IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 11TH JULY 2008 / 20TH ASHADHA 1930 OP.No. 2117 of 2001(B) ---------------------- PETITIONER: ----------------- PULIKKAL KAVAKI BUNNAYYIRA SANGHAM NO.6 OF 1962, PULIKKAL.P.O., REPRESENTED BY THE PRESIDENT, C.MUHAMMED, S/O.PAREEKUTTY, RESIDING AT PULIKKAL, MALAPPURAM (DIST.). (* DIED) *ADDL. PETITIONER IMPLEADED ADDL. PETITIONER: JANAB P.M.VEERANKUTTY MASTER, PRESIDENT, PULIKKAL KAVAKI BUNNAYIRA SANGHAM, NO.6 OF 1962, PULIKKAL. * WHO WAS ELECTED AS PRESIDENT OF THE SANGHAM IS ALLOWED TO REPRESENT THE PETITIONER SANGHAM, AS PER ORDER DATED 26/03/2001 IN CMP. NO.16615/2001. BY ADV. SRI.K.M.SATHIANATHA MENON RESPONDENTS: ----------------------- 1. THE DISTRICT REGISTRAR & REGISTRAR OF SOCIETIES, MALAPPURAM. 2. V.E.MOHAMMED ALI, S/O.KOYAKUTTY, EDAKKAT HOUSE, CHERUKAVU AMSOM, CHERUVAYOOR DESOM, P.O.PULIKKAL. 3. VADAKKUMKARA MOHAMMED KUTTY ALIAS V.M.KUTTY, S/O.UNNI MUSLIAR, CHERUKAVU AMSOM, CHERUVAYOOR DESOM, P.O. PULIKKAL, MALAPPURAM DIST. BY SR. GOVERNMENT PLEADER SRI.NANDAKUMAR SRI.K.RAMAKUMAR (SR.) - R3 SRI.T.RAMPRASAD UNNI - R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO.2117/2001-B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF RULES AND REGULATIONS OF THE PULIKKAL KAVAKKI BUNNAYYIRA SANGHAM. EXT.P2: COPY OF LETTER DATED 23/04/1999 AND LIST OF MEMBERS FILED BY PETITIONER BEFORE FIRST RESPONDENT. EXT.P3: COPY OF ORDER NO. 1-5952/97 DATED 02/11/1999 OF FIRST RESPONDENT. EXT.P4: COPY OF THE MINUTES OF THE MEETINGS ON 29/03/1999 AND 30/03/1999 AND LIST FILED BY 2ND RESPONDENT. EXT.P5: COPY OF JUDGMENT IN O.P. NO.29423 OF 1999. EXT.P6: COPY OF ORDER DATED 30/12/2000 OF FIRST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE NOTICE PUBLISHED IN THE KERALA KAUMUDI DAILY REGARDING THE CONDUCT OF THE MEETING HELD ON 30/03/99. EXT.R2(b): COPY OF THE REQUEST DATED 28/08/97 MADE TO THE PETITIONER TO CONVENE THE MEETING . EXT.R2(c): COPY OF THE REQUEST DATED 07/09/92 MADE TO THE PETITIONER TO CONVENE THE MEETING. EXT.R2(d): COPY OF THE REQUEST 05/03/99 MADE TO THE PETITIONER TO CONVENE THE MEETING. EXT.R4(a): COPY OF THE JUDGMENT IN O.P. NO.25611 OF 1999, DATED 28/09/2000. // TRUE COPY // Rs/ V.GIRI, J. ------------------------- O.P.Nos.2117/01, 21336/02, 9072/03, W.P.(C).Nos.18030/05, 21846/05 12308/06, 17452/07 & 15798 of 2008 ------------------------- Dated this the 11th day of July, 2008. JUDGMENT There is commonality in the issues involved in these writ petitions. Therefore, they have been heard together and are being disposed of by this common judgment. In the fitness of things, it will be appropriate to refer to the facts involved in O.P.No.2117/01 in the first instance. 2. The petitioner is Pulikkal Kavaki Bunnayyiara Sangham in Malappuram District (hereinafter referred to as the 'Society'). The society is registered under the Societies Registration Act, 1980 {hereinafter referred to as the 'Act'}. 3. It is contended that the members of the Governing Body, who were in office at the time of institution of the writ petition, were elected on 21.04.1999. One Sri.C.Muhammed, who had signed the writ petition, was elected as the President. The General Body which met on O.P.NO.2117/01 & con.cases :: 2 :: 21.04.1999 elected the Governing Body and a list of members so elected was forwarded to the District Registrar, in terms of Section 4 of the Act. When proceedings accepting the list, as such, was not communicated, he made enquiries in the office of the Registrar and when it was learnt that the 3rd respondent had also filed a list of 30 persons, stated to have been elected to the Governing Body of the Society in a meeting held on 30.03.1999, the petitioner filed O.P.No.13438/99 to approve the list filed by the person, stated to have been elected in the meeting held on 21.04.1999 (Ext.P2). This court directed the Registrar to pass an order within three months, after issuing notice to the parties. Ext.P3 order was passed by the Registrar, approving the list forwarded by the 3rd respondent. That was challenged in O.P.No. 29423/99. Ext.P3 order was set aside under Ext.P5 judgment and the Registrar was directed to pass a fresh order, in accordance with the observations contained in the judgment. A fresh order was passed as Ext.P6 and the same has been challenged in this writ petition. O.P.NO.2117/01 & con.cases :: 3 :: 4. A counter affidavit has been filed by the respondents supporting the order. 5. I heard learned counsel for the petitioner Sri.George Poonthottam and Sri.T.R.Ravi, learned Senior counsel for the 3rd respondent Sri.K.Ramakumar, learned Senior Government Pleader Sri.Nandakumar and Sri.Elvin Peter, who appears for the pettioner in certain connected cases. 