The Tahsildar, Nedumangad v. Janaki Amma, Omana Amma & Lok Ayukta, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** ## **THURSDAY, THE 26TH DAY OF JULY 2012/4TH SRAVANA 1934** ## **WP(C).No. 7350 of 2008 (Y)** **-------------------------------------[AGAINST THE COMPLAINT NO.552/2007 OF THE LOK AYUKTHA, THIRUVANANTHAPURAM]** **...............** ## **PETITIONERS/RESPONDENTS:** **--------------------------------------------** **THE TAHSILDAR, NEDUMANGAD.** **BY GOVERNMENT PLEADER SRI. T.R. RAJESH.** ## **RESPONDENTS/COMPLAINANTS:** **------------------------------------------------** **1. JANAKI AMMA, VILAYIL VEEDU, PUTHUKULANGARA.P.O., NEDUMANGADU, THIRUVANANTHAPURAM.** **2. OMANA AMMA, VILAYIL VEEDU, PUTHUKULANGARA.P.O., NEDUMANGADU, THIRUVANANTHAPURAM.** **3. THE LOK AYUKTA, THIRUVANANTHAPURAM.** **R1 & R2 BY ADV. SRI.SREEKANTH S.NAIR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.7350/2008-Y:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P.1: COPY OF THE COMPLAINT NO.552/07 OF THE LOK AYUKTA, THIRUVANANTHAPURAM.** **EXT.P.2: COPY OF THE ORDER NO. A16.7189/06 DT. 03/02/06 OF THE DISTRICT COLLECTOR.** **EXT.P.3: COPY OF THE ORDER DT. 05/11/07 IN COMPLAINT NO. 552/07 OF KERALA LOK AYUKTA.** ## **RESPONDENTS' EXHIBITS:** **EXT.R2.A: COPY OF THE F.I.R. IN CRIME NO.152/2007 OF THE NEDUMANGAD POLICE STATION.** **EXT.R2.B: COPY OF THE RECEIPT DTD. 19/04/2007 ISSUED TO THE PETITIONER BY THE WOMEN'S COMMISSION.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** S.SIRI JAGAN, J. ================== ## W.P.(C).No. 7350 of 2008 ================== Dated this the 26[th] day of July, 2012 J U D G M E N T The Tahsildar of the Nedumangad Taluk is the petitioner herein. He is challenging Ext.P3 order of the Kerala Lok Ayukta in complaint No.552/2007 filed by respondents 1 and 2. The complaint arose in the following circumstances:- The 1[st] respondent had some ailment in the eye. She wanted financial assistance from the Chief Minister's Distress Relief Fund for an operation. On the recommendation from the petitioner, the District Collector sanctioned the same. A cheque was drawn up for that amount to be given to the 1[st] respondent. But that cheque was cancelled by the petitioner on the ground that the 1[st] respondent had earlier availed of financial assistance from the Chief Minister's Debt Relief Fund. The 1[st] respondent and her daughter, who is the 2[nd] respondent herein, approached the Lok Ayukta with a complaint that the non-disbursal of the amount to the 1[st] respondent amounts to mal-administration. The Lok Ayukta passed Ext.P3 order in that complaint holding that the 1[st] respondent is entitled to the said amount of ` 5000/-. Therefore, the petitioner was directed to disburse the amount to the 1[st] respondent and to file an action taken report. That is under w.p.c.7350/08 - : 2 :- challenge in this writ petition . 2. The main contention of the petitioner is regarding want of jurisdiction on the Lok Ayukta to pass such an order. According to the petitioner, the Lok Ayukta does not have power to issue any direction under the Kerala Lok Ayukta Act. He submits that what is contemplated under Section 12 of the Act is only to submit a report by way of recommendation to the competent authority and the duty cast upon the competent authority is to send action taken report as provided under sub section 2 of Section 12 of the Act. The petitioner would contend that insofar as Ext.P3 order is a positive direction to disburse the amount to the 1[st] respondent, the same is not in accordance with the Kerala Lok Ayukta Act. 3. I have considered the rival contentions in detail. 4. The 2[nd] respondent has filed a counter affidavit on behalf of respondents 1 and 2 opposing the writ petition. Respondents 1 and 2 support the impugned order. 5. For appreciating the contentions of the parties in the proper perspective, I deem it appropriate to extract Ext.P3 order of the Kerala Lok Ayukta, in its entirety, which reads thus: 'The substance of the allegations in the complaint is as follows:- w.p.c.7350/08 - : 3 :- A sum of Rs.5,000/- was sanctioned to the 1[st] Complainant Smt.Janaki Amma from the Chief Minister's Distress Relief Fund for medical treatment. The complainants went to the Taluk Ofice, Nedumangadu on 14.12.2007 to receive the cheque for the said amount. But the respondents were reluctant to issue the cheque. The complainants were directed to come over to the office on 20.02.07. Accordingly, on 20.02.2007 at about 11 am the 2[nd] complainant went to the Taluk Office to receive the cheque. But the respondents were not prepared to issue the cheque. The 2[nd] & 3[rd] respondents assaulted her felling her to the ground. The 3[rd] respondent caught hold of her saree and outraged her modesty. The Nedumangadu Police had registered a crime against the 2[nd] and 3[rd] respondents as Crime No.152/07 under Sections 323, 354 and 34 of I.P.C. The respondents refused to deliver the cheque to the complainants only because