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2019 DIGILAW 18 (KER)

Shalini K. v. Ramanand R.

2019-01-08

ANNIE JOHN, K.HARILAL

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JUDGMENT : HARILAL, J. 1. Has the civil court jurisdiction or power to pass a temporary order of injunction restraining the manager of an aided school from transferring the management of the school involving change of ownership from his name to the name of another person. This is the sole question that emerges for consideration in this appeal. 2. The appellant herein is the first defendant in O.S.No.95/2015 on the files of the Principal Sub Court, Thalassery filed by respondent Nos.1 and 2 herein. The aforesaid suit was one for specific performance of an agreement for sale of an immovable property with a High School situated therein, in terms of the agreement for sale. Respondent Nos.1 and 2 filed I.A.No.2820 of 2015 in the said suit, seeking an interim order of injunction, restraining the appellant from destroying the evidence of the improvements made by respondent Nos.1 and 2 to the school building or from removing any movables from the petition schedule properties or transferring the management of the school from the name of the appellant to respondent Nos.3 to 7 or any others or making any charges/encumbrances or any documents in favour of any others about the petition schedule properties, till the disposal of the suit. The appellant herein failed to file an objection to the said petition, within the stipulated time. Consequently, the court below passed an order of injunction, as prayed for. Aggrieved by the said order, the appellant approached this Court by filing F.A.O.No.91/2016 and this Court, as per judgment dated 22.03.2016, modified the order passed by the court below and further directed the appellant to approach the court below under Order XXXIX Rule 4 of the Code of Civil Procedure, for discharging or varying or setting aside the order of injunction passed by the court below. In compliance with the said direction, the appellant filed a counter in I.A.No.2820/2015 and prayed for setting aside the order passed by the court below. The first respondent filed a counter opposing the said application contending that this Court has already modified the earlier order passed by the court below and there is no scope for further variation in the order passed earlier by the court below. The first respondent filed a counter opposing the said application contending that this Court has already modified the earlier order passed by the court below and there is no scope for further variation in the order passed earlier by the court below. However, after considering the rival pleadings, the court below dismissed the said application on a finding that this Court has already modified the earlier order passed by the court below and there is no further scope for any variation. The legality and correctness of the aforesaid findings are under challenge in this appeal. 3. Heard the learned counsel for the appellant and the learned counsel for the respondents. 4. The learned counsel for the appellant advanced arguments focusing the point that the court below has exercised jurisdiction and power not vested with it. According to the learned counsel for the appellant, the court below has grossly erred in passing the order of injunction, restraining the appellant from transferring the management of the petition schedule school, in violation of the Statutory bar, under Section 33 of the Kerala Education Act, 1958 [for short, 'the Act']. The power of the civil court to grant any temporary injunction or to make any interim orders or any proceedings, which is being or about to be taken under the Act is barred by Section 6 of the Act. Further, the alienation and transfer of possession of property and management of an aided school is governed by Section 6 of the Act and Rule 5A of Chapter III of the Kerala Education Rules. So, the bar of jurisdiction and power, imposed under Section 33 of the Act, would operate against the order of injunction sought against the appellant. Thus, the interim order of injunction, passed against the appellant by the court below, has restrained the transfer of management of the school, in violation of Section 33 of the Act. 5. Per contra, the learned counsel for the respondents advanced arguments to justify the impugned order, whereby the court below has restrained the appellant from transferring the management of the school from the name of the appellant to respondents 3 to 7. 5. Per contra, the learned counsel for the respondents advanced arguments to justify the impugned order, whereby the court below has restrained the appellant from transferring the management of the school from the name of the appellant to respondents 3 to 7. According to the learned counsel for the respondents, Section 6 of the Act and Rule 5A of Chapter III of the Rules impose a restriction to the extent that no transfer of property or management of an aided school shall be made, without the previous permission of the Government or the Director, as the case may be. The previous permission of the Government is a condition precedent only. Therefore, the provisions under Section 6 of the Act or Rule 5A of Chapter III of the Rules cannot be construed to attract a bar against the invocation of jurisdiction and power of the civil court. 