w w w . L a w y e r S e r v i c e s . i n



State of Kerala, Rep. by The District Collector, Idukki & Another v/s P.D. Raveendran & Another


Company & Directors' Information:- PD CORPORATION PRIVATE LIMITED [Active] CIN = U29253MH2011PTC221370

    W.A. No. 656 of 2009 (A)

    Decided On, 06 February 2020

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE MR. S. MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Appellants: T.K. Aravinda Kumar Babu, Senior Government Pleader. For the Respondents: R1, Unnikrishnan V. Alapatt, R2, M.V. Bose, Advocates.



Judgment Text


S. Manikumar, C.J.

1. Instant writ appeal has been filed by the appellants/writ petitioners seeking for a direction to set aside the judgment dated 19.01.2009 in W.P.(C) No.1870 of 2009, by which, a learned single Judge of this Court dismissed the writ petition stating that there is no provision in the Kerala Local Fund Audit Act, 1994 limiting the time and, therefore, the omission to provide any time limit in the Local Fund Audit Act means that the provision contained in the proviso to Section 215 of the Kerala Panchayat Raj Act, 1994 is not inconsistent with the provisions of the Kerala Local Fund Audit Act.

2. Writ petition has been filed assailing Exhibit-P7 judgment of the District Judge, Thodupuzha in O.P.(Local Fund) No.16/07. By Exhibit-P7 Judgment, the court below allowed the application filed by Sri. P. D.Raveedran, Pathiyil House, Melampara P.O., Bharananganam, Kottayam district, respondent No.1, under Section 20(13) of the Kerala Local Fund Audit Act, 1994 (for short, 'Act, 1994') to set aside Surcharge Certificate Nos.LF 11295/Spl.cell (Sc.2) 2005 dated 7.11.2006 and LF 11295/Spl.cell (Sc.2) 2005 dated 7.11.2006, for the reason that the claims made therein were hopelessly barred by limitation in view of the proviso to sub-section (9) to Section 215 of the Act, 1994, which mandates that no surcharge shall be made after a period of four years from the date on which the expenditure in question was incurred.

3. Brief facts are as follows:

First respondent/Mr.P.D.Raveendran was working as a Secretary, Karunapuram Grama Panchayat in Idukki district for the period from 30.05.2000 to 16.08.2001. Auditing of the accounts of Karunapuram Grama Panchayat, for the financial year 2000-2001, was conducted from 18.02.2003 to 27.02.2003 by the local fund in-charge and found a loss of Rs.10,870/- and Rs.48,701/-, on account of the revenue loss and excess payments. The allegations made against the 1st respondent regarding revenue loss are incorporated in paragraphs 21 and 25 of the audit report and loss sustained on account of excess/illegal payment are incorporated paras 38, 39 and 45. As per para 21 of the audit report, professional tax worth Rs.2,820/- from 3 institutions situated in Karunapuram Grama Panchayath has not been properly assessed and tax collected, again in para 25, it is mentioned that rent from 2 rooms in Thookupalam Market building owned by Karunapuram Panchayat is in arrears for the last 7 months from 2/2000 onwards and the defaulted rent arrears of Rs. 8,050/- should be recovered from the concerned authority. As per the allegation in para 38 of the audit report, it was mentioned that the log book of the Tractor bearing No. KL-6/A 6684 owned by Karunapuram Panchayat was not properly maintained. Scrutiny of vouchers and counterfoils of the cheques revealed that Panchayat has spent Rs.8,890/- towards diesel expenses and wages of driver. These amounts were spent without any return and hence, those amounts were not admissible, and it has to be refunded in the Panchayat account. In para 39 of the audit report, it was mentioned that 1st respondent has remitted Rs.27,876/- in K.S.E.B. for clearing the arrears of current charges used for pumping drinking water under Kuzhikandom drinking water project and Kuzhitholu Irrigation Project, 2 Projects implemented by the panchayat under Peoples Planning Programme. In the audit, it was observed that for the projects implemented under Peoples Planning Programme, further expenditure for its functioning should be met by the beneficiaries and hence, the amount spent for pumping and remitted by the Panchayat was unauthorized and it has to be remitted in the Panchayat account. Again, in para 45 of the audit report, it was stated that 1st respondent has spent Rs.6,394/- in excess over the project fund of Rs.71,700/-.