they could not comply with the demand to give Rs.1000/- as bribe. Under these circumstances it is prayed that necessary action may be taken against the respondents and they may also be directed to pay a compensation of Rs.50,000/- to the complainants. On receipt of the notice the Tahasildar, Nedumangadu filed a statement raising the following contentions:- As per the Government Order dated GO(RT) No.5906/05 Revenue dated 08/11/05 an amount of Rs.5,000/- was sanctioned to Smt.Janaki Amma from the Chief Ministers Distress Relief Fund. It is specifically stated in the order that beneficiaries who have availed financial assistance for the very same purpose on prior occasions are not entitled to get financial assistance on the basis of the Government Order. District Collector, Thiruvananthapuram forwarded cheque No.085016 for Rs.22,000/- to disburse the amount among 9 beneficiaries. The District Collector has also directed that the Tahsildar should ensure whether the beneficiary has already availed financial assistance for the same purpose. On enquiry it was revealed that the complainants have received the financial assistance from the Chief Ministers Distress Relief Fund on prior occasions for the very same purpose. When the matter was reported to the District Collector, the Tahsildar was directed not to issue the cheque. The Government have also issued the circular No.59906/J3/06 RD dated 05/08/06 to stop the release of fund as per the orders issued prior to the General Election to Kerala Legislative Assembly held in April, May 2006. Under these circumstances the 1[st] respondent was not in a position to issue the cheque to the complainants. When the complainants approached the 1[st] respondent on 14/02/07 they were told that the amount cannot be disbursed in view of the - : 4 :- w.p.c.7350/08 Government Order. On 20/02/07, the complainants again approached the 1[st] respondent and demanded the cheque and created a scene in the office. On hearing and demanded the cheque and created a scene in the office. On hearing the commotion the public interfered and took her to the Nedumangadu police station. In retaliation she lodged a complaint before the police against the respondents. All the allegations levelled against the respondents in the complaint are false. On these contentions the respondents wanted the complaint to be dismissed. Heard the complainants and also the Government Pleader for the respondents. Admittedly a sum of Rs.5,000/- was sanctioned to the 1[st] respondent from the Chief Minister's Distress Relief Fund to meet her medical expenses. The District Collector, Thiruvananthapuram forwarded a cheque for Rs.22,000/- to disburse the amount among 9 beneficiaries including the 1[st] complainant. The District Collector has also directed the Tahsildar to see whether the beneficiary has already availed financial assistance for the very same purpose. According to the respondents the complainants have received financial assistance from the Chief Minister's Distress Relief Fund on three prior occasions to meet their medical expenses. The respondents have also a case that in view of Circular No.59906/J3/06/RD dated 05/08/06 they are not bound to disburse the amounts to the complainants. No doubt the Government have issued a circular directing all the District Collectors not to disburse the amounts to the beneficiaries as per the orders issued prior to the conduct of the General Election to Kerala Legislative Assembly held in April, May 2006. Since the complainants asserted that the cheque was prepared and a receipt was obtained, I directed the Tahsildar to produce the concerned file to ascertain the truth. Accordingly the Tahsildar produced File No.B6 32/62/06. On a perusal of the file I find that a cheque was prepared in favour of the 1[st] complainant on 14/02/07 and a receipt was also obtained from the 1[st] complainant. It is gatherable from the file that it was brought to the notice of the Tahsildar that the complainants have received financial assistance from Chief Minister's Distress Relief Fund on three prior occasions. But on 14/02/07 the Tahsildar ordered to disuburse Rs.5,000/- to the 1[st] complainant on the strength of an order of the Collector. It is also seen from page 5 of the file that in obedience to the order of the Tahsildar the cheque was put up for his signature. But on that day itself the Tahsildar has issued an order to cancel w.p.c.7350/08 - : 5 :- the cheque. According to the Tahsildar he met the Collector in person on that day and the Collector directed him not to disburse the amount to the complainant. The question for consideration is whether the Tahsildar is justified in refusing to issue the cheque to the complainants. On going through the file I find that on 8/2/07 the 1[st] complainant Smt.Janakiamma submitted a petition before the District Collector, Thiruvananthapuram complaining that the Tahsildar, Nedumangadu has not disbursed the amount since she has already received financial