THE TAHSILDAR, TALUK OFFICE, FORT, THIRUVANANTHAPURAM v. SUNAYANA, SAYONARA, RAMAPURAM LANE, NCC ROAD, PEROORKKADA THIRUV

WP(C) NO. 28730/2011APPENDIXPETITIONER(S) EXHIBITSEXHIBIT P1:TRUE COPY OF THE GOVERNMENT ORDER DATED 20.06.2005.EXHIBIT P2:TRUE COPY OF GOVERNMENT ORDER DATED 20.11.2008.EXHIBIT P3:TRUE COPY OF THE KIRTADS REPORT DATED 05.10.2007.EXHIBIT P3(a):TRUE COPY OF THE LETTER OF KIRTADS DATED 30.05.2009.EXHIBIT P4:TRUE COPY OF THE ORDER OF KERALA LOK AYUKTA.EXHIBIT P5:THE COPY OF THE SAID INVESTIGATION REPORT DATED 13.06.2007.RESPONDENT(S) EXHIBITSEXHIBIT R1(a):TRUE COPY OF CERTIFICATE DATED 26.12.1988 ISSUED TO FIRST RESPONDENT'S MOTHER BY THE TAHSILDAR, TRIVANDRUM.EXHIBIT R1(b):TRUE COPY OF REPORT SUBMITTED BY VIGILANCE OFFICER OF KIRTADS SUBMITTED BEFORE THE SECRETARY TO GOVERNMENT DATED 21.06.2004.EXHIBIT R1(c):TRUE COPY OF REPORT OF THE REVENUE INSPECTOR DATED 26.07.2004.EXHIBIT R1(d):TRUE COPY OF CIRCULAR DATED 21.07.1999 VIDE NO. 23248/G1/98/SC/ST ISSUED BY THE SECRETARY TO GOVERNMENT.EXHIBIT R1(e):TRUE COPY OF REPORT DATED 12.05.2007 IN COMLAINT NO. 457/2007 OF THE LOK AYUKTA.EXHIBIT R1(f):TRUE COPY OF REPORT IN COMPLAINT NO. 1917/2007 PASSED BYTHE LOK AYUKTA.EXHIBIT R1(g):TRUE COPY OF JUDGMENT DATED 04.03.2009 IN WP(C) NO. 13930/2008 AND WP(C) NO. 14956/2007 OF THIS HON'BLE COURT.EXHIBIT R1(h):TRUE COPY OF ORDER DATED 08.07.2008 IN W.A. NO. 1363/2008 OF THIS HON'BLE COURT.EXHIBIT R1(i):TRUE COPY OF TRAINED TEACHERS CERTIFICATE.EXHIBIT R1(j):TRUE COPY OF RELEVANT PAGE OF SERVICE BOOK.EXHIBIT R1(k):TRUE COPY OF COMMUNITY CERTIFICATE ISSUED TO THE PETITIONER BY TAHSILDAR, TRIVANDRUM.EXHIBIT R1(l):TRUE COPY OF RELEVANT PAGE OF SECONDARY SCHOOL LEAVING CERTIFICATE OF THE PETITIONER HEREIN.EXHIBIT R1(m):TRUE COPY OF COMPLAINT FILED BY THE PETITIONER HEREIN BEFORE THE KERALA LOK AYUKTA AS COMPLAINT NO. 1928/2010.EXHIBIT R1(n):TRUE COPY OF WP(C) NO. 13930/2008 FILED BY THE TAHSILDAR, TRIVANDRUM BEFORE THIS HON'BLE COURT. “C.R.”V. CHITAMBARESH, J--------------------------------WP(C) NO. 28730 OF 2011------------------------------------Dated this the 21st day of February, 2012JUDGMENTThe State of Kerala seldom files a writ petition and notwithout reason in the instant case. The Lok Ayukta hasdeclared the caste status of a person and has further directedthe Tahsildar to act in terms of the finding so entered!!!2.The Supreme Court in Kumari Madhuri Patil andanother Vs. Additional Commissioner, TribalDevelopment and others [(1994) 6 SCC 241] hashighlighted the necessity to streamline the procedure for theissuance of social status certificates, their scrutiny and otherapproval. The Supreme Court has even recently in DayaramVs. Sudhir Batham and others [2011 (11) SCALE 448]approved the guidelines laid down in Kumari MadhuriPatil's case as being intrinsic to the fulfilment of fundamentalrights. The State of Kerala has enacted the Kerala (ScheduledCastes and Scheduled Tribes) Regulation of Issue of 2WP(C) No. 28730/2011Community Certificates Act, 1996 (the 'Act' for short) in tunewith the judgment of the Supreme Court first quoted. Anapplication for Community Certificate has to be preferredunder Section 4 of the Act and the competent authority canissue the said certificate under Section 5 of the Act. An appealis provided against the order of the competent authority to theauthority designated under Section 12 of the Act and a furtherrevision to the government under Section 13 of the Act. Theorder of the government in revision is of course open tojudicial review under Article 226 of the Constitution of India.3.The first respondent bypassed this procedure andfiled Ext.R1(m) complaint before the Lok Ayukta purportedlyunder Section 9 (1) of the Kerala Lok Ayukta Act, 1999. TheLok Ayukta was conscious of the fact that the issue ofCommunity Certificate is regulated by the Act when itobserved in Ext.P4 as follows:“We are not considering this contentionraised by the complainant and the documentsproduced by her in support of this contentionsince the Kerala (Scheduled Castes andScheduled Tribes) Regulation of Issue ofCommunity Certificates Act, 1996 as amended 3WP(C) No. 28730/2011and the Rules framed thereunder haveconstituted the appellate and revisionalauthorities against the report of expert agency,scrutiny committee etc. and the complaint has toestablish that contention in appropriateproceedings before appropriate authority underthe process of law”Nevertheless the Lok Ayukta concluded as follows:“I hold that the complainant is eligible to getcaste certificate issued by the competentauthority showing that she belongs to Hindu -Sambavar community which is included in the listof scheduled castes. The second prayer made isfor a declaration that the first respondent is unfitto hold the post he holds at present. Though theconduct of the first respondent warrants, primafacie, such drastic action against him, I think,before proceeding further under Section 14 of theKerala Lok Ayukta Act, he can be given anopportunity to file action taken report in terms ofthe finding entered above and if he does so,further proceedings can be dropped.” (emphasissupplied)4.The State of Kerala contends that the Lok Ayuktalacks jurisdiction to pass an order in the nature of Ext.P4when the issue of Community Certificate is regulated by theAct only. The State points out that the first respondent hasnot even approached the Tahsidar with an application underSection 4 of the Act to complain of 'grievance' or 'mal-administration' for not passing orders thereon. 