IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 16584 of 2009(P) ------------------------------------- PETITIONER(S): ------------------------- K.O.M.SUMA, D/O. LATE KALI ANTHARJANAM, ORUPULASSERI MANA, KULUKKALLOOR POST, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS.MR.SANTHEEP ANKARATH MR.V.C.MADHAVANKUTTY DR.GEORGE ABRAHAM RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. ASSISTANT EDUCATIONAL OFFICER, SHORANUR. 4. K.O.M.PARAMESWARAN NAMPOOTHIRIPPAD, S/O. BAVADASAN NAMPOOTHIRIPPAD, ORUPURASSERI MANA, KULUKKALLOOR POST, OTTAPALAM TALUK, PALAKKAD DISTRICT. *ADDL. R5 IS IMPLEADED. 5. K.O.M. BHAVADASAN, AGED 62 YEARS, S/O.K.O.M. BHAVADASAN NAMBOOTHIRIPAD, ORUPURASSERI MAN, KULUKKALLOOR P.O., SHORNUR, PALAKKAD DISTRICT. ADDL. R5 IS IMPLEADED AS PER ORDER DTD. 30.6.09 IN IA. 7962/09. R1 TO R3 BY GOVT. PLEADER SMT.T.B.RAMANI R4 BY ADV. MR.V.A.MUHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON 21/08/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.16584/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 10.6.08 ISSUED BY THE 2ND RESPONDENT. P2:- COPY OF THE GO(RT) NO.2004/09/ G.EDN. DTD. 4.6.09 ISSUED BY GOVT. OF KERALA, GENERAL EDUCATION (F) DEPARTMENT. P3:- COPY OF THE LETTER ISSUED BY TEHSILDAR OTTAPALAM DTD. 5.3.08. P4:- COPY OF THE APPEAL MEMO SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 2ND REPSONDENT AND DTD. 14.9.07. P5:- COPY OF THE MEMO FROM MALABAR DISTRICT BOARD'S OFFICE, DTD. 18.2.38. P6:- COPY OF THE MEMO FROM MALABAR DISTRICT BOARD'S OFFICE, DTD. 11.7.39. P7:- COPY OF THE MEMO FROM MALABAR DISTRICT BOARD'S OFFICE, DTD. 3.10.39. P8:- COPY OF THE INSPECTION REPORT OF THE SCHOOL DTD. 28.5.1942. P9:- COPY OF THE ORDER OF THE 3RD RESPONDENT APPROVING THE PETITIONER AS THE MANAGER DTD. 13.8.07. RESPONDENT'S EXHIBITS R4(a):- COPY OF THE LETTER OF V.M.C. VASUDEVAN NAMBOODIRIPAD DTD. 24.1.1932. R4(b):- COPY OF THE LETTER OF THE MALABAR DISTRICT BOARD 19.10.1937. R4(c):- COPY OF THE PARTITION DEED. DTD. 6.8.57. 4(d):- COPY OF THE WILL DTD. 3.8.76. R4(e):- COPY OF THE LETTER OF K.O.M. PARAMESWARAN NAMBOOTHIRIPAD DTD. 5.10.05. R4(f):- COPY OF THE LETTER OF KOM PARAMESWARAN NAMBOOTHIRIPAD DT. 17.10.05. R4(g):- COPY OF THE LETTER NO.C/4482/05 OF THE ASSISTANT EDUCATIONAL OFFICER DTD. 6.12.05. R4(h):- COPY OF THE LETTER OF THE KULUKKALLUR GRAMA PANCHAYATH DTD. 1.8.07. R4(i):- COPY OF THE DO. DO. DT. 26.5.08. R4(j):- COPY OF THE TAX RECEIPT. DTD. 16.5.08. W.P.(C) NO.16584/2009 R4(k):- COPY OF THE POSSESSION CERTIFICATE DTD. 17.5.08. R4(l):- COPY OF THE LETTER OF THE VILLAGE OFFICER DTD. 18.6.08. R4(m):- COPY OF THE LETTER NO.B/163/08 OF THE ASSISTANT EDUCATIONAL OFFICER DTD. 22.9.08. R4(n):- COPY OF THE LETTER NO.C/1463/08 OF THE ASSISTANT EDUCATIONAL OFFICER DTD. 20.10.08. R4(o):- COPY OF THE ORDER NO.B/692/07 OF THE ASSISTANT EDUCATIONAL OFFICER DTD. 13.8.07. R4(p):- COPY OF THE LETTER OF K.O.M. PARAMESWARAN NAMBOOTHIRIPAD DTD. 9.6.09. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.16584 of 2009-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of August, 2009. JUDGMENT This case involves essentially a dispute regarding the management of a school originally named as ‘Aided Elementary School, Kulukkalloor (now, A.U.P.S., Kulukkalloor). The order passed by the Government as per Ext.P2 in a revision petition filed by the 4th respondent, is under challenge in this writ petition. The Government in exercise of the revisional powers, appointed the 4th respondent as Manager, as an interim measure, till the parties settle the claim through civil court, as a result of which, the petitioner who has been approved as Manager by the Assistant Educational Officer and by the Additional Director of Public Instruction, is affected and hence this writ petition has been filed. 2. The petitioner is tracing her right as a legal representative of the former manager, her mother who died on 17.8.2005. Upon her death, the remaining legal heirs consented for the appointment of the petitioner as Manager. The school was established prior to 1936 and the petitioner’s father late Shri Neelakandan Namboothirippad was the individual Manager of the school, the name of which was changed as A.U.P.S., Kulukkallor wpc 16584/2009 2 later. He died on 23.5.1983. On consent of all the legal heirs of late Shri Neelakandan Namboothirippad, Smt. Kali Antharjamam, his wife and mother of the petitioner was appointed as the Manager and she continued till her death on 17.8.2005. 3. While the application of the petitioner was being considered by the Assistant Educational Officer, the 4th respondent who is the son of a brother of late Shri Neelakandan Namboothirippad, raised a rival claim. But the Assistant Educational Officer rejected the same and found in favour of the petitioner. In appeal the same was confirmed by the Director of Public Instruction also which was challenged in revision by the 4th respondent. 