6. Sri.Poonthottam contends that the Registrar was directed to pass an order, after considering certain specific aspects highlighted in Ext.P5 judgment. It is contended that the Rules of the Governing Body of the society contemplates and provides for the manner in which the general body is to be convened. Rule 11 deals with the powers of the President. The Rule makes it clear that the power to convene a general body is to be exercised by the Secretary, who has to do that either on his own, or on requisition by not less than 7 members after convening the meeting of the Executive Committee (..................) and not less than 25 members, in the case of a general body. If O.P.NO.2117/01 & con.cases :: 4 :: the Secretary fails to do so, then it is open to the President to convene a meeting and take appropriate action. The General Body can be convened only when it is so done by a Competent person, which is either the President or the Secretary. It is pointed out that the claim of the 3rd respondent is that 116 persons, who are members of the Society had convened a meeting on 29.03.1999. They then decided to convene a General Body on 30.03.1999. The persons, who decided to convene a meeting on 30.03.1999 or 29.03.1999 were neither the President nor the Secretary of the society. If that be so, then a meeting which is convened by them is not a properly convened meeting. Reference is made to the notice for convening the meeting published in the Kerala Koumudi daily dated 30.03.1999, Ext.R2(a). A publication in the news paper, in the nature of Ext.R2(a), by a person, who has no official status in terms of the bye-laws or Memorandum of Association, is not a valid notice in the eye of law. In other words, there is not only inadequate notice, but there is actually no notice at all, it is contended. Consequently, O.P.NO.2117/01 & con.cases :: 5 :: the meeting alleged to have been held on 30.03.1999 is not a properly convened meeting. If that be so, then going by the specific directions contained in Ext.P5 judgment, the meeting convened on 21.04.1999 should have been held to be a valid meeting. The list of members stated to have been elected on that day should have been accepted by the Registrar. That the Registrar, while passing Ext.P6 order, simply ignored the specific directions issued by this court in Ext.P5 judgment. He also ignored the provisions of the bye-laws and the order was, therefore, liable to be set aside, it is contended. It is further contended that once it is held that the meeting held on 30.03.1999 is not a validly convened meeting, then the list of persons stated to have been elected obviously cannot be approved by the Registrar. This is the position emerging from the provisions of the Act and specifically reiterated by this court in Ext.P5 judgment. 7. This court had, in Ext.P5 judgment, delineated the scope of an enquiry to be conducted by the 1st respondent into the question O.P.NO.2117/01 & con.cases :: 6 :: as to whether the general body had been properly convened or not. The following findings and directions in paragraph 15 of the judgment are relevant: “According to me, what the Registrar has to see is that whether the general body meeting has been properly convened and in that general body meeting, whether the governing body has been elected. If the general body meeting had been properly convened and the governing body has been elected in that meeting, then the question whether that governing body elected is proper or not does not come within the domain of the first respondent. Fortunately in this case, the members of the governing body were elected without any contest at both the meeting. Thus, in this case, what the first respondent has to see is that whether the general body meeting held on 30.03.1999 was a properly convened general body meeting, according to the Regulations of the Society. If it is a properly convened general body meeting and the governing body was elected in that meeting, then the first respondent O.P.NO.2117/01 & con.cases :: 7 :: has to approve that list. But if on the other hand, it is found that the meeting held on 30.03.1999 was not a properly convened general body meeting, then it has to find out whether the general body meeting held on 21.4.1999 was a properly convened general body meeting. If the first respondent finds that it is a properly convened meeting, then he has to accept the general body. If on the other hand, both the meetings were not properly convened, then the Registrar can refuse to accept the list and direct the parties to get an order from the court as to which group should be recognised for the purpose of Section 4.” 