Deferral of enforcement of a surcharge certificate when a matter is pending before a district court under relevant acts.

JUDGMENT :

The petitioner, while working as Secretary of the Ranni Angadi Panchayat, a Local Fund Audit was conducted in the years 2007 and 2008. Ext.P1 Audit Report was submitted after the retirement of the petitioner, in the year 2007.

2. The petitioner states that based on Ext.P2 Local Fund Audit Report, a Surcharge Notice was issued to the petitioner on 17.05.2019 as per Ext.P4. A Surcharge Certificate was issued subsequently as per Ext.P7, by the Director of the Local Fund Audit Department, Kerala on 09.10.2020. Aggrieved by Ext.P7 decision, the petitioner has approached the District Court, Pathanamthitta filing OP(LFA) No.26/2021.

3. The petitioner states that OP(LFA) is pending and the matter stands posted to 27.06.2023. The petitioner would submit that he has a fair chance to get the impugned orders set aside in appeal by the District Court, Pathanamthitta. In the meanwhile, if Ext.P7 Surcharge Certificate is enforced, the petitioner, who is 71 years of age, will be put to irreparable loss and injury.

4. Government Pleader entered appearance and resisted the writ petition. On behalf of the respondents, it is submitted that a Surcharge Notice was issued on the basis of report on audit of accounts of Ranny-Angadi Grama Panchayat for the year 2007-2008. Ext.P4 Surcharge Notice was issued by the 2nd respondent to the petitioner and the petitioner submitted Ext.P5 reply. After considering the reply submitted by the petitioner and adhering to the principles of natural justice, the 2nd respondent passed Ext.P7 Surcharge Certificate. More than Rs.13,00,000/- is due to the Government from the petitioner. Therefore, the petitioner cannot be shown any leniency. The writ petition is liable to be dismissed, relegating the petitioner to prosecute his claim in the District Court, Pathanamthitta.

5. I have heard the learned Counsel for the petitioner and the learned Government Pleader representing the respondents.

6. The fact that the liability was for the year 2007-2008, is not denied. The petitioner retired from service in the year 2007. After 12 years of his retirement, Ext.P4 Surcharge Notice was served on the petitioner. The petitioner has submitted his reply. Thereafter, Ext.P7 Surcharge Certificate was issued.

7. I find that against Ext.P7 Surcharge Certificate, the petitioner has invoked Section 16(3) of the Kerala Local Fund Audit Act, 1994, read with Section 215(11) of the Kerala Panchayat Raj Act, 1994. The original petition filed by the petitioner is pending before the District Court, Pathanamthitta.

8. Section 16(4) of the Kerala Local Fund Audit Act reads as follows:

“Every sum certified to be due from any person by the auditor under this Act shall be paid by such person to the Executive authority within one month after the intimation to him of the decision of the Director unless, within that time, such person has filed an application before the District Court against the decision under sub-section (3) and such amount, if not so paid, or such amount as the District Court shall declare to be due, shall be recoverable under the provisions of the Kerala Revenue Recovery Act, 1968 (15 of 1968) for the time being in force, as if it were an arrear of public revenue due on land.”

The petitioner has invoked jurisdiction of the District Court, Pathanamthitta and OP(LFA) No.26/2021 is pending.

9. In the facts of the case, I am of the view that if Ext.P7 Surcharge Certificate is enforced when the matter is under consideration of the District Court, Pathanamthitta under Section 16(3) of the Kerala Local Fund Audit Act, 1994, the petitioner will be put to difficulties.

In the circumstances, the writ petition is disposed of directing the respondents to defer any proceedings pursuant to Ext.P7 till the District Court, Pathanamthitta passes final orders on Ext.P8.