IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH JUNE 2010 / 3RD ASHADHA 1932 WP(C).NO. 17263 OF 2010(O) -------------------------- OS.93/2007 OF MUNSIFF COURT, PUNALUR .................... PETITIONER(S): --------------- BRAHAM GOERGE, S/O. MATHAI GEORGE, PAULSONS WOOD INDUSTRIES & FURNITURE, RESIDING AT STAR VILLA, VETTIPUZHA SOUTH, PUNALUR. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.ANEESH JAMES RESPONDENT(S): --------------- 1. G.BHASKARAN NAIR, MOHAN VILAS, THOLIKKODU, PUNALUR-691333. (DIED) 2. GEORGE THOBIAS, PRASANTH BHAVAN, CHEMMANTHUR, PUNALUR-691305. 3. S.M.SHERIF, KULANJIKKOMBIL HOUSE, VETTIPUZHA SOUTH, PUNALUR-691333. 4. A.R. REGHUNATHAN NAIR, SREEKAILASAM, CHEMMANTHOOR, PUNALUR-691304. 5. G.ANANDARAJAN PILLAI, A.G.P HOUSE, THILIKKODU,PUNALUR-691333. 6. T.E. CHERIAN, THOTTUKADAVIL, VALAKKODU, PUNALUR-691305. 7. THE PATHANAPURAM TALUK SAMAJAM, PUNALUR P.O., REPRESENTED BY ITS PRESIDENT, K.RADHAKRISHNAN, KOCHUVILA VEEDU, THOLIKKODU. PUNALUR-691333. 8. K.RADHAKRISHNAN, PRESIDENT, THE PATHANAPURAM TALUK SAMAJAM, KOCHUVILA VEEDU, THOLIKKODU,PUNALUR-691333. 9. K.JOSEPH, SECRETARY, PATHANAPURAM TALUK SAMAJAM, L.I.C. AGENT OPP: GOVT HIGH SCHOOL, MAIN ROAD, PUNALUR-691305. 10. G.JANARDHANAN PILLAI, SCHOOL MANAGER, PATHANAPURAM TALUK SAMAJAM, PUTHEN VEEDU, CHEMMANTHOOR,PUNALUR-691305. 11. S.TAHJUDEEN, EXECUTIVE COMMITTEE MEMBER, PATHANAPURAM TALUK SAMAJAM, C/O. K.JOSEPH, SECRETARY, PATHAAPURAM TALUK SAMAJAM, LIC AGENT, OPP: GOVT. H.S. PUNALUR-691305. 12. K.K.SURENDRAN, EXECUTIVE COMMITTEE MEMBER, PATHANAPURAM TALUK SAMAJAM, ADVOCATE, KATCHERY ROAD, PUNALUR-691305. 13. C.B.VIJAYAKUMAR, EXECUTIVE COMMITTEE MEMBER, PATHANAPURAM TALUK SAMAJAM, C/O. K.J0SEPH, SECRETRY PATHANAPURAM TALUK SAMAJAM, LIC AGENT, OPP:GOVT. H.S. PUNALUR-691305. 14. J.P.JOHN, EXECUTIVE COMMITTEE MEMBER, PATHANAPURAM TALUK SAMAJAM, C/O. K.JOSEPH,SECRETAR Y, PATHANAPURAM TALUK SAMAJAM, LIC AGENT OPP:GOVT. H.S. PUNALUR-691305. 15. B.MOHAN DAS, EXECUTIVE COMMITTEE MEMBER PATHANAPURAM TALUK SAMAJAM SMRITHI, THOLIKKODU, PUNALUR-691333. 16. SIVASANKARA PILLAI, EXECUTIVE COMMITTEE MEMBER, PATHANAPURAM TALUK SAMAJAM, RETD. TEACHER, KARTHIKA, KARAVALOOR-691333. 17. C.RADHAKRISHNA PILLAI, SHIJUVILASOM VEEDU, MANJAMONKALA, VILAKKUDY-691353 18. K.P.YOHANAN, KANDAMATHU VEEDU, CHEMMANTHOR, PUNALUR-691305. 19. BAIJU C UMMEN, VAYALIL HOUSE, CHEMMANTHUR-691305. 20. K.P.VARGHESE, KANDAMATHU VEEDU, CHEMMANTHUR-691305. 21. C.GOPALA PILLAI, PLAVIL MELATHIL CHEMMANTHUR-691305. 22. P.THULASEEDHARAN NAIR, THULASEE MANDIRAM, KUTHIRCHIRA,PUNALUR-691305. 23. V.K.PREMNATH, SREELAKSHMI, ARAMPUNNA, ELAMPAL-691305. 24. K.M.SAMUEL, KULATHUMKAL HOUSE, MUSAVARI,PUNALUR-691305. 25. K.BALACHANDRAN, THUNDUVILA VEEDU, THEKKUNKADU, PUNALUR-691305. 26. R.THANKAPPAN ACHARI, RETD. TEACHER, SREEBHAVAN, THOLIKKODU, PUNALUR-691333. 27. V.RAJAN PILLAI, KIZHAKKE PUTHEN VEEDU, THOLIKKODU, PUNALUR-691333. 28. A. HARIKUMAR, MEENA BHAVAN, KOMALMKUNNU,PUNALUR-691305. 29. K.V.ABRAHAM, KANDAMATHU VEEDU, CHEMMANTHUR,PUNALUR-691305. 30. GEORGE MONACHAN, THADATHIVILA KIZHAKKETHIL, MANJAMONKALA,PUNALUR-691305. 31. S.SADANANDAN, ANANDABHAVAN, ANAPETTAKONKAL,EDAMON VILLAGE, PIN-691329. ADV. SRI.RAM MOHAN.G. FOR R7 TO10 SRI.G.P.SHINOD FOR R 7 TO 10 SRI.MANOJ RAMASWAMY FOR R2,5,6 & 26 SRI.K.G.RADHAKRISHNAN FOR R27,29 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY BYELAW OF 7TH RESPONDENT SAMAJAM. EXHIBIT P2 TRUE COPY OF PLAINT IN O.S. NO.93 OF 2007 OF MUNSIFF'S COURT, PUNALUR. EXHIBIT P3 TRUE COPY OF I.A. NO.1946 OF 2009 FOR APPOINTMENT OF AN ADVOCATE COMMISSIONER TO CONVENE THE ANNUAL GENERAL BODY AND TO CONDUCT ELECTION TO THE EXECUTIVE COMMITTEE. EXHIBIT P4 TRUE COPY OF COMMISSION WARRANT DATED 30.9.2009. EXHIBIT P5 TRUE COPY OF COMMISSION REPORT SUBMITTED BY THE COMMISSIONER. EXHIBIT P6 TRUE COPY OF I.A. NO.459 OF 2010 FOR A DIRECTION TO THE DEFENDANTS 2 TO 11 TO HAND OVER CHARGE TO THE NEWLY ELECTED COMMITTEE. EXHIBIT P7 TRUE COPY OF OBJECTION TO EXT.P6 FILED BY SECOND AND THIRD DEFENDANT. EXHIBIT P8 TRUE COPY OF JUDGMENT IN W.P(C) NO.9098 OF 2010 DATED 18.3.2010. EXHIBIT P9 TRUE COPY OF ORDER IN I.A. NO.459 OF 2010 DATED 9.4.