8. What should have, therefore, been specifically enquired into by the Registrar was whether the meeting stated to have been held on 30.03.1999 was a properly convened meeting or not. I would have specifically considered the question as to whether the District Registrar had taken note of the directions contained in Ext.P5 judgment while passing Ext.P6 order and then decided the issue as to whether I should O.P.NO.2117/01 & con.cases :: 8 :: interfere with Ext.P6 order or not, if the same has not been passed in conformity with the directions issued in Ext.P5 judgment. I refrain from adjudicating this issue finally for yet another factor, which has been highlighted by the learned counsel for the 3rd respondent Sri.Ramakumar. 9. Certain facts, which are either admitted or not controverted in this regard, have to be referred to. 10. The term of the Working Committee (...............) is 3 years, irrespective of who was elected in 1999. The term of the said committee was only till 2002. Apparently, fresh elections were held in 2002, electing another committee for another period of 3 years and yet another committee was elected in 2005 and the term of the said committee has expired in March, 2008. Apparently, parallel lists have been prepared and submitted by two factions, one led by the person, who has signed the writ petition and who now represents the petitioner society in this writ petition and the other led by the 3rd respondent herein, at the conclusion of each O.P.NO.2117/01 & con.cases :: 9 :: election that has taken place in 1999, 2002 and 2005. Apparently, general body meeting has been conducted in 2008 also and it seems that two separate lists have been forwarded in 2008 as well to the District Registrar, who is yet to pass an order in terms of Section 4 of the Act, in respect of the lists of 2008. In such circumstances, there are two factors, which dissuade me from finally adjudicating the question as to which list of members stated to have been elected as members of the Working Committee for the period 1999-2002 should have been accepted by the District Registrar as such. Firstly, even if I enter a finding one way or the other, it really would not be appropriate to either give any declaration or issue any other writ, with regard to the committee which should have held the office of the Society for the period 1999-2002, at this distance of time. Secondly and which is more important, the District Registrar, while accepting List A in preference to List B, under Section 4 of the Act really does not exercise any adjudicatory powers resolving the dispute between the two factions. O.P.NO.2117/01 & con.cases :: 10 :: The law has been laid down by the Supreme Court in A.P.Aboobaker Musaliar v. District Registrar (G) {[2004] 11 SCC 247}. It has been held that acceptance of a list by the Registrar in preference to the other will only be tentative and it is always open to the aggrieved parties to take steps to establish their claim in a competent civil court. Since what was involved in a matter of this kind, which originates from rival claims raised by two factions, and relates to the convening of a general body meeting, the competence of the persons, who claim to be members and who had, therefore, participated in the meeting will have to be determined. Adducing of evidence would obviously be necessary. Further since the right to continue as a member of the society or right to get elected to the Working Committee of a Society and the right to participate in the working of a Society either as a member or as a member of the Working Committee, is only a civil right and does not partake the characteristics of a fundamental right, or even a statutory right, the competent forum to decide this issue will only be the O.P.NO.2117/01 & con.cases :: 11 :: civil court. In that view of the matter, it would only be appropriate that the person, who is aggrieved by Ext.P6 order, is given liberty to seek an appropriate declaration as regards the validity of the meeting stated to have been convened on 21.04.1999 and the meeting stated to have been convened on 30.03.1999 as claimed by the 3rd respondent and also to seek appropriate reliefs therein. It is open to the parties to decide whether it is necessary for them to approach a civil court in relation to the general body meeting held in 1999 and the election stated to have been held in 1999 at this distance of time. But, I make it clear that the parties are at liberty to approach the civil court seeking appropriate reliefs in relation to the general body meeting of the Society stated to have been held on 29.03.1999 and 30.03.1999 and 21.04.1999 and the elections stated to have been held on the aforementioned two dates. They are entitled to proceed on the premise