W. P. (C) Nos. 205 & 5097 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 26TH DAY OF JULY 2022 / 4TH SRAVANA, 1944
WP(C) NO. 205 OF 2020
PETITIONER/S:
1 THRISSUR CORPORATION,
REP. BY ITS SECRETARY, THRISSUR DISTRICT.
2 THE SECRETARY, THRISSUR CORPORATION,
THRISSUR DISTRICT.
BY ADV SANTHOSH P.PODUVAL
RESPONDENT/S:
1 RAJESH M.U.,
S/O.UNNIKRISHNAN, MULLOTH VEEDU, KANIMANGALAM
P.O., CONVENT ROAD, THRISSUR DISTRICT - 680 027.
2 GILTON P.T.,
PULIKKAL VEEDU, KANIMANGALAM P.O., CONVENT ROAD,
THRISSUR DISTRICT - 680 027.
3 THE DISTRICT COLLECTOR,
THRISSUR - 680 001.
4 THE ASSISTANT ENGINEER,
PWD (ROADS), CHERPU SECTION, THRISSUR - 680 561.
5 KERALA LOKAYUKTHA,
VIKAS BHAVAN, LEGISLATURE COMPLEX, PALAYAM P.O.,
THIRUVANANTHAPURAM - 695 033.
BY ADV. SRI. V. TEKCHAND, SR.GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 26.07.2022, ALONG WITH WP(C).5097/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W. P. (C) Nos. 205 & 5097 of 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 26TH DAY OF JULY 2022 / 4TH SRAVANA, 1944
WP(C) NO. 5097 OF 2020
PETITIONER/S:
1 THRISSUR CORPORATION,
REP. BY ITS SECRETARY, THRISSUR.
2 THE SECRETARY,
THRISSUR CORPORATION,
BY ADV SANTHOSH P.PODUVAL
RESPONDENT/S:
1 REJI C. PARAPURAM,
S/O.CHANDI, AGED 53 YEARS, PARAPURAM HOUSE,
KOOTALA.P.O., THRISSUR-680652.
2 THE ENVIRONMENTAL ENGINEER,
KERALA STATE POLLUTION CONTROL BOARD, EAST FORT,
THRISSUR-680652.
3 THE GEOLOGIST,
DISTRICT OFFICE OF THE DEPARTMENT OF MINING AND
GEOLOGY, MINI CIVIL STATION, CHEMBUKKAVU,
THRISSUR-680020.
4 THE REVENUE DIVISIONAL OFFICE,
SUB COLLECTOR, THRISSUR DISTRICT, DISTRICT
COLLECTORATE,THRISSUR-680003.
5 THE VILLAGE OFFICER,
OLLUKKARA, OLLUKKARA.P.O., THRISSUR DISTRICT-
680655.
6 ARAVINDAKASHAN,
AGED ABOUT 52 YEARS, S/O.GOPALAN NAIR, POTTANAT
HOUSE, AYYAPPANKAVU, MULAYAM, THRISSUR DISTRICT-
W. P. (C) Nos. 205 & 5097 of 2020
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680751.
7 KERALA LOKAYUKTHA,
VIKAS BHAVAN, LEGISLATURE COMPLEX, PALAYAM.P.O.,
THIRUVANANTHAPURAM-695033.
8 STATE OF KERALA,
REP. BY CHIEF SECRETARY TO GOVERNMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695001.
BY ADV. SRI. V. TEK CHAND, SR. GP.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 26.07.2022, ALONG WITH WP(C).205/2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W. P. (C) Nos. 205 & 5097 of 2020
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JUDGMENT
S. Manikumar, C. J.
Though the names of the party respondents in W. P. (C) Nos. 205 and 5097 of 2020, namely Mr. Rajesh M. U. and Mr. Reji C.
Parapuram, who are complainants before the Lok Ayukta in complaint Nos. 1608 of 2014 and 711 of 2015 respectively, have been served, and their names are shown in the cause list, there is no representation, either in person or through Pleader.
