KUNJUMON v. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT

SMT.KUNJUMOL AZHEEKAL THURUTHUMMURIYIL, AZHEEKKAL.P.O., KARUNAGAPPALLY, KOLLAM, PIN - 690547 SRI.SUDHEER AZHEEKAL THURUTHUMMURIYIL, AZHEEKKAL.P.O., KARUNAGAPPALLY, KOLLAM, PIN - 690547 SMT.SOPHIA SHAMSAD AZHEEKAL THURUTHUMMURIYIL, AZHEEKKAL.P.O., KARUNAGAPPALLY, KOLLAM, PIN – 690547 BY SMT.K.AMMINIKUTTY, SR.GOVERNMENT PLEADER SRI.SUDHEESH KUMAR, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.457 of 2024 3 JUDGMENT The petitioner is a permanent resident of Alappad Grama Panchayat. According to him, certain rooms of the Panchayat Shopping Complex auctioned to respondents 4 to 13 have been subleased by them to others contrary to Clause 23 of Ext. P1 bye- laws. The petitioner, therefore, approached the 1st respondent, the Ombudsman for Local Self Government Institutions('Ombudsman' for short) and the Ombudsman, by Ext.P5 order, closed the complaint preferred by the petitioner based on the statement filed by the Secretary of the Panchayat that there is no sublease of the rooms by respondents 4 to 13. The Ombudsman also recorded the submission of the Secretary that in case there is any sublease by respondents 4 to 13, contrary to the bye-laws, appropriate action would be taken. According to the petitioner, the Ombudsman W.P.(C) No.457 of 2024 4 without considering the contentions of the petitioner, blindly accepted the version of the Secretary and closed the complaint and thereby permitted respondents 4 to 13 to conduct business in the shop rooms of the Panchayat through benamis in violation of Clause 23 of Ext. P1 bye-laws. This writ petition is therefore filed to quash Ext.P5 order of the Ombudsman and to direct the Secretary of the Panchayat to initiate proceedings against the respondents 4 to 13 for subleasing shop rooms contrary to Clause 23 of Ext. P1 bye- laws.

2. Heard the learned counsel for the petitioner, learned Standing Counsel for the Panchayat and the learned Senior Government Pleader for the 3rd respondent. In the nature of the order I propose to pass, notice to respondents 1 and 4 to 13 is dispensed with. W.P.(C) No.457 of 2024 5

3. As per Clause 23 of Ext.P1 bye-laws, the shop rooms in the shopping complex of the Panchayat taken on auction shall not be transferred or subleased by the auctioneer and in case of breach, the Secretary has to cancel the license and direct the occupier to vacate the premises. The contention of the petitioner is that, contrary to the said clause, the respondents 4 to 13, the auctioneers have subleased their respective shop rooms, and the Secretary has failed to take any action.

4. The Ombudsman for Local Self Government Institutions has been constituted under Chapter XXV B of the Kerala Panchayat Raj Act, 1994 (KPR Act) for Local Self Government Institutions (LSGIs) at the State level for conducting investigations and enquiries in respect of any action involving corruption or maladministration W.P.(C) No.457 of 2024 6 or irregularities in the discharge of administrative functions by LSGIs or by an employee or an officer working in any office or institution transferred to such LSGIs or by elected member of the LSGI including its president or chairperson and for the disposal of such complaints in accordance with the provisions of the KPR Act. Section 271F(1)(b) of the KPR Act defines 'allegation' and 271F(1)(c) defines 'complaint' and 271F(1)(g) defines 'public servant'. Section 271J deals with the functions of the Ombudsman and 271K deals with the powers of the Ombudsman. Section 271M deals with 'investigation' into complaints. Having regard to the object and scheme of the provisions under Chapter XXV B of the KPR Act, the Ombudsman is constituted to enquire or investigate into allegations contained in complaints of corruption W.P.(C) No.457 of 2024 7 or maladministration or irregularities in the discharge of administrative functions by employees or elected members of the LSGIs. The petitioner has not produced the copy of the complaint filed before the Ombudsman. From the averments in the writ petition and Ext.P5 order of the Ombudsman, it is seen that the petitioner has approached the ombudsman to take action against the respondents 4 to 13 for having subleased the shop rooms and not alleging irregularity, corruption maladministration against the Secretary of the Panchayat. Going by the nature of the complaint, I am of the view that the complaint of the petitioner before the Ombudsman is not maintainable and no purpose will be served by setting aside Ext. P5 order and remitting the same for fresh consideration. Further, if the grievance of the petitioner is that the Secretary has not W.P.(C) No.457 of 2024 8 taken any action as per Clause 23 of Ext. P1 bye laws, it is open to him to prefer an appeal before the Panchayat Committee under Section 276(1) of the KPR Act. Section 276(1) of the KPR Act reads as follows; “276. Appeal and Revision.-- (1) An appeal shall lie to the panchayat against the notice issued or order passed or action taken by the President or Secretary in exercise of the powers conferred as per the provisions of this Act, rules, bye - laws or regulations made thereunder except Sections 235 I, 235 J, 235 N, 235 W and 235 X". (underlining supplied) It is trite that 'omission' or 'inaction' has to be taken as an 'act' done and 'act includes illegal omission'. Therefore, without prejudice to the right of the petitioner to approach the Secretary of the Panchayat by fresh petition or to W.P.(C) No.457 of 2024 9 prefer an appeal before the Panchayat Committee in terms of Section 276(1) of the KPR Act, this writ petition is dismissed. Sd/- MURALI PURUSHOTHAMAN JUDGE sp/09/01/2024 W.P.(C) No.457 of 2024 10 APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT-P1 EXHIBIT-P2 EXHIBIT-P3 EXHIBIT-P4 EXHIBIT-P5 THE TRUE COPY OF THE BYELAW ISSUED BY THE 2ND RESPONDENT THE TRUE COPY OF THE AGREEMENT DATED NIL EXECUTED BY THE 4TH RESPONDENT WITH THE 2ND RESPONDENT THE TRUE COPY OF THE LICENSE NO:A7- 70/2021-22 DATED 03/11/2021 ISSUED BY THE 2ND RESPONDENT TO THE 6TH RESPONDENT FOR THE PERIOD 03/11/2021 TO 31/03/2022 THE TRUE COPY OF THE REPLY NO:400276/ GGR112/GPO/2022/1523(2) DATED 10/08/2022 ISSUED BY THE 2ND RESPONDENT THE TRUE COPY OF THE ORDER IN COMPLAINT NO:180/2023 DATED 26/05/2023 ISSUED BY THE 1ST RESPONDENT