Mayor of Kochi Vs. Ombudsman for Local Self Government Institutions - Court Judgment

Jawahar Lal Gupta, C.J.

1. Is the Ombudsman appointed under Chapter XXV B of the Kerala Panchayat Raj Act, 1994 competent to proceed against a Municipality or Municipal Corporation? This is the primary question that arises for consideration in these two Writ Petitions under Article 226 of the Constitution. The learned Counsel for the parties have referred to the facts in O.P.No. 9483 of 2002. These may be briefly noticed.

2. The Municipal Corporation of Cochin and its Mayor are the petitioners. They are aggrieved by the order dated April 2, 2002 passed by the Ombudsman. By this order observations have been made against 'the entire body of elected members and officials'. No new projects can be executed without the approval of the Ombudsman. The petitioners allege that the order is without jurisdiction. The Ombudsman created under the Panchayat Raj Act has no jurisdiction 'over areas within the limits of the Corporation of Cochin'. The Act does not extend to Municipal Corporations. A body created under the Act cannot pass orders in violation of the statute. The impugned order does not conform to the provisions of Section 271J. The order has affected the working of the Corporation. By the impugned action all activities of the Corporation have been stopped. The observations have been made against the Corporation and its staff 'without any notice'. On these premises the petitioners pray that the impugned order be quashed. They also pray for a declaration that the Ombudsman has no jurisdiction over the Corporation.

3. A counter-affidavit has been filed by the Joint Secretary, Department of Local Self Government. In view of the order passed by the Court, opinion from the office of the Advocate General was sought. A Draft Amendment Bill with regard to the extension of jurisdiction of the Ombudsman to the Municipal Corporations was moved. It was approved by the Council of Ministers. It is being processed by the Law Department. C.M.P. 17674 of 2002 was filed by Samatha Law Society for being impleaded as a respondent. This application was dismissed on July 2, 2002. However the learned Counsel was permitted to make his submissions at the time of hearing of the case. Thus, we have heard learned Counsel for the parties. 4. On behalf of the petitioners Mr. Ramesh Babu has contended that by virtue of the provisions contained in Section 1(2), the provisions of the 1994 Act did not apply to the areas, which are within the limits of the Contonments, Nagar Panchayats, Municipal Councils, Municipal Corporations and the Industrial Areas of the State. Thus, even the provisions of Chapter XXV B, which was introduced by Act 13 of 1999 with effect from March 24, 1999, shall not be applicable to a Municipal Council or Corporation. Resultantly, the Ombudsman has no jurisdiction over the petitioners. On the other hand Mr.Hariraj contended that the provisions of Chapter XXV B applied to all institutions of Local Self Government. Since the petitioner Corporation is such an institution, the provisions of Chapter XXV B are applicable. On behalf of the State Mr. Roy Chacko, Senior Government Pleader has submitted that as at present the provisions of the Act do not extend to any institution except the Panchayats. However, the State Government is introducing an amendment so as to provide for extension of jurisdiction of the Ombudsman to the Municipal Councils and Corporations.

5. It is in the light of the above submissions that the question as posed at the outset has to be examined.

6. The Panchayats and Municipal Councils have existed in the country for a long time. However, there were inadequacies in the system. The institutions were unable to effectively perform the duties of Local Government. Thus, the 73rd and 74th amendments were promulgated. In pursuance to the amendment of the Constitution the existing statutes relating to the Panchayats and Municipalities were substituted by the Kerala Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994. Under these enactments the Panchayats were envisaged as institutions for Local Self Government in rural areas and, the Municipal Councils and Corporations or Nagar Panchayats for urban areas. In both these statutes a provision defining the local authority was given. Subsequent amendments were also made. After the promulgation of Act 13 of 1999, Section 2(22) defines 'Local Authority' or 'Local Self Government Institution' to mean 'a Panchayat at any level constituted under Section 4 of this Act or a Municipality constituted under Section 4 of the Kerala Municipality Act, 1994'. Chapter XXV B was introduced by Act 13 of 1999. It consists of Sections 271 F to 271 R. Section 271 G provides that 'there shall be an authority for Local Self Government Institutions, at State level known as Ombudsman for making investigations and inquiries, in respect of charges on any action including corruption or maladministration or irregularities in the discharge of administrative functions, in accordance with the provisions of this Act by Local Self Government Institutions and public servants working under them and for disposal of such complaints in accordance with Section 271Q'.

