IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 CRP.No. 468 of 2011() --------------------------------- IA.408/2011 IN OS.8/1958 of DISTRICT COURT, ALAPPUZHA .................... REVN. PETITIONER(S)1ST RESPONDENT ------------------------------------------------------------ ALAPPUZHA ANANTHANARAYANAPURAM THURAVOOR TIRUMALA DEVASWOM REPRESENTED BY ITS PRESENT PRESIDENT J. RADHAKRISHNA NAIK, S/O.JANARDHANA NAIK, REVATHY NIVAS, CMC-29, CHERTHALA. BY ADV. SRI.K.V.SADANANDA PRABHU RESPONDENT(S)/PETITIONERS ------------------------------------------------ 1. P.RAMESH BABU, S/O.PADMANABHA NAIK, PADMAGIRI NIVAS, A.N.PURAM, ALAPPUZHA.PIN- 688 001. 2. G.NARAYANA PAI, S/O.GOPALA PAI, TIRUMALA BHAGAM P.O, VAYALAPURAM THURAVOOR.PIN- 688 540 3. G.VINAYACHANDRAN, S/O. GOPINATHA PRABHU, AYODHYA, A.N.PURAM, ALAPPUZHA.PIN- 688 001. 4. S.RAJAKUMAR, ALINGAL HOUSE, TIRUMALA BHAGOM P.O, THURAVOOR. PIN- 688 540. R1 TO R3 BY ADV. SRI.S.VINOD BHAT SRI.LEGITH T.KOTTAKKAL R4 BY ADV. SRI.R.LAKSHMI NARAYAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P.JOSEPH, J. ==================================== C.R.P. No.468 of 2011 ==================================== Dated this the 10th day of November, 2011 O R D E R The two questions urged for a decision in this Civil Revision arising from the order dated 24.10.2011 of the court of learned District Judge, Alappuzha on I.A. No.408 of 2011 in O.S. No.8 of 1058 are: (1) Whether it was within the power of the learned District Judge to entertain an application to set aside the election after the Scheme was settled by the learned District Judge? (2) Whether learned District Judge was correct in upsetting election of the Election Commission in the meeting of the General Body held on 13.02.2011? 2. Petitioner is the Alappuzha Ananthanarayanapuram C.R.P. No.468 of 2011 -: 2 :- Thuravoor Thirumala Devaswom (for short, “the Devaswom”) regarding which it is not disputed that a Scheme was settled by the District Court, Alappuzha in the year, 1070ME. Later, some amendments were made to the Scheme as per judgment in O.S. No.8 of 1958. The Scheme now in force is Ext.A1 (marked in the court below on I.A. No.408 of 2011). As per provisions of Ext.A1, the Managing Committee was elected in April, 2006 the tenure of which was for a period of five years. As per the Scheme the Managing Committee was to convene meeting of the Mahajanayogam (hereinafter referred as “the General Body”) once in every year. While so, complaint arose from some members of the General Body that the Managing Committee in office from April, 2006 onwards was not convening meeting of the General Body. There were complaints regarding (alleged) maladministration of the Devaswom by the Managing Committee then in office, failing to get its accounts audited and balance sheet prepared, etc. Those complaints were brought before the learned District Judge in the form of interlocutory applications filed in O.S. No.8 of 1958. On those applications, learned District Judge was giving directions for auditing of accounts, preparation of balance sheet, etc. At some point of time, the President of C.R.P. No.468 of 2011 -: 3 :- the Managing Committee and the Chartered Accountant were directed to appear in the court of learned District Judge to explain failure to audit the accounts and prepare balance sheet. The Chartered Accountant explained before learned District Judge that there was no failure on his part and that delay in preparation of the audited balance sheet was due to lack of asset/liability statement with the Devaswom. While so, respondents 1 to 3 filed I.A. No.720 of 2008 (in O.S. No.8 of 1958) alleging maladministration of the Devaswom, swindling of funds and complaining that meeting of the General Body had not been convened from 2006 onwards from the time the then Managing Committee assumed office. In I.A. No.720 of 2010 respondents 1 to 3 requested learned District Judge to take over administration of the Devaswom and give necessary direction to conduct election in accordance with Ext.A1, Scheme. On that application learned District Judge issued directions for auditing of accounts and preparation of balance sheet. While that application was pending, 4th respondent filed I.A. No.6 of 2011 to hear maintainability of I.A. No.720 of 2008. 3. In the meantime, 4th respondent filed W.P(C) No.28721 of 2004 in this Court for appointment of a Receiver. C.R.P. No.468 of 2011 -: 4 :- This Court considered the rival contentions and disposed of the Writ Petition as per judgment dated 20.10.2004 observing that, “Having considered all the relevant inputs, it must be observed that the District Court, Alappuzha does certainly have jurisdiction, as per amended Clause P of Ext.P1 as extracted above” (Ext.P1 referred to above is Ext.A1 marked in I.A. No.720 of 2008). 