Complaint against Ward Councillor lies before Ombudsman for Local Self Government Institutions [JUDGMENT]

Municipality Act, 1994 (Kerala) – Section 229A - Panchayat Raj Act, 1994 (Kerala) - Section 271G - Municipality (Professional Relationship between the Elected Authorities and Officers) Rules, 2005 (Kerala) - Rule 7 - Relationship between the Elected Authorities and the Officers - Any complaint on the breach of the code of conduct of the elected authorities or officials or employees of the Municipality shall be considered by the Ombudsman for Local Self Government Institutions and the report thereon shall be forwarded to the Government for appropriate action.

Question of Law

Whether the complaint made against a Ward Councillor before the District Collector and the Secretary of the Municipal Corporation is maintainable in law.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

FRIDAY, THE 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940

WP(C).No. 28402 of 2018

PETITIONER/S: V.J. HYCINTH

BY ADV. INNOCENT FRANCIS PAPALI

RESPONDENT/S:

1 STATE OF KERALA, REPRESENED BY PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THRIUVANANTHAPURAM, PIN-695 001

2 THE DISTRICT COLLECTOR, CIVIL STATION , COLLECTORATE, KAKKANAD, KOCHI, PIN-682 030.

3 SECRETARY, KOCHI MUNICIPAL CORPORATION, ERANKULAM, KOCHI,PIN-682 011.

4 P.S.PRAKASAN, COUNCILLOR OF WARD NO.24 (MOOLEMKUZHY), KOCHI MUNICIPAL CORPORATION, ERAKULAM, KOCHI, PIN-682 011.

R1 & R2 BY SRI.P.M.MANOJ,SENIOR GOVERNMENT PLEADER R3 BY SRI. K.L.JOSEPH (SR.) STANDING COUNSEL.

SRI.V.S.SREJITH, SC

J U D G M E N T

This writ petition is filed by the petitioner seeking direction to the 3rd respondent i.e., the Secretary of the Kochi Municipal Corporation to deal with Ext.P1 complaint, as directed by the 2nd respondent, the District Collector, against the 4th respondent, who is a Ward Councillor of the Kochi Municipal Corporation. Brief material facts for the disposal of the writ petition are as follows:

2. According to the petitioner, the 3rd respondent had trespassed into the property of the petitioner and his wife and had constructed a drainage. The wife of the petitioner filed a civil suit as O.S.No.496 of 2015 for fixation of boundary of a property and the suit is now pending consideration. On the opposite side of the property of the petitioner is the property of one Varghese, who is running a Sawmill, who, according to the petitioner, has encroached into the Government land adjacent to his property. According to the petitioner, nearby residents have also made such encroachments into the Government land, with the concurrence of the 4th respondent. The 4th respondent has been propagating that petitioner is an encroacher of Government land, knowing fully well that it is not Government land and is the property of the petitioner, and that it was the Corporation of Kochi, who had encroached into the petitioner's property. So also, the 4th respondent is supporting the persons who have encroached into the Government land and is aiding them and also refrains from initiating action against them for recovery of the Government land from their unlawful possession. The act of the 4th respondent is discriminating the petitioner and others in violation of the Affirmation of his Oath as a Councillor. The 4th respondent is ill-motivated against the petitioner and is favouring the encroachers of Government land. The 4th respondent is also taking political vengeance against the petitioner who was a rival candidate of the petitioner in the election to the Corporation. Therefore, the 4th respondent has been misusing his position against the petitioner and in favour of the encroachers.

3. That apart, it is contended that, the persons residing in the area between Moolemkuzhy and Chemeens Junction in Ward No.24 have complained that the 4th respondent has unlawfully collected amounts in the guise of constructing a drainage. Petitioner has filed complaint before respondents 1 to 3, and the State Election Commission against the 4th respondent, however, no action was initiated. But, later Ext.P2 communication was forwarded by the 2nd respondent to the 3rd respondent, directing the 3rd respondent to take appropriate legal action against the 4th respondent. Petitioner has also submitted Ext.P3 representation before the 3rd respondent. However, no action is initiated against the 4th respondent by any of the authorities.

