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2022 DIGILAW 1115 (GAU)

Lalrinawma, S/o Lalzuia v. State of Mizoram

2022-09-28

NELSON SAILO

body2022
JUDGMENT : Heard Mr. Lalfakawma, learned counsel for the petitioners and Mrs. H. Lalmalsawmi, learned Government Advocate for the respondent Nos. 1, 2 & 3. None appears for the respondent Nos. 4 & 5 despite service of notice. Also heard Mr. C. Zoramchhana, learned counsel appearing for the respondent Nos. 6 & 7. 2. By filing this writ petition, the petitioners have challenged the Notification dated 02.05.2022 by which, Keifang Venglai Village Council has been dissolved with effect from the date of the notification. The petitioner has also challenged the findings/observations/directions dated 18.02.2022 (Annexure-7) of the Ombudsman in Complaint No. 42/2022 recommending dissolution of the Village Council and for establishment of Advisory Board till fresh election of the Village Council is held. The petitioners have also challenged the show-cause notice dated 10.03.2022 (Annexure-8) issued to them by the respondent pursuant to the award passed by the Ombudsman, the Notification dated 02.05.2022 (Annexure-10) by which the Village Council was dissolved and also the Order dated 24.05.2022 (Annexure-11) of the respondent No. 1 constituting the Keifang Venglai Village Advisory Board. 3. Brief facts essential for disposal of the writ petition may be noticed at the outset. By notification dated 22.11.2019, the Keifang Village Council as it existed then was trifurcated into Keifang Venghlun Village Council, Keifang Venglai Village Council and Keifang Leitan Village Council. Pursuant to the said notification, election to the three Village Councils was held on 27.08.2020 and results declared on the same day. The petitioners were elected to the newly created Keifang Venglai Village Council and thereafter, amongst themselves they elected the President, Vice-President and Treasurer of the Village Council. The petitioner No. 1 was elected as the President, the petitioner No. 2 as Vice President, the petitioner No. 3 as Treasurer and the petitioner Nos. 4 & 5 as Members of the Village Council. 4. While the petitioners were functioning as such, a complaint was submitted by the respondent Nos. 4 & 5 before the District Local Administration Department, Aizawl District, Aizawl (respondent No. 3) on 21.09.2021 alleging that the Village Council members were indulging themselves in issuing fake Passes and thereby misusing their power while depriving the people of their rights. It was also alleged that an amount of Rs. 2,57,53,223/-had been paid as compensation towards fake Passes and the rightful owner of the land were being deprived of the fruits of their hard work. It was also alleged that an amount of Rs. 2,57,53,223/-had been paid as compensation towards fake Passes and the rightful owner of the land were being deprived of the fruits of their hard work. Against the complaint, the respondent No. 3 vide Order No. 14/2021 dated 24.09.21 directed the Field Inspector of the Department to conduct a spot verification and to submit a report. The Field Inspector, accordingly, conducted spot verification and submitted back his report dated 01.10.2021 on 04.10.2021 (Annexure -4). Pursuant thereto, the Under Secretary to the Govt. of Mizoram, Local Administration Department referred the matter to the Ombudsman, Local Bodies, Sikulpuikawn, Aizawl, for further investigation while enclosing a copy of the complaint and the enquiry report submitted by the Field Inspector vide his Letter dated 30.11.2021 (Annexure -5). The Ombudsman, thereafter, summoned the petitioners as well as the complainants and after hearing and recording their statements came to his finding, and observation on 18.02.2022 that there was substance and merit in the complaint and that the Village Council should be dissolved and an Advisory Board be constituted until fresh election is conducted. 5. On the basis of the conclusion of the Ombudsman, show-cause notice dated 10.03.2022 was issued to the members of the Village Council/petitioners asking them to show cause as to why the Village Council should not be dissolved. In response to the show-cause, the petitioners submitted their reply on 19.03.2022. Thereafter, the respondent No. 1 vide the impugned Notification dated 02.05.2022 dissolved the Village Council and vide impugned Order dated 24.05.2022, appointed Members of the Keifang Venglai Village Advisory Board. Aggrieved, the petitioners are before this Court through the instant writ petition. 