4. In view of I.A. No.6 of 2011 filed by the 4th respondent to hear maintainability of I.A. No.720 of 2008, learned District Judge heard the maintainability and passed order on 12.04.2011. Learned District Judge held that in view of Rule 190 read with clause (P) of Rule 2 of Part I of Ext.A1 and the observations in the judgment in W.P(C) No.28721 of 2004 learned District Judge has power to entertain I.A. No.720 of 2008 and pass appropriate orders. The said order, it is submitted, was not challenged and became final. 5. While so, on I.A. No.720 of 2008 respondents 1 and 2 C.R.P. No.468 of 2011 -: 5 :- therein filed a report stating that a meeting of the Managing Committee was held on 21.01.2011 and after discussion the Auditor's report was approved. The Managing Committee produced publication dated 21.01.2011 before the learned District Judge to show that the Managing Committee decided to convene a meeting of the General Body on 06.02.2011. Learned District Judge accepted the steps taken for affixture in the court notice board. Considering the apprehension of respondents 1 to 3 (petitioners in I.A. No.720 of 2008) learned District Judge appointed Advocate C.Parameswaran as observer in the meeting of the General Body to be convened on 06.02.2011 and Advocate M.Sreenivasa Mallan was appointed to assist Advocate C.Parameswaran. 6. Accordingly a meeting of the General Body was held on 06.02.2011, there was no sufficient quorum for the said meeting and hence the meeting was adjourned to be held on 13.02.2011. On that day, the meeting elected a Commission to conduct the election. The validity of meeting of the General Body held on 13.02.2011 was challenged in the court of learned District Judge in I.A. No.408 of 2011. Learned District Judge after hearing both sides held that meeting of the General Body and the C.R.P. No.468 of 2011 -: 6 :- transactions which took place in that meeting on 13.02.2011 are illegal since that being a meeting convened as directed by learned District Judge, there was no provision in Ext.A1, Scheme to adjourn the meeting from 06.02.2011 to 13.02.2011. The election of the Election Commission and the General Body held on 13.02.2011 were set aside by the learned District Judge as per the impugned order which is under challenge in this Civil Revision. 7. Learned counsel for petitioner-Devaswom contended that I.A. No.720 of 2008 itself was not maintainable before learned District Judge since that is not a matter which came within the mischief of clauses (a) to (h) of sub-sec.(1) of Section 92 of the Code of Civil Procedure (for short, “the Code”). It is pointed out by the learned counsel that once the Scheme is framed and settled by the court it became functus officio and thereafter any matter relating to the administration of the Devaswom is not within the jurisdiction of learned District Judge. The dispute has to be taken before the regular civil court. It is contended that unless it is a matter coming within the scope of clauses (a) to (h) of sub-sec.(1) of Sec.92 of the Code, learned District Judge is not vested with the power to interfere in the matter even if it is assumed that it is provided so in Ext.A1, C.R.P. No.468 of 2011 -: 7 :- Scheme. Learned counsel has placed reliance on the decisions in Banganatha v. Krishnaswami (AIR 1924 Madras 369), Narayanamurthi v. Achayya (AIR 1925 Madras 411) and K. Narasinha Pai v. Chandi (AIR 1935 Madras 474). It is also contended by learned counsel that learned District Judge has proceeded on the assumption that the General Body meeting held on 06.2.2011 was convened as per order of the learned District Judge which is patently incorrect. According to the learned counsel, meeting of the General Body held on 06.02.2011 was not convened as per the direction or order of learned District Judge. When I.A. No.720 of 2008 was pending consideration before the learned District Judge, the Managing Committee in office reported before learned District Judge that it has decided to convene meeting of the General Body on 06.02.2011 and have taken steps to convene the said meeting which at the best, could be said to be approved by the learned District Judge on 25.01.2011. Nevertheless, the meeting continued to be one convened by the Managing Committee in office and hence it was within the right of the President of the Managing Committee to adjourn the meeting to C.R.P. No.468 of 2011 -: 8 :- 13.02.2011 on finding that there was no quorum on 06.02.2011. Learned District Judge was therefore not correct in setting aside the election of the Election Commission held on 13.02.2011 or the meeting held on that day. It is also submitted by learned counsel that the learned District Judge has not given proper consideration to the matter as it involves expense of lakhs of rupees for the Devaswom. It is submitted that following the decision taken on 13.02.2011 the Election Commission (elected in the General Body meeting held on 13.02.2011) had decided to conduct election on 22.05.2011 and declare the result on 23.05.2011. Accordingly election was held and the present Committee members took charge on 29.05.2011. Respondents 1 to 3 filed I.A No.986 of 2011 to stall meeting of the General Body scheduled to be held on 25.09.2011. There was an order dated 24.09.2011 not to hold the General Body as the General Body held on 13.02.2011 was under challenge in I.A. No.408 of 2011. Learned counsel submitted that convening of the above meetings involved expense of lakhs of rupees and hence it was not proper for the learned District Judge to set aside meeting of the General Body held on 13.02.2011 and the election of Election Commission on that day. C.R.P. No.468 of 2011 -: 9 :- 8. Learned counsel for the 4th respondent has supplemented the arguments of learned counsel for petitioner- Devaswom. Learned counsel has contended that the impugned order is liable to be set aside for reasons above stated. 9. Learned counsel for respondents 1 to 3 has contended that in view of Rule 190 read with clause (P) of Rule 2 of Part I of Ext.A1, Scheme as also the decision of this Court in W.P(C) No.28721 of 2004 learned District Judge had the power to entertain I.A. Nos.720 of 2008 and 408 of 2011. It is contended that the decisions relied on by learned counsel for petitioner- Devaswom have no application in view of a later decision in Syed Khaja Gulam Rasool (Died) And... v. K.M. Bijili Sahihb And Ors. (AIR 1965 Madras 404). According to the learned counsel the Managing Committee in office from April, 2006 onwards have always been maintaining that it is not necessary to convene the General Body which as it involves huge expense and it is at that time that learned District Judge passed order on 25.01.2011 on I.A. No.720 of 2008. According to learned counsel that order must be understood as directing the Managing Committee in office to convene meeting of the General Body on 06.02.1011 and hence it was not within the power of C.R.P. No.468 of 2011 -: 10 :- President of the Managing Committee to adjourn meeting of the General Body to 13.02.2011 for the reason that there was no quorum on 06.02.2011. It is argued that except when the General Body is convened by the President of the Managing Committee, there is no provision to adjourn the meeting for want for quorum. Viewed in that line, meeting of the General Body held on 13.02.2011 is illegal, without jurisdiction and the learned District Judge was justified in allowing I.A. No.408 of 2011. 10. I shall first consider the contention raised by the counsel as to the jurisdiction of learned District Judge to entertain I.A. No.720 of 2008 and I.A. No.408 of 2011. Rule 190 of Ext.A1, Scheme states that where the meeting of the General Body is not convened as required under the Scheme or the meeting of the General Body is not convened as requested by the members of the General Body that fact could be reported to the District Judge, Alappuzha in accordance with clause (P) of Rule 2 of Part I of Ext.A1 and the parties are to conduct themselves in accordance with the direction of the court in that regard. Clause (P) of Rule 2 of Part 1 of the Scheme states that if for any reason Managing Committee is unable to conduct General Body meeting, then, that matter shall be reported to the District Court and the C.R.P. No.468 of 2011 -: 11 :- District Court after calling for objections, shall have the power to pass appropriate orders in all matters in which approval of the General Body is necessary. If for any reason the Managing Committee members could not be elected on the expiry of term, then the committee members shall carry on management as directed by the District Court, Alappuzha and during that period the District court, Alappuzha shall be deemed to have assumed management of the institution. If the Managing Committee members fail to conduct election as provided in Ext.A1, Scheme the District Court shall assume management and the Managing Committee members shall be removed from office and the District court shall have the power to elect new Managing Committee members in such manner as it deems fit. 11. There could be no doubt that in view of Rule 190 read with clause (P) of Rule 2 of Part I of Ext.A1, Scheme where the Managing Committee in office does not convene the General Body meeting either as provided under the Scheme or as requested by the members of the General Body, it is within the power of the District Court to convene the meeting and issue necessary directions in the matter. 