Kerala High Court
T.K.Nandakumar vs H.Narayanan on 16 June, 2014
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 11TH DAY OF JULY 2014/20TH ASHADHA, 1936
WA.No. 959 of 2014
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AGAINST THE JUDGMENT IN WP(C) 26823/2006 OF THIS HONOURABLE COURT,
DATED 16-06-2014
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APPELLANT(S)/3RD PARTIES:
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1. T.K.NANDAKUMAR, AGED 50 YEARS,
S/O.LATE GOPALAKRISHNAN T.K., THANNIKUNNATH HOUSE,
NHANGATTIRI, PARRAMBI, PALAKKAD DISTRICT.
2. MADHAVI K.K.
W/O.LATE GOPALAKRISHNAN T.K., THANNIKUNNATH HOUSE,
NHANGATTIRI, PARRAMBI, PALAKKAD DISTRICT.
3. ANILKUMAR T.K.
S/O.LATE GOPALAKRISHNAN T.K., THANNIKUNNATH HOUSE,
NHANGATTIRI, PARRAMBI, PALAKKAD DISTRICT.
4. C.N.SURESHKUMAR,
AATHIRA, THEREKKAD P.O., PALAKKAD - 678 001.
BY ADV. DR.GEORGE ABRAHAM
RESPONDENT(S)/PETITIONER:
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1. H.NARAYANAN,
S/O.ACHUTHA PISHARODI, "PISHARAM", NHANGATTIRI POST,
PALAKKAD DISTRICT-679311.
2. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM-678001.
3. THE DISTRICT COLLECTOR,
PALAKKAD-678001.
PJ
...2/-
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WA.No. 959 of 2014
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4. THE DEPUTY DIRECTOR OF EDUCATION,
PALAKKAD-678001.
5. T.K.RAVINDRAN,
S/O. SAMBU EZHUTHASSAN, THANIKUNNATH HOUSE,
POST NHANGATTIRI, PALAKKAD DISTRICT-679311.
6. T.K.GOPALAKRISHNAN,
S/O.RAMAN EZHUTHASSAN, THANNIKUNNATH HOUSE,
NHANGATTIRI, PARRAMBI, PALAKKAD DISTRICT-679311.
7. T.K.CHANDRASEKHARAN,
S/O.RAMANEZHUTHASSAN, THANNIKUNNATH HOUSE, NHANGATTIRI,
PARRAMBI, PALAKKAD DISTRICT679311.
8. T.K.SUDHAKARAN,
S/O.RAMAKRISHNAN, THANNIKUNNATH HOUSE, NHANGATTIRI
PARRAMBI, PALAKKAD DISTRICT-679311.
9. P.P.SAJITHA,
D/O.NARAYANAN NAMBOODIRI, THEKKEDATH MANAKKAL,
P.O. NHANGATTIRI, PARRAMBI, PALAKKAD DISTRICT-679311.
10. P.M.GOURI,
D/O.PARU MARARASSYAR, THIRUMITTAKODE MARATH
P.O.THIRUMITTAKODE, OTTAPALAM TALUK, PALAKKAD-679311.
11. A.V.NARAYANAN,
S/O.VASUDEVAN NAMBOODIRI, AKKORATH MANA,
P.O. NHANGATTIRI, PARRAMBI, PALAKKAD DISTRICT-679311.
12. N.P.DEVESAN,
S/O.PARU PISHARASSYAR, NHANGATTIRI PISHARAM,
P.O.NHANGATTIRI, VIA.PARRAMBI, PALAKKAD DISTRICT-679311.
R6 BY SRI.ELVIN PETER P.J.
R2,3,4 BY GOVERNMENT PLEADER
R7 BY SRI.V.A.MUHAMMED
R11,12 BY SRI.K.P.SUDHEER
R1 BY SRI.SANTHEEP ANKARATH
R5 BY SRI.B.UNNIKRISHNA KAIMAL
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11-07-2014,
ALONG WITH WA.NO.960/2014 AND WA.NO.961/2014, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
PJ
WA.No. 959 of 2014
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APPENDIX
PETITIONERS' ANNEXURES
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ANNEXURE A: COPY THE PROXY SIGNED BY SMT.T.M.GOURI WHICH WAS ATTESTED
IN THE STATE OF CALIFORNIA, USA.
RESPONDENTS' ANNEXURS
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NIL.
/ TRUE COPY /
P.S. TO JUDGE
PJ
Ashok Bhushan & A.M. Shaffique, JJ.
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W.A. Nos. 959, 960 & 961 of 2014
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Dated this, the 11th day of July, 2014.
J U D G M E N T
Ashok Bhushan, J.
We have heard learned counsel for the appellants as well as learned counsel for the respondents.
