IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 9916 of 2007(E) --------------------------------------- PETITIONER(S): ------------------------- POOVACHAL SPECIAL GRADE GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PREMACHANDRAN NAIR. BY ADVS.MR.S.V.PREMAKUMARAN NAIR MR.R.T.PRADEEP MR.V.VIJULAL RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 3. THE PRESIDENT, POOVACHAL SPECIAL GRADE GRAMA PANCHAYATH, POOVACHAL P.O., THIRUVANANTHAPURAM. 4. D.VIJAYAKUMAR, AJITHA BHAVAN, PERUMKULAM, MULAYARA, P.O.NEDUMANGADU TALUK, THIRUVANANTHAPURAM. 5. T.SURENDRAN, T.S.L.BHAVAN, PERUMKULAM, URIYAKKODE P.O., NEDUMANGAD TALUK, THIRUVANANTHAPURAM. R1 BY GOVT. PLEADER MR.I.V.PRAMOD R4 , R5 BY ADV. SRI.M.RAMASWAMY PILLAI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss 'CR' THOTTATHIL B. RADHAKRISHNAN, J. -------------------------------------- W.P.(C) No.9916 OF 2007 -------------------------------------- Dated this the 18th day of November, 2009 J U D G M E N T ~~~~~~~~~~~~~ The respondents 4 and 5 were involved in doing some work for the petitioner Grama Panchayat. The Panchayat passed a resolution touching that work. The respondents 4 and 5 challenged it before the Ombudsman for LSGIs. The Ombudsman found, quite rightly, that in view of Section 191 of the Kerala Panchayat Raj Act, 1994, (herein after referred to as 'the Act') the Ombudsman does not have the jurisdiction to interfere with the resolution of the Panchayat and that the matter would be within the jurisdiction of the State Government in terms of sub-section (1) of Section 191 of the Act. The respondents 4 and 5 thereafter moved the Government against the resolution of the Panchayat. 2. Obviously, the Government can cancel or vary a resolution of the Panchayat, on grounds which are specifically stated in clauses (a) to (d) of Section 191(1) of the Act. The W.P.(C) No.9916/2007 2 Government can refer the matter under Section 191(2) for the consideration of the Ombudsman, before taking such a decision. The Ombudsman, after given opportunity to the Panchayat, of being heard, is to send a report to the Government with its conclusions. The Government may on the basis of that report, cancel, amend or confirm the resolution of the Panchayat. 3. In the case in hand, the Government took recourse to Section 191(2) of the Act and made a reference to the Ombudsman. That authority made a report after conducting an enquiry. The Panchayat challenges it, even before the Government has acted upon that report. The plea of the Panchayat is that the quality of jurisdiction of the Ombudsman under Section 191(2) of the Act does not authorise an enquiry and all that it is required to report is as to whether there are grounds to interfere with the resolution, in accordance with sub-section (1) of Section 191 of the Act. 4. In a way, this Writ Petition is like having the cart before the horse. Once the report is made by the Ombudsman to the Government, it is the duty of the Government to consider the report W.P.(C) No.9916/2007 3 and take a decision finally. That decision making process has to result in cancelling, amending or confirming the resolution, which is challenged before the Government. The authority to cancel, amend or confirm, is with the Government. The report of the Ombudsman is, therefore, only a matter which will trigger the process of the final consideration and decision by the Government, after hearing the necessary parties. 5. But, the petitioner's plea that the Ombudsman does not have the authority to conduct an enquiry may be of importance, as of now. Sub-section (2) of Section 191 of the Act provides that the Government may refer the matter for consideration. This reference to the Ombudsman has to be followed by that authority sending a report to the Government with its conclusions. That process has to be undertaken by the Ombudsman after giving the Panchayat an opportunity of being heard. These elements in Section 191(2) of Act clearly establish that what is required is that the Ombudsman shall take up the matter referred to it by the Government, hear the Panchayat and arrive at a conclusion, which will be reported to the Government. This is the decision making process. It would not be W.P.(C) No.9916/2007 4 reasonably advisable to say that a statutory authority has to decide on a matter and arrive at conclusion without enquiring into the matter. The enquiry that the Ombudsman may make, may, in some cases, be beyond the scope of the powers of the Government under Section 191(1) of the Act. But, that by itself, is no ground to interfere with the report of the Ombudsman, that too, in exercise of the visitorial and discretionary jurisdiction under Article 226 of the Constitution of India. This is, all the more, so because, when the report of the Ombudsman goes to it, the Government may on the basis of that report, cancel, amend or confirm the resolution sought to be annulled. The process of deciding as to whether the resolution has to be cancelled, amended or confirmed on the basis of the report of the Ombudsman involves another decision making process, by the Government. That procedure cannot be excluded. Not only that, it is that proceeding which will bring home to the Government, the conclusion that it will ultimately deliver on the request to cancel the resolution. Therefore, the reliability of the Ombudsman's report, the question whether it is within the limits of factors that could be considered under sub-section (1) of Section 191 of the Act and all attended factors are matters which the parties can agitate before the Government. Needless to W.P.(C) No.9916/2007 5 say, the Government ought not to conclude on the question of cancellation of the resolution, without affording the Panchayat and the applicants, in the case in hand, respondents 4 and 5, an opportunity of hearing even on the correctness, sustainability and acceptability of the report of the learned Ombudsman and as to whether any of the grounds in Section 191(1) of theAct has been made out. 6. For the forgoing reasons, it is inappropriate for this Court to now interfere with the matter. It is advisable that the Government expedites final consideration having regard to the facts that the respondents 4 and 5 are awaiting the decision of the Government relating to funds which they claimed and due to them from the Panchayat. Let this be done, within a period of four months from the date of receipt of a copy of this judgment. The Writ Petition is ordered accordingly without prejudice to the parties placing all their grievances before the Government. THOTTATHIL B. RADHAKRISHNAN, Judge ps