that any finding made by the District Registrar in Ext.P6 is only tentative and will not have any impact on the rights and claims of O.P.NO.2117/01 & con.cases :: 12 :: the parties. It is so declared and since the writ petition has been pending before this court for a good number of years, it is only appropriate that the period during which the writ petition has been pending before this court should be excluded from the period of limitation for filing the civil suit. It is further declared that in the event of any one of the parties deciding to approach the civil court, as regards the meeting of the year 1999 and the elections stated to have been held in 1999, in the manner aforementioned, then the period of pendency of this writ petition shall stand excluded in computing the period of limitation for filing the civil suit. 11. In the aforementioned view of the matter, I decline to adjudicate upon the correctness of Ext.P6, as such and also I do not think it necessary to refer to the other contentions raised by Sri.Ramakumar, that the writ petition is not maintainable at the instance of the society as such or that the scope of interference by this court under Article 226 of the Constitution of India, in a O.P.NO.2117/01 & con.cases :: 13 :: proceedings of the Registrar, accepting one list in preference to another list, as such, would extremely limited. It is not necessary for me to consider the other contentions in the light of the view that I have already taken. 12. Learned counsel for the petitioners submits that even if this is the course of action adopted by this court, the findings and observations of this court contained in Ext.P5 judgment, obviously cannot be ignored as such. Suffice it to make it clear that the findings and observations made by this court would be law, not only inter partes, but because it is made by a court of record and will have to be so viewed by any other forum, which is called upon to resolve the dispute between the parties in this writ petition. O.P.No.21336/02 13. The challenge in this writ petition is against Ext.P2 communication by the District Registrar by which he has purportedly accepted the list forwarded by the 2nd respondent in this writ petition. I do not propose to consider the O.P.NO.2117/01 & con.cases :: 14 :: correctness of the order impugned for the reasons which I have already stated above. 14. In the result, it is declared that the parties in this writ petition are at liberty to take appropriate steps before the Civil Court, in relation to the election to the members of the Society stated to have taken place in 2002 and also in relation to the lists which have been forwarded in year 2000-02. All the observations made in this regard, in relation to O.P.NO.2117/01, will be applicable to the present case also. It is further made clear that in the event of either one of the parties deciding to approach the civil court, in relation to the convening of the general body meeting of the Society for the year 2002 or the preparation of the lists or forwarding of the same, stated to have taken place in the year 2000-01 before the Civil Court, the period during which this writ petition has been pending, shall stand excluded in computing the period of limitation for filing the civil suit. O.P.NO.2117/01 & con.cases :: 15 :: O.P.No.21846/05, 12348/06 & 17452/07 15. The petitioner in all these three writ petitions is one and the same person and the challenge is against the proceedings of the District Registrar by which he has accepted the lists forwarded by the faction headed by the contesting respondent in the aforementioned writ petitions, contending that the Working Committee of the Society elected in the elections stated to have been held in 2005 forwarded separate lists for the year 2005-06, 2006-07 and 2007-08 and orders were passed by the District Registrar, accepting those lists. Those orders have been challenged on several grounds, including the ground that in one case, for the year 2005-06, the Registrar did not hear the petitioner or his faction before passing the order. 