4. Based on the audit report, charge notice and surcharge notice dated 16.8.2005 were issued to the 1st respondent. Thereafter, charge certificate and surcharge certificate dated 7.11.2006 were issued to the 1st respondent, against which, he filed O.P.(LF)16/2017 before the District Court, Thodupuzha. Court below allowed the application filed by the 1st respondent under Section 20(13) of the Act, 1994 and set aside the Surcharge Certificate Nos.LF 11295/Spl.cell (Sc.2) 2005 dated 7.11.2006 and LF 11295/Spl.cell (Sc 2) 2005 dated 7.11.2006, for the reason that claims made therein are hopelessly barred by limitation in view of the proviso to sub section (9) of Section 215 of the Act, 1994, which mandates that no surcharge shall be made after a period of four years from the date on which the expenditure in question was incurred. Being aggrieved by the judgment of the District Judge, Thodupuzha in O.P. (Local Fund) No.16/07, appellants herein/State of Kerala and the Director of Local Fund Audit, Thiruvananthapuram, have approached the writ ourt by filing the writ petition.

5. Adverting to the rival contentions, writ court vide judgment in W.P. (C) No.1870/2009 dated 19.01.2009 ordered thus:

“3. Learned Government Pleader has no dispute that the claim has been made after a period of four years from the date the expenditure in question was incurred. But, his contention is that by reason of Section 22 of the Kerala Local Fund Audit Act, 1994, any provision contained in any other law for the time being in force relating to the audit of accounts of a local authority or a local fund included in the schedule is repugnant to the provisions of the Kerala Local Fund Audit Act, the latter shall prevail and the former to be avoided to the extent of such repugnancy. All the same, Government Pleader submits that under the Kerala Local Fund Audit Act no period is prescribed for advancing a claim for surcharge and therefore, the provisions of the proviso to sub section (9) to Section 215 of the Kerala Panchayat Raj Act is inconsistent with the provisions of the Kerala Local Fund Audit Act, 1994 and hence, there won't be any limitation.

4. The argument advanced is unsound. When no provision is made in the Kerala Local Fund Audit Act, there is no question of any other provision in that behalf in any other statute being repugnant. The submission that there is no provision made in the Kerala Local Fund Audit Act limiting the time does not enable the claim being advanced at any time. The omission to provide any time limit in the Kerala Local Fund Audit Act means that the provision contained in the proviso to Section 215 of the Kerala Panchayat Raj Act is not inconsistent with the provisions of the Kerala Local Fund Audit Act. There is no merit in this writ petition.

This writ petition is, hence, dismissed.”

6. Being aggrieved, instant writ appeal has been filed on the following grounds:

(a) Writ court ought to have found that Kerala Local Fund Audit Act is a special law which deals with audit of accounts of Municipality, Panchayat and other local bodies mentioned in the schedule. The Local Fund Audit Act does not provide any time limit for the surcharge certificate. It is settled law that when there is inconsistency between the two enactments, the general law will have to yield to the special law. Hence, in the case on hand, Panchayat Raj Act has to yield to the Local Fund Audit Act and the finding that surcharge is barred by limitation is unsustainable.

(b) Finding of the writ court that the omission to provide any time limit in the Kerala Local Fund Audit Act means that the provision contained in the proviso to Section 215 of the Kerala Panchayat Raj Act is not inconsistent with the provisions of the Kerala Local Fund Audit Act is unsustainable.

(c) It is contended that proviso to Section 215(9) of the Kerala Panchayat Raj Act is hit by Section 22 of the Kerala Local Fund Audit Act, 1994. As a matter of fact, Kerala Panchayat Raj Act came into force on 23.11.1995. Whereas, the Local Fund Audit came into force on 15.1.1996 as per G.O.(P) No. 77/96 dated 10.01.1996.

