Madras High Court
Bro.Yesudass vs The Revenue Divisional Officer on 5 December, 2023
W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 05.12.2023
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021
and
W.M.P.(MD).Nos.12613 to 12615 of 2021
W.P.(MD).No.15663 of 2021
Bro.Yesudass ... Petitioner
Vs.
1.The Revenue Divisional Officer,
Office of the Revenue Divisional Office,
Nagercoil.
2.Bro.R.Antony Prabhu
3.V.Ranjith Kumar
4Remila Balsi
5.Bro.Savarimuthu ... Respondents
(R5 is impleaded vide Court order dated 20.09.2021 in W.M.P(MD).No.13477
of 2021 in W.P.(MD).No.15663 of 2021 by GIJ)
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
calling for the entire records in connection with the impugned order passed by
1/20
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021
the first respondent vide his proceedings Ref.No.A3/1659/2021 dated
25.08.2021, and to quash the same.
For Petitioner :Mr.Niranjan S.Kumar
For Respondents :Mr.E.Antony Sahaya Prabhar
Additional Public Prosecutor for R1
:Mr.S.Muthumalai Raja for R2
:Mr.J.William Christopher for R5
: No appearance for R3 and R4
*****
Crl.O.P.(MD).No.7972 of 2021
Bro.Yesudass ... Petitioner
Vs.
1.The Superintendent of Police,
Kanyakumari District,
Kanyakumari.
2.The Deputy Superintendent of Police,
District Crime Branch,
Nagerkoil, Kanyakumari District.
3.The Inspector of Police,
Kottar Police Station,
Kanyakumari.
4.Bro.R.Antony Prabu
5.Remila Palsi
2/20
https://www.mhc.tn.gov.in/judis
W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021
6.V.Ranjithkuamr
7.Mrs.Ranjith ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, to issue an order of direction, directing the third respondent to
give adequate police protection to the school, students, teachers this petitioner
and other office bearers from the illegal activities of 4 to 7 respondents and their
henchmen and to take appropriate action against them.
For Petitioner :Mr.Niranjan S.Kumar
For Respondents :Mr.E.Antony Sahaya Prabhar
Additional Public Prosecutor for R1 to R3
:Mr.S.Muthumalai Raja for R4
: No appearance for R5 to R7
COMMON ORDER
W.P.(MD).No.15663 of 2021 has been filed to quash the impugned order of the first respondent dated 25.08.2021, wherein, the first respondent passed the impugned order under Section 145 of Cr.P.C., authorizing the second respondent to act as the correspondent of the School run by the fifth respondent. 3/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021
2. Crl.O.P.(MD).No.7972 of 2021 has been filed for a direction, to the third respondent to give adequate police protection to the school, students, teachers, petitioner and other officer bearers from the illegal activities of the respondent Nos.4 to 7 and their henchmen and to take appropriate action against them.
3. According to the writ petitioner, the Francisan Missionary Brothers are involved in various services to humanity in several countries. The CMSF follows the ideals and spirituality of St.Francis of Assisi. The Congregation runs schools at Kanyakumari District namely St.Francis Matric School at Sarakkavilai and St.Francis Matriculation Higher Secondary School at Surankudi. Apart from the two schools, the congregation runs an Ashraman by name Shanthi Nivas at Sarakkavilai. The said congregation's head office is at Mumbai and the same is being administrated by the Superior General. The fifth respondent is the Regional Superior of the said congregation. Earlier, he appointed the second respondent as a correspondent of the above said schools. He is said to have involved in misappropriation of funds and hence an enquiry was conducted. In the enquiry, the second respondent admitted the misappropriation of 4/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 Rs.65,00,000/- and he also undertook to deposit the said amount as soon as possible. After that he issued a legal notice to the Superior General, Mumbai stating that he borrowed a sum of Rs.55,00,000/- for interest from the third respondent for the management of the school and development of the lands of congregation and he also spent more than Rs.2.5 crores for the development of the congregation and sought to settle the same. The same was properly replied by the Superior General, Mumbai. In view of the said development, the fifth respondent issued a transfer notice to the second respondent by communication dated 23.11.2020. But he refused to leave and hence, the Superior General, Mumbai issued a suspension notice against the second respondent. Even after that he neither left nor gave any reply. Hence, the admonition notice was issued as per the rules and regulation of the congregation. It was also brought to the knowledge of the congregation that the second respondent had already joined in another society namely Rural Identity and Cultural Education (RICE) much prior to the transfer order. It was also brought to the knowledge that the second respondent in connivance with the third and fourth respondents created a document and misappropriated huge funds of school. In the meantime, the petitioner was appointed as a correspondent of the said schools in the place of the second respondent. Thereafter, he lodged a complaint on 05.03.2021 to the 5/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 Inspector of Police, Kottar Police Station, with request to take action against the respondent Nos.2 to 4. Since fourth respondent acted against the school administration with connivance of the second respondent, the petitioner sent a warning memo. In this situation, as no action was taken on the basis of the complaint lodged before the Kottar Police Station, the petitioner sent a detailed complaint to the Deputy Inspector General of Police, Tirunelveli Region. Parallely, the Superior General, Mumbai issued a communication to the second respondent to rectify all the irregularities, otherwise, he would be dismissed him from the congregation. But, the respondent Nos.2 to 4 were creating trouble to the school management continuously and hence, the writ petitioner filed the Crl.O.P.