Thankamany v. District Collector, Thiruvananthapuram; Nedumangad Tahsildar; Tholicode Grama Panchayat; Director of Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941** ## **WP(C).No.42493 OF 2018(J)** **PETITIONER:** **THANKAMANY, D/O.MEENAKSHI, AGED 58 YEARS, RESIDING AT SAJI MANDIRAM, THOLIKKOD VILLAGE, PANAKKAD P.O., CHERUKONAM, THIRUVANANTHAPURAM DISTRICT.** **BY ADV.SMT.MINI V.A.** ## **RESPONDENTS:** |**1**|**THE DISTRICT COLLECTOR,**| |---|---| ||**THIRUVANANTHAPURAM, CIVIL STATION,**| ||**THIRUVANANTHAPURAM-695 001.**| |**2**|**THE TAHSILDAR,**| ||**NEDUMANGAD TALUK, TALUK OFFICE,**| ||**NEDUMANGAD, PIN-695 541.**| |**3**|**THE THOLICODE GRAMA PANCHAYAHT,**| ||**REPRESENTED BY ITS SECRETARY,**| ||**OFFICE OF THE THOLICODE GRAMA PANCHAYATH,**| ||**THOLICODE P.O., THIRUVANANTHAPURAM-695 541.**| |**4**|**THE DIRECTOR OF PANCHAYATH,**| ||**OFFICE OF THE DIRECTOR OF PANCHAYATH, CIVIL**| ||**STATION, THIRUVANANTHAPURAM-695 001.**| **R3 BY ADV. SRI.VINOD SINGH CHERIYAN R3 BY ADV. SRI.T.M.KHALID R3 BY ADV. SMT.K.P.SUSMITHA R3 BY ADV. SMT.JASILA BEEVI V.K. R4 BY GOVERNMENT PLEADER SRI PAUL ABRAHAM VAKKANAL-GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.06.2019, THE COURT ON 27.08.2019 DELIVERED THE FOLLOWING:** 2 WP(C)42493 OF 2018 ## **JUDGMENT** The petitioner, who is a resident of the 3[rd] respondent Grama Panchayat, who is having 3 cents of land in Survey No.122/2/3 of Tholicode Village, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 3[rd] respondent to disburse her financial assistance for construction of a house, at the earliest, as directed by the Ombudsman for Local Self Government Institutions in Ext.P5 order dated 11.03.2015 in Complaint No.22 of 2015. The petitioner has also sought for an order directing the 3[rd] respondent Grama Panchayat to include her under 'Asraya Scheme' for house construction and disburse the financial assistance without delay. 2. On 03.01.2019, when this writ petition came up for admission, the learned Government Pleader took notice for respondents 1, 2 and 4. Notice by speed post was ordered to the 3[rd] respondent Grama Panchayat. 3. Going by the averments in the writ petition, the petitioner is a cancer patient with a disabled son. The document marked as Ext.P1 is a copy of the treatment 3 WP(C)42493 OF 2018 certificate dated 25.06.2018 issued by the Medical Officer, Department of Radiotherapy, Thiruvananthapuram Medical College. The petitioner made an application before the 3[rd] respondent Grama Panchayat for granting financial assistance for construction of a house. Her application was considered by the Grama Sabha and she was included as the first beneficiary in 'Asraya Scheme', for granting financial aid for construction of house. The document marked as Ext.P2 is stated to be a relevant extract of the list of beneficiaries under 'Asraya' Scheme, in which the petitioner is serial No.1. 4. As the petitioner did not get the financial assistance, she preferred an application before the Chief Minister through 'Sutharya Keralam' Programme. The 1[st] respondent District Collector called for a report from the 2[nd] respondent Tahsildar, Nedumangad, who submitted Ext.P3 report dated 26.02.2014, wherein it has been stated that the petitioner is eligible for financial assistance. Therefore, the petitioner's application was forwarded to the 3[rd] respondent Grama Panchayat for consideration and the said fact was informed to her, by Ext.P4 communication dated 14.10.2015 of the 4[th] respondent Deputy 4 WP(C)42493 OF 2018 ## Director of the Panchayat, Thiruvananthapuram. 5. Since the petitioner was not granted financial assistance, even after her inclusion in Ext.P2 list of beneficiaries, she approached the Ombudsman for Local Self Government Institutions. The 3[rd] respondent Grama Panchayat appeared before the Ombudsman and submitted that the petitioner was given financial assistance for an amount of Rs.30,000/- in the year 2005-06, and as such she cannot be granted further financial assistance within ten years. Considering the application made by the petitioner in 'Sutharya Keralam' Programme, the 1[st] respondent District Collector was directed to grant her pension as a cancer patient and to include her in 'Asraya' Scheme. Accordingly, the petitioner is included in the 'Asraya' Scheme and considered for grant of food, clothing and treatment expenses. 6. The Ombudsman passed Ext.P5 order dated 11.03.2015, whereby the 3[rd] respondent Grama Panchayat was directed to disburse financial assistance to the petitioner for house construction under 'Asraya' Scheme. Seeking review of Ext.P5 order, the 3[rd] respondent Grama Panchayat filed review 5 WP(C)42493 OF 2018 petition, which ended in dismissal by Ext.P6 order dated 02.12.2015. The said order was under challenge before this Court in W.P.