(d) As per Section 22 of Kerala Local Fund Audit Act, 1994, if any provision contained in any other law for the time being in force relating to the Audit of Account of Local Authority or a local fund included in the schedule is repugnant to the provisions of this Act, the later prevail and the former be void to the extent of such repugnancy”.

(e) The fact that there is much difference between the word “charge” and “surcharge” as used under Section 215 of the Kerala Panchayat Raj Act, 1994 and Sec. 16 of the Kerala Local Fund Audit Act, 1994 was not taken note of while passing Ext. P7, and by the impugned judgment.

(f) Surcharge used in the case of illegal payment and charge is used in the case of deficiency of loss caused by the negligence or misconduct of the person in the case of receipts / receivable. This major difference was omitted to be looked into by the learned Single Judge. In cases of charge ie., loss sustained due for the non performance of the duties of the concerned official on receipt side there is no limitation provided in the Panchayat Raj Act.

(g) The question of limitation under sub-section (9) of Section 215 of the Kerala Panchayat Raj Act is not applicable to this case. As per Sec. 182 (viii) (ix) of the Panchayat Raj Act, 1994, Secretary is the person responsible for safe custody of Panchayat Fund. Hence, the 1st respondent is duty bound in the advisory capacity as per Section 182 of the said Act.

7. Based on the grounds of challenge, Mr. Aravinda Kumar Babu, learned Senior Government Pleader, submitted that proviso to Section 215(9) of the Kerala Panchayat Raj Act, 1994, is hit by Section 22 of the Kerala Local Fund Audit Act, 1994. Moreover, Kerala Panchayat Raj Act came into force on 23.11.1995, whereas the Local Fund Audit Act came into force on 15.01.1996 as per G.O.(P) No.77/96 dated 10.1.1996. He also submitted that the learned Single Judge ought to have found that Act, 1994 is a special law which deals with audit of accounts of Municipality, Panchayat and other Local Bodies mentioned in the schedule. The Local Fund Audit Act does not provide any time limit for the surcharge certificate. It is settled law that when there is inconsistency between two enactments, the general law will have to yield to the special law. Hence, in this case, the Kerala Panchayat Raj Act, 1994 has to yield to the Local Fund Audit Act, and the finding that surcharge is barred by limitation is unsustainable.

8. Placing reliance on the judgment of a Hon'ble Division of this Court in W.A.No.461 of 2012 dated 14.01.2015, Mr. Unnikrishnan V. Alappat, learned counsel for the 1st respondent, submitted that a writ petition against the judgment of a learned District Judge is not maintainable and, therefore, there is an error in exercising jurisdiction, in entertaining the writ petition and consequently, the instant appeal. Referring to Section 215 of the Kerala Panchayat Raj Act, 1994, he prayed to sustain the judgment impugned.

9. Heard learned counsel for the parties and perused the material available on record.

10. Kerala Local Fund Audit Act, 1994 (Act 14 of 1994) is an enactment to provide for and to regulate the audit of local funds under the management or control of certain local authorities in the State of Kerala. Preamble of this Act reads thus:

“WHEREAS it is expedient to provide for and to regulate the audit of the local funds under the management or control of certain local authorities in the State of Kerala.”

11. As per Section 2(a) of the Act,1994, “auditor” means the Director of Local Fund Audit and includes any other officer of the Local Fund audit Department empowered by the Director to perform the functions of an auditor under this Act.

12. Section 2(f) of the Act defines ”local authority”, meaning thereby;

“(i) a Municipal, Corporation constituted under the Kerala Municipal Corporation Act, 1961 (30 of 1961) or a Municipality constituted under the Kerala Municipalities Act, 1960 (14 of 1961) of Township specified in Section 2 of the Guruvayur Township Act, 1961 (43 of 1961) or a Panchayat constituted or deemed to have been constituted for the local administration of a Panchayat area under the Kerala Panchayats Act, 1961 (32 of 1960) or a Panchayat or a Municipality or a Metropolitan Planning Committee or a District Planning Committee constituted in the State in accordance with the provisions in Part IX and Part IX A respectively, of the Constitution of India;

(ii) any other authority, body or institution established by or under any law or orders of the Government and responsible for the administration of a local fund:”

13. Sections 4 and 5 of this Act dealing with “Audit of Accounts” and “Power of Audit of Accounts of certain authorities, bodies, institutions or funds”, are extracted hereunder:

“4. Audit of accounts;- (1) Notwithstanding anything contained in any other law for the being in force, but subject to the provisions of the Controller and Auditor General, (Duties, powers and Conditions of Service) Act, 1971 (Central Act 56 of 1971) the Director shall , in the manner provided by or under this Act, conduct the audit of accounts of a local authority or local fund included in the Schedule. (2) Government may, by notification in the Gazette and for reason to be specified therein, add any other authority, body, institution or local fund to the Schedule referred to in sub-section (1) and on the publication of the notification, such authority, body, institution or local fund shall be deemed to be added to the schedule. (3) No authority, body institution or local fund included in the Schedule referred to in sub-section (1) shall be omitted there from except by the authority of a law made by the State Legislature.

5. Power of Audit of Accounts of certain authorities, bodies, institutions or funds:- The Director may, with the previous sanction of the Government, and without prejudice to the provisions of sub-section (1) of section 4, audit the accounts of any authority, body, institution or fund not included in the schedule subject such terms and conditions as may be agreed upon between the Director and the person responsible for the administration of such authority, body, institution of fund.”

14. Section 16 of the Act deals with Audit to surcharge illegal payments and loss caused by negligence or misconduct, is extracted hereunder:

“16. Auditor to surcharge illegal payments and loss caused by negligence or misconduct:-

(1) The auditor may disallow any item which appears to him to be contrary to law and surcharge the same against the person making or person or body of persons authorising the making of the illegal payment and may charge against any person responsible therefore, the amount of any deficiency or loss caused by the negligence or misconduct of that person or any sum received which ought to have been, but has not been brought into account by that person and shall, in every such case, certify the amount due from such person.

(2) The auditor shall state, in writing the reasons for his decision in respect of every disallowance, surcharge or charge and shall communicate the same by registered post to the person against whom it is made together with an extract of the relevant objection in the audit report.

(3) Any person aggrieved by disallowance, surcharge or charge made may, within one month after he has received or been served with the decision of the auditor, apply to the District Court, to set aside such disallowance, surcharge or charge and the court, after taking such evidence as is necessary, may confirm, modify or remit such disallowance, surcharge or charge.

(4) Every sum certified to be due from any person by the auditor under this Act shall be paid by such person to the Executive authority within one month after the intimation to him of the decision of the Director unless, within that time, such person has filed an application before the District Court against the decision under sub-section (3) and such amount ,if not so paid, or such amount as the District Court shall declare to be due, shall be recoverable under the provisions of the Kerala Revenue Recovery Act, 1968 (15 of 1968) for the time being in force , as if it were an arrear of public revenue due on land.”

15. Section 22 of the Act, 1994 is extracted hereunder:

“22. Act to override other enactment:- If any provision contained in any other law for the time being in force relating to the audit of accounts of a local authority or a local fund included in the Schedule is repugnant to the provisions of this Act, the latter shall prevail and the former be void to the extent of such repugnancy.”

16. Section 28 dealing with power of Government to frame rules is extracted hereunder:

“28. Power of Government to make rules:-

(1) The Government may, by notification in the Gazette, make rules for the purpose of carrying into effect the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) the manner and the form in which the accounts of a local authority whose accounts are subject to audit under this Act, shall be kept and presented:

(b) the powers and duties of auditors and procedure to be followed by them for conducting an audit and period at which such audit may be conducted;

(c) the manner in which the matters required to be published under this Act shall be published; and

(d) all other matters, which may be or are required to be prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before the Legislative Assembly while it is in session for a total period of fourteen days, which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of any thing previously done under that rule.”

17. Section 29 of the Act speaks about the power to remove difficulties and reads thus:-

“29. Power to remove difficulties:- If any difficulty arises in giving effect to the provisions of this Act, the Government may, by order, as occasion may require, do anything not inconsistent with the provisions of this Act which appears to them to be necessary or expedient for the purpose of removing the difficulty:

Provided that no such order shall be issued after the expiry of two years from the date of commencement of this Act.”

18. Preamble of the Kerala Panchayat Raj Act, 1994 reads as under:

“Preamble - Whereas it is expedient to replace the present enactments relating to Panchayats and district councils by a comprehensive enactment to establish a three-tier Panchayat Raj system in the State in line with the Constitution (Seventy-third Amendment) Act, 1992, for securing a great measure of participation of the people in planned development and in local Governmental affairs, by constituting Village, block and district Panchayats;

And endow such Panchayats with such powers and authority to enable them to function as institutions of self-Government.

And entrusting such Panchayats the preparation of plans and implementation of schemes for economic development and social justice including the implementation of schemes in relation to the matters listed in the Eleventh Schedule to the Constitution.”

19. Schedule to the Act, 1994 covers many institutions, including Panchayats. Reading of the above makes it clear that the Act, 1994 covers all the local bodies and other authorities constituted in the State, in accordance with the proviso in Parts IX and IXA of the Constitution of India. Part IX speaks about Panchayats and Part IXA speaks about Municipalities.

20. Kerala Panchayat Raj Act, 1994 deals with only Panchayats and whereas the provisions of the Local Fund Audit Act, 1994 covers all the local bodies, as defined in Section 2(f) of the Act. As per Section 22 of the Act, 1994, if any provision contained in any other law for the time being in force relating to the audit of accounts of a local authority or a local fund, included in the Schedule, is repugnant to the provisions of this Act, the latter shall prevail and the former be void to the extent of such repugnancy.

21. Writ has been entertained and on the question of limitation, a decision has been rendered, in the year 2009. Striking off the entire proceedings at this length of time, after eleven years, with a direction to the appellants to file an appeal to decide the limited challenge on limitation, would be a wasteful exercise, when the instant writ appeal is pending for nearly eleven years. That apart, what is decided in the writ appeal and relied on by the respondent is, whether a writ petition or an appeal under Section 215 of the Kerala Panchayat Raj Act, 1994 is maintainable and no law was seen decided on the aspect of limitation. On the aspect of precedents, we deem it fit to consider a few decisions:

(i) A Full Bench of the Gujarat High Court in State of Gujarat v. Gordhandas Keshavji Gandhi reported in AIR 1962 Guj. 128, has considered the question as to binding nature of judicial precedents. K. T. Desai, CJ. in his judgment, observed:

“Judicial precedents are divisible into two classes, those which are authoritative and those which are persuasive. An authoritative precedents is one which judges must follow whether they approve of it or not. It is binding upon them. A persuasive precedent is one which the Judges are under no obligation to follow, but which they will take into consideration and to which they will attach such weight as they consider proper. A persuasive precedent depends for its influence upon its own merits....A decision of a High Court Judge of a State is regarded as binding on all the subordinate courts in that State. A decision of a Division Bench of a High Court is regarded as binding on Judges of the same High Court sitting singly in the High Court. A decision of a Full Bench, i. e. a Bench of at least 3 Judges of a High Court is considered binding on all Division Benches of the same High Court.... A decision of a High Court Judge sitting singly is not legally binding on another Judge of the same High Court sitting singly. So also a decision of a Division Bench of a High Court is not legally binding on another Division Bench of the same High Court. A decision of a Full Bench is not legally binding on another Full Bench of the same Court. One Judge of a High Court has however, no right to overrule the decision of another Judge of the same High Court nor has one Division Bench of a High Court the legal right to overrule another decision of a Division Bench of the same High Court.... The rule that a court should follow the decision of another Court of co-ordinate jurisdiction is subject however to several exceptions which have been dealt with in Salmond's jurisprudence, 11th Edn. at page 199 to 217.

(1) A decision ceases to be binding if a statute or statutory rule inconsistent with it is subsequently enacted, or if it is reversed or overruled by a higher court.

(2) A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute.

(3) A precedent loses its binding force if court that decided it overlooked an inconsistent decision of higher court.

(4) xx xx xx xx xx

(5) Precedents sub silentio are not regarded as authoritative. A decision passed sub silentio when the particular point of law involved in the decision is not perceived by the Court or present to its mind.”

(ii) In Union of India v. Dhanwanti Devi, reported in (1996) 6 SCC 44, the Hon'ble Supreme Court has explained, what constitutes a precedent, as follows:-

"Before adverting to and considering whether solatium and interest would be payable under the Act, at the outset, we will dispose of the objection raised by Shri Vaidyanathan that Union of India v. Hari Krishan Khosla reported in 1993 Supplement (2) SCC 149, is not a binding precedent nor does it operate as ratio decidendi to be followed as a precedent and is per se per incuriam. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi According to the well-settled theory of precedents, every decision contains three basic postulates,- (i) findings of material facts, direct and inferential. A inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi. ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.

Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges arc to employ an intelligent technique in the use of precedents. “

(iii) In State of Orissa v. Sudhansu Sekar Misra, reported in AIR 1968 SC 647, the Hon'ble Supreme Court explained as to when a decision can be taken as a precedent, as follows:-

“A decision is only an authority for what it actually decides. What is of the essence of a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic, this is what Earl of Halsbury LC said in Quinn v. Leathem, reported in 901 AC 495.

“Now before discussing the case of Allen vs. Flood, reported in 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.”

It is not profitable task to extract a sentence here and there from a judgment and to build upon it.”

22. Question as to whether the Kerala Panchayat Raj Act, 1994 is repugnant to the Local Fund Audit Act, 1994 has been considered in Moni Achari v. Director, Local Fund Audit [2012 (1) KLT 325], wherein this Court held thus:

“19. A question would arise whether sub-section (13) of Section 215 of the Kerala Panchayat Raj Act is repugnant to the Kerala Local Fund Audit Act. I am of the view that the repugnancy as provided in Section 22 of the Kerala Local Fund Audit Act does not arise in this case, since the repugnancy contemplated under Section 22 is only 'relating to the audit of accounts'. It does not relate to the provision for an appeal from the decision of the District Court. The Kerala Local Fund Audit Act does not provide for an appeal to the High Court against the decision of the District Court, while the Kerala Panchayat Raj Act provides for an appeal to the High Court. That does not constitute a repugnancy within the meaning of Section 22 of the Local Fund Audit Act. Persons who are governed by the Kerala Panchayat Raj Act would have a further right to file an appeal challenging the decision of the District Court. As stated above, the Kerala Local Fund Audit Act not only applies to the Panchayats but it applies to several other institutions and funds as well. In respect of those cases coming under the Kerala Panchayat Raj Act, subsection (13) of Section 215 of the Kerala Panchayat Raj Act would apply and the person concerned would have a right to challenge the decision of the District Court in an appeal before the High Court. In respect of persons who are not governed by the Kerala Panchayat Raj Act or any other statute which specifically provides for an appeal to the High Court, the Kerala Local Fund Audit Act would apply and they would have no right to file an appeal against the decision of the District Court. They would have only the right to challenge the decision of the District Court in any other manner under law, other than by filing an appeal before the High Court.

20. Two enactments may be inconsistent to certain extent. However, it may be that obedience to each of them may be possible without disobeying the other. Statutes not only impose duties, but they may confer rights also. If a right conferred under one statute is taken away by the other statute, it can be said that there is inconsistency. If the rights conferred under two different statutes could co-exist, there would be no repugnancy. If one of the statutes provides for certain additional rights, it cannot be said that the said statute is repugnant to the other statute which does not confer any right. It cannot be said that S.215 of the Kerala Panchayat Raj Act is a wholly incompatible with the provisions of the Kerala Local Fund Audit Act. When a question of repugnancy arises, every effort should be made to reconcile the two enactments and to construe them in such a way so as to avoid the Acts being repugnant to each other.

21. Applying these principles and taking into account the provisions of the two Acts as aforesaid, it can be seen that sub-s.(13) of S.215 of the Kerala Panchayat Raj Act is not repugnant to the provisions of the Kerala Local Fund Audit Act and particularly S.16 of the said Act.”

23. Whether Kerala Local Fund Audit Act, 1994, is a special law and the Kerala Panchayat Raj Act, 1994, is a general law, it is worthwhile to consider the principles laid down in Life Insurance Corporation of India v. D.J. Bahadur and Others [AIR 1980 SC 2181], wherein the Hon'ble Apex Court considered the question as to which of the two laws i.e. the Industrial Disputes Act, 1947 (the ID Act) and the Life Insurance Corporation Act, 1956 (the LIC Act), was a special law. Having regard to the doctrine of generalia specialibus non derogant (general provisions will not abrogate special provisions), it was submitted that an employee of the LIC cannot invoke the provisions of the ID Act in his complaint, and the matter would have to be decided, in accordance with the LIC Act. The Court observed that the LIC Act was “special” as regards nationalisation of the life insurance business. But however, the disputes between employer and employee had to be dealt with under the ID Act which was a special law for resolving such disputes and if a dispute arose between employer and employee in the Life Insurance Corporation, the LIC Act must be treated as "general law" and the ID Act should be treated as "special law." The Court thus observed:--

"In determining whether a statute is a special or a general one, the focus must be on the principal subject matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. " (p. 11 27) (of SCR): (at p. 2200 of AIR).”

24. There is a specific provision - Section 22, in the Local Fund Audit Act, 1994. On the aspect of overriding effect on other enactment, let us consider a few more decisions.

(i) In Shri Ram Narain v. The Simla Banking and Industrial Co. Ltd., (AIR 1956 SC 614), the Hon'ble Supreme Court was considering the provisions contained in the Banking Companies Act, 1949 and the Displaced Persons (Debts Adjustment) Act, 1951. Both the enactments contained provisions giving overriding effect to the provisions of the enactment over any other law. This Court observed as follows:

"Each enactment being a Special Act, the ordinary principle that a special law overrides a general law does not afford any clear solution in this case."

"It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein." (p. 615) (of SCR): (at p. 622 of AIR)"

(ii) In Municipal Council, Palai v. T. J. Joseph, [AIR 1963 SC 1561], the Hon'ble Apex Court observed thus:

"There is a presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter and therefore, when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation."

(iii) In Union of India (UOI) and Ors. v. G. M. Kokil and Ors. (AIR 1984 SC 1022), the Hon'ble Apex Court observed as under:

"It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions."

(iv) In KSL & Industries Ltd. v. Arihant Threads Ltd. [(2015) 1 SCC 166], the Hon'ble Apex Court held as under:

“12. As stated earlier, the matter was earlier heard by a two Judge Bench of this Court. One of the learned Judges, Thakker, J. held that the provisions of RDDB Act should be given priority and primacy over SICA by virtue of S.34 of the RDDB Act as it is a subsequent enactment. Therefore it may be presumed even in the absence of any specific provision, that Parliament was aware of all the Statutes enacted prior thereto; that the non - obstante clause had been inserted to ensure expeditious adjudication and recovery of debts due to banks and financial institutions. Thakker, J. also held that in view of sub-section (2) of S.34 of the RDDB Act, which provides that the provisions of the Act are "in addition to and not in derogation of" inter alia SICA, which is an additional factor why the RDDB Act shall prevail. Kabir, J. as His Lordship then was, held that the non - obstante clause in S.34(1) contains an exception, to be found in sub-section (2). Subsection (2) provides that the Act shall be in addition to and not in derogation of inter alia the SICA. Further, that the overriding effect of RDDB Act would have an overriding effect over other enactments but supplemental to the provisions of SICA, and therefore, the provisions of SICA would prevail over the provisions of the RDDB Act.

…............

…..…The term "in derogation of" means "in abrogation or repeal of." The Black's Law Dictionary sets forth the following meaning for "derogation":

"The partial repeal or abrogation of a law by a later act that limits its scope or impairs its utility and force."

It is clear that sub-section (1) contains a non - obstante clause, which gives the overriding effect to the RDDB Act. Sub-section (2) acts in the nature of an exception to such an overriding effect. It states that this overriding effect is in relation to certain laws and that the RDDB Act shall be in addition to and not in abrogation of, such laws. The SICA is undoubtedly one such law.”

25. What is the effect of a subsequent enactment on the same subject, has been considered in Director of Local Fund Audit and Another v. Usha Rajathilakam and Another reported in 2018 (5) KHC 7

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40, wherein a learned Single Judge of this Court, taking note of the subject promulgation of the Local Fund Audit Act, 1994, which came into force on 15.01.1996, much after the enactment of the Kerala Panchayat Raj Act, 1994, at paragraphs 6 to 8 held thus: “6. Per contra, the petitioner's counsel has argued that S.295(9) of the Municipality Act has no application in this case because the Kerala Local Fund Audit Act was enacted in the year 1994. But the Kerala Municipality Act came into force in the year 1960. The present Kerala Municipality Act, 1994 has came into force to replace the present enactments relating to Municipalities and Municipal Corporations by a comprehensive enactment in line with the Constitution (Seventy Fourth) Amendment Act. The Act came into force on 29/03/1994. The Kerala Local Fund Audit Act was published on 11/05/1994 and the said Act came into force on 15/01/1996 i.e. after the enactment of the Kerala Municipality Act. 7. Now the only question to be considered is whether the bar of limitation, as provided under S.295(9) of the Kerala Municipality Act applies to Ext.P2(a) Surcharge Certificate. The Kerala Local Fund Audit Act is a special enactment, that too a later enactment. It applies as far as the audit is concerned and surcharge notice as well as the Surcharge Certificate has been issued under the provisions of the Act. The Kerala Local Fund Audit Act, 1994 was enacted to provide for and to regulate the audit of the local funds under the management or control of certain local authorities in the State of Kerala. The Kerala Local Fund Audit Act does not contain any provision or limitation for issuing Surcharge Certificate. 8. S.22 of the Kerala Local Fund Audit Act, 1994 reads thus: "If any provision contained in any other law for the time being in force relating to the audit of accounts of a local authority or a local fund included in the Schedule is repugnant to the provisions of this Act, the latter shall prevail and the former be void to the extent of such repugnancy." So, as per S.22 of the Kerala Local Fund Audit Act, 1994 it overrides all the other Laws, which are repugnant to the provisions of the said Act.” 26. When provisions are made in the Kerala Local Fund Audit Act, 1994, enabling auditing of a local body and consequential action under Sections 16, 19 and 27 of the said Act, the same cannot be set at naught and, therefore, the contention of Mr. Aravinda Kumar Babu, learned Senior Government Pleader, that Local Fund Audit Act is a special enactment, which would prevail over the Kerala Panchayat Raj Act, 1994, merits acceptance. Our conclusion is also fortified by the overriding effect of the Local Fund Audit Act, 1994, provided in Section 22, which, at the risk of repetition, is reproduced: “22. Act to override other enactment.- If any provision contained in any other law for the time being in force relating to the audit of accounts of a local authority or a local fund included in the Schedule is repugnant to the provisions of this Act, the latter shall prevail and the former be void to the extent of such repugnancy.” 27. Kerala Panchayat Act, 1994 came into effect on 23.11.1995, whereas Local Fund Audit Act, 1994 has come into effect on 15.01.1996. The former does not have a provision, on the overriding effect on any existing law. Legislative intent is clear. 28. We have gone through the judgment in Moni Achari's case (cited supra) and approve the same. In view of the above discussion and decisions, we hold that the Kerala Local Fund Audit Act, 1994 is a special enactment covering all the local bodies and the same will prevail over Kerala Panchayat Raj Act, 1994. No period of limitation is provided in the Local Fund Audit Act for issuing a surcharge certificate. Material on record further discloses that all the proceedings initiated are, in accordance with the provisions of the Local Fund Audit Act, 1994, and not as per the provisions of the Kerala Panchayat Raj Act, 1994. The proceedings initiated against by the appellants cannot be said to be barred by limitation. For the reasons stated above, impugned judgment is set aside. Appellants are at liberty to proceed in accordance with law.
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