(MD).No.7972 of 2021 seeking police protection before this Court. In the said proceedings, the respondent Nos. 2 to 4 appeared and stated that the first respondent has initiated the proceedings under Section 145 Cr.P.C. Challenging the same, he filed the writ petition in W.P.(MD).No.1460 of 2021 and the same was admitted and stay was granted on 17.08.2021. Inadvertently, the said order was not uploaded and hence, the first respondent passed the impugned order. In the impugned order, the first respondent authorized the second respondent to continue as correspondent of the said school and also directed to maintain staus quo as on the date of order. In the said order, he has specifically directed to 6/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 approach either the fifth respondent or the Court to seek the appointment as correspondent. It is further directed that the Inspector of Police, Kottar Police Station has to maintain the law and order problem in the school administration. Challenging the same, the petitioner filed the present writ petition to quash the impugned proceedings.
4. The petitioner specifically submitted that the second respondent specifically raised numerous grounds and sought to quash the impugned order. The learned counsel for the petitioner reiterated the said grounds and submitted that the school was unaided minority school and the same was administrated by the congregation. The congregational authority is the competent authority to appoint any person to manage and administer the school. On 23.11.2020 the fifth respondent, after finding that misappropriation has been done by the second respondent, passed the order of transfer against him. The superior General Mumbai also issued the communication to the second respondent about the penalties imposed against him. A letter of admonition also was issued against him. He also joined in some other society. In the said circumstances, he has no locus to act as correspondent of the said school and the same is not properly considered by the first respondent and the first respondent has passed the 7/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 impugned order erroneously.
5. The learned counsel for the petitioner also submitted that mere communication of the District Educational Authorities that the petitioner is not enrolled as a correspondent of the school is not a ground to authorise the second respondent to act as correspondent of the school, who has committed misappropriation of the congregation's fund and removed by the congregation.
6. The learned counsel for the fifth respondent reiterated the said submission and specifically submitted that the second respondent was removed from the congregation and also he filed the appeal before the appellate authority and the same was also confirmed by the appellate authority. He filed a suit in O.S.No.215 of 2021 along with a petition for ad-interim injunction under Order 39 Rule I and II CPC., to restrain the Shanthi Nivas Charitable Religious Social Welfare Society from interfering in his possession and enjoyment of the school administration. The said I.A., was dismissed and aggrieved over the same, C.M.A., was filed and the same was also dismissed. In the said circumstances, the impugned order is liable to be set aside and in the interest of the school management, a proper direction is to be issued to the law enforcing authorities to 8/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 provide protection to manage the school by the writ petitioner.
7. The learned counsel for the second respondent filed a counter affidavit and stated that he was permitted to serve as a correspondent by virtue of the lease deed executed by the Regional Superior Mumbai for 30 years and on the basis of the same, he is in possession of the school. Hence, the congregation has no right to appoint the petitioner as a correspondent to the said school. He borrowed money for the development of the school and other activities from the third respondent. He also stated that the allegation of the misappropriation and other allegations are not proved and he was never transferred to Trichy and he is continuously holding the post of the correspondent of the said school. The first respondent after considering the above fact and also obtaining the statement from the District Educational Authorities, correctly passed the impugned order authorizing him to continue as a correspondent of the school.
8. The third respondent filed the counter reiterating the above statement of the second respondent and further submitted that the Regional Superior and the petitioner colluded together in order to cheat him and in order to avoid the repayment of the amount borrowed by the second respondent for the 9/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 development of the school with interest. Hence, he sought the repayment of the said amount of Rs.55,00,000/- with 18% interest from the fifth respondent congregation.
9. The fourth respondent filed the counter with similar contents of the second and third respondents and he also sought for dismissal of the writ petition.
