Allowed

M/S. Sma Restaurant & Services (Pvt) Ltd. v. State of Kerala

Kerala HC20 Dec 2012WP(C)/26589/2012

Case brief

AI extract

What is this about?

This writ petition challenged an interim order passed by the Ombudsman directing a Corporation not to grant a licence to start a Pizza Hut. The High Court held the Ombudsman exceeded jurisdiction by adjudicating a dispute between private parties rather than investigating maladministration.

What did the court decide?

Ext.P9 interim order passed by the Ombudsman denying permission to start a Pizza Hut and directing the Corporation not to grant a licence is set aside.

M/S. Sma Restaurant & Services (Pvt) Ltd. Vs State of… — Landlord and Tenant | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID

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THURSDAY, THE 20TH DAY OF DECEMBER 2012/29TH AGRAHAYANA 1934

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WP(C).No. 26589 of 2012 (W)

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PETITIONER(S):

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M/S. SMA RESTAURANT & SERVICES (PVT) LTD., HAVING ITS REGISTERED OFFICE D-9/1 INDUSTRIAL ESTATE, MARAIMALAI NAGAR, KANCHIPURAM DISTRICT-603 209 HAVING ITS BRANCH OFFICE AT TRIVANDRUM, REPRESENTED BY POWER OF ATTORNEY HOLDER RAHUL R., AGED 24, S/O.RAJASEKHARAN NAIR.

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BY SRI.S.SREEKUMAR,SENIOR ADVOCATE BY ADV. SRI.THOMAS P.KURUVILLA

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SRI.K.PAUL KURIAKOSE

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RESPONDENT(S):

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1. STATE OF KERALA,

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REPRESENTED BY SECRETARY SELF GOVERNMENT INSTITUTIONS

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(RA) DEPARTMENT, GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM-695 001.

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2. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM-695 001.

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3. THE CORPORATION OF TRIVANDRUM REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM-695 014.

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4. M/S.NIKUNJAM CONSTRUCTIONS PRIVATE LIMITED HAVING ITS OFFICE AT TC 4/2554-5, INDRAPRASTHAM PATTOM P.O., THIRUVANANTHAPURAM-695 004 REPRESENTED BY ITS MANAGING DIRECTOR S.KRISHNAKUMAR.

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..2/-

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WPC.NO.26589/2012 W

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5. BINDU PRAKASH,

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FLAT NO.7C, NIKUNJAM HARMONY, ISWARA VILSOM ROAD, JAGATHY,THIRUVANANTHAPURAM, POWER OF ATTORNEY HOLDER

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P.K.S. NAIR, PRESIDENT OF NIKUNJAM HARMONY, APARTMENT OWNERS ASSOCIATION, SASTHAMANGALAM, THIRUVANANTHAPURAM-695 010.

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6. DR.RENUKA VIJAYALAKSHMI AMMA, NIKUNJAM HARMONY, APARTMENT OWNERS ASSOCIATION, SASTHAMANGALAM, THIRUVANANTHAPURAM, PIN - 695 010.

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7. P.K.SREEDHARAN NAIR, FLAT NO.11A, NIKUNJAM HARMONY, VELLAYAMBALAM, THIRUVANANTHAPURAM, PIN - 695 001.

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8. B.MANIKANDAN, FLAT NO.10A, NIKUNJAM HARMONY, APARTMENT OWNERS ASSOCIATION, SASTHAMANGALAM, THIRUVANANTHAPURAM, PIN - 695 010.

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*ADDL.R9 IMPLEADED:

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R9. NIKUNJAM HARMONY APARTMENT OWNERS' ASSOCIATION (NIHAAS) REGN.NO.T43/2011, 11A, NIKUNJAM HARMONY, VELLAYAMBALAM, SASTHAMANGALAM PO, TRIVANDRUM - 695 010, REPRESENTED BY ITS PRESIDENT P.K.SREEDHARN NAIR.

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**(ADDL.R9 IS IMPLEADED AS PER ORDER DTD. 19/12/2012 IN*

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I.A.NO.15519/2012)

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R1 & R2 BY GOVERNMENT PLEADER SRI. NOUSHAD THOTTATHIL R3 BY ADV. SRI. P.K.MANOJKUMAR R4 BY ADV. SRI.MILLU DANDAPANI R5,6,7 &R8 BY ADV. DR.K.P.PRADEEP ADDL R9 BY SRI.K.K.CHANDRAN PILLAI,SENIOR ADVOCATE BY ADV. SRI.THOMAS JAMES MUNDACKAL SRI.BOBBY THOMAS SRI.ARUN ANTONY SRI.R.ANAS MUHAMMED SHAMNAD

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-12-2012 ALONG WITH WPC. NO.21723/2012 AND WPC. NO. 27119/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC.NO.26589/2012 W

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1. TRUE COPY OF NO OBJECTION CERTIFICATE (FINAL) DATED 3/2/2011 ISSUED BY THE FIRE AND RESCUE SERVICES.

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EXHIBIT P2. TRUE COPY OF APPROVED COMPLETION PLANS ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P3. TRUE COPY OF ORDER DATED 5/4/2011 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P4. TRUE COPY OF OCCUPANCY CERTIFICATE ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P5. TRUE COPY OF PROPERTY TAX ASSESSMENT INDEX SHEET.

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EXHIBIT P6. TRUE COPY OF LICENCE DEED DATED 3/5/2012 ENTERED BETWEEN PETITIONER WITH THE 4TH RESPONDENT.

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EXHIBIT P7. TRUE COPY OF RECEIPT FOR PAYMENT OF LICENCE FEES ISSUED IN THE NAME OF THE MANAGING DIRECTOR OF THE PETITIONER.

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EXHIBIT P8. TRUE COPY OF GOVERNMENT NOTIFICATION G.O.(MS) NO.144/07/LSGD DATED 31/5/2007.

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EXHIBIT P9. TRUE COPY OF THE ORDER DATED 29/10/2012 ISSUED BY THE 2ND RESPONDENT.

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EXHIBIT P10. TRUE COPY OF THE ORDER IN IA NO.2740/2012 IN OS NO.717/2012 OF SUB COURT, TRIVANDRUM.

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EXHIBIT P11. TRUE COPY OF ORDER IN I.A. NO.191/2012 IN CC NO.356/2011 OF THE CONSUMER DISPUTES REDRESSAL FORUM, TRIVANDRUM DATED 7/7/2012.

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EXHIBIT P12. TRUE COPY OF OP NO.1619/2011 FILED BEFORE THE 2ND RESPONDENT BY RESPONDENTS 5 TO 8.

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EXHIBIT P13. TRUE COPY OF THE STATEMENT DATED 28/7/2012 FILED BY THE 3RD RESPONDENT.

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RESPONDENT'S EXHIBITS:

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R7(A): COPY OF THE BUILDING PERMIT NO.TP2/BA/2265/6 DTD. 21/02/2007 ISSUED BY THE ASSISTANT TOWN PLANNING OFFICER, CORPORATION OF THIRUVANANTHAPURAM.

