Andhra HC (Pre-Telangana)
Board Of Education Of Samavesham Of ... vs State Of A.P. And Others on 5 March, 2001
Equivalent citations: 2001(2)ALD527, 2001(2)ALT503, AIR 2001 ANDHRA PRADESH 319, (2001) 2 ANDHLD 527, (2001) 2 ANDH LT 503, (2001) 5 SERVLR 70
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
S.B. Sinha, CJ
1. These three appeals arising out of WP Nos.5096 of 2000, WP No.21826 of 1999 and WP No.21827 of 1999 respectively although were heard separately but being inter-related are being disposed of by this common judgment.
2. Samavesam of Telugu Baptist Churches (for short hereinafter referred to as 'STBC') is a faction riddled society registered under Societies Registration Act which run various educational institutions in the State. Three rival groups headed by T. Nathanial, C.D. Prakash Rao and M. Edward are involved in various litigations in civil Courts and before this Court in regard to the management of STBC particularly with regard to appointment of correspondents to various institutions under the control of STBC. The earliest litigation can be traced to WP No. 1993 of 1993 filed by Sri C.D. Prakasha Rao and his father Moses representing themselves as Additional General Secretary and Chairman respectively of STBC located at ABM Compound, Markapur, Prakasham district for a prayer upon the educational authorities to consider the approval of correspondents appointed to the educational institutions by them in terms of their representation dated 15-6-1992.
The said writ petition was disposed of on 17-4-1993 with a direction to consider the case as prayed for. A writ appeal being WA No.61 of 1994 was filed there against by STBC, CAM compound, Nellore represented by its General Secretary, Naihanial stating that a temporary injunction granted by the Subordinate Judge's Court, Nellore in OS No.118 of 1991 filed by them against C.D. Prakash Rao, Moses and others was subsisting and such facts were suppressed in WP No.1993 of 1993 and directions were obtained. It would be appropriate to state at this stage that while STBC, CAM compound, Nellore had filed OS No.118 of 1991 on the file of the Subordinate Judge's Court, Nellore, STBC, ABM compound, Markapur had filed OS No.87 of 1991 on the file of Subordinate Judge's Court, Markapur. STBC, Markapur filed Tr.CMP No.194 of 1993 before this Court seeking transfer of OS No.118 of 1991 to the file of Subordinate Judge's Court, Markapur to be tried alongwith OS No.87 of 1991. The Writ Appeal WA No.61 of 1994 and the Transfer CMP were disposed of by a Division Bench of this Court on 24-1-1994 in the following terms:
"1. OS No.87 of 1991 on the file of Sub-Court, Markapur filed by C.D. Prakash Rao and Moses shall stand transferred to the Court of Sub-Court, Nellore and be tried alongwith OS No. 118 of 1991 on the file of Sub-Court, Nellore filed by STBC, CAM compound, Nellore.
2. The order of the learned single Judge assailed in this writ appeal by issuing a direction to the respondent to consider the representation dated 15-6-1992 is set aside and all the consequential orders passed pursuant thereto shall stand quashed; and
3. The parties shall abide by the result of the suits which are directed in Clause (2) of our order."
Three other writ petitions filed by STBC, Nellore represented by its General Secretary, J. Yesuratnam - WP Nos.19690 of 1994 and 25243 and 28821 of 1997 - aggrieved by the action of the respondents in not approving the names of correspondents appointed/continued by the STBC to various institutions, came up for hearing before Bikshapathy, J., and the same were disposed of by the learned Judge on 13-11-1997 directing the Subordinate Judge's Court, Nellore to dispose of the suits OS No.118 of 1991 and OS No.87 of 1991 as expeditiously as possible. The learned Judge further directed that all the correspondents who were functioning as on that date in respect of all educational institutions shall continue as such except in respect of Coles Memorial Junior College, Kurnool and to recognise them subject to the result of the suits. As regards the Coles Memorial Junior College, Kurnool, it was directed that the Commissioner and Director of Intermediate Education shall nominate an Officer to function as the Correspondent of the College for a period of three months. The Commissioner was further directed to review the entire matter and to take appropriate steps to approve the correspondentship of respective Junior Colleges depending on the decision of the Civil Court. On 16-7-1999 OS No.118 of 1991 was decreed while OS No.87 of 1991 (renumbered as OS No.40 of 1994) was dismissed.
