State Of Kerala Represented By The ... vs Kerala Lokayukta Represented By ...
2023 Latest Caselaw 4138 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
            THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                    &
            THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
         FRIDAY, THE 31ST DAY OF MARCH 2023/10TH CHAITHRA, 1945
                         WP(C) NO.39942 OF 2022
PETITIONERS:

     1      STATE OF KERALA
            REPRESENTED BY THE DISTRICT COLLECTOR
            KANNUR - 670 002.
     2      THE REVENUE DIVISIONAL OFFICER,
            THALASSERY - 670 101.

            SRI. MOHAMMED RAFIQ - SPL. GP
            SMT. RESMITHA RAMACHANDRAN - GP
RESPONDENTS:

     1      KERALA LOK AYUKTA
            REPRESENTED BY ITS REGISTRAR
            THIRUVANANTHAPURAM - 695 003.
     2      SRI. P.A SUNNY,MANAGING PARTNER,
            M/S. STAR FURNITURE INDUSTRIES,
            ULIKKAL - 670 705.
     3      SIBI MATHEW,S/O. MATHEW,
            PRESENTLY WORKING AS SPECIAL VILLAGE OFFICER,
            ARALAM VILLAGE OFFICE, PAYAM P. O.,
            KANNUR - 670 704.
     4      K.C. RAVINDRAN
            WORKING AS TAHSILDAR,
            TALUK OFFICE, IRITTY,
            IRITTY P.O, PIN - 670 703.

            R2 - SRI. DOMSON J.VATTAKUZHY
     THIS   WRIT   PETITION   (CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
31.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 39942 OF 2022            :2:



                             JUDGMENT

MURALI PURUSHOTHAMAN, J.

This writ petition is filed by the State and the Revenue Divisional

Officer challenging Ext.P9 report of the Kerala Lok Ayukta (for short,

'Lok Ayukta') in Complaint No. 1523/2015 recommending the Principal

Secretary to Government, Revenue Department, to refund an amount of

Rs.18,332/-, being the Building Tax collected, to the 2nd respondent-

complainant along with interest at 6% p.a for the period from

05.02.2015 to the date of refund of the amount.

2. The petitioners contend that the Lok Ayukta has no jurisdiction

to consider the correctness of the orders passed by the authorities under

the Kerala Building Tax Act, 1975 (hereinafter referred to as "Building

Tax Act").

3. The short facts leading to Ext. P9 order are as follows:

The complainant's building bearing No. UGP X/277/C of Ulickal

Grama Panchayat, which was being used for running a Wooden

Furniture Manufacturing Workshop, was wrongly assessed to building

tax for an amount of Rs.18,000/- by the Tahsildar, Iritty, vide Ext.P4

order dated 19.9.2014 issued under the Building Tax Act. As per

Ext.P5 receipt dated 5.2.2015, the complainant remitted an amount of

Rs.18,332/- under pressure from the Village Officer, Vayathur to avoid

revenue recovery proceedings. According to the complainant, since the

building was being used for running a workshop, he was entitled to

exemption from paying tax under Section 3(1)(b) of the Building Tax

Act. Hence, the complainant filed Ext.P6 appeal under Section 11 of the

Building Tax Act. Since no communication was received from the

Appellate Authority, the complainant issued a registered notice dated

23.3.2015 to the special Village Officer and the Tahsildar, calling upon

them to refund the amount illegally collected from him. When they

refused to refund the amount, the complainant filed Ext. P8 complaint

before the Lok Ayukta praying for recommendation to the competent

authority to refund the amount of Rs.18,332/- with interest at the rate of

15.25% per annum with quarterly rest from 15.2.2015 till realisation. He

also claimed an amount of Rs.25,000/- as compensation. The petitioners

herein filed written statement before the Lok Ayukta resisting the

complaint and later filed additional written statement producing Ext. P7

Government Order rejecting the application of the complainant for

exemption under the Building Tax Act during the pendency of the

appeal before the Revenue Divisional Officer and the complaint before

the Lok Ayukta. The Lok Ayukta, after considering the complaint,

written statements and the rejoinders of the complainant, passed Ext. P9

order and the relevant portion thereof reads as follows:

