The JAMMU AND KASHMIR MUNICIPAL OMBUDSMAN ACT, 2010

MUNICIPAL OMBUDSMAN
ACT, 2010
(Act No. XX of 2010)
268 MUNICIPAL OMBUDSMAN ACT, 2010
THE JAMMU AND KASHMIR MUNICIPAL
OMBUDSMAN ACT, 2010
(Act No. XX of 2010)
CONTENTS
SECTION.
1. Short title and commencement.
2. Definitions.
3. Appointment of Ombudsman.
4. Term of office and conditions of service of Ombudsman.
5. Removal of Ombudsman.
6. Staff of the Ombudsman.
7. Functions of the Ombudsman.
8. Powers of the Ombudsman.
9. Service of Government Departments.
10. Provisions regarding complaints.
11. Investigation.
12. Enquiry.
13. Existing cases to be transferred to Ombudsman.
14. Initiation of prosecution.
15. Interim recommendations.
16. Disposal of complaints.
17. Penalty for malafide complaint.
18. Power to make rules.
19. Power to remove difficulties.
––––––––
270 MUNICIPAL OMBUDSMAN ACT, 2010
THE JAMMU AND KASHMIR MUNICIPAL
OMBUDSMAN ACT, 2010
(Act No. XX of 2010)
[Received the assent of the Governor on 23rd October, 2010 and
published in Government Gazette dated 25th October, 2010.]
An Act to establish Municipal Ombudsman for the purpose of
investigating charges of corruption or maladministration in Urban Local
Government Institutions in the 1[Union territory of Jammu and Kashmir].
Be it enacted by the Jammu and Kashmir State Legislature in the sixty-
first Year of the Republic of India as follows :––
1. Short title and commencement. ––(1) This Act may be called the Jammu
and Kashmir Municipal Ombudsman Act, 2010.
2[(2) It shall come into force on such date as the Government may, by
notification  in the 3[Official Gazette], appoint].
2. Definitions. ––(1) In this Act, unless the context otherwise requires––
(a) “Act” means the Jammu and Kashmir Municipal Ombudsman Act,
2010 ;
(b) “action” means administrative action taken by way of decision,
recommendation, resolution or finding or in execution thereof or in
exercise of administrative or legal functions or in any other manner
and includes willful failure in taking action or omission to act and
all other expressions relating to such action shall be construed
accordingly ;
(c) “allegation”,––
(1) in relation to public servant means, any affirmation that such
public servant,––
1. Substituted for “State” by S.O. 1229(E) dated 31.03.2020.
2. Enforced vide SRO-41 dated 2nd February, 2011, w.e.f. 1st February, 2011.
3. Substituted for “Government Gazette” by S.O. 1229(E) dated 31.03.2020.
272 MUNICIPAL OMBUDSMAN ACT, 2010
(i) has abused his position for any gain or favour to himself
or to any other person or to  cause undue harm or
hardship to any person ; or
(ii) was actuated in the discharge of his functions as such
public servant by personal interest, or improper or
corrupt motives ; or
 (iii) is guilty of corruption, favouritism, nepotism or lack of
integrity ; or
(iv) is guilty of an action as public servant which facilitates
or causes to make any loss, waste or misapplication of
money or other property of the municipality ;
(2) in relation to a municipality means any affirmation that such
municipality has defaulted or acted in excess of its powers in
the discharge of the functions imposed on it by law or in
implementing the lawful orders and directions of the
Government ;
(d) “complaint” means a statement of allegation that a public servant
or a municipality 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 ;
(e) “corruption” includes anything made punishable as punishable as
such under 1[Chapter IX of the Indian Penal Code (45 of 1860) or
under the Prevention of Corruption Act, 1988 (49 of 1988)] or any
other law in force ;
(f) “Government” means 2[the Government of the Union territory of
Jammu and Kashmir] ;
(g) “grievance” includes a claim by a person that he sustained injustice
or undue hardship in consequence of maladministration; provided
it shall not include any claim of an employee with respect to his
service matter ;
