Retired Secretary challenged demand notice under Kerala Revenue Recovery Act for audit objections. Court held Secretary lacked jurisdiction to impose liability and set aside recovery proceedings.
Set aside Ext.P4 (notice), demand notices (P2, P3), and proceedings for recovery of amounts mulcted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936
WP(C).No. 1933 of 2012 (N)
PETITIONER:
V.SADANANDAN, S/O. G.VASUDEVAN, AGED 64 YEARS SPECIAL GRADE SECRETARY (RETIRED), THENMALA GRAMA PANCHAYAT AND RESIDING AT CHAITRAM, CHETHADY, CHENGAMANADU P.O., KOTTARAKKARA TALUK, KOLLAM DISTRICT-691 557.
BY ADV. SRI.N.UNNIKRISHNAN.
RESPONDENTS:
1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. THE DIRECTOR OF PANCHAYATH, THIRUVANANTHAPURAM-695 001.
3. THE ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM-695 001.
4. THE DEPUTY DIRECTOR OF PANCHAYATH, CIVIL STATION, KOLLAM-691 001.
5. THE DEPUTY TAHSILDAR (R.R.), TALUK OFFICE, KOTTARAKKARA-691 506.
6. THENMALA GRAMA PANCHAYATH, THENMALA P.O., REP. BY ITS SECRETARY, KOLLAM-691 308.
7. THE DIRECTOR OF LOCAL FUND AUDIT DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.
R1 TO R5 & R7 BY SR.GOVERNMENT PLEADER SRI. P.V. LONACHAN, R6 BY ADV. SRI.C.JAYACHANDRAN (KAYAMKULAM).
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Prv.
W.P.(C).NO.1933/2012 - N:
APPENDIX
PETITIONER'S EXHIBITS:
| EXT.P1 : | A TRUE COPY OF PENSION PAYMENT ORDER NO.27989204, DTD.13.4.2004. |
|---|---|
| EXT.P2 : | A TRUE COPY OF DEMAND NOTICE NO.D7.1549/11, DTD. 20.12.2011. |
| EXT.P3 : | A TRUE COPY OF DEMAND NOTICE NO.D7.1550/11, DTD.20.12.2011. |
| EXT.P4 : | A TRUE COPY OF LETTER NO.T1-6653/10, DTD.18.5.2011. |
| EXT.P5 : | A TRUE COPY OF LETTER DTD.9.1.2012. |
| EXT.P6 : | A TRUE COPY OF ORDER NO.H4-22215/09, DTD.9.8.2011. |
RESPONDENTS' EXHIBITS:
EXT.R6.(A): A TRUE COPY OF LETTER DTD. 28/12/2011. EXT.R6.(B): A TRUE COPY OF EXPLANATION DTD. 21/02/2012.
//TRUE COPY//
P.S. TO JUDGE.
Prv.
K. VINOD CHANDRAN, J
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Dated this the 20th day of August, 2014
J U D G M E N T
The petitioner a retired Secretary, challenges revenue recovery proceedings initiated by Exts.P2 and P3 notices under the Kerala Revenue Recovery Act, 1968. Admittedly, the petitioner retired on 30.04.2003 as the Secretary of the 6th respondent. He was paid the entire pensionary benefits on retirement. The demand notice issued under the Revenue Recovery Act, is after about eight years demanding an amount of Rs.38,98,946/-. The contention of the petitioner is that prior to or after retirement, no such demand was raised or notice issued. The petitioner was first issued with the demand imposing the liability on the petitioner. Though Ext.P5 objection was filed, no decision has been taken by the respondent.
dated 18.05.2011, which he received in the year 2011;
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which presumably led to the revenue recovery proceedings. A reading of Ext.P4 would indicate that while the petitioner was employed in the 6th respondent Society, certain objections were raised on audit, with respect to the expenditure incurred by the Co-operative Society and it is that liability, which is sought to be mulcted on the petitioner. The petitioner, admittedly, was promoted to the post of Secretary on 23.09.1997.
sets of liabilities; one with respect to the audit reports for the years 1997-1998, 1998-1999 and 1999-2000 and the other with respect to the years 2000-2001, 2001-2002 and 2002-2003, which are respectively referred to herein, as the earlier and latter audit reports. Nothing is stated as to what were the subject of objections made by the auditors. With respect to the earlier reports, the petitioner does not seem to have been issued with any notice. In the circumstance the contention raised in Ext.P4 that the petitioner failed to respond to such audit
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objection notified to him cannot be countenanced.
