Madras High Court
Santhanakrishnan vs The Director Of Collegiate Education on 12 October, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/10/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)No.4797 of 2011 & M.P.(MD).Nos.2 & 3 of 2011 1.Santhanakrishnan 2.K.Santhanakaruppasamy ... Petitioners Vs. 1.The Director of Collegiate Education, College Road, Nungambakkam, Chennai 600 006. 2.The Joint Director of Collegiate Education, Madurai Region, Madurai 625 020. 3.Yadavar Kalvi Nithi represented by its Secretary N.Kannan, No.308/A, North Masi Street, Madurai. 4.Dr.C.Gopalakrishnan 5.K.P.Navaneetha Krishnan 6.The District Registrar of Societies, Madurai North, Bibikulam, Madurai 625 002. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Certiorarified Mandamus calling for the records relating to the impugned order bearing records relating to the impugned order bearing Na.Ka.NO.50109/G4/2008, dated 28.02.2011 passed by the first respondent and quash the same and consequently direct the first respondent to permit the petitioners herein to function as the College Committee for administering the Yadava College, Madurai in terms of the resolution in dated 21.12.2008 passed by the general body of the Yadav College. !For Petitioners ... Mr.G.R.Swaminathan ^For Respondents ... Mr.M.Govindan for R1, R2 & R6 Special Government Pleader Mr.M.E.Elango for R3 Mr.Mariappan for R4 for M/s.Senthil Kumar M/s.Isacc Mohanlal for R5 :ORDER
The writ petition was filed by the petitioners seeking to challenge the order passed by the Director of Collegiate Education, dated 28.02.2011 and for consequential direction to the first respondent to permit them to function as the College Committee for administering the Yadava College, Madurai in terms of the resolution dated 21.12.2008 passed by the General Body of the Yadava College.
2. When the writ petition came up on 26.04.2011, this Court ordered notice regarding admission and subsequently time was extended to file counter by the respondents. On notice from this Court, the third respondent has filed a counter affidavit dated 13.04.2011 and the fourth respondent has filed a counter affidavit dated 09.10.2011 and the fifth respondent has filed a counter affidavit dated 27.06.2011. They have also filed voluminous type set of papers showing previous litigation between the parties.
3. In the impugned order, the first respondent, the Director of Collegiate Education, on considering the direction issued by the Division Bench of this Court in W.A.(MD).Nos.737, 738 and 810 of 2010, dated 27.01.2011, invited the contending parties and after getting views of all parties and on the basis of the records and the petitions received, the first respondent passed the final order dated 28.02.2011. In the final order, the authority held that on the basis of Form VII filed under the Tamil Nadu Societies Registration Act, 1975 before the District Registrar, Madurai, the present Secretary K.P.Navaneetha Krishnan (R5) will continue to act as the Secretary of the College. The authority also held that though the fourth respondent namely, Dr.C.Gopalakrishnan (R4) had filed a writ petition in W.P.(MD).No.1304 of 2011, in the absence of any interim order passed against the action taken by the District Registrar, Madurai, there is no impediment for him to pass such an order.
4. Challenging the order dated 28.02.2011 passed by the Director of Collegiate Education, in the writ petition it was contended that the order passed by the Director of the Collegiate Education was not in consonance with the provisions of the Tamil Nadu Private Colleges (Regulation) Act, 1976. The claim that the fifth respondent was unanimously elected as the Secretary in the General Body Meeting of the Yadava College on 28.12.2008 was alleged to be false, fraudulent and bogus. It was further alleged that he has no authority whatsoever to convene such a General Body Meeting and earlier, one A.R.Chandran was functioning as College Secretary and he had issued a notice dated 01.12.2008 stating that the General Body Meeting will be held on 21.12.2008. On that date, the General Body by a resolution constituted the College committee comprising A.R.Chandran and the present writ petitioners. The said meeting became the subject matter of the suit in O.S.No.381 of 2008. It was also communicated to the first respondent, the Director of Collegiate Education, by the second respondent, the Joint Director of College Education. In such circumstances, the Director of Collegiate Education should have to satisfy himself as to whether the fifth respondent had any locus standi to convene a meeting and whether any meeting so convened by giving proper notice contemplated under the bye-laws of the Society namely 21 days. In the absence of any clear proof, the claim of the fifth respondent should have been summarily rejected.
5. It is also stated that the educational agency of the College is the General Body of the Yadava College and it alone has a say in the Meeting. The order of the first respondent suffers from total non-application of mind and he ought not have attached any importance on the General Body Meeting held on 04.02.2009 by the fifth respondent under the aegis of Yadava Kalvi Nidhi.
