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2012 DIGILAW 459 (KER)

O. Divya v. State of Kerala

2012-05-25

K.HARILAL, K.M.JOSEPH

body2012
Judgment:- K.M. Joseph, J. The writ petition and the first appeal are filed by the same person. The writ petition came to be filed first. The prayers in the writ petition are as follows: “i) Issue a writ of certiorari, quashing Ext.P12 to the extent it holds “it is for the Authority which intends to act upon compassionate ground to consider the same”, and “the Civil Court can enforce only individual civil rights: ii) Direct the 6th respondent to give the consent in terms of Clause 14 of G.O.(P) No.12/99/P&ARD dt. 24.05.1999, forthwith. iii) Alternatively, grant a declaration that the petitioner is not liable to furnish the consent from the 6th respondent for securing compassionate appointment in terms of Clause 14 of G.O.(P) No.12/99/P&ARD dated 24.05.1999; and direct the 4th respondent to waive the condition for furnishing the letter of consent from the 6th respondent for securing compassionate appointment in terms of the G.O. dt.24.05.1999, as prayed for in Ext.P7 representation and suggested by the 4th respondent in Ext.P8 letter, and as directed by the learned Subordinate Judge in Ext.P12 order.” 2. Subsequently, it appears that the petitioner in the writ petition has filed the appeal challenging Ext.P12 in the writ petition. Briefly put, the facts may be noticed. The petitioner/appellant is the daughter of one late Mr. Sathyakumar, who was employed as an Assistant Sub Inspector of Police. He died in harness on 20.4.2008. Sri. Sathyakumar and the mother of the petitioner/appellant got divorced as per the judgment of the Family Court, Trivandrum. Further the case of the petitioner is that the late Sathyakumar got married to 6th respondent in the writ petition, who is the respondent in the appeal hereinafter referred to as the respondent. It is not in dispute that the petitioner/appellant has filed O.S.No.163/2010 claiming partition before the Subordinate Judges Court, Nedumangad. The petitioner/appellant applied for compassionate appointment on 22.9.2008 vide Ext.P2 in the writ petition. It was returned vide Ext.P3 directing her to produce various documents including the consent of family members, as per the Heirship Certificate. The petitioner/appellant issued Ext.P4 notice requesting the 6th respondent to give consent. The petitioner/appellant sought information under the Right to Information Act. Ext.P5 and P5(a) are the copies of the reply given by the 4th respondent in the writ petition. The petitioner/appellant issued Ext.P4 notice requesting the 6th respondent to give consent. The petitioner/appellant sought information under the Right to Information Act. Ext.P5 and P5(a) are the copies of the reply given by the 4th respondent in the writ petition. It is inter alia stated that various retiral benefits, of which the petitioner has 2/3rd right allegedly excepting PF, which the deceased had received and the monthly family pension has been sanctioned. Thereafter the petitioner/appellant also made a representation as Ext.P7. Then the petitioner/appellant filed Ext.P10 I.A. before the Subordinate Judges Court in the partition suit for an interim mandatory injunction against the respondent compelling her to give consent to the compassionate appointment sought by the petitioner/appellant in terms of Clause 14(c) of G.O(P) No.12/99/P&ARD dated 24.5.2009. Ext.P12 in the writ petition purports to be the order passed by the learned Subordinate Judge, Nedumangad rejecting the application. It is the very same order which has been challenged in the appeal. It is the case of the petitioner/appellant that the appeal came to be filed on the basis of the observations made by the Court that the appeal is the proper remedy. 3. We heard the learned counsel for the petitioner/appellant, the learned counsel appearing on behalf of the respondent and also the learned Government Pleader. 4. The learned counsel for the petitioner would submit that the petitioner is a co-owner. The court below ought to have directed in the circumstances of the case the respondent to give consent. He would further point out that the respondent is actually employed. She had already received various benefits. On the other hand the petitioner/appellant is unemployed. Her husband is also unemployed. The y merely manage to make both ends meet from the income which they get from an acre of land. He would submit that it is a fit case wherein the interest of justice, the Court may be guided by equity and a direction may be given to the respondent to give her consent for the appointment of the petitioner/appellant under the compassionate appointment scheme formulated by the Government of Kerala. He would submit that by such an order directing the party respondents to give her consent, no loss is caused to the respondent. On the other hand the petitioner/appellant will get an employment under the scheme. By the impugned order the court below refused to grant the mandatory injunction. He would submit that by such an order directing the party respondents to give her consent, no loss is caused to the respondent. On the other hand the petitioner/appellant will get an employment under the scheme. By the impugned order the court below refused to grant the mandatory injunction. The order inter alia reads as follows: “12. The petitioner wants a mandatory injunction directing counter petitioner to give consent for getting employment under a dying harness scheme. Consent implys a voluntary act. An act done under compulsion cannot be termed as a voluntary act. If the counter petitioner is compelled to grant consent by a mandatory injunction that is not at all a consent. 