2. These appeals have been filed with leave granted by the Court by its order dated 10th July, 2014.
3. The writ appeals have been filed against the judgment and orders of the learned Single Judge dated 16th June, 2014 in W.P(C) Nos. 26823/2006, 18956/2007 and 14240/2014. The appellants were not parties to the proceedings or the judgment of the learned Single Judge. They filed the appeals praying for leave on the ground that they are legal representatives of one T.K. Gopalakrishnan, who was a party to the writ proceeding and died on 1.1.2011. On the aforesaid ground, leave was granted by this Court to file the appeals.
4. Brief facts which are necessary to be noted for decision in all these writ appeals are as under:
There is a registered society under the Societies Registration Act, 1860, which was formed with 12 members who constituted first governing body. The names of all the members have been mentioned in the judgment of the learned Single Judge. By Government Order dated W.A. Nos. 959, 960 & 961 of 2014 -: 2 :- 6.10.2006, the Government ordered that management of the school be taken over under Section 14(2) of the Kerala Education Act, for a period of five years or till such time as the educational agency elects its President. In W.P(C) No. 26823/2006, the prayer was to set aside the Government Order. The relief sought in W.P(C) No. 18956/2007 was for setting aside the order directing the Assistant Educational Officer to convene the meeting and in W.P(C) No. 14240/2014, the prayer was for an order directing the State Government to refrain from proceeding with Ext. P4 pending disposal of the above two writ petitions.
5. The writ petitions came up for hearing before the learned Single Judge on 16th June, 2014 The petitioners came up with a prayer that the period for which the management was taken has come to an end. The petitioners are only interested in the management of the school being given back to the society. The learned Government Pleader also submitted that an Advocate of this Court may be appointed to oversee the conduct of the election. The learned Single Judge, taking note of the fact that the period of 5 years has expired in 2011, directed for holding of election. It was undisputed before the learned Single Judge that the governing body consists of 8 persons, whose names were noted by the learned Single Judge. It is also noted W.A. Nos. 959, 960 & 961 of 2014 -: 3 :- by the learned Single Judge that T.K. Gopalakrishnan, the additional 5th respondent, was one among the said nine members, is no more. The learned Single Judge, taking note of the above facts, issued directions for holding the election by the Assistant Educational Officer by giving notice to the 8 persons. Appellants 1, 2 and 3 are the legal heirs of T.K. Gopalakrishnan. 4th appellant claimed to be proxy of one T.M. Gowri, who lives in the United States of America.
6. Learned counsel for the appellants challenges the judgment of the learned Single Judge, submitting that appellants 1 to 3 being legal representatives of T.K. Gowri, they ought to have been brought on record in the writ petition before any order was passed by the learned Single Judge. He submits that under the bye- laws and regulation of the society, there is right of nomination by the governing body and as they were the necessary parties in the writ petition, an order in the absence of appellants 1 to 3 has to be set aside. It is further submitted that in so far as appellant no. 4 is concerned, he being proxy of Smt. T.M. Gowri, was also entitled to participate in the ensuing election and the learned Single Judge did not permit the proxy of Smt. T.M.Gowri to participate in the election due to which the ensuing election is vitiated. He further submits that the election could have been directed to be W.A. Nos. 959, 960 & 961 of 2014 -: 4 :- conducted after holding meeting of the governing body for nomination of the member to fill up the vacancy of T.K. Gopalakrishnan.
7. Learned counsel for the respondents refuted the contentions of the appellants contending that appellants 1, 2 and 3 have not acquired any right to be made party to the writ proceeding. He submits that Sri. Gopalakrishnan was a member of the society for life and after his death, the membership came to an end and the right of membership is not heritable and on the said basis, the appellants cannot claim participation in the election for governing body. He further submits that under bye-laws, there is no provision permitting proxy to participate in the meeting. Hence, appellant no. 4 has no case.
8. We have considered the submissions of counsel for the parties and perused the records.
9. There is no dispute between the parties that the term of five years for appointment of the Manager expired in 2011. No objection can be taken to the judgment of the learned Single Judge for holding fresh election so that the management of the society can be handed back to the governing body. The main question which has come up for consideration in these appeals is as to whether appellants 1, 2 and 3 being legal representatives of T.K. Gopalakrishnan, have any right W.A. Nos. 959, 960 & 961 of 2014 -: 5 :- to be made party to the writ proceeding and in their absence the judgment of the learned Single Judge is vitiated.
10. The Rules and Regulations of the society have been brought on record. Rule 3 provides as follows:
"3. Vacancies arising in the governing body consequent on the death, resignation, or ineligibility shall be filled up by nomination by the governing body of the Society."
Rule 3 was subsequently amended and the amended Rules is at page 147, which is to the following effect:
"3. Vacancies arising in the governing body consequent on the death, resignation, ineligibility, shall be filled up by nomination by the governing body of the society other than the member of the staff of the School or Schools."