10. This case was listed for hearing on 06.10.2023. Even though the second respondent filed a counter, there was no representation. Hence, this Court directed the learned Additional Public Prosecutor to serve the notice to the second respondent through the jurisdictional police and listed the case on 19.10.2023. On that day, Mr.Muthumalai Raja, learned counsel appeared on behalf of the second respondent and hence this Court directed the parties to be ready with the case on 16.11.2023. On 16.11.2023, all the counsel made their submissions. After hearing the argument, in order to ascertain the plea of the second respondent and the writ petitioner, this Court directed the fifth respondent to appear in person on 27.11.2023. The fifth respondent appeared in person and informed about the conduct of the second respondent and also 10/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 appointment of the writ petitioner as a correspondent in the place of the second respondent. He also denied the transaction and liability towards the third respondent. Hence, this Court adjourned the case to 01.12.2023 for passing order on merits. On that day, Mr.Sudhagar Nagaraj, learned counsel for the third respondent represented before this Court in the morning sessions that he has no instructions from his client and requested to file memo of withdrawal on behalf of him. In the afternoon session, he did not appear before this Court and hence, this case was again adjourned to 04.12.2023. The same was further adjourned to 05.12.2023 and he filed the memo of withdrawal from his appearance. Since he made a claim of repayment of amount of Rs.55,00,000/- with 18% of interest and he filed the counter, this Court decided to pass orders on merits on the basis of the submission made during earlier hearing dates.
11. Admittedly, the school is one of the institution that comes under the minority congregation namely the correspondent of the Missionary Brothers of St.Francis of Assisi established in the year 1901(CMSF). The said congregation is being administrated by the Superior General, Mumbai. The Regional Superior is the fifth respondent. The said congregation runs schools at Kanyakumari District namely St.Francis Matric School at Sarakkavilai and St.Francis 11/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 Matriculation Higher Secondary School at Surankudi. Apart from the two schools, the congregation runs an Ashraman by name Shanthi Nivas at Sarakkavilai. The fifth respondent is the competent authority to appoint any correspondent to the school. There is no dispute regarding the above fact. Earlier, the second respondent was appointed as a correspondent of the school.
12. He committed the mischief of misappropriation of Rs.65,00,000/- and hence, an enquiry was conducted and he admitted the said misappropriation and undertook to pay the amount. Therefore, the fifth respondent transferred him from the said school from the post of correspondent and appointed the petitioner as a correspondent of the school. The fifth respondent further directed him to hand over the management of the school. But, he claimed right over the management through the lease deed and he also claimed repayment of Rs.2.5 crores spent for the development of the school and land of the congregation. He also stated that he borrowed a sum of Rs.55,00,000/- from the third respondent for the development of the school and hence, he was legally entitled to retain the possession. He was removed from the congregation and he filed the appeal and the same was also dismissed by the appellate authority. Therefore, he has no locus to retain in possession of the school management. Further, he filed the suit 12/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 along with the interim injunction application under order 39 Rule 1 and 2 CPC and the same was also dismissed. He also filed appeal and the same was also dismissed. That being the situation, he has no right to retain the possession of the school which belongs to the fifth respondent's congregation. The third respondent, money lender who claims repayment of money has no right to interfere in the management of the school.
13. The second respondent has no jurisdiction to borrow the amount from the third respondent by showing his management over the school. Hence, the plea of the second respondent that he has right over the management is not accepted. Furthermore, there was a serious charge of misappropriation and the same was found to be true by the competent committee of authority congregation. Aggrieved over the same, he filed an appeal before the appellate authorities. The appellant authority dismissed the appeal.
14. The second respondent has no locus to hold the properties of the school. The third respondent, money lender who claims right over the school through the second respondent has also no right at all to claim the management of the school. Hence, the possession by the respondent Nos.2 and 3 of the 13/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 management of the school is illegal. But the first respondent, without considering the above factual aspects, passed the present impugned order. In the said circumstances, this Court is inclined to quash the impugned order passed by the first respondent and quash the order of the first respondent and consequently directs the fifth respondent to appoint any person, for the management of the school.
15. The first respondent, before passing the impugned order, should have ascertained the ownership of the management. When the competent person is appointed as the correspondent of the school, namely the petitioner, the first respondent is duty bound to pass the order in favour of the petitioner. Without doing so, the first respondent passed the impugned order and conferred the benefit to the second respondent, and thereby authorised his illegal possession. Running of the school is the valuable right of the minority. The fifth respondent is the Head of the Institution. He appointed the petitioner as the correspondent. In the said circumstances, the first respondent has no jurisdiction to pass the order against the order of the fifth respondent. The interference in the school administration, by passing the impugned order amounts to interference with the administration of the minority institution. The minority institution has every 14/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 right to run the educational institutions as per their regulations. As per the regulations, the second respondent has no right to remain in the school premises. He has been removed from service and also the same was confirmed by the appellate authorities.
