Kerala High Court
S.Jayaprakash vs State Of Kerala on 12 July, 2016
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim, B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 12TH DAY OF JULY 2016/21ST ASHADHA, 1938
WP(C).No. 6956 of 2016 (T)
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PETITIONER:
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S.JAYAPRAKASH
MANAGER, SREEKANTAN NAIR SHASHTIABDA POORTHI MEMORIAL,
HIGHER SECONDARY SCHOOL (SNSM, H.S.S.),
ELAMPALLOOR, KUNDARA, KOLLAM DISTRICT,
(RESIDING AT KOCHIVILAVEEDU, EDAVATTOM, VELLIMON.P.O,
KOLLAM DISTRICT).
BY ADVS. SRI. T. KRISHNAN UNNI (SR. ADVOCATE)
SMT.MEENA.A.
SRI.VINOD RAVINDRANATH
SRI.SAJU.S.A
SRI.K.C.KIRAN
RESPONDENTS:
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1. STATE OF KERALA
REPRESENTED BY ITS SECRETARYTO GOVERNMENT,
DEPARTMENT OF HOME AFFAIRS,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695001.
2. THE SUPERINTENDENT OF POLICE,
KOLLAM (RURAL), KOTTARAKKARA, PIN-690506.
3. THE CIRCLE INSPECTOR OF POLICE,
KUNDARA, KOLLAM DISTRICT, PIN-691501.
4. THE SUB INSPECTOR OF POLICE,
KUNDARA POLICE STATION,
KOLLAM DISTRICT, PIN-691501.
5. C.R.RADHAKRISHNAN PILLAI,
S/O.RAGHAVAN PILLAI, ELLUVILAVEEDU, PERUMPUZHA.P.O,
KOTTAMKARA VILLAGE, KOLLAM DISTRICT,PIN-691504.
WP(C).No. 6956 of 2016 (T) -2-
6. K.PRABHAKARAN PILLAI,
S/O.KRISHNAN PILLAI, USHUS, NTV NAGAR, 91,
KADAPPAKKADA.P.O, KOLLAM DISTRICT, PIN-691008.
7. ARAVINDAKSHAN PILLAI,
S/O.RAGHAVAN PILLAI, ARAVINDAM, (MARUTHAMON),
KANJIRAKKODE, KUNDARA.P.O, KOLLAM DISTRICT, PIN-691501.
8. R.RAVEENDRAN PILLAI,
S/O.RAMAN PILLAI, KARIPPINEZHATHU BUNGLOW,
KOIKKAL MURI, WEST KALLADA,
KOLLAM DISTRICT, PIN-691500.
9. P.GOPALAKRISHNAN PILLAI,
S/O. PARAMESWARAN PILLAI,THADATHIL PUTHEN VEEDU,
VELLIMON.PO, CHERUMOODU, KOLLAM-691511.
10. SAJIKUMAR,
MAKOM, EDIMUKKU, KUZHIMATHICADU.P.O, KOLLAM-691509.
*11. C.T. SUKUMARA PILLAI,
AGED 58 YEARS, S/O. THANKAPPAN PILLAI,
SREYAS, VIDHYA NAGAR-20, KOTTAKKAKOM,
KOLLAM WEST VILLAGE, KOLLAM.
*12. G. REGHUNATHAN PILLAI,
AGED 61 YEARS, S/O. GANGADHARAN PILLAI,
DEVI PADMAM, PERUMPUZHA P.O.,
NEAR KERALAPURAM E.S.I.,
KOTTANKARA VILLAGE, KOLLAM.
R1-R4 BY GOVERNMENT PLEADER SRI. N. SURESH.
R5-R10 BY ADV. SRI.R.NIKHIL
R11&12 BY ADVS. SRI.A.BALAGOPALAN
SRI.A.RAJAGOPALAN
SRI.M.N.MANMADAN
SRI.M.S.IMTHIYAZ AHAMMED
SMT.P.SEENA
*[RESPONDENTS 11 & 12 ARE IMPLEADED AS PER ORDER DATED 12-07-2016
IN IA No.10913/2016]
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-07-
2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AMG
WP(C).No. 6956 of 2016 (T)
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APPENDIX
PETITIONERS' EXHIBITS
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EXT. P1 - TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE
COMMISSIONER IN I.A.2277/2013 IN O.S.280/1957 ON THE FILES OF
SUB COURT,KOLLAM.