2. Contending inter alia that the Lok Ayukta has no jurisdiction to entertain any complaint against a public servant as defined in Chapter XXV of the Kerala Panchayat Raj Act, 1994, after the constitution of Ombudsman, instant writ petitions are filed by the Thrissur Corporation.
3. Earlier, while considering a similar challenge with respect to the jurisdiction of the Lok Ayukta to entertain a complaint against a public servant, in particular, Secretary of the Local Self Government Institutions, by judgment dated 25.07.2022 in W. P. (C) No. 35570 of 2019, we ordered thus:-
W. P. (C) Nos. 205 & 5097 of 2020 -5- "8. On this day, when the matter came up for hearing, placing reliance upon Section 271 O of the Act, 1994 and the procedure contemplated therein, Mr. Santhosh P. Poduval, learned counsel for the petitioner, submitted that on or after the constitution of Ombudsman, Lok Ayukta has no jurisdiction to entertain any complaint against the Secretary of the Local Self Government Institutions, i.e., in the case on hand, the Secretary of the Thrissur Corporation.
9. The learned counsel has also placed reliance upon the decision in Jose V. Jacob v. Thalayolaparambu reported in 2016 (1) KLT 362, in which it is held that after the enactment of Section 271 O in Act, 1994, Lok Ayukta ought not have proceeded with any complaint or mal administration with regard to a public servant of a Local Self Government Institution.
10. As per Section 271 O, there is an embargo for the Lok Ayukta to entertain a complaint in which corruption or mal administration of a Public Servant or Local Self Government Institution is alleged.
11. In that regard, it is profitable to extract Section 271O, which deals with 'existing cases to be transferred to Ombudsman', and it reads thus:
"271 O. Existing cases to be transferred to Ombudsman. - (1) Notwithstanding anything contained in the Kerala Lok-Ayukta Act, 1999 (8 of 1999) or any other law, if any proceedings, filed and not disposed of under the said Act, before the constitution of Ombudsman as per the provisions of this chapter, relate to a public servant or Local Self Government Institution as per the provisions of this W. P. (C) Nos. 205 & 5097 of 2020 -6- Act, all cases with regard to such proceedings shall be transferred to the Ombudsman and the Ombudsman shall decide the cases in accordance with the provisions of this Act.
(2) All cases, with regard to the loss, wastage and misappropriation of any land of the Local Self Government Institution, pending before the Government or any other authority and disposed of just before the constitution of Ombudsman and the Ombudsman shall dispose of the cases in accordance with the provisions of this Act.
(3) No complaint, against a public servant as defined in this chapter, shall be entertained by a Lok- Ayukta or Upalok-Ayukta constituted as per the Kerala Lok-Ayukata Act, 1999 (8 of 1999) on or after the date of the constitution of Ombudsman as per the provisions of this chapter."
12. Chapter XXVB of the Act, 1994 deals with 'the constitution of Ombudsman for Local Self Government Institutions'. The terms 'allegation' and 'mal administration' are defined in Section 271F(b) and (e) respectively and they read thus:
271 F. Definitions. - (1) For the purpose of this Chapter, -
....
(b) 'allegation', -
(a) in relation to a public servant means, any affirmation that such public servant, -
(i) has abused his position as such for any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
(ii) was actuated in the discharge of his functions as such public servant by personal interest or improper or W. P. (C) Nos. 205 & 5097 of 2020 -7- corrupt motives;
(iii) is guilty of corruption, favouritism, nepotism or lack of integrity;
(iv) is guilty of any action as public servant which facilitates or causes to make any loss, waste or misapplication of money or other property of the Local Self Government Institution.
(b) In relation to a Local Self Government Institution means any affirmation that such Local Self Government Institution has defaulted or acted in excess of its powers in the discharge of its functions imposed on it by law or in implementing the lawful orders and directions of the Government;
...
