Kerala High Court
Prof.N.Madhavan Kutty Nair vs R.Balakrishnan Nair
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
TUESDAY, THE 10TH DAY OF APRIL 2012/21ST CHAITHRA 1934
OP(C).No. 139 of 2012 (O)
-------------------------
I.A.NO.2701(A)/2011 IN OP.NO.477/2005 of THE IST ADDITIONAL
DISTRICT COURT, TRIVANDRUM
PETITIONER(S):
-------------
PROF.N.MADHAVAN KUTTY NAIR
SREEKARTHIKA, T.C.41/1937, MANACAUD.P.O.
THIRUVANANTHAPURAM-695 009.
BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR
RESPONDENT(S):
--------------
1. R.BALAKRISHNAN NAIR
RETURNING OFFICER, KERALA HINDI PRACHARA SABHA
KVN LAW CHAMBERS, VANCHIYOOR
THIRUVANANTHAPURAM-695 035.
2. KERALA HINDI PRACHARA SABHA,
THYCAUD, THIRUVANANTHAPURAM.695 014.
3. THE SECRETARY,
KERALA HINDI PRACHARA SABHA, THYCAUD
THIRUVANANTHAPURAM.695 014.
4. THE PRESIDENT/CHIEF EXECUTIVE OFFICER,
KERALA HINDI PRACHARA SABHA, THYCAUD
THIRUVANANTHAPURAM.695 014.
5. THE TEASURER,
KERALA HINDI PRACHARA SABHA, THYCAUD
THIRUVANANTHAPURAM.695 014.
BY ADV. SRI.J.HARIKUMAR FOR R2 AND R3
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10-04-2012, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX
PETITIONER(S) EXHIBITS :
EXHIBIT P1-TRUE COPY OF THE ORDER DATED 1.8.2009 IN O.P.NO.477/2005 AND
I.A.1832/2009 AND I.A.1833/2009, ALONG WITH THE AMENDED BYE LAW AND
THE COMPROMISE PETITION APPENDED ALONG WITH THE AFORESAID
ORDER.
EXHIBIT P2-TRUE COPY OF THE JUDGMENT DATED 29.9.2011 OF THIS HON'BLE
COURT IN W.P(C)NO.23185/2010.
EXHIBIT P3-TRUE COPY OF THE AFFIDAVIT FILED ALONG WITH THE INTERIM
APPLICATION FILED BY THE RETURNING OFFICER.
EXHIBIT P4-TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO
EXT.P3.
EXHIBIT P5-TRUE COPY OF THE STATEMENT FILED BY THE IST RESPONDENT.
EXHIBIT P6-TRUE COPY OF THE ORDER DATED 23.12.2011 IN I.A.NO.2701(A)/2011
IN O.P.NO.477/2005 OF THE FIRST ADDITIONAL DISTRICT JUDGE,
THIRUVANANTHAPURAM.
RESPONDENTS' EXHIBITS : NIL
//TRUE COPY//
P.A. TO JUDGE
S.S.SATHEESACHANDRAN, J.
-------------------------------
O.P.(C).NO.139 OF 2012 (O)
-----------------------------------
Dated this the 10th day of April, 2012
J U D G M E N T
The original petition has been filed seeking the following reliefs:
(i) to call for the records leading to Ext.P6 and set aside the same.
(ii) to declare that in terms of Ext.P2 judgment, both the employees of the Sabha and the Hindi Pracharakas in terms of Clause 3(d) of the Compromise petition, filed in I.A.No.1833/2009 in O.P.No.477/2005 of the District Court, Thiruvananthapuram, are eligible for admission to the Hindi Prachara Sabha.
(iii) to grant such other reliefs as this Hon'ble Court deems fit and proepr in the circumstances of this case including the cost of this Original Petition.
2. Inter se disputes between the members of a Society namely, Kerala Hindi Prachara Sabha registered under the Travancore-Cochin Literary, Scientific and Charitable Societies O.P.(C).NO.139/2012 2 Registration Act, (Act XII of 1955) has given rise to litigation, which ultimately was resolved by framing of an amended bye-law on the basis of compromise entered by the parties and approved by this Court under Ext.P2 judgment. The aforesaid judgment rendered by this Court directed appointment of a Returning Officer to conduct election to the Governing Body of the society, prescribing among others what are the qualifications to become members of the society under its amended bye-law. While the process of election by the Returning officer for electing the members of the governing body was in progress, some disputes arose on trivial matters stalling its completion. The directions issued under Ext.P2 judgment enabled the parties and also the Returning Officer to seek appropriate directions/orders from the court before which the litigation commenced, for getting over and resolving disputes in the conducting of the election. The Returning Officer thereupon moved for clarifications over the disputes raised by one or other party with respect to the eligibility/qualification etc. of the members of the society. After hearing both sides, the learned District Judge has passed Ext.P6 O.P.(C).NO.139/2012 3 order, by which, specific directions have been given to the Returning Officer to follow strictly the rules under the amended bye-laws which have been accepted by both parties and also approved by this Court. Challenge in the original petition is against Ext.P6 order invoking the visitorial jurisdiction vested with this Court under Article 227 of the Constitution of India.
