High Court of KeralaSingle Judge2016-01-04Original Petition dismissed; payment directions...

DIRECTOR OF SURVEY AND LAND RECORDS, THIRUVANANTHAPURAM v. VARIJAKSHAN N., KERALA LOK AYUKTA

Case / Petition Number:OP.No. 27484 of 2002 (V)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2016-01-04
Court Decision / Holding: Original Petition dismissed. The respondent/State is to pay Rs.1,67,398 with 10% interest within two months. If the DCRG has already been paid after deducting the excess, interest must be computed up to the date of disbursal and paid within three months. No costs.
Final Disposition: Original Petition dismissed; payment directions upheld with timelines; no costs.

Parties to the Case

Appellants / Petitioners

Director of Survey and Land Records, Thiruvananthapuram
State of Kerala represented by Chief Secretary

Respondents

Varijakshan N.
Kerala Lok Ayukta

Legal Representation & Advocates

Counsels for Petitioners

• Sunitha Vinod

Counsels for Respondents

• Sri. G. Sudheer

Case Synopsis & Summary

The petition challenges a Kerala Lok Ayukta order directing payment of the complainant’s DCRG and interest. Varijakshan N., the complainant before the Lok Ayukta, claimed Rs.1,76,352 as DCRG but was denied partly because Rs.8,954 had allegedly been paid in excess due to irregular fixation of pay. The Lok Ayukta ordered disbursement of Rs.1,67,398 with 10% interest and left the government free to recover the excess amount from responsible officers. The government argued that the fixation of pay was irregular and that the Lok Ayukta had no power to award interest, relying on Bernard and on the statutory framework of the Kerala Lok Ayukta Act, 1999 (especially Section 7). It was contended that the matter fell outside the Lok Ayukta’s jurisdiction, or at least could only be investigated under sub-section (2) for actions by a public servant not enumerated under sub-section (1). The court noted the pending high court Original Petition No. 23488/2000 and observed that while the Lok Ayukta acted without jurisdiction in directing interest, it would not upset the course of justice to dismiss the petition. Relying on Bernard, Mohammed Swalleh, and Abida Beevi, the court dismissed the OP, but directed payment of the ordered sums with interest within prescribed timelines, without costs.

Provisions of Law Cited

Kerala Lok Ayukta Act, 1999Section 7(1)Section 7(2)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that the Lok Ayukta acted beyond its jurisdiction by directing interest and by treating the entire issue as within the Lok Ayukta’s reach. They contended that the fixation of pay and the related excess payment were subject to resolution in Original Petition No. 23488/2000; the Lok Ayukta’s power to award interest is not conferred by the Kerala Lok Ayukta Act, 1999, and cannot override settled adjudication. The matter of disbursal should flow from the pending High Court proceeding, and the rules restricting proceedings under Section 7(1) and the scope of Section 7(2) should guide the investigation. The petitioners rely on Bernard and related precedents to argue that the Lok Ayukta cannot grant interest and that any order directing such relief is without jurisdiction.

