IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 WP(C).No. 12303 of 2008(M) --------------------------------------- AGAINST THE ORDER DATED 03/04/2008 IN IA.308/08 IN OS.19/2008 of SUB COURT, VADAKARA .................... PETITIONERS: ----------------- 1. T.V.C.KUNHAMMAD HAJI, S/O MOIDEEN, AGED 57 YEARS, GENERAL BODY MEMBER, NUSRATHUL ISLAM SAMGHAM DEVARKOVIL, KAYAKKODI AMSOM, DEVARKOVIL DESOM, POST TALIYIL, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 2. V.A.C.IBRAHIM, S/O AMMAD HAJI, AGED 48 YEARS, GENERAL BODY MEMBER, NUSRATHUL ISLAM SAMGHAM DEVARKOVIL, KAYAKKODI AMSOM, DEVARKOVIL DESOM, POST TALIYIL, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENTS: ----------------------- 1. NUSRATHUL ISLAM SAMGHAM DEVARKOVIL SOCIETY, REGISTERED UNDER SOCIETIES REGISTRATION ACT, POST TALIYIL WITH REGD. OFFICE AT BUILDING NO.482, WARD NO.5, OLD WARD NO.2, KAYAKKODI PANCHYATH, VATAKARA TALUK, KOZHIKODE DIST. KERALA STATE. 2. K.T.ABOOBACKER, S/O THARUVAI, AGED 65 YEARS, RESIDING AT THAHIRA MANZIL, DEVARKOVIL, KAYAKKODI AMSOM, DEVARKOVIL DESOM, POST TALIYIL, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. WPC. NO.12303/2008 3. T.H.AHAMMAD, S/O MOIDU HAJI, AGED 54 YEARS, RESIDING AT THAZHETHADATHIL, KAYAKKODI AMSOM, DEVARKOVIL DESOM, POST TALIYIL, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 4. ASSISTANT EDUCATION OFFICER, KUNNUMMAL, POST KAKKATTIL, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. 5. DEPUTY DIRECTOR, EDUCATION, KOZHIKODE, KERALA STATE. BY ADV. SRI.GEORGE THOMAS (MEVADA) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== W.P.(C) No.12303 OF 2008 ===================== Dated this the 9th day of April 2008 JUDGMENT This writ petition is preferred challenging the order of the Sub Court, Vadakara in I.A.No.308 of 2008 in O.S.No.19/2008. The said I A was filed for a relief of appointment of a Commission by the court to consider no confidence motion against defendants 2 and 3 and 39 other executive members said to have been returned on 9.9.2007. There was also another I.A.No.307 of 2008 for injunction. Both the applications were dismissed. Against the order refusing injunction a C.M.A is pending before the District Court. It is the order in I.A.No.308 of 2008, i..e challenged before this court. The learned Sub Judge found that since one of the main prayers in the suit itself is to appoint a Commissioner for consideration of the no confidence motion, it may not be proper for the court to consider at the interim stage for the reason that it will amount to disposal of the entire suit. The court also found that there are other internal mechanisms provided under the bye-law for moving a no confidence motion and it will not debar the petitioners to take such appropriate steps under the bye-law and therefore refused to pass W.P.(C)12303/2008 -:2:- an order in favour of them. 2. Heard the learned counsel on both sides. Respondents in the writ petition would contend that they have not received Ext.P2 communication, which according to the petitioners are motion of no confidence as stipulated by law. According to the respondents, they have only received a cover but not the contents. Whether they have received the cover with the contents or only the cover alone are matters which requires detailed evidence for consideration. Therefore that aspect cannot be considered in a petition under Article 227 of the Constitution of India. The court below itself had pointed out that there is an internal mechanism whereby no confidence motion can be moved on satisfaction of certain conditions. I feel that the petitioners herein can resort to that mechanism, give a proper notice and the authorities who are bound to consider it shall consider it within the prescribed time fixed under the bye-law. When such a no confidence is moved and if the parties apprehend that it requires the help of an observer for a smooth conduct of the same, they can approach the civil court where the matter is pending or if it is during vacation, they can move the vacation court for appropriate direction so that no confidence motion can be considered in the right perspective and the result can be declared in the presence of an observer who shall be an officer of the court to avoid other W.P.(C)12303/2008 -:3:- legal hurdles or factual disputes regarding the passing of the resolution. With these observations, I dispose of the writ petition. I also make it clear that this will not stand in the way of the C.M.A being considered by the District Court because it relates to altogether a different relief. M.N.KRISHNAN, JUDGE Cdp/-