6. It is further stated that under Rule 9(2) of Tamil Nadu Private Colleges (Regulation) Rules 1976, the period of Secretaryship was for a period of three years. Since A.R.Chandran had taken charge as the Secretary on 25.04.2007 and unfortunately he had passed away on 24.12.2008. Hence, the fifth respondent claiming to be the Secretary can only hold office for the unexpired period of the office held by late A.R.Chandran. Even the Secretaryship should have come to an end by 24.04.2010 and therefore, granting further approval by the impugned order for the continuance of the fifth respondent is illegal. The District Registrar of Societies, Madurai North, could not have taken Form VII filed by the fifth respondent, as already an order has been passed by this Court in W.P.No.2181 of 2009, dated 15.10.2009, wherein parties were directed to agitate their claims in a pending scheme suit before the Principal Subordinate Judge, Madurai in O.S.No.587 of 2008.
7. Mr.G.R.Swaminathan, learned counsel appearing for the petitioners made elaborate submissions by taking this Court to various documents including the bye-laws of the Yadava College and the previous orders passed by this Court and the fact of the death of A.R.Chandran. He finally contended that this Court has power to go into the Secretaryship of the College and for this purpose, the learned counsel placed reliance upon Section 50 of the Tamil Nadu Private Colleges (Regulation) Act, 1976, wherein any order made, decision taken or direction issued by any authority or officer, in respect of matters to be determined for the purposes of this Act shall, subject only to appeal or revision, if any, provided under this Act, be final and therefore, if any authority under the Act passed an order, then the power of the Civil Court to go into the question has been ceased by virtue of Section 49 of the Tamil Nadu Private Colleges (Regulation) Act, 1976 since the Director of the Collegiate Education namely the first respondent has passed an order and that order cannot be nullified by any Civil Court proceedings. He submitted that this Court has got jurisdiction to deal with the issues and he also prayed for setting aside the impugned order on the ground that the fifth respondent has no jurisdiction to submit any Form VII and the District Registrar ought not have recorded any such Form.
8. The case of the petitioners was supported by the third respondent represented by the counsel Mr.M.E.Ilango and Mr.Mariappan counsel for the fourth respondent, who was the deposed secretary of the College.
9. Mr.Issac Mohanlal counsel for the fifth respondent, whose continuance has been recognised by the impugned order, opposed the maintainability of the writ petition. He also referred to earlier order passed by this Court in W.P.(MD).No.2181 of 2009, dated 15.10.2009. In that case, the Yadavar Kalvi Nithi Society with registration No.85/1962 sought for a direction to the Registrar of Societies, Madurai North, not to take any action on the resolution, minutes, documents submitted by the present fifth respondent. This Court dismissed the said writ petition after referring the Full Bench Judgment of this Court in C.M.S.EVANGELICAL SUVI DAVID MEMORIAL HIGHER SECONDAY SCHOOL COMMITTEE KARISAL THROUGH ITS SECRETARY SRI.S.DAVID STEPHEN, TIRUNELVELI DISTRICT vs. THE DISTRICT REGISTRAR AND OTHERS reported in 2005 (2) CTC 161. It was held by this Court that following the ratio laid down by the Full Bench, the Court cannot grant any direction and it is bound to the parties to agitate before the competent civil Court. Thereafter, one more writ petition was filed by the present petitioners in W.P.(MD).No.1194 of 2009 and the fourth respondent also filed another writ petition in W.P.(MD).No.359 of 2009. Both the writ petitions were taken together and disposed of by a common order dated 02.11.2010. In that case another learned Judge of this Court found that the fourth respondent was properly constituted and therefore, the order passed by the Director of Collegiate Education was erroneous. The said matter was taken on appeal by the fifth respondent in W.A.(MD).No.737 of 2010, which was heard along with W.A.(MD).Nos.738 of 2010 and the writ appeal filed by the present petitioners in W.A.(MD).No.810 of 2010. All the three writ appeals were dealt with together and disposed of by a common order dated 27.01.2011. In the common order, the Division Bench held that the fifth respondent herein can continue as Secretary till a fresh order is passed by the Director of Collegiate Education for the smooth day-to-day administration of the college and the Director was also directed to complete the process and pass final orders by the end of February 2011. The Director was also given liberty to decide the matter uninfluenced by the observations made by this Court either by the Division Bench or by the learned Single Judge.