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Kss ..2/-

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..2....

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WPC.NO.26589/2012 W

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R7(B): COPYOF THE OCCUPANCY CERTIFICATE NO.E5/38180/10 DTD. NIL ISSUED BY THE CORPORATION OF THIRUVANANTHAPURAM.

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R7(C): COPY OF THE ORDER NO.910/11 DTD. 5/04/2011 OF THE SECRETARY, THIRUVANANTHAPURAM CORPORTION.

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R7(D): TRUE BLACK AND WHITE COPY OF THE OFFER BROCHURE OF NIKUNJAM HARMONY APARTMENTS.

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R7(E): COPY OF THE ORDER DTD. 20/06/2008 IN O.P.NO.479 OF 2008 OF THE 2ND RESPONDENT.

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R7(F): COPY OF THE STATEMENT FILED BY THE 4TH RESPONDENT BEFORE THE 2ND RESPONDENT IN O.P.NO.479 OF 2008.

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R7(G): COPY OF THE COMPLAINT NO.356 OF 2011 FILED BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVANANTHAPURAM.

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R7(H): COPY OF THE ORDER IN I.A.NO.335/2011 IN CC.NO.356 OF 2011 DTD. 16/11/2011 OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVANANTHAPURAM.

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R7(I): COPY OF THE ORDER DTD. 07/07/2012 IN I.A.NO.191/2012 IN CC.356/2011 DTD. 07/07/2012 OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVANANTHAPURAM.

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R7(J): COPY OF THE ORIGINAL PETITION NO.579 OF 2012 FILED BY BINDU PRAKASH AND ANOTHER FILED BEFORE THE HONOURABLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

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R7(K): COPY OF THE ORDER DTD. 06/07/2012 IN O.P.NO.579 OF 2012 OF THE HONOURABLE OMBUDSMAN, LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

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R7(L): COPY OF THE ORDER DTD. 30/07/2012 IN O.P.NO.579 OF 2012 OF THE HON'BLE OMBUDSMAN FOR THE LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

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R7(M): COPY OF THE JUDGMENT DTD. 08/08/2012 IN WPC.NO.18741 OF 2012 OF THIS HON'BLE COURT.

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R7(N): COPY OF THE ORDER DTD. 07/09/2012 IN O.P.NO.579 OF 2012 OF THE HON'BLE OMBUDSMAN, LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

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R7(O): COPY OF THE REPORT NO.1791 OF 2012 DTD. 28/09/2012 OF THE REGIONAL JOINT DIRECTOR OF URBAN AFFAIRS, KOLLAM FILED BEFORE THE 2ND RESPONDENT.

..3/-

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R7(P): COPY OF THE MEMO NO.B1/2187/2012 DTD. 19/07/2012 OF THE DIVISIONAL OFFICER, FIRE AND RESCUE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.

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R7(Q): COPY OF THE REPORT DTD. 17/07/2012 OF THE SENIOR TOWN PLANNER (VIGILANCE), LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

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R7(R): COPY OF THE O.S.NO.717 OF 2012 FILED BY THE 4TH RESPONDENT BEFORE THE SUB COURT, THIRUVANANTHAPURAM.

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R7(S): COPY OF THE I.A.NO.2740 OF 2012 ON THE FILES OF SUB COURT, THIRUVANANTHAPURAM WITHOUT ANNEXURE.

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R7(T): COPY OF THE ORDER DTD. 06/07/2012 IN I.A.NO.2740 OF 2012 OF THE SUB COURT, THIRUVANANTHAPURAM.

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R7(U): COPY OF THE APPEAL MEMORANDUM IN FAO NO.250 OF 2012 ON THE FILES OF THIS HON'BLE COURT.

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R7(V): COPY OF THE COMPLETION CERTIFICATE DTD. 28/01/2010 PRODUCED BY THE 4TH RESPONDENT BEFORE THE 3RD RESPONDENT CORPORATION.

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R7(W):COPY OF THE INFORMATIONI NO.E5/JSK/RIA/833/12 DTD. 03/09/2012 ISSUED BY THE PUBLIC INFORMATION OFFICER, CORPORATION OF THIRUVANANTHAPURAM.

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R7(X): COPY OF THE ORDER NO.41653/RA 2/12/LSGD DTD. 2/11/2012 ISSUED BY THE 1ST RESPONDENT.

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R7(Y): COPY OF THE POSTAL RECEIPTS EVIDENCING THE MAILING OF LETTER DTD. 30/06/2012.

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R9(A): COPY OF STATEMENT FILED BY THE 4TH RESPONDENT BEFORE THE OMBUDSMAN DTD.NIL.

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R9(B): COPY OF ORDER PASSED BY THE 2ND RESPONDENT IN O.P.NO.479/2008 DTD. 20/06/2008.

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R9(C): COPY OF THE PERMIT ISSUED BY THE 3RD RESPONDENT DTD.21/2/2007.

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R9(D): COPY OF AGREEMENT EXECUTED BETWEEN THE 4TH RESPONDENT AND THE ADDITIONAL 9TH RESPONDENT DTD. 4/09/2008.

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R9(E): COPY OF THE SALE DEED EXECUTED BY THE 4TH RESPONDENT WITH ONE OF THE OWNERS DTD. 5/10/2009.

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R9(F): COPY OF THE LETTER DTD. NIL GIVEN BY THE LAND OWNER TO THE 9TH RESPONDENT.

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R9(G): COPY OF THE ORDER ISSUED BY THE GOVERNMENT DTD. 2/11/2012.

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R9(H): COPY OF THE LETTER DTD. 3/11/2012 GIVEN BY THE 9TH RESPONDENT TO THE 3RD RESPONDENT.

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R9(I): COPY OF THE RECEIPT DTD. 3/11/2012 ISSUED BY THE 3RD RESPONDENT.

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R9(J): COPY OF THE INTERIM ORDER DTD. 6/07/2012 OF THE 2ND RESPONDENT.

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R9(K): COPY OF THE INTERIM ORDER DTD. 30/07/2012 OF THE 2ND RESPONDENT.

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R9(L): COPY OF INTERIM ORDER DTD. 7/09/2012 PASSED BY THE 2ND RESPONDENT.

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R9(M): COPY OF FORM OF COMPLETION CERTIFICATE DTD. 28/01/2010 GIVEN BY THE LAND OWNER.

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R9(N): COPY OF APPLICATION SUBMITTED FOR ASSESSMENT OF TAX DTD. 28/01/2010.

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R9(O): COPY OF LETTER DTD. 28/03/2011 SUBMITTED BY THE LAND OWNERS BEFORE THE 3RD RESPONDENT.

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R9(P): COPY OF REPORT DTD. 19/07/2012 FROM THE FIRE AND RESCUE DEPARTMENT.

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R9(Q): COPY OF INFORMATION RECEIVED BY THE 9TH RESPONDENT FROM THE 3RD RESPONDENT UNDER THE RIGHT TO INFORMATION ACT DTD. 7/11/2012.