(C) No.8674 of 2016 filed by the Grama Panchayat, contending that the petitioner was given financial assistance for Rs.30,000/- on 02.05.2006, under an earlier scheme, and similar assistance cannot be granted for ten years. The petitioner will be considered for inclusion in 'Asraya' Scheme for the renovation of her house, considering her illness and that she is a widow with a disabled son. As the 3[rd] respondent included the petitioner in the 'Asraya Agathi' Scheme as the 37[th] beneficiary, this Court by Ext.P7 judgment dated 25.10.2016 disposed of W.P.(C) No.8674 of 2016 directing the 3[rd] respondent to consider the aspect whether she could be given a priority in the matter of granting early relief, considering various factors, within one month from the date of receipt of a certified copy of that judgment. 7. Pursuant to the directions contained in Ext.P7 judgment, the 3[rd] respondent by Ext.P8 order dated 05.12.2016 included the petitioner as the 27[th] beneficiary in 'Asraya Agathi' Scheme. Challenging Ext.P8 order, the 6 WP(C)42493 OF 2018 petitioner approached the Human Rights Commission by filing a compliant, which was closed by directing her to approach this Court. Thereafter, the petitioner filed this writ petition before this Court, seeking various reliefs. 8. A counter affidavit has been filed by the 3[rd] respondent Grama Panchayat, opposing the reliefs sought for in this writ petition. In the counter affidavit, it is contended that, the present writ petition is barred by the principles of _res judicata_ as there was proper adjudication of the matter by this Court in Ext.P7 judgment in W.P.(C) No.8674 of 2016. The petitioner is rank No.1 in Ward No.10, where she resides. There are 16 Wards in the Grama Panchayat. Challenging Ext.P5 order dated 11.03.2015 and Ext.P6 order dated 02.12.2015 of the Ombudsman, the Panchayat approached this Court in W.P.(C)No.8674 of 2016 and that writ petition was disposed of by Ext.P7 judgment dated 25.10.2016, by directing the Grama Panchayat to consider the aspect whether the petitioner could be given priority in the matter of granting early relief, especially considering the various factors which are placed before this Court, compared with the circumstances of 7 WP(C)42493 OF 2018 other 36 persons. Accordingly, the 3[rd] respondent issued Ext.P8 order dated 05.12.2016, whereby the petitioner has been granted priority over 9 beneficiaries in the list, thereby reassigning her rank from Sl.No.37 to 28. The 3[rd] respondent would point out that the petitioner has not challenged any of the parameters adopted by the Grama Panchayat while passing Ext.P8 order. The 3[rd] respondent would also point out that when a new housing program by name 'LIFE Mission' came into force, the petitioner was not considered as she had a dwelling house of her own. The petitioner has not chosen to file an appeal for inclusion of her name in the said scheme. Therefore, she is not entitled for any of the reliefs sought for in this writ petition. 9. The 4[th] respondent Director of Panchayat has filed a statement opposing the reliefs sought for in this writ petition. In the said statement, it is contended that, the final list of beneficiaries in the 3[rd] respondent Grama Panchayat was prepared after evaluating the beneficiaries based on the guidelines prescribed from time to time. There are 22 Wards and the petitioner was placed as Sl.No.36 in the list of 8 WP(C)42493 OF 2018 beneficiaries. Ext.P3 report of the 2[nd] respondent Tahsildar only suggests that the petitioner is eligible for financial assistance for the construction of a house. The Ombudsman in Ext.P5 order directed the Grama Panchayat to extend the benefit of 'Asraya' Scheme for construction of house to the petitioner, at the earliest. As per the guidelines, financial assistance cannot be extended to a person, who had already availed benefit of the scheme, within 12 years. The petitioner was granted Rs.30,000/- as financial assistance during the year 2005-06. The 3[rd] respondent Panchayat filed W.P.(C)No.8674 of 2016 before this Court and pursuant to the direction contained in Ext.P7 judgment dated 25.10.2016, the Panchayat issued Ext.P8 order dated 05.12.2016 reassigning the rank of the petitioner as Sl.No.28, instead of Sl.No.37. While issuing Ext.P8 order, the 3[rd] respondent has acted in accordance with law and as per the guidelines, in the best interest of the public, including the petitioner. 10. Heard the learned counsel for the petitioner, the learned Government Pleader appearing for respondents 1, 2 and 4 and also the learned Standing Counsel for the 3[rd] 9 WP(C)42493 OF 2018 ## respondent Grama Panchayat. 11. The issue that arises for consideration in this writ petition is as to whether the petitioner is entitled for a writ of mandamus commanding the 3[rd] respondent Grama Panchayat to disburse her financial assistance for construction of house, as directed by the Ombudsman for Local Self Government Institutions in Ext.P5 order dated 11.03.2015. 