Thodupuzha Municipality represented by its Secretary v Ombudsman for Local Self Government Institutions and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** ## **MONDAY, THE 20[TH] DAY OF FEBRUARY 2023 / 1ST PHALGUNA, 1944** ## **WP(C) NO. 5046 OF 2022** ## **PETITIONER:** THODUPUZHA MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, THODUPUZHA, PIN - 685584. BY ADV UNNIKRISHNAN.V.ALAPATT ## **RESPONDENTS:** 1 THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS UNIVERSITY P.O, THIRUVANANTHAPURAM, PIN - 695034. 2 M.V. BALAKRISHNAN, MURALY SADANAM, VENGALLOOR P.O, THODUPUZHA, IDUKKI DISTRICT, PIN - 685585. BY ADVS. P.K.RESHMA (KALARICKAL) S.KRISHNA KUMAR (MANGALAM) ## **OTHER PRESENT:** GP - RIYAL DEVASSY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **W.P.(C).No.5046 of 2022 2** ## **VIJU ABRAHAM,J** ## **-----------------------** **W.P.(C).No.5046 of 2022** **------------------------------------Dated this the 20[th] day of February, 2023** ## **JUDGMENT** The above writ petition is filed challenging Ext.P11 order passed by the 1[st] respondent Ombudsman for Local Self Government Institutions. 2. The petitioner was the 1[st] respondent in OP No.401 of 2019, on the files of the Ombudsman for Local Self Government Institutions. The said complaint was filed by the 2[nd] respondent seeking disbursement of the amount outstanding in his contract with the Thodupuzha Municipality. The 2[nd] respondent had entered into Ext.P1 agreement with the Municipality on 19.6.2017 for the maintenance of street lights during the period 2017-2018 for a total sum of Rs.25 lakhs. During the contract period, numerous complaints were received from the public regarding the effectiveness of the **W.P.(C).No.5046 of 2022 3** maintenance work undertaken by the 2[nd] respondent as he was not prompt in fulfilling the duties undertaken by him as per the contract. 3. A perusal of Ext.P2 complaint register kept in the Municipality as per contract condition would reveal that a series of complaints were received as against the contractor, who is the 2[nd] respondent herein. Apart from that the complaints were filed by the councilors also, Ext.P3 is one of such complaint submitted by the then Vice Chairman of the Municipality. Thereafter, on the basis of a complaint filed by one Skariya Mappalasseril before the Government alleging that the contractor is an unqualified person, a report was sought for by the Director of Urban Affairs from the petitioner. 4. The Municipal Council discussed the demand to remove the contractor, but due to practical difficulties to find out a new contractor in the midst of a financial year he was permitted to continue. In spite of all these, as per the request ## **W.P.(C).No.5046 of 2022 4** of the 2[nd] respondent, and based on the reports of concerned overseer, an amount of Rs.6 lakhs and further an amount of Rs.12,75,000/- were disbursed on 29.1.2018 and 8.6.2018 respectively. Considering the reported aspect of lethargy from the part of the 2[nd] respondent in the timely maintenance of the lights, the balance amount of Rs.6,25,000/- was withheld by the Municipality. 5. The case of the petitioner is that the 2[nd] respondent has not submitted the final bill for the final disbursement of the balance outstanding in the contract amount along with relevant documents. Thereafter, the 2[nd] respondent approached the 1[st] respondent Ombudsman seeing disbursement of the amount outstanding in the contract with the Thodupuzha Municipality. Even though the complaint is dated 3.6.2019, a communication of the same was made only after two years, as is evident from Ext.P4 notice. Thereafter, the petitioner entered appearance and submitted all the relevant facts ## **W.P.(C).No.5046 of 2022 5** involved in the case before the Ombudsman by way of Ext.P6 counter affidavit dated 30.9.2021. The Ombudsman as per Ext.P7 order directed the petitioner Municipality to disburse the balance amount to the petitioner before 17.12.2021 and to report the same and to show cause for not awarding compensation to him for the undue delay. In the meanwhile, the respondent submitted the final bill before the Municipality along with completion certificates issued by the concerned councilors on 6.10.2021, as is evident from Ext.P8. After consideration of the same, a decision was taken by the Municipality in the meeting held on 9.12.2021 to provide the entire balance amount of Rs.6,25,000/- to the 2[nd] respondent without deducting any amount. It was also decided as per Ext.P9 decision not to give any compensation to the 2[nd] respondent, since the delay was caused only due to the non satisfactory completion of work and violation of contract conditions from his part. ## **W.P.