"8. In the above circumstances, we are satisfied that the complainant, who was running a furniture workshop in the building in question, was entitled to exemption from payment of building tax as provided in Section 3(1)(b) of the Act. We find that the Assessing Authority, the Appellate Authority and the Government proceeded on the wrong assumption that the complainant was claiming exemption on the ground that he was running a factory. He never raised such a claim. On the other hand, in Ext.P7 appeal the first ground raised was that "the

Assessing Authority has omitted to note that impugned building is used principally as a furniture manufacturing workshop". In the letter Ref.No.564/16/F dated 18.1.2016 sent by the Revenue Divisional Officer, Thalassery to the Secretary, Revenue (Special Cell), Department he had specifically referred to the report of the Tahsildar, Iritty stating that the Star Furniture Industries (complainant's establishment) was running a furniture workshop. In the Government Order G.O.(Rt) No. 919/17/Rev. dated 4.3.2017 rejecting the complainant's claim for exemption the Government also did not state that the complainant's establishment was not a workshop. It is clear that the Assessing Authority, Appellate Authority and the Government did not apply their mind properly and misunderstood the claim of the complainant and proceeded to take a wrong decision to deny the benefit to the complainant. We find that the decisions/actions taken by them were arbitrary, illegal, unreasonable and unjust. It amounted to maladministration and as a consequence of such maladministration, the complainant sustained injustice and undue hardship. We hold that the grievance of the complainant is genuine and the complainant is entitled to refund of the illegally recovered amount of Rs.18,332/- with interest at 6% per annum for the period from 5.2.2015 (date of recovery of the amount) to the date of refund of the amount.

9. Through this Report under Section 12(1) of the Kerala Lok Ayukta Act, 1999 we recommend to the Competent Authority viz., Principal Secretary to government, Revenue Department, Government of Kerala that the injustice and hardship sustained by the complainant shall be remedied by ensuring that the respondents refund to the complainant the illegally recovered amount of Rs.18,332/- along with interest @ 6% p.a. for the period from 5.2.2015 to the date of refund of the amount."

4. The Lok Ayukta found that the complainant is entitled to

exemption from payment of Building Tax as provided under Section 3

(1) (b) of the Building Tax Act and that the decisions of the Assessing

Authority, the Appellate Authority and the Government were wrong,

illegal, arbitrary, unreasonable and unjust, which amounts to

maladministration and ordered refund of the building tax collected from

the complainant.

5. Ext. P9 order of the Lok Ayukta is assailed on merits as well on

the ground of jurisdictional infirmity. According to the petitioners, Ext.

P8 complaint filed by the 2nd respondent is not maintainable inasmuch as

the Lok Ayukta has no jurisdiction to entertain the same. It is contended

that the action impugned is not a complaint involving "grievance" or

"allegation" as defined under the Kerala Lok Ayukta Act, 1999, which

alone can be investigated by the Lok Ayukta under the Act. It is further

contended that the impugned action of the authorities discharging their

function under the Building Tax Act will not come within the definition

of 'maladministration'. According to them, Ext. P8 complaint was

entertained by the Lok Ayukta while Ext. P6 statutory appeal under

Section 11 of the Building Tax Act, challenging Ext. P4 assessment

order, was pending before the Appellate Authority, the Revenue

Divisional Officer. The Appellate Authority referred the claim of the 2nd

respondent for exemption before the Government in terms of Section 3

(1)(b) of the Building Tax Act and the Government rejected the claim

for exemption vide Ext. P7. It is contended by the petitioners that if the

2nd respondent is aggrieved by Ext. P7 order rejecting the claim for

exemption, he ought to have approached this Court by filing a writ

petition under Article 226 of the Constitution of India. Instead, he

preferred a complaint before the Lok Ayukta, which is not maintainable.

6. Heard Sri. Mohammed Rafiq, the learned Special Government

Pleader (Taxes) for the petitioners and Sri. Domson J. Vattakuzhy, the

learned counsel appearing for the 2nd respondent.

7. According to Sri. Rafiq, Ext. P8 complaint is not maintainable

and the Lok Ayukta has no jurisdiction to pass Ext. P9 report. It is

contended that the action of the authorities while discharging their

functions under the Building Tax Act cannot be taken as

maladministration u/s 2(k) of the Lok Ayukta Act since

maladministration can apply only to administrative functions and not in

respect of Judicial or Quasi-Judicial functions. Sri. Rafiq submits that,

challenging Ext. P4 order of assessment of building tax, the 2 nd

respondent preferred a statutory appeal under Section 11 of the Building

Tax Act before the Appellate Authority and he claimed exemption u/s

3(1)(b) of the Act, claiming that his establishment is a 'workshop'. The

matter was referred to the Government in terms of Section 3(2) of the

Building Tax Act and the Government, vide Ext. P7, rejected the claim

for exemption. It was during the pendency of the appeal that the 2 nd

respondent preferred Ext. P8 complaint before the Lok Ayukta. Sri.