12. As evident from Ext.P2 list of beneficiaries, the petitioner is included as a beneficiary under 'Asraya' Scheme for the construction of house. The inclusion of the name of the petitioner as a beneficiary under the said project is not in dispute, going by the averments in the counter affidavit filed by the 3[rd] respondent Grama Panchayat and also the statement filed by the 4[th] respondent Deputy Director of Panchayat. Relying on Ext.P2 list of beneficiaries, the petitioner would contend that she is included as the first beneficiary under 'Asraya' Scheme for construction of house in the 3[rd] respondent Grama Panchayat. Per contra, respondents 3 and 4 would contend that Ext.P2 would only show that the petitioner is rank No.1 in Ward No.10, where she lives and she is rank No.37 10 WP(C)42493 OF 2018 among the list of beneficiaries from all Wards in the Grama Panchayat. The aforesaid statement made in the counter affidavit filed by the 3[rd] respondent and also the statement filed by the 4[th] respondent stands uncontroverted, in the absence of a reply affidavit filed by the petitioner. 13. Ext.P5 order dated 11.03.2015 and Ext.P6 order dated 02.12.2015 of the Ombudsman for Local Self Government Institutions were under challenge before this Court in W.P.(C)No.8674 of 2016 filed by the 3[rd] respondent Grama Panchayat, which was disposed of by Ext.P7 judgment dated 25.10.2016, whereby the Grama Panchayat was directed to consider the aspect whether the 1[st] respondent could be given a priority in the matter of granting an early relief, especially considering the various factors, which are placed before this Court, compared with the circumstance of the other 36 persons in the list of beneficiaries. The Panchayat was directed to consider the same and pass appropriate orders, within one month from the date of receipt of a certified copy of that judgment. 14. In Ext.P7 judgment, this Court found that there is 11 WP(C)42493 OF 2018 no reason to interfere with Ext.P5 order of the Ombudsman dated 11.03.2015 (Ext.P3 in that writ petition) since the Ombudsman had merely directed relief, which was admitted by the Panchayat to be assigned for renovation under 'Asraya' Scheme. This Court also found that Ext.P6 order dated 02.12.2015 of the Ombudsman (Ext.P7 in that writ petition) merely rejected the review, which does not make the petitioner eligible to anything better than that was originally granted in Ext.P5 order. Considering the fact that the petitioner herein is suffering from a debilitating illness and that she is a widow with a disabled child, who has been included under 'Asraya Agathi' Scheme as the 37[th] person, this Court in Ext.P7 judgment thought it fit to direct the 3[rd] respondent Grama Panchayat to consider whether she could be given a priority. 15. Pursuant to the direction contained in Ext.P7 judgment, the 3[rd] respondent Grama Panchayat issued Ext.P8 order dated 05.12.2016, reassigning the priority of the petitioner as 28, as against 37, in the list of beneficiaries and the Village Extension Officer is directed to consider her claim as per the reassigned priority, subject to availability of funds 12 WP(C)42493 OF 2018 for renovation of her house. Ext.P8 order dated 05.12.2016 of the 3[rd] respondent is not under challenge in this writ petition. In the writ petition, the petitioner has no case that her priority in the list of beneficiaries as serial No.28 is overlooked by the Village Extension Officer, Thalicode Grama Panchayat. 16. The pleadings and materials on record would show that the petitioner was denied financial assistance for construction of house on the ground that she had earlier granted assistance during the financial year 2005-06 for a sum of Rs.30,000/-. Before the Ombudsman, it was contended by the 3[rd] respondent Grama Panchayat that, since the petitioner had already received financial assistance for construction of house in the year 2005-06, she is not entitled for further financial assistance within a period of ten years. However, in the review petition filed before the Ombudsman, it was contended that she is not entitled for any financial assistance within a period of 12 years. 17. According to the petitioner, she was given financial assistance of Rs.30,000/- for house construction on 02.05.2006. Since the period of 12 years from the date of 13 WP(C)42493 OF 2018 availing financial assistance for house construction, as per the restriction contained in the guidelines for granting fresh financial assistance for house construction is over by 02.05.2018, she can be considered for financial assistance for construction of house after the said date. The question as to whether the petitioner is entitled for any such financial assistance after the said date depends upon her eligibility under the relevant scheme, which is in force. 18. 'Asraya' Project was introduced by the State Government vide G.O.(Rt)No.128/07/LSGD dated 14.05.2007 and G.O.(Rt)No.12/10/LSGD dated 16.01.2010 for rehabilitating destitute families. The aforesaid Government Orders contain the guidelines for implementation of the project. The scope of 'Asraya' Project was widened and sanction was accorded for the second stage of that project vide G.O.(Rt)No.170/12/LSGD dated 16.06.2012 and G.O. (Rt)No.27/13/LSGD dated 19.01.2013. 19. The Government introduced 'LIFE' Mission (Livelihood Inclusion and Empowerment Mission) vide G.O. (Ms.)No.391/2017/LSGD dated 09.01.2017 and G.O. 14 WP(C)42493 OF 2018 (Ms.)No.161/2017/LSGD dated 31.07.2017, which was a comprehensive housing scheme for all landless and homeless people. Under the said Scheme, homeless will be provided with house with provision for pursuing their livelihood, primary health care, etc. The beneficiaries of the said programme are homeless people, those have not been able to complete the construction of house or have no house and those who have only temporary house in purampoke land, coastal land or plantation. The guidelines formulated in the said Government Orders deal with the procedure that has to be followed for identifying the beneficiaries, priority for extending the benefit, etc. The field level officers will visit the identified beneficiaries for verification and will submit the relevant details and documents to the Local Self Government Institutions. The social and economic caste survey conducted by the Central Government in the year 2011 will be considered to identify the beneficiaries. The select list of the beneficiaries will be published in the local Panchayat/district level office. The Executive Director of Kudumbasree Projects vide letter No.8696/17/KSHO dated 26.10.2017 requested for a common 15 WP(C)42493 OF 2018 project by name 'Agathirahitha Keralam' (Destitute-free Kerala Program) and after considering the said request, the State Government introduced Destitute-free Kerala Program vide G.O.(Ms.)No.252/2017/LSGD dated 12.12.2017. The guidelines for implementation of the said project, as approved by the Government, forms part of that Government Order. A reading of the said Government Order and also the guidelines for implementation of that program would show that it is being implemented through Kudumbasree Mission to protect the destitute population in the State and to bring them into the social mainstream. The program is being implemented with the support of the Local Self Government Institutions. The project aims at total rehabilitation of the destitute by finding them a source of living and developing their social and economic status. The beneficiaries of the project will be provided food, medical help, cloths, welfare pensions, schooling, drinking water and sanitation facilities, power, land and house. 'Destitute identification' is done by means of 9 points criteria as contained in paragraph 2.1.2 and additional criteria (18 in rural areas and 10 in urban areas). Those families, who satisfy 16 WP(C)42493 OF 2018 7 out of 9 criteria and one additional criteria, are deemed to be destitute. The beneficiary families are identified by the Community Development Societies, the apex body of the three tier community organisation of Kudumbasree, and later ratified by the Local Self Government Institution. 20. In the instant case, as already noticed, Ext.P8 order of the 3[rd] respondent Grama Panchayat, whereby the priority of the petitioner under 'Asraya Agathi' Scheme for renovation of the house was reassigned as Sl.No.28, as against Sl.No.35. In the absence of any challenge made against that order, at appropriate time, the petitioner cannot seek disbursement of financial assistance, by giving her out of turn priority. The specific stand taken by the 3[rd] respondent in the counter affidavit is that, when 'LIFE Mission' project came into force the petitioner was not considered as she had a dwelling house of her own. The petitioner has not chosen to file an appeal for inclusion of her name in the list of beneficiaries. 21. The entitlement of the petitioner under 'LIFE' Mission project, which was in existence till introduction of Destitute-free Kerala program or that under the said Scheme newly introduced has to be decided with reference to the 17 WP(C)42493 OF 2018 guidelines formulated for identification of the beneficiaries and also the priorities for extending such benefits. This Court in exercise of the writ jurisdiction under Article 226 of the Constitution of India cannot direct the 3[rd] respondent to disburse any financial assistance to the petitioner for construction of house, within a time limit, as sought for in this writ petition, unless the petitioner establishes her right for the benefits under the respective Scheme, with reference to the relevant guidelines formulated for identification of beneficiaries and also the priorities in extending such benefits. 22. As already noticed, Ext.P3 order of the Ombudsman was under challenge before this Court in W.P.