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R9(R): COPY OF THE INFORMATION RECEIVED BY THE 9TH RESPONDENT FROM THE 3RD RESPONDENT UNDER THE RIGHT TO INFORMATION ACT DTD. 19/07/2012.

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R9(S): COPY OF THE INFORMATION RECEIVED BY THE 9TH RESPONDENT FROM THE 3RD RESPONDENT UNDER THE RIGHT TO INFORMATION ACT DTD. 3/09/2012.

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R9(T): COPY OF REPORT DTD. 28/09/2012 SUBMITTED BY THE REGIONAL JOINT DIRECTOR KOLLAM TO THE 2ND RESPONDENT.

/TRUE COPY/

P.A.TO JUDGE

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“C.R”

HARUN-UL-RASHID, J.

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W.P.(C).Nos.26589, 27119

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& 21723 Of 2012

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Dated this the 20^th day of December, 2012.

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J U D G M E N T

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Ext.P9 interim order dated 29.10.2012 passed by the Ombudsman for Local Self Government Institutions is under challenge in W.P.(C).Nos.26589/2012 & 27119/2012. Following the earlier ex-parte interim orders, the Ombudsman for Local Self Government Institutions passed Ext.P9 order dated 29.10.2012 stating that permission to start a Pizza Hut cannot be granted. The Ombudsman further directed the Corporation not to grant licence to start Pizza Hut. The petitioner in W.P.(C). No.26589/2012 is M/s.SMA Restaurant and Services Private Limited. The petitioner in W.P.(C).No.27119/2012 is M/s.Nikunjam Harmony Constructions Private Limited. The petitioners in W.P.(C).No.21723/2012 is the Nikunjam Harmony Apartment Owners Association and its President. The subject matter of the first two writ petitions is the legality and propriety

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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of the interim order passed by the Ombudsman and seeking consequential reliefs. The facts and exhibits produced in the writ petitions are more or less the same. The parties as arrayed in W.P.(C).No.26589/2012 and exhibits produced in the said writ petition are mentioned in this common judgment for brevity and for avoiding repetition.

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M/s.Nikunjam Constructions Private Limited

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(hereinafter referred to as 'the builder') is the builder of a multi storied residential cum commercial building having 36 apartments and having a plinth area of 7252.98 sqm consisting of basement floor, ground floor + 11 floors constructed in the property having an extent of 35.46 cents situated at Sasthamangalam Village, Thiruvananthapuram. M/s.SMA Restaurant and Services Private Limited, the petitioner in W.P. (C).No.26589/2012, under a licence deed entered into with the builder, took possession of the commercial portion in the ground floor for establishment of a restaurant. The builder is the 4^th respondent. Respondents 5 to 8 are the owners of apartments in the multi storied building named as Nikunjam Harmony.

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The 4^th respondent builder is the petitioner in W.P.(C).

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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No.27119/2012. Respondents 4 to 6 in the said writ petition are respondents 5, 7 & 8 respectively in W.P.(C).No.26589/2012. The 1^st petitioner in W.P.(C).No.21723/2012 is the Nikunjam Apartment Owners Association and the 2^nd petitioner is Sri.E.K.Sreedharan Nair, who is the 7^th respondent in W.P.(C). No.26589/2012 and 5^th respondent in W.P.(C).No.27119/2012. The Nikunjam Harmony Apartment Owners Association was later impleaded as additional 9^th srespondent in W.P.(C). No.26589/2012. The facts of the cases in brief are as follows:

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The multi storied building is constructed in an extent of 35.46 cents of properties in Sasthamangalam Village. The builder represented by the Managing Director had entered into an agreement with the land owners for the joint construction and development of multi storied building in the property of 35.46 cents of land. The agreement dated 13.11.2006 is produced as Ext.P2 in W.P(C).No.27119/2012. The land owners on the same day executed a power of attorney in favour of the Managing Director of the builder company. Pursuant to Ext.P2 agreement and power of attorney, the builder obtained licence and permission from the statutory authorities for the construction of a

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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multi storied building. Thereafter, a multi storied building was constructed in the name and style 'Nikunjam Harmony'. At the time of construction, portions of the ground floor and first floor are converted as commercial areas. During the course of construction the builder submitted a revised plan dated 15.5.2009 before the Corporation for approval. The Corporation approved the completion plan, regularised the construction and issued occupancy certificate. Ext.P2 series are the copies of the approved completion plans issued by the Corporation. Ext.P3 is the order dated 5.4.2011 issued by the Corporation regularising the construction. Thereafter, the Corporation issued occupancy certificate, a copy of which is marked as Ext.P4. The building has been assessed by the Corporation for the purpose of property tax. The property tax assessment index sheet for the commercial part of the ground floor and first floor are marked as Ext.P5. The multi storied building consists of 33 apartments. Portions of the ground floor and first floor are the commercial areas. As per the agreement between the builder and the land owners, commercial portion on the ground floor is allotted to the builder and area in the first floor is allotted to the land owners. The 7^th respondent,

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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who is the owner of one of the flat in the apartment, and few other apartment owners claimed that the building is intended as a residential one and therefore, using a portion of the building for commercial purpose is not permissible. According to the apartment owners, the builder violated the terms of the agreement with them and that the building has not been constructed as per the approved plan. The 7^th respondent and others contended that the apartment complex is a pure residential complex and there is an attempt on the part of the builder to convert a portion of the complex into commercial space which is illegal and the plan approved by the Corporation is violative of the agreement between the apartment owners and the builder. The owners of the apartments formed an Association. The 7^th respondent is the President. The association was impleaded as additional 9^th respondent. They have raised serious objections against the user of the ground floor as commercial area by M/s.SMA Restaurant and Services Private Limited.

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The 7^th respondent filed a complaint before the District Consumer Dispute Redressal Forum as C.C.No.356/2011. The

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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interim prayer sought for in C.C.No.356/2011 is for an order of injunction directing the builder not to let out the commercial space in the complex to others or otherwise to encumber the same or convert the same for any purpose other than for recreation of the inmates of the complex. The 7^th respondent is the owner of one of the apartments in the 11^th floor having an extent of 1960 sq.ft and a covered garage. Ext.P11 is the order passed by the Consumer Disputes Redressal Forum dismissing the application for injunction. The question examined by the Consumer Disputes Redressal Forum is as to whether the complainant, 7^th respondent herein, is entitled to get an order of injunction against the builder not to let out the commercial space in the ground floor of the multi storied complex to others or otherwise to encumber the same or convert the same for any purpose other than for recreation of the inmates of the complex. The complaint was filed stating that the recreation area earmarked in the plan which is a common area for which payments are made by the apartment owners is illegally converted into a hall, that the apartment complex is purely a residential complex and there is an attempt on the part of the

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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builder to convert a portion of the complex into a commercial space which is opposed to the plan and licence issued by the Corporation and is violative of the agreement. The complaint was filed alleging that the builder had taken steps to alienate the commercial portion on the ground floor to third parties so as to defeat and deny the interest of the complainant and other apartment owners of the complex. In the counter affidavit filed by the builder before the Consumer Disputes Redressal Forum, it was specifically pointed out that on 3.5.2012 the builder handed over possession of the commercial space on the ground floor of the complex to M/s.SMA Restaurant and Services Limited under a licence deed on receipt of advance amount of Rs.15 Lakhs out of the security deposit of Rs.30 Lakhs and monthly licence fee of Rs.3.5 Lakhs. It is stated that the employees of M/s.SMA Restaurant and Services were threatened by the complainant and others. The apartment owners association and the complainant are the petitioners in W.P.(C).No.21723/2012. After considering the contentions raised by both sides, the Consumer Disputes Redressal Forum dismissed the application for injunction filed by the complainant. The order was passed on 7.7.2012.