assistance from the Chief Minister's Distress Relief Fund for medical treatment. It is also seen that on the basis of the petition submitted by the 1[st] complainant the Collector directed the Tahsildar to disburse the amount. The Collector passed the order on 12/02/07 and the Tahsildar received the same on 13/02/07. In obedience to the order of the Collector the Tahsildar ordered to disburse the amount to the complainant. Now the case set up by the Tahsildar is that on 14/02/07 itself he met the Collector in person and then the Collector directed him not to disburse the amount. According to him the order dated 12/2/07 was passed by the Collector as he was not aware of the fact that the complainants have received financial assistance on prior occasions. According to me the version of the Tahsildar in this regard could be accepted only with a pinch of salt. In the petition submitted by the complainant before the Collector on 08/02/07 it is admitted that the complainant has received financial assistance on medical treatment on prior occasions. In spite of this admission the Collector directed the Tahsildar to disburse the amount to the complainant. The Tahsildar cannot be heard to say that he issued an order to cancel the cheque since the Collector issued order dated 12/02/07 without knowing that the complainant has already availed financial assistance for the same purpose. As stated earlier the Tahsildar received the order of the Collector dated 12/02/07 on 13/02/07. The Tahsildar ordered to disburse the amount to the complainant on 14/02/07. The order reads as follows:- “ÎáOí ÇÈØÙÞÏ¢ ÕÞBߺîßGáIí ®Kí ÕcµñÎÞAßÏ ØÞÙºøcJßÜᢠ¼ßÜïÞ µ{µí¿VAí Äáµ ÈWµáKÄßÈí ©KÄøÞÏ - ØÞÙºøcJßW ¥ÈáÕÆߺîåRs.5,000/ (¥ÏîÞÏßø¢ øâÉ) ÈWµÞÕáKÄÞÃí.“ The order of the Tahsildar dated 14/2/07 to cancel the cheque reads as follows:- “¼ßÜïÞ µ{µí¿æù ¾ÞX çÈøßGí µIá.å¥çÉf µfß §ÄßÈá ÎáOí §çÄ ¦ÕÖcJßÈÞÏß 6 dÉÞÕÖc¢ Äáµ - : 6 :- w.p.c.7350/08 èµMxßÏßGáIí.å§Äí ¯ÝÞÎæJ ÄÕÃÏÞÃí ¼ßÜïÞ µ{µ¿V µfß ÈWµßÏ ¥çÉfÏßW æÈ¿áÎBÞ¿í ÄÙØßWÆÞV µfßAí Äáµ ÈWµÞX ©JøÕßGÄí, µ{µí¿V ¨ µÞøc¢ ¥ùßÏÞæÄÏÞÃí.å¦ÏÄßÈÞW ®ÝáÄßÏ æºAí µfßAí ÈWçµIÄßÜï ®Kí µ{µí¿V ÉùEÄßÈÞW æºAí µcÞXØW “ æºÏîÞ¢. The conduct of the Tahsildar in denying financial assistance to the complainant on the premise that the collector orally directed him not to disburse the amount, smells a rat. Since the Tahsildar received the order of the Collector to disburse the amount on 13/02/07, he could have informed the collector that the complainant is not entitled to get the amount. There is also no force in the contention of the Tahsildar that the complainant is not entitled to get financial assistance as per the Government Order dated 08/11/05 since she has already availed financial assistance for the same purpose. It is true that there is evidence in the case to show that the complainants have availed financial assistance from the Chief Minister's Distress Relief Fund for medical treatment on prior occasions. In this case the 1[st] complainant sought financial assistance to meet the expenses in connection with the operation on her eyes. The respondents have no case that she availed financial assistance earlier for this purpose. A person who availed financial assistance for an ailment at a particular time is not disentitled to receive assistance in future for some other ailment. That is to say if a person receives financial assistance for meeting expenses for a surgery in his throat it cannot (sic) said that he is not entitled to get financial assistance for surgery on his eyes subsequently. Another contention raised by the Tahsildar is that he is not to bound to disburse the amount in view of the Government Circular No. 59906/J3/2006 RD dated 05/08/2006. No doubt as per this circular all the District Collectors were directed to stop release of funds from the Chief Minister's Distress Relief Fund as per the Government Orders issued prior to the conduct of Genera Election to Kerala Legislative Assembly held in April, May 2006. The order of the Collector directing the Tahsildar to disburse the amount to the complainant is dated 12/2/07. It cannot be said that the Collector was not aware of the Circular dated 05/08/06. When he passed the order on 12/02/07. On a consideration of the entire materials on record I find that the 1[st] respondent is not justified in cancelling the cheque. I refuse to believe the version of the 1[st] respondent that he cancelled the cheque as per the direction of the District Collector. It is also relevant to note that no written order is w.p.c.7350/08 - : 7 :- seen to have been issued by the Collector directing the 1[st] respondent not to disburse the amount to the 1[st] complainant. The 1[st] complainant has sustained injustice and undue hardship in consequence of mal administration. Therefore, I direct the 1[st] respondent to disburse the amount to the 1[st] complainant within two weeks from the date of receipt of this order. After disbursing the amount the 1[st] respondent shall file an action taken report. The