Dismissed

The Director of Local Fund Audit, Thiruvananthapuram v. P. Johns

Kerala HC16 Nov 2022WA/945/2012

Case brief

AI extract

What is this about?

The Division Bench dismissed a writ appeal filed by the Director of Local Fund Audit. The Court held that the Division Bench judgment in W.A.No.461 of 2012 barred the challenge to the single Judge's view that an appeal under Section 215(13) of the Kerala Panchayat Raj Act was the appropriate remedy, as the Local Fund Audit Act provisions were supplementary in nature and did not grant an independen

What did the court decide?

The writ appeal is dismissed; the cause of action holds no legal ground, and the appellant is governed by the provisions of Section 215(13) of the Kerala Panchayat Raj Act, 1994.

The Director of Local Fund Audit, Thiruvananthapuram… — Writ and Judicial Review | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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WEDNESDAY, THE 16^TH DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944

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WA NO. 945 OF 2012

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AGAINST THE JUDGMENT IN WPC 4511/2010 OF HIGH COURT OF KERALA DATED 24.1.2012

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APPELLANT/PETITIONER:

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THE DIRECTOR OF LOCAL FUND AUDIT, VIKAS BHAVAN, THIRUVANANTHAPURAM

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BY ADV.SRI.TEK CHAND, SR. GOVERNMENT PLEADER

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RESPONDENT/RESPONDENT:

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P. JOHNS, S/O. PAUL, AGED 58, JAYA BHAVANAM, PAMBANAR.P.O, IDUKKI - 685 537.

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BY ADV SRI.MILLU DANDAPANI ADV.BABU.V.P.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA NO. 945 OF 2012

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JUDGMENT

Dated this the 16^th day of November 2022

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S.MANIKUMAR, C.J.

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This writ appeal is filed against the judgment dated 24.1.2012 in W.P.(C)No.4511/2010. Appellant is the Director of Local Fund Audit, Thiruvananthapuram.

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The writ petition was filed challenging Ext.P5 order whereby Ext.P2 Surcharge Certificate issued by the appellant under Section 16(3) of the Kerala Local Fund Audit Act, 1994 was set aside holding that the Surcharge Certificate was issued beyond the limitation period of four years prescribed under the proviso to sub section 9 of Section 215 of the Kerala Panchayat Raj Act, 1994.

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The contention of the appellant in the writ petition was that the proviso to sub Section 215 of the Kerala Panchayat Raj Act, 1994 has no application after the coming into force of the Kerala Local Fund Audit Act, which is a special law exclusively dealing with the audit of the

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WA NO. 945 OF 2012

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accounts of the Local Self Government Institutions wherein, no limitation period is prescribed for issuing a Surcharge Certificate. No appeal is also provided in the Kerala Local Fund Audit Act as against an order setting aside a Surcharge Certificate under Section 16(1) of the Kerala Local Fund Audit Act.

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It is submitted by the appellant/writ petitioner that the writ petition was admitted in the year 2010. No preliminary objection was raised regarding the maintainability of the writ petition, at any stage. However, when the writ petition came up for final hearing on 24.1.2012, the learned single Judge has dismissed the writ petition holding that an appeal lies against Ext.P5 order under Section 215(13) of the Kerala Panchayat Raj Act. Hence this writ appeal.

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We heard Mr.Tek Chand, learned Senior Government Pleader appearing for the appellant and Mr.Babu.V.P., learned counsel appearing for the respondent.

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Though the correctness of the judgment impugned

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in this writ appeal has been assailed on various grounds,

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WA NO. 945 OF 2012

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drawing attention of this court to a Division Bench judgment of this court dated 14^th January 2015 in W.A.No.461 of 2012 and connected cases Mr.Tek Chand, learned Senior Government Pleader fairly submitted that the issue involved in this case is covered against the State Government.