13. When there is difficulty in getting consent or it is impossible to get consent, it is for the authority which intents to act upon compassionate ground to consider the same. The Civil Court can enforce only individual civil rights. The petitioner is not entitled to any such a right.” 5. Even though we had made an attempt to have the dispute resolved by an alternate dispute mechanism, it did not produce results. The learned counsel for the respondent would submit that the order of the court below is legal and the party respondent cannot be compelled to give her consent. The learned counsel for the petitioner would pray at any rate that prayer No.3 in the writ petition may be considered. 6. The learned Government Pleader would submit that the prayers in the writ petition cannot be granted. The consent is an indispensable element which must be taken by the applicant and the relaxation cannot be given by this Court, he submits. 7. The learned counsel for the petitioner would also enlists certain case law in her support. They are referred as follows: We firstly refer to the judgment of the Apex Court in Dorab Cawasji Warden V. Coomi Sorab Wrden and others (AIR 1990 SC 867). It arose under the partition Act which related to the rights over the immovable property. More particularly the facts appears to be as follows: The appellant/petitioner therein and his brother were holding the disputed property belonging to an undivided family. Appellants brother died intestate. The share of the deceased brother of the appellant came to be transferred by his widow and sons. More particularly the facts appears to be as follows: The appellant/petitioner therein and his brother were holding the disputed property belonging to an undivided family. Appellants brother died intestate. The share of the deceased brother of the appellant came to be transferred by his widow and sons. The question arose whether it is came within the 2nd paragraph of Section 44 of the Transfer of Property Act. The court was concerned with irreparable injury likely to be caused to the petitioner/appellant by the vendee taking possession. It is in such circumstances the court was persuaded to issue an interim mandatory injunction against vendors and vendee with regard to the possession. 8. There can be no dispute that an interim mandatory injunction can be issued in appropriate cases. But we would think that the facts of the case which were considered by the Apex Court in the aforesaid decision bears absolutely no resemblance to the question which is before us. In this case we are concerned with the requirement of law under the compassionate appointment scheme which has been framed by the Government of Kerala. It does not relate to any right over immovable property. Under the compassionate appointment scheme clause 14 reads as follows: “14 (a) Only one dependent will be given employment assistance under the scheme in the vent of the death of a Government servant. Employment assistance shall be given to the widow/widower, son, daughter in the said order of priority. Son and daughter shall include adopted son and adopted daughter, respectively and will rank after son/daughter. However, in the case of unmarried Government Employee dying in harness, Father/Mother, Unmarried Sister/Unmarried Brother shall also be eligible for employment assistance. No other dependent shall be eligible or give appointment under the Scheme. (b) Whenever the is a dispute between the claim of two dependents, the person recommended by the widow/widower of the deceased Government Servant will be preferred. (c) In the case of dependents other than widow/widower, the consent of the widow/widower shall invariably be obtained.” 9. Under the scheme the consent of the other legal heirs appears to be mandatory and the question which we are called upon to decide is whether the civil court or this court under Article 226 can dispense with the consent or issue a direction to the party entitled to withhold the consent to issue her consent. 10. Under the scheme the consent of the other legal heirs appears to be mandatory and the question which we are called upon to decide is whether the civil court or this court under Article 226 can dispense with the consent or issue a direction to the party entitled to withhold the consent to issue her consent. 