Contentions of Respondents

The respondents argued that the delay in DCRG disbursal stemmed from the unresolved issue of excess payment arising out of irregular pay fixation, which was pending in O.P. No. 23488/2000 and thus partly justifies the Lok Ayukta’s order. They contended that the Lok Ayukta’s powers extend to matters involving acts of public servants under Section 7, with sub-section (2) permitting inquiry into actions not enumerated under sub-section (1). They relied on Bernard to contend that interest could not be awarded by the Lok Ayukta and stressed adherence to statutory limits; they also argued that the pendency of the earlier petition justified deferment, and that the court should apply the precedent to limit the scope of intervention.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Bernard	2002 (3) KLT 25	Positive	Court applies Bernard to hold that the Lok Ayukta cannot award interest, supporting the position that Ext.P1’s interest directive was without jurisdiction.
Mohammed Swalleh v. Third Addl. District Judge	(1988) 1 SCC 40	Positive	Used to justify non-interference with an order found to be without jurisdiction, to advance justice.
Commissioner of Police v. Abida Beevi	2006 (2) KLT 112	Positive	Cited to support the principle that interference should not be invoked if it would unnecessarily thwart justice when the order is beyond jurisdiction.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 4TH DAY OF JANUARY 2016/14TH POUSHA, 1937** ## **OP.No. 27484 of 2002 (V)** ## **-------------------------** ## **PETITIONERS/RESPONDENTS:** **--------------------------------------------** **1. DIRECTOR OF SURVEY AND LAND RECORDS, THIRUVANANTHAPURAM.** **2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVT OF KERALA, SECRETARIATE THIRUVANANTHAPURAM.** ## **BY GOVERNMENT PLEADER SMT. SUNITHA VINOD** ## **RESPONDENTS/COMPLAINANT:** **-----------------------------------------------** ## **1. VARIJAKSHAN N., KARUNYA, THALAYIL KUTHIRAKULAM P.O., VEMBAYAM, THIRUVANANTHAPURAM.** **2. THE KERALA LOK AYUKTA,** - **THIRUVANANTHAPURAM.** **R1 BY ADV. SRI.G.SUDHEER** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 04-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP.No. 27484 of 2002 (V)** ## **APPENDIX** ## **PETITIONERS EXHIBITS** - **P1: ORDER DATED 2.1.2002 OF KERALA LOK AYUKTA** **P2: LETTER DATED 21.8.2001 ADDRESSED TO THE RESPONDENTS BY THE PETITIONER** ## **RESPONDENTS EXHIBITS** **NIL** **//TRUE COPY//** **P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------O.P. No. 27484 of 2002 (V) -----------------------------------------Dated this the 4[th] day of January, 2016 ## **J U D G M E N T** The petitioner is the department of the State, which is aggrieved with the order passed by the Lok Ayukta as per Ext.P1. The complainant before the Lok Ayukta is the 1[st] respondent herein. The complaint raised before the Lok Ayukta was the non disbursal of the DCRG due to him, amounting to Rs.1,76,352/-. Admittedly, the denial of such disbursal was due to the fact that the petitioner had received a sum of Rs.8,954/in excess, due to irregular fixation of pay in the higher scale. The question as to whether the fixation was an irregular one or not was the subject matter of O.P. No.23488/2000. The Lok Ayukta found that since the said Original Petition was pending before the High ## **O.P. No. 27484/2002** **-2-** Court, Rs.8,954/- could be retained and the balance amounts disbursed. There was a direction to disburse Rs.1,67,398/- with interest at the rate of 10% per annum. It was also specifically directed that the Government would be free to recover such loss suffered on account of payment of interest from the officers responsible in causing the delay. 2. The learned Government Pleader argues that O.P. No.23488/2000 was disposed of, along with a batch of original petitions, by judgment dated 7.3.2002. As per the decision, the petitioner's fixation of pay was found to be irregular and he was not entitled to Rs.8,954/-. It is contended that it was only due to the said pending issue that the DCRG was not disbursed. Further, the learned Government Pleader places reliance on **State of Kerala v. Bernard - 2002 (3) KLT 25** 4 to contend that Lok Ayukta does not have the ## **O.P. No. 27484/2002** **-3-** power to make such orders with respect to interest, since, the Lok Ayukta does not have any power of adjudication and could only make a recommendation. 