IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 WP(C).No. 21130 of 2006(M) -------------------------- AGAINST THE ORDER IN IA.2480/2004 IN OP.79/2003 of ADDL.DISTRICT COURT, THRISSUR .................... PETITIONER: ------------ P.V. JYOTHI, AGED 53 YEARS, MUNICIPAL SECRETARY, ALUVA MUNICIPALITY, RESIDING AT SAKTHI NIVAS, PERUMANOOR,KOCHI-682015. BY ADV. SRI.P.V.SURENDRANATH SRI.V.A.ABDUL JALEEL RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVT., LOCAL SELF GOVERNMENT (URBAN DEVELOPMENT) DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF LOCAL FUND AUDIT, VIKAS BHAVAN, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.C.M.SURESH BABU FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC/21130/2006 APPENDIX PETITIONERS EXHIBITS: EXHIBIT P1 : A TRUE COPY OF THE SURCHARGE NOTICE NO.LF 5249/SPL. CELL/SC. 3/02 DATED 20.4.2002 IN FORM IX UNDER KERALA LOCAL FUND AUDIT ACT AND RULE 20 (3) OF KERALA LOCAL FUND AUDIT RULES 1996. EXHIBIT P2: A TRUE COPY OF THE POSTAL ENVELOP OF EXT.P1 SHOWING THE DATE OF DELIVERY AS 3.7.2002. EXHIBIT P3: A TRUE COPY OF THE EXPLANATION/REPLY SUBMITTED BY THE PETITIONER DATED 28.8.2002. EXHIBIT P4: A TRUE COPY OF THE POSTAL AKNOWLEDGEMENT EVIDENCING RECEIPT OF EXT.P3 BY THE RESPONDENT ON 3.9.2002. EXHIBIT P5: A TRUE COPY OF THE SURCHARGE CERTIFICATE DATED 14.1.2003. EXHIBIT P6: A TRUE COPY OF THE POSTAL ENVELOP SHOWING THE DATE OF DELIVERY AND DATE OF DESPATCH OF EXT.P5. EXHIBIT P7: A TRUE COPY OF THE ORIGINAL PETITION FILED BY THE PETITIONER BEFORE THE DISTRICT COURT, THRISSUR UNDER SEC. 16(3) OF THEre KERALA LOCAL FUND AUDIT ACT 1994. EXHIBIT P8: A TRUE COPY OF THE AFFIDAVIT ATTACHED TO THE PETITION IN I.A.No.2480/04 IN O.P.NO.79/2003. EXHIBIT P9: A TRUE COPY OF THE I.A.2480/2003 IN O.P.NO.79/2003 BEFORE THE DISTRICT COURT, TRISSUR. EXHIBIT P10:A TRUE COPY OF THE ORDER DATED 3.3.2005 PASSED BY THE DISTRICT JUDGE, THRISSUE. M. SASIDHARAN NAMBIAR, J. ----------------------------------------------- W.P.(C) No. 21130 OF 2006 ----------------------------------------------- Dated this the 18th day of July 2008 J U D G M E N T This petition is filed under Article 227 Constitution of India to quash Ext.P10 order passed by District Court, Trichur I.A.No.2480/ 2004 in O.P.No.79/2003. O.P. was filed under Section 16(3) of Kerala Local Fund Audit Act, 1994, to set aside the Surcharge Certificate issued by the respondent dated 14-01-2003. In the O.P. petitioner filed I.A. 2480/2004 an application to decide the preliminary issue regarding enforceability of Surcharge Certificate contending under Sub Rule 11 of Rule 20 of Kerala Local Fund Audit Rules Surcharge Certificate shall be served on the person responsible within a period of 4 months from the date of receipt of charge/surcharge notice by such person and it was not complied and so the Surcharge Certificate is void. Under Ext.P.10 order, learned Munisiff dismissed the application. It is challenged in the petition. W.P.(C) No. 21130/2006 2 2. Learned counsel appearing for the petitioner and learned Government Pleader were heard. 3. The learned counsel appearing for the petitioner submitted that the very enforceability of The Kerala Local Fund Audit Act and the Rules are challenged in writ appeal pending before the Division Bench and in such circumstances the decision of the writ petition may be subject to the decision to be taken in the writ appeal. 4. On hearing the learned counsel, I do not find any reason to interfere with Ext.P10 order at this stage as there is no illegality or irregularity in the order. The O.P. is pending before the District Judge. Petitioner is entitled to challenge Ext.P10 order also along with the final order to be passed in the O.P, if the final order goes against him. The writ petition is disposed accordingly. M. SASIDHARAN NAMBIAR, Judge bps W.P.(C) No. 21130/2006 2