1. Substituted by S.O. 1229(E) dated 31.03.2020.
2. Substituted for “the Government of Jammu and Kashmir” ibid.
MUNICIPAL OMBUDSMAN ACT, 2010 273
(h) “investigating officer” means an officer authorized by the
Ombudsman to conduct investigation in respect of an allegation or
complaint ;
(i) “maladministration” means action taken or purporting to have been
taken in the exercise of administrative function in any case where,––
(i) such action, administrative procedure or practice or practice
governing such action is unreasonable, unjust, oppressive,
discriminatory or nepotic and will make illegitimate gain or
loss to any person or will deny any person the deserving
benefits ; or
(ii) there is wilful negligence or delay in taking such action, or
the administrative procedure or method regulating such
action will cause undue delay and includes the action leading
to loss or waste or misuse of fund by malfeasance or
misfeasance ;
(j) “municipality” means a Municipal Corporation, a Municipal
Committee or a Municipal Council constituted under the Jammu
and Kashmir Municipal Corporation Act, 2000 or the Jammu and
Kashmir Municipal Act, 2000, as the case may be ;
(k) “Ombudsman” means the Ombudsman appointed under section 3 ;
(l) “prescribed” means prescribed by rules made under this Act ;
(m) “public servant” means a member of the municipality including a
Mayor or President, Councillor, Ward Member, officer or employee
of the municipality, or an officer or employee of any office or
institution transferred to the municipality ;
(n) “Secretary” means the Secretary of the Ombudsman referred to in
section 6 ;
(o) “Special Tribunal” means Special Tribunal constituted under the
Jammu and Kashmir Special Tribunal Act,1988 ;
1[x x x x].
1. Clause (p) omitted by S.O. 1229(E) dated 31.03.2020.
274 MUNICIPAL OMBUDSMAN ACT, 2010
3. Appointment of Ombudsman. ––(1) The 1[Lieutenant Governor] shall,
on the advice of the Chief Minister, appoint a person as Ombudsman :
Provided that a person shall not be qualified to be appointed as
Ombudsman unless he has been a 2[Judge of a High Court or is eligible to be
appointed as Judge of a High Court or who has held the post of Commissioner
or Secretary to the Government or equivalent rank] :
Provided further that the Chief Minister before tendering advice to 3[the
Lieutenant Governor shall consult] the Speaker of the Legislative Assembly,
and the leader of the Opposition in the Legislative Assembly. If there is no
such Leader of Opposition in the Legislative Assembly, the leader of the single
largest group or party in opposition to Government in the Legislative Assembly
shall be consulted.
4[Provided also that during the continuation of Proclamation issued under
section 73 of the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019), the
Ombudsman shall be appointed by the Lieutenant Governor on the
recommendation of the Committee consisting of––
(a) Advisors to the Lieutenat Governor (one of whom shall be
nominated by the Lieutenant Governor, who shall be the Chairperson
of the Committee) ; and
(b) Chief Secretary (Member–Secretary).]
(2) The Ombudsman shall, before entering upon office, make and
subscribe before the 1[Lieutenant Governor] an oath or affirmation in
the prescribed form.
4. Term of office and conditions of service of Ombudsman. ––(1) The
Ombudsman shall hold office for a term of three years from the date on which
he enters upon his office :
Provided that Ombudsman shall not hold office after he has attained the
age of seventy years :
Provided further that the Ombudsman may,––
1. Substituted by S.O. 1229(E) dated 31.03.2020 for “Governor”.
2. Substituted for “Judge of a High Court or is eligible to be appointed as Judge of High Court”
ibid.
3. Substituted for “the Governor shall consult the Chairman of the Legislative Council ibid.
4. Proviso inserted ibid.
MUNICIPAL OMBUDSMAN ACT, 2010 275
(a) by writing under his hand addressed to the 1[Lieutenant Governor],
resign his office ; and
(b) be removed from office in the manner provided in section 5.