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.17263 of 2010 ==================================== Dated this the 24th day of June, 2010 J U D G M E N T This Writ Petition is at the instance of defendant No.10 in O.S. No.93 of 2007 of the court of learned Munsiff, Punalur. Respondent No.7-defendant No.1 is the Pathanapuram Taluk Samajam (for short, “the Samajam”) which consists of 3000 members and owns three High Schools and a Higher Secondary School. Plaintiff Nos.1 to 6 sued respondent Nos.7 to 31 for a mandatory injunction to direct respondent Nos.8 and 9-defendant Nos.2 and 3 to convene the general body meeting of the Samajam within 15 days from the date of decree/order in the case, to produce the annual audit report of the Samajam for the years 2003-06 and other records as stated in relief 'B' of the plaint and for prohibitory injunction in the matter of appointment of staff in the Educational Institutions above referred. According to the contesting defendants term of office of Managing Committee expired by 26.01.2006 and thereafter they had no right or authority to continue in office. Defendant Nos.1 to 4, 8 and additional defendant Nos.9 and 12 to 20 filed Ext.P3, application (I.A. No.1946 of 2009) to appoint an Advocate Commissioner to W.P(C) No.17263 of 2010 -: 2 :- convene the annual general body meeting of the Samajam and conduct election. That application was not opposed by any of the parties to the litigation and accordingly it was allowed and an Advocate Commissioner was appointed to conduct election. Advocate Commissioner prepared list of voters of the Samajam and conducted election on 12.12.2009. 1662 voters took part in the election. Petitioner-defendant No.10 is one of the members of Managing Committee elected on 12.12.2009. He was elected as Manager of the Educational Institutions. Exhibit P5 is the report submitted by the Advocate Commissioner detailing steps taken by him for the election. It would appear that none of contestants in the suit preferred any objection to Ext.P5, report nor was there any challenge to the election in any manner whatsoever. Since the court did not take any further steps pursuant to Ext.P5, report to hand over charge of office of Samajam to the newly elected Committee, petitioner filed I.A. No.459 of 2010 requesting the court below to issue such direction. That application was opposed by respondent Nos.8 and 9- defendant Nos.2 and 3 on behalf of themselves and other supporting defendants (Ext.P7 is the objection). Their objection is that petitioner has no locus standi to seek any direction since in the suit pleadings are against him as he is a member of the W.P(C) No.17263 of 2010 -: 3 :- committee which has been holding the office. Further objection is that respondent Nos.8 and 9 were always ready and willing to conduct election but failure to conduct election was due to the conduct of plaintiffs. It is stated that the present Committee in office is prepared to hand over charge to the new Committee at any time as may be directed by the court. It is also stated by respondent Nos.8 and 9 that before other prayers in the suit are considered and granted by the court below there can be no handing over of charge as requested in the petition and at any rate before election is approved by the court. Learned Munsiff dismissed Ext.P6, application vide Ext.P9, order. According to the learned Munsiff relief sought is a direction to respondent Nos.8 and 9-defendant Nos.2 and 3 to convene the general body meeting within 15 days of the decree and conduct the election. The prime relief sought being in the nature of a