EXT. P2 - TRUE COPY OF THE ORDER NO.B6/1150/2015/K.DIS.DATED 09.10.2015
THE DISTRICT EDUCATIONAL OFFICER,KOLLAM
EXT. P2(A) - TRUE ENGLISH TRANSLATION OF EXHIBIT P2
EXT. P3 - TRUE COPY OF THE REQUEST MADE BY THE PETITIONER TO THE
3RD RESPONDENT 12.02.2016
EXT. P3(A) - TRUE ENGLISH TRANSLATION OF EXHIBIT P3
EXT. P4 - TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO
THE 4TH RESPONDENT DATED 13.02.2016
EXT. P4(A) - TRUE ENGLISH TRANSLATION OF EXHIBIT P4.
EXT. P5 - TRUE COPY OF THE ORDER DATED 09-06-2016 IN OS No.251/2016 ON
THE FILES OF THE ADDITIONAL MUNSIFF COURT, KOLLAM.
RESPONDENTS' EXHIBITS
EXT- R5 (a )- TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES BOOK WITH
ITS ENGLISH TRANSLATION.
EXT- R5 (b) - TRUE COPY OF THE RULES FRAMED FOR THE MANAGEMENT OF THE
SCHOOL WITH ITS ENGLISH TRANSLATION.
EXT- R5 (c )- TRUE COPY OF THE LETTER DATED 05-10-2015 WITH ITS
ENGLISH TRANSLATION.
EXT- R5 (d )- TRUE COPY OF THE LETTER DATED 27-10-2015 WITH ITS
ENGLISH TRANSLATION.
EXT- R5 (e) - TRUE COPY OF THE LETTER DATED 05-11-2015 WITH ITS
ENGLISH TRANSLATION.
EXT- R5 (f) - TRUE COPY OF THE COMMON JUDGMENT DATED 11-11-2015 IN
WP(C) No.23616/2015 AND WP(C) No.32067/2015
EXT- R5 (g) - TRUE COPY OF THE ORDER DATED 30-11-2015 IN IA No.5212/2015 IN
OS No.971/2015 OF MUNSIFF COURT,KOLLAM.
WP(C).No. 6956 of 2016 (T) -2-
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EXT- R5 (h) - TRUE COPY OF THE COVERING LETTER DATED 20-12-2015.
EXT- R5 (i) - TRUE COPY OF THE COVERING LETTER DATED 19-02-2016 WITH ITS
ENGLISH TRANSLATION.
EXT- R5 (j) - TRUE COPY OF THE REPRESENTATION DATED 19-02-2016 WITH ITS
ENGLISH TRANSLATION.
EXT- R5 (k) - TRUE COPY OF THE PLAINT IN OS No.971/2015 ON THE FILES OF THE
MUNSIFF COURT, KOLLAM.
EXT- R5 (l) - TRUE COPY OF THE PLAINT IN OS No.251/2016 ON THE FILES OF THE
MUNSIFF COURT, KOLLAM.
EXT- R5 (m) - TRUE COPY OF THE JUDGMENT DATED 08-04-2016 IN
WPC No.14505/2016.
EXT- R5 (n) - TRUE COPY OF THE JUDGMENT DATED 12-04-2016 IN
OP (C) No.1103/2016.
EXT- R5 (o) - TRUE COPY OF THE MEMORANDUM OF APPEAL NUMBERED AS CMA
No.41/2016 ON THE FILES OF THE DISTRICT COURT, KOLLAM.
True copy
P.A. To Judge
AMG
C.K. ABDUL REHIM, J.
&
B. SUDHEENDRA KUMAR, J.
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W.P (c) No. 6956 OF 2016-T
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DATED THIS THE 12th DAY OF JULY, 2016
J U D G M E N T
Abdul Rehim, J:
The petitioner herein who is the Manager of an aided Higher Secondary School, is approaching this court seeking police protection to exercise his powers and duties as Manager of the school, from not being obstructed by the respondents 5 to 10 or their men and agents. Contentions in brief is that, the school in question was established in the year 1975 and is owned by a religious trust (a family private trust) named 'Elampalloor Devaswom Trust', which has got a 'kalari' and a Temple under its ownership, apart from the school. With respect to administration of the trust there were disputes pending before civil courts, since long back.