2[(2) The Ombudsman shall be entitled to pay and allowances as admissible
to a Judge of the common High Court of Jammu and Kashmir.]
(3) On expiry of his term of office as Ombudsman, he shall not be
eligible for re-appointment as Ombudsman or for further appointment
to any office of profit under the Government or in any corporation,
company, society or university owned, controlled or financed by the
Government.
5. Removal of Ombudsman. ––(1) The Ombudsman shall not be removed
from his office except by an order made by the 1[Lieutenant Governor] on the
ground of proved misbehaviour or incapacity after the High Court, on reference
being made to it by the 1[Lieutenant Governor] has, on inquiry held in
accordance with the procedure prescribed in that behalf by the High Court,
reported that the Ombudsman ought on any such ground be removed.
(2) Notwithstanding anything in sub-section (1), the 1[Lieutenant
Governor] may by order remove from office the Ombudsman if he––
(i) is adjudged as insolvent ; or
(ii) engages during his term of office in any paid employment outside
the duties of his office ; or
(iii) is unable to continue in office by reason of infirmity of mind or
body ; or
(iv) is of unsound mind and stands so declared by a competent
court ; or
(v) is convicted of an offence involving moral turpitude ; or
(vi) is, without leave of absence, absent from his office for thirty days.
6. Staff of the Ombudsman. ––(1) The Ombudsman shall have a Secretary
and such other officers and employees as the Government may determine in
1. Substituted by S.O. 1229(E) dated 31.03.2020 for “Governor”.
2. Sub-section (2) substituted ibid.
276 MUNICIPAL OMBUDSMAN ACT, 2010
consultation with the Ombudsman to assist the Ombudsman in the exercise of
his  powers and discharge of his functions under the Act.
(2) The appointment and conditions of service of the Secretary and the
employees shall be such as may be prescribed.
(3) The officers and other employees referred to in sub-section (1)
shall be under the administrative and disciplinary control of the Ombudsman.
(4) Without prejudice to the provisions of sub-section (1), the
Ombudsman may for the purpose of conducting investigations under
the Act utilize the services of any officer or investigating agency of
the Government.
(5) The Ombudsman may requisition the services of any person having
experience and expertise in any particular subject in deciding the question
before it.
7. Functions of the Ombudsman. ––(1) The Ombudsman shall perform all
or any of the following functions, namely :––
(i) investigate into any allegation contained in a complaint or on a
reference from Government ;
(ii) enquire into any complaint in which corruption or maladministration
of a public servant or a municipality is alleged ;
(iii) pass an order on the allegation in the following manner,
namely:––
(a) where the irregularity involves a criminal offence committed
by a public servant, the matter shall be referred to the
appropriate authority for investigation ;
(b) where the irregularity causes loss or inconvenience to a
citizen, direct the municipality to give him compensation and
to reimburse the loss from the person responsible for the
irregularity ;
(c) where the irregularity involves loss or waste or misuse of the
fund of the municipality, realize such loss from those who are
responsible for such irregularity ; and
MUNICIPAL OMBUDSMAN ACT, 2010 277
(d) where the irregularity is due to omission or inaction, cause to
supply the omission and to rectify the mistake.
(2) In addition to the functions enumerated in sub-section (1), the
Ombudsman may pass interim order restraining the municipality from doing
anything detrimental to the interest of the complainant if it is satisfied that
much loss or injury will be caused to the complainant due to the alleged act.
(3) The Ombudsman may, by order, impose penalty in addition to
compensation if it is of opinion that the irregularity involves corrupt practice
for personal gain.
8. Powers of the Ombudsman. ––(1) The Ombudsman shall, for the
purpose of any investigation or enquiry under this Act, have the same powers
as are vested in a Civil Court while trying a suit under 1[the Code of Civil
Procedure, 1908 (5 of 1908)] in respect of the following matters, namely:––
(a) summoning and enforcing the attendance of any witness and
examining him ;
(b) requiring the discovery and production of any document ;
(c) receiving evidence on affidavits ;
(d) requisitioning any public records, or copy thereof, from any court
or office ;
(e) issuing commissions for the examination of witnesses ;
(f) such other powers as are prescribed.