Rafiq, relying on the decision of this Court in Dream World Water

Park (M/s), Trichur v. Tahsildar, Mukundapuram Taluk and others

[2013 (4) KHC 471)], contends that, the remedy of the 2nd respondent

against rejection of claim for exemption by Government is to file writ

petition before this Court. Sri. Rafiq also contends that the action of the

petitioners performing adjudicatory or quasi-judicial functions will not

come within the purview of the maladministration as referred to in

Section 2(k) of the Lok Ayukta Act.

8. Sri. Domson J. Vattakuzhy argued in support of Ext. P9 report

and contended that the impugned action of the authorities under the

Building Tax Act is wrong, unjust and illegal and amounts to

maladministration.

9. Section 7 of the Lok Ayukta Act provides for matters which

may be investigated by the Lok Ayukta and provides that, subject to the

provisions of the Act, the Lok Ayukta may investigate any action which

is taken by or with the general or specific approval of the persons

specified therein, in any case where a complaint involving a ''grievance''

or an ''allegation'' is made in respect of such action.

10. Section 2(b) of the Lok Ayukta Act defines 'allegation' as

follows:-

"Section 2(b). "allegation", in relation to a public servant, means any affirmation that such public servant,-

(i)has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;

(ii)was actuated in the discharge of his functions as such public servant by personal interest or improper or corrupt motives; or

(iii)is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant;"

11. Section 2(h) of the Lok Ayukta Act defines 'grievance' to mean

a claim by a person that he sustained injustice or undue hardship in

consequence of maladministration. Section 2(k) of the Lok Ayukta Act

defines 'maladministration' as follows:-

"Section 2(k). Maladministration 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 willful negligence or undue delay in taking such action or the administrative procedure or practice adopted in such action involves undue delay;"

Going by the definition of 'maladministration', only unreasonable,

unjust, oppressive or improperly discriminating action taken or

purporting to have been taken in exercise of administrative functions

would amount to maladministration.

12. The power exercised by the assessing authority and the

appellate authority under the Building Tax Act, is quasi-judicial (see the

decisions reported in N. J. Sebastian v. District Collector, Kottayam

and Ors. [2021 (6) KHC 45: 2021 (5) KLT 745] and Bavasons

Constructions Pvt. Ltd v. State of Kerala and others [2007 (2) KHC

409: 2007 (3) KLT 101]). Section 3 of the Building Tax Act reads as

follows:

"3. Exemptions.-(1) Nothing in this Act shall apply to-

(a) buildings owned by the Government of Kerala or the Government of India or any local authority; and

(b) buildings used principally for religious, charitable or educational purposes or as factories or workshops or cattle/pig/poultry farms or poly houses.

xxxx xxxx xxxx (2) If any question arises as to whether a building falls under sub-section (1) or under Section 3A, it shall be referred to the Government and the Government shall decide the question after

giving the interested parties an opportunity to present their case. (3) A decision of the Government under sub-section (2) shall be final and shall not be called in question in any Court of law."

From the above provision, it is manifest that, the Government, in

considering the question as to whether a building is entitled for

exemption, is required to give the interested parties an opportunity to

present their case. In view of the above requirement of law, the

Government, under section 3 of the Building Tax Act, is required to act

judicially and the decision of the Government is quasi-judicial . The

decision of the Government under sub-section (2) of Section 3 of the

Building Tax Act rejecting the claim for exemption may be open to

judicial review of this Court. However, the correctness or otherwise of

the said decision cannot be gone into by the Lok Ayukta. The decisions

of the Assessing Authority as well as the Government under the

Building Tax Act are quasi-judicial and not administrative and would

not amount to maladministration under Section 2(k) of the Lok Ayukta

Act.