representative one, so many persons have got impleaded in the suit. Report filed by the Advocate Commissioner regarding election of office bearers is yet to be evaluated and decided in the light of evidence to be let in before that, Ext.P6 cannot be allowed. Holding so, the application was dismissed. That order is under challenge in this Writ Petition. Learned counsel for petitioner contends that except what is stated in Ext.P7, objection preferred W.P(C) No.17263 of 2010 -: 4 :- by respondent Nos.8 and 9 none of the contesting parties have preferred any objection to Ext.P6, application, not to say about Ext.P5, report of Advocate Commissioner regarding the election and its result. It is also contended that even in Ext.P7, there is no challenge to the election conducted by the Advocate Commissioner on any ground whatsoever. According to the learned counsel relief 'A' in the plaint is a direction to respondent Nos.8 and 9 to convene the general body meeting for conducting the election within 15 days from the date of decree or order which meant the order that court may pass during pendency of the suit as done in the case which was lost sight of by the learned Munsiff. Instead learned Munsiff proceeded on the assumption that the prayer in the suit is to convene meeting within 15 days of the decree alone. According to the learned counsel there is nothing which stands in the way of charge being handed over to the newly elected Committee. To allay the apprehension of respondents Nos.8 and 9 that in case the suit is dismissed position will be irreversible, learned counsel for petitioner undertook that in case the suit is decided against convening of general body meeting and conduct of election as prayed for, the newly elected Committee will hand over charge of office to the Committee which is now in office without waiting for the appeal W.P(C) No.17263 of 2010 -: 5 :- that may be preferred. Counsel also stated that an affidavit in that line will be filed in the court below. 2. Per contra it is contended by learned counsel for respondent Nos.7 to 10 that undertaking made by learned counsel on behalf of petitioner and other members of the new Committee is not sufficient in that possibility of accounts being manipulated once charge is handed over to the newly elected Committee before auditing is completed cannot be ruled out. It is also the contention of learned counsel that court below is yet to decide on relief 'A', i.e., a decree for mandatory injunction to direct respondent Nos.8 and 9 to convene meeting and conduct election and in such a situation before suit is decreed if charge is handed over, that would amount to grant of decree in the suit. Learned counsel for respondent Nos.2, 5, 6 and 26 supports claim of petitioner. 3. I am unable to accept the contention that granting relief on Ext.P6 would amount to grant of decree. It is with notice to both sides that learned Munsiff appointed the Advocate Commissioner to conduct election and in fact it was at the instance of respondent Nos.7 to 9 that election was conducted. Both sides took part in the election. I am not inclined to think that election was conducted during pendency of the suit so that relief W.P(C) No.17263 of 2010 -: 6 :- could be granted based on that election only after the suit is decreed. I must also bear in mind that as not disputed by either side term of office of the present Committee had expired on 26.01.2006 though as per the relevant clause in the bye-law (Ext.P1) the present Committee could continue in office till the newly elected Committee took charge. 