6. In view of the arguments across the bar, the question that arises for consideration is, whether the civil court has jurisdiction or power for passing an order of injunction, restraining the manager of an aided school from transferring the management of the said school from his name to the name of another persons. The question in controversy involved in this appeal revolves around Section 33 of the Act, which is extracted below:- 33. Courts not to grant injunction-Notwithstanding anything contained in the Code of Civil Procedure, 1908, or in any other law for the time being in force, no court shall grant any temporary injunction or make any interim order restraining any proceeding which is being or about to be taken under this Act. 7. On a reading of the aforesaid provisions, it is well discernible that no court shall grant any temporary injunction or make any interim order, restraining any proceedings, which is being or about to be taken under this Act. Then, the question to be considered is whether the act of transferring the management of an aided school would fall under the expression 'any proceedings which is being or about to be taken under the Act or Rules' contemplated under Section 33 of the Act. Section 6 of the Act and Rule 5A of Chapter III of the Kerala Education Rules are the relevant statutory provisions which regulate the transfer of possession in respect of any property of an aided school. Section 6 of the Act, reads as follows: 6. Section 6 of the Act and Rule 5A of Chapter III of the Kerala Education Rules are the relevant statutory provisions which regulate the transfer of possession in respect of any property of an aided school. Section 6 of the Act, reads as follows: 6. Restriction on alienation of property of aided school:- (1) Notwithstanding anything to the contrary contained in any law for the time being in force, no sale, mortgage, lease, pledge, charge or transfer of possession in respect of any property of an aided school shall be created or made except with the previous permission in writing of such officer not below the rank of a District Educations Officer, as may be authorised by the Government in this behalf. The officer shall grant such permission applied for unless the grant of such permission will, in his opinion adversely affect the working of the school. (2) Any person aggrieved by an order of the officer refusing or granting permission under sub section (1) may in such manner and within such time as may be prescribed, appeal to the Government. (3) Any transaction made in contravention of sub section (1) or sub section (2) shall be null and void. (4) If any educational agency or the manager of any school acts in contravention of sub section (1) or of an order passed under sub section (2) Government may withhold any grant to the school. 8. Further, Rule 5A (1) and (2) of Chapter III of the Kerala Education Rules reads as follows:- [5A.Change of management involving change of ownership – (1) Notwithstanding anything contained in these rules, no change of Management of any aided school involving change of ownership shall be effected except with the previous permission of the Director. The Director may grant such permission unless the grant of such permission will, in his opinion, adversely affect the working of the institution and the interests of the staff and the person to whom the Management is transferred. (2) Any person aggrieved by an order under sub rule (1) may, within 30 days from the date of the receipt of the order, prefer an appeal to the Government.] (3) ….......... 9. (2) Any person aggrieved by an order under sub rule (1) may, within 30 days from the date of the receipt of the order, prefer an appeal to the Government.] (3) ….......... 9. It is well discernible from the aforesaid provisions under the Act and Rules that parties to the contract for transfer of management, involving change of ownership, of an aided school cannot, by themselves, effect such transfer without the permission of the competent authority under the Government and the aggrieved party can prefer appeal to the Government. The previous permission of the competent authority under the Government is a statutory requirement for transfer of management, including ownership, of an aided school and if the transfer is effected without the permission of the competent Authority under the Government, such transfer would be void also. Since the Government is the competent Authority to allow or disallow the transfer of management of an aided school, an order of injunction restraining such transfer would amount to an intrusion into the power of the Government under Section 6 of the Act and Rule 5A of Chapter III of the Rules and it is barred by section 33 of the Act. The competent authority under the Government, must be allowed to exercise their power independently without the interference of the court and this is the object of the aforesaid provision under the Act and the Rules. 10. The learned counsel for the respondents, after reading Section 6 of Act and Rule 5A of Chapter III of the Rules, advanced an interpretation that the restriction imposed by the aforesaid provision is very limited, which is confined to the previous permission of the Government alone. According to the learned counsel, unless it is an absolute bar against alienation of property or transfer of management, it cannot be taken as a provision, falling under the expression “proceedings which is being or about to be taken under the Act”. 11. We are unable to agree with the said argument. We are of the opinion that the nature and extent of restriction is not a question to be considered, while interpreting the scope and extent of the bar of civil court under Section 6 of the Act and the question is whether the Act sought to be restrained is one for which specific provision is incorporated in the Act or Rules. Since there is a specific provision regulating the transfer of management, involving change of ownership, of an aided school, under the Kerala Education Act and Rules made there under and such transfer is an act falling under the “proceedings, which is being or about to be taken under the Kerala Education Act and Rules made there under” contemplated in Section 33 of the Kerala Education Act, no civil court shall pass an order of injunction restraining such transfer of management of an aided school. To sum up, the Civil court has lost jurisdiction and power to grant temporary order of injunction restraining the transfer of management of an aided school, by the bar created under Section 33 of the Kerala Education Act. 12. Coming to the instant case, we find that the court below has passed an order of injunction, restraining the appellant herein from transferring the management of the school from the name of the appellant to respondents 3 to 7 and such injunction order is passed in violation of the bar imposed by Section 33 of the Act. Consequently, we set aside that part of the impugned order, whereby the appellant is restrained from transferring the management of the school from the name of the appellant to respondents 3 to 7. In the above view, this appeal is allowed in part.