3. While things stood thus, STBC, Nellore, CAM compound, represented by its President Sri Naihanial and one Danamaiah filed WP No.21826 of 1999 out of which WA No.126 of 2001 arises challenging the proceedings of the Commissioner and Director of Intermediate Education dated 8-10-1999 approving the name of one Sri Sajeeva Raju as correspondent of Coles Memorial Junior College, Kurnool and in not approving the name of Sri Danamaiah. The STBC, Neltore, CAM compound also filed WP No.21827 of 1999 out of which WASR No.6097 of 2001 arises for a direction to the authorities directing approval to the appointment of correspondents approved by the General Council of STBC, Nellore on 22-5-1999 and submitted in its letter dated 2-8-1999. By order dated 15-10-1999 this Court granted interim suspension of the order dated 8-10-1999 in WP No.21826 of 1999. On the same day, in WP No.21827 of 1999 wherein a prayer for interim direction was sought in WPMP No.27350 of 1999, a learned single Judge of this Court by order dated 15-10-1999 directed in the following terms:
"The DEOs concerned or the competent authority to approve the correspondentship of the schools/colleges run by the petitioner-society, are directed to pass appropriate orders on the proposals submitted the Educational Secretary of the Organisation nominating various persons as Correspondents to the Schools and colleges run in different districts, before 1st November, 1999."
In both the writ petitions filed by STBC, Nellore, CAM compound, STBC, Markapur, ABM compound, represented by its Additional General Secretary Sri C.D. Prakash Rao was impleaded as party.
Allegedly, one P. Jayachandra Rao and M. Edward representing themselves as Chairman of Board of Education and Honorary Secretary of STBC, Nellore filed WP No.5096 of 2000 challenging the proceedings dated 2-3-2000 of the Commissioner and Director of Collegiate Education approving the correspondentship of respondents 3 to 6 therein. On 30-3-2000, they obtained interim suspension of the said order. Allegedly, therein the directions issued in the aforementioned WA No.61 of 1994 dated 24-1-1994 as also the permanent injunction passed against Sri Jayachandrarao in OS No. 118 of 1991 were suppressed. CRP No.773 of 2000 filed against the order of the learned Additional District Judge, Ongole in CMA No.89 of 1999 confirming the order of the I Addl. Junior Civil Judge, Ongole in IA No.1520 of 1999 in OS No.902 of 1999 upholding the election of office bearers of STBC, Nellore in its reorganised General Council was dismissed. WP 5096 of 2000 was dismissed by the learned single Judge on 28-11-2000 in view of the orders passed in WP No.21827 of 1999.
4. WP No.21827 of 1999 was disposed of by a learned single Judge of this Court by order dated 27-11-2000 whereby and whereunder the election to the various churches committees and other institutions were directed to be held with the conditions mentioned therein. WA No.21826 of 1999 was allowed on 28-11-2000 in terms of the order in WA No.21827 of 1999. Though there are some other civil cases and writ petitions filed before this Court, it is not necessary to refer to the same for the purpose of disposal of the present matters.
5. Aggrieved by the orders in WP Nos.21826 and 21827 of 1999, STBC Markapur, ABM Compound, has preferred the Writ Appeal Nos.126 of 2001 and WASR No.6097 of 2001 respectively. Aggrieved by order in WP No.5096 of 2000, Sri Edward has preferred WA No.34 of 2001.
6. A bare perusal of the order dated 27-11-2000 passed in WP No.21827 of 1999 would show that the said order was passed on a purported consent given by all the parties to the litigation on the suggestion of the Court to all the members of the warring groups that they should settle the issue amicably among themselves otherwise the Court will be compelled to take action against the erring members for the offence of perjury. Whereupon only, after much deliberations, both the groups had agreed for conducting elections to have a new elected body to administer the affairs of STBC under the supervision of a retired High Court Judge. The learned Judge thereafter directed:
"1. It is not in dispute that about 30 Field Associations are affiliated to Samavesham and number of Churches are affiliated to each of the Field Associations. The Churches as well as Field Associations and Samavesham are having their own bye-laws for conducting elections and for administration of the affairs of the respective institutions. As far as Samavesham is concerned, the certified copy of the bye-laws given by the Registrar of Societies shall be the basis for conducting the elections. As far as Field Associations are concerned, each of the Field Association is directed to furnish to the Court Commissioner the certificates of affiliations of the Churches to that field along with the Church Committees that are functioning as on today and the delegates that were elected by the voters of the concerned Churches to the General body of Samavesham duly enclosing a copy of the bye-laws of the concerned church as well as that of Field Association by 15th January, 2001.