(C).No.5046 of 2022 6** Ext.P10 statement was submitted before the Ombudsman for Local Self Government Institutions explaining all these facts. But the Ombudsman without considering all these relevant facts, by Ext.P11 order dated 17.12.2021, directed the Municipality to give the 2[nd] respondent interest at the rate of 9% per annum from 1.8.2018 onwards for the amount of Rs.6.25,000/- with a further direction that the concerned officials shall compensate the loss caused to the Municipality and the action taken in the matter should be reported within a period of six months to the Ombudsman. The petitioner is aggrieved by issuance of Ext.P11 order. 6. The contention of the petitioner is that in Ext.P5 complaint filed by the 2[nd] respondent there is no demand for any compensation from the Municipality. Nowhere in the complaint, it is averred that he has sustained any loss due to the delay in proceedings or that the Municipality acted in an arbitrary manner. The said averments are ## **W.P.(C).No.5046 of 2022 7** conspicuously absent for the reason that it was due to his own flaws and violation of contract terms the amount has been withheld by the Municipality. It is a further contention that at the time of filing the complaint, the 2[nd] respondent has not submitted the final bill for the final disbursement of the balance outstanding towards contract amount along with the relevant documents and without submission of the final bills, the Municipality is neither duty bound nor capable of disbursement of the amount. In spite of all these facts, in obedience to the directions of the Ombudsman contained in Ext.P7 interim order, the Municipality has taken a decision to release the entire amount without holding any amount towards fine. The petitioner has taken a further contention that a disputed claim for money is not a matter coming within the purview of 'allegation' or 'complaint' or 'maladministration' as defined under Section 271-F of the Kerala Panchayat Raj Act and therefore the Ombudsman has no jurisdiction to **W.P.(C).No.5046 of 2022 8** adjudicate upon such claims for payment of money. The petitioner relies on the judgment of this Court in _**John A. Ansons Group, Architects v.**_ _**Changanacherry Municipality and another**_ reported in ( _**2011 KHC 800)**_ and also unreported judgment of this Court in _**Kulikkaloor Grama Panchayat v The Ombudsman**_ _**for Local Self Government Institutions and others (2013 (2) KHC 133)**_ . 7. The only question to be considered now is as to whether the direction issued by the Ombudsman as per Ext.P11 to pay 9% interest from 1.8.2018 as compensation to the 2[nd] respondent is in accordance with law. As is seen from the averments based on the report of the concerned overseer an amount of Rs.6 lakhs and Rs.12,75,000/- was disbursed to the 2[nd] respondent towards part payment of the contract amount. Only considering the lethargy from the part of the respondent in timely maintenance of the lights, the balance amount of Rs.6,25,000/- was withheld by the Municipality. It is also not in ## **W.P.(C).No.5046 of 2022 9** dispute that only subsequent to Ext.P6 order passed by the Ombudsman that the 2[nd] respondent has submitted the final bill, ie., on 6.10.2021 and the Municipal Council in the meeting held on 9.12.2021 decided to pay the entire balance amount of Rs.6,25,000/- to the 2[nd] respondent. A perusal of Ext.P9 would reveal that the final bill along with all the necessary supporting documents was submitted by the petitioner only on 13.10.2021. A perusal of Ext.P9 would reveal that the amount was withheld due to the complaints from various persons and also from the ward councilors and that non receipt of no objection certificate from the councilors regarding the rectification of the defects, a portion of the amount due to the petitioner was withheld. This Court in _**John.A'**_ s case supra have considered a similar question as held as follows: 3. Relying on S.271 J of the Kerala Panchayat Raj Act, the learned counsel for the review petition contended that the Ombudsman is competent to investigate any ## **W.P.