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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Stating the very same facts, the builder filed O.S.No.717/2012 before the Sub Court, Thiruvananthapuram. The 1^st defendant in the said suit is the 7^th respondent, who is 2^nd petitioner in W.P(C).No.21723/2012. Defendants 2 to 6 are other residents/owners of the same apartment complex. Suit was filed for compensation and for permanent injunction. The main grievance of the builder is that the 7^th respondent, who is the 1^st defendant in the suit and few other apartment owners, who are arrayed as defendants 2 to 6, are causing obstruction to the user of the commercial portion in the first floor by the licensee of the builder. The 1^st defendant raised the very same contentions raised before the Consumer Forum. It was contended that the apartment complex is purely a residential building and the attempt of the plaintiff is to convert a portion of the building into commercial which is illegal, opposed to the plan and licence issued by the authorities and it is violative of the agreement between the builder and apartment owners. The builder sought for injunction restraining the defendants/counter petitioners not to obstruct the petitioners from letting out the commercial space in the property and causing any obstruction to

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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the functioning of the restaurant by M/s.SMA Restaurant and Services Private Limited. Before the civil court it is pointed out that the agreement was entered into between him and M/s.SMA Restaurant and Services Private Limited and that by virtue of the agreement, the licensee, i.e., Ms/.SMA Restaurant Services Limited, is in occupation of the commercial area in the first floor. After considering the contentions of both sides the civil court held as follows:

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“ On going through the contentions raised by the 1^st counter petitioner, this court finds that he has got only two grievances; the first one is that the construction was made by the petitioner in violation of the approved plan. The petitioner has got permission only for the construction of a residential building. The other grievance is that the petitioner has converted the space allotted for recreation as a commercial space. On a perusal of Ext.A1 agreement this court finds that there is provisions in the agreement to construct residential/commercial building. Corporation has also allotted numbers to the apartments and for the commercial space. Hence the contention of the 1^st counter petitioner is having no basis ”.

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It was also held that;

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“On an analysis of the available evidence this court is of the opinion that the intention of the counter

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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petitioner is only to harass the petitioner and there is no merits in the contentions raised by the counter petitioners. This court finds that the petitioner has made out a prima facie case. Balance of convenience is also in favour of the petitioner. No irreparable injury will be caused to the counter petitioner if the petition is allowed”.

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The petition for injunction was allowed by order dated 6.7.2012. The order of the civil court is marked as Ext.P10. The defendants filed F.A.O.No.250/2012 against Ext.P10 order and the same is pending consideration before this Court. No interim order has been passed by this Court in the said appeal. After suffering Exts.P11 & P10 orders passed by the District Consumer Forum and civil court as stated above, the 7^th respondent filed a complaint as O.P.No.1619/2011 and few apartment owners as O.P.Nos.1363/2012 & 579/2012 before the Ombudsman for Local Self Government Institutions mainly complaining about the user of the commercial space on the ground floor. Ext.P12 is the copy of O.P.No.1619/2011. Ext.P9 order passed by the Ombudsman in the complaint in O.P.No.1619/2011 and connected complaints is the present subject matter of dispute between the parties. Ext.P12 complaint was filed seeking a direction to the 1^st

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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respondent to initiate action on Ext.P4 complaint and report the same before the forum and for a direction directing the 1^st respondent Corporation to issue necessary orders to respondents 2 & 3 (the builder and the Managing Director) not to convert any portion of the residential complex of ‘M/s.Nikunjam Harmony’ into a commercial area and file the action taken report before the Forum. The Ombudsman examined the dispute regarding the conversion of the building portion into a commercial area which according to the complainant is against the plan and permit. The complainant also requested the Ombudsman to prevent the builder from leasing out the alleged commercial area to start a Pizza Hut. In Ext.P9 impugned order what was considered is the dispute between the parties regarding the conversion of the building partly into commercial nature and the act of the builder in leasing out the alleged commercial area in the ground floor to M/s.SMA Restaurant and Services Limited. The order starts with the statement as follows:

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“ The subject matter of these original petitions are,

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regarding the conversion of the building partly into commercial nature which according to the petitioner is totally against the plan and permit and in the process of

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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doing the same, the builder had deprived them of the recreation space which they are really entitled to and also had interfered by closing the stair case and thereby they allege that the said act is done in collusion with the Corporation authorities which amounts to maladministration and therefore, action has to be initiated ”.

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The next sentence is as follows:

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“ They have moved an application to prevent the builder from starting by leasing out the said alleged commercial area to start a Pizza Hut ”.

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The Ombudsman examined the contentions of the parties and

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held that permission to start a Pizza Hut cannot be granted. The Ombudsman also directed the Corporation not to grant licence to start a Pizza Hut till a final decision is taken in the matter. Ext.P2 series are the copies of the approved completion plans issued by the 3^rd respondent Corporation. The 3^rd respondent also issued occupancy certificate for the building under Rule 22(3) and 142 (2) of the Kerala Municipality Building Rules. Ext.P4 is the copy of the said certificate. Pursuant to Ext.P2 to P4, the building has been assessed by the 3^rd respondent. The commercial portion of the ground and first floor were assessed as commercial and the

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rest of the building as residential. Ext.P5 is the copy of the

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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property tax assessment index sheet produced in this case. Thus Exts.P1 to P5 would show that the building has been categorised as commercial in respect of a portion on the ground floor as well as the first floor and the rest as residential.

¶169

The petitioner entered into an agreement on 3.5.2012 with the builder with regard to the letting out of commercial portion of the ground floor for conducting its business Pizza Hut. Ext.P6 is the copy of the licence deed. The petitioner/restaurant owner submitted that he had expended Rs.3 Crores including the value of the machineries imported from abroad worth Rs.1.5 Crores for the conduct of the restaurant. Rs.1.5 Crores is the value of the machineries and the balance Rs.1.5 Crores was expended for interior decoration and furnishing. He applied for licence before the Corporation. The copy of the receipt for payment of licence fee on 10.7.2012 is marked as Ext.P7. It is also submitted that the building is ready for commencement of the business namely, Pizza Hut and the petitioner has tentatively fixed 14.11.12 as the date of inauguration.

¶170

The 7^th respondent and additional 9^th respondent filed counter affidavits in W.P.(C).No.26589/2012. W.P.(C).

