IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 W A. No. 2320 of 2009 -------------------------------------- AGAINST THE JUDGEMENT IN WPC.16584/2009 Dated 21/08/2009 .................... APPELLANT(S)//RESPONDENTS 4 & 5: ---------------------- 1. K.O.M.PARAMESWARAN NAMPOOTHIRIPAD, S/O. BHAVADASAN NAMPOOTHIRIPAD, ORUPULASSERI MANA, KULUKKALLOOR POST, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. K.O.M.BHAVADASAN, AGED 62 YEARS, S/O. K.O.M.BHAVADASAN NAMPOOTHIRIPAD, ORUPULASSERI MANA, KULUKKALLOOR POST, SHORNUR, PALAKKAD DISTRICT. BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S)//PETITIONER & RESPONDENTS 1 TO 3:- ------------------------ 1. K.O.M.SUMA, D/O. LATE KALI ANTHARJANAM, ORUPULASSERI MANA, KULUKKALLOOR POST, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 4. ASSISTANT EDUCATIONAL OFFICER, SHORANUR. R1 BY ADVS. SRI. P.K. SURESH KUMAR & SRI. SANTHEEP ANKARATH R2 TO R4 BY GOVERNMENT PLEADER SMT. R. BINDU THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A.No.2320 of 2009 ------------------------------ Dated this, the 4th day of November, 2009 JUDGMENT Balakrishnan Nair, J. The appellants were respondents 4 and 5 in the Writ Petition. The first respondent herein was the writ petitioner. The dispute regarding the right to manage Aided U.P. School, Kulukkalloor was the subject matter of the Writ Petition. The brief facts of the case, as stated by the appellants, are the following: The school was established as an aided elementary school, Kulukalloor in the year 1932. Sri.Bhavadasan Namboodiripad was the owner and therefore, the educational agency of the school, but, his brother Sri.K.O.M.Neelakantan Namboodiripad was functioning as its Manager all along. On the death of Neelakantan Namboodiripad in 1983, his wife Kali Antharjanam, became the Manager. She continued as such till her death on 17.9.2005. The dispute arose in 2005 when the W.A. No.2320 of 2009 - 2 - first respondent/writ petitioner, who is the daughter of Kali Antharjanam, moved to approve her as Manager of the School. She was supported by other children of Kali Antharjanam also. 2. The appellants submit that there was a family partition in the family of Sankaran Namboodiripad, who was the father of Bhavadasan Namboodiripad and Neelakantan Namboodiripad. In the family partition, C schedule properties were allotted to Parvathi Antharjanam, one of the wives of Bhavadasan Namboodiripad and the mother of the appellants. One of the C schedule items was the landed property in which the school was located. It is common ground that in the said schedule, the existence of the school was not mentioned. Parvathi Antharjanam executed a Will in 1975 bequeathing the property in which the school is located to the second appellant. She died on 27.10.1976. At the relevant time, the second appellant was working as a Journalist in Delhi. According to the appellants, though Parvathi Antharjanam and W.A. No.2320 of 2009 - 3 - later second appellant, was the owner of the school, they did not object to the continuance of Neelakantan Namboodiripad and his wife as Manager of the school, as they were the elder members in the family. But, when motion was made by the first respondent/writ petitioner to approve her as Manager, the second appellant objected to the same and made a counter proposal for approval of appointment of first appellant as Manager. But, the A.E.O. by Ext.P9 order dated 13.8.2007 rejected the claim of the second appellant and upheld the motion made by the first respondent. He challenged Ext.P9 before the Director of Public Instruction. The D.P.I. by Ext.P1 order repelled the said challenge. Then the second appellant moved the Government in revision. The revision was allowed by the Government by Ext.P2 order dated 4.6.2009, upholding the claim of the second appellant. The relevant portion of the order reads as follows: “7. As per Rule 3 & 3(2) Chapter III KER. individual proprietor appointed by the Educational Agency shall be the manager. In Mar Theophilus v. State of Kerala (1986 KLT SN 57) the Hon'ble W.A. No.2320 of 2009 - 4 - High Court held that there should be some one to function as manager and the someone should be one chosen by a person who is prima facie at least the owner of the institution. It is seen that the revision petitioner seems to have got the proprietary right over the property in which AUPS, Kulukkalloor is situated. The revision petitioner had produced land tax receipt levied on Resurvey No.247/06 with the owners name as “Sri.K.O.M.Bhavadasan”. The Village Officer has also certified that AUPS, Kulukkalloor is situated in the Resurvey No.247/06 (Lr.No.63/08 dated 18.06.2008). Further, there is no solid and dependable evidence to prove that Sri.K.O.M.Neelakantan and Smt.Kali Antharjanam were the Educational Agency. 8. In view of the above circumstances and in tune with the principle laid down in Philippose Mar Theophilus v. State of Kerala (1986 KLT SN 57 Case No.93) Sri.K.O.M.Parameswaran Namboodiripad is appointed as the manager of AUPS, Kurukkalloor for the time being to fill the vacuum till the parties settle the claim through Civil Court. The revision petition read as 3rd paper above is allowed to this extent and proceedings read as 1st and 2nd papers above are set aside.” W.A. No.2320 of 2009 - 5 - From the above, it would appear that the second appellant got the property where the school stands mutated in his favour and he also obtained possession certificate of the property from the Village Officer. Acting on those materials, the Government took the view that, there is prima facie evidence that, second appellant is the owner of the land in which the school is located, and therefore, upheld his right to manage the school till the dispute is finally settled by the civil court. 3. The first respondent herein filed the Writ Petition challenging Ext.P2 and seeking consequential reliefs. The first appellant/4th respondent filed a counter affidavit resisting the prayers in the Writ Petition. The first respondent/writ petitioner filed a reply affidavit. The learned Single Judge after hearing both sides held that, it is for the second appellant to establish his right to manage the school, since the school was managed all along by the family of the first respondent. It was ordered that she shall be allowed to continue as Manager till a decision is taken by the competent W.A. No.2320 of 2009 - 6 - Civil Court in the dispute. Feeling aggrieved by the said direction, the appellants have preferred this Writ Appeal. 