16. In my view, if the petitioner has a grievance as regards the convening of the General Body in the year 2005 or that the decision taken at the General Body or by the Committee for the subsequent years, it is open to him to approach the civil court. Obviously, O.P.NO.2117/01 & con.cases :: 16 :: the approval by the District Registrar will have to be treated as tentative and the aggrieved person would be entitled to establish his right, if any, before the competent civil court. The observations made by me in relation to O.P.NO.2117/01 would, ipso facto, apply to the present cases also and it is further declared that in the event of any person deciding to approach the civil court in relation to the election to the Working Committee held in the year 2005, then the period during which these writ petitions have been pending, shall stand excluded in computing the period of limitation for filing the civil suit. O.P.No.9072/03 17. The challenge in this writ petition is against Ext.P6 order passed by the Director of Public Instructions, cancelling Ext.P4 order passed by the District Educational Officer, approving the 4th respondent herein as the Manager of the School belonging to the Society as the Educational Agency, with effect from 14.4.2002, under the provisions of Chapter III of the Kerala Education Rules. O.P.NO.2117/01 & con.cases :: 17 :: 18. After hearing both sides, a detailed interim order was passed by a learned Judge of this court on 3.4.2003 permitting the writ petitioner to continue as the Manager. Obviously, the continuance of the petitioner, on the strength of the said interim order, will depend upon the result of the writ petition. I do not think it necessary to consider the correctness of Ext.P6 at this distance of time, firstly for the reason that the period of approval granted under Ext.P4, which has been interfered with under Ext.P6, would obviously have been limited to the period for which the person concerned was elected as the Manager by the general body and also for the reason that admittedly fresh elections to the Managing Committee of the Society were held in 2005 and thereafter in 2008 also. No useful purpose will be served in considering the correctness of Ext.P4 or P6, at this distance of time, since the rights of the parties to approach the competent civil court, if they are aggrieved in relation to the elections to the Managing Committee stated to have been held in 2002, has O.P.NO.2117/01 & con.cases :: 18 :: been preserved in O.P.No.21336/02, I do not think it necessary to issue any direction in this writ petition, except to make it clear that the rights of the parties to approach the competent civil court has been preserved. Any right which they assert on the basis of any elections stated to have been held in 2002 will be unaffected and neither Ext.P4 nor Ext.P6 will have any impact, in this regard. W.P.(C).No.18030/05 19. The challenge in this writ petition is against Ext.P4 order passed by the District Educational Officer, Malappuram, approving the 3rd respondent herein as the Manager of the School of which the Society is the Educational Agency. The said order is seen to have been passed on the basis of the proceedings of the District Registrar, who has approved the list forwarded by the faction headed by the 3rd respondent, consequential upon the election to the members of the Working Committee stated to have been held on 1.4.2005. I have already dealt with the rights of the parties in relation to the proceedings of the District Registrar O.P.NO.2117/01 & con.cases :: 19 :: emanating from the elections stated to have been held on 1.4.2005 in O.P.No.2117/01. 20. For that reason and also for the reason that the period of Managership of the 3rd respondent approved under Ext.P4 has expired on 31.3.2008, I do not think that any fruitful purpose will be served by examining the correctness of Ext.P4 order. It is all the more so for the reason that both the parties admit that the general body was convened in April, 2008. But more surprisingly, both of them do not remember the date of the meeting and the election. Two separate lists have been forwarded by two factions and the Registrar is yet to take any decision. Obviously, the proceedings of the District Registrar, in that regard, may have an impact in the decision to be taken by the District Educational Officer, as regards the approval of any person as the Manager commencing from 1.4.2008 and therefore, it is not necessary for me to independently pronounce on the correctness of the impugned order. Suffice it to declare that any view taken by the Registrar or the District Educational Officer in the O.P.NO.2117/01 & con.cases :: 20 :: proceedings which are impugned in the writ petition shall be tentative and would not stand in the way of the parties, establishing their claim before a competent civil court. W.P.(C)No.15798/07 21. The petitioner in this writ petition claims to be the Manager of the Schools, which have been established by the Society. The challenge in this writ petition is essentially against Ext.P17, an order passed by the District Educational Officer, approving the appointment of the 3rd respondent, the Manager of the School for a period of 3 years from 1.4.2005. I have dealt with the dispute raised by the parties as regards the Managership of the School also,