High Court of KeralaSingle JudgeWrit petition disposed; Ext.P2 set aside; 1st r...

K. Thankappan and others v. State of Kerala and others

Case / Petition Number:WP(C) No. 27505 of 2015

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. V. Kunhikrishnan
Judgment Date
2024-02-07
Court Decision / Holding
Ext.P2 is set aside. The 1st respondent is directed to reconsider the matter after giving an opportunity of hearing to the petitioners and respondents 3 and 4, as expeditiously as possible.
Final Disposition
Writ petition disposed; Ext.P2 set aside; 1st respondent directed to reconsider the matter after giving an opportunity of hearing to the petitioners and respondents 3 and 4, expeditiously.

Parties to the Case

Appellants / Petitioners

  • K. Thankappan
  • N.G. Moorthy
  • ULIYAKOVIL SASI
  • S. Sajith
  • L.M. Afthab
  • SREEJITH BABU
  • C.M. JAYA
  • N.J. ANANDAVALLY AMMA
  • KAYIKKARA NAZEER
  • PONNAMMA SREEDHARAN
  • SOJA THULASEEDHARAN
  • PRASANNAKUMARI ANIRUDHAN
  • G. RAMESH BABU
  • ESTHER ANTONY
  • MABLE CLEETUS

Respondents

  • State of Kerala represented by the Principal Secretary to Government, Local Self Government (E.M) Department, Secretariat (Annex), Thiruvananthapuram
  • The Director of Municipalities, Government of Kerala
  • The Kollam Municipal Corporation
  • The Local Fund Accounts Committee, Kerala Legislature Complex

Legal Representation & Advocates

Counsels for Petitioners

  • • B. Mohanlal

Counsels for Respondents

  • • Sri. Riyal Devassy
  • • Sri. S. Sreekumar

Case Synopsis & Summary

The High Court of Kerala heard WP(C) No. 27505 of 2015, filed by ex-councilors of Kollam Municipal Corporation challenging audit recommendations that fixed liability for 1997–1998 in connection with allotting Cantonment Maidan at a reduced rent. Based on audit objections, Ext.P1 prepared by the 1st respondent directed action, followed by Ext.P2 notices to the petitioners for recovery of Rs. 33,779 each with interest and penalties. The petition asserted the audit process violated statutory mandates and that recoveries were not properly actionable; it sought quashing Ext.P1 and Ext.P2, declaration that the liability was not proper and that the allocation was lawful. During hearing, the court found Ext.P2 to be an order issued without providing an opportunity of hearing to petitioners, and that any recovery should be preceded by due process; it also noted limitation issues would need to be considered under law. The court disposed of the petition by setting aside Ext.P2 and directing the 1st respondent to reconsider the matter after giving a hearing to the petitioners and to respondents 3 and 4, expeditiously, consistent with statutory mandates.

Provisions of Law Cited

Kerala Municipality ActKerala Municipality RulesLocal Fund Audit Rules

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners challenge Ext.P2 (the recovery notice) and Ext.P1 based on audit recommendations, arguing that the notices were issued without giving them a hearing and that the liability for the period 1997–1998 for Cantonment Maidan at a reduced rent is not properly assessed. They seek to quash Ext.P1 and Ext.P2, declare the audit recommendations void, and state that the Cantonment Maidan allocation for the period was in conformity with statutory mandates and that they are not liable.

Contentions of Respondents

The respondents contended that Ext.P2 was issued following Ext.P1 as part of the audit process, based on audit objections, and that recovery is a consequence of the audit recommendations; they rely on due process and the validity of the audit findings, though explicit submissions are not reproduced in the text. The court’s observations focus on the lack of hearing and the need to provide an opportunity of hearing before recovery.

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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 P.V.KUNHIKRISHNAN WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945** ## **WP(C) NO. 27505 OF 2015** ## **PETITIONERS:** 1 K.THANKAPPAN S/O.KOCHUBHAGAVATHY, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, AYODHYA, QAC ROAD, CONTONMENT, KOLLAM-691001. 2 N.G.MOORTHY S/O.NARASIMHAM, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, SASI NIVAS, T.D.NAGAR-44, CUTCHERY.P.O., KOLLAM-691013. 3 ULIYAKOVIL SASI S/O.R.SANKARA PILLAI, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, CHAITHRAM, JANANI NAGAR-63, KADAPPAKKADA.P.O., KOLLAM-691008. 4 S.SAJITH S/O.SURENDRAN, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, VAYALIL PUTHEN VEEDU, JANAYUGAM NAGAR 58, KADAPAKKADA.P.O., KOLLAM-691008. 5 L.M.AFTHAB S/O.K.M.LIRAR, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, THAIKAVU KIZHAKKATHIL, FFRA-115, KOLLAM-691001. 6 SREEJITH BABU S/O.LAMBODHARAN, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, SANDHYA NIVAS, MERA-177, KOLLAM-691001. 7 C.M.JAYA W/O.HARIKUMAR, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, PANCHAVADY, NETHAJI NAGAR-25, ASRAMAM P.O., KOLLAM-691002. 8 N.J.ANANDAVALLY AMMA W/O.DEVADAS, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, PRASANTHI, K.S.E.B. NAGAR, KAVANAD.P.O., KOLLAM-691003. 9 KAYIKKARA NAZEER WP(C) NO. 27505 OF 2015 2 S/O.K.M.AHAMMED HUSSAIN, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, KAITHAVARAM BUNGLOW, KAITHAVARAM NAGAR-53, KANKATH MUKKU, THIRUMULLAVARAM.P.O., KOLLAM-691012. 10 PONNAMMA SREEDHARAN W/O.SREEDHARAN, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, SREENILAYAM, T.N.R.A.-87, THIRUMULLAVARAM.P.O., KOLLAM-691012. 11 SOJA THULASEEDHARAN W/O.IRISHIKESAN, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, AZHAKATH HOUSE, T.R.A.-167, THEKKEVILA P.O., KOLLAM-691016. 12 PRASANNAKUMARI ANIRUDHAN W/O.ANIRUDHAN, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, KANNANGARA HOUSE, VADAKKUMBHYAGOM, KOLLAM-691001. 13 G.RAMESH BABU S/O.GOPALAN, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, KUNNATH VEEDU, LAKSHMANA NAGAR196A, ASRAMAM P.O., KOLLAM-691002. 14 ESTHER ANTONY W/O.ANTONY, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, V.R.COTTAGE, VAISYAZHIKOM SOUTH, CUTCHERY P.O., KOLLAM-691013. 15 MABLE CLEETUS W/O.CLEETUS, EX-COUNCILOR, KOLLAM MUNICIPAL CORPORATION, THUNDUPARAMBIL, LIGHT HOUSE ROAD, THANKASSERY P.O., KOLLAM-691007. BY ADV. SRI.B.MOHANLAL **RESPONDENTS:** WP(C) NO. 27505 OF 2015 3 - 1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (E.M) DEPARTMENT, SECRETARIAT (ANNEX), THIRUVANANTHAPURAM, PIN-695001. - 2 THE DIRECTOR OF MUNICIPALITIES GOVERNMENT OF KERALA, PUBLIC OFFICE BUILDING, MUSEUM, THIRUVANANTHAPURAM, PIN-695001. - 3 THE KOLLAM MUNICIPAL CORPORATION CORPORATION BUILDINGS, KOLLAM, REPRESENTED BY ITS SECRETARY, PIN-691001. - 4 THE LOCAL FUND ACCOUNTS COMMITTEE KERALA LEGISLATURE COMPLEX, VIKAS BHAVAN.P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN-695014. BY ADV. SRI. RIYAL DEVASSY, GP SRI.S.SREEKUMAR, KOLLAM, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 27505 OF 2015 4 **P.V.KUNHIKRISHNAN, J. -----------------------------W.P.(C)No. 27505 of 2015 ---------------------------------------------Dated this the 07[th] day of February, 2024** ## **JUDGMENT** The above writ petition is filed with the following prayers: “i. To call for the records relating to the Audit recommendations, Ext.P1 and P2 Orders from the 1[st] Respondent and issue a writ of certiorari or other appropriate writ, order or direction quashing the Audit recommendation and Ext.P1 and P2 Orders of the Respondents to the extent it orders in fixing the liability of 33,779/- each with Interest and penal₹ charges to the Petitioners/Councilors of the Kollam Corporation for the period 1997-1998 for