6. Mr. Lalfakawma, learned counsel submits that the petitioners were not given a copy of the report submitted by the Field Inspector. In fact, they themselves applied for the enquiry report by filing RTI application on 26.05.2022 after the dissolution of the Village Council. Referring to the enquiry report, the learned counsel submits that the Field Inspector did not arrive at any finding but generally recorded what was narrated to him by the persons he interacted with during the enquiry. The Ombudsman has no jurisdiction to direct the dissolution of the Village Council. If at all, complaints are entertained, the Ombudsman can award compensation for the loss sustained or direct recovery of the loss under Section 17(1). The Ombudsman has no jurisdiction to direct the dissolution of the Village Council. If at all, complaints are entertained, the Ombudsman can award compensation for the loss sustained or direct recovery of the loss under Section 17(1). Whereas in the instant case, the Ombudsman directed dissolution of the Village Council and also for appointment of Advisory Board pending fresh election, which is wholly without any jurisdiction and therefore, the interference of this Court is called for. 7. Mr. Lalfakawma further submits that as per Rule 13(4) of the Mizoram (Establishment of Independent Local Body) Ombudsman Rules, 2013 (Rules of 2013), the award passed by the Ombudsman shall become binding upon local body and on the complainant provided that the award is furnished to the complainant within a period of 15 days and a Letter of Acceptance of the award has been made by the complainant. He submits that unless the same is done, the award shall lapse and have no effect. The learned counsel also submits that the admitted position in the present case is that there is no such acceptance of the award by the complainant as admitted by the respondent authorities themselves to the query raised by the petitioners through RTI, wherein, they clearly mentioned that the same was not the practice. In this connection, he draws the attention of the Court to Annexure-13 of the writ petition, which is a reply given by the Ombudsman to the RTI query made on behalf of the petitioners. 8. The learned counsel further submits that the show-cause notice dated 10.03.2022 issued by the respondent No. 1 to the petitioners is vague, inasmuch as, no specific allegation or the details of the allegation has been specified therein. He submits that if the show-cause notice is vague and not specific, any action taken pursuant to such show-cause notice will be in clear violation of the principles of natural justice and will be a good ground for the Court to interfere with the same. In support of his submissions, the learned counsel has relied upon the following authorities:- (1) Commissioner of Central Excise, Bangalore vs. M/s Brindavan Beverages (P) Ltd. & Ors., (2007) 5 SCC 388 . (2) Oryx Fisheries Pvt. Ltd vs. Union of India & Ors., (2010) 13 SCC 427 . (3) UMC Technologies Pvt. Limited vs. Food Corporation of India, (2021) 2 SCC 551 . 9. (2) Oryx Fisheries Pvt. Ltd vs. Union of India & Ors., (2010) 13 SCC 427 . (3) UMC Technologies Pvt. Limited vs. Food Corporation of India, (2021) 2 SCC 551 . 9. Relying upon the case of Oryx Fisheries Pvt. Ltd (supra), Mr. Lalfakawma, learned counsel submits that the impugned order dissolving the Village Council does not contain the response given by the petitioners to the show-cause reply which itself goes to show that the reply of the petitioners have not been properly considered and lastly, the show-cause notice issued to the petitioners on 10.03.2022 merely repeats the observation and finding given by the Ombudsman which goes to show that the respondent authorities concerned have failed to act with an open mind while initiating the show-cause proceeding. He thus submits that under the facts and circumstances, the impugned dissolution of the Village Council is illegal and arbitrary and should be set aside. 10. Mrs. H. Lalmalsawmi, learned Government Advocate on the other hand submits that even without taking recourse to the provisions of the Mizoram (Establishment of Local Body) Ombudsman Act, 2011 (Act of 2011) and the Rules of 2013, the State Government is empowered to take appropriate action against the Village Council in terms of Section 25(1) of the Lushai Hills District (Village Councils) Act, 1953 (V.C Act). She submits that non furnishing of the verification report does not vitiate the enquiry proceedings, inasmuch as, all the writ petitioners as well as the two private respondents were all present at the time of the spot verification. To substantiate her submission, the learned counsel has referred to attendance-sheet attached to the enquiry report wherein, the participants have duly given their respective signatures. She further submits that the Field Inspector had gone to the spot to verify as to whether there was any substance on the complaint submitted and he was required to make a report only and not to make a recommendation as to how the matter should be further proceeded with. She submits that, accordingly, the Field Inspector had submitted his report and the respondent authority concerned decided to refer the matter to the Ombudsman for further investigation and therefore, there was nothing wrong in the steps adopted by the respondent authorities. 11. She submits that, accordingly, the Field Inspector had submitted his report and the respondent authority concerned decided to refer the matter to the Ombudsman for further investigation and therefore, there was nothing wrong in the steps adopted by the respondent authorities. 