3. The learned Government Pleader also refers to the memorandum of appeal to contend that, since the matter has been disposed of by the Lok Ayukta and Upa-Lok Ayukta sitting together, only actions by persons coming under sub-section (1) of Section 7 of the Kerala Lok Ayukta Act, 1999 (for brevity 'the Act') could be looked into and the actions complained of by the 1[st] respondent before the Lok Ayukta was not one taken by or with the approval of the persons enumerated under sub-section (1) of Section 7 of the Act. 4. Section 7 speaks of matters which may be investigated by the Lok Ayukta and the Upa-Lok Ayukta. Sub-section (1) of Section 7 of the Act specifically ## **O.P. No. 27484/2002** **-4-** provides that any action, taken by or with the general or specific approval of the persons enumerated thereunder, may be investigated by the Lok Ayukta sitting along with one of the Upa-Lok Ayuktas. The contention is that the action complained of was not by any of the persons enumerated under sub-section (1) of Section 7 of the Act and hence the impugned order passed by the Lok Ayukta sitting along with one of the Upa-Lok Ayuktas, cannot be sustained. The contention with respect to sub-section (1) of Section 7 of the Act, is only to be noticed to be rejected. It is to be noticed that sub-section (2) of Section 7 of the Act empowers an Upa-Lok Ayukta to investigate any action taken by, or with the general or specific approval of, any public servant not enumerated under sub-section (1) of Section 7 of the Act. ## **O.P. No. 27484/2002** **-5-** 5. Hence a complaint, involving a grievance or an allegation made, if coming within the ambit of the definition of grievance or allegation as defined under the Act and not taken by the persons enumerated under sub-section(1) of Section 7, could be looked into under sub-section(2), by an Upa-Lok Ayukta. It cannot be contended that a Lok Ayukta sitting with an Upa-Lok Ayukta cannot look into the matters enumerated under sub-section (2). Any grievance complained of or allegation made against the action of a person coming under sub-section (1) of Section 7 would have to be investigated by a bench comprising of the Lok Ayukta and the Upa-Lok Ayukta and one complained of about a public servant, not coming under sub-section (1), could be looked into by an Upa-Lok Ayukta. It would be futile to contend that the provisions would take away the powers of the Lok Ayukta sitting with an Upa-Lok ## **O.P. No. 27484/2002** **-6-** Ayukta, to look into the allegation or grievance under sub-section (2) of Section 7 of the Act. A reading of sub-sections (1) and (2) of Section 7 of the Act would only indicate that the actions by persons enumerated under sub-section (1), if complained of as an allegation or grievance, cannot be looked into by a Lok Ayukta or an Upa-Lok Ayukta, sitting single. 6. This Court is inclined to accept the further contention of the learned Government Pleader that the decision in **Bernard** (supra) would squarely apply. The Lok Ayukta could not have passed an order granting interest to the complainant, which is totally without jurisdiction. However, it is to be noticed that the Lok Ayukta specifically issued such direction noticing the binding precedents of the Hon'ble Supreme Court and this Court. The issue was also one with respect to delay in disbursal of the DCRG. ## **O.P. No. 27484/2002** **-7-** 7. The complainant retired on 31.3.2000 and the complaint before the Lok Ayukta was in 2001.The State contended before the Lok Ayukta that the delay was occasioned only because the question of excess payment of Rs.8,954/-, which was alleged to be made on irregular fixation, was pending consideration in an Original Petition before the High Court. The Government and its officers ought to have retained the said amount and disbursed the balance DCRG, which they refused to do. In effect, an amount of Rs.1,76,352/-, due to the complainant as DCRG, was withheld, for reason of irregular fixation resulting in excess payment of a mere Rs.8,954/-. 8. In such circumstance, though the order is one without jurisdiction, this Court is unable to find it to be unjustified. Despite the Lok Ayukta having acted without jurisdiction, this Court would not interfere with ## **O.P. No. 27484/2002** **-8-** Ext.P1 order or the direction to pay interest at the rate of 10%, going by the binding precedent of the Hon'ble Supreme Court and this Court in **Mohammed Swalleh v. Third Addl. District Judge - (1988) 1 SCC 40** and **Commissioner of Police v. Abida Beevi - 2006 (2) KLT 112** . In the latter of the above decisions, when the Lok Ayukta found an order to be illegal, though without jurisdiction, interference was declined, since it advanced the cause of justice. It was also held that if the petitioner had on the very same grievance, approached this Court a similar direction would have been issued. The principle applies squarely in the facts of the instant case. In conclusion, though the order is found to be without jurisdiction, the Original Petition would stand dismissed. The respondent shall be paid the amounts directed with interest within a period of two months, if ## **O.P. No. 27484/2002** **-9-** not already paid. If the DCRG has been paid on the disposal of O.P. No.23488/2000, after deducting the excess payment, then the interest shall be computed upto the date of disbursal of DCRG and the same paid, within three months. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 4/1/16