(C)No.8674 of 2016 and pursuant to the directions contained in Ext.P7 judgment, the 3[rd] respondent has issued Ext.P8 order reassigning the priority of the petitioner as Sl.No.28, instead of Sl.No.37. In the absence of any challenge made to Ext.P8, the petitioner is not entitled for any financial benefit overlooking her priority in the list of beneficiaries. In Ext.P7 judgment, this Court declined interference on Ext.P5 order of the Ombudsman dated 11.03.2015, since the Ombudsman had merely directed the relief, which was admitted by the 3[rd] respondent Grama 18 WP(C)42493 OF 2018 Panchayat to be assigned for renovation under 'Asraya' Scheme. This Court also found that Ext.P6 order dated 02.12.2015 of the Ombudsman merely rejected the review, which does not make the petitioner eligible for anything better than that was originally granted in Ext.P5 order. 23. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145]** a Three-Judge Bench of the Apex Court held that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. Paragraph 15 of the said decision reads thus; " **15.** .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of 19 WP(C)42493 OF 2018 public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute to enforce its performance. (See Lekhraj Satramdas Lalvani v. Deputy Custodiancum-Managing Officer [1966 (1) SCR 120 : AIR 1966 SC 334], Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College [1962 Supp (2) SCR 144 : AIR 1962 SC 1210] and Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]. In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." (underline supplied) 24. In **Oriental Bank of Commerce v. Sunder Lal** **Jain [(2008) 2 SCC 280]** the Apex Court held that, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the 20 WP(C)42493 OF 2018 performance of some statutory duty cast upon the authorities. In the said decision, the Apex Court noticed that the principles on which a writ of mandamus can be issued have been stated in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. that, mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. Paragraphs 11 and 12 of the said decision read thus; " **11.** The principles on which a writ of mandamus can be issued have been stated as under in 'The Law of Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr. : **Note 187** .- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the 21 WP(C)42493 OF 2018 proper court, commanding the official or board to which it is addressed to perform some specific legal duly to which the party applying for the writ is entitled of legal right to have performed. **Note 192** .- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and Tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. **Note 196** .- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the Court, subject always to the well settled principles which have been established by the Courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and Judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the Court may, and should, look to the larger public interest which may be concerned - an interest which 22 WP(C)42493 OF 2018 private litigants are apt to over look when striving for private ends. The Court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. **Note 206** .- .......... The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. **12.** These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145 : AIR 1977 SC 2149]** , after referring to the earlier decisions in **Lekhraj Satramdas Lalvani v. N.M. Shah [AIR 1966 SC 334]** , **Dr. Rai Shivendra Bahadur v. Nalanda College [AIR 1962 SC 1210]** and **Dr. Umakant Saran v. State of Bihar [(1973) 1 SCC 485 : AIR 1973 SC 964]** , this Court observed as follows in paragraph 15 of the reports: "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed 23 WP(C)42493 OF 2018 by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. ......... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Art.226 of the Constitution and the High Court was not competent to issue the same." Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule 24 WP(C)42493 OF 2018 having the force of law which casts a duty on the appellant bank to declare their account as NPA from 31[st] March, 2000 and apply RBI guidelines to their case." 25. **In State of U.P. v. Harish Chandra [(1996) 9 SCC 309]** the Apex Court held that, under the Constitution a mandamus can be issued by the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. Paragraph 10 of the said decision reads thus; " **10.** Notwithstanding the aforesaid Statutory Rule and without applying the mind to the aforesaid Rule the High Court relying upon some earlier decisions of the court came to hold that the list does not expire after a period of one year which on the face of its erroneous. Further question that arises in this context is whether the High Court was justified in issuing the mandamus to the appellant to make recruitment of the Writ Petitioners. Under the Constitution a mandamus can be issued by 25 WP(C)42493 OF 2018 the Court when the applicant establishes that he has a legal right to performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty that may be enjoined by mandamus may be one imposed by the Constitution or a Statute or by Rules or orders having the force of law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do something which is contrary to law. This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High Court issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer survived after one year and the rights, if any, of persons included in the list did not subsist. ......." 