Director Of Kerala State Audit Department v. Indra Balan Pillai, S/o. Bhaskaran Pillai
2025-11-03
VIJU ABRAHAM
body2025
DigiLaw.ai
JUDGMENT : VIJU ABRAHAM, J. The above writ petition is filed challenging Ext.P6 order issued in favour of the respondent. 2. The petitioner is the respondent in O.P.(LFA) 36/2015 on the file of the District Court, Alappuzha and the respondent is the petitioner in the said O.P. The above O.P(LFA) was filed by the respondent for setting aside the order of surcharge issued against the him in proceedings No.LF 8722/Spl Cell/SC3(A1)2010, dated 07.01.2015. It is averred in the writ petition that the respondent was working as Municipal Secretary at Alappuzha, during the period 2005-2006. As per the audit of accounts of the Alappuzha Municipality by the Local Fund Audit Department, the respondent had caused a loss amounting to Rs.7,41,951/- to the funds of the Alappuzha Municipality. Challenging the said proceedings, respondent has filed O.P(LFA)No.36/2015 before the District Court, Alappuzha, which was allowed setting aside Ext.P3 surcharge certificate, holding that the same is barred under Section 215 (9) of the Kerala Panchayath Raj Act . It is aggrieved by the same that the present writ petition has been filed. 3. An objection was raised by the respondent regarding the maintainability of the writ petition inasmuch as an effective alternative remedy of filing an appeal before this Court is provided as per Section 295 (13) of the Kerala Municipality Act . 4. Before going into the merits of the matter, the maintainability of the present writ petition is to be considered first. The learned Government Pleader relying on the Division Bench of this Court in State of Kerala v. P.D.Raveendran and Another [ 2020 (4) KHC 201 ] would submit that this Court has held that since no period of limitation is provided in the Local Fund Audit Act for issuing a surcharge, the finding by the learned District Judge that the proceedings are barred by limitation is liable to be interfered with. Relying on the very same judgment in P.D.Raveendran's case cited Supra, especially paragraph 21 of the said judgment, the learned Government Pleader would further submit that this Court could entertain the challenge in a writ petition and need not relegate the parties to avail the alternate remedy available. 5. Learned counsel for the respondent would submit that Section 295 of the Kerala Municipality Act deals with 'Accounts and Audit' and Section 295 (11) provides appeal against the surcharge proceedings before the District Court concerned.
5. Learned counsel for the respondent would submit that Section 295 of the Kerala Municipality Act deals with 'Accounts and Audit' and Section 295 (11) provides appeal against the surcharge proceedings before the District Court concerned. It is invoking Section 295 (11) that proceedings were initiated by the petitioner before the District Judge, Alappuzha as evident from Ext.P6 order. Section 295 (13) provides an appeal against the decision of the District Court. A perusal of Ext.P6 order would reveal that the proceedings have been initiated before the District Judge, Alappuzha invoking the power under Section 295 (11) of the Kerala Municipality Act . A similar provision in the Panchayat Raj Act came up for consideration before this Court in Moni Achari C.V. v. Director [ 2012(1) KHC 207 ] wherein this Court held that any person aggrieved by the proceedings issued by the District Judge has a right of appeal before the High Court as provided under Section 215(13) of the Kerala Panchayat Raj Act. A similar issue was considered in W.P.(C)No.29811 of 2008, a copy of which is produced as Ext.R1(a), wherein also the Court found that the writ petition is not maintainable and the party, if aggrieved, can file an appeal as per the Act. The said judgment was appealed against in the Director of Local Funds Audit v. V.C.Joseph [MANU/KE/ 1197/2015], wherein this Court referring to a similar provision in the Kerala Panchayat Raj Act - Section 215(13), has confirmed the judgment of the learned Single Judge holding that remedy is to file an appeal challenging the order passed by the District Court. Though the learned Single Judge of this Court in W.P.(C)No.34265 of 2014, relying on the judgment in P.D.Raveendran 's case cited Supra, relied on by the learned Government Pleader, have entertained a challenge against the order passed by the District Judge, an appeal was preferred against the same as W.A.No.1594 of 2024 and the Court considering the relevant provision and the law on the point held that an aggrieved party could avail the appellate remedy available. It is further contended that in respect of the respondent himself, the petitioner has in a different proceedings challenged the order by filing an appeal before this Court as MFA(Panchayat) No.3 of 2024.