2. After receipt of above information, the Court Commissioner shall invite objections, if any, from the worshippers, any of the members of the Churches by publishing the names of the persons of the Church Committee in one vernacular daily news paper and also in a conspicuous place in the Church compound by obtaining a certificate to that effect from the Pastor attached to each of the Churches.
3. If there are any disputes with regard to the Church Committees that are in Office, the Commissioner shall try to resolve them by calling both the groups; and in the event of failure of consensus between the warring groups, the Secretary of the Church Committee shall furnish the list of worshippers who are eligible to vote in the elections and on receipt of the voters list, the Court Commissioner shall call for objections, if any, within one week by displaying the voters list in the Church compound in the manner specified above. After disposing of the objections a provisional voters' list will be published.
4. If the Court Commissioner has to conduct elections either to the committees or of any of the affiliated Churches, or delegates to the General body of Samavesham, he shall suitably publish an election programme till the withdrawal of the nominations by nominating the President of the Church Committee as Polling Officer. After withdrawals, the final list of the contestants shall be published. If any elections have to be conducted, the Court Commissioner is at liberty to fix different dates for different Churches to conduct elections as per his convenience. He shall notify the election date in a conspicuous place in the Church and the same shall be notified to the voters by way of leaflets.
5. After the elections to Church Committees are over, the concerned Church committee shall be asked to nominate the representatives to the concerned Field as per the bye-laws of the Church by fixing the election programme. If there is unanimity, again liberty is given to the Court Commissioner to fix different polling dates to different Church Committees for electing the representatives to the Field.
6. After the Field representatives are elected by all the Churches affiliated to the Field, the Court Commissioner shall publish the election programme for each field as per its own constitution for electing the Executive committees of the Field as per its bye-laws as well as the delegates to the General Council of Samaveshaam as per bye-taws of Samavesham. The Court Commissioner in his wisdom may fix the polling dates for each Field as per his convenience. After elections to Field Committees and delegates to General Council of Samavesham are over, the Court Commissioner shall call for the meeting of General Council of Samavesham to elect the office bearers as well as the sub-committees that have to be elected as per the constitution of the Samavesham and correspondent to various educational institutions that are under the administrative control of Samavesham. Simultaneously, the Court Commissioner has to call for General body meeting of the Samavesham on the very next day fixed for electing the executive committee of Samavesham by the General Council and get the election minutes of the General Council ratified by the General body of Samavesham.
7. Before commencement of the process of elections, the Court Commissioner shall open new registers for each committee separately from the Church level upto Samavesham and record the proceedings that have taken place from the time of commencement of elections and after completion of the process, he shall hand over the concerned registers to the custodian of the records as per the bye-laws of each of the organisation duly authenticating the proceedings that have taken place under his supervision.
8. After completion of the election process, he shall also file a report before this Court in proof of execution of the warrant so that the proceedings of the Court Commissioner shall be made as a Court order to prevent unscrupulous people in trying to mislead the Courts in the State.
9. After the process of inducting the new elected body in the presence of warring groups is over, it is made clear that no Court in the Slate shall entertain any suit by any member of this religious denomination concerning the constitution or administration of the affairs of the Samavesham except the Court in whose territorial jurisdiction the Headquarters of the Samavesham is situated i.e., Nellore. After the new bodies at various levels assume office pursuant to the elections conducted by the Court Commissioner, bye-laws of the concerned organisation and the minutes as certified by the General Secretary shall form the basis for any dispute concerning the constitution or administration of the affairs of that organisation and the Court shall before entertaining any suit satisfy itselfabout the genuineness of the claim of the individual coming to the Court on the above basis.
10. Till the entire election process is completed and culminated into an order of the Court, the Executive Committees or Subsidiary Committees, by whichever name they were called, constituted in the General Council meeting held on 11-5-1999, shall discharge the duties uninterruptedly for the benefit of the Samavesham and welfare of the worshippers. Any order passed by any Court which are subsisting as on today shall cease to have any effect from today and the Executive Committee and Subsidiary Committees are at liberty to discharge their functions as per the bye-laws of the Samavesham.
