MAYOR OF KOCHI Vs. OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS
HIGH COURT OF KERALA
MAYOR OF KOCHI
OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS
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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 Art. 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, 200 2 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 S. 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.
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 2,200 2. 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.
On behalf of the petitioners Mr. Ramesh Babu has contended that by virtue of the provisions contained in S. 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 24,199 9 , 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.
(3.) IT is in the light of the above submissions that the question as posed at the outset has to be examined.
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, s. 2 (22) defines 'local Authority' or 'local Self Government Institution' to mean "a Panchayat at any level constituted under S. 4 of this Act or a municipality constituted under S. 4 of the Kerala Municipality Act, 1994". Chapter XXV B was introduced by Act 13 of 1999. It consists of Ss. 271 F to 271 r. S. 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 S. 271q".;
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