4. I have heard learned counsel for the petitioner and the learned Government Pleader, and perused the pleadings and the documents on record.

5. The question emerges for consideration is, whether the complaint made by the petitioner against the 4th respondent, a Ward Councillor, before the District Collector and the 3rd respondent is maintainable in law. The issue is guided by Sec.229A of the Kerala Municipality Act, 1994 [for short, 'the Act, 1994'], which deals with relationship between the Elected Authorities and the Officers, which read thus:

“229A. Relationship between the Elected Authorities and the Officers.--(1)The Government shall prescribe a general code of conduct relating the relationship between the elected authorities of the Municipality and its employees for the purpose of protection of the right of the officers and employees, under the control of the Municipality to tender advice on the matters dealt with by them, and their professional freedom and statutory rights.

(2) The views expressed by the officials shall be included in the minutes of discussions.

(3) There shall be a mutual respect in behaviour between the elected authorities, officials and employees of the Municipality, totally avoiding rude language, gesture or action.

(4) Any complaint on the infringement of the code of conduct by the elected authorities shall be considered by the Ombudsman for Local Self Government Institutions, constituted under Section 271G of the Kerala Panchayat Raj Act, 1994 (13 of 1994) and the report thereon shall be forwarded to the Government for appropriate action.

(5) Oral instructions by the elected authorities to the officials shall be confirmed in writing before they are implemented.”

6. So also, the State Government have introduced a code of conduct by bringing-forth the Kerala Municipality (Professional Relationship between the Elected Authorities and Officers) Rules, 2005 [for short, 'the Rules, 2005']. 'Elected authority' defined thereunder, “includes the Chairperson, Deputy Chairperson, Chairmen of Standing Committees and the councillors of a Municipality”. 'Officer' defined, “includes the Secretary appointed under sub-section (1) of section 48, employees including contingent employees appointed in the Municipality under the provisions of Municipal Common Service Rules, and employees, officers and Anganwadi workers lent to the control of the Municipality under sub-section (1) of Section 227”. Other provisions are there enumerating code of conduct and the manner in which the elected authorities and an officer of the Municipality, to conduct themselves. Sub-section (4) of Sec.229A makes it clear that, any complaints on the infringement of the code of conduct by the elected authorities shall be considered by the Ombudsman for Local Self Government Institutions, constituted under Sec.271G of the Kerala Panchayat Raj Act, 1994 and the report thereon shall be forwarded to the Government for appropriate action. So also, Rule 7 of the Rules, 2005 dealing with complaint on the breach of the provisions, stipulates that, any complaint on the breach of the code of conduct of the elected authorities or officials or employees of the Municipality shall be considered by the Ombudsman for Local Self Government Institutions constituted under section 271G of the Kerala Panchayat Raj Act, 1994, and the report thereon shall be forwarded to the Government for appropriate action.

7. Therefore, it is clear from the afore-quoted provisions that there is no power vested with the 3rd respondent or the 2nd respondent to entertain a complaint against a Councillor of the Municipality. There is a clear remedy available to the petitioner in accordance with the provisions of the Act and the Rules specified above. Moreover, 4th respondent is an elected member, who is not a subordinate officer of the 3rd respondent or the 2nd respondent to initiate action on the basis of a complaint submitted by a third person. Petitioner also could not point out any provision either under the Act, 1994 or any Rules enabling the 2nd and 3rd respondents to proceed against a Ward councillor. Therefore, in my considered opinion, the action of the 2nd respondent directing the 3rd respondent to deal with the complaint against the 4th respondent is an inroad into the well settled democratic principles and law, rendering the action illegal and arbitrary and consequently not entitled to get any relief under Article 226 of the Constitution of India.

8. Taking into account all these aspects, the writ petition has no sustenance, and accordingly it is dismissed, leaving open any legal recourse available to the petitioner under law.