(C).No.5046 of 2022 10** allegation contained in a complaint and pass an order directing payment of compensation and reimbursement of the loss suffered by the complainant, and therefore, the petitioner's claim for payment for the work done is maintainable before the Ombudsman. I am afraid, the said contention is without any merit. The terms 'allegation' has been defined in clause (b) of sub-section (1) of S.271 F of the Kerala Panchayat Raj Act. The term 'complaint' has been defined in clause(c) thereof. On a reading of the said provisions, it cannot be said that claim for money made by a citizen, whatever be the ground for raising such a claim, from a local authority can be the subject matter of a complaint before the Ombudsman unless the claim for money is by way of compensation as a result of an act of maladministration. Likewise a similar view was taken by this Court in Kulukkaloor's case supra, which held in paragraph 7 of the judgment is as follows: 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, ## **W.P.(C).No.5046 of 2022 11** 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 'maladministration' 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. In view of the categorical declaration of law as in the above stated two judgments cited supra, I am of the opinion that 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, such disputed claim for money is not a matter coming within the purview of 'allegation' or 'complaint' or 'mal-administration' as defined under Section 271F of the Act. Therefore, the Ombudsman ought not to have entertain such a complaint and issued direction for payment of money. But it is seen that subsequent to Ext.P7 order passed by the Ombudsman the entire ## **W.P.(C).No.5046 of 2022 12** balance amount of Rs.6,25,000/- was paid by the Municipality. It is also relevant to note that the final bill was submitted only after issuance of Ext.P7 order with necessary no objection certificate as mandated as per rules and considering the said final bill submitted by the petitioner the Municipality as per Ext.P9 decision decided to pay the amount due to the petitioner. Now, what remains is legality of the direction in Ext.P11 to pay interest for delayed payment of the amount. It is settled by this Court in various decisions that the interest on payment which is essentially disputed question of fact cannot be agitated in a writ petition or before the authority like the Ombudsman. Therefore, the direction by the 1[st] respondent Ombudsman in Ext.P11 to pay 9% interest which is styled as compensation is absolutely without any basis and the Ombudsman lack jurisdiction to issue such an order. Therefore, Ext.P11 is set aside. It is made clear that the setting aside of Ext.P11 ## **W.P.(C).No.5046 of 2022 13** order will not stand in the way of the petitioner to initiate appropriate proceedings in accordance with law seeking payment on interest claimed. The above writ petition is allowed. sd/- **VIJU ABRAHAM, JUDGE** pm **W.P.(C).No.5046 of 2022 14** ## **APPENDIX OF WP(C) 5046/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE AGREEMENT DATED 19.06.2017. Exhibit P2 TRUE COPY OF THE RELEVANT PAGES OF COMPLAINT REGISTER KEPT IN THE MUNICIPALITY. Exhibit P3 COMPLAINT DATED 21.05.2018 SUBMITTED BY THE THEN VICE CHAIRMAN OF THE MUNICIPALITY. Exhibit P4 TRUE COPY OF THE NOTICE DATED 23.09.2021 SENT FROM THE OFFICE OF THE OMBUDSMAN LOCAL SELF GOVERNMENT INSTITUTIONS. Exhibit P5 TRUE COPY OF THE COMPLAINT DATED 3.6.2019 FILED BY THE 2ND RESPONDENT BEFORE THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS. Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 30.09.2021 SUBMITTED BY THE PETITIONER BEFORE THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS. Exhibit P7 TRUE COPY OF THE ORDER DATED 13.10.2021 PASSED BY THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS. Exhibit P8 TRUE COPY OF THE FINAL INSTALLMENT INVOICE DATED 6.10.2021 SUBMITTED BY THE RESPONDENT. Exhibit P9 TRUE COPY OF THE MUNICIPAL COUNCIL DECISION DATED 09.12.2021. Exhibit P10 TRUE COPY OF THE STATEMENT DATED 14.12.2021 SUBMITTED BY THE PETITIONER BEFORE THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS. Exhibit P11 TRUE COPY OF THE ORDER DATED 17.12.2021 PASSED BY THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS.