(2012) 240 KLR 738 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE V.CHITAMBARESH TUESDAY, THE 21ST DAY OF FEBRUARY 2012/2ND PHALGUNA 1933 WP(C).No. 28730 of 2011 (M) --------------------------- PETITIONER(S): ------------- 1. THE TAHSILDAR, TALUK OFFICE, FORT, THIRUVANANTHAPURAM 2. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, SCHEDULED CASTE/SCHEDULED TRIBE DEVELOPMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER SMT. P.K. SANTHAMMA RESPONDENT(S): -------------- 1 SUNAYANA, SAYONARA, RAMAPURAM LANE, NCC ROAD, PEROORKKADA THIRUVANANTHAPURAM 695 005 2 KERALA LOK AYUKTA, THIRUVANANTHAPURAM REPRESENTED BY ITS REGISTRAR. 695 033. R,R1 BY SRI.P.RAVINDRAN (SR.) R,R1 BY SRI.T.G.SUNIL (PRANAVAM) R,R1 BY SRI.K.R.GANESH R,R1 BY SRI.ELVIN PETER P.J. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER(S) EXHIBITS
RESPONDENT(S) EXHIBITS
"C.R." V. CHITAMBARESH, J -------------------------------- WP(C) NO. 28730 OF 2011 ------------------------------------ Dated this the 21st day of February, 2012 Head Note:- Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 - The Lok Ayukta has no jurisdiction to determine the caste status of any person and direct the competent authority to file an action taken report. The action taken report in this case is nothing but issue of Community Certificate which is regulated by the procedure laid down in the Act. Kerala Lok Ayukta Act, 1999 - Lok Ayukta or an Upa-Lok Ayukta has a very limited role under the scheme of the Act. The jurisdiction is clearly circumscribed since it can at best recommend to the competent authority concerned about the injustice or hardship of any person to be remedied. The Lok Ayukta after perusing the action taken report intimated by the competent authority shall either close the case or if not satisfied, forward a special report to the Governor. Kerala Lok Ayukta Act, 1999 - The Lok Ayukta cannot by itself undertake the exercise of completing the act to be done by the competent authority. The recommendation in terms of Section 12 (1) or the special report in terms of Section 12 (5) of the Act has to be on the basis of subjective satisfaction. It cannot partake the form of a positive direction after a full fledged adjudication on the basis of evidence adduced as is often noticed. JUDGMENT The State of Kerala seldom files a writ petition and not without reason in the instant case. The Lok Ayukta has declared the caste status of a person and has further directed the Tahsildar to act in terms of the finding so entered!!! 2. The Supreme Court in Kumari Madhuri Patil and another Vs. Additional Commissioner, Tribal Development and others [(1994) 6 SCC 241] has highlighted the necessity to streamline the procedure for the issuance of social status certificates, their scrutiny and other approval. The Supreme Court has even recently in Dayaram Vs. Sudhir Batham and others [2011 (11) SCALE 448] approved the guidelines laid down in Kumari Madhuri Patil's case as being intrinsic to the fulfilment of fundamental rights. The State of Kerala has enacted the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (the 'Act' for short) in tune with the judgment of the Supreme Court first quoted. An application for Community Certificate has to be preferred under Section 4 of the Act and the competent authority can issue the said certificate under Section 5 of the Act. An appeal is provided against the order of the competent authority to the authority designated under Section 12 of the Act and a further revision to the government under Section 13 of the Act. The order of the government in revision is of course open to judicial review under Article 226 of the Constitution of India. 3. The first respondent bypassed this procedure and filed Ext.R1(m) complaint before the Lok Ayukta purportedly under Section 9 (1) of the Kerala Lok Ayukta Act, 1999. The Lok Ayukta was conscious of the fact that the issue of Community Certificate is regulated by the Act when it observed in Ext.P4 as follows: "We are not considering this contention raised by the complainant and the documents produced by her in support of this contention since the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 as amended and the Rules framed thereunder have constituted the appellate and revisional authorities against the report of expert agency, scrutiny committee etc. and the complaint has to establish that contention in appropriate proceedings before appropriate authority under the process of law" Nevertheless the Lok Ayukta concluded as follows: "I hold that the complainant is eligible to get caste certificate issued by the competent authority showing that she belongs to Hindu - Sambavar community which is included in the list of scheduled castes. The second prayer made is for a declaration that the first respondent is unfit to hold the post he holds at present. Though the conduct of the first respondent warrants, prima facie, such drastic action against him, I think, before proceeding further under Section 14 of the Kerala Lok Ayukta Act, he can be given an opportunity to file action taken report in terms of the finding entered above and if he does so, further proceedings