10. The next decision, which we are called upon to consider is the decision of the learned single judge in Gouri & others V. Dr. C.H.Ibrahim and another (AIR 1980 KER 94). The matter arose from the rejection of an application of temporary injunction in respect of immovable property in a suit for partition. The learned counsel for the petitioner/appellant draws our attention to paragraph 5 where the learned Single Judge held as follows: “5. In taking the view I am afraid the learned District Judge has not correctly understood the law on the matter. If several owners are in possession of an undivided property, non of them ha a right to appropriate to his exclusive use any portion of this property and this will effect a compulsory partition in his own favour according to his choice. One of several co-shares of joint undivided property has no right to erect a building on land which forms part of such property so as to materially alter the condition thereof without the consent of his co-sharer. The Court will interfere in a proper case, where the injury is of a permanent or recurring character or where there is a denial of title or, exclusion since such exclusion amounts to a forcible partition. What was held by a Full Bench of the Allahabad High Court in Shadi V. Anup Singh (1890) ILR 12 ALL 436), which I have referred to earlier, was that where a co-sharer builds upon land, in excess of the share which would come to him in partition, and when the plaintiff co-sharer could not, on partition, be adequately compensated, the defendant-co-sharer, who builds upon such joint land, may be restrained by injunction from proceeding with the building and the building, so far as it has proceeded, may be directed to be pulled down, and the defendant may also be prohibited from building on the land an exclusive owner at any future time.” 11. The observations in the aforesaid paragraph are eloquent regarding the question which arose for consideration, which we feel is self evidently distinct from the question placed before us. 12. The learned counsel for the petitioner would further invite our attention to the decision of the Chancery Division reported in (1986) 3 AII ER 772. The facts arose are set out. “The defendant was an English company engaged in film distribution by means of financing and acquiring rights in films which it hen distributed worldwide through sub-distributors in different countries. In order to effect distribution in Italy the defendant entered into a contract with R, acting on behalf of the plaintiff, a company which R later incorporated in Guernsey for the purpose of the contract. Sometime later, following a change in the defendant’s management, the defendant wished to renegotiate the contract with the plaintiff with a view to splitting the distribution proceeds between the defendant and plaintiff on terms much les favourable to the plaintiff than previously. The new terms caused a dispute to arise between the parties, and the defendant, claiming that the plaintiff was in breach of the contract, refused to send to the plaintiff dubbing material for certain films with the result that the plaintiff was unable to distribute them for exhibiting in Italy. The plaintiff accordingly issued a summons seeking, inter alia, an interlocutory mandatory injunction requiring the films to be delivered to the plaintiff. The plaintiff accordingly issued a summons seeking, inter alia, an interlocutory mandatory injunction requiring the films to be delivered to the plaintiff. At the hearing of the application for the injunction the defendant contended that the court should not grant the application because the plaintiff had not established a high probability that it would succeed in establishing its legal right at trial.” The court proceeded to held as follows: “Held-In determining whether to grant an interlocutory injunction the question for the court was not whether the injunction sought was mandatory or prohibitory but whether the injustice that would be caused to the defendant if the plaintiff was granted an injunction and later failed at trial outweighed the injustice that would be caused to the plaintiff if an injunction was indisputably ‘mandatory’ that same test applied to determine whether the case was normal (in which case the court was required to feel a high degree of assurance that the plaintiff would succeed at trial before an injunction would be granted) or exceptional in that because withholding an injunction carried with it a greater risk of injustice than granting it the injunction should be granted even though the court did not feel a high degree of assurance that the plaintiff would succeed at trial. Since (a) there was no difficulty about the formulation of the order in an enforceable form (b) it was difficult to see how delivery of the films to the plaintiff would cause uncompensatable loss to the plaintiff which might be very difficult to quantify and might also force the plaintiff to renegotiate the contract because of commercial pressure, and 9d) in terms of preserving the status quo the process of distribution which had been set in motion ought not to be interrupted, there was in the circumstances a much greater risk of injustice being caused if the injunction was withheld and the plaintiff was right than if the injunction was granted and the plaintiff did not succeed at trial. Therefore it would be right to grant the injunction.” 