10. The above Rule 3 indicates that vacancies arising in the governing body consequent to the death are to be filled up by nomination by the governing body of the Society. The membership of Sri. T.K. Gopalakrishnan came to an end on his death and the right of membership of the Society of the governing body is not inheritable. Appellants 1, 2 and 3 cannot claim any right on the ground that they are the legal representatives of T.K. Gopalakrishnan. Admittedly, no W.A. Nos. 959, 960 & 961 of 2014 -: 6 :- proceeding for nomination in the vacancy caused by the death of T.K. Gopalakrishnan has been taken. Learned counsel for the appellants sought to contend that proceeding for nomination ought to have been taken first and thereafter election could have been directed. Initially, there were 12 members and the election has been directed at the time when the membership was 8 as noted in the order itself. It is relevant to note that the amendment made in the bye-laws is on 20th June, 1962, which is mentioned at page 145, which was registered by the Registration Act and the amendment is as follows:
"Article 1: The affairs of the society shall be managed by a governing body of the members who exist in the society from time to time is amended as "the affairs of the society shall be managed by a governing body of the members, but not less than seven, who exist the society from time to time"."
A perusal of the above provision will indicate that the affairs of the aforesaid society are to be managed by the governing body of the members who shall not be less than 7. From the above, it is clear that in the event 7 members are present, there was no impediment in directing holding of fresh election. The submission is that had the membership been less than 7 and there are vacancies, it might have been necessary to fill up vacancies before holding fresh election. But, when W.A. Nos. 959, 960 & 961 of 2014 -: 7 :- there are more than 7 members present, no error can be found with the judgment of the learned Single Judge directing fresh election. The submission of learned counsel for the appellants that nomination ought to have been first made to fill up the vacancy and thereafter, election could have been directed, is not found on any Rule or Regulation of the society.
11. In view of the above discussion, we are of the view that the appellants 1, 2 and 3 have no right to enable them as necessary party in the writ petition nor it can be said that in their absence any error has been crept in the order of the learned Single Judge.
12. Now comes the submission of the learned counsel for the appellants with regard to appellant no. 4 that appellant no. 4 being proxy of the member Smt. T.M. Gowri, was entitled to be included in the election. Counsel for the appellants, in this context, has referred to Section 13 of the Societies Registration Act, 1980, especially proviso to the Section. Section 13 of the Societies Registration Act needs be noted, which is to the following effect:
"13. Provision for dissolution of societies and adjustment of their affairs:- Any number not less than three-fifths of the members of any society may determine that it shall be dissolved, and thereupon it shall be dissolved forthwith, or at the time then agreed upon, and all necessary steps shall be taken for the disposal and settlement of the property of W.A. Nos. 959, 960 & 961 of 2014 -: 8 :- the society, its claim and liabilities, according to the rules of the said society applicable thereto, if any, and if not, then as the governing body shall find expedient, provided that, in the event of any dispute arising among the said governing body or the members of the society, the adjustment of its affairs shall be referred to the principal Court of original civil jurisdiction of the district in which the chief building of the society is situate; and the Court shall make such order in the matter as it shall deem requisite:
Provided that no society shall be dissolved unless three-fifths of the members shall have expressed a wish for such dissolution by their votes delivered in person, or by proxy, at a general meeting convened for the purpose:
Provided that whenever any Government is a member of, or a contributor to, or otherwise interested in any society registered under this Act, such society shall not be dissolved without the consent of the Government of the State of registration."
Section 13 is applicable in the context of dissolution of the society and adjustment of the affairs of the members. The proviso has been added in that context. Counsel for the appellants submits that when the proviso permits the proxy to participate in the election, why the proxy is not permitted to participate in the election of the governing body of the society. The manner and procedure for holding of election for any society or any body is always regulated by the procedure provided in the bye-laws. There cannot be any dispute that if statutory provision or rule or bye-law provide for voting right as accrued to a person who is nominated as proxy, the same can be done. Proviso to W.A. Nos. 959, 960 & 961 of 2014 -: 9 :- Section 13 is not a statutory provision which provides for proxy voting. In the bye-laws of the society, there is no provision which can be allowed to include voting by proxy. In the bye-laws, there is neither any express provision nor from the bye-laws it can be implied that proxy voting is permitted. Learned counsel for the appellants submitted that provisions of Societies Registration Act are applicable and bye-laws are subject to the said Act. There cannot be any dispute to the above proposition. However, Section 13 which is relevant, is not attracted in the facts of the above case and is not applicable. Thus, we do not find any substance in the submission of the learned counsel for the appellants in the context of appellant no. 4 is concerned.
In view of the above, we do not find any error in the judgment of the learned Single Judge and accordingly, the appeals are dismissed.
Sd/- Ashok Bhushan, Judge.
Sd/- A.M. Shaffique, Judge.
Tds/ (True copy) P.S to Judge.