can be dropped." (emphasis supplied) 4. The State of Kerala contends that the Lok Ayukta lacks jurisdiction to pass an order in the nature of Ext.P4 when the issue of Community Certificate is regulated by the Act only. The State points out that the first respondent has not even approached the Tahsidar with an application under Section 4 of the Act to complain of 'grievance' or 'mal- administration' for not passing orders thereon. The term 'grievance' has been defined in Section 2 (h) of the Kerala Lok Ayukta Act, 1999 as follows: "grievance" means a claim by a person that he sustained injustice or undue hardship in consequence of mal-administration" The term 'mal-administration' has been defined in Section 2 (k) of the Kerala Lok Ayukta Act, 1999 as follows: "mal-administration" means action taken or purporting to have been taken in the exercise of administrative functions in any case where,-- (i) such action or the administrative procedure or practice adopted in such action is unreasonable, unjust, oppressive or improperly discriminatory; or (ii) there has been wilful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay;" No document has been produced by the first respondent to show that she had put in any application before the Tahsildar seeking the issue of a Community Certificate. It cannot therefore by any stretch of imagination be held that the action of the Tahsildar is unreasonable, unjust, oppressive or that there was wilful negligence or undue delay on his part. There is no grievance in consequence of mal-administration for the Lok Ayukta to entertain Ext.R1(m) complaint lodged by the first respondent. 5. This Court has time and again held that the Lok Ayukta or an Upa-Lok Ayukta has a very limited role under the scheme of the Kerala Lok Ayukta Act, 1999. The jurisdiction is clearly circumscribed since it can at best recommend to the competent authority concerned about the injustice or hardship of any person to be remedied. The Lok Ayukta after perusing the action taken report intimated by the competent authority shall either close the case or if not satisfied, forward a special report to the Governor. The Lok Ayukta cannot by itself undertake the exercise of completing the act to be done by the competent authority. The recommendation in terms of Section 12 (1) or the special report in terms of Section 12 (5) of the Kerala Lok Ayukta Act, 1999 has to be on the basis of subjective satisfaction. It cannot partake the form of a positive direction after a full fledged adjudication on the basis of evidence adduced as is often noticed. An advertance to the decisions in George Vs. Sarala Kumari [2007 (4) KLT 924 and State of Kerala Vs. Leela [ILR 2009 (2) Ker 660] would be profitable. 6. The State of Kerala being the competent authority under Section 2 (d) (iv) of the Act is competent to prefer this writ petition along with the Tahsildar assailing Ext.P4 order of the Lok Ayukta. The Lok Ayukta has no jurisdiction to determine the caste status of any person and direct the competent authority to file an action taken report. The action taken report in this case is nothing but issue of Community Certificate which is regulated by the procedure laid down in the Act. I am fortified in this view by the judgment dated 03.02.2012 in WP(C) No. 1176/2007 of this court rendered in similar circumstances. 7. The first respondent heavily relies on Exts.R1(e) and R1(f) orders of the Lok Ayukta in complaints filed by her mother for issue of Community Certificate. The first respondent contends that WP(C) No. 14956/2007 filed against Ext.R1(f) order was subsequently withdrawn and that an attempted review was also not successful. But the State is entitled to raise the question of lack of jurisdiction at any time and even at the time of enforcement of the orders of the Lok Ayukta. Lack of jurisdiction goes to the root of the competence of the forum and the nullity of the order can be set up at the time of enforcement as held in Sunder Dass Vs. Ram Prakash [(1977) 2 SCC 662]. Any amount of waiver or acquiescence will not confer the forum or court with jurisdiction which it inherently lacks. [see Vithalbhai (P) Ltd. Vs. Union Bank of India (2005) 4 SCC 315]. The first respondent also relies on Ext.R1(k) Community Certificate issued to her on a previous occasion for admission to a college. The same reveals that it was issued for a specific purpose and that too in compliance of an interim order in a similar complaint filed before Lok Ayukta. Neither Ext.R1(k) Community Certificate nor Ext.R1 (e) order or R1(f) order enables the first respondent to obtain similar orders from the Lok Ayukta directing the Tahsildar to issue a Community Certificate. 8. The Lok Ayukta has exceeded its jurisdiction in passing Ext.P4 order and the same is quashed. This does not disable the first respondent to prefer an application under Section 4 of the Act for a Community Certificate. Ms. P.K. Santhamma, Special Government Pleader as well as Mr. P. Ravindran, Senior Advocate deserve an encomium for the grace with which they put forth their respective contentions. The writ petition is allowed. No costs. V. CHITAMBARESH JUDGE ncd |
