOCHI, PIN – 682030** **BY ADVS.JOSEPH MARKOSE (SR.) MANU RAMACHANDRAN ABRAHAM JOSEPH MARKOS** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A. No. 1959/2022 3 ## **JUDGMENT** ## S. Manikumar, C.J. W.P.(C.) Nos. 26781/2021 and 6706/2022 have been filed by Prestige Estates Project Limited represented by its Assistant Vice President questioning the jurisdiction of the Ombudsman for Local Self Government Institutions in entertaining complaints against the construction of buildings based on the building permits issued by the Local Self Government Institutions. 2. After considering the rival submissions, writ court, vide a common judgment in W.P.(C.) Nos. 26781/2021 and 6706/2022, dated 22.11.2022 held that the petitioner therein is entitled to succeed in the writ petitions. Accordingly, quashed Ext.P5, dated 23.11.2021, issued by the Ombudsman for Local Self Government Institutions – the 3[rd] respondent in W.P.(C.) No. 26781/2021. 3. Writ court also quashed Ext.P15, dated 19.01.2022, issued by the Ombudsman for Local Self Government Institutions, Thiruvananthapuram - respondent W.A. No. 1959/2022 4 No. 3 therein and Ext.P16, dated 23.02.2022, issued by the Regional Joint Director, Department of Urban Affairs – the 4[th] respondent in W.P.(C.) No. 6706 of 2022. Writ court issued further directions. 4. Being aggrieved, the Ombudsman for Local Self Government Institutions, Thiruvananthapuram has filed this writ appeal by referring to Rule 8(1) and (2) of the Tribunal for Local Self Government Institutions Rules, 1999. Appellant has also relied on Rule 108(3) of the Kerala Municipality Building Rules, 2019, and Section 30 of the Kerala Municipality Act, 1994, in support of the prayer, sought for in the appeal for reversal of the judgment in W.P.(C.) No. 26781/2021 dated 22.11.2022. 5. Today, when the matter came up for admission, Mr. Abraham Joseph Markos, learned counsel appearing for Prestige Estates Projects Limited – respondent No. 1 submitted that the issue is squarely covered by a Division Bench judgment of this Court, dated 07.11.2013 in W.A. No. 1123 of 2013, **State of Kerala and Others v. M. Noushad** W.A. No. 1959/2022 5 **and Others** , wherein, when State of Kerala and two of its officers, in their official capacity challenged decision of the writ court rendered in a writ petition, which was fundamentally, between the Manager of an aided school and a teacher appointed in that school, dismissed the appeal. 6. Short judgment in W.A. No. 1123 of 2013 dated 07.10.2013 is extracted:- “This appeal by the State of Kerala and two of its officers in their official capacity, is against a judgment of a learned single Judge rendered in a litigation, which is fundamentally, between the manager of an aided school and a teacher appointed in that school. 2. Though bias was alleged against the officer who issued the Order on behalf of the Government, the learned single Judge's judgment does not proceed on such a ground. That officer has also not filed an appeal though he was personally impleaded on the basis of the allegations of bias etc. 3. The revisional decision rendered by the Government is under Rule 92 of Chapter XIV A of KER, which is essentially one in the nature of quasi judicial adjudication in exercise of revisional powers. This is the format and setting in which the various sub rules under Rule 92 of Chapter XIV A are couched. The repository of such power of revision W.A. No. 1959/2022 6 would not have the authority to support its decision, when that is questioned in a competent judicial forum either by way of writ proceedings or otherwise. See for support, **Syed Yakoob v. K.S.Radhakrishnan** [AIR 1964 SC 477], in which the Constitutional Bench, as can be learnt from what is stated in paragraph 19 of that judgment, laid down that unless allegations are made against the repositories of such power which need a reply from them, such authorities ought not to support such decisions, when under challenge before a superior court or authority. Their Lordships clearly laid down that, in ordinary cases, position of such authorities is like that of courts and other tribunals against whose decisions writ proceedings are filed. They are not interested in the merits of the disputes in any sense, and so, their representation or any particular stand taken by them in such actions before superior courts or tribunals would be even inappropriate. The only exceptional circumstance carved out to this principle is that such authority should have the opportunity to answer any plea of personal mala fides, bias or other personal actuations. No such allegation surfaces in this case after the verdict rendered by the learned single Judge. Not only that, there was no such allegation against the Government even before the learned single Judge. Therefore, we are clear in our mind that this writ appeal at the instance of the State of Kerala and two of its officers in their official capacity, as against the impugned judgment is inappropriate. W.A. No. 1959/2022 7 4. Based on the aforesaid situations, the learned Senior Government Pleader sought leave to withdraw the writ appeal. This appeal is accordingly dismissed without prejudice to the contentions in W.A.No.917/2013 filed by the manager and others against the impugned judgment.” 7. Perusal of the said judgment, stated supra, shows that the Division Bench has considered judgment of the Supreme Court in **Syed Yakoob v. K.S. Radhakrishnan** reported in [AIR 1964 SC 477(Constitutional Bench)]. 8. Lis between Prestige Estates Projects Limited represented by its Assistant Vice President and the Secretary, Thrikkakara Municipality and Others, is questioning the jurisdiction of the Ombudsman for Local Self Government Institutions represented by its Secretary, the appellant/3[rd] respondent in both the writ petitions. 9. Writ court decided that the Ombudsman for Local Self Government Institutions represented by its Secretary has no jurisdiction to entertain the complaints and accordingly, quashed the exhibits as stated supra. In the W.A. No. 1959/2022 8 light of the discussion, we are of the view that Ombudsman cannot be said to be an aggrieved party so as to maintain a writ appeal. 10. Following the decision of the Hon'ble Division Bench of this Court in W.A.No.1123/2013, dated 07.10.2013 and for the reasons stated supra, we have no hesitation to hold that the Ombudsman for Local Self Government Institutions, is not an aggrieved party and accordingly, writ appeal is not maintainable. The writ appeal is dismissed as not maintainable. Sd/- **S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** DCS/22.12.2022