4. Though it is contended by learned counsel for respondent Nos.7 to 9 that court is yet to approve the election conducted by the Advocate Commissioner I bear in mind, as I have stated above that none has preferred any objection to the conduct of election or its result and even in Ext.P7, objection preferred by respondent Nos.7 to 9 there is no challenge to the validity of election. In that situation there is no reason why the newly elected Committee should wait until the suit, appeal or second appeal arising therefrom are finally disposed of which only meant that the present Committee the term of which expired on 26.01.2006 should continue to remain in force. I do not find reason to reject Ext.P6, application. 5. But it must be subject to appropriate conditions that charge is handed over to the newly elected Committee. The court has to ensure that there is no manipulation of accounts as apprehended by respondent Nos.7 to 9. That, there is no such W.P(C) No.17263 of 2010 -: 7 :- manipulation can be ensured by petitioner producing certified photocopies of the accounts of the Samajam so that the certified photocopies can be retained in the court below while original records are handed over to the Chartered Accountant for auditing. It is also to be ensured that any appointment made in the Educational Institutions of the Samajam is with permission of the court below obtained in advance. Appointment of Manager of the said Institutions will be subject to approval of appropriate authority as provided under the Kerala Education Act and Rules and such other law in force. Petitioner who is elected as Manager of the Educational Institutions shall assume charge of Manager only as provided under the bye-law. Resultantly, this Writ Petition is allowed in the following lines: (a) Dismissal of Ext.P6, application vide Ext.P9, order is set aside and that application is allowed subject to the following conditions: (i) The Committee in office shall hand over charge of office of the Samajam to the newly elected Committee as reported in Ext.P5, within a month from this day. (ii) Advocate Commissioner or Chartered W.P(C) No.17263 of 2010 -: 8 :- Accountant as the case may be who is in possession of account books of the Samajam shall complete the work assigned to him at the earliest, if possible within the said period of one month and produce account books in the court below. (iii) Petitioner shall produce in the court below certified photocopies of all account books before the same are taken possession by petitioner or other members of the newly elected Committee. (iv) It is directed that any appointment made by the newly elected Committee in the Educational Institutions of the Samajam shall only be with the prior approval of the court below till the suit is finally disposed of. (v) It is made clear that appointment of petitioner as Manager of Educational Institutions of the Samajam shall be subject to its approval by the appropriate authority under the Kerala Education Act and Rules and any other law in force and in accordance with bye-law of the Samajam. (vi) The Committee now in office shall not make any appointment in the Educational Institutions until the newly elected Committee assumes office except under compelling circumstances and that too with the approval of the court below. W.P(C) No.17263 of 2010 -: 9 :- (vii) Newly elected office bearers shall file affidavit in the court below before they assumed charge undertaking that in case the suit is decided against them they would, without waiting for the result of appeal or second appeal they may file, forthwith hand over charge to the erstwhile Committee from which they have assumed charge or to such other person as the court below may direct. (viii) Before the newly elected Committee assumes office the Committee now in office shall prepare an inventory of all articles belonging to the Samajam which shall be checked by petitioner for and on behalf of the newly elected Committee. The inventory shall be filed in the court below and its copy can be retained by the Committee in office as well as the petitioner on behalf of the newly elected Committee. THOMAS P. JOSEPH, JUDGE. vsv