OMBUDSMAN HAS NO JURISDICTION TO INQUIRE INTO THE MATTERS PENDING BEFORE A CIVIL COURT

[Mr. M. GOVINDARAJAN]

The Tamil Nadu Government enacted ‘The Tamil Nadu Local Bodies Ombudsman Act, 2014’ (‘Act’ for short).   This is an Act to provide the establishment of Ombudsman for conduct enquiry on the allegation against the elected members of the local bodies and the officers and employees working under the local bodies in the State of Tamil Nau and for matters connected therewith.

Functions of Ombudsman

Section 7 of the Act deals with the functioning of the Ombudsman.  The following are the functions of Ombudsman-

• To enquire into any written complaint from the Government or that has come to the notice of Ombudsman in which corruption or maladministration of a public servant or a local body is alleged;
• To pass an order on the proved allegation in the following manner-

• Where the irregularity involves a criminal offence committed by a public servant, the matter shall be referred to the appropriate investigating agency for necessary action;
• Where the irregularity involves loss of the fund of the local body, order recovery of such loss from those who are responsible for such irregularity;
• Where the irregularity is due to willful negligence or dereliction of duty of any officer or employee of the local body, recommend for departmental action by the appropriate authority under the relevant rules.

Procedure

Section 10 of the Act provides the procedure for the disposal of the complaint by the Ombudsman.

• The Government may refer any allegation of corruption or maladministration against a local body or a public servant which is within their knowledge or brought to their notice, to the Ombudsman and the Ombudsman shall enquire into it as if it was a complaint filed under the Act.
• On receipt of the complaint, the Ombudsman may examine the complaint with documents.  If there is prima facie case, the Ombudsman may enquire into it.
• The Ombudsman shall not enquire into the following matters-

• any matter in respect of which is a formal and public enquiry has been ordered by the Government;
• any matter in respect of which an enquiry has been ordered under the Commission of Inquiries Act, 1952 or any matter pending before a Civil Court.
• any complaint filed after the expiry of 5 years from the date on which the occurrence is said to have taken place.

• After the inquiry, if the Ombudsman is satisfied that-

• complaint is frivolous or vexatious or is not made in good faith; or
• there is no sufficient ground to continue proceedings; or
• other remedies are available to the complainant and it would be more beneficial for the complainant to avail of such remedies in view of the circumstances of the case, he may reject the complaint after recording his findings stating the reason therefore, and communicate the same to the complainant.

• The Ombudsman shall have power to regulate its procedure by fixing the time and place of sitting.

In G. GOPAL VERSUS THE OMBUDSMAN, TAMILNADU LOCAL BODIES OMBUDSMAN, CHENNAI AND ZONAL OFFICER, CHENNAI C. VELMURUGAN VERSUS - 2023 (2) TMI 1341 - MADRAS HIGH COURT, one Shri Vel Murugan filed a complaint before the Ombudsman raising allegations against the staff of the local panchayat in not taking any steps to preserve the properties which were gifted to the Panchayat.  The Ombudsman directed the second respondent to take action in cancelling the document registered among the family members of the petitioner.  The said land has been gifted to the Panchayat. 

The petitioner filed the present writ petition challenging the order of Ombudsman.  The petitioner contended tat the Ombudsman has no jurisdiction to dispose of the complaint forwarded for criminal offences.  The allegations are pertaining to the officials who have not preserved the properties. The first respondent conducted the enquiry and passed the impugned order.

The petitioner submitted the following submissions before the High Court-

• The Ombudsman is none other than the 12^th defendant in the suit OS No. 120 of 2015.
• The suit No. OS 134 of 2022 was filed before the Subordinate Judge for declaration to declare that the properties belonged to the petitioner.
• The petitioner also prayed that the Court may cancel the alleged settlement deed said to have been executed by the Power of Attorney of the erstwhile owner.
• The Ombudsman has no jurisdiction to entertain the complaint, besides the complaint the ex-facie barred by the limitation. Therefore, the entire order of  Ombudsman is without jurisdiction.

The respondent submitted the following-

• Section 12 of the Act empowers the Ombudsman to dispose of the complaint forwarded for criminal offences.
• The allegations are pertaining to the officials who have not preserved the properties the complaint has been given.  The first respondent conducted an enquiry and order has been passed which is challenged in the present writ petition.
• The Tamil Nadu Ombudsman empowers Ombudsman to go into the question of alleged corruption incidental thereto and proper enquiry has been conducted subsequent to the direction of the Court and order has been passed which shows that the Ombudsman has ample power to entertain the complaint.

The High Court heard the submissions of the parties to the present writ petition.  The High court analyzed the facts of the case and also analyzed the documents available on record.  Then the High Court analyzed the various sections of the Act.  The High Court observed that as per section 10(2)(b) makes it clear that Ombudsman shall not inquire into the matters in resect of any matter pending before the Court or any complaint filed after the expiry of  5 years from the date on  which the occurrence is said to have taken place.  The 12^th defendant filed a suit in OS No. 120 o 2015.  The said case has been renumbered as 134/2022. 

The High Court held that when the civil court has seized the matter in respect of the same, particularly, the title over the property in which the Gift Deed has been executed and the suit is pending as on the date of complaint.  The Gift deed has been executed during the year 2013.  The complaint has been filed during 2019, which is barre by limitation under Section 10(3)(c) of the Act.  Since the statute itself bars the enquiries in respect of matters which have already been seized by the Civil Court.  The direction of the lower Court giving direction to cancel the document and affecting the revenue records, is nothing but without any jurisdiction and cannot be permitted in the eye of law.  The High Court allowed the petition and set aside the impugned order.