complainants seek a direction to the respondents to pay a compensation of Rs.50,000/- to them. I see no sufficient reason to award compensation to the complainants as claimed by them. The complaint is disposed of as stated above.” The same makes very interesting reading. I do not have to think twice to conclude that the facts revealed in that order conclusively show that the action of the petitioner in this writ petition constitutes mal-administration. The petitioner himself appears to have had other intentions while recommending the case of the 1[st] respondent for sanction of financial assistance to the 1[st] respondent knowing well that she had earlier availed of similar financial assistance. It proves beyond doubt that the Collector passed the order directing payment of the amount to the 1[st] respondent fully knowing that the 1[st] respondent had earlier availed of similar financial benefit. The very same Tahsildar had later on, after drawing up the cheque, claims to have reported to the District Collector that the amount cannot be disbursed to the 1[st] respondent, since she had earlier availed of w.p.c.7350/08 - : 8 :- similar benefit. The improper motive of the Tahsildar is very evident on the face of the records. As such, maladministration is writ large over the entire action of the petitioner in this writ petition, which was the subject matter of the complaint before the Kerala Lok Ayukta. In fact, even in this writ petition there is averment to the effect that after the original sanction for payment of the amount to the 1[st] respondent, the District Collector had later cancelled that order. The contention of the petitioner is that the petitioner had orally informed the District Collector about the ineligibility of the 1[st] respondent for financial assistance. Even assuming that he had done so, then it should have been followed up with a written order of the District Collector at least for the sake of records. Such a written order is conspicuously absent in the records. There is also no material to support the contention that it is pursuant to the direction of the Collector that the cheque was cancelled. That being so, the petitioner cannot be believed for a moment. From the same it is clear that, the petitioner, who had earlier recommended for payment of the amount fully knowing about the previous financial assistance availed of by the 1[st] respondent, has after drawing up the cheque, turned round and w.p.c.7350/08 - : 9 :- claimed to have got oral orders from the District Collector cancelling the cheque on the ground that the 1[st] respondent had earlier availed of similar benefit. Even if what the petitioner states is correct, his action of having recommended the financial assistance knowing that the 1[st] respondent had earlier availed of similar benefit itself amounts to mal-administration. In the above circumstances, I am not inclined to interfere with the findings of facts entered into in Ext.P3 order. But still I find that there is merit in the contention that the Lok Ayukta could not have validly issued a positive direction to disburse the amount to the 1[st] respondent under the provisions of the Act. This Court has in more than one decision, latest of which is **State of Kerala and others v. Leela and others** , 2009 (2) KHC 625, has held that the scope of jurisdiction of the Lok Ayukta as contemplated under Section 12 is only to submit a report by way of recommendation to the competent authority and it is the duty cast upon the competent authority is to send action taken report as provided in sub section 2 of Section 12. But, even assuming that it be so, I am of opinion that nothing prevents this Court from directing the competent authority from treating Ext.P3 as a recommendation as contemplated under Section 12 w.p.c.7350/08 - : 10 :- of the Act and to take appropriate action against the petitioner himself, since he is evidently guilty of mal administration beyond any reasonable doubt. As such, I am of opinion that the competent authority shall take further action in the matter treating Ext.P3 as a recommendation of the Lok Ayukta as contemplated under Section 12 of the Kerala Lok Ayukta Act. In view of my above findings, naturally action has to be taken against the Tahsildar, who was in office at the relevant time. The Government shall take such action if the Government has any sincerity in their commitment to eradicate corruption in this State. Appropriate action shall be taken by the competent authority treating Ext.P3 as a recommendation under Section 12 of the Act, as expeditiously as possible, at any rate, within three months from the date of receipt of a certified copy of this judgment. The Registry shall forward a copy of this judgment to the Secretary of the Revenue Department along with a copy of the writ petition for appropriate action as directed above. The writ petition is disposed of as above. Sd/- sdk+ ///True copy/// S.SIRI JAGAN, JUDGE P.A. to Judge w.p.c.7350/08 - : 11 :-