It is pointed out that, in OS No.280/1957 of the Principal Sub Court, Kollam a decree was passed settling a scheme for administration of the trust. It is only after the said W.P (c) No.6956/2016 -2- decree the school in question was started. There is Rules (Byelaws) formulated for administration of the school, which stands approved by the educational authorities. Subsequently, another suit was filed before the Sub Court, Kollam as OS No.273/2011 seeking modification of the scheme, which is pending disposal. Even the question of maintainability of that suit was fought out upto the hon'ble Supreme Court, but such challenges ultimately failed. It is mentioned that the Sub Court had conducted election to the Managing Committee of the trust by appointing an Advocate Commissioner in OS No.280/1957. As evident from Ext.P1 report of the Advocate Commissioner, a new Managing Committee was elected on 02-11-2013. The petitioner herein is one among the members elected accordingly. It is averred that one Sri. C.T. Sukumara Pillai was elected as Convenor of the trust and as a consequence he became Manager of the school by virtue of provisions contained in the Byelaws governing administration of the school. Allegations arose that there were misappropriation of amounts by Sri. C.T. Sukumara Pillai and on that basis W.P (c) No.6956/2016 -3- he resigned from the Convenorship of the trust. The petitioner herein was unanimously elected to that post. It is further mentioned that, inorder to recover the amounts misappropriated by Sri. C.T. Sukumara Pillai, the trust has already instituted a suit as OS No.931/2015 before the Munsiff Court. On resignation of Sri. C.T. Sukumara Pillai and on election of the petitioner as Convenor of the trust, the petitioner filed an application before the educational authority, the District Educational Officer (DEO), Kollam for recognizing him as the Manager of the school. As evidenced from Ext.P2, Sri. C.T. Sukumara Pillai raised objections against approving the petitioner as Manager. Evidently, the DEO conducted an adjudication by affording opportunity of hearing to the parties. As held in Ext.P2, the DEO became satisfied about resignation of Sri. C.T. Sukumara Pillai and consequently approved the Managership of the petitioner. Hence it is evident that the petitioner continues as Manager on the strength of the approval granted by the educational authority concerned.
W.P (c) No.6956/2016 -4-
2. Case of the petitioner is that, a general body meeting of the trust was convened on 04-10-2015 to transact regular matters of the trust. It is mentioned that, there occurred some unruly actions by a diffident group headed by Sri. C.T. Sukumara Pillai, in which the Minutes Book of the trust was snatched away. Thereafter the petitioner filed a suit for injunction before the Munsiff Court, Kollam as OS No.971/2015 against Sri. C.T. Sukumara Pillai and certain others, seeking relief to the extent of directing the defendants 1 to 3 in the suit to return back the Minutes Book of the trust and also seeking permanent prohibitory injunction restraining the defendants and their men from obstructing the petitioner from discharging his duties as the Convenor of the trust. It is stated in this writ petition that the diffident group made an endorsement in the Minutes Book to the extent of electing a new Managing Committee in the general body meeting convened on 04-10-2015. Averments are to the effect that, there arose a series of litigations thereafter with respect to various affairs touching management of the trust. It is W.P (c) No.6956/2016 -5- stated that various writ petitions were filed before this court also. Subsequently, the interim injunction application filed as OS No.971/2015 was dismissed by the Munsiff Court, Kollam, against which a Civil Miscellaneous Appeal was filed by the petitioner herein which is pending before the District Court, Kollam. Claim of the petitioner is that he is acting as Manager of the school by virtue of approval granted by the educational authority concerned under Ext.P2. But it is alleged that the 5th respondent and his supporters are creating physical obstructions in the school by tresspassing into the premises and by threating the Headmaster and other staff of the school. Despite Exts.P3 & P4 complaints submitted to respondents 3 & 4 no effective police protection is granted, is the grievance.
3. The petitioner has brought out some additional facts through the Reply Affidavit filed. It is pointed out that, apart from OS No.971/2015, the petitioner had filed another suit as OS No.251/2016 before the Additional Munsiff Court, Kollam, which according to him is a comprehensive suit seeking declaratory reliefs. It is pointed out that the said W.P (c) No.6956/2016 -6- court had passed Ext.P5 interim injunction order, in IA No.1461/2016, after hearing both sides and after elaborate consideration of all the contentions. The respondents herein and others were restrained by way of a temporary injunction from causing any sort of obstruction to the smooth administration and management of the trust by the managing committee headed by the petitioner herein, till the disposal of the suit. Contention of the petitioner is that by virtue of Ext.P2 order passed by the educational authority and by virtue of Ext.P5 interim order of injunction, he is entitled to continue as Manager of the school and to manage all the affairs of the school, including admissions of students. But the respondents are creating physical obstruction without any authority of law, which need to be averted. It is contended that respondents 2 to 4 are duty bound to give adequate and meaningful protection, which they failed to do.