13. We are of the view that the petitioner/appellant may not be entitled to draw any support from the declaration of principles relating to mandatory injunction. The enunciation of principle of law cannot be divorced from the facts which arise for consideration. Therefore it would be right to grant the injunction.” 13. We are of the view that the petitioner/appellant may not be entitled to draw any support from the declaration of principles relating to mandatory injunction. The enunciation of principle of law cannot be divorced from the facts which arise for consideration. As far as the order of the court below refusing the grant of interim mandatory injunction is concerned, we are of the view that it does not suffer from any flaw. In the first place the exercise of discretion by the court of first instance in the matter of grant or refusal of any injunction be it prohibitory or mandatory cannot be interfered with by an appellate court unless and until a strong case is made out. In this case we are of the view that no case at all is made out. The mandatory injunction which is sought by the petitioner/appellant was to direct the respondent to give her consent. The immediate question we must pose is whether the respondent was under a duty to give her consent. Did the petitioner/appellant have a legal right to insist upon the respondent to not withhold consent and to give consent. Unless there is a legal right with the party seeking mandatory injunction and a duty on the part of the respondent, who is faced with an application for interim mandatory injunction, we would think that the party seeking a mandatory injunction must be turned off the gates. If we applied the said principle to the facts of the case we don’t see how it is open to the petitioner to contend that he has a legal right to insist that the respondents must give her consent. Equally it cannot be said that the respondent has a legal duty which is enforceable in law to give her consent. The petitioner/appellant has not established before us any foundation for the subsistence of a legal right on the one hand and legal duty on the other hand on the respondent. It may be that in most cases members of the family have agreement as to whom out of the persons is to be selected for appointment. This is on the basis of a mutual understanding. But we are called upon to decide the correctness of the order of the lower court refusing interim mandatory injunction. It may be that in most cases members of the family have agreement as to whom out of the persons is to be selected for appointment. This is on the basis of a mutual understanding. But we are called upon to decide the correctness of the order of the lower court refusing interim mandatory injunction. We would think that we cannot find fault with the lower court in refusing interim mandatory injunction. It is a not case where the private party is a public authority. If it is a public authority which acts in an arbitrary manner it may have been a different matter as it would have been in the realm of public law where the powers would have been entirely different. 14. As far as challenge to Ext.P2 order is concerned we have already dealt with the matter in appeal and we do not see any reason to take a different view in the writ petition. Then there remains prayer No.3 under which the petitioner calls upon us to dispense with the requirement of clause 14 in the circumstances of the case. 15. We would think that we would be treading on dangerous grounds. In our extraordinary jurisdiction to dispense with the requirement of consent, is to exercise a power not conceded in the scheme. The grant or withholding of consent is done by a private party. The law does not mandate that the party must give consent. The requirement of consent under Clause 14 is not under challenge before us. So we must proceed on the basis that it is valid. The power under Article 226 is essentially meant to see that the authorities act legally. The direction which the petitioner seeks from us essentially involves directing the state to act contrary to law. Invoking equitable circumstances as a foundation for doing away the consent will have the result of undermining the very principle of consent embodied in the scheme and it will have the effect of taking away the exercise of the rights by the other party. We would think that the said prayer also cannot be granted. The result is that though with some reluctance, we are not persuaded to interfere either in the writ petition or in the appeal. Both the writ petition and the appeal fail and they are dismissed.