(2) Where the Ombudsman finds that the allegation contained in a
complaint is without any substance or trivial in nature, it may by order direct
the complainant to pay to the opposite party an amount specified in the order
by way of costs.
(3) Where the allegation contained in a complaint is about the loss or
waste or misapplication of the fund of municipality or in respect of the loss or
inconvenience caused to a citizen, the Ombudsman may, during enquiry, collect
evidence, determine the loss and direct in its order the amount to be realized
from the person responsible.
1. Substituted by S.O. 1229(E) dated 31.03.2020 for “the Code of Civil Procedure, Samvat
1977”.
278 MUNICIPAL OMBUDSMAN ACT, 2010
(4) If the amount paid as per the order passed by the Ombudsman under
sub-section (2) or sub-section (3) is not paid within the period specified by it,
the same shall be recovered as arrears of land revenue.
9. Service of Government Departments.–– The Government may, at the
request of the Ombudsman, make available the services of officers and
employees of the Government including police personnel to assist the
Ombudsman in the conduct of investigation and inquiry and in respect of such
functions, such officers or employees shall be deemed to be the officers or
employees of the Ombudsman.
10. Provisions regarding complaints. ––(1) Subject to the provisions of this
Act, complaint may be made under this Act, to the Ombudsman ; in case of an
allegation, by any person, and in case of a grievance, by a person aggrieved :
Provided that where the person aggrieved is dead or, is for any reason
unable to act for himself, the complaint may be made or continued by his legal
representative or by any other person who is authorized by writing in this behalf.
11. Investigation. ––(1) The Ombudsman may, according to the
provisions of this Act, enquire into any complaint filed before it under this Act.
(2) Notwithstanding anything contained in this Act, the Government
may refer any allegation of corruption or maladministration against a
municipality or a public servant, which is within its knowledge or brought to
its notice, to the Ombudsman and the Ombudsman shall enquire into it as if it
was a complaint filed under the Act.
(3) The Ombudsman may, on receipt of a complaint, conduct an
investigation in the matter and where there is prima facie case it may conduct
a detailed enquiry.
(4)   The Ombudsman shall not enquire into matters relating to,––
(a) any matter in respect of which a formal and public enquiry has been
ordered by Government ;
(b) any matter in respect of which an enquiry has been ordered under
1[the Commission of Inquiry Act, 1952 (60 of 1952)] or any matter
pending before the court ;
1. Substituted by S.O. 1229(E) dated 31.03.2020 for “the Jammu and Kashmir Commission of
Inquiries Act, 1962”.
MUNICIPAL OMBUDSMAN ACT, 2010 279
(c) any complaint filed after the expiry of three years from the date on
which the matter complained against has taken place.
12. Enquiry. ––(1) After an investigation, if the Ombudsman is satisfied
that,––
(a) the complaint is frivolous or vexatious or is not made in good
faith ; or
(b) there is no sufficient ground to initiate proceedings ; or
(c) 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,
it may dispose of the complaint as rejected after recording its findings stating
the reason therefor, and communicate the same to the complainant.
(2) If the Ombudsman is of opinion that there is a prima facie case
against the person or the municipality complained of, it shall record its findings
to this effect and send notices of the proposed enquiry to the complainant and
to the opposite party.
(3) The Ombudsman shall, subject to the provisions of the Act and the
rules made thereunder, have power to regulate its procedures and fixing the
time and place of sitting.
13. Existing cases to be transferred to Ombudsman. ––(1) Notwithstanding
anything contained in any law, if any proceedings filed and not disposed of
under the said law before the constitution of the Ombudsman as per the
provisions of the Act relate  to a public servant or a  municipality, all cases with
regard to such proceedings shall be transferred to the Ombudsman and the
Ombudsman shall decide the cases in accordance with the provisions of the
Act.