4WP(C) No. 28730/2011The term 'grievance' has been defined in Section 2 (h) of theKerala Lok Ayukta Act, 1999 as follows:“grievance” means a claim by a personthat he sustained injustice or undue hardshipin 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 orpurporting to have been taken in the exercise ofadministrative functions in any case where,--(i)such action or the administrativeprocedure or practice adopted in such action isunreasonable, unjust, oppressive or improperlydiscriminatory; or(ii)there has been wilful negligence orundue delay in taking such action or theadministrative procedure or practice adopted insuch action involves undue delay;”No document has been produced by the first respondent toshow that she had put in any application before the Tahsildarseeking the issue of a Community Certificate. It cannottherefore by any stretch of imagination be held that the actionof the Tahsildar is unreasonable, unjust, oppressive or thatthere was wilful negligence or undue delay on his part. Thereis no grievance in consequence of mal-administration for theLok Ayukta to entertain Ext.R1(m) complaint lodged by the 5WP(C) No. 28730/2011first respondent.5.This Court has time and again held that the LokAyukta or an Upa-Lok Ayukta has a very limited role under thescheme of the Kerala Lok Ayukta Act, 1999. The jurisdiction isclearly circumscribed since it can at best recommend to thecompetent authority concerned about the injustice or hardshipof any person to be remedied. The Lok Ayukta after perusingthe action taken report intimated by the competent authorityshall either close the case or if not satisfied, forward a specialreport to the Governor. The Lok Ayukta cannot by itselfundertake the exercise of completing the act to be done by thecompetent authority. The recommendation in terms of Section12 (1) or the special report in terms of Section 12 (5) of theKerala Lok Ayukta Act, 1999 has to be on the basis ofsubjective satisfaction. It cannot partake the form of apositive direction after a full fledged adjudication on the basisof evidence adduced as is often noticed. An advertance to thedecisions in George Vs. Sarala Kumari [2007 (4) KLT 924and State of Kerala Vs. Leela [ILR 2009 (2) Ker 660] 6WP(C) No. 28730/2011would be profitable.6.The State of Kerala being the competent authorityunder Section 2 (d) (iv) of the Act is competent to prefer thiswrit petition along with the Tahsildar assailing Ext.P4 order ofthe Lok Ayukta. The Lok Ayukta has no jurisdiction todetermine the caste status of any person and direct thecompetent authority to file an action taken report. The actiontaken report in this case is nothing but issue of CommunityCertificate which is regulated by the procedure laid down inthe Act. I am fortified in this view by the judgment dated03.02.2012 in WP(C) No. 1176/2007 of this court rendered insimilar circumstances.7.The first respondent heavily relies on Exts.R1(e)and R1(f) orders of the Lok Ayukta in complaints filed by hermother for issue of Community Certificate. The firstrespondent contends that WP(C) No. 14956/2007 filed againstExt.R1(f) order was subsequently withdrawn and that anattempted review was also not successful. But the State isentitled to raise the question of lack of jurisdiction at any time 7WP(C) No. 28730/2011and even at the time of enforcement of the orders of the LokAyukta. Lack of jurisdiction goes to the root of thecompetence of the forum and the nullity of the order can beset up at the time of enforcement as held in Sunder Dass Vs.Ram Prakash [(1977) 2 SCC 662]. Any amount of waiveror acquiescence will not confer the forum or court withjurisdiction which it inherently lacks. [see Vithalbhai (P)Ltd. Vs. Union Bank of India (2005) 4 SCC 315]. The firstrespondent also relies on Ext.R1(k) Community Certificateissued to her on a previous occasion for admission to acollege. The same reveals that it was issued for a specificpurpose and that too in compliance of an interim order in asimilar complaint filed before Lok Ayukta. Neither Ext.R1(k)Community Certificate nor Ext.R1 (e) order or R1(f) orderenables the first respondent to obtain similar orders from theLok Ayukta directing the Tahsildar to issue a CommunityCertificate.8.The Lok Ayukta has exceeded its jurisdiction inpassing Ext.P4 order and the same is quashed. This does not 8WP(C) No. 28730/2011disable the first respondent to prefer an application underSection 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 thegrace with which they put forth their respective contentions.The writ petition is allowed. No costs.V. CHITAMBARESH JUDGEncd