4. Respondents 5 to 10 had filed a detailed counter affidavit and an additional counter affidavit. Additional respondents 11 & 12 impleaded by virtue of order in IA W.P (c) No.6956/2016 -7- No.10913/2016 are also supporting contentions of respondents 5 to 10. Eventhough an elaborate narration of all the disputes and litigations pending between the two factions in the trust is picturized in the counter affidavit and in the additional counter affidavit, we are of the opinion that a reproduction of those facts is not necessary for deciding the issue involved in this writ petition. Crux of the contentions relating to the issue involved herein is that, the Committee to which the petitioner claims to be the Convenor is not in office after 04-10-2015. According to the party respondents, on 04-10-2015 the committee to which the petitioner is the Convenor was removed by virtue of a no-confidence motion and an ad-hoc Committee was elected. It is the said ad-hoc Committee who conducted a fresh election on 13-12-2015 and the Committee consisting of respondents 5 to 10 were duly elected. Further contention is that the present suit filed by the petitioner, OS No.251/2016 as well as the interim order of injunction granted in the said suit is neither maintainable nor sustainable in view of pendency of OS No.971/2015, and in W.P (c) No.6956/2016 -8- view of dismissal of the interim injunction application in that case. It is also contended that Ext.P5 order of interim injunction is under challenge in a Civil Miscellaneous Appeal instituted at the instance of respondents 5 to 10, as CMA No.41/2016, which is pending before the District Court, Kollam. Based on the above contentions it is argued that the petitioner cannot be permitted to act as the Manager of the school.
5. Evidently, there exists disputes and litigations between two factions touching on the question of right to administer the trust. In this writ petition the relief is limited exclusively with respect to management of the Higher Secondary School. Hence we need to adjudicate upon the said question alone, for the limited purpose of deciding as to whether the petitioner is entitled to be granted with police protection to function as Manager.
6. In a Division Bench decision of this court in A. Abdul Rahim and another V. State of Kerala and others (AIR 1985 Ker. 103) it is held that, exercise of power vested on the educational authority under Kerala W.P (c) No.6956/2016 -9- Education Rules to approve Managership of any person will not in any manner fetter rights of the parties for determining their civil rights in appropriate suits or other proceedings. In other words, it is mentioned that the civil rights would remain unaffected inspite of any decision by the educational authority with respect to the limited purpose of carrying on the functions and fulfilling the rights under the Act. The dictum laid would indicate that any decision taken by the competent educational authority with respect to conferring Managership of an aided school, will always be subject to orders/decisions if any rendered by the civil courts. On the facts of the case at hand, there exist a dispute with respect to validity of the alleged ouster of the Managing Committee to which the petitioner is the Convenor and with respect to the subsequent election of a new Managing Committee. We are not expressing any opinion on that aspect, because those are matters which need to be decided by the competent civil court. At present, there is no evidence forthcoming to show that the competent educational authority had taken any decision to W.P (c) No.6956/2016 -10- approve anybody other than the petitioner as Manager of the aided school. Learned counsel for respondents 5 to 10 contended that an application for change of the Managership is pending before the DEO. Further, we have to take note of the fact that Ext.P5 order of interim injunction is pending and is in force as on today. Learned counsel for respondents 5 to 10 pointed out that the ad- interim order of injunction grated by the Additional Munsiff Court in OS No.251/2016 was subjected to challenge in a writ petition filed under Article 227 of the Constitution of India before this court. He invited our attention to Ext.R5
(n) judgment in OP (C) No.1103/2016, wherein a learned Judge of this court observed that, the two suits filed by the petitioner are substantively the same, and it seems that the petitioner had obtained an interim order from a different bench of the Munsiff Court, after being failed to get an order in the original suit as well as in the Civil Miscellaneous Appeal filed. However, it is evident that this court only directed the learned Munsiff to consider the interim injunction application and pass a considered order. W.P (c) No.6956/2016 -11- It is not in dispute that Ext.P5 order was passed subsequently, after elaborate consideration of the contentions on both sides. As long as Ext.P5 order is in force, it remains fortified that the petitioner is entitled to act as the Manager of the school, on the strength of Ext.P2 order issued by the competent educational authority. Therefore unless there is any order to the contrary issued by any competent civil court or by the educational authority concerned approving the change of Managership, we are of the considered opinion that the petitioner cannot be restrained from acting as Manager of the school. On that basis, we have to observe that the respondents 5 to 12 have no manner of right to create any physical obstructions with respect to affairs of the school being managed by the petitioner in his capacity as approved Manager. If there is any such physical obstruction the respondents 3 & 4 are bound to take appropriate steps.
7. Under the above mentioned circumstances, the above writ petition is allowed and the respondents 3 & 4 are directed to take appropriate steps to afford meaningful W.P (c) No.6956/2016 -12- protection for the smooth functioning of the school under the Managership of the petitioner, until he is restrained from the same by virtue of any order of a competent civil court or by virtue of any order passed by the educational authorities.
8. We make it clear that we have not arrived any findings based on the rival contentions regarding entitlement of the petitioner to continue as convenor of the trust or with respect to validity of the disputed election alleged to have conducted to the Managing Committee of the trust. Decisions on the litigations pending need to be taken by the competent court, untrammelled by any of the observations contained herein above.
Sd/-
C.K. ABDUL REHIM, JUDGE.
Sd/-
B. SUDHEENDRA KUMAR, JUDGE.
AMG True copy P.A. to Judge