Kulukkalloor Grama Panchayath Represente by Its Secretary v. Ombudsman For Local Self Government Institutions, Thiruvananthapuram
2013-02-20
C.K.ABDUL REHIM
body2013
DigiLaw.ai
Judgment : 1. Petitioner Grama Panchayat is challenging Ext.P7 order issued by the 1st respondent, the Ombudsman for Local Self Government Institutions. The 2nd respondent had approached the 1st respondent with a complaint that the petitioner panchayat had failed in making payment of an amount of Rs.1,03,055/- due, towards cost of materials supplied by them on the basis of orders placed by the panchayat, for the purpose of execution of two Lift Irrigation works. It is alleged that, inspite of repeated demands made, the amount was not paid. The prayer made before the Ombudsman was to issue directions for payment of the amounts due. 2. Before the Ombudsman, the Secretary of the petitioner panchayat had filed Exts.P5 and P6 objections. In Ext.P5 it is contended that, convenors of the beneficiary committees had executed the works and the materials in question were not supplied to the panchayat, nor it was received by the panchayat. It was contended that the materials were accepted only by convenors of the works in question and therefore the panchayat has no liability. Specific denial of the liability was raised and it is contended that if any amount is due on the basis of the supply effected, the same has to be recovered from the 3rd respondent and others. In Ext.P6 also the said contentions were reiterated. It is stated that the panchayat had only issued a letter stating that the materials can be supplied to the convenors of the beneficiary committees and as per that letter the convenors have accepted those materials directly. It was only for introducing the convenors, such a letter was issued. There is no contract between the panchayat and the 2nd respondent entered for supply of any materials and no materials were supplied to the panchayat, is the contention. 3. In the impugned order, the Ombudsman found that the contentions of the panchayat cannot be accepted, because the materials were delivered pursuant to a letter issued by the Secretary. Therefore direction was issued to the petitioner panchayat to make payment of the amounts due from its 'own funds' and to recover the same from the Secretary was in charge during the relevant time, within a time limit stipulated. 4. I am not persuaded to interfere with Ext.P7 order on the basis of the merits of the dispute.
Therefore direction was issued to the petitioner panchayat to make payment of the amounts due from its 'own funds' and to recover the same from the Secretary was in charge during the relevant time, within a time limit stipulated. 4. I am not persuaded to interfere with Ext.P7 order on the basis of the merits of the dispute. But, learned counsel for the petitioner had raised a fundamental issue on the aspect of jurisdiction. Referring to Section 271-J of the Kerala Panchayat Raj Act, 1994, it was contended that the Ombudsman can perform only those functions enumerated therein. Section 271-J provides that the Ombudsman can investigate into any allegations contained in a complaint and can enquire into any complaint in which corruption or mal-administration of any Local Self Government Institution is alleged. It further provides that the Ombudsman can pass orders on the allegations in the manner specified therein. Learned counsel had referred to Section 271-F wherein the word "allegations" is defined. It enumerates that, in relation to a Local Self Government Institution, any affirmation that such institution has defaulted or acted in excess of its power in discharge of functions imposed on it by law, will amount to an allegation. Therefore, in order to constitute an 'allegation', there should be an affirmation to the effect that the panchayat had defaulted in discharge of functions imposed on it by law. I am of the considered opinion that, when the petitioner panchayat is disputing liability of the amount, it cannot be affirmed that it had defaulted in discharge of any functions imposed on it by law. The word "complaint" is also defined under Section 271-F, which includes an allegation that a Local Self Government Institution is guilty of corruption or mal-administration. The word "corruption" is given the same meaning as contained in the Indian Penal Code and under the Prevention of Corruption Act, 1988. The word "mal-administration" is defined as any action taken or purporting to have been taken in exercise of administrative functions in any case where such action, administrative procedure or practice governed such actions is unreasonable, unjust, oppressive, discriminatory or nepotic and will make an illegitimate gain or loss or will deny deserving benefits. It also includes a willful negligence or delay in taking such action, and any action leading to loss or waste or misuse of funds by malfeasance or misfeasance. 5.
It also includes a willful negligence or delay in taking such action, and any action leading to loss or waste or misuse of funds by malfeasance or misfeasance. 5. Learned counsel for the 2nd respondent contended that, when there is failure or undue delay in making payment of amounts due in a totally unreasonable manner which results in causing loss to the 2nd respondent, the action will squarely fall within the category of 'maladministration' and the Ombudsman has jurisdiction to enquire into such complaint. The above contention was stiffly opposed by learned counsel for the petitioner. 6. Question to be decided is as to whether the 2nd respondent can attribute corruption or maladministration or can raise an allegation of default in discharge of the functions imposed under law, on the basis of a claim for money raised liability of which is denied by the panchayat. The dispute pertains to payment of amounts allegedly due towards cost of the materials supplied. It it evident from contentions of the panchayat that they are refuting the liability. There exists a dispute as to whether the petitioner panchayat is liable for payment of the amounts demanded. 7. When a complaint is filed seeking for a direction for payment of amounts allegedly due, and when the panchayat takes a stand that they are not liable to pay the amount, can it be held that there is an allegation of corruption or mal-administration or irregularity or failure in discharge of functions under law? I am of the considered opinion that a disputed claim for money is not a matter coming within the purview of 'allegation' or 'complaint' or'mal-administration' as defined under Section 271-F of the Act. Therefore the Ombudsman has no jurisdiction to adjudicate upon such claims for payment of money. 8. The above position remains settled through a decision of this court in John A., Ansons Group, Architects V. Changanacherry Municipality and another (2011 KHC 800). A learned Judge of this court had negatived the claim for payment of money, with respect to work done for the Municipality, as one not maintainable before the Ombudsman. It is observed in that decision that the term "allegation" and the term "complaint" as defined under the Act does not include a particular claim for money made by a citizen against a local authority, whatever be the ground for raising such a claim.
It is observed in that decision that the term "allegation" and the term "complaint" as defined under the Act does not include a particular claim for money made by a citizen against a local authority, whatever be the ground for raising such a claim. It is found that, unless the claim for money is by way of compensation as a result of an act of mal-administration, no complaint before the Ombudsman is maintainable. 9. Under the above mentioned circumstances, I am of the opinion that the 1st respondent has no jurisdiction to entertain Ext.P4 complaint. The impugned order issued by the Ombudsman suffers from lack of jurisdiction. In the result the writ petition is allowed and Ext.P7 is hereby quashed. 10. However, it is made clear that this court has not expressed any opinion regarding the merits of the claim for money raised by the 2nd respondent or with respect to liability of the petitioner panchayat for payment of the same. It is further made clear that the 2nd respondent will be at liberty to take appropriate steps for realisation of the amount, either from the petitioner or from the 3rdrespondent or anybody else, as permissible under law, by resorting to appropriate remedy. Learned counsel for the 2nd respondent made an appeal to this court to make an observation that they are entitled to get the period spend before the Ombudsman and this court, while computing limitation for the purpose of filing civil suit. It is for the competent civil court to consider such issues. The 2nd respondent will be at liberty to raise all such contentions before the civil court, if any suit is instituted.