allotting Cantonment Maidan of Kollam Corporation at reduced rent. ii. To issue a writ of mandamus or other appropriate writ, order or direction commanding the Respondents not to implement Audit Recommendation and Ext.P1 and P2 Orders in fixing WP(C) NO. 27505 OF 2015 5 the liability of `33,779/- each with Interest and penal charges to the Petitioners/Councilors of the Kollam Corporation for the period 1997- 1998 for allotting Cantonment Maidan of Kollam Corporation at reduced rent. iii. To declare that the Audit Recommendation and Ext.P1 and P2 Orders of the Respondents in fixing the liability of 33,779/- each₹ with Interest and penal charges to the Petitioners/Councilors of the Kollam Corporation for the period 1997-1998 for allotting Cantonment Maidan of Kollam Corporation at reduced rent is not in conformity with the Kerala Municipality Act and Rules and Local Fund Audit Rules, it is void in the eye of law. iv. To declare that the allocation of Cantonment Maidan of Kollam Corporation by the Corporation Council on Rent for the period 19971998 and the Decision of the Municipality is strictly in conformity with the statutory mandates, it is valid in all respects. v. To declare that the Petitioners are not liable to pay 33,779/- each with Interest and penal₹ charges to the Respondents for allotting Cantonment Maidan of Kollam Corporation for the period 1997-1998. vi. To issue such other reliefs as this WP(C) NO. 27505 OF 2015 6 Hon'ble Court may deem fit and proper in the circumstances of the case”[SIC] 2. Based on an audit objection, the 1[st] respondent issued Ext.P1 proceedings to the 2[nd] respondent to take appropriate action. As per the audit objection, there was a direction to recover the amount from the employees concerned. Based on the same, Ext.P2 order is issued by the Corporation apportioning the amount and issuing separate notices to the petitioners for recovering the amount. Aggrieved by the same, this Writ petition is filed. 3. Heard the learned counsel appearing for the petitioners, the learned Government Pleader and the learned Standing counsel appearing for the Kollam Municipality. 4. This Court perused Ext.P2 order. Ext.P2 is an order issued based on Ext.P1 proceedings. A WP(C) NO. 27505 OF 2015 7 perusal of Ext.P2 would not show that it is an order passed after giving an opportunity of hearing to the petitioners. It is a notice issued based on Ext.P1. There is no case to the Government also that, any opportunity of hearing was given to the petitioners before issuing Ext.P1. In such circumstances, I am of the considered opinion that, an opportunity of hearing is to be given to the petitioners before taking any steps to recover the alleged loss from the petitioners. The petitioners have got a case that the recovery is barred by limitation also. That question also has to be considered by the Government in accordance with the law. Hence, this Writ petition can be disposed of setting aside Ext.P2 and directing the 1[st] respondent to reconsider the matter ignoring the proceedings issued as evident by Ext.P1. Therefore, this Writ petition is disposed of in the WP(C) NO. 27505 OF 2015 8 following manner: 1. Ext.P2 is set aside. 2. The 1[st] respondent is directed to reconsider the matter after giving an opportunity of hearing to the petitioners and respondents 3 and 4, as expeditiously as possible. Sd/- DM **P.V.KUNHIKRISHNAN JUDGE** WP(C) NO. 27505 OF 2015 9 ## **APPENDIX OF WP(C) 27505/2015** PETITIONER EXHIBITS P1: COPY OF THE RECOMMENDATIONS OF THE LEGISLATIVE COMMITTEE AND THE AUDIT REPORT OF THE 4TH RESPONDENT AND THE COMMUNICATION NO.LSGDAB1/466/2015-LSGD ISSUED BY THE 1ST RESPONDEWNT TO THE RESPONDENTS 2 AND 4. P2: COPYH OF THE NOTICE NO.R9/8135/13 DATED 13/08/2015 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER. RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE