District Collector vs Registrar, Kerala Lokayukta

S. Manikumar, CJ

Instant writ petition is filed by the District Collector and Tahsildar (LR), Thiruvananthapuram, challenging the order passed by the Kerala Lok Ayukta in Complaint No.958/13-D dated 10.01.2019, by which, the Competent Authority was directed to issue appropriate directions to the Tahsildar (LR), Varkala, to assign fresh re-survey number to the residential property of late complainant, the legal representatives of whom are additional complaints 2 to 4, the extent of which is already ascertained by measurement, by the Tahsildar (LR), Varkala, and identified also, as having proper boundary walls on all its sides.

It was also directed to cause mutation of those properties being effected in the joint names of additional complaints 2 to 4, who are legal heirs of the deceased 1st complainant, and receive tax from them for those properties, for the period after 2003 upto which, tax was already received, and redress the grievance of the complainants.

It was further directed that the competent authority is recommended to take appropriate action against one Mr. M. P. Premlal, Tahsildar (LR), Varkala, for the malpractice, malevolence and mis-deeds perpetrated by him, with a view to harass the complainants whether with or without any ultimate motives and in giving false evidence to substantiate his stand. The Lok Ayukta also observed in the said order that retaining such persons in service is a menace to the Society and a loss to the public exchequer.

The relief sought for in the writ petition is as under:

“Call for the records leading to the issue of Exhibit-P1 order dated 10.01.2019 in complaint No.958/13-D of the Kerala Lok Ayukta, and to quash the same by issuing a writ of certiorari or any other writ, order or direction.

Respondents 3 to 5 herein are the legal heirs of one Smt. P. Usha, the original complainant before the Kerala Lok Ayukta.

Facts in nutshell are; in Exhibit-P2 complaint, the complainant has alleged maladministration by the officials in connection with the rectification of mistakes that occurred in the survey records in respect of Old Sy. Nos. 2684/A/2, 2686/A/2 and 2684/A of Navayikulam village. The complainant had claimed absolute ownership, possession, and enjoyment of 1 acre of land in the aforementioned survey numbers, which she had obtained, by virtue of a gift deed dated 26.01.1978 executed by her mother and was paying land tax thereof, from 1978 till 2003 after effecting mutation. According to the complainant, the boundaries of the property have been demarcated by mount and boundary stones constructed several years back.

It is the further case of the complainant before the Lok Ayukta that the survey authorities recorded an extent of 34 3/4 cents illlegally and deliberately, out of the total 1 acre of land, as puramboke by demarcating it in three survey records, without issuing any notice or informing the complainant, the act of which is a clear misuse of official power. Therefore, the complainant sought for prayers to the effect of directing appropriate action to get rectifying the defects in the resurvey records of the complainant.

In fact, in Exhibit-P2 complaint itself, it was stated by the complainant that upon a notification issued by the survey authorities, as regards the final resurvey records of Navayikulam Village, which was published on 17.04.2004, an Adalath was conducted to redress the complaints of the public and to rectify the mistakes in the resurvey records. The complainant had appeared and placed her grievance before the Adalath. It is also stated that on an application made, Surveyor had visited the spot and after comparing the survey records, informed that the property has only 30.20 Ares (74.5 cents) and the balance is shown as puramboke in the records. According to the complainant, the said findings are made, without verifying the old survey records and the findings were not reported to the higher authorities as correction should be done by an officer not below the rank of Assistant Director of Survey. Though several representations were made to the authorities under the Revenue, as well as the Survey Department, no action was taken. Hence, she preferred the complaint before the Lok Ayukta.

During the course of the proceedings, all the respondents entered appearance and filed written statement, refuting the allegations made in Exhibit-P2 complainant.

Petitioners have further stated that upon evaluating the evidence on record and perusing the documents, the 1st respondent Kerala Lok Ayukta disposed of Exhibit-P2 complaint vide order dated 10.01.2019, with certain directions as stated supra. Being aggrieved, the instant writ petition is filed for the relief stated supra.

On the above pleadings and in support of the relief sought, petitioners herein have raised the following grounds:

A) The Lok Ayukta has no jurisdiction or authority to entertain Exhibit-P2 complaint and to proceed with the same. Since the Lok Ayukta han accepted the complaint, without jurisdiction, as it is not maintainable, the Exhibit-P1 order is liable to be set aside and further proceedings are to be quashed.

B) Going by the relevant provisions of Kerala Lok Ayukta Act, 1999, it is clear that the Lok Ayukta has no authority to entertain a complaint like Ext.P2. The complaint was filed u/s. 7(2) of the Kerala Lok Ayukta Act, 1999, which provides an investigation by Upa Lok Ayukta into any action which is taken by, or with the general or specific approval of, any public servant not being the Chief Minister or a Minister or a member of the State Legislature or a Secretary or an office bearer of a political party at State level or an officer referred to in sub clause (3) of Clause (d) of Section 2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa Lok Ayukta, the subject of a grievance or an allegation. In the case in hand the complaint was considered and proceeded by the Lok Ayukta and an order was passed and signed by the Lok Ayukta as well as Upa Lok Ayukta. Since the said order was passed by the Lok ayukta and Upa Lok Ayukta commonly which is liable to be quashed being contrary to the powers conferred as per Section 7(2) of the Act, 1999.

C) Going by the averments in Exhibit-P2 complaint and taking into consideration of the evidence on record, there is not even an iota of evidence to prove the allegations, which are defined as per clauses 1 to 3 of Section 2(b). None of the ingredients attracted to proceed with the complaint, and therefore, the Ext.P1 order issued is unsustainable and, therefore, liable to be interfered by this Hon'ble Court, by quashing the same. It is also to be noted that there is no willful failure or omission to act, in order to constitute the definition of the word, 'action', as defined in Section 2(a), which warrants interference of an investigation by the Lok Ayukta.

D) The averments made in Ext.P2 complaint are matters not subject to investigation by the Lok Ayukta or Upa Lok Ayukta, since they are barred by Section 8(2)(c). In the case on hand, the implementation and finalization of resurvey were done on 17.04.2004, in Navayikulam village, and consequent to the resurvey Adalth was held by the Superintendent of Resurvey, Attingal, where the case of the complainant was considered and she was informed by letter dated 20.7.2009 that the puramboke land in resurvey cannot be mutated in her name as the complaint has not established her title to the property, and therefore, she is not entitled to get any relief at all, as evident from Exhibit P3. That apart, vide another letter No. J1/0017/2008, the complainant was informed that she is not entitled to get any relief. The said letter was issued on the basis of the detailed report submitted to the District Collector and after verifying the said report, the District Collector vide Ext.P4 has issued a letter.

E) Hence, the grievance raised by the complainant in her complaint was considered at an earlier point of time after implementation and finalisation of the resurvey conducted and the present complaint was made before the Lok Ayukta after the expiry of 5 years from the date on which the action complained against is alleged to have taken place and such complaint, after the said period, cannot be entertained, in view of the specific bar, as contemplated under clause (c) of Section 8(2). It is not evident from any of the records that no petition or an affidavit was filed seeking condonation of delay in entertaining the complaint after the expiry of the said period.

F) The Lok Ayukta has no power or authority to adjudicate the disputes regarding immovable property and to decide who has title and possession over it nor do the Lok Ayukta have any power to decide as to who is entitled to pay land tax and their respective extent.

G) Detailed guidelines are given vide G.O.(MS) No. 200/10, dated 31.05.2010 and G.O. (MS) No. 303/17 dated 26.08.13 for the exercise of powers in determining duties for strengthening the resurvey and resurvey records. True copies of the said Government orders are marked as Exhibits P5 and P6 respectively for perusal. As per Ext.P5, alternative remedies are made available for the rectification of resurvey records, after completion of resurvey, which were not exhausted by the complainant. In the case on hand, the complaint of the petitioner is not a resurvey complaint, but against showing the land as puramboke land. Only after obtaining a patta, on the basis of possession, necessary changes could be effected in Basic Tax Register. To that extent also, the direction given by vide Ext.P1 order is not sustainable.

H) Protection of puramboke land is the primary duty of each employees of Revenue Department. It may be seen that the impugned order of the Lok Ayukta is made without proper examination of facts. The allegation made in Ext-P2 complaint before the Kerala Lok Ayukta was with regard to maladministration by the respondents. The Kerala Lok Ayukta under the grab of deciding a complaint, maintained on the allegation of maladministration, virtually has not decided that allegation and decided the issue of possession and title of immovable property, that too, without party array. As evident from the records, Lok Ayukta has exceeded its jurisdiction and usurped the powers of the civil Court and statutory authorities under Kerala Land Tax Act, Transfer of Registry Rules, Survey and Boundaries Act.

J) It is submitted that the complainant herself had admitted that the Surveyor had inspected the property in question, upon receipt of complaint filed by her. On examination and after verifying the records of the title documents No.110/1978 of SRO, Navayikulam, it was found that the complainant got a total extent of 0.4046 hectors of land and was paying land tax, after effecting mutation in respect of the 1 acre of land, upto the implementation of the resurvey records, in Navaikulam, in the year 2004. As per the resurvey records, the complainant's property belongs to Re-sy. Nos. 432/11, 432/6 of Block No. 22 of Navayikulam village. Out of the said extent 0.3020 hectares of land comprised in Re.sy. No.432/11, was already changed in the name of the complainant as per thandaper No. 6102. The remaining portion of the land comprised in 432/6 is a puramboke land as per the BTR. Though the complainant had remitted tax before resurvey for the land in old Sy. No.2686/A, it is also a puramboke land, as per old survey and resurvey records and the complainant had not produced the old documents related to this. While examining the title deed No.719/1116 of 1941 related to the land, it is clearly mentioned as puthuval (Government land) and to show that, a detailed report was submitted before the Lok Ayukta on 01.12.2018, which was not even considered and appreciated while passing Ext.P1 order.

Based on the above, Mr. K.P.Harish, learned Senior Government for the petitioners, made submissions.

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

Relevant portion of Exhibit-P1 impugned order, is extracted hereunder:

“14. Tahsildar (LR) Varkala examined as RW3 stated that he also in giving evidence for himself and for the first respondent. Evidence of RW3 is to the effect that the original late 1st complainant had title to 65 cents of property in Sy. No. 2684/A/2: 32 cents of property in Sy. No.2686/A/2 and 3 cents of property in Sy. No. 2684/A totalling to 1 Are before resurvey; that she had got effected mutation and was paying tax but on resurvey, it has been reduced to 29 Ares and 54.8 sq.mtrs comprised in resurvey 432/11, but on preparation of basic tax register, the extent is 30 Ares and 20 sqr.mtrs but states that as against RS. No. 432/11 the old Survey Nos. shown are 2634/A2/A and 2678/A1-1/B and that those are not properties of the complainant as shown in the basic tax register prepared on the basis of resurvey. He also admitted that he is aware of the fact that 1 acre of land belonging to the complainant is in her residential occupation and with boundary walls around it and that the basic tax register prepared on the basis of co-relation statement is wrong and that the authority to rectify that mistake is vested in him. All the same he stated that he has not verified as to whether there is an area of 1 acre within the boundary walls of the residential garden of the complainant, that he is prepared to measure the extent and that, if he is convinced of the extent as being 1 Acre, as the officer vested with jurisdiction to correct the mistake, he will correct the mistake and he may be given two weeks time for the purpose. Examination of RW3 was stopped at that stage in view of his above submission and case is adjourned from 30.10.2018 to 22.11.2018 granting more than two weeks time to enable RW3/the additional 6 respondent to redress the grievance of the complainants.

The grievance was however not redressed and RW3 was examined further on 22.11.18 and his examination was continued and completed on 04.12.18. When examined on 22.11.18 RW3 deposed that the 1 acre of the property of the complainant is actually having that much extent and is having clear boundaries and is bounded on all sides by boundary walls. kayyala etc, but he could not redress the grievance of the complainant as the extent of registered holding was only 74% cents and the balance as per settlement register is puramboku land. All the same he admitted that as per Ext. P1 gift deed of 1978 the original complainant has obtained 65 cents in Sy. No. 2684/A/2, 32 cents in Sy. No. 2686/A/2 and 3 cents in Sy. No. 2684/A totalling to 1 acre and she got mutation effected thereof and thereafter she is in possession and was also paying tax for the said property; that before her, her mother Devaki was in possession and enjoyment, paying tax, effecting mutation in her name from 1958 onwards namely the date of Ext. P11 sale deed in her favour and that the executants of Ext. P11 was having title and possession and was paying tax for the property from 1116 ME onwards and that the documents of 1116 ME is in favour of the executants of Ext. P11 and he is possession of a copy of the document and is prepared to produce the same. Thus, even according to the admissions of RW3, the additional 6th respondent, the complainant and his predecessors were in actual physical possession and enjoyment of the entire 1 acre of property paying tax thereof for the last 78-79 years. The certified copy of document of 1116 ME is produced and got marked through RW3 by the complainant's counsel as Ext.P13. RW3 was specifically asked with reference to recitals in Ext.P13 that the properties were comprised in patta No 73 of Ottoor Pakuthi and patta no. 2373 Navayikulam Pakuthi and as to whether one item of property mentioned there in was not land assigned and mutated in the names of executants of the settlement deed of 1116 ME. When confronted with that situation RW3 answered that the then village officer has wrongly mutated it in their favour When his attention was invited to the recitals in Ext P13 regarding the Puthuval assignment obtained by the executants and asked how he could say that the village officer effected mutation by mistake, he stated that in the original settlement it is recorded as puramboku land. According to him the settlement was being prepared during the period from 1883 ME to 1912 ME. To the specific question put to him as to whether the original settlement was not being implemented in 1094 ME, he stated that he is not aware. Again when asked as to whether he can deny, if it is suggested to him that the property was assigned in between the period from 1094 ME and 1116 ME when Ext. P13 was executed, he pleaded ignorance but stated that he can deny as he has not seen records to that effect. It is worthy to note that the recitals in the document of 1116 ME, being an ancient document has to be accepted as true unless shown otherwise. To the question from court as to whether his predecessor in office would have effected mutation after seeing the record of assignment, he answered that it is usually so and has also admitted that after thus effecting mutation the property will cease to retain its character as puramboku Puthuval. He also admitted that consequent on resurvey, the character of property cannot change and cannot be changed. Obviously property once assigned cannot revert back as puramboku land. He also admitted that in the Taluk Office the original patta register is available, but that the same has not been produced and that if only that is verified, it can be seen if any extent in Sy. Nos. 2684/A. 2684/A/2 or 2686/A/2 is puramboku, but that he has not verified the said register. He further admitted that, only if the said register is verified, can it be ascertained, as to whether what is shown as puramboku in re-Sy is actually puramboku or not; that he is aware that in re- Sy several mistakes and irregularities are committed and that it was not proper on his part to have asserted without verifying the correctness that a portion of the property of the complainant is puramboku and that it is a fault on his part. He also admitted that in re-Sy, the properties comprised in old Sy Nos. co-related are not properties of the complainant with its old Sy. Nos. In relation to several Sy. Nos asked the corresponding re-Sy. No. is not shown at all in the co-relation statement.

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The above observations show that there is culpable irregularities committed in a callus manner by the officials who conducted re-Sy and that the authorities who are now dealing with rectification of such mistakes and Irregularities are unconcerned about the sad plight of the real owners in possession and enjoyment and are harassing them probably with ulterior motives and however purposefully and are giving false evidence also in an irresponsible manner with a view to see that the grievance of the land owners in possession and enjoyment is not redressed. This case brings to light a typical example where no corresponding re-Sy No. is assigned to the old Sy Nos of the property of the complainant and several of the old survey numbers are left out without assigning any corresponding re-Sy No and still the officer competent and empowered to correct the mistake namely Tahsildar (LR). Varkala who gave evidence as RW3 in, asserting that the property is puramboku land when it is evidenced from the recitals of Ext. P13 of 1116 ME itself that the property dealt with therein and assigned thereafter under Ext. P11 in 1958 and under Ext.P1 in 1978 is land got assigned and mutation also is effected to the various assignees under the documents.

In the circumstance, I recommend to the Competent Authority to give appropriate directions to the Tahsildar (LR), Varkala to assign fresh re-Sy No. to the residential property of late Complainant, the legal representatives of whom are additional complainants 2 to 4, the extent of which is already ascertained by measurement by RW3 the Tahsildar (LR), Varkala and identified also as having proper boundary walls on all its sides and hearing old Sy Nos. 2684/A/2 (65 cents) 2684/A (3 cents) and 2686/A/2, (32 cents) of Navayikulam Village and also to the property of 6 3/4 cents covered by Ext. P6 Will in favour of the original complainant and comprised in Sy. 2680/2/11; cause mutation of all those properties being effected in the joint names of Additional complainants 2 to 4 who are LRS of deceased 1" complainant and receive from them tax for those properties for the period after the year 2003 upto which tax was already received and redress the grievance of the complainants. The tax received for a lessor extent of property with re-Sy No. 432/11 under patta No. 6102 is admittedly not for any of those properties but for property belonging to someone else, though mutated wrongly in the name of late Complainant.

If deemed fit, the Competent Authority is recommended to take appropriate action against RW3 Sri. M.P. Premlal. Tahsildar (LR), Varkala, for the malpractice, malevolence and mis deeds perpetrated by him with a view to harass the complainants whether with or without any ultimate motives and in giving false evidence to substantiate his stand as discussed in the preceding paragraphs as we are of the view that retaining such persons in service is a menace to the Society and lost to public exchequer.

Forward copy of this order to the Additional Chief Secretary/Principal Secretary in the Revenue Department, Government Secretariat, Thiruvananthapuram, in his name cover, to avoid further delay being caused at the hands of the subordinate officials 27.02.2019. Post for Action Taken Report on 27.02.2019.”

Kerala Lok Ayukta Act, 1999 is an Act to make provision for the appointment and functions of certain authorities for making enquiries into any action (including any omission and commission in connection with or arising out of such action) relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution of India taken by or on behalf of the Government of Kerala or certain public servants in the State of Kerala in certain cases and for matters connected therewith or ancillary thereto.

Section 2(a) of the Lok Ayukta Act, 1999 defines “action” to mean any action, including administrative action, taken by way of decision, recommendation or finding, or in any other manner, and includes willful failure or omission to act and all other expressions relating to such action shall be construed accordingly.

Section 2(b) of the Act, 1999 defines “allegation”, in relation to a public servant, to mean 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;”

Section 2(d) of the Act, 1999 defines “competent authority”, in relation to a public servant to mean,-

“(i) in the case of the Chief Minister or a Member of the State Legislature, or an office bearer of a political party, at the State level, the Governor acting in his discretion;

(ii) in the case of a Minister or Secretary, the Chief Minister;

(iii) in the case of an officer of the All India Services, employed in connection with the affairs of the State, the Minister concerned;

(iv) in the case of a Government servant, other than a secretary, the Government of Kerala;

(v) in the case of any other public servant, such authority, as may be prescribed;”

Section 7(2) of the Act, 1999 speaks about matters which may be investigated by Lok Ayukta and Upa Lok Ayuktas, and it reads as under:

“(1) Subject to the provisions of this Act, the Lok Ayukta and one of the Upa-Lok Ayuktas, as may be nominated by the Lok Ayukta for the purpose, may investigate any action which is taken by or with the general or specific approval of-

(i) the Chief Minister; or

(ii) a Minister; or

(iii) a Member of the State Legislature; or

(iv) a Secretary; or

(v) an office bearer of a political party at the State Level; or

(vi) an officer referred to in sub-clause (iii) of clause (d) of section 2,

in any case where a complaint involving a grievance or an allegation is made in respect of such action and where there is difference of opinion between the Lok Ayukta and the Upa-Lok Ayukta as so nominated, the action shall be investigated by the Lok Ayukta and both the Upa-Lok Ayuktas together and the decision of the majority therein shall prevail.

(2) Subject to the provisions of this Act, an Upa- Lok Ayukta may investigate any action which is taken by, or with the general or specific approval of, any public servant not being the Chief Minister or a Minister or a Member of the State Legislature or a Secretary or an office bearer of a political party at State Level or an officer referred to in sub-clause (iii) of clause (d) of section 2, in any case where a complaint involving a grievance or an allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa-Lok-Ayukta, the subject of a grievance or an allegation.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the Lok Ayukta or an Upa-Lok Ayukta may investigate any action taken by or with the general or specific approval of a public servant, if it is referred to him by the Government.

(4) The Lok Ayukta may, by general or special order ,assign to each of the Upa-Lok Ayuktas the matters which may be investigated by them under this Act.

(5) Notwithstanding anything contained in sub-sections (1) to (4), when an Upa-Lok Ayukta is unable to discharge his functions owing to absence, illness or any other cause, his functions may be discharged by the other Upa-Lok Ayukta, and in the absence of both, by the Lok Ayukta.

(6) Notwithstanding anything contained in any other provision of this Act, no investigation made by an Upa-Lok Ayukta under this Act and no action taken or things done by him in respect of such investigation shall be open to question on the ground only that such investigation relates to a matter which is not assigned to him by such order.

(7) For the removal of doubts, it is hereby clarified that the term ‘Lok Ayukta’ wherever it is used in this Act, in relation to any of the persons referred to in sub-section (1), shall mean the Lok Ayukta and, as the case may be, one or both of the Upa-Lok Ayuktas as provided in that sub-section.”

Section 8 of the Lok Ayukta Act, 1999 speaks about matters not subject to investigation and it reads as under:

“8. Matters not subject to investigation.-

(1) Except as hereinafter provided, the Lok Ayukta or an Upa-Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule.

(2) The Lok Ayukta or an Upa-Lok Ayukta shall not investigate,-

(a) any action in respect of which a formal and public inquiry has been ordered with the prior concurrence of the Lok Ayukta or an Upa-Lok Ayukta, as the case may be;

(b) any action in respect of a matter which has been referred to inquiry under the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952);

(c) any complaint involving an allegation made after the expiry of five years from the date on which the action complained against is alleged to have taken place:

Provided that a complaint referred to in clause(c) may be entertained by the Lok Ayukta or an Upa-Lok Ayukta, as the case may be, after the expiry of the period referred to in the said clause, if the complainant satisfies that he had sufficient cause for not making the complaint within the period specified in that clause.

(3) In the case of any complaint involving a grievance, nothing in this Act shall be construed as empowering the Lok Ayukta or an Upa-Lok Ayukta to question any administrative action involving the exercise of a discretion, except where he is satisfied that the elements involved in the exercise of the discretion are absent to such an extent that the discretion can prima facie be regarded as having been improperly exercised.”

Section 9 of the Act, 1999 deals with provisions relating to complaints and investigation, and the same reads as under:

“9. Provisions relating to complaints and investigations.- (1) Subject to the provisions of this Act, any person may make a complaint under this Act to the Lok Ayukta or an Upa-Lok Ayukta.

(2) Every complaint shall be made in such form and in such manner, as may be prescribed, and shall be supported by an affidavit.

(3) Where the Lok Ayukta or an Upa-Lok Ayukta proposes, after making such preliminary inquiry as he deems fit, to conduct any investigation under this Act, he-

(a) shall forward a copy of the complaint to the public servant and the competent authority concerned;

(b) shall afford to such public servant, an opportunity to offer his comments on such complaint;

(c) may make such orders as to the safe custody of documents relevant to the investigation, as he deems fit.

(4) Save as aforesaid, the procedure for conducting any such investigation shall be such, and may be held, either in public or in camera,as the Lok Ayukta or the Upa-Lok Ayukta, as the case may be considers appropriate in the circumstances of the case.

(5) The Lok Ayukta or an Upa-Lok Ayukta may, in his discretion, refuse to investigate or discontinue investigation of, any complaint involving a grievance or an allegation, if in his opinion-

(a) the complaint is frivolous or vexatious or is not made in good faith;

(b) there are no sufficient grounds for investigating or, as the case may be, for continuing the investigation; or

(c) other remedies are available to the complainant and in the circumstances of the case it would be more proper for the complainant to avail of such remedies.

(6) In any case where the Lok Ayukta or an Upa-Lok Ayukta decides not to entertain a complaint or to discontinue any investigation in respect of a complaint he shall record his reasons therefore and communicate the same to the complainant and the public servant concerned.

(7) The conduct of an investigation under this Act against a public servant in respect of any action shall not affect such action or any power or duty of any other public servant to take further action with respect to any matter subject to investigation.

(8) In every proceeding before the Lok Ayukta or an Upa-Lok Ayyukta under this Act, the State shall be made a party thereto and the Government shall appoint a Special Attorney and one or more senior Government Pleaders to represent the Government before the Lok Ayukta or an Upa-Lok Ayukta, as the case may be on the terms and conditions prescribed:

Provided that it shall not be necessary that state should be made a party in cases where Government interests are not involved.”

Kerala Land Tax Act, 1961 is an Act to provide for the levy of basic tax on lands in the State of Kerala. Section 11 therein speaks about the power of revision by Board of Revenue and it reads as under:

“(i) The Board of Revenue may, at any time, of its own motion or within thirty days from the date of the order of the appellate authority on the application of any party, call for and examine the record of any proceeding pending before or disposed of by the appellate authority and may pass such orders as it deems fit;

Provided that no order enhancing the rate of basic tax or the amount of provisional assessment shall be passed without notice to the party who may be affected by the order;

Provided further that no order passed on the basis of a reference under Section 10 and to the extent covered by the answer to such reference shall be subjected to revision by the Board of Revenue.

(2) Where the amount of basic tax or tax under the provisional assessment paid is in excess of the amount due under the order in revision, such excess shall be refunded.”

Section 18 of the Act speaks about rectification of mistakes and it states that at any time within four years from the date of any order passed by it the prescribed authority or the appellate authority or the revisional authority may, on its own motion, rectify any mistake apparent from the record and shall, within a like period, rectify any such mistake which has been brought to the notice of the prescribed authority or the appellate authority or the revisional authority, as the case may be, by a land-holder or other person liable to pay tax. Provided that no such rectification shall be made which has the effect of enhancing the tax payable unless the landholder and any other person liable to pay tax have been given a reasonable opportunity of being heard in the matter.

Kerala Survey and Boundaries Act, 1961 is an Act to consolidate, amend and unify the law relating to the survey of lands and settlement of boundary disputes in the State of Kerala. Section 13A of the Act speaks about power of revision by the Collector and it reads as under:

“13A. Power of revision by the Collector.—

(1) Notwithstanding anything contained in Section 13, the Collector may on an application from any person from any person or any authority, examine the record in respect of the determination of any boundary which has been completed and the fact of such completion has been notified under Section 13, to satisfy himself as to the legality of the determination of such boundary, and if, in any case, the Collector is satisfied that the determination of such boundary should be modified or revised, on the ground of any discrepancy, inaccuracy, defect or mistake of any kind crept in such determination, he may pass orders accordingly;

Provided that the Collector shall not pass any order affecting any party unless such party has had an opportunity of making a representation.

(2) Where determination of any boundary is modified or revised by an order under sub-section (1), the Survey Officer shall publish the fact of such modification or revision, as the case may be, in the Gazette and also in the notice board of the Village Office to which the survey relates.”

That  apart,  in  Sudha  Devi  K.  v.  District  Collector, Thiruvananthapuram and Others [2017 (2) KLT 1127], a Hon'ble Division Bench of this Court observed that Lok Ayukta and Upa Lok Ayukta are not appellate or supervisory authorities over other competent forums created under different statutes. It was further observed that when a matter relates to a civil dispute, pending before a Court of competent jurisdiction, Upa Lok Ayukta cannot entertain a complaint. Relevant paragraph of the said decision reads as under:

“7. The matter relates to a civil dispute which is pending before a Court of competent jurisdiction where both the parties have appeared. The nature of dispute is such that it has to be adjudicated by the Civil Court. Thus the matter being substantially sub judice before the Civil Court, in our opinion, the Upa Lok Ayukta ought not to have entertained the complaint at all and left the parties to avail all remedies as per common civil law. Even if both the parties moved the Upa Lok Ayukta, it is well established that consent cannot confer jurisdiction, where there was inherent lack of jurisdiction on the part of Upa Lok Ayukta to entertain such a complaint. Even if both the parties agreed, jurisdiction could not be conferred where the Statute does not provide for it. We would like to put in a word of caution here as well that wherever disputes are taken before appropriate designated forums and are pending or have been resolved, in the manner as provided by law, Lok Ayukta or Upa Lok Ayukta would not have jurisdiction in the matter. 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 provide 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 and there is nothing in the Lok Ayukta Act which would override those procedures or forums giving Lok Ayukta the right to override orders statutorily passed by statutory authorities. This would include Civil Court of competent jurisdiction. Thus, in our opinion, the complaint ought not to have been entertained by the Lok Ayukta. That being the position, the proceedings before the Lok Ayukta were wholly without jurisdiction and consequentially the orders passed therein cannot be held to be legal, valid and binding.”

On going through the complaint, preferred before the Lok Ayukta, we find that the complainants had not availed the statutory remedies, in the matter of transfer of registry and rectification of mistakes in the survey records. As rightly pointed out by the learned Senior Government Pleader, the complainants had a remedy under the Kerala Land Tax Act, 1961, and under the Kerala Survey and Boundaries Act, 1961, in respect of the reliefs sought for before the Lok Ayukta.

When the Statute provides for hierarchy of remedies, in the matter of rectification of mistakes in the re-survey records, the complainants should have resorted to those remedies under the Statutes. The complainants cannot bypass those procedures and approach the Lok Ayukta. The Lok Ayukta is the creation of the Statute and has no inherent jurisdiction and cannot assume any jurisdiction not conferred by the Act. The directions in Exhibit-P1 order has been passed in far excess of its jurisdiction. Exhibit-P2 complaint does not relate to any allegation or grievance in consequence of maladministration and Exhibit-P2 complaint is not maintainable before the Lok Ayukta.

In the light of the above discussion and decision, Exhibit-P1 order of the Lok Ayukta in Complaint No.958/2013 D dated 10.01.2019, is set aside, and the writ petition is allowed. However, it is made clear that it will be open for the respondents 2 to 5 to avail any other remedy, as may be available in law, for rectification of defects in the re-survey records.