K.KRISHNAN NAIR v. THE SECRETARY

THOTTATHIL B. RADHAKRISHNAN, J ...........................................W.P(C).NO.23538 OF 2009............................................Dated this the 7th day of September, 2009JUDGMENT“C.R.”1.Notice to second respondent dispensed with, preserving hisright to move for rehearing of this writ petition, if aggrieved.Heard learned counsel for the petitioners and for the firstrespondent Corporation.2.Petitioners and second respondent are neighbours. TheCorporation initiated certain proceedings against thepetitioners, referable to a stair case constructed by them.Proceedings were initiated against the second respondentregarding a car porch constructed by him. The Tribunal forLocal Self Government Institutions set aside both thoseproceedings as per Ext.P2 and P3 orders with direction tofinalise the matter by initiating fresh proceedings. Petitionerscomplain that nothing has followed Exts.P2 and P3 issued inJanuary, 2009. They accordingly seek directions. WPC.23538/0923.In its essence, on the plea that the Tribunal's verdict is notbeing given effect to, intervention in exercise of constitutionalpower of this Court is applied for, to effectuate the direction ofa statutory Tribunal. Is it necessary that such orders areissued by this court? Is there any alternate efficacious remedyfor the citizen? Is the citizen to be compelled to move theHigh Court under Article 226 of the Constitution on theaffirmation that he has no alternate efficacious remedy forredressal of the grievance in relation to the refusal, delay orinaction on the part of an LSGI or its officials including thesecretary to it in terms of the decisions of the Tribunal? 4.Tribunal for LSGIs is constituted under Section 271 S of theKerala Panchayat Raj Act, 1994, for short, the 'PR Act'. ATribunal shall consist of a judicial officer having the rank of aDistrict judge. It deals with appeals and revisions underSection 276 of that Act and Section 509 of the MunicipalityAct. Section 271 U of the PR Act provides the Government, WPC.23538/093the rule making power to prescribe the different mattersenumerated under the different clauses of that section,including the effect of the orders of the Tribunals and anyother matter which the Government may consider necessary toprescribe. Exercising that power, the Government of Keralamade the Tribunal for Local Self Government InstitutionsRules, 1999, the 'Tribunal Rules', for short. Rule 8 of thoseRules provides for submission of appeal or revision against anotice, order or proceeding in respect of any matter specifiedin the Schedule to those rules. A survey of the Schedule wouldshow that the matters that could reach the Tribunal againstthe decision of the Local Self Government Institution or itsSecretary are multifarious. They are not confined to theprivate interests of citizens. The twenty four enumeratedmatters in the schedule show that the Tribunal is vested withimmense jurisdiction of wide sweep touching different mattersfor which a Local Self Government Institution is conceivedunder the Constitution. WPC.23538/0945.Rule 21(1) of the Tribunal Rules provides the consequence andeffect of the order of the Tribunal. The notice or order issued,or action taken by the LSGI or its Secretary, as the case maybe, shall stand as such or be modified or annulled inaccordance with the final order of the Tribunal, from the dateof issuance of such final order. Rule 25 of those Rules providesthat in matters which are not provided for in those Rules, thePR Act and the Municipality Act, the Tribunal shall have thepower to regulate the procedure in connection with thedisposal of a petition in the manner it thinks proper. Coupledwith this, is the fact that the Tribunal is vested with thepowers of a judicial authority for trial and disposal of matterscoming up before it. To insulate the judicial authoritypresiding the Tribunal, the proceedings in the Tribunal aredeemed to be judicial proceedings within the meaning ofSections 193 and 228 of Indian Penal Code in terms of Section271 S (4) of the PR Act. Sub-section (3) of Section 271 S of the WPC.23538/095PR Act provides that the Tribunal shall have the same powersas are vested in a civil court under the Code of CivilProcedure, when trying a suit in respect of mattersenumerated in that sub section. The powers of the Tribunal,referable to the aforesaid provisions, may, at the first blush,give an impression that they relate only to the power to carrythe trial to the logical end and issue decision and that theTribunal has no power to enforce, or obtain obedience of itsdecisions. Is it so? The answer appears to be in the negative,as would be seen from the reasoning that follows hereunder.6.What is the purpose of filing an appeal or revision before aTribunal, in relation to any among the various mattersenumerated in the schedule to the Tribunal Rules ? No citizenis interested in any empty formality before any judicialauthority, be it a court or a tribunal; constitutional orstatutory. A result oriented adjudicatory redressal process