26. In **Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]** the Apex Court reiterated that, generally, no court has competence to issue a direction contrary to law nor can the court direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass orders or directions which are contrary to what has been injected by law. Vide: State of Punjab v. Renuka Singla [(1996) 8 SCC 90], State of U.P. v. Harish Chandra [1996 (9) SCC 309], Union of India v. Kirloskar 26 WP(C)42493 OF 2018 Pneumatic Co. Ltd. [(1996) 4 SCC 453], University of Allahabad v. Dr. Anand Prakash Mishra [(1997) 10 SCC 264] and Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560]. 27. In **Vinod Kumar v. District Geologist and others [2019 (3) KHC 79]** in the context of Rule 14 of the Kerala Minor Mineral Concession Rules, 2015, this Court held that if the application made seeking permission under sub-rule (2) of Rule 14 for mineral transit pass is not supported by the mandatory documents as per the proviso to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, it cannot be said that there is any failure on the part of the District Geologist in discharging his statutory obligations, so as to enable the petitioner to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India, seeking a writ of mandamus for considering that application. When the application made by the petitioner is not supported by the mandatory documents, as per the provisos to sub-rule (2) of Rule 14, and also an affidavit as per the mandate of sub-rule (3) of Rule 14, this Court cannot direct the District Geologist to consider that application in 27 WP(C)42493 OF 2018 contravention of the statutory provisions, as no mandamus can be issued to do something which is contrary to law. 28. As already noticed, Ext.P8 order dated 05.12.2016 of the 3[rd] respondent is not under challenge in this writ petition. In the writ petition, the petitioner has no case that her priority in the list of beneficiaries as serial No.28 is overlooked by the Village Extension Officer, Thalicode Grama Panchayat. The entitlement of the petitioner for any benefit under the schemes referred to hereinbefore can only be decided in terms of the guidelines formulated under the respective schemes for selection of beneficiaries and the priorities of selection of such beneficiaries. In the writ petition the petitioner has not pointed out any violation of the aforesaid guidelines/priorities in the matter of selection of beneficiaries. In the absence of any such case, the respondents cannot be directed to extend financial assistance to the petitioner, as sought for in this writ petition. Any such direction would be contrary to the guidelines for selection of beneficiaries under the respective Scheme and the priorities for selection of such beneficiaries. This Court cannot direct the respondent to 28 WP(C)42493 OF 2018 extend any such financial assistance to the petitioner, as no mandamus can be issued to do something which is contrary to law. In the result, this writ petition fails and the same is accordingly dismissed; however without prejudice to the right of the petitioner for financial assistance as per her reassigned priority based on Ext.P8 order and also her right, if any, to seek financial assistance for the construction of house under the new schemes, if she is otherwise eligible as per the relevant guidelines/priorities, by approaching the competent authority. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 29 WP(C)42493 OF 2018 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE TREATMENT CERTIFICATE ISSUED BY THE MEDICAL OFFICER, DEPARTMENT OF RADIOTHERAPY, MEDICAL COLLEGE, THIRUVANANTHAPURAM DATED 25.6.2018. EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE 3RD RESPONDENT SHOWING THAT THE PETITIONER IS INCLUDED IN THE SCHEME FOR FINANCIAL ASSISTANCE FOR CONSTRUCTION OF HOUSE. EXHIBIT P3 TRUE COPY OF THE REPORT SUBMITTED BY THE 2ND RESPONDENT TO THE FIRST RESPONDENT DATED 26.2.2014. EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 14.10.2015 FROM THE DEPUTY DIRECTOR OF PANCHAYATH. EXHIBIT P5 TRUE COPY OF THE ORDER OF OMBUDSMAN FOR LOCAL SELF GOVERNMENT DATED 11.3.2015. EXHIBIT P6 TRUE COPY OF THE ORDER IN CMP NO.56/2015 IN COMPLAINT NUMBER 22/2015. EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 25.10.2016 IN WPC NO.8674/2016 OF THIS HONOURABLE COURT. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 5.12.2016 ISSUED BY THE 3RD RESPONDENT.** ## **RESPONDENT'S EXHIBITS: NIL** **TRUE COPY** **P.A. TO JUDGE**