4. According to the appellants, the family partition in 1957 and the Will executed by Parvathi Antharjanam in 1975 will prove the title of the second appellant over the property where the school stands. So, the motion made by the first respondent for approval of her appointment was one involving change of ownership and therefore, it is a matter which should have been dealt with under Rule 5A of Chapter III of the Kerala Education Rules (for short, 'the K.E.R.'). Such a change of management requires previous sanction of the D.P.I., it is submitted. The appellants also pointed out that continuance of Neelakantan Namboodiripad after 1957 to 1983 and Kali Antharjanam from 1983 till her death in 2005 was with the consent of the second appellant. Now, without his consent, the first respondent/writ petitioner cannot claim managership. Further, it is pointed out that, even assuming Kali Antharjanam was the educational agency and the W.A. No.2320 of 2009 - 7 - Manager, on her death, the legal heirs became a corporate educational agency and thereafter the change of management can be sought only as per the provisions of Rule 2 of Chapter III of the K.E.R. Therefore, the decisions of the A.E.O. and that of D.P.I are unsupportable in law. So, the Government rightly decided to allow the second appellant to manage the school till the dispute between the parties is settled by the decision of a competent civil court, it is submitted. The learned counsel for the first respondent, on the other hand, submitted that the educational agency of a school need not necessarily be the owner of the property where the school is located. He need be in possession of it. It can be by way of lease, licence or other methods known to law. The predecessors in interest of the first respondent were all along in possession of the property where the school is located. There is nothing on record to show that after 1957, Neelakantan Namboodiripad continued as Manager with the consent or on appointment by Parvathi Antharjanam. It is also pointed out that Kali Antharjanam became Manager of W.A. No.2320 of 2009 - 8 - the school in 1983, without being appointed by the second appellant. Even assuming the second appellant has some right over the property, the first respondent and her predecessors in interest were in possession of the property for the last several years and they were managing the school as of right without any appointment by Parvathi Antharjanam or the second appellant. A mere right over the property will not enable the second appellant to claim that he is the educational agency of the school. There can be an educational agency without having any title over the property in which the school is located. In support of that submission, the learned counsel for the first respondent brought to our notice Rule 1 of Chapter III of the K.E.R., wherein mention is made about right to manage and not about right to property. Reference was also made to sub-rule (v) of Rule 6 and sub-rule (i) of Rule 9 of Chapter V of the K.E.R. Those rules would show that the title to the property as owner is not necessary for getting sanction for establishing a school. Since the first respondent's family was all along functioning as the W.A. No.2320 of 2009 - 9 - educational agency, the learned Single Judge rightly directed that said arrangement may continue till the second appellant who came forward with a new claim in 2005 establishes his right before the civil court. 5. We considered the rival submissions made at the Bar and also perused the relevant statutory provisions and also the materials on record. It is not in dispute that ever-since the establishment of the school, Neelakantan Namboodiripad was functioning as the Manager of the school till his death in 1983. In 1983, his widow Kali Antharjanam succeeded to the managership. There is nothing on record to show that she was appointed as Manager by the second appellant. There is also no material on record to show that the approval of her appointment as manager was made under Rule 5A of Chapter III of the K.E.R.. We also notice that the second appellant, for the first time, in 2005, asserted that he is the educational agency and only with his consent anyone can act as Manager. He has got the property in which the W.A. No.2320 of 2009 - 10 - school is located mutated in his favour and also got the possession certificate for the said property from the Village Officer. The mutation made in favour of the second appellant is under challenge before the District Collector, at the instance of the brother of the first respondent. Prima facie, it would be appear that the second appellant has put forward his claim for the first time in 2005. Undisputedly the predecessors-in- interest of the first respondent were functioning as Manager of the school. It would prima facie appear that they were acting as Educational agency also. So, the learned Single Judge took the view that the said arrangement should continue until the dispute is decided by the competent civil court. This view was taken, reversing the view of the Government that till the matter is settled by the civil court, the second appellant should be recognised as the educational agency and his nominee should be approved as Manager. 6. We notice that, who is the educational agency of the school, is the question to be resolved in this case. It W.A. No.2320 of 2009 - 11 - can be resolved only by the civil court after taking evidence. It cannot be decided in a Writ Petition under Article 226 of the Constitution of India. As mentioned earlier, there is, prima facie, materials to show that the first respondent's predecessors in interest were all along managing the school and functioning as educational agency also. At any rate, no one came forward claiming that he is the educational agency till 2005. So, we think the decision of the Government to disturb the prevailing state of affairs was not proper and the view taken by the learned Single Judge appears to us, to be the correct view. In this case, the second appellant has come forward asserting his right as the educational agency armed with certain documents and to take over the school. We think, if the learned Single Judge has turned him away to establish his right in a civil suit, the same cannot be described as illegal or perverse. Further, the contention raised by the appellants relying on Rule 2 of Chapter III of the K.E.R. does not impress us. It is a ground available to other legal heirs of Neelakantan Namboodiripad/Kali Antharjanam, if they dispute W.A. No.2320 of 2009 - 12 - the claim of the first respondent to manage the school. In the result, we find no reason to interfere with the judgment under appeal. Accordingly, the Writ Appeal is dismissed. But, if the second appellant moves the Civil Court, his claim shall be considered by the court concerned, without being influenced by anything said in this judgment or the judgment of the learned Single Judge. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)