16. In the said circumstances, without any right over the school, the interference made by the second respondent amounts to illegal act. The said illegality was not considered by the first respondent. While deciding proceedings under Section 145 of Cr.P.C., it is the duty of the first respondent to consider who has a right to take over the management. In this case, the fifth respondent clearly affirmed the stand of the petitioner. It is not disputed by the second respondent that the petitioner was not appointed by the fifth respondent. As a member, he is duty bound to obey the order of the fifth respondent. He has not made any allegations against the fifth respondent and the case is not that the fifth respondent malafidely acted against the interest of the second respondent. The misappropriation committed by the second respondent was proved. Hence, he was rightly terminated from their congregation and the same was confirmed by the appellate authority. Hence, his claim to hold the management of the school has not been properly considered by the first respondent before issuing the 15/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 present impugned order.
17. The subject matter is the administration of the school. The school belongs to the fifth respondent's congregation. The second respondent is removed from the congregation and also as a correspondent of the school. In the said situation as held above he has no authority to interfere with the administration of the school and retain the possession. Therefore, the petitioner filed the Crl.O.P.(MD).No.7972 of 2021 seeking police protection by submitting his representation to the Superintendent of Police, Kanniyakumari District. Pending the same, the first respondent passed the impugned order directing the second respondent to continue as correspondent. In the last portion of the impugned order, the first respondent stated that it is open for the fifth respondent to appoint any person as a correspondent. Hence, this Court called the fifth respondent in person and he stated that the petitioner has been appointed as a correspondent.
18. The second respondent has no authority to borrow money from the third respondent by showing the school management. He sent the notice of refund of the amount after the enquiry conducted by the fifth respondent relating 16/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 to the misappropriation committed by him to the tune of Rs.65,00,000/-. If any payment has been made by the third respondent to the second respondent for the development of the school, his remedy is to file a suit for recovery of money. Similarly, if the second respondent has spent any amount for the development of the school and the land of congregation, his remedy is to file a suit for the recovery of the said amount. He has no right to interfere with the administration after the order of the fifth respondent removing him from the post of correspondent and from the congregation itself. In the above situations, this Court taking into consideration, the illegal possession of the school and administration in the hands of the respondent Nos. 2 to 4, without any legal right, directs the Superintendent of Police, Kanniyakumari District to hand over the possession of the school to the fifth respondent by dispossessing respondent Nos.2 to 4 from the school premises in the light of the quashment of the impugned order passed by the first respondent in the interest of the school. It is open to the fifth respondent to appoint any suitable person as a correspondent as per the congregation Rules and Regulations.
19. Accordingly, the writ petition in W.P.(MD).No.15663 of 2021 and the Crl.O.P.No.7972 of 2021 are allowed with the following directions: 17/20
https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021
(i) The impugned order passed by the first respondent in W.P.(MD).No. 15663 of 2021 in proceedings Ref.No.A3/1659/2021 dated 25.08.2021 is hereby quashed.
(ii) Since the fifth respondent in W.P.(MD).No.15663 of 2021 is entitled to the subject matter of the property namely the schools and its administration, the first respondent in Crl.O.P.(MD).No.7972 of 2021 shall dispossess respondent Nos.2 to 4 in W.P.(MD).No.15663 of 2021 from the school premises and hand over the same to the fifth respondent/Bro.Savarimuthu in on or before 18.12.2023.
(iii) The first respondent in Crl.O.P.(MD).No.7972 of 2021 is directed to give suitable police protection to the fifth respondent to run the school without any hindrance from the respondent Nos.2 to 4.
Consequently, connected miscellaneous petitions are closed.
20. List this case on 20.12.2023, “for reporting compliance.” 05.12.2023 NCC : Yes/No Index : Yes/No Internet : Yes/No sbn Note: Issue order copy on 13.12.2023 18/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 To
1.The Revenue Divisional Officer, Office of the Revenue Divisional Office, Nagercoil.
2. The Superintendent of Police, Kanniyakumari District.
19/20 https://www.mhc.tn.gov.in/judis W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 K.K.RAMAKRISHNAN, J.
sbn W.P.(MD).No.15663 of 2021 & Crl.O.P.(MD).No.7972 of 2021 and W.M.P.(MD).Nos.12613 to 12615 of 2021 05.12.2023 20/20 https://www.mhc.tn.gov.in/judis