3. The dispute projected in the original petition is confined over the finding made by the learned District Judge under Ext.P6 order over only one among the two disputes canvassed of. The amended bye-law under Clause (2) prescribed the qualification to become the member of the society. That provided that any one who completed the age of 18 years and remitted a sum of Rs.100/- can apply to be a member. A further provision was also added under the above Clause that those who have registered as 'pramanitha pracharaks' in the society and put in service of not less than 20 years and also placed students to sit in the examination conducted by the society, can also apply to become the members of the society paying the requisite membership fee. O.P.(C).NO.139/2012 4 In the compromise petition filed by the parties before the District Court, which was later approved by this Court under Ext.P2 judgment, in fixing the eligibility of membership by the pramanitha pracharak there is no condition requiring them to place students for sitting in the Hindi examination conducted by the society, and as such, that interpolation or addition of such condition brought in under the amended bye-law should not be given effect to, was the case for making suitable modification over the eligibility of Pramanitha pracharaks to become members of the society. Returning Officer in the light of the aforesaid dispute canvassed has sought for a clarification from the District Court. The learned District Judge, after looking into Ext.P2 judgment and also the amended bye-law, turned down the plea so canvassed for and directed the Returning Officer to follow the rule laid down under Ext.P1 bye-law. Assailing that order of the District Judge, the learned counsel for the petitioner submitted that when there is a conflict between the provisions of the amended bye-law and also the compromise entered into by the parties and approved by this Court, the latter has to prevail. O.P.(C).NO.139/2012 5 Reference is also made to Clause (v) in Ext.P2 judgment to emphasize that this Court has taken note while approving the amended bye-law that the approval is given effect to the compromise entered by the parties, and according to the counsel that should be given more decisive value. Clause (v) in Ext.P2 judgment (which should have been numbered as Clause (iv)) reads thus:
"(v) Sri.Chandradasan Nadar, retired District Judge, Thiruvananthapuram is appointed as returning officer to conduct the election. Enrolment of members and conduct of the election shall be in accordance with the stipulations in the amended bye-law and approved hereby (appended to I.A.No.1833 of 2009 in O.P.No.477 of 2005). The Returning Officer shall assume charge as such within a week of receipt of a copy of this judgment and submit a report to that effect to the learned Additional District Judge-I, Thiruvananthapuram within a week of assumption of charge."
My attention has also been drawn to Clause 3(d) of the compromise petition entered into by the parties which forms part of Ext.P1 amended bye-law produced in this original petition. O.P.(C).NO.139/2012 6 That clause reads thus:
"3(d). Parties to the case have agreed to induct the Hindi Pracharak (Pramanitha pracharak) having minimum experience of 20 years and who have paid the required fee as per amended bye-law as the members to the Hindi Prachara Sabha and also those who will apply for the same before 30-10- 2009 to the receiver to be appointed in this case."
4. First and foremost, it has to be taken note that the compromise petition filed with the amended bye-law was approved by this Court in Ext.P2 judgment. Ext.P2 judgment explicitly makes it clear that election to the governing body has to be conducted in terms of the amended bye-law. If at all there is any conflict between the compromise petition filed and also the bye-law or any provision thereof, the larger question is whether the court below is empowered to examine or interpret any provision of the bye-law which has been approved by this Court under Ext.P2 judgment. Evidently, the answer has to be given in the negative. So much so, on that footing itself the interpretation and also emphasis placed under Clause 3(d) of the O.P.(C).NO.139/2012 7 compromise petition to buttress the argument advanced that something more has been added under Clause (2) in respect to the membership over the society in the bye-law and therefore it requires correction or deletion, cannot be approved, and more so, at any rate, not by the court below. Then also, whatever be the terms of compromise entered into by the parties what has been approved under Ext.P2 judgment is the amended bye-law, and specific directions has been given under Ext.P2 judgment to the Returning Officer to conduct the election in terms of that bye-law of the society. Memorandum of society or bye-laws, no doubt, form the spinal bone of the society, which is governed by a statute. If at all there is any doubt over any provision of the bye-law, whatever be the terms of the compromise entered into by the parties which has given rise to such bye-law, naturally, correction or amendment has to be sought for in accordance with the procedure covered by the Act XII of 1955. At any rate, when the amended bye-law has been approved by this Court, it may not be open for the District Judge atleast till the present proceedings are completely terminated to make any correction O.P.(C).NO.139/2012 8 or deletion in any of the provisions hereunder. Further more, Ext.P2 judgment would also clearly demonstrate the direction issued to the Returning Officer is for conducting the election to the governing body of the society in terms of the amended bye-law approved by this Court. That alone remains to be completed in the proceedings in the light of the approval of the amended bye-law by this Court. So much so, when, for that limited purpose, the case has been sent over to the court below, there cannot be any further wrangle over any provisions of the amended bye-law before the court below. Challenge against Ext.P6 order in the aforesaid circumstances cannot be entertained. Original petition is dismissed.
S.S.SATHEESACHANDRAN JUDGE prp