4. Heard learned counsel for the petitioner, learned Govt. Pleader for official respondents and learned counsel appearing for the contesting respondents. 5. Learned counsel for the petitioner submitted that from 1936 onwards, the petitioner’s father and her mother were functioning as individual Managers, as owners of the school. At no point of time, the 4th respondent or his father, the brother of the petitioner’s father have claimed any right. It is submitted that the claim raised by the 4th respondent cannot be sustained and being a legal heir of the deceased Manager, the petitioner has been rightly recognized as Manager by the Assistant Educational wpc 16584/2009 3 Officer. It is pointed out that late Shri Neelakandan Namboothirippad was the Manager prior to the coming into force of the Kerala Eduction Act and Rules and subsequent to the coming into force of the Act and Rules also, he continued as Manager. It is pointed out that the entire case pleaded by the 4th respondent is based on the partition deed executed between the members of the family whereby the land wherein the school is situated, is allotted to the share of the father of the 4th respondent. But the said partition deed does not mention anything about the school and even after the partition effected, the petitioner’s father and thereafter her mother were continuing as Managers as full fledged owners of the school. 6. It is thus pointed out that the view taken by the Government cannot be supported. The dispute regarding title and ownership raised by the 4th respondent ought not have been adjudicated by the Government and it can only be decided by a Civil Court. It is therefore submitted that the view taken by the Government that the 4th respondent should be allowed to function as interim Manager, to fill up the vacuum cannot be supported. It is also pointed out that the Government relied upon the land tax receipt and a possession certificate to come to the conclusion that the property is owned by the 4th respondent. But the same is pending in appeal before the District Collector. wpc 16584/2009 4 7. By relying upon the averments in the counter affidavit filed by the 4th respondent, learned counsel appearing for the 4th respondent submitted that the petitioner's father and his father are brothers. They are the sons of one late Shri Sankaran Namboothiripad who owned all the properties of Orupulassery Mana. The school was started originally as a Higher Elementary School under the Malabar District Board in the year 1932. Late Shri Bhavadasan Namboothirippad was its owner and Manager and thus he was the educational agency of the school and he appointed late father of the petitioner as Manager. In the partition deed, ‘C’ schedule properties were allotted to the wife of Bhavadasan Namboothirippad, Smt. Parvathy Antherjanam. The partition deed is of the year 1957 (6.8.1957). She executed a will, Ext.R4(d), bequeathing her right to her son Shri K.O.M. Bhavadasan and she expired on 27.10.1977. Thereafter, Shri K.O.M. Bhavadasan is the owner of the property with the school and he is the Educational Agency of the school. 8. At the time of death of late Shri Neelakandan Namboothirippad, Shri K.O.M. Bhavasadan was working in Hindustan Times Newspaper in Delhi and on the basis of his consent, the mother of the petitioner became the Manager of the school. After her expiry, he appointed the 4th respondent as Manager and forwarded all the documents to the Assistant Educational wpc 16584/2009 5 Officer, as per Ext.R4(f). Ext.R4(i) to R4(l) are produced to show that the property where the school is situated, is owned by Shri K.O.M. Bhavasasan and these documents have been produced before the Government also. 9. The petitioner has filed a reply affidavit. It is pointed out by the petitioner in the reply affidavit that the entire case pleaded by the 4th respondent before the Government is that there were two other schools, viz. District Board Boys School and Girls School which have been amalgamated with the Elementary School. It is pointed out that even though the case of the 4th respondent is that his father started the Board Boys School and Girls School and later amalgamated them, no evidence is there for the same. The petitioner points out that there is nothing to show that late Shri Neelakandan Namboothirippad was acting as the Manager of the amalgamated school and after his death Smt. Kali Antharjanam was made the Manager of the said amalgamated school. It is pointed out that