withsufficient teeth to enforce the decision rendered by the judicial WPC.23538/096authority is the power of judicial enforcements in any civilizednation working under a Constitution. Judicial exercise is notmerely a drill to answer competing claims, to be left there. Thefruit of the litigation has to be enjoyed. Otherwise, the veryexistence of a judicial system would be questionable. If thefruits of a judicial process cannot be enjoyed in a time boundmanner, through the judicial process itself, the frighteninggrowth of invasion of extra constitutional and extra legalpower points on to the resolution of disputes would gallopfaster than what has now been taken note of by the differentconstitutional limbs; the legislature, judiciary and theexecutive. The very purpose of a Tribunal to resolve disputesrelating to matters arising under the PR Act and theMunicipality Act is to achieve the object of resolving a disputeand delivering the result of the resolution in a mannerenabling the fruits to be enjoyed by the citizens, collectively orindividually, depending upon the context and the subject inrelation to which the decision is being rendered. Looking at WPC.23538/097the Schedule to the Tribunal Rules, it could easily be gatheredthat no dispute is left out of the pale of the resolutionmechanism for which the Tribunal is in place. If that were so,the clear constitutional dictate is that the result of thecomplaint or grievance raised before the Tribunal, shalltransform from out of the paper on which it is written toreality in action, which is the very purpose for which thecitizen had to go for the litigation. An unassailableconstitutional mandate is that no citizen could be told to hawkfrom jurisdiction to jurisdiction weeping over the fact that hehas the result of the litigation in a piece of paper; but is yetprecluded from enjoying it. The prescription in Rule 25 of theTribunal Rules that in matters which are not provided for inthose Rules; the PR Act and Municipality Act, the Tribunalshall have power to regulate the procedure in connection withdisposal of a petition in the manner it thinks proper, hasnecessarily to be taken to clothe the Tribunal with furtherpowers, having regard to the purpose of its existence. WPC.23538/0987. A Tribunal in the nature of the one under consideration;vested with the power to answer a complaint made by way ofan appeal or revision; has to be held to have the power toadjudicate, decide on the issues and enable the successfulparty enjoy the fruit of the complaint. The Tribunal has to beheld to have the continued power to issue further directionsuntil then. A formidable reason for this view is that the citizenis compelled to go that Tribunal to the exclusion of the civilcourts, where he would have got the express statutoryprocedure of execution. Then, ubi jus ibi idem remedium:where there is a right, there is a remedy. Remedy is notmerely the judicial certification as to the existence of a right,at any rate, when right to further relief is irrefutable. Theremedy on a founded right has to result in the enjoyment ofthe fruit by the entitled. Bereft of that, adjudication would notbe remedial. The principle that the Tribunal being a creatureof statute, should be confined to the enumerated powers, findsno application to the jurisdiction of the Tribunal for Local Self WPC.23538/099Government Institutions in the context of the statutoryprovisions, including Tribunal Rules, as interpreted above.This purposive approach of construing the statutoryprovisions, including the Tribunal Rules, will only augmentthe constitutional need of a justice delivery system which is theprimary goal of having constituted that Tribunal and clothingit with powers. There is no legislative prohibition to theaforesaid approach in the PR Act, Municipality Act or any ofthe Rules framed thereunder. 8.In the aforesaid context, it needs to be viewed as to what isthe end point of authority of the Tribunal for Local SelfGovernment Institutions. A plain and simplicitor reading ofthe provisions contained in Chapter XXV(c) of the PanchayatRaj Act relating to the constitution of the Tribunal and theprovisions contained in the Tribunal Rules, may tend tosuggest that the Tribunal ends its proceedings by the passingof the final order. Rule 21 of the Tribunal Rules speaks of the WPC.23538/0910consequence of the order of the Tribunal and says that thefinal order will affect the notice or order issued or taken byLocal Self Government Institutions or its Secretary and theeffect is that such notice, order or action shall stand as such, ifnot interfered with; or be modified or annulled in accordancewith the final order. Therefore, the final orders contemplatedin Rule 21 of the Tribunal Rules are all those orders whichresult in affirmation, modification or annulment of the order ofthe Local Self Government Institution or its Secretary. But incases where orders of the Local Self Government Institution orits Secretary are set aside, directing further proceedings interms of the statutory provisions, a purposive and