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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No.27119/2012 was filed by the builder supporting W.P.(C). No.26589/2012. Respondents 4 to 6 jointly filed a counter affidavit in W.P.(C).No.27119/2012. In W.P.(C).No.21723/2012, the 2^nd respondent filed a statement and the respondents 3 & 6 filed counter affidavits and additional counter affidavit.

¶174

Ext.P9 order was passed in complaint No.1619/2011 filed by P.K.Sreedharan Nair and two connected cases i.e., 579/2012 filed by Bindu Prakash and Dr.Renuka Vijayalekshmi Amma, who are respondents 5 & 6 and 1363/2012 filed by one Vasudeva Kurup. W.P.(C).No.21723/2012 is filed by the Apartment Owners Association and Sreedharan Nair. Sreedharan Nair filed counter affidavit on behalf of the Nikunjam Harmony Apartment Owners Association, who was impleaded as additional 9^th respondent in W.P.(C).No.26589/2012. The additional 9^th respondent also produced Ext.R9(a) to R9(t) which includes various exhibits produced by the petitioner. Respondents resisted W.P.(C).No.26589/2012 & W.P.(C).No.27119/2012 by filing W.P.(C).No.21273/2012. In W.P.(C).NO.21723/2012 the petitioners produced Exts.P1 to P25. A detailed counter affidavit was also filed in W.P.(C).No.26589/2012.

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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The builder and land owners entered into an

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agreement on 13.11.2006, a copy of which is marked as Ext.P2 in W.P.(C).No.27119/2012. Clause 2(1) in Ext.P2 stipulates that the builder agrees to prepare necessary plans/drawings/designs etc. for the construction of a multi storied commercial/residential building and submit the same before the appropriate authority and/or other concerned authorities for sanction of licence and plan immediately on obtaining the agreement. In clause 2(2) there is reference to the construction of a multi storied commercial/residential building. Clause 3(1) of Ext.P2 agreement stipulates that the builder shall construct in the schedule property multi storied commercial/residential building with internal and external services, facilities, fittings, fixtures, including compound walls, passages, stair-cases and sewer lines and pipes etc. Clause 3(3) stipulates that the builder shall be entitled to make additions, deletions and alternation in the design and construction as they deem fit without materially affecting the entitlement of the land owner. Clause(5) deals with the sharing of built area. Clause 5(1)(a), (b) and (c) stipulate as follows:

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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“5(1) x x x x x

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(a) 50% of the super built up area of the commercial/mercantile area if approved to be built i.e., the upper floor of the two lower floors of the building.

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(b) 25% o the super built up area of the residential area up to a Floor Area Ratio of 2.5.

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(c) 20% of the super built up area of the residential area above FAR 2.5, the extent of the area to be decided by the builder, to be constructed in the schedule property, for the absolute use and/or benefit and ownership of the land owner including proportionate car parking area. ”

¶185

There is provision in Ext.P2 agreement for sharing residential space/commercial space. In paragraph 22 of Ext.P2 agreement it is stated that the land is presently in the residential zone. The approval will be that of a residential building and as and when the zoning is changed or exemption is given by the Government, the lower two floors will be converted into commercial/mercantile use.

¶186

A reading of the relevant clauses in Ext.P2 agreement is indicative of the fact that both the builder and owner agreed to construct a multi storied building as residential/commercial building. It is thus clear that at the time of Ext.P2 agreement the

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area is a residential zone and approval can be obtained only for a

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

¶190

residential building. On the same day the land owners executed a power of attorney in favour of the Managing Director of the builder company. In Ext.P3 power of attorney also it is stated that the nature of construction intended is of a residential apartment/commercial building. The photographs produced by the petitioner and builder would show that the property wherein the building constructed is situated on the Vellayambalam - Sasthamangalam road which is one of the commercial hub of Thiruvananthapuram City. Several commercial institutions are situated side by side along with residential buildings. The Government of Kerala included the locality where the property situated as a residential zone in the master plan for the Corporation of Triruvananthapuram. Later, Government issued Government Order G.O.(MS)144/07/LSGD dated 31.5.2007 modifying the General Town Planning Scheme for Thiruvananthapuram sanctioned as per GO(MS)99/76/LA&SWD dated 27.4.1976. Ext.P8 is the copy of the said notification. It is provided that residential zones substantially developed as commercial areas and having a road width of more than 12 metres can have mercantile/commercial uses up to a depth of 50

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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metres. Rule 30(3)(a) & (b) of the Kerala Municipality Building Rules reads as follows:

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“ (a) Group A1 - Residential Building shall include any building in which sleeping accommodation is provided for normal residential purposes (with or without cooking) and or dining facilities. They shall include one or multifamily dwellings, apartment houses of residential flat, small professional offices or spaces for advocates, doctors, engineers, architects, chartered accountants, beauticians, tailors, photographers, videographers, telephone booth operator, computer professionals, typists, electrical or electronic equipment service professionals, not exceeding (50 sq.metres floor area) and used as part of principal residential occupancy are also included in this group. (Further, lodging or rooming houses, tourist homes, dormitories, hostels and hotels not exceeding 150 sq.metres floor area are included in this group).

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(b) Group A2 - Special residential building shall include all lodging or rooming houses, dormitories, tourist homes, hostels,(hotels exceeding 150 sq.metres floor area with or without conference halls, community halls, dining halls or assembly rooms). Creches, day care centres, children's nursery, reading rooms, (libraries and educational buildings not exceeding 150 sq.metres floor area are also included in this group)”.

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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The General Guidelines clause (1) extracted at page 5 of W.P.(C). No.26589/2012 permits residential as well as commercial public and semi public and industrial zones on either side of the road having an existing or proposed width of 12 metres or more to a depth of 50 metres from the road. After Ext.P8 notification in terms of Ext.P2 agreement the builder converted a portion of ground and first floor into commercial space and submitted completion plan on 6.2.2010. It is noticed that by virtue of Ext.P8, commercial area are permitted in residential apartments, the Corporation of Thiruvananthapuram approved the completion plan and regularized the construction and issued occupancy certificate. The Fire and Rescue Services issued Ext.P1 NOC on 3.2.2011 for the completed commercial as well as residential apartments. It is stated in Ext.P1 that the NOC is issued for the mercantile/residential building. Ext.P2 is the approved completion plan issued by the 3^rd respondent. Ext.P3 is the order dated 5.4.2011 issued by the 3^rd respondent regularising the construction and Ext.P4 is the occupancy certificate. Thereafter, the building has been assessed by the Corporation for the purpose of property tax. The commercial portion in the ground

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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and first floor were assessed as commercial and rest of the building has been assessed as residential. Ext.P5 series shows that the building has been classified as commercial in the ground and first floors and rest of the building as residential. The petitioner builder in W.P.(C).No.27119/2012 produced Ext.P8, which is the true copy of the approved completion plan issued by the Corporation. In Ext.P8 there is an endorsement and seal to the effect that “ Commercial cum Residential Apartment at Vellayambalam, Thiruvananthapuram completed ”. It is therefore pointed out that if the road in front is having a width of 12 metres or more, even in residential zone to a depth of 50 metres area could be permitted to be used for commercial purpose. The builder converted a portion of ground floor and first floor into commercial space and submitted a revised plan. Later, the plan was approved and occupancy certificate issued. The building comes under Group A2 category i.e, Special Residential Building. The materials discussed would show that the builder submitted a revised plan on the basis of Ext.P8 amended Government Order. The Corporation of Thiruvananthapuram considered the matter, approved the plan and issued the approved completion plan. The

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

¶204

materials on record would show that the construction and conversion of a portion as commercial are on the basis of an approved plan issued by the Corporation, the construction cannot be termed as illegal. On a perusal of the materials on record this Court is of the view that the complainants failed to made out a prima facie case for granting an interim order. Thus, on merits, complainants are not entitled to the reliefs granted. If the apartment owners and Sreedharan Nair are aggrieved by the issuance of approved plan and occupancy certificate it is for them to avail statutory remedy.