11. The learned Government Advocate further submits that the Ombudsman is duly authorized to make a recommendation on the complaint made against the Village Council, under Section 17 (2) of the Act of 2011. Accordingly, vide the conclusion dated 18.02.2022, the Ombudsman recommended that the Village Council should be dissolved and that an Advisory Board be appointed pending fresh election. As such, there is nothing wrong with the recommendation made and acted upon by the respondent authorities. She further submits that the requirement of obtaining a Letter of Acceptance on the award passed by the Ombudsman in terms of Rules 13 (4) is only in respect of an award passed by the Ombudsman and not in respect of any order or recommendation passed by the Ombudsman. As such, the claim of the petitioners that the award is considered to have lapsed or to have no effect for not following the provision of Section 13 (4) of the Rules of 2013 is only a misconception. 12. The learned Government Advocate by referring to the preamble of the Act of 2011 submits that the Act has been enacted to look into complaints of corruption and maladministration against the functionaries of local bodies and to recommend suitable action. The definition of ‘allegation’ at Section 2 (1)(b) also includes any such allegation made against the Village Council alleging default or action in excess of its powers in the discharge of functions imposed on it by law or in implementing the lawful orders and direction of the State Government. Therefore, the Ombudsman is duly authorized under the Act of 2011 to look into the complaint made against the Village Council and therefore, the finding and recommendation made by the Ombudsman in the present case should be upheld. She submits that under the facts and circumstances of the case, the petitioners cannot be said to have any legitimate grievance and accordingly, a writ petition should be dismissed. 13. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the records requisitioned from the Ombudsman. 14. 13. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record including the records requisitioned from the Ombudsman. 14. The first grievance raised by petitioners is that they were not given a copy of the spot verification report prior to the dissolution of the Village Council and that they were not aware of the findings given by the Field Inspector. On this point, it may be seen that on the basis of certain complaint submitted by the respondent Nos. 4 & 5, the District Local Administration Officer, Local Administration Department, detailed the Field Inspector to make a spot verification on the complaint vide Order No. 14/2021 dated 24.09.2021. The Field Inspector went to the spot and interacted with the Village Council members, the complainants and also with the land owners. This fact can be seen from the attendance sheet enclosed to the verification report by the Field Inspector wherein the names of the petitioners and their signatures appear at Serial Nos. 1, 2, 21, 12 & 14 respectively. Similarly, the name and signature of the respondent Nos. 4 & 5 appear at Serial Nos. 24 & 25 respectively. A perusal of the verification report goes to show that the complaint submitted against the Village Council were three folds. Firstly, the Village Council members were accused of issuing fake passes in their names, depriving the people of the village of their rights and opportunities and secondly, the Village Council has deprived the people of their rights and privileges by misusing their authority. Thirdly, a sum of Rs. 2,57,53,223/-had been paid as compensation and collected by the Village Council for the fake Passes issued by them and thereby, depriving the people of their dues and privileges. 15. As per the spot verification report, the Field Inspector had recorded both the version of the complainants as well as the Village Council members. Besides this, the statements of the other participants in the spot verification were also recorded and highlighted in the spot verification report. As pointed out by the learned counsels for the petitioners, there was no specific finding and conclusion recorded by the Field Inspector and he submitted his report to the District Local Administration Officer, who in turn, submitted the same to the higher authorities for further necessary action. As pointed out by the learned counsels for the petitioners, there was no specific finding and conclusion recorded by the Field Inspector and he submitted his report to the District Local Administration Officer, who in turn, submitted the same to the higher authorities for further necessary action. The matter was then referred by the Government through the Under Secretary to the Government of Mizoram, Local Administration Department to the Ombudsman for further examination and enquiry on 30.11.2021 by enclosing a copy of the complaint and the spot verification report submitted by the Field Inspector. The Ombudsman, thereafter, summoned all the petitioners as well as the complainants on various dates. The complaint was looked into by the Ombudsman on the three specific points raised by the complainants which has already been indicated in the preceding paragraphs. From the findings and opinion recorded by the Ombudsman, it can be seen that the Ombudsman enquired into the complaint on the three grounds of complaint submitted by the complainants. The petitioners, therefore, were clearly aware of the complaint made against them and that they not only participated in the spot verification but also in the proceedings before the Ombudsman. Therefore, in absence of any material to show that prejudice was caused to them, non-supply of the spot enquiry report by itself in my considered view cannot be the