contextualappreciation of ground realities should trigger the applicationof Rule 25 of the Tribunal Rules. It has to be held that,purposively and contextually, the Tribunal would, in such case,have the power to reach at the LSGI concerned and itsSecretary and other officers who defy the command of theTribunal to take further steps. In the case in hand, the WPC.23538/0911direction was to take further steps in the light of what is statedin the orders of the Tribunal. Therefore, in the absence of anydirection in the PR Act, Municipality Act or Tribunal Rules, asto what the Tribunal shall do in a situation of alleged lethargyor disobedience to the directions, the Tribunal shouldnecessarily be held to be clothed with, and would have thepower to regulate its procedure in action with the disposal ofthe petition in the manner in which it thinks proper. Theconcept of disposal of a petition as envisaged in Rule 25 is notthe mere making of an order of remand but the final disposalof the lis between the parties which reaches the Tribunal as arevision or an appeal. 9.Where the Tribunal, after setting aside the decisions alreadytaken by the Secretary, issues an order directing the Secretaryof a Corporation to decide on an issue, the time frame withinwhich the further proceedings should commence and concludeought to be the shortest possible time for a statutory authority WPC.23538/0912to conclude a statutory proceedings under the PR Act orMunicipality Act, as the case may be. Dereliction of duty in thisregard, tantamounting to maladministration, if demonstratedin the office of any public authority falling under theMunicipality Act or the PR Act, would make that authorityamenable to the jurisdiction of the Ombudsman for Local SelfGovernment Institutions in terms of the provisions of ChapterXXV (b) of the PR Act. The Corporation, though a statutorybody, is a constitutional institution, in as much as it isenvisaged in terms of the 74th amendment to the Constitution.The primary constitutional goal of that amendment is toprovide Local Self Government Institutions (LSGI) asindependent institutions and confer them the power to ensurelocal self governance. The statutory duties of the officers ofMunicipalities and Corporations under the Kerala MunicipalityAct, 1994 vest in them statutory as well as a constitutionalobligations to perform such duties in terms of the Constitutionand the laws. Bereft of their such performance, their WPC.23538/0913continuance in office may even be purposeless. Laudableobjects are sought to be achieved by the constitution of theOmbudsman for Local Self Government Institutions, a pioneerand salutary one in the State of Kerala. That the LSGIofficials are not expected to shirk their duties andresponsibilities or sleep over the files and let people run pillarto post for relief; or otherwise, seek refuge from unlawfulforces to secure their needs, is among the clear legislativedictates of having such a machinery. In the hierarchy ofadjudicatory process under the PR Act or Municipality Act, anLSGI and its Secretary stand lower to the Tribunal and areduty bound to carry out the commands of the Tribunal. If theyrefuse to do so, that would be nothing short of mal-administration and failure to perform the duty to exercisestatutory power coming under the relevant legislations.Adverting to Section 271(f) (e), 'maladministration' meansdifferent shades of acts and omissions which fall under thetwo limbs of that definition clause. Unreasonable, unjust, WPC.23538/0914oppressive, discriminatory or nepotist administrative action,procedure or practice, which may lead the illegitimate gain orloss or denial of deserving benefits and willful negligence ordelay in taking action would fall within the termmaladministration. Administrative procedure which willresult in loss, waste or misuse of funds, by malfeasance ormisfeasance, would also lead to maladministration. Anaffirmation that a Local Self Government Institution haddefaulted or acted in excess of its powers in the discharge ofits functions imposed on it by law in implementing lawfulorders and directions of the Government, may also fall withinthe term 'allegation' for the purpose of action by Ombudsman.It also needs to be mentioned that the Tribunal would also bewell within authority, in appropriate cases; not essentially theone in hand; to make appropriate recommendations to theOmbudsman for further action for maladministration andcorruption, if necessary. WPC.23538/0915For the aforesaid reasons, this writ petition is ordereddirecting that if the petitioner moves the Tribunal for furtherorders, it would consider issuing further directions as may becalled for on the facts of the case. Equally, the petitionerscould seek relief from the Ombudsman in accordance with lawin the light of what is laid down above. With the aforesaidjurisdictions being available as alternate efficacious remedies,I do not find any ground to grant any further relief. Writpetition ordered thus, without entering on the merits of thecontroversy. Sd/-THOTTATHIL B RADHAKRISHNAN, JUDGE.lgk/7/9