(e) 'Maladministration' means action taken or purporting to have been taken in the exercise of administrative function in any case, -
(i) Where such action, administrative procedure or practice governing such auction is unreasonable, unjust, oppressive, discriminatory or nepotic and will make illegitimate, gain or loss or will deny deserving benefits; or
(ii) Where there is wilful negligence or delay in taking such action, or the administrative procedure or method regulating such action will cause undue delay and includes the action leading to loss or waste or misuse of fund by mal-feasance or misfeasance."
13. Functions of the Ombudsman as per Section 271J of the Act, 1994, which includes enquiry into a complaint in which corruption or mal administration of a public servant or a Local Self Government institution is alleged, reads thus:
"271 J. Functions of the Ombudsman. - (1) The Ombudsman shall perform all or any of the following functions, namely: -
W. P. (C) Nos. 205 & 5097 of 2020 -8-
(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;
(ii) Enquire into any complaint in which corruption or maladministration of a public servant or a Local Self Government Institution is alleged;
(iii) Pass an order on the allegation in the following manner, namely: -
(a) Where the irregularity involves a criminal offence committed by a public servant, the mater shall be referred to the appropriate authority for investigation.
(b) Where the irregularity causes loss or inconvenience to a citizen, direct the Local Self Government Institution to give him compensation and to reimburse the loss from the person responsible for the irregularity;
(c) Where the irregularity involves loss or waste or misuse of the fund of the Local Self Government Institution, realise such loss from those who are responsible for such irregularity, and
(d) Where the irregularity is due to omission or inaction cause to supply the omission and to rectify the mistake.
(2) In addition to the functions enumerated in sub- section (1), the Ombudsman may pass interim order restraining the Local Self Government Institution from doing anything detrimental to the interest of the complainant if it is satisfied that much loss or injury will be caused to the complainant due to the alleged act.
(3) The Ombudsman may by order, impose penalty in addition to compensation if it is of opinion that the irregularity involves corrupt practice for personal gain."
14. Section 271N sets out the details as to how an W. P. (C) Nos. 205 & 5097 of 2020 -9- enquiry has to be conducted. On an analysis of the said provision, it is clear that as per Section 271-O, existing cases has to be transferred by the Lok Ayukta to the Ombudsman.
15. As per Section 271G of the Act, 1994 (13 of 1994) Government of Kerala constituted the Ombudsman with effect from 29.05.2000 (S.R.O. No. 44/2000 dt. 29.05.2000). Ombudsman is an authority constituted for Local Self Government Institutions of the State level for conducting investigations and enquiries in respect of any action involving corruption or mal administration or irregularities in the discharge of administrative functions by the Local Self Government Institutions or by an employee or an officer working under the Local Self Government Institutions or by an employee or an officer working in an office or institution transferred to such Local Self Government Institutions or by the elected member of Local Self Government Institutions, including its President or Chairperson, and for the disposal of such complaints in accordance with the provisions of the Act.
16. From the above, it could be deduced that the Ombudsman for Local Self Government Institutions has been constituted on and with effect from 29.05.2000; however, instant complaint is preferred on 14.10.2019 against the Secretary of the Thrissur Corporation and others. As per Section 271J(ii), the Ombudsman has authority to enquiry into any complaint in which corruption or mal administration of a public servant or a Local Self Government Institution is alleged.
17. In Jose V. Jacob (supra), a Hon'ble Division Bench W. P. (C) Nos. 205 & 5097 of 2020 -10- of this Court had occasion to consider a similar case, where a complaint was made against a Grama Panchayat. One of the issues raised before the Hon'ble Division Bench was that the complaint filed by the appellant therein before the Lok Ayukta was not maintainable and it is barred under Section 271 O of the Act, 1994.
18. Adverting to the statutory provisions and the submissions, Hon'ble Division Bench held as follows:
"10. The provisions of Ss.271 F to 271 R have been enacted subsequent to the enactment of Act 1999 for a limited purpose that is for creating an Ombudsman for Local Self Government Institution and the complaint pertaining to the Local Self Government Institution, its officers and employees and elected personnels have been taken out from the purview of Lok Ayukta with specified purpose and object.
11. The submission of the learned counsel for the appellant that still there is jurisdiction with the Lok Ayukta to consider and hear the complaint against the Local Self Government Institution is to make the enactment of Act 12 of 2001 is futile and unworkable. There cannot be any uncertainty with regard to filing of any complaint pertaining to officers, employees and elected members of Local Self Government Institution. The use of word "notwithstanding anything contained in the Kerala Lok Ayukta Act, 1999" in sub-section (1) of S.271 O is for a specified purpose and the non obstante clause used is specifically overwrites the provisions of Act 1999 in so far as the subject as covered by S.271 O is concerned. No other interpretation is possible for the aforesaid provisions. We, thus, have to consider that S.271 O has to be taken out to consider the complaints against the Local Self Government Institution out of the purview of Act 1999.
...
W. P. (C) Nos. 205 & 5097 of 2020 -11-
14. .... The prayers made in the complaint also indicate that investigation was asked against allegation of corruption, mal-administration, favouritism etc., with regard to execution of concession agreement. Since the agreement having been executed by the Panchayat, the complaint was to be enquired into by the Ombudsman and merely because the complainant has impleaded Deputy Director of Panchayat and the contractor or some other private persons does not take away the investigation of the complaint from the purview of Ombudsman. While deciding the above jurisdiction to enquire the complaint, the substance of the complaint has to be looked into and the investigation of the complaint cannot be permitted to proceed with the Lok Ayukta merely because some additional persons have been impleaded in the complaint. Any inclusion of some additional persons may be for completion of narration of facts for deciding the issue, which may have relevance in the allegations made in the complaint and that cannot take away the original jurisdiction of the complaint, which has to be enquired by the Ombudsman. Thus, we are not persuaded to accept the submission made by the learned counsel for the appellant that since other individual persons were impleaded, who were not covered under the definition of 'public servant' as defined under S.271 F(1)(g), the complaint was within the jurisdiction of Lok Ayukta. We do not find any error in the judgment of the learned Single Judge allowing the Writ Petition. However, we observe that it shall be open for the appellant/ complainant to agitate the matter before the Ombudsman."
19. Taking into consideration the statutory provisions extracted supra and the decision of the Hon'ble Division Bench in Jose (supra), we have no hesitation to hold that Complaint No. 1610/2014A preferred by respondent No.1, after the constitution of the Ombudsman against the Secretary of Thrissur Corporation, is clearly barred by Section 271O of the Act, 1994. Therefore, the W. P. (C) Nos. 205 & 5097 of 2020 -12- impugned Ext. P1 order dated 14.10.2019 passed by the Lok Ayukta is without jurisdiction and the same requires to be set aside. Accordingly, we set aside Ext. P1 order dated 14.10.2019 passed by the Kerala Lok Ayukta in Complaint No. 1610/2014 A against the Secretary of the Thrissur Corporation, the petitioner herein.
This writ petition is allowed as above."
4. Facts and law stated before this Court in the instant writ petitions are identical.
In such circumstances, we have no hesitation to follow the decision made in W. P. (C) No. 35570 of 2019 dated 25.07.2022.
Accordingly, writ petitions are allowed.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) Nos. 205 & 5097 of 2020 -13- APPENDIX OF WP(C) 205/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF COMPLAINT SUBMITTED BY THE 1ST RESPONDENT NUMBERED AS COMPLAINT NO.1608/14-A ISSUED BY THE LOK AYUKTA. EXHIBIT P2 TRUE COPY OF NOTICE DATED 15/10/19 ISSUED BY DEPUTY REGISTRAR, KERALA LOL AYUKTA.
W. P. (C) Nos. 205 & 5097 of 2020 -14- APPENDIX OF WP(C) 5097/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF COMPLAINT NO.711 OF 2015 BEFORE THE 7TH RESPONDENT.