(2) All cases, with regard to the loss, wastage and misappropriation of
any land of the municipality, pending before the Government or any other
authority including the Special Tribunal before the constitution of the
Ombudsman shall stand transferred to the Ombudsman who shall dispose of
such cases in accordance with the provisions of the Act.
1[x x x x].
1. Sub- section (3) omitted by S.O. 1229(E) dated 31.03.2020.
280 MUNICIPAL OMBUDSMAN ACT, 2010
14. Initiation of prosecution. ––(1) If, after any investigation or inquiry,
the Ombudsman finds that there is a prima-facie case against the accused
involving a criminal offence, the Ombudsman may refer the complaint and the
findings to a competent authority with recommendation to initiate prosecution.
(2) The authority responsible, for initiating such prosecution shall conduct
a detailed enquiry if necessary and initiate prosecution against the accused.
15. Interim recommendations.–– If during the course of preliminary
inquiry or investigation under the Act, the Ombudsman is prima facie satisfied
that the allegation or grievance against any action or decision is likely to be
substantiated either wholly or partly, it may, by a report in writing recommend
to the municipality concerned to stay the implementation of the decision or
action complained against or take such mandatory or preventive action on
such terms and conditions, as it may specify, in its report.
16. Disposal of complaints. ––(1) The Ombudsman may consider and
dispose of complaints other than those involving criminal offences, in the
following manner,––
(i) award of compensation, to a citizen in case of loss or grievance ;
(ii) order the recovery of loss caused to the municipality from the
person responsible ;
(iii) order the supply of omission or rectification of defects due to inaction ;
(iv) order the recovery of loss from the accused failing which, direct
the recovery  of  such loss as arrears of land revenue ; and
(v) order other necessary remedial measures considering the facts and
circumstances of the case.
(2) Where the Ombudsman finds that the procedure or practice regarding
the administration of municipality gives room for complaint, it may give
suggestions to the Government or the municipality relating to the measures for
avoiding the recurrence of such complaint.
(3) The Ombudsman shall submit an annual report regarding the
performance of its functions under the Act to the Government and the
MUNICIPAL OMBUDSMAN ACT, 2010 281
Government shall, as soon as may be, lay such report before 1[the Legislative
Assembly of the Union territory of Jammu and Kashmir] with an explanatory
memorandum.
17. Penalty for malafide complaint. ––(1) Every person who makes any
complaint which he knows or has reason to believe that that the same is false,
frivolous or vexatious upon finding to that effect recorded by the Ombudsman
shall be punishable with imprisonment which may extend to one year or fine
which may extend to twenty thousand rupees or both.
18. Power to make rules.–– The Government may by notification in the
2[Official Gazette]  make rules for carrying out the provisions of the Act.
(2) In particular and without prejudice to the generality of the foregoing
provisions, such rules may provide for all or any of the following, namely:––
(i) the conditions of service of the Ombudsman and his staff ;
(ii) the form and manner of filing complaints before the Ombudsman
and the manner of filing cases on reference by the Government ;
(iii) the manner and procedure of conducting investigation ;
(iv) the procedure for moving the appropriate authority for the initiation
of prosecution ;
(v) procedure to be followed during the inquiry, which as far as the
possible, be summary proceedings ;
(vi) the manner of implementing the orders of the Ombudsman and
further proceedings ;
(vii) any other matter which the Government may deem necessary to
prescribe.
19. Power to remove difficulties.–– If any difficulty arises in giving effect
to the provisions of the Act, the Government may, by order published in the
2[Official Gazette], make such provisions not inconsistent with the provisions
of the Act, as may appear to be necessary for removing the difficulty :
1. Substituted by S.O. 1229(E) dated 31.03.2020 for “the State Legislative Assembly”.
2. Substituted ibid for “Government Gazette”.
282 MUNICIPAL OMBUDSMAN ACT, 2010
Provided that no order shall be made under this section after the expiry
of two years from the date of commencement of the Act.
–––––––

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