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Operative portion of the said Division Bench judgment is reproduced hereunder:

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“11. Dealing with an argument that in view of Sections 294 and 295 of the Kerala Municipality Act, providing for annual financial statement and accounts and audit, Section 9 of the Kerala Local Fund Audit Act providing for liability of local authorities to prepare and present accounts for audit, is impliedly repealed, a Division Bench of this Court in the judgment in Narayanan v. State of Kerala (2010(1) KLT 918) held that, akin to the provisions contained in Section 9(2) of the Local Fund Audit Act, now there is a provision in the Municipality Act also to maintain and prepare accounts other than local fund also and subjected to audit by the same department, namely, the Local Fund Audit Department. It was then clarified that, in other words, Section 295 of the Municipality Act has enlarged the scope of audit of the local fund and included the other accounts also and that the effect of it, is to enlarge the audit of the local fund to the other accounts also. If the same logic is accepted and applied, in so far as the provisions contained in Section 16 of the Local Fund Audit Act and Section 215 of the Kerala Panchayat Raj Act are concerned, it can be seen

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WA NO. 945 OF 2012

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that the provisions of the Local Fund Audit Act has only enlarged the scope of the provisions of the Kerala Panchayat Raj Act and though there is no appellate remedy provided in the Local Fund Audit Act, in so far as orders passed under Section 16(3) of the Local Fund Audit Act or under Section 215(11) of the Kerala Panchayat Raj Act, the remedy available to a person, who is aggrieved by the levy of surcharge, is appeal as provided under Section 215(13) of the Kerala Panchayat Raj Act, 1994. This, therefore, means that the conclusion of the learned single Judge that if the appellants were aggrieved by the orders passed by the District Court, the remedy was appeal under Section 215(13) does not spell out any illegality justifying interference.

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Learned Government Pleader contended that even if it is assumed that appellate remedy as provided under Section 215(13) is available, still, alternate remedy so provided is not a bar for maintaining a writ petition before this Court invoking powers of this Court under Articles 226 or 227 of the Constitution of India. We are unable to agree. Though it is true that the availability of alternate remedy is no bar for invoking the jurisdiction of this Court under Articles 226 or 227, Courts have always held that, ordinarily, when alternate remedies are available, the parties should seek such remedies. However, in cases where parties prove violation of the principles of natural justice or in cases where violation of fundamental rights are involved and in cases where orders are questioned on the ground of total absence of jurisdiction, the rule of alternate remedy has been held to be not a bar for the High Courts to entertain writ petitions. In so far as these cases are concerned, none of these grounds or exceptions laid down by this Court and Apex Court are made out by the appellants in

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WA NO. 945 OF 2012

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order to bypass the alternate remedy of appeal as provided under Section 215(13) of the Kerala Panchayat Raj Act. Therefore, we are unable to accept this contention of the learned Government Pleader.

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Lastly, it was contended by the learned Government Pleader that atleast in cases where the power of the District Court was invoked only under Section 16(3) of the Local Fund Audit Act, the writ petition should be held maintainable. As we have already stated, the provisions of the Local Fund Audit Act are only supplementary in nature and therefore, necessarily, the parties are governed by the provision of Section 215(13) of the Kerala Panchayat Raj also. We cannot forget the fact that the provisions of Section 215 have been introduced into the Kerala Panchayat Raj Act only in pursuance of the provisions contained in Part IX of the Constitution of India and in particular, Article 243-J. In such circumstances, this contention of the learned Government Pleader also does not merit acceptance.

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In the result, we do not find any reason to take a view different from the one taken by the learned single Judge and we affirm the principles laid down by the learned single Judge in the judgment in Moni Achari's case (supra).

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From the judgment under appeal, we notice that while holding that the remedy available to the appellants is to pursue appeal as provided under Section 215(13) of the Kerala Panchayat Raj Act, the learned single Judge has directed that the period from the date of filing the writ petitions till the date of the judgment shall be excluded, when period of limitation is counted.

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