11. The parties shall also take immediate steps to withdraw all the cases pending in various Courts forthwith i.e., next date of adjournment and if anyone is found violating the orders, he shall be dealt with appropriately.
12. Till a finality is reached, the Executive of the General Council or the management of the Samavesham can neither alienate nor create any encumbrances on the properties of the Samavesham.
13. The Court Commissioner's fee is fixed at Rs.15,000/- (Rupees fifteen thousand only) per month from the date of commencement of the work, preferably latest by 1-1-2001, till the election process is completed apart from the actual expenses incurred by him in visiting various Churches, Fields or Headquarters of Samavesham. The Samavesham shall make available Rs.50,000/- initially to the Court Commissioner for executing the warrant. At the end of every month, the Court Commissioner shall send the bill including his remuneration and the expenses incurred by him and by 7th of succeeding month the Samavesham shall pay the amount claimed by the Court Commissioner.
14. The Registrar (Judicial) is directed to place this order before the Hon'ble the Chief Justice to give necessary instructions to all the Courts in the State not to entertain suits filed by any member of this religious denominations touching upon the constitution of the Committees or the affairs of the Samavesham except in the Court in whose territorial jurisdiction the Samavesham Headquarters is situated."
Writ Petition No.21826 of 2000 was disposed of on 28-11-2000 as under :
"In the light of the orders passed in WPNo.21827 of 1999 today, the order of the Commissioner and Director of Intermediate Education, Hyderabad in Rc.No.1641/JCB-2/1977, dated 8-10-1999 will not survive and it is accordingly quashed. The Officials of the educational department are directed to approve the correspondentship of the person recommended by Mr. Y. T. Mithra, Educational Secretary of Samavesham of Telugu Baptist Church, Nellore forthwith, at any rate not later than one week from the date of receipt of a copy of this order. The writ petition is allowed to the extent indicated above."
7. In the light of the above facts, the only question which arises for consideration in these appeals is as to whether the learned single Judge had acted within the jurisdiction in issuing the aforementioned directions although the consent was only with regard to holding of elections.
8. It had been argued by the learned Counsel appearing on behalf of the appellants that in a writ petition filed only for a direction upon the respondents 2 to 15 therein to consider grant of approval to the correspondents allegedly approved by the petitioner therein pursuant to the proceedings dated 21-5-1999 of Board of Education of petitioner society approved by General Council by proceedings dated 22-5-1999 as submitted in their letter dated 2-8-1999, the writ petitions could not have been disposed of by directing holding of elections and that too with the conditions mentioned supra.
9. The learned Counsel appearing on behalf of the respondents, on the other hand, submitted that this Court should not exercise its jurisdiction and interfere with the order of the learned single Judge having regard to the fact that such an order was passed on consensus. Learned Counsel, however, very fairly submitted that the directions had been issued after the matter was heard for quite a few months. Learned Counsel would urge that having regard to the provisions of Order XXIII, Rule 3 of the amended Code of Civil Procedure, 1976, a compromise decree outside the para meters of the suit provisions is permissible and thus the learned single Judge has committed no illegality in passing the impugned order.
10. It is not in dispute that several suits have been filed by the parties at different places and conflicting judgments had been rendered by the Courts. It is also not in dispute that appeals filed against the said judgments and decrees are pending.
11. The question which arises for consideration is as to whether a Writ Court in exercise of its jurisdiction under Article 226 of the Constitution of India can interfere with the decrees passed at different places and issue directions, as a result whereof, the pending appeals could become infructuous? Another question which arises for consideration is as to whether this Court in exercise of its jurisdiction under Article 226 of the Constitution of India can pass an order issuing several directions including a direction upon the subordinate Courts not to entertain any suit at all?