10. It is pursuant to the directions issued by the Division Bench, the impugned order came to be passed and once again the parties are before this Court. However, this Court is of the opinion that the present writ petition is not maintainable. Essentially it is a matter of fight between the parties with regard to who should control over the management of the College and in such circumstances, the Director of Collegiate Education cannot go into the ratio raised by parties and he has to be largely guided by the other circumstances including the action taken by the Registrar of Cooperative Societies under the Tamil Nadu Societies Registration Act, 1975. Therefore, it cannot be said that the Director of Collegiate Education has committed any serious irregularities in relying upon Form VII filed under the Tamil Nadu Societies Registration Act. The aggrieved parties cannot collaterally attack the order of the Director of Collegiate Education for the action taken by the District Registrar constituted under the Tamil Nadu Societies Registration Act. It is agreed by both sides that a scheme suit filed under Section 92 CPC is also pending and ultimately, if the Principal Subordinate Judge framed a scheme decree in respect of management of the college that alone can bring an permanent peace to the affairs of the College, otherwise it will only result in further litigations between the parties.
11. In the present case, both the learned single Judge as well as Division Bench are of the opinion that the rights of the parties will have to be determined only in the civil Court and this Court only made the Director of the Collegiate Education to decide as an interim measure as to who should be the secretaryship of the College and such an adhoc decision cannot be derailed by filing a writ petition. The contentions made by the parties again and again by coming to this Court by filing several writ petitions without seeking for a permanent solution before the civil Court, cannot be appreciated. The question as to whether this Court can decide as to who should be the Secretary of the College and whether the interim measure taken by the Director can be interfered with in the absence of any final decree passed by the civil Court, are no longer res integra.
12. When a similar question came up, this Court tried to recognise a particular faction as incharge of the management. The matter was taken to the Honourable Supreme Court in SWAMY ATMANANDA V. SWAMI BODHANANDA & ORS reported in (2005) 3 SCC 734 and the Honourable Supreme Court held as follows:
"This appeal is directed against the judgment and order dated 13.10.1999 passed by a Division Bench of the Madras High Court in Writ Petition No.15089 of 1998, whereby and whereunder the writ petition filed by Swami Bodhananda had been allowed. The said writ petition was filed for issuance of a writ of or in the nature of mandamus directing the respondents therein to give all assistant to the appellant in taking over management of the institutions specified therein. The said writ petition was filed having regard to the judgment of the civil Court.
2. A decree passed by the civil Court must be passed in terms of the provisions contained in the Code of Civil Procedure. The writ petition is not the appropriate remedy therefor. In that view of the matter, the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. It, however, goes without saying that the first respondent herein shall be entitled to execute the decree in accordance with law." (Emphasis added)
13. Therefore, it is not open to the Court at this juncture to decide as to who should be the helm of affairs in running the Yadava College. Until a proper decision is rendered by the civil Court, the Director of Collegiate Education has jurisdiction to decide the matter and he has already been authorised by by a Division Bench of this Court to decide the issue and such a decision making is said to be a provisional decision, which jurisdiction can always be varied if there is any subsequent decision either by an interim order or by a final order by the civil court and until such time this Court is not inclined to interfere with the order impugned in the writ petition and no exception can be taken to the Director of the Collegiate Education by relying upon the Form VII filed under the Tamil Nadu Societies Registration Act and accepted by the Registrar of Societies for the jurisdictional area.
14. The next question raised by Mr.G.R.Swaminathan the learned counsel for the petitioner is that Section 49 of the Tamil Nadu Private Colleges (Regulation) Act,1976 is an embargo for the civil Court to go into the issue. Even this question has been answered by the Supreme Court. Section 49 of the Tamil Nadu Private Colleges (Regulation) Act, 1976 is in "pari materia" with Section 53 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973. Section 53 reads as follows;
"Civil Court not decide questions under this Act- No Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by any authority or officer mentioned in this Act."