the Board schools were managed by the District Board and not by any private entities. Ext.P4 is the copy of the revision petition filed before the Government by the 4th respondent, which is produced by the petitioner to show that the plea raised by the 4th respondent is that the school is one which was amalgamated into one after the abolition of the Board school by the District Board, for which there is no evidence. wpc 16584/2009 6 10. It is the contention of the petitioner that the father of the petitioner started the Elementary School with the aid of Madras Government and it became an aided Elementary School with standards I to VIII. Ext.P8 inspection report dated 28.5.1942 is produced in support of the above plea. Thus, it is contended that there is no evidence to show that the Elementary School had amalgamated with the Board school, but actually there was no such amalgamation. At no point of time the fourth respondent's father was the Manager, or owner of the School. 11. Learned counsel for the contesting respondents relied upon a decision of this court in Mar Theophilus v. State of Kerala (1986 KLT S.N. page 57, Case No.93) which is relied upon by the Government in Ext.P2 order to uphold prima facie, the case of the 4th respondent. In fact, the Government was of the view that the 4th respondent's brother has got the proprietary right over the property in which the school is situated and the materials in support of the above finding are the copy of the land tax receipt and the certificate of the Village Officer. 12. The question is whether the view taken by this court in Mar Theophilus’s case (1986 KLT S.N. page 57, case No.93), supports the order passed by the Government. The full text of the judgment is reported as wpc 16584/2009 7 Dr. Philippose Mar Theophilus v. State of Kerala (1986 KLJ 1069). 13. A short resume of the facts of the above case is relevant in this context. Therein, the school was established by one Rev. Father Thomas Varghese which was upgraded as a High School later. In 1948 he executed a will, Ext.P8 under which the school and some other properties connected with the institution were to pass, on his death, to the Metropolitans of Angamali ordained and accepted by the Patriarch of Antioch, from time to time. Subsequent to his death in November, 1966, the Catholicos, as the head of the united religious denomination, temporarily took over the administration of the Angamali diocese and its establishments, including the school in question. In 1975 disputes arose whereby the 4th respondent in the writ petition, viz. Thomas Mar Dionysius) was appointed as Metropolitan of the Angamali Diocese by the Patriarch of Antioch. Thereafter, on the basis of the will, claim was set up by the 4th respondent. The Director of Public Instruction rejected the claim stating that the issue raised is not a simple question to be decided and therefore, the matter will have to be decided in a civil suit. Rule 5A does not empower the Director of Public Instruction to adjudicate the ownership of the school. In appeal, the said order was reversed by the Government, mainly by relying upon the provisions of the will. That was challenged in the writ petition. In para 14 wpc 16584/2009 8 of the judgment, this court examined the power of the Director of Public Instruction under Rule 5A of Chapter III K.E.R. After referring to the earlier decisions of this court, viz. Mar Aprem Metropolitan v. D.E.O. and another (1975 KLT SN 34), Sathyanesan v. State of Kerala (1984 KLT 773) and Iysha Narayanan v. State of Kerala (ILR 1985 I Ker.348) taking the view that the powers of educational agency under Rules 3 to 5 of Chapter III K.E.R. were of a limited nature and the final decision will have to be taken by the civil court, this court held thus: “The case law thus suggests that abdication of jurisdiction (under Rule 5A) by the statutory authorities in every case, on the ground that the dispute is a fit one for the civil court, cannot be justified; it also suggests that there would be cases where the disputes involve complicated questions of fact and law beyond their reach. In each case arising under Rule 5A, therefore, the D.P.I. (or Government) will have to decide whether a case of change of ownership is involved, so as to justify grant of approval for a consequent change of management. If possible they should decide the questions in all cases, at least for the limited purposes of the Act and Rules. But where the problems are far too complex, requiring the taking of evidence and the determination of difficult legal questions, they can certainly hold their hands and await appropriate decisions from civil courts, if they are satisfied that there would be no vacuum in the management of the school in the meanwhile. After all, what is wpc 16584/2009 9 important is that there should be some one to function as Manager under the control of the Educational authorities; and that that some one should be one chosen by a person who is prima facie at least, the owner of the institution. The question of real ownership and a final determination of the same, in so far as they amount to recognition of civil rights are obviously out of bounds for the D.P.I. and the Government.” It is true that this court observed in the said para, while examining the question, that “after all, what is important is that there should be some one to function as Manager under the control of the Educational authorities; and that that some one should be one chosen by a person who is prima facie at least, the owner of the institution. The question of real ownership and a final determination of the same, in so far as they amount to recognition of civil rights are obviously out of bounds for the D.P.I. and the Government.” 14. The context under which the observations were made is important to see whether it squarely applies on the particular fact situation of this case. This court was examining the power of the Director of Public Instruction under Rule 5A, whereas in this case it is not by exercise of such power that the Asst. Educational Officer and the Director of Public Instruction passed orders. Rule 5A applies in a case where there is a change of management including change of ownership. In fact, it was held that where the problems wpc 16584/2009 10 are far too complex requiring the taking of evidence and the determination of difficult legal question, they can certainly hold their hands and await appropriate decisions from civil courts, if they are satisfied that there would be no vacuum in the management of the school in the meanwhile. After stating the said legal principles, it was further observed that there should be some one to function as Manager under the control of the Educational authorities; and that that some one should be one chosen by a person who is prima facie at least, the owner of the institution. It was not so absolute in terms, as applied by the Government, de hors the facts of every case. Therefore, as held by this court in the above decision, when a question of real ownership and a final determination of the same is necessary, the matter is out of bounds of the Director of Public Instruction and the Government. 15. Thus, evidently the said observations will not help the 4th respondent herein to claim managership merely on the basis of land tax receipt and possession certificate. Admittedly, the partition deed does not mention the school and the properties. The petitioner is also disputing the correctness of the will also by contending that late Smt. Parvathy Antharjanam had no sound and disposing state of mind. 16. While examining the contentions of the 4th respondent, it is important to trace the history as pleaded by him. According to him, there wpc 16584/2009 11 were two schools conducted by Malappuram District Board and those schools were amalgamated with the Elementary School and the 4th respondent's father was the educational agency who allowed the late father of the petitioner to function as Manager. In fact, no evidence is forthcoming in support of the above plea, as rightly pointed out by the learned counsel for the petitioner. Then, the other contention raised is that the schools were functioning in the buildings of late Bhavadasan Namboodiripad, the father of the 4th respondent and he entrusted the management to his brother. There is no evidence in support of this plea also. 17. The further plea is that at the time when the management was approved in favour of late mother of the petitioner also, it was with the consent of the brother of the 4th respondent. There is nothing to show that at that point of time the said exercise was made by the 4th respondent or his brother. 18. A reading of the order passed by the Assistant Educational Officer is relevant in this context. In fact, the documents like land tax receipt, etc. were not produced before the Assistant Educational Officer or before the Director of Public Instruction, by the 4th respondent. The records now produced as Ext.R4(h) onwards were procured only in the year 2008. The order passed by the Assistant Educational Officer is produced by the wpc 16584/2009 12 4th respondent as Ext.R4(o). The Assistant Educational Officer was of the view that the partition deed does not conclusively show that the school is owned by the brother of the 4th respondent. It is also mentioned that they have not produced the possession certificate. The report of the Assistant Educational Officer forwarded to the Government is produced as Ext.R4 (m). Therein also, the Assistant Educational Officer has only forwarded the documents produced by the 4th respondent after the disposal of the appeal by the Director of Public Instruction, without specifically mentioning anything in favour of the 4th respondent. 