¶205

The learned senior counsel for the petitioner pointed out that the complainants did not seek any relief against the land owners who are in occupation of the commercial area on the first floor, that the relief sought for is confined to the starting of a Pizza Hut in the ground floor and that conduct also shows that the complainant is interested in seeking relief against the builder only. Complainants have no grievance in regard to the enjoyment of the commercial space on the first floor by others. The said fact, prima facie, would indicate that the intention of the complainant is to obtain an interim order against the builder and

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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his licensee and that they are not showing any interest in taking action against the officials of the Corporation. Ext.P12 is the copy of the complaint in O.P.No.1619/2011 filed by the 7^th respondent. No interim reliefs are sought for in the said complaint against the starting of Pizza Hut. Ext.P9 in W.P.(C). No.21723/2012 is the copy of the O.P.No.579/2012. In Ext.P9 complaint also no reliefs are sought for against starting of Pizza Hut. There is no reference or discussion in Ext.P9 impugned order about Ext.P10 order passed by the civil court and Ext.P11 order passed by the Consumer Disputes Redressal Forum. Relying on the proviso to Rule 18(3) of the Rules, the learned counsel pointed out that once the construction, reconstruction, addition or alteration of any building completed without obtaining approved plan or in deviation of the approved plan, shall not be directed to be altered or demolished if the construction or addition or alteration has been regularized under the provisions of the Rules. The learned counsel therefore submits that once any deviation of the approved plan is regularized, construction cannot be termed as an unauthorized construction. Learned counsel also placed reliance on Rule 143 of the Rules which

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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confer powers on the Secretary to regularize the construction. The construction was completed on 28.1.2010. Completion plan was approved on 6.2.2010. It is pointed out by the learned counsel for the petitioner that there is no area reduction in the recreation space in the building and what was done by the modified plan is only the shifting of the recreation space. It is pointed out that the same area provided for recreation space in the original plan is provided in the modified plan.

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The learned senior counsel for the Corporation submits that persons aggrieved are at liberty to avail statutory remedy by way of an appeal before the Tribunal for Local Self Government Institutions challenging the revised plan and grant of occupancy certificate. I find there is force in the argument especially when the apartment owners' contentions are that the construction was made by the builder in violation of the approved plan, that the petitioner got permission only for the construction of a residential building but he has converted the space allotted for recreation as a commercial space. In the statement filed by the Corporation of Thiruvananthapuram in W.P.(C).No.21723/2012, it is stated that the recreation space provided in the completed building is

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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different from what is proposed in the approved plan, that the recreation space proposed in the approved plan and the basement level has been converted into a parking area and that is provided as an open terrace at ground level in the completion plan. It is stated that the deviation made in the construction have been regularised as per the completion plan approved as per order dated 5.4.2011. In the statement it is further stated that occupancy certificate has been issued since the completion of the building satisfies all the relevant Rules in the Kerala Municipality Building Rules and after proper inspection of the building conducted by different level of officers in the Corporation. It is further stated that the internal changes of an occupied building can be carried out without obtaining any permit by the owner in view of Rule 10 of the Kerala Municipality Building Rules. On a reading of the orders passed by the Consumer Disputes Redressal Forum, civil court and the Ombudsman it is seen that the dispute is primarily between the builder and the apartment owners. If the builder has violated any of the terms of the agreement between him and the apartment owners, the remedy open to the apartment owners

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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individually or collectively is to approach the Consumer Disputes Redressal Forum or civil court for appropriate reliefs. If the land owners are aggrieved by the approval of the revised plan and the issuance of occupancy certificate the land owners are free to approach the Tribunal for Local Self Government Institutions. Statutory remedy by way of appeal is provided against Ext.P3 order of regularisation of construction. They have already approached the Consumer Disputes Redressal Forum. The Ombudsman is not a Forum to decide the dispute between the builder and the apartment owners. The Corporation approved the completion plan submitted by the petitioner. The changes made with regard to the recreation space are also approved. The Secretary shall have the power to regularise construction or reconstruction or alteration of any building commenced, being carried on or completed without obtaining approved plan or in deviation of the approved plan provided that such construction or reconstruction or addition or alteration of any building shall not be in violation of any of the provisions of the Act or Rules. Rule 144 of the Rules provides the procedure in the matter of submission of application for regularisation. The additional plinth

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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area constructed in addition to the approved area was regularised by Corporation by passing order under Rule 143 of the Rules. Section 406 of the Kerala Municipality Act confers power on the Secretary in the matter of demolition or alteration of building work unlawfully commenced, carried on or completed. The Secretary may pass order requiring the owner of a building unlawfully constructed or alteration or additions made in contravention of the provisions of the Act and Rules, the Secretary can pass orders directing demolition. The proviso to Section 406(1) stipulates that the Secretary may on realisation of compounding fees as may be fixed by the Government, regularise any constructions, reconstruction or alteration of any building commenced, carried on or completed without getting a plan approved by the Secretary or in deviation of the approved plan, if such construction, reconstruction or alterations of the building did not contravene any of the provisions and specifications mentioned in the Act or the Rules made thereunder. The proviso to Section 406 of the Act empower the Secretary on realisation of compounding fee to regularise any construction completed even without getting a plan. Section 509(6) of the Act provides for

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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filing appeal against any order passed by the Secretary under Sections 390, 391, 395, 406 & 408 to the Tribunal constituted for the Local Self Government Institutions under Section 271S of the Kerala Panchayath Raj Act. On a reading of the impugned order, namely, Ext.P9, it is seen that what was contended and what was decided primarily is the dispute between the builder and the apartment owners. On the basis of the findings recorded the Ombudsman also issued consequential directions.

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The duties and powers of the Ombudsman is clearly delineated and enumerated in the Kerala Panchayath Raj Act. Section 271J of the Act reads as follows:

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271J. Junctions of the Ombudsman :

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(1) The Ombudsman shall perform all or any of the following functions, namely:-

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(i) Investigate into any allegation contained in a complaint or on a reference from Government, or that has come to the notice of the Ombudsman;

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(ii) Enquire into any complaint in which corruption or maladministration of a public servant or a Local Self Government Institution is alleged.

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The words allegation and complaint mentioned in Section 271J

¶231

are defined in Section 271F. Section 271M confer power on the

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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Ombudsman to conduct an investigation into any complaint received and where there is a prima facie case it may conduct a detailed enquiry under Section 271N. Enquiry can be conducted, after an investigation, if the Ombudsman is satisfied that there is a prima facie case against the person or the Local Self Government Institution complained of, it shall record its findings to this effect and send notices of the proposed enquiry to the complainant and to the opposite party. Section 271N(2) of the Kerala Panchayath Raj reads as follows:

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271N. Enquiry –

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(1)	x x	x	x	x
(a)	x x	x	x	x x
(b)	x x	x	x	x x
(c)	x x	x	x	x x
(2)	If, the O	mbuds	man	is of opinion that there is a
prima fac	ie case a	gainst	the	person or the Local Self
Governme	nt Institut	ion co	mpl	ained of it shall record its
findings t	o this effe	ct and	sen	d notices of the proposed
enquiry to	the compl	ainant	and	to the opposite party.

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The investigation first and if necessary, later conduct enquiry into the complaint filed before it under the Act. The complaint is defined in the Act which means a statement of allegation that the public servant or a Local Self Government Institution is guilty of

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

¶240

corruption or maladministration. So, the examination should have been focused at the investigation stage as to whether the officers of the Corporation or Corporation are guilty of corruption or maladministration. If after investigation if the Ombudsman is of the opinion that there is a prima facie case against the person or the Local Self Government Institution complained of, it shall record its findings to that effect. Section 271N(2) mandates that there shall be an investigation into the complaint. The investigation no doubt should be directed against the person or the Local Self Government Institutions complaint of. The findings shall be recorded as to whether the complainant has made out a case against the officials or the Local Self Government Institution. Ombudsman failed to pass an order under Section 271N(2) recording its findings. Quite contrary to the mandates as stated earlier, Ombudsman passed an order adjudicating the question of entitlement of the petitioner to an interim relief sought for. One of the functions of the Ombudsman is that the Ombudsman may pass an interim order restraining the Local Self Government Institutions from doing anything detrimental to the interest of the complainant if it is satisfied that much loss or

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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injury is caused to the complainant due to the alleged act. Interim orders can be passed only after the Ombudsman record its findings against the person or Local Self Government Institution and after forming an opinion that there is a prima facie case. None of the provisions to which reference has been made supra gives power or authority to the Ombudsman to pass an interim order after adjudicating the dispute between the parties. The Ombudsman straight away passed interim order stating that permission to start a Pizza Hut cannot be granted and further ordered that the Corporation shall not grant a licence to start a Pizza Hut till a final decision is taken in the matter. Without examining the scope of the complaint, the Ombudsman straight away decided the dispute between the parties. The first sentence in the impugned order reads as follows:

¶244

“ The subject matter of these original petitions are, regarding the conversion of the building partly into commercial nature which according to the petitioner is totally against the plan and permit and in the process of doing the same, the builder had deprived them of the recreation space which they are really entitled to and also had interfered by closing the stair case and thereby they allege that the said act is done in collusion with the

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

¶247

Corporation authorities which amounts to maladministration and therefore, action has to be initiated ”.

¶248

Section 271(M)(4)(b) mandates that Ombudsman shall not enquire into matters relating to any matter in respect of which a remedy is available from the Tribunal for Local Self Government Institutions constituted under Section 271S of the Act. The relief granted by the Ombudsman is against the person who is not a party before the Ombudsman. The person who had made arrangement to start a Pizza Hut is the petitioner in W.P.(C). No.26589/2012. Further, the only relief granted by the Ombudsman is directing the Corporation not to grant licence to start a Pizza Hut. M/s.SMA Restaurant and Services Private Limited is the affected and aggrieved person. Such a direction was issued against a person who was not made a party before the Ombudsman. It is settled law that statutory authority can wield only those powers which are vested in it by the statute. In the facts and circumstances of the case, this Court is of the view that the Ombudsman has clearly exceeded the jurisdiction which is vested in him.

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

¶251

The learned Senior Counsel appearing for the additional 9^th respondent in W.P.(C).No.26589/2012 contended that the Corporation has not issued a revised permit and therefore the conversion of recreation space into commercial space is unlawful. It is also pointed out that since different owners of the apartments acquired right in the property, any conversion without their knowledge and consent is illegal. Placing reliance on Ext.R9(d) agreement entered into between the builder and complainant, it is contended that the parties agreed for the construction of a residential apartment/flats only and therefore, the conversion of portions in the ground floor and first floor as commercial space is in violation of Ext.R9(d) agreement. The learned counsel contended that as per the approved plan, specific area is provided for recreation space in the ground floor and first floor, that the apartment project is a pure residential apartment project, but, the builder converted the recreation space into commercial space which is contrary to the offer made to the apartment owners and is in violation of the Kerala Municipality Building Rules. It is submitted that the converted commercial space is used in between the two stair

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

¶254

cases and recreation space is provided along with two residential apartment and as such there is no recreation space available in the building structure and conversion is made in violation of Rule 16 of the Kerala Municipality Building Rule. It is also contended that regularisation is granted only with respect to construction of additional area of 44.77sqm which is constructed in excess of area permitted in Ext.R9(c) permit. The counsel also pointed out that in Ext.P3 order and Ext.P4 occupancy certificate, the nature of the building is shown as family residential building and not mercantile-cum-residential building as claimed by the petitioner. Referring to the statement of facts filed by the builder in an earlier complaint filed in 2008 as O.P.No.479/08 marked as Ext.R9(a), it is pointed out that there is a statement that the entire building is designed and constructed as residential apartment. Ext.R9(b) is the order dated 20.6.2008 passed in the said complaint. The complaint was closed after considering the report of the Regional Joint Director in the said complaint. The respondents 7 & 9 allege various types of violations in the construction of the building by the builder. The Ombudsman deputed the Regional Joint Director, Kollam to inspect the

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

¶257

building. The Regional Joint Director reported that the construction is in accordance with the Building Rules. The complaint was closed with certain directions as mentioned in Ext.R9(b). The learned senior counsel also contended that the builder did not comply with Rule 50 of the KMBR which deals with the recreation space in a residential apartment. It is submitted that the recreation space originally provided in the original plan was changed and converted into commercial space. The learned senior counsel also placed reliance on Ext.R9(t) enquiry report submitted by the Regional Joint Director. It is reported in Ext.R9 (t) that recreation area provided in the first floor was converted as commercial area and the recreation space in the ground floor was shifted. It is reported that there is violation of Rules 39(1) and 48(1) of the Rules. It is also reported that regularisation granted is for a family residential building. The additional 9^th respondent also produced the interim orders passed by the Ombudsman on 6.7.2012 (Ext.R9(j)), 30.7.2012 (Ext.R9(k)) and 7.9.2012 (Ext.R9(l)). Ext.R9(l) order was challenged by the builder in W.P.(C).No.18471/2012. This Court disposed of the writ petition directing the Ombudsman to finalise the proceedings

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

¶260

or at least pass orders on the interim applications made by the complainant without any further delay. Thereafter the matter was considered and Ext.P9 order was passed. The learned senior counsel also relied on the decision reported in Sheela.R v. Corporation of Thiruvananthapuram and others (2009(3) KHC 133) and contended that the Secretary of the Corporation is not expected to arrive at any conclusion regarding regularisation of unauthorised construction in the absence of any application for the same by the aggrieved person. On the basis of the decision reported in Lazer Robert T. v. C.M.Mohammed Sheriff and Others (2008(4) KHC 1016) it is contended that there can be no regularisation of an unauthorised construction, which under normal circumstances could never have come into existence, but for the fraud played on the Corporation. The learned counsel also relied on the decisions in W.P.(C).Nos.1899/2009, 34939/2008, W.A.No.875/2010 and the decision reported in Krishnan Nair K.