ground to vitiate the enquiry. Moreover, as stated by the learned counsel for the petitioners, no findings were recorded nor was any recommendation made by the Field Inspector. Therefore, the first ground raised by the petitioners has to fail. 16. The second ground raised by the petitioners is that if at all the Act of 2011 is to be attracted, the relevant provision should be Section 17 (1) (i) of the said Act which provides for disposals of complaints by award of compensation. A perusal of the said provision goes to show that the Ombudsman may consider and dispose of complaints other than those involved in criminal offence by awarding compensation, order recovery of the loss caused to the Village Council from the person responsible, order to supply omission or rectification of defects due to inaction, order recovery of loss from the accused failing which, order realization through Revenue Recovery Proceedings and order necessary remedial measures considering the facts and circumstances of the case. It may further be seen that Section 17 (2) provides that when the Ombudsman finds the procedure or practice regarding the administration of Village Council gives room for complaint, it may give suggestions to the State Government or to the Village Councils relating to the measures for avoiding the recurrence of such complaint. 17. In the facts of the present case, the basic complaint made against the Village Council is that they misused the authority by issuing fake Passes and obtained huge amount of compensation against such Passes and thereby, depriving the people of their rights, privileges and opportunities. As already stated herein above, the Ombudsman under Section 17 (2) of the Act of 2011 can give suggestions to the State Government in respect of a complaint and therefore in the present case as well, the Ombudsman gave its opinion/observation that the Village Council indeed committed mismanagement and deserved to be dissolved. 18. It may further be seen that in exercise of the powers conferred by Section 20 of the Act of 2011, the Governor of Mizoram has framed the Rules of 2013. Rule 8 in Chapter-III of the Rules of 2013 deals with the powers and duties of the Ombudsman. Rule 8 (1) (f) provides that the Ombudsman shall have the powers to report his order and findings and/or forward the award to the Governor of Mizoram for appropriate action against erring officials and/or complaints of the award. Rule 9 at Chapter-IV of the Rules of 2013 also provides the grounds of which complaints shall be filed. Rule 9 (1) of the same rules provides that complaints may be filed on grounds of grievance against administration, grievance against corruption, complaint alleging deficiency in the services of the Local Body. Rule 9 (2) (a) further provides that the complaints may be in the nature of allegations of corruption, bribery, misconduct, lack of integrity or any other kind of malpractice or misdemeanor on part of any elected representative to the Municipal Council or Local Council or Village Council and on the part of any office or other employee of the said Local Body. 19. It may also be noticed herein that the Act of 2011 was amended by the Mizoram (Establishment of Independent Local Body) Ombudsman (Amendment) Act, 2012 (Amendment Act of 2012) which came into effect from 28.08.2012. 19. It may also be noticed herein that the Act of 2011 was amended by the Mizoram (Establishment of Independent Local Body) Ombudsman (Amendment) Act, 2012 (Amendment Act of 2012) which came into effect from 28.08.2012. As per the said amendment, after Clause (e) of Sub-section (1) of the Section 2 of the Act of 2011, a new clause i.e., (f) has been inserted. Clause (f) provides that ‘Local Body’ means and includes Village Councils and Local Councils and any other institution of local self government as may be notified by the Government to be a Local Body for the purpose of the Act. Further, in terms of the said amendment, the words ‘Village Council’ appearing in various sections of the Act of 2011 has been replaced and substituted by the words ‘Local Body’. Therefore, it is abundantly clear that the Village Council is covered by the Act of 2011, Amendment Act of 2012 and the Rules of 2013. Therefore, the contention of the petitioners that it is only Section 17 (1) (i) if at all the Act of 2011 is attracted which will apply cannot be accepted. 20. The next issue raised by the petitioners is that Rule 13 (4) of the Rules of 2013 has not been complied with and therefore, the award of the Ombudsman has only lapsed. As already stated in the preceding paragraph, the powers and duties of the Ombudsman includes reporting his order and finding or forwarding to the Governor of Mizoram for appropriate action against erring officials or compliance of the award in terms of Rule 8 (1) (f). It is therefore clear that the Ombudsman may submit his report and finding against complaint or make an award. Rule 12 of the Rules of 2013 provides for a settlement of the complaint by agreement and Rule 13 provides for an award of the Ombudsman. If a settlement cannot be arrived at on the complaint, the Ombudsman can pass an award after affording the parties reasonable opportunity to present their case. Therefore, the application of Rule 13 (4) of the Rules of 2013 relates to a situation when