The Kerala State Co-operative Housing Federation Ltd. v. Geetha Kumari Pillai and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **TUESDAY, THE 18TH DAY OF MARCH 2014/27TH PHALGUNA, 1935** **WA.No. 1887 of 2012 () IN WP(C).15103/2007 --------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 15103/2007 of HIGH COURT OF KERALA DATED 20-06-2012** **APPELLANT(S)/PETITIONER:** **------------------------------------------** **THE KERALA STATE CO-OPERATIVE HOUSING FEDERATION LTD. NO.4330, P.B.NO.1896, KALOOR, ERNAKULAM, KOCHI 682017, REPRESENTED BY ITS MANAGING DIRECTOR.** ## **BY ADV. SRI.GEORGE POONTHOTTAM** **RESPONDENT(S)/RESPONDENTS:** **-----------------------------------------------** **1. GEETHA KUMARI PILLAI, W/O LAGE RADHAKRISHNA PILLAI, KRISHNA NILAYAM, PUTHUCAUD, CHAVARA PO, KARUNAGAPPALLY, KOLLAM DT 691583.** **2. CHAVARA BLOCK RURAL HOUSING CO-OPERATIVE SOCIETY LTD. NO. Q 812, CHAVARA PO, KOLLAM DT, REPRESENTED BY ITS SECRETARY 691583.** **3. THE LOK AYUKTA, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY.** **R1 BY ADV. SRI.C.RAJENDRAN R1 BY ADV. SRI.R.PARAMESWARAN NAIR R2 BY SRI. P.N.MOHANAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. ============================== Writ Appeal No.1887 of 2012 ====================** ## **Dated this the 18[th] day of March, 2014** ## **J U D G M E N T** ## Antony Dominic, J. This appeal is filed by the petitioner in WP(C) No.15103/07 aggrieved by the judgment of the learned single Judge dismissing the writ petition filed by them. 2. We heard the learned counsel appearing for the appellant and also the learned counsel appearing for respondents 1 and 2. 3. The short facts of the case are that the appellant is an apex society and the 2[nd] respondent is a primary society. The 1[st] respondent made an application to the 2[nd] respondent for a housing loan mortgaging her property. According to the appellant, in terms of the bye-laws of the 2[nd] respondent, the application was forwarded to the appellant, who processed the application and sanctioned the loan and made available the funds to the 2[nd] respondent. The 2[nd] respondent, on completing necessary documentation with the 1[st] respondent, disbursed the loan amount. The 1[st] respondent states that she has discharged the **W.A.1887/12** ## **: 2 :** entire liability due to the 2[nd] respondent and despite that the documents of title deposited by her were not returned. Thereupon she came to know that the documents were mortgaged by the 2[nd] respondent with the appellant. Alleging that the refusal by the 1[st] respondent to return the documents amount to a case of maladministration as defined under the Kerala Lok Ayukta Act, 1999, 1[st] respondent made a complaint before the Lok Ayukta, a copy of which is Ext.P3. The appellant entered appearance and filed its objections evidenced by Ext.P4. The Lok Ayukta after considering the issue passed Ext.P5 order holding that since the 1[st] respondent has discharged the entire liability, the refusal of the appellant to release the documents deposited is unreasonable, unjust and oppressive ignoring its contention of the appellant that it was because of the default committed by the 2[nd] respondent that the documents were not released. On that basis, the Lok Ayukta directed that within two weeks of receipt of a copy of the order, the appellant shall return the title deeds to the 1[st] respondent and file an action taken report. 4. Ext.P5, which is styled as an “order” was challenged by the appellant by filing the writ petition. The learned single Judge **W.A.1887/12** ## **: 3 :** upheld the competence of the Lok Ayukta to entertain the complaint and held the Full Bench judgment in _**John v. Liquidator**_ (2006(1) KLT 11) to be inapplicable to the facts of the case and also held that the refusal to release the document to the 1[st] respondent has no justification. It is in these circumstances, the appeal is filed. 5. The first contention raised before us by the learned counsel for the appellant was that the Kerala Lok Ayukta Act, 1999 did not invest the Lok Ayukta with any power to issue any positive direction as ordered by it in Ext.P5. He referred us to the provisions of Section 14 and Section 2(k) to substantiate the said contention. However, on behalf of the learned counsel for the 1[st] respondent, reliance was placed on Section 19 of the Act which invested the Lok Ayukta with power to punish for contempt. 6. Having considered the rival submissions made at the Bar, according to us, Section 12 of the Lok Ayukta Act, 1999 itself evidences that power of Lok Ayukta is only to make a report and recommend to the competent authority concerned that such injustice or hardship shall be remedied or redressed in such manner and within such time, as may be specified in the report **W.A.1887/12** **: 4 :** and also intimate the complainant about its having made the report. The scope of the provisions of the Act were examined in various judgments of this Court. In _**State of Kerala v. Bernard**_ (2002(3) KLT 254), after surviving the entire provisions of the Act, a Division Bench of this Court held thus in para 8; _“8. A survey of the relevant provisions leads us to the conclusion that, barring the area of investigation of a complaint involving "allegation", which in other words means, a complaint made with regard to corruption, improper motives, nepotism, favouritism etc., as defined in the expression 'allegation' in S. 2(b) and covered by S. 14 of the Act, the Lok