High Court of KeralaSingle Judge2024-05-28Writ Petition allowed; Ombudsman proceedings qu...

Vivek Rajapadmanabhan & Aruna Prabhakaran v. Sarath Chandran V.K, Kozhikode Corporation (represented by its Secretary) and The Ombudsman for Local Self Government Institutions

Case / Petition Number:W. P. (C) No. 21995 of 2022

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: MOHAMMED NIAS C. P.
Judgment Date: 2024-05-28
Court Decision / Holding: Writ Petition allowed; impugned Ombudsman proceedings quashed; time-bar under Section 271 applicable; petitioners may pursue civil remedies if aggrieved by the construction.
Final Disposition: Writ Petition allowed; Ombudsman proceedings quashed; time-bar under Section 271; potential civil remedy left open

Parties to the Case

Appellants / Petitioners

Vivek Rajapadmanabhan
Aruna Prabhakaran

Respondents

Sarath Chandran V.K
The Secretary, Kozhikode Corporation
Kozhikode Corporation represented by its Secretary
The Ombudsman for Local Self Government Institutions

Legal Representation & Advocates

Counsels for Petitioners

• Adv. M.S. AVM Salahuddeen
• Adv. A. D. Divya
• (solicitor)

Counsels for Respondents

• Adv. Sri Anil Kumar K.P.
• Adv. Sri G. Santhosh Kumar (P.)
• Adv. Smt. P.K. Reshma (Kalarickal)

Case Synopsis & Summary

The petitioners, builders who obtained a building permit on 19 November 2009, constructed an apartment complex that subsequently attracted a complaint. The 1st respondent lodged the complaint with the Kozhikode Corporation on 23 February 2010, and the Corporation replied that there was no violation of building rules (Exts R1(B), R1(C)). In 2015, the 1st respondent filed a complaint before the Ombudsman for Local Self Government Institutions; the Corporation produced an expert committee report indicating no violation, and the Ombudsman issued several orders (Exts P3, P4, P7). The writ petition filed on 5 July 2022 challenged the Ombudsman proceedings, contending that the Ombudsman lacked jurisdiction under Section 271 of the Kerala Panchayat Raj Act, 1994, to entertain the complaint, and sought quashing of the proceedings. Counsel for the petitioners relied on Jyothi T.P. v. Ratnakaran and Others (2019 (1) KHC 459) to argue lack of jurisdiction. Counter submissions argued that the Corporation did act on the complaint, and that inaction could constitute maladministration, citing WP(C). No. 31941/2009. The Court held that while inaction can amount to maladministration in some circumstances, here the Corporation did act; moreover, the complaint before the Ombudsman was time-barred under Sec. 271. Consequently, the Ombudsman proceedings cannot be sustained, and the Writ Petition is allowed with the impugned orders quashed. The Court clarified that factual adjudication of permit violations cannot be done in this writ petition and left open the possibility of Civil Court relief for injuries, if any.

Provisions of Law Cited

Section 271, Kerala Panchayat Raj Act, 1994Article 226, Constitution of India

Legal Doctrines & Maxims

Maladministration (doctrine)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the Ombudsman lacked jurisdiction under Section 271 of the Kerala Panchayat Raj Act, 1994 to entertain the complaint, and that the proceedings are inexecutable. They rely on Jyothi T.P. v. Ratnakaran (2019 (1) KHC 459) to argue lack of jurisdiction. They emphasize that the building was constructed under a valid permit and that the Ombudsman proceedings are time-barred given the earlier complaint to the Corporation in 2010 and the complaint to Ombudsman only in 2015, with delay beyond statutory limits. They suggest that if any injury occurred, civil remedies should be sought rather than quashing the permit without adjudication of factualities.

Contentions of Respondents

The respondents assert that the Corporation did address the complaint (Exts R1(B), R1(C)) and that the Ombudsman’s inquiry was a valid exercise in ensuring public administration. They point to the expert committee report supporting no violation and argue that the petition cannot be sustained on mere jurisdictional objections since the Corporation acted on the complaint. They rely on the principle that maladministration may include inaction, as discussed in WP(C). No. 31941/2009, but contend that the present case involved timely action by the Corporation, and the petitioner delayed filing with the Ombudsman, rendering the proceedings time-barred under Section 271.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Jyothi T.P. v. Ratnakaran and Others	2019 (1) KHC 459	Mentioned Only	Cited by petitioners to argue lack of Ombudsman jurisdiction, but the court did not adopt this reasoning as the basis for its final decision; the decision rests on time-bar and factual actions by the Corporation.
WP(C). No. 31941/2009	dated 20.2.2013	Distinguished	Cited to support that inaction can amount to maladministration; however, the present case involved actual action by the Corporation, leading the court to distinguish this precedent.

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Extracted Judgment Text

Exact text extracted from official judgment records.

W. P. (C) No. 21995 of 2022 ..1.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **TUESDAY, THE 28[TH] 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 **==> picture [19 x 7] intentionally omitted <==** **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 ..3.. MOHAMMED NIAS C. P. , J. ============================ W. P. (C) No. 21995 of 2022 ============================ Dated this the 28[th] day of May, 2024 ## J U D G M E N T 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 1[st] 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 W. P. (C) No. 21995 of 2022 **==> picture [19 x 9] intentionally omitted <==** 1[st] 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 W. P. (C) No. 21995 of 2022 **==> picture [18 x 9] intentionally omitted <==** the same. 4. The learned counsel for the 1[st] 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 1[st] respondent, the Corporation had acted and passed Exts.R1(b) and R1(c), which are produced by the 1[st] 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 W. P. (C) No. 21995 of 2022 ..6.. 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. **==> picture [21 x 9] intentionally omitted <==** MOHAMMED NIAS C. P., JUDGE MMG W. P. (C) No. 21995 of 2022 ..7.. ## **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** **EXHIBIT P4** **EXHIBIT P5** **TRUE COPY OF THE ORDER DATED 28/04/2016 PASSED BY THE 4TH RESPONDENT IN COMPLAINT NO. 1599/2015. TRUE COPY OF THE ORDER DATED 08/04/2022 PASSED BY THE 4TH RESPONDENT IN CMP. NO. 16/2019 IN COMPLAINT NO. 1599/2015. 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.** ..8.. W. P. (C) No. 21995 of 2022 - **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**