the Ombudsman has made an award directing the Local Body authority to verify its obligation. If a settlement cannot be arrived at on the complaint, the Ombudsman can pass an award after affording the parties reasonable opportunity to present their case. Therefore, the application of Rule 13 (4) of the Rules of 2013 relates to a situation when the Ombudsman has made an award directing the Local Body authority to verify its obligation. Although, there is no specific definition of what an award of an Ombudsman is, except that the same is an award passed by the Ombudsman in accordance with the Rules of 2013 as per Rule 2 (3) of the Rules of 2013, Section 17 (2) of the Act of 2011 empowers the Ombudsman to render its opinion or suggestion to the Government. Acting upon the opinion/suggestion of the Ombudsman, the State respondents have decided to dissolve the Village Council. 21. I have also perused the records of the proceedings before the Ombudsman and find that the Ombudsman has given due opportunities to the petitioners as well as to the complainants while recording their respective statements before arriving at its conclusion. Section 25 (1) of the V.C Act provides that the State Government may by public notification order the dissolution of the Village Council, if in its opinion, the Village Counsel is too inefficient or is not able to carry on the village administration or is acting in the manner prejudicial to the interest of the State or for any other reasons considered sufficient for such dissolution and issue orders for holding a fresh election of the Village Council. However, before such dissolution, the Village Council has to be given reasonable opportunity to explain as to why it should not be dissolved. The State Government may during the enquiry on the complaints suspend the functioning of the Village Council during which the administration of the Village Council shall be exercised by government official appointed by the State Government. The State Government on the dissolution of the Village Council may appoint any person or persons to assume charges of the village administration and to act as a Village Court for the remaining period of the term or until fresh election is held. 22. In the facts of the present case, it may be seen that the purpose of the preliminary enquiry was to see whether there was any basis for making the complaint. 22. In the facts of the present case, it may be seen that the purpose of the preliminary enquiry was to see whether there was any basis for making the complaint. After the report was received, the State Government decided to get the complaint examined by the Ombudsman. The records reveal that the petitioners were examined and were given opportunities to project their case in defense. After the report and findings was submitted by the Ombudsman, the petitioners were then issued a show cause notice clearly stating the 3 (three) grounds taken in the complaint against them. Although the learned counsel for the petitioners submitted that the grounds taken were not specific, vague and inconclusive, the fact remains that the show cause notice was issued on the basis of the report and finding made by the Ombudsman wherein, the petitioners as well as complainants and other stakeholders had participated. The Show Cause Notice dated 10.03.2022 was a notice issued to the petitioners after completion of the enquiry proceeding by the Ombudsman and not a notice requiring the petitioners to prove that the complaint made against them was wrong and baseless. As already stated earlier, the complaint was already enquired upon by the Ombudsman wherein, the petitioners, the complainants and other stakeholders had participated. 23. The Apex Court in UMC Technologies Pvt. Limited (supra), which was a matter relating to Government contract and tenders, observed that it is the first principle of civilized jurisprudence that a person against whom any action is sought to be taken or whose right of interest are being affected, should be given a reasonable opportunity to defend himself. The basic principle of natural justice is that before adjudication starts, the authority concerned should give to the affected party a notice of the case against him so that he can defend himself. In the present case, the petitioners have already been put to notice during the complaint proceeding before the Ombudsman and that they had also participated during the preliminary enquiry and therefore, giving them a show cause notice after the conclusion of the complaint proceeding cannot be compared to giving of a Show Cause Notice at the very initial stage of the proceeding. In other words, the case of UMC Technologies Pvt. Limited (supra) is only distinguishable to the case at hand. In other words, the case of UMC Technologies Pvt. Limited (supra) is only distinguishable to the case at hand. Similarly, the case of Oryx Fisheries Pvt. Ltd (supra) and the Commissioner of Central Excise, Bangalore (supra), both being based on the same principle are found to be not applicable to the present case. 24. Thus, upon due consideration of the matter in its entirety, I do not find merit in the writ petition warranting the interference of this Court and accordingly, the writ petition is dismissed. The interim order passed earlier stands vacated. No cost.