13. A Division Bench of this Court, in Sudha Devi K. v. District

Collector, Thiruvananthapuram and Others [2017 (2) KHC 850],

held that Lok Ayukta and Upa Lok Ayukta are not appellate or

supervisory authorities over other competent forums created under

different Statutes, because each of those Statutes provides its own

remedial steps like appeal, revision or otherwise. Parties have to follow

those procedures and their remedies are to be worked out on the basis of

those statutory provisions. There is nothing in the Lok Ayukta Act

which would override those procedures or forums giving Lok Ayukta

the right to override orders passed by the statutory authorities. Another

Division Bench of this Court in State of Kerala and Others v. John

Joseph and Another [2011 KHC 801: 2011 (3) KLT 23] held that,

even acts of erroneous exercise of an authority purportedly conferred by

a statute cannot be classified as maladministration within the meaning of

Lok Ayukta Act. If orders passed by quasi-judicial functionaries

exercising powers under a statute are for any reason untenable in law,

resort must be had to the remedies under the statute and the

complainants cannot bypass the procedure and approach the Lok

Ayukta. The Lok Ayukta is a creation of the statute and has no inherent

jurisdiction. It cannot assume any jurisdiction otherwise confirmed by

the Lok Ayukta Act. This Court, in John Joseph (supra), observed that,

if the authority does not have the requisite jurisdiction to adjudicate the

dispute brought before it, permitting such an examination would only

create chaos in the administration. In The Additional Chief Secretary

(Revenue) v. Kerala Lok Ayukta and others [Neutral Citation No.

2023/KER/18549], we had occasion to consider the question whether

the Lok Ayukta can adjudicate the correctness of the order passed by the

Assessing Authority rejecting the option for settling arrears of sales tax

under the Amnesty Scheme and it was held that the power exercised by

the Assessing Authority being quasi-judicial, the Lok Ayukta does not

have the requisite jurisdiction under the Lok Ayukta Act to adjudicate

the dispute.

14. Ext.P8 complaint does not reveal any 'allegation' or 'grievance'

in consequence of maladministration. Ext.P8 complaint is not

maintainable and the Lok Ayukta has no jurisdiction to interfere with

the decisions of the Assessing and Appellate Authorities and the

Government and to order refund of the tax levied. Accordingly, Ext. P9

report of the Lok Ayukta is set aside.

Writ petition is allowed. It is made clear that this Court has not

adjudicated the correctness or otherwise of orders of the Assessing

Authority or the Government, but only the jurisdiction of the Lok

Ayukta in entertaining Ext. P8 complaint.

Sd/-

S.MANIKUMAR CHIEF JUSTICE

Sd/-

MURALI PURUSHOTHAMAN JUDGE spc/

APPENDIX

PETITIONERS EXHIBITS:-

EXT P1 TRUE COPY OF THE BUILDING PERMIT GRANTED TO THE 2ND RESPONDENT FOR "INDUSTRIAL PURPOSE (GROUP G2)" DATED 18/03/2014.

EXT P2 TRUE COPY OF FORM-1 SUBMITTED BY THE VILLAGE OFFICER, VAYATHUR UNDER RULE 3 OF KERALA BUILDING TAX RULES DATED 06/08/2014.

EXT P3 TRUE COPY OF THE NOTICE SENT TO THE 2ND RESPONDENT ON 21/08/2014 BY THE ASSESSING AUTHORITY DATED 21/08/2014 WITH ENGLISH TRANSLATION.

EXT P4 TRUE COPY OF THE ORDER DATED 19/09/2014 PASSED BY THE TAHSILDAR, IRITTY WITH ENGLISH TRANSLATION. EXT P5 TRUE COPY OF THE RECEIPT OF PAYMENT OF BUILDING TAX BY THE 2ND RESPONDENT DATED 05.02.2015 WITH ENGLISH TRANSLATION.

EXT P6 A TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE 2ND RESPONDENT.

EXT P7 A TRUE COPY OF THE ORDER NUMBER GO(RT) 919/2017/REV.

DATED 04/03/2017 WITH ENGLISH TRANSLATION.

EXT P8 TRUE COPY OF COMPLAINT NO.1523/15 A FILED BY THE 2ND RESPONDENT BEFORE LOK AYUKTHA.

EXT P9 A TRUE COPY THE REPORT OF THE LOK AYUKTA DATED 17.06.2022 IN COMPLAINT NO.1523/2015 A.

RESPONDENTS EXHIBITS:     NIL.