15. As to whether in the matter of fight between the control of power within the educational agencies and whether the provision under Section 53 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 excludes the jurisdiction of the Civil Court completely, also came be considered by the Supreme Court vide judgment in SWAMY ATMANAND V. SRI RAMAKRISHNA TAPOVANAM reported in (2005) 10 SCC 51. Further the Supreme Court notwithstanding the bar under Section 53 also gave a wider interpretation of Section 53-A of the Tamil Nadu Recognised Private School Regulations Act, 1973 in SWAMY ATMANAND's case (Cited supra). The following passage found in paragraph 49 may be usefully extracted below:
" A dispute as to who is the real educational agency in relation to a private school is not a matter which in terms of the provisions of the said Act would be determined by an authority under the provisions of the said Act. Section 53A of the Act carves out an exception to Section 53 thereof. In terms of the said provision any dispute as to the educational institution is to be determined by a Civil Court having jurisdiction for its decision. The submission of Mr. Sukumaran, however, is that the jurisdiction of the Civil Court is required to be invoked in such matters specified therein by way of reference by the persons interested or by the competent authority. Mr. Sukumaran would contend that such a reference would be akin to a dispute pending under the Industrial Disputes Act. We cannot accept the said contention. A party to a dispute may not join the other in referring the same to the Civil Court. The party may agree or may not agree therefor. A person having a grievance as against other must have a remedy. The maxim 'ubi jus ibi remedium' is not an empty formality. The jurisdiction of the Civil Court exemplifies the said doctrine. The jurisdiction of the Civil Court cannot be held to have been ousted unless it is so, expressly or by necessary implication, stated in the statute. In terms of Section 53A of the Act, a dispute as to educational agency is concededly required to be decided by a Civil Court. How the jurisdiction of the Civil Court is required to be invoked is a matter to be examined by the Civil Court. Unlike a private tribunal or a statutory tribunal which would not derive a jurisdiction unless a reference in terms of the provisions of the Act is made to it, the Civil Court enjoys a plenary jurisdiction. Furthermore, if and when a dispute arises before the competent authority as regard entitlement of an educational agency in relation to educational institutions, the same must also be referred to the Civil Court. Statutory authority in terms of Section 5 of the Act cannot be said to have any jurisdiction to determine such a dispute. A statute, as is well-known, must be read in such a manner so as to give effect to the provisions thereof. It must be read reasonably. A statute must be construed in such a manner so as to make it workable. The wordings "referred by the persons interested" would, thus, mean a person who has a grievance as regard claim of other side relating to educational agency of the educational institutions. It can be done by filing a suit before the Civil Suit. The term "persons" which is plural has been used having regard to the fact that educational agency need not be a person alone but would also include a society registered under the Societies Registration Act or a body corporate in terms of the Companies Act. In any event, if such a dispute within the contemplation of Section 53A has to be decided by a civil court, it will not attract the bar under Section 53 which applies only to a question which is required to be dealt with or decided by any authority or officer mentioned in the Act. (Emphasis added)
16. In the light of the above, the points raised by the learned counsel for the petitioners placing embargo on the civil court's jurisdiction in terms of Section 49 of the Tamil Nadu Private Colleges (Regulation) Act, 1976 is without basis and unfounded.
17. After dictating the order, Mr.G.R.Swaminathan, learned counsel for the petitioners stated that the scheme suit is pending before the Principal Sub Judge, Madurai being O.S.No.587 of 2008 for the last three years. If the Scheme Court frames a scheme, that alone will bring finality to the litigation between the parties. Therefore, he sought for a direction from this court to the Principal Sub Judge to dispose of the suit within a time frame. However, this court is not apprised of the present stage of the suit and the stand taken by the parties in the suit. Further, due to frequent court boycotts by lawyers, especially since last three years, there has been work stoppages for more than 40 days in each year, any direction will have remote chance of being implemented by the members of the Bar. Even yesterday, i.e., on 11.10.2011, there was a boycott in that court in solidarity with the Coimbatore lawyers. On 17.10.2011, there is a holiday for the local body elections. The Bar is also demanding another holiday on 19.10.2011 for the second phase of elections in rural districts. Already, the High Court had declared holiday prefixing the Deepavali festival on 24th and 25th October, 2011. The bar had also demanded another holiday suffixing the Deepavali on 27.10.2011 which was also considered favourably by the Chief Justice. Under such circumstances, when the Calender fixed by the full court is constantly destabilized, there is hardly any scope for fixing the dates either for trial or for an early disposal of the suit. This Court has to record such sorry state of affairs that the constitutional Courts created for the redressal of the grievance of the members of public are functioning only 50% of days in a year and even for that period, it is disturbed by frequent court stoppages. There is no guarantee that matters will be disposed of on the basis of the directions issued by the higher courts. When there is no guarantee that the bar will strive its best to get along with matters, this court has to decline fixing time limits for early disposals. In view of the above, the request made by the learned counsel is rejected.
18. Under such circumstances and in the light of the factual matrix and the legal precedent and also litigations between the parties and the previous directions issued by this Court, this Court is not inclined to interfere with the impugned order. Hence the writ petition stands dismissed. Consequently, the connected miscellaneous petitions are closed. No costs.
jikr To
1.The Director of Collegiate Education, College Road, Nungambakkam, Chennai 600 006.
2.The Joint Director of Collegiate Education, Madurai Region, Madurai 625 020.
3.The District Registrar of Societies, Madurai North, Bibikulam, Madurai 625 002.