7. The plain language of the provision contemplates that the authority is constituted to investigate and enquire into complaints against all institutions of Local Self Government. The Panchayats, Municipal Councils and Corporations are admittedly institutions of Local Self Government. All of them come within the sweep of the statutory provision. The provision has been made with the object of ensuring purity in administration and to check corruption. It is meant to provide an easy remedy to the aggrieved citizen. The provision is intended to promote public interest. It needs to be interpreted liberally. There appears to be no reason to restrict the scope and ambit of the jurisdiction conferred by the Legislature in the matter of appointment and functioning of the Ombudsman. A narrow construction, which may defeat the object of the amendment of the statute, has to be avoided.

8. Mr. Ramesh Babu, learned Counsel for the petitioners has contended that Section 1(2) restricts the operation of the Panchayat Raj Act to only those areas, which fall within the jurisdiction of the Panchayats. The Act does not extend to the areas, which are within the limits of the Municipal Councils or Corporations. Resultantly provisions of Chapter XXV B and the jurisdiction of the Ombudsman cannot extend to the Corporations or the Municipal Councils.

9. Apparently the contention is plausible. If Section 1(2) is literally construed the contention appears to be correct. However, two facts deserve to be mentioned. Firstly, it is an admitted fact that Chapter XXV B was introduced by Act 13 of 1999 with effect from March 24, 1999. The provision regarding the Constitution of Ombudsman did not exist in the year 1994 when the Panchayat Raj Act was enacted. It appears that at the tune of the enactment of Chapter XXV B and the other provisions there was an omission to make a corresponding amendment in Section 1(2). However, despite this the legislative intent was made manifest by various provisions in Act 13 of 1999. In this context it may be noticed that in Section 271 F definitions were given. Even the word 'allegation' was defined. The definition was made applicable in cases of all institutions for Local Self Government. Similarly, corruption and maladministration took within its ambit the acts of all the persons who are connected with the institutions. Even the functions of the Ombudsman were defined. A specific provision was made in Section 271. It was empowered to 'enquire into any complaint in which corruption or maladministration of a public servant or a Local Self Government Institution is alleged'. Still further, the authority was empowered to give directions and order payment of compensation etc. by the persons responsible for the irregularity. Even power to impose penalty in addition to compensation was conferred. Under Section 271 M, a provision for investigation was made. This power extended to investigation of 'any allegation of corruption or maladministration against a Local Self Government Institution or a public servant.....'. Under Section 271O the Legislature ordained that the complaints pending before Lok Ayuktha relating to public servants or 'Local Self Government Institutions' shall 'be transferred to the Ombudsman and the Ombudsman shall decide the case in accordance with the provisions of this Act'.

10. On an examination of the provisions it is evident that the legislative intent was to constitute the Ombudsman for looking into the allegations against public servants or elected members working in the Panchayats or the Municipal Councils and Corporations. Even in a case where a complaint was pending against a public servant or a Local Self Government Institution before the Lok Ayuktha, it had to be transferred to the Ombudsman.

11. Mr. Roy Chacko appearing for the State Government contended that under Section 271G the appointment is under the Panchayat Raj Act. Even the Order makes a reference to the said enactment. Thus it cannot be said that the Legislature intended to extend the power of Ombudsman to institutions other than Panchayats. Is it so?

12. It is the admitted position that the Panchayats are headed by Presidents and the Municipal Councils/Corporations by Chairmen. This fact is evident from even the Government Order dated May 29, 2000 by which the Ombudsman was constituted. The jurisdiction extended to the President as well as to the Chairperson. Still more even the Legislature had not left the matter in doubt. A public servant was defined in Section 271F(g) to mean 'an employee or officer under the Local Self Government Institution or an elected member of the Local Self Government Institution including its President or Chairperson and includes an employee or officer of any office or institution transferred to the Local Self Government Institution under the provisions of this Act.