¶261

and another v. Secretary, Corporation of Tvm. and another (2010(1)KHC 968).

¶262

I have gone through the reliefs sought for in Ext.P2 complaint. The relief sought for is against the Secretary,

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

¶265

Corporation of Thiruvananthapuram. Among the four reliefs mentioned therein, the 2^nd relief is regarding a direction to the Corporation to issue necessary orders to the respondents 2 & 3 not to convert any portion of the complex Nikunjam Harmony into a commercial one and to file action taken report before the Forum. From the materials on record, it is seen that the said prayer has become infructuous since the building construction is over and the Corporation has long before approved the revised plan and issued orders on 5.4.2011 regularising the construction, issued Ext.P4 occupancy certificate and the building was assessed to property tax assessment on 9.5.2011. Ext.P9 complaint filed before the Ombudsman is dated 9.4.2012. Thus it is clear that the conversion of a portion of the multi storied building as commercial has been done long before the filing of the complaint. The agreement entered into between the builder and licensee marked as Ext.P6 is dated 3.5.2012 and that the agreement is entered into between them long after the construction of the multi storied building. As per Ext.P6 agreement it is seen that he had agreed to pay Rs.30 Lakhs as security deposit and Rs.3.5 Lakhs per month as licence fee. The builder handed over the

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

¶268

commercial portion of the building in the first floor as per Ext.P6 agreement. Since the agreement was executed between the parties after the issuance of the occupancy certificate, assessment of property tax, licensee's possession and user of the building portion it cannot be said to be unlawful. He has the right to conduct his business in the ground floor. In the circumstance, the order passed by the Ombudsman restraining the person who is not a party before the Ombudsman is without any authority. It is admitted by the parties that no petition was filed by the complainants seeking orders not to grant permission to start a Pizza Hut and sought a direction not to grant licence to start a Pizza Hut. The interim prayers sought for in the complaints are different. No interim reliefs, as sought for, were granted. The Ombudsman has also no jurisdiction to decide the dispute raised by the apartment owners against the builder. The function and duties of the Ombudsman are clearly enumerated in detail in the Act. I hold that the impugned order is passed beyond the powers conferred by the statute. The Ombudsman is empowered with only those powers which are conferred under the Act. Though the complaints were filed before the Ombudsman for

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W.P.(C).Nos.26589, 27119 & 21723 Of 2012

¶271

taking action against Local Self Authority and its officers, appropriate interim reliefs in terms of the complaints are not sought for, instead reliefs are claimed orally against a licensee who is in occupation of portions of ground floor. The reliefs granted by the Ombudsman are not in terms of the complaints and is beyond the scope of the complaint.

¶272

The reliefs sought for in W.P.(C).No.21723/2012 is for a direction directing respondents 3 & 4 to take actions against respondents 6 & 7 (builder and M/s.SMA Restaurant and Services Limited) in terms of Ext.P15 Memo dated 19.7.2012 of the Divisional Officer, Fire and Rescue and Ext.P16 report dated 17.7.2012 of the Senior Town Planner (Vigilance), Local Self Government Department, for a direction to the Ombudsman to take action against 6^th and 7^th respondents on the ground of violation of its orders, Exts.P10, P11 & 13 and for a speedy disposal of Ext.P9 O.P.No.579/2012 pending before the Ombudsman. The 1^st petitioner is not a complainant in any of the complaints filed before the Ombudsman and is not a party in any of the complaints. The 2^nd petitioner is the 7^th respondent in W.P.(C).No.26589/2012 and 5^th respondent in W.P.(C).

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¶274

W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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No.27119/2012. It is averred in paragraph 17 of the writ petition that respondents 6 & 7 in violation of the order of the Ombudsman have started the conversion, alteration and interior works in the disputed area of the building, by making substantial alterations in the building as such. It is also alleged that the main stair case provided in the building was illegally closed down by the respondents 6 & 7. In Ext.P15 memo dated 19.7.12 of the Divisional Officer, Fire and Rescue, it was stated that conversion and alteration carried out will affect the safety of the building and there is a direction to restore the main stair case. It is also stated that on a complaint, Ext.P15 memo was issued. It is not stated as to who had lodged the complaint. The copy of the complaint is not produced. Unless it is shown that Ext.P15 memo was issued on a complaint filed by the petitioners, this Court cannot issue directions as prayed for. Similarly, Ext.P16 is the copy of the report dated 17.7.2012 of the Senior Town Planner (Vigilance). Ext.P16 is incomplete. The last page alone is produced as Ext.P16. It cannot be gathered from Ext.P16 as to whom the Senior Town Planner (Vigilance) submitted Ext.P16 report and further on whose complaint Ext.P16 was submitted.

¶276

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¶277

W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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Petitioners have not produced any materials before this Court to show as to whether they have lodged any complaint on the basis of which Ext.P16 report was prepared by the Senior Town Planner. In these circumstances, this Court is not justified in granting the prayer sought for to take action against respondents 6 & 7 in terms of Exts.P15 & P16. The 2^nd prayer in the writ petition is for a direction to the 5^th respondent Ombudsman for Local Self Government Institutions to take action against respondents 6 & 7 on the ground of its orders, Exts.P10, P11 and P13. The 1^st petitioner is not a party in any of the complaints before the Ombudsman. The parties to the complaints, if aggrieved by the alleged violation of the orders of Exts.P10, P11 and P13, can approach the Ombudsman for appropriate reliefs. Similarly, the prayer for early disposal of Exts.P9 O.P.No.579/2012 is also not allowable for the reason that the complaint is pending enquiry along with two other complaints. Moreover, the complaints are pending consideration before the Ombudsman. It may not be appropriate for this Court to issue any direction at this stage for a time bound disposal in the light

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¶280

W.P.(C).Nos.26589, 27119 & 21723 Of 2012

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of the fact that the Ombudsman will have to conduct a full fledged enquiry and the parties want to adduce evidence.

¶282

In the result, W.P.(C).Nos.26589/2012 & 27119/2012 are allowed. Ext.P9 interim order passed by the Ombudsman in W.P.

¶283

(C).No.26589/2012 (Ext.P22 in W.P.(C).No.27119/2012) is set aside. W.P(C).No.21723/2012 is dismissed.

¶284

HARUN-UL-RASHID, Judge.