It is further contended that in respect of the respondent himself, the petitioner has in a different proceedings challenged the order by filing an appeal before this Court as MFA(Panchayat) No.3 of 2024. A further contention was raised by the respondent regarding the maintainability of the present proceedings relying on the judgment in Varkey Abraham v. District Judge [ 1994 (1) KLT 580 ] wherein it is held that when invoking the power under Section 61D of the Forest Act , 1961, the judgment has to be considered as judgment of a Civil Court and therefore, no writ petition would lie under Article 226 to quash the judgment. A similar view was taken by this Court in Union of India v. Vijaya Mohini Mills [ 1992 (1) KLT 404 ] wherein it is held that a writ of certiorari cannot be issued while challenging an order/judgment passed by a civil court. A similar view was taken by the Apex Court in Sh.Jogendrasinhji Vijaysinghji v. State of Gujarat and others [AIR (2015) SCC 3623] and in Radhey Shyam v. Chhabi Nath [(2015) 5 SCC 423], wherein also it was held that the judicial orders of the Civil Court are not amenable to a writ of certiorari under Article 226. 6. Heard the rival contentions on both sides. 7. Reliance was placed by the learned Government Pleader on the judgment in P.D.Raveendran' s case cited supra, wherein this Court entertained the writ petition challenging the order of the District Court, but I am of the view that the said judgment cannot come to the help of the petitioner herein. Paragraph 21 of the said judgment makes it clear that the court has interfered in a writ proceedings only for a reason that the writ petition has already been filed and entertained and a decision has been rendered in the year 2009 and striking off the entire proceedings at that length of time, after 11 years, with a direction to the appellant to file an appeal to decide the limited challenge on limitation would be a wasteful exercise, when the instant writ appeal is pending for nearly eleven years. That is not the situation in the present case. The writ petition has been filed by the State challenging Ext.P6 order passed by the District Court and in the said proceedings the respondent has taken a contention regarding the maintainability of the writ petition.
That is not the situation in the present case. The writ petition has been filed by the State challenging Ext.P6 order passed by the District Court and in the said proceedings the respondent has taken a contention regarding the maintainability of the writ petition. The further contention of the learned Government Pleader that the only limited question to be decided in this proceedings is as to whether the proceedings initiated is barred by limitation as found in Ext.P6 and relying on the judgment in P.D.Raveendran 's case itself the learned Government Pleader would submit that it is settled by this Court that the limitation will not apply for a proceedings initiated as per the provisions of the Local Fund Audit Act and therefore, the petitioner shall not be relegated to file an appeal. I am not able to accept the said contention of the petitioner also. There is a specific finding entered into by the District Court, wherein liability was found against the respondent herein, but on the ground of limitation the proceedings have been interfered with. If in this proceedings this Court is to entertain the contention of the petitioner that the proceedings are not barred by limitation, all other finding in Ext.P6 against the respondent will remain and the respondent will have no forum to challenge the said findings and if an appeal is filed as mandated as per Section 295 (13) of the Kerala Municipality Act , naturally the respondent could file a cross-objection against the other findings in Ext.P6. 8. Taking into consideration the above facts and circumstances, I am of the view that the writ petition is not maintainable challenging Ext.P6 order passed on a petition filed under Section 295 (11) of the Kerala Municipalities Act and the petitioner is relegated to file an appeal challenging Ext.P6. The period during which the petitioner was prosecuting the writ petition, could be exempted for counting the period of limitation for filing the appeal. With the above said observation, the writ petition is dismissed.