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2024 Supreme(Online)(KER) 8395
HIGH COURT OF KERALA
Easwaran S., J
G. MANOJ – Appellant
Versus
STATE OF KERALA – Respondent
WP(C) 20017/2018
The failure to pursue available alternative remedies precludes judicial review in writ petitions.
Headnote:
Surcharge - Panchayat - Kerala Local Fund Audit Act - Sections 16(3) - The court ruled that petitioners did not exhaust the available alternative remedy under Section 16(3) of the Kerala Local Fund Audit Act, which influenced the decision to decline interference with the surcharge certificate.
Fact of the Case:
Petitioners, as former Panchayat members, challenged a surcharge certificate issued against them related to purchases made during their tenure. The authority rejected their replies and upheld the surcharge based on alleged procedural violations regarding machinery transfers.
Finding of the Court:
The court found that the petitioners had been given an opportunity to contest the surcharge and that they failed to pursue the alternative remedy available under Section 16(3) of the Kerala Local Fund Audit Act, which led to the dismissal of the writ petition.
Issues: Whether the petitioners had adequate opportunity to challenge the surcharge certificate and whether the court should intervene despite the existence of an alternative remedy.
Ratio Decidendi: The court established that when an alternative remedy is available, the High Court should refrain from entertaining writ petitions on factual issues. The petitioners were bound to pursue the remedy under Section 16(3) of the Kerala Local Fund Audit Act.
Final Decision: The writ petition is dismissed, and the petitioners are ordered to pay the amounts in installments as specified.
The present writ petition impugns the surcharge certificate issued against the petitioners who were the erstwhile members of the respondent Panchayat during 2000-2005. During the tenure as members of the Panchayat as a part of implementing the project of ‘Agricultural Mechanization’ an amount of Rs.1,26,717/- was spend to purchase tiller and trailer and its accessories. Thereafter proceedings were initiated against the petitioners for imposition of surcharge. Being aggrieved by that, the petitioners approached this Court by filing W.P.(C ) No.29547 of 2014 which was disposed of by judgment dated 15.1.2014 directing the petitioners to file a detailed reply within a period of two weeks. There was also a direction to the competent authority to consider the same and pass orders thereon after hearing the parties. Thereafter, the petitioners filed Ext.P5 reply which was rejected by the 3rd respondent by Ext.P6 order. Thereafter, the 1st petitioner was issued with Ext.P7 under the provisions of the Kerala Local Fund Audit Act , 1994
2. A counter affidavit has been filed on behalf of the 3rd respondent in which it is contended that the transfer of machinery purchased by the Agricultural Officer to the Panchayat Secretary is against the Circular dated 11.9.1998. Moreover urgent decision taken by the Panchayat Committee on 21.1.2003 in connection with the transfer of machineries purchased on 3.1.2003 to the Panchayat Secretary cannot be ratified. As far as opportunity is concerned, it is submitted that the petitioners were afforded reasonable opportunity of hearing. It is also submitted that, as per Section 16 (3) of the Kerala Local Fund Audit Act , the petitioners can apply to the State Government to set aside the surcharge certificate within a period of thirty days of the receipt of the same.
The said remedy has not been availed by the petitioners so far and therefore, it is prayed that the writ petition be dismissed.
3. I have heard Sri. Thomas John Ambookan the learned counsel for the petitioners and Sri. Bimal K. Nath the learned Senior Government Pleader.
4. No doubt the petitioners were given an opportunity to show cause before issuance of surcharge certificate against them.
Therefore violation of principles of natural justice cannot be urged before this court. Moreover, an alternate remedy before the district court in terms of section 16(3) of the Kerala Local Fund Audit Act was available to the petitioners. It is now settled law that when an alternate remedy is available, the High Court should not entertain the writ petition and dwell upon the factual aspects.
If this Court is required to entertain the challenge against Ext.P7, necessarily certain factual aspects will have to be looked into which is impermissible under law. This is precisely the reason why an alternate remedy is provided for challenging the proceedings for issuance of surcharge certificate in terms of Section 16 (3) of the Kerala Local Fund Audit Act . Having not availed the remedy, this Court is not inclined to entertain the writ petition impugning Ext.P7 order. Therefore interference with Ext.P7 order is declined.
5. At this point of time the learned counsel appearing for the petitioners submits that reasonable installment facility would be granted to the petitioners to remit the amount as ordered under Ext.P7.
6. In view of the above submission, this Court is of the view that a reasonable opportunity can be afforded to the petitioners for payment of the amount covered under the surcharge certificate.
7. In view of the above this writ petition is disposed of as follows:
- Challenge to Ext.P7 is declined. The petitioner have to necessarily pay the amounts covered under Ext.P7 in the absence of any challenge to the same before the jurisdictional civil court under Section 16(3) of the Kerala Local Fund Audit Act. The petitioners are however granted liberty to remit the amount covered under Ext.P7 and similar surcharge certificates in four equal monthly instal