12. Then the next question is whether such power could C.R.P. No.468 of 2011 -: 12 :- be exercised by the District Court, Alappuzha for the reason that parties have agreed to confer jurisdiction on the said court. It is with reference to the said issue that learned counsel for petitioner-Devaswom has placed reliance on the decisions in Banganatha v. Krishnaswami , Narayanamurthi v. Achayya and K. Narasinha Pai v. Chandi, which I shall refer to. 13. In Narayanamurthi v. Achayya the Scheme was framed by the court for management of temples, appointment of trustees and related to other allied matters. Question that was raised before the High Court was whether grants were granted to the temples or deities and not to the Archakas. The Sub Judge held that grants were to the temples and not to the Archakas. That finding was challenged before the Madras High Court. The High Court held that it is far from desirable that courts should assume to themselves continued supervision of institutions for the management of which they are called upon to frame schemes. In K.Narasinha Pai v. Chandi a Scheme was framed by the Sub Judge for administration of the temple and by the scheme the general C.R.P. No.468 of 2011 -: 13 :- control and management of the affairs of the temple was vested with the Community referred to in the judgment. The scheme provided in a comprehensive manner for administration of the temple and laid down rules. Appeal before the High Court arose from the dismissal of an application made under clause 65 of the scheme. The High Court observed that the court acting in accordance with the provisions of the scheme would amount to an assumption of management of the trust by the court which was deprecated by the Full Bench in Veeraraghavachariar v. The Advocate General, Madras (AIR 1927 Madras 1073). It was held that even where the subject matter of the petition would not fall within the terms of Section 92 of the Code it seemed to the High Court that no scheme can give to the court a special jurisdiction any more than private persons, by contracting together can give the court power to deal in a particular way with any matter which arises between them. The High Court agreed with the view taken by the learned Sub Judge that if petitioners in the case wanted to compel the trustees to comply with the terms of the scheme, they must have recourse to a suit and not by moving in the scheme framed by the Sub Judge. In Ranganatha v. Krishnaswami it was C.R.P. No.468 of 2011 -: 14 :- held that once a scheme is framed under Sec.92 of the Code there is nothing remaining to execute (having regard to the facts of that case) and that the relief asked is that a scheme may be settled by the decree, plaintiffs have obtained what they have asked for (i.e., the framing of the scheme) and because of the particular clause in the scheme which enabled the court to interfere, the court cannot assume power on account of the clause in the scheme alone. 14. Learned counsel for respondent 1 to 3 has referred to the decision in Syed Khaja Gulam Rasool (Died) And... v. K.M. Bijili Sahihb And Ors.. There, a learned Single Judge of the Madras High court referred to the decision of the Full Bench in Veeraraghavachariar v. The Advocate General, Madras as being dissented by the Supreme Court in Anandrao v. Shamrao (AIR 1961 SC 1206). The Supreme Court disagreeing with the decision of the Full Bench in Veeraraghavachariar v. The Advocate General, Madras held that it is not necessary to hold that a suit under Sec.92 of the Code in which a scheme is framed providing such a clause is pending for ever, the scheme dealt with the administration of the trust and for the purpose of the scheme it would not be wrong or C.R.P. No.468 of 2011 -: 15 :- improper to treat a suit under Sec.92 as analogous to an administration suit. The Supreme Court took the view that it would be just and convenient to provide for a clause in the scheme which is framed for administration of the trust to allow for its modification by an application (in the scheme itself). No doubt, the decision in Veeraraghavachariar v. The Advocate General, Madras referred to a situation where request was made to remove the trustees from office. Learned Judge in Syed Khaja Gulam Rasool (Died) And... v. K.M. Bijili Sahihb And Ors. referred to the argument advanced on behalf of the respondent therein that the decision of the Supreme Court in Anandrao v. Shamrao was not applicable to the facts of the case. Learned Judge refused to accept the argument. It was held that an application for removal of trustees under clause 6 of the scheme was competent. 15. I am persuaded to think that a further, deeper consideration whether learned District Judge had the jurisdiction to interfere in the matter is not required as this Court in the judgment dated 20.10.2004 in W.P(C) No.28721 of 2004 filed by the 4th respondent observed that the learned District Judge, Alappuzha certainly has the jurisdiction as per the amended C.R.P. No.468 of 2011 -: 16 :- clause (P) of Rule 2 of Part I of Ext.A1 to deal with the matter. It is not disputed that judgment dated 20.10.2004 has become final. If that be so, that judgment and whatever observations made therein are binding on petitioner. I must also bear in mind that based on the above observations in the judgment dated 20.10.2004 learned District Judge held by order dated 12.04.2011 that the said court has jurisdiction to entertain the matter and that finding also has not been challenged. In the above view of the matter contention raised by the petitioner that learned District Judge has no jurisdiction to entertain either I.A. No.720 of 2008 or I.A. No.408 of 2011 has to be repelled. I do so. 16. Then the question is whether General Body meeting held on 13.02.2011 is invalid as found by the learned District Judge. Clause 161 of Ext.A1 prescribes quorum for the meeting of the General Body as 200. Clause 166 says that ordinarily, the General Body meeting is to be convened by the President of petitioner-Devaswom and that within 13 months of such General Body meeting, the next meeting is to be convened. But it is compulsorily required that meeting of the General Body is convened by the President within four months of expiry of the financial year. Rule 175 of Ext.A1 states that if the C.R.P. No.468 of 2011 -: 17 :- quorum is not made up within one hour of commencement of the meeting convened as per request of members of the General Body, the said meeting is to be dispersed. But if it is a meeting convened by the President of petitioner and there is no quorum, it is within the power of President to adjourn the meeting to the corresponding day and time on the next week to be held at the same place. On the adjourned day if quorum is not satisfied within one hour, it is open to treat the quorum as complete and the General Body has to transact its business. 17. In the present case Learned District Judge proceeded on the assumption that meeting of the General Body was convened on 06.02.2001 as per direction of the learned District Judge in which case the second limb of Rule 175 of Ext.A1 has no application. Therefore when it was found that there was no quorum for the General Body meeting held on 06.02.2011 the meeting had to be dispersed and the question of adjourning the meeting to the corresponding day and time of the succeeding week to be held at the same place did not arise. It is on that premise that learned District Judge held that the General Body meeting held on 13.02.2011 is illegal and allowed I.A. No.408 of 2011. C.R.P. No.468 of 2011 -: 18 :- 18. To decide whether that view of the learned District Judge is correct or not, reference is required to the manner in which the meeting was convened on 06.02.2011. I referred to the complaint which respondents 1 to 3 made before the learned District Judge that right from the time the Managing Committee assumed office in April, 2006 it had not convened meetings of the General Body until respondents 1 to 3 filed I.A. No.720 of 2008. According to respondents 1 to 3, the stand of the Managing Committee as regards convening meeting of the General Body was that it was an expensive affair. But from that alone, no inference is possible that meeting convened on 06.02.2011 was as directed by the learned District Judge as Rule 190 of Ext.A1 provides. Reference can be made to the order dated 25.01.2011 on I.A. No.720 of 2008. That order states that petitioner, represented by its President filed a report before learned District Judge stating that a meeting of the Managing Committee was held on 21.01.2011 and that petitioner produced before the learned District Judge a publication dated 21.01.2011 to show that the General Body meeting is to be held on 06.02.2011. True, that the steps for affixture in the court's notice board (for the said meeting) was accepted. It is also true that C.R.P. No.468 of 2011 -: 19 :- considering the apprehension of respondents 1 to 3, learned District Judge appointed two Advocates as observers in the meeting to be held on 06.02.2011. But reading from the order dated 25.01.2011,