13. Admittedly, not only the elected representatives like the President or the Chairperson but even the employees working in the Institution for Local Self Government like the Panchayats and Municipal Councils fall within the jurisdiction of the Ombudsman.

14. In view of the above, it is clear that the legislative intent while enacting Chapter XXV B was not to restrict the functioning of the Ombudsman to the Panchayats but to extend it to all institutions of Local Self Government.

15. There is another aspect of the matter. Almost simultaneously with the enactment of the Panchayat Raj Act, 1994 the Legislature had enacted the Kerala Municipality Act, 1994. In this enactment Section 1(2) provides that the provisions extend 'to the whole of the State of Kerala'. Thus, it is clear that areas, which under the Panchayat Raj Act, fall within the jurisdiction of the Panchayats are not out of the jurisdiction of the Municipalities. Still further Section 2(6) defines 'Chairperson' to mean the Chairman of the 'town Panchayat or Municipal Council and in relation to a Municipal Corporation the Mayor of that Municipal Corporation'. A Chairperson is certainly under the jurisdiction of the Ombudsman. So are the public servants and other elected members. In this view of the matter, the issue that arises is-- Should Section 1(2) be so narrowly construed so as to exclude the Municipalities etc. from the jurisdiction of the Ombudsman?

16. One of the cardinal rules of interpretation is that while examining the provisions of a Statute, the text and the context have to be kept in view. If the context is kept in view, it is apparent that the legislative purpose was to provide remedy to the people. If that is the intended purpose, it cannot be defeated by limiting the scope of the statute. It needs to be given a liberal interpretation. Resultantly, the contention that the Ombudsman has no jurisdiction over the Corporation cannot be sustained.

17. In this context, it deserves mention that the Panchayats and Municipalities are Institutions for Local Self Government. They are not strangers to each other. They do not work against each other. In fact they are expected to work together. Even the statutory scheme indicates that the two have to function together. Section 37 of the Municipalities Act and Section 165 of the Panchayat Raj Act contemplate constitution of joint committees. The two have to work in unison. Resultantly, a common authority has been constituted for overseeing their work. The enactment is not beyond the legislative powers of the State. It does not violate any provision of the Constitution. It in fact promotes public interest. Thus, we find no illegality or anything wrong in the Ombudsman issuing a notice or passing an order in respect of the petitioner Corporation.

18. The second contention raised on behalf of the petitioners is that the impugned order was passed without any notice. If an opportunity had been given the petitioners would have brought the factual position to the notice of the authority. As a result the order could have been different.

19. It is not disputed on behalf of the respondents that notice was not given. It is also apparent that strong observations have been made against the petitioners. Even if it is assumed that there is good basis for these observations, the principles of natural justice required that an opportunity should have been given.

20. It is not disputed that an opportunity was not given. This was violative of the principles of natural justice.

21. Without expressing any opinion on merits, we hold that the Ombudsman had the jurisdiction to pass an order against the petitioners. However, it was bound to give them an opportunity before making adverse comments or passing the impugned order. It had erred in failing to afford an opportunity to the petitioner. Resultantly, while upholding the jurisdiction, we quash the order. It would, however, be open to the Ombudsman to proceed afresh in accordance with law.

22. O.P.No. 9483 of 2002 is accordingly disposed of. No costs.

23. The petitioner in O.P.15401 of 2002 had approached the Ombudsman with a petition. A copy has been produced as Ext.P-1. It was rejected by order dated April 29, 2002 on the basis of the interim order passed in O.P.9483 of 2002. This Original Petition has been heard and decided by us today. For the reasons stated in the Judgment we find that the Ombudsman had the jurisdiction to entertain a complaint against the Municipal Corporation. Thus, the interim order stands vacated.

24. For the reasons stated in the Judgment in O.P.9483 of 2002, we find that the Ombudsman had the jurisdiction. Resultantly, the order dated April 23, 2002, copy of which has been produced as Ext.P2, cannot sustained. It is, consequently, set aside.

O.P.No. 15401 of 2002 is accordingly disposed of.