19. In Ext.P1, the Director of Public Instruction has noticed that there is no mention in the partition deed about the school. The possession certificate and land tax receipt have not been produced by either side. A reference is made to the letter dated 3.8.2007 of the Tahsildar, Ottappalam to the effect that the land tax in respect of the property wherein the school is situated, has not been remitted by anybody. The petitioner's right is thus recognised on the basis of the fact that she is the legal heir of the deceased mother who was the former Manager. It is found by the Director of Public Instruction that the other legal heirs have consented to her managership also. 20. Thus, the 4th respondent could not substantiate his case either wpc 16584/2009 13 before the Assistant Educational Officer or before the Director of Public Instruction, by any cogent documents. A reading of Ext.P2 passed by the Government will show that one of the arguments raised by the petitioner is that mutation effected in the revenue records in favour of Shri K.O.M. Bhavadasan, by the Tahsildar, Ottappalam has been challenged by her brother before the District Collector, Palakkad. 21. Therefore, the question is whether the view taken by the Government in Ext.P2 is correct. Going by the scheme of things, it is clear that Shri Neelakandan Namboothirippad was the Manager from 1936 onwards. After his death in 1983, his wife was appointed as the Manager. At no point of time, the 4th respondent has raised any objection regarding the managership. The case of the 4th respondent that the late father and mother of the petitioner were appointed as Managers, by his late father and later by his brother, is not supported by any evidence. There is no evidence to show that the two District Board schools were amalgamated and the later the father of the petitioner was appointed as Manager, as the nominee of late father of the 4th respondent. 22. The scheme of the rules show that school can be established and maintained by an educational agency and the educational agency can appoint a person to be the Manager. The properties of the school will thus wpc 16584/2009 14 be in possession and control of the Manager. The case pleaded by the petitioner will show that all along, the late father and mother were functioning as Manager and they were in possession of the properties of the school. There is no evidence to show at least prima facie that the 4th respondent or his late father was functioning as the educational agency at any point of time, and the deceased father of the petitioner was appointed as Manager, as nominated by them. This aspect is crucial to consider the contentions raised by the 4th respondent. In fact, no such plea has been found in favour of the 4th respondent by the Government also. His plea that the two Board schools were there and they have been amalgamated to start a new school, have also not been found in favour specifically by the Government. Ext.R4(a) letter is the only support, but that also cannot be of much help, especially in the absence of any orders supporting it. The Government was merely accepting the land tax receipt and the possession certificate. They can only show, the maximum, the possession of landed property, but that will not automatically vest any right as educational agency or as Manager, at least prima facie, in the absence of any other valid documents. Successive orders passed by the educational authorities show that the petitioner's father, mother and the petitioner have been approved as Managers. It is not a case where there is claim for a change of managership wpc 16584/2009 15 with change of ownership. It is only a case of change of personnel of the Manager. Even going by the decision relied upon by the Government in Ext.P2, ultimately this court found therein that the order passed by the Government cannot be sustained. Therein, based on the will of Rev. Father Thomas Varghese, the Metropolitan was recognised as Manager by the Government. That was not found in favour by this court and the party was directed to approach the civil court. It is clear from the pleadings herein also, that from 1936 till 2005, there had not been any assertion of proprietary right for the management of the school by the 4th respondent. The right, if any, claimed under