12. By reason of Section 141 of the Code of Civil Procedure, the provisions of CPC are not applicable to a writ proceeding. It may be true that the principles analogous to Order XXIII, Rule 1 of Code of Civil Procedure may be applicable even to a writ proceeding. But, having regard to the nature of the controversy involved herein, it is not necessary to decide the said question. In the instant case, the parties might have consented for holding of elections to the various institutions and they may have also consented for appointment of a retired Judge of the High Court as Commissioner for conducting such elections. But the directions issued in regard to the mode and the manner in which the elections are to be conducted and various other directions issued were that of the Court. No doubt a compromise decree even outside the para meters of the suit as per amended Rule 3 of Order XXIII of CPC is permissible. Even if the principles analogous to the CPC are applicable to the writ proceedings, the requirement under the amended Rule 3 of Order XXIII being that the compromise should be in writing and signed by the parties, the Court has no jurisdiction to pass a consent decree on the basis of an oral agreement as is the case herein. No written memorandum of compromise had been filed before this Court so as to enable it to record that the said orders had been passed on consensus. Further, it is well settled principle of law that by consent of parties, neither the jurisdiction of the competent Court can be taken away nor jurisdiction can be conferred on a Court which it doesn't have. This Court exercises its writ jurisdiction under Article 226 of the Constitution of India whereas the Civil Courts exercises their jurisdiction in terms of the provisions of A.P. Civil Courts Act read with Section 9 of Code of Civil Procedure. While this Court exercises constitutional function, the civil Court exercises a statutory function. The jurisdiction of the Court to entertain an application can be directed to be barred by ajudicial order only in rarest of rare case and that too when the Court comes to the conclusion that the applications being filed by the parties are not only mala fide in nature but would amount to abuse of the process of the Court, Even in such a situation, normally, the High Court will exercise its jurisdiction under the powers of criminal contempt as was held in Advocate-General v. M.P. Khair Industries, . Section 9 of Code of Civil Procedure casts a duty on all the Civil Courts to entertain suits of all civil nature. The jurisdiction of a Civil Court can be barred only by a statute and not otherwise. The Civil Court is prohibited from entertaining any suit only when the jurisdiction is expressly or by necessary implication is barred under a statute.
13. Furthermore, it is not for this Court to make the parties agree to a compromise at the threat of action being taken against them for the offence of perjury. If such an offence has really been committed by any party to the proceedings in the Civil Court, this Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, in a collateral proceeding, cannot direct otherwise. If a party has committed perjury, the Rule of Law demands that he should be punished therefor in accordance with law.
14. In terms of the provisions of Section 41 of the Specific Relief Act, 1963, even no injunction can be granted by any Court prohibiting any person/persons from filing any suit for other reliefs.
15. In this view of the matter, we are of the opinion that although the impugned judgment is said to have been passed on consent of all the parties, the same cannot be sustained.
Even assuming that the order was passed on consent, a portion of the impugned order is obviously not. It is well known that a consent order is considered to be merely an agreement between the parties with the seal of the Court superadded on it. In this connection, it may be relevant to note the observations of the Apex Court in Baldevdas Shivlal v. Filmistan Distributors (India) P. Ltd., , wherein it was held;
"A consent decree does not operate as res judicata because a consent decree in merely the record of a contract between the parties to a suit, to which is superadded the seal of the Court."
Thus, on the grounds on which an agreement can be questioned, on the same grounds, a consent order can also be questioned. If a consent order or a decree passed is contrary to the public policy or contrary to any constitutional provisions and, if a result whereof, valuable rights of the parties are taken away, the same cannot be sustained. Such consent orders are in fact no consent orders in the eye of law and would be a nullity.
16. It may be true that this Court exercises a wide power under Article 226 of the Constitution of India and in a given situation, it can even mould the reliefs in order to do substantial justice between the parties. But, in our considered opinion, this Court cannot, while doing so, pass an order which had not been prayed for either directly or indirectly. Only relief could be granted having regard to the pleadings of the parties in the writ proceedings. It is also well settled principle of law that an order is vitiated not only when it is held to be without jurisdiction but also when jurisdictional error is committed or in a case where the authority or the Court acts in excess of its jurisdiction. (See Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147. Further, it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity as held by the Apex Court in Kiran Singh v. Chaman Paswan, . A provision of law which is contrary to the public policy as contemplated under Section 23 of the Indian Contract Act cannot be sustained. See Delhi Transport Corporation v. DTL Mazdoor Employees, . Even the procedural bars contained in the principles of estoppel, waiver or acquiescence cannot have any application in a case where the order itself is ultra vires any statute or is against the public interest.
17. For the reasons aforementioned, the impugned orders cannot be sustained which are set aside accordingly. Having regard to the complications that might have arisen pursuant to the order of the learned single Judge, we are of yhe opinion that the writ petitions should be heard by a Division Bench.
18, The appeals are allowed with the aforementioned directions. There shall be no order as to costs.