IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 30733 of 2008(H) ------------------------------------- PETITIONER(S): ----------------------- REV.GEORGE THARAKAN, PRESIDENT, CHURCH OF GOD IN THE SOUTH INDIA ASSOCIATION, (REG.NO.ER 468/84), "ECCLESSIA", KOCHI-24. BY ADVS.MR.P.K.SURESH KUMAR MR.T.P.RAMACHANDRAN (THACHETH) RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTIONS (ACADEMIC), THIRUVANANTHAPURAM. 4. THE ASSISTANT EDUCATIONAL OFFICER, ALATHUR, PALAKKAD DISTRICT. GOVERNMENT PLEADER MR.DILEEP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30733/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SALE DEED REGISTERED AS DOC. NO.3875/1980 DTD. 18.12.80 OF ALATHUR SRO. P2:- COPY OF THE APPLICATION DTD. 1.3.04 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P3:- COPY OF THE ORDER NO.G1/64036/2005/DPI/K.DIS DTD. 21.4.08 PASSED BY THE OFFICE OF THE 2ND RESPONDENT. P4:- COPY OF THE POWER OF ATTORNEY DTD. 11.8.03 EXECUTED BY LILLY GRACE PAUL IN FAVOUR OF ONE VINCENT CHARLEY. P5:- COPY OF THE APPEAL DTD. NIL SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. P6:- COPY OF THE ORDER NO.G(1)47412/2008/DPI /K.DIS DTD. 23.7.08 ISSUED BY THE 3RD RESPONDENT. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC,J. --------------------- W.P.(C).No.30733 OF 2008 ------------------------ Dated this the 17th day of September, 2009. JUDGMENT Petitioner is the President of a Society registered under the Societies Registration Act, known as `Church of God in South India Association'. According to the petitioner, the Society is running a school by name AUPS at Tharur situated within the jurisdiction of the AEO, Alathur. It is stated in the writ petition that the school was purchased by the Society as per Ext.P1 sale deed executed in 1980. According to the petitioner, at that time the Society was not a registered organization and therefore, the school was purchased in the name of Rev.P.V. Jacob, who was the then President of the Association. 2. After purchasing of the school, Rev. P.V. Jacob acted as the Manager of the school and he continued as such until he expired. Thereafter his wife Smt. Saramma WP(C).NO.30733/08 2 Jacob was appointed as the Manager and she also continued in that capacity till 10.2.2003, when she also expired. It is stated that the children of the aforesaid deceased couple are all settled abroad and therefore the society decided to have the ownership and management of the school changed into the name of the petitioner, the present President of the Society. 3. Accordingly, along with Ext.P4, a power of attorney executed by two children of the deceased couple and also duly signed by the 3rd daughter, Ext.P2 application was made to the 2nd respondent, as provided under Rule 5A of Chapter III KER, which requires that no change of management of any aided school involving change of ownership shall be effected except with the previous permission of the Director. However, the Director, the 2nd respondent, rejected Ext.P2 application as per Ext.P3 order mainly for the reason that Ext.P4 power of attorney was not authorized by the appropriate authority and that the seal of the Embassy was not affixed. It is stated that WP(C).NO.30733/08 3 though this defect was ordered to be cured, the legal heirs or the Manager did not turn up and cure the defect. It is also stated that immediately thereafter, by Ext.P6 the orders passed, the 3rd respondent took over the management of the school. It is in these circumstances the writ petition is filed challenging Exts.P3 and P6. 4. Counter affidavit has been filed by the respondents, where they are seeking to justify Exts.P3 and P6. In so far as Ext.P3 is concerned, according to the respondents, in view of the provisions contained in Section 85 of the Indian Evidence Act and Section 33 of the Registration Act, unless the power of attorney is duly verified by the Embassy concerned, the document cannot be acted upon. In so far as Ext.P6 is concerned, it is stated that on the representation of the President of the Tharur Grama Panchayat, the management of the School was taken over only on an interim arrangement to safeguard the interest of the school and also to manage the day to day affairs of the school. WP(C).NO.30733/08 4 5. As already stated, the objection against the acceptability of Ext.P4 power of attorney is that the same is not duly verified or sealed by an officer of the Embassy where executants are residing, in view of the provisions contained in Section 85 of the Indian Evidence Act and Section 17(b) of the Indian Registration Act. In my view, even a plain reading of the aforesaid provisions do not warrant acceptance of the view taken by the second respondent. Section 85 of the Evidence Act reads as under. “The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, (Indian) Counsel or Vice-Consul or representative of the (Central Government) was so executed and authenticated.” 6. Similarly section 33(1)(c) of the Indian Registration Act, 1908 also reads as under. 33. Powers-of-attorney recognizable for purposes of Section 32.-(1) For the purposes of Section 32, the following powers-of-attorney shall alone be recognized namely:- WP(C).NO.30733/08 5 (a).... (b).... (c) “If the principal at the time aforesaid does not reside in (India), a power-of- attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate(Indian)Consul or Vice-Consul, or representative (xxx) of the Central (Government).” 7. A reading of the aforesaid provisions show that, any one of the authorities mentioned in the sections are equally competent to certify and authenticate the power of attorney. These sections do not mean that the power of attorney executed outside the country should be executed before any of the officers of the Embassy of India alone to accept the same as a genuine one. A perusal of Ext.P4 shows that the power of attorney has been executed before the Notary Public and that fact is not seen disputed or even doubted in Ext.P3 order. If that be so, Ext.P4 document satisfies the provisions contained in Section 85 of the Indian Evidence Act and Section 33(b) of the Registration Act and the contrary view taken in Ext.P3 cannot be upheld. Ext.P3 will therefore stands quashed. WP(C).NO.30733/08 6 8. In so far as Ext.P6 order of the 3rd respondent is concerned, although the validity of that order is also challenged in this writ petition, having regard to the fact that Ext.P2 application was made for change of managements I think in the interregnum, it is only appropriate that the arrangement pursuant to Ext.P6 continues. Therefore I do not think that this court at this stage need examine the contentions regarding the validity of Ext.P6 for the added reason that even according to the counter affidavit filed by the respondent it is only an interim arrangement. 9. Accordingly the writ petition is disposed of with the following directions. The 2nd respondent shall reconsider Ext.P2 application made by the petitioner and the other signatories thereto in accordance with Rule 5A of Chapter III KER and orders thereon shall be passed as expeditiously as possible and at any rate within 2 months from the date of production of a copy of the judgment. Depending upon the decision to be taken on Ext.P3, WP(C).NO.30733/08 7 the 3rd respondent shall pass revised orders reconsidering Ext.P6. Petitioner shall produce a copy of the judgment before respondents 2 and 3 for compliance. (ANTONY DOMINIC) JUDGE vi/