Ayukta has neither any adjudicatory power nor the power to enforce his recommendation or finding. In fact, his role is confined to making a report or recommendation. He has no power of execution of his orders. In fact, it would be inappropriate to call the report/recommendation made by the Lok Ayukta as an "Order". Though the Lok Ayukta has been invested with certain powers of the Civil Court for the purpose of enabling him to conduct the investigation with greater efficacy, we do not think that thereby the Lok Ayukta can be equated to a court. Nor do we think that investing of the power to punish for contempt under S. 19 of the Act, makes any difference to the situation. S. 19_ **W.A.1887/12** **: 5 :** _of the Act empowers initiation of contempt proceedings under the Contempt of Courts Act, 1971. It is trite law that, there cannot be a contempt of court if the court does not make an enforceable order. It is only when a binding order, which is executable, is made and the party who is required to implement it either fails or refuses to do so, that contempt can be said to have arisen. Unless there is a provision to make such an order, the power under the Contempt of Courts Act as invested in the Lok Ayukta by S. 19 of the Act would make no difference.”_ 7. Recently dealing with a case where Lok Ayukta has ordered the issuance of community certificate, the Division Bench held thus in _**Sunayana v. Tahsildar, Tvm. and others**_ (2013(1) KHC 836). _“The jurisdiction of the Lok Ayukta as indicated in the Act, no doubt, authorises the Lok Ayukta to enquire into the maladministration etc. But, if the Lok Ayukta is of the opinion, there was some maladministration, it can definitely inform the competent authority concerned about the injustice or hardship caused to the complainant and then only after action taken report to be submitted by the competent authority the Lok Ayukta can close the case or if not satisfied, forward a special report to the Governor. When_ **W.A.1887/12** **: 6 :** _a proper regulated procedure is contemplated under the special enactment how a community certificate has to be issued, it was not open to the Lok Ayukta to give direction to issue such community certificate.”_ 8. In the light of these judgments, we have absolutely no doubt in our mind that the Lok Ayukta which was exercising its powers under the Act could not have issued any direction as it has ordered in Ext.P5. 9. Yet another contention raised by the learned counsel for the appellant is that a member of a primary society could not have sought release of the documents from the apex society. This contention is sought to be substantiated by placing reliance on the judgment of this Court in _**John's case** (supra)_ , where in the case of the appellant itself, a Full Bench of this Court has held thus; _“14. The petitioners have not been able to point out to us any bye-law, regulation, rule or any provision in the Act by which a duty is cast on the third respondent to return the title deeds deposited with it by the primary co-operative society on demand by a member of the primary co-operative society who had availed of a housing loan from the primary society which had_ **W.A.1887/12** **: 7 :** _been ultimately sanctioned by the Apex Society, on his mere showing that he had remitted the entire loan amount to the primary society. The petitioners also do not dispute the declaration that they had made in the application for loan -- Ext.R2(a), wherein it had been undertaken to permit all the officials of the third respondent to inspect the property at any point of time. Thus a relation with the third respondent is created by this conduct. Added to this, is the provisions in the Regulations mentioned supra, governing the grant of loan as availed of by the petitioners, which mandated the documents being deposited with the third respondent. The petitioners cannot, therefore, plead ignorance of an eventuality of a sub-mortgage of the properties, which they had mortgaged to the second respondent, in favour of the third respondent. Thus, when there is such a knowledge about the sub-mortgage, they cannot contend that the third respondent is a party unconnected with the transaction and the retention of the title deeds by the third respondent is unauthorised. In such circumstances, the remedy is not by way of Writ Petition, but lies elsewhere, where the rights and liabilities of the parties are to be examined closely on evidence. So this Writ Petition cannot be entertained, as the reliefs sought for fall outside the scope of writ proceedings.”_ **W.A.1887/12** **: 8 :** 10. However, the question whether the facts noticed by the Full Bench of this Court in _**John's case**_ ( _supra_ ) are available in the facts of this case is a matter which has not been examined by the Lok Ayukta in the light of the bye-laws of the apex society as also the primary society apart from the documentation that has been executed by the parties to this transaction. In such circumstances, we feel that the matter requires to be re-considered by the Lok Ayukta and therefore, setting aside Ext.P5, we remit the matter to the Lok Ayukta for fresh consideration of Ext.P3 complaint in the light of what is stated above. This shall be done, as expeditiously as possible. The judgment of the learned single Judge will stand set aside and the appeal will stand disposed of as above. ## Sd/- **ANTONY DOMINIC JUDGE** Sd/- **JUDGE** ## **ANIL K. NARENDRAN** Rp **//True Copy//** **PA TO JUDGE**