petitioner had filed reply to the audit objections raised. There was no consideration of such reply when the petitioner was in service or immediately after he retired. As was noticed, the petitioner was allowed to retire without any liability being fixed on him and the petitioner had obtained the entire retirement benefits.
counsel for the petitioner is the lack of jurisdiction to
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consider such objection for which the petitioner would rely on the provisions of the Kerala Panchayat Raj Act. The specific contention taken by the learned counsel for the petitioner is that in fact, it was the duty of the auditor to have initiated proceedings with respect to imposition of liability, as per subsection (9) of Section 215. Subsection (9), and (10) are extracted hereunder:-
“(9)The auditors shall, after giving a reasonable opportunity to the person concerned to explain his case, disallow every item of expenditure incurred contrary to law and surcharge the same on the person incurring, or authorising the incurring of, such expenditure and may charge against any person responsible therefor the amount of any deficiency, loss or unprofitable outlay occasioned by the negligence or misconduct of that person or of any sum which ought to have been but is not brought into account by that person and shall, in very such case, certify the amount due from such person:
provided that no surcharge under this sub-section shall be made after a period of four years from the date on which the expenditure in question was incurred. Explanation: It shall not be open to any person whose negligence or misconduct as caused or contributed to any such deficiency or loss, to contend that notwithstanding his negligence or misconduct the deficiency or loss would not have occurred, but for the negligence or misconduct of some other person.
(10)The auditors shall state in writing, the reasons for their decision in respect of every disallowance, surcharge or charge and a copy of such decision shall be served on the person against whom it is made in the manner laid down for the service of summons in the Code of Civil Procedure, 1908 (Central Act 5 of 1908).”
215; which audit is conducted by the officers of the Local
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Self Government Department, the auditor exercises functions of a civil court under the Code of Civil Procedure, 1908 and is conferred with the specific authority to proceed for imposing liability on any person with respect to the disallowance or objection raised on an item of expenditure incurred by the Panchayat. Sub section(9) as extracted herein above clearly indicate such proceedings to be done with due notice to the person who is sought to be imposed with the liability and proper surcharge proceedings initiated thereunder. Admittedly, no such proceedings have been initiated. In fact, the counter affidavit filed by the 7th respondent dated 02.05.2012 specifically avers as follows:-
All the above mentioned paragraphs have been referred to the Administrative Department/Secretary, Thenmala Grama Panchayath for necessary action and no charge/surcharge action has been initiated by this department against the petitioner.
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authority, it is not for that authority to delegate such powers to the Administrative Department. Reference to the Administrative Department is the LSGI Department and not the Panchayat. Though going by the statute the Administrative Department also could not have taken any proceedings; herein the Panchayat has issued the demand without any enquiry being conducted and without even considering the reply of the petitioner. The petitioner's contention that the Secretary of the Panchayat had acted totally without jurisdiction has to be accepted.
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revenue recovery proceedings are initiated recovery cannot be beyond the limitation period provided under an enactment. Though speedy recovery is possible with respect to the dues of the Government, when carried out under the Kerala Revenue Recovery Act, it can only be within the limitation period, provided as per law The Revenue Recovery Act does not efface limitation or provide a method of recovery after the period of limitation.
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on the short ground of lack of jurisdiction on the Secretary, to issue an order mulcting liability on the petitioner, on the basis of the objections raised on audit. The Secretary cannot usurp the powers of the auditor specifically conferred under sub section (9), nor can the auditor delegate such powers to the Secretary.
Sd/- (K. VINOD CHANDRAN, JUDGE)
jma
//true copy//
P.A to Judge
3 issues framed by the court
Whether the Secretary of a Panchayat had jurisdiction to impose liability based on audit objections contrary to the provisions of the Kerala Panchayat Raj Act?
Whether the petitioners challenge against revenue recovery proceedings issued under the Kerala Revenue Recovery Act is time barred?
Whether the Secretary of a Panchayat can usurp the powers of the auditor conferred by statute?
Colour shows how this judgement treated each authority
State of Kerala v. V.R. KaliyanikuttyReferred¶66
199(2) KLT 146 (SC) [State of Kerala v. V.R. Kaliyanikutty]
4 provisions across 3 enactments
V. Sadanandan
State of Kerala
Director of Panchayath
Accountant General, Kerala
Deputy Director of Panchayath
Deputy Tahsildar (R.R.)
K. Vinod Chandran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
K. Vinod Chandran
Parties & counsel
