IMPORTANT POINT
The Ombudsman for Local Self Government Institutions cannot entertain complaints related to matters that are within the jurisdiction of the Tribunal for Local Self Government Institutions, particularly concerning building permits and violations of building rules.

JUDGMENT :

[WA Nos.1911/2022, 99/2023, 1912/2022]

A. Muhamed Mustaque, ACJ.

The Common issue arises in these appeals is the scope and power of Ombudsman for Local Self Government Institutions. Among the above appeals, W.A No.99 of 2023 is the leading case. The appellant therein approached the Ombudsman with a complaint against the officials in Thiruvananthapuram Corporation and also against the renovation of the church. The Ombudsman, after verifying the nature of allegation in the complaint, found that the complaint was not maintainable. This was challenged before this Court.

2. The learned Single Judge, after adverting to the powers of the Ombudsman and after noting Section 271M(4)(c) of the Kerala Panchayath Raj Act, (for short the Act) had agreed with the finding of Ombudsman that the complaint was not maintainable. Section 271M(4)(b) states that Ombudsman shall not enquire into matters relating to any matter in respect of which a remedy is available from the Tribunal for Local Self Government Institutions constituted under Section 271S.

3. The writ appeal No.1911 of 2022 and 1912 of 2022 are related to a challenge made by the builder as against the interim order passed by the Ombudsman. Ombudsman passed an interdictory order stopping the construction and thereafter, by yet another order, ordered that investigation has to be conducted through higher officials and thereafter disposed of the writ petitions holding that complaint is not maintainable. The learned Single Judge relied on the judgment of another Single Judge which is impugned in Writ Appeal No.99 of 2023. The common issue is as to whether a complaint before the Ombudsman is maintainable in regard to issuance of building permit in violation of building rules.

4. Section 271F(1)(c) defines “Complaint” as follows:

‘Complaint’ means a statement of allegation that a public servant or a Local Self Government Institution is guilty of corruption or maladministration and includes any reference to an allegation in respect of which suo moto enquiry has been proposed or recommendation for enquiry has been made by Government;

5. The complaint has to be understood with reference to Section 271F(1)(b), which states as to what constitute allegation and also with reference to Section 271F(1)(d), defining corruption and Section 271F(1)(e) defining maladministration. A combined reading of the above definitions clearly indicates that complaint as against public servants is maintainable touching any aspect relating to allegations as defined under the Act. That means, there must be an allegation that the public servant has abused his position or discharge of duties to make personal interest or with a corrupt notice. If the meaning of above allegation is understood, the scope and power of investigation can be easily delineated. Section 271M(4)(b) of the Act states that the Ombudsman shall not enquire into the matters in respect of which a remedy is available from the Tribunal. If the issue regarding issuance of building permit and its validity are inextricably connected with the issue to be decided and adjudged before the tribunal and it is inseparable from any enquiry to the allegation, the Ombudsman, assuming the role of the tribunal, cannot pass any orders touching upon the building permits and its violations. As under the law, the tribunal is competent to adjudge the validity of the permit and violation of any building rules while undertaking construction. If the allegations as such cannot be decided without questioning the issuance of building permits or violation of the building rules, the Ombudsman should refrain from deciding such matters and relegate the parties to approach the tribunal and on conclusion of the proceedings before the tribunal, perhaps Ombudsman can conduct any investigation as to the circumstances in which the building permit has been issued. This exactly is the reason why the Ombudsman, in the matter related to W.A No.99 of 2023, declined to interfere with the matte