IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12-5-2011 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.2468 of 2011 & M.P.Nos.1, 2 and 3 of 2011 Tmt.K.Renuka .. Petitioner/Petitioner Vs. 1. The Director of School Education, College Road, Chennai-600 006. 2. The Chief Educational Officer, Kanchipuram. 3. The District Educational Officer, Kancheepuram. 4. The Secretary, Ambalavanar Araporuppa Ayam, Walajabad, Kanchipuram. .. Respondents/Respondents Writ Petition under Article 226 of the Constitution of India, praying for issuance of Writ of Mandamus, to direct the third respondent-District Educational Officer, Kanchipuram, to conduct an enquiry before granting approval to the extension of the term of office for the present officer bearers of Ambalavanar Araporuppu Ayam, at Walajabad, Kanchipuram, for a further period of three years i.e. from 2011 to 2014. For petitioner : Mr.R.Thiyagarajan, Senior Counsel for Mr.S.Giridharan For respondents: Mr.S.Gopinathan, Addl.G.P. for RR-1 to 3 Mrs.Nalini Chidambaram, Senior Counsel for Mrs.G.Thilagavathi for R-4 ORDER By consent of learned counsel appearing for the parties, the Writ Petition itself is taken up for disposal. 2. The petitioner who claims to be one of the grand daughters of Late W.T.Masilamani Mudaliyar, the Founder-Trustee of Ambalavanar Araporrupu Ayam (for short, 'the Trust'), has sought for a direction to the third respondent, namely the District Educational Officer, Kanchipuram, to conduct an enquiry before granting approval to the extension of the term of office for the present office bearers of the Trust at Walajabad, Kanchipuram, for a further period of three years, i.e. from 2011 to 2014. 3. In the affidavit filed in support of the Writ Petition, it is stated as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) The petitioner is one of the grand daughters of Late W.T.Masilamani Mudaliyar, who founded the Trust called "Ambalavanar Araporuppu Ayam" at Walajabad, Kanchipuram in 1963 with the object of providing education to the local people who are socially and educationally backward. The Trust started various schools in and around the area, for the benefit of the people in Walajabad Village and surrounding areas, who are all depending on the Schools to give best education to their children. Many children also do part-time work at home for their livelihood and then attend the school. (b) Originally, the members of the Trust Board were (1) Thiru.T.Manikkam Chettiyar, (2) Thiru.W.T.Masilamani Mudaliyar, (3) Thiru.W.D.Nataraja Mudaliyar, (4) Thiru.N.P.Thanigaiarasu, (5) Tmt. Rajeswari Vedhachalam Ammayar, (6) Thiru.W.T.Kannappa Mudaliyar and (7) Dr.Vaithiyanathan. All were continued as Trustees till their lifetime. In the Trust Deed, it is clearly stated that any vacancy that arises due to resignation or death should be filled up by majority of votes of the other Trustees in the Trust. It is also clearly stated that after the death of W.T.Masilamani Mudaliyar, his family member must be included in the Trust Board as a Trustee. The Trust Deed also prescribes the qualification to become a member of the Trust. (c) The petitioner claims that she is one of the grand daughters of the said Late Thiru.W.T.Masilamani Mudaliyar and she has fulfilled all the required qualifications prescribed in the Trust Deed. No one from the family of Late Thiru.W.T.Masilamani Mudaliyar was appointed or elected as a Trustee after his death and the said fact was brought to the knowledge of the earlier Trust Board on several occasions by her and her brother, but to her shock and surprise, no action has been taken by the earlier Trust Board and also the present Trust Board to include the family members of Late Thiru.W.T.Masilamani Mudaliyar as Trustee. (d) While so, the Director of School Education, in his proceedings dated 26.10.1977, inter-alia stated that it is not known that whether the family members of W.T.Masilamani Mudaliyar has been elected as a Trustee and when that is the position, the fourth respondent-Secretary of the Trust, and also the Secretary of W.T.Masilamani Mudaliyar Higher Secondary School, Walajabad, Kanchipuram (for short, 'the School'), suppressing the above fact that the family members of the said W.T.Masilamani Mudaliyar were not included as a Trustee, sent the proposal to the District Educational Officer for approval of his appointment as Secretary. The third respondent-District Educational Officer, based on the proposal, granted the approval of his appointment as Secretary of the Trust Board, by proceedings, dated 6.2.2008 from 6.3.2008 to 5.3.2011. (e) In the present Trust Board, the family members of the above said Late Thiru.W.T.Masilamani Mudaliyar, were not included as Trustees in the Trust Board. In the present Board, there are seven trustees and they are as follows: https://hcservices.ecourts.gov.in/hcservices/ (1) Thiru.B.Kandasamy – President (2) Thiru.P.Radhakrishnan – Secretary (3) Thiru W.N.Thirunavukarasu – Assistant Secretary-cum-Treasurer (4) Thiru.S.Rajendran – Member (5) Thiru.Lakshmanan – Member (6) Thiru.S.L.N.S.Vijayakumar – Member (7) Thiru.Dr.M.S.Amarasan – Member The above members are not the family members of Late Thiru.W.T.Masilamani Mudaliyar. The petitioner being one of the grand daughters of Late Thiru.W.T.Masilamani Mudaliyar and one of the legal heirs as per the Hindu Succession Act, and having fully qualified to be elected as a Trustee, made several representations to the present Secretary and also met the other Trustees in person requesting them to include the petitioner as a member of the Trust Board and instead of doing so, she came to know that they are taking hasty steps to get the approval for their term of office for a further period of three years from 2011-2014. (f) The fourth respondent-Secretary is continuing as Secretary for the past several years. It appears that he made several alienations of the Trust properties without any approval from the Court of law and also let out the Trust properties for a meagre rent to the relatives of the other Trustees. He is also acting against the rules and regulations of the Trust and also the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 (for short, 'the Act') and the Tamil Nadu Recognised Private Schools (Regulation) Rules, 1974 (for short, 'the Rules) and also acting contrary to the Government Orders, circulars and other proceedings. Hence, so many cases were filed by the teaching and non-teaching staff and they are pending. (g) The above facts would establish beyond any doubt that the Secretary and Trustees are guilty of gross misfeasance of their position and power. They have also breached the very Clauses of the Trust Deed, framed by the said Late Thiru.W.T.Masilamani Mudaliyar and also the trust and faith reposed on them by the members of the Community. They are also taking steps to initiate appropriate legal action against them before the appropriate forum. (h) The non-inclusion of any member from the family of Late W.T.Masilamani Mudaliyar, who is the author of the Trust, is against his intention. In this regard, the petitioner made various representations to the respondents. The present Board's term expires on 5.3.2011 and hence, the fourth respondent-Secretary is taking steps to send the proposal for approval of the present Board for a further period of three years from 2011 to 2014. Therefore, the petitioner made representation to the respondents on 10.1.2011, requesting them not to grant the approval to the present Board for a further period of 2011-2014. https://hcservices.ecourts.gov.in/hcservices/ (i) The respondents 1 to 3, instead of directing the fourth respondent-Secretary to include the petitioner as one of the Trustees, are taking steps to grant the approval contrary to the intention of Late Thiru.W.T.Masilamani Mudaliyar, to the present Board, and the same is totally illegal, arbitrary and mala-fide, for the reason that the respondents 1 to 3 have to direct the fourth respondent to include the petitioner's name as per the Trust Deed and without doing so, there cannot be approval of extending the term of office of the Trust Board and against the intention of the testator to include one of the family members in the Trust Board. (j) Therefore, having no other alternative and efficacious remedy, the petitioner has invoked the writ jurisdiction under Article 226 of the Constitution of India by filing the present Writ Petition for the above stated relief. 4. The fourth respondent-Secretary has filed counter affidavit along with the vacate-injunction petition, stating as follows: (i) The very writ petition is not maintainable in law and on facts. Assuming that the petitioner is aggrieved by the non-inclusion of the family member of W.T.Masilamani Mudaliar on the Trust Board, she has to approach the Civil Court, as her grievance is a dispute having civil consequences and her grievance is that the terms of the Trust Board had been violated. Thiru.W.T.Masilamani Mudaliyar, the Founder-Trustee, established M/s.Ambalavanar Araporuppu Ayam (i.e. the Trust), Walajabad, Kanchipuram, during 1963, by way of a registered Trust Deed, dated 4.9.1963, registered as Document No.2545/63 on the file of the Sub- Registrar, Walajabad, enumerating the manner in which the constitution of the Trust is to be made and the succession of the Trust which was registered as the Society on the file of the Sub-Registrar, Walajabad, Kanchipuram. (ii) As per the terms of the Deed of Trust, the following seven Trustees were the permanent Trustees at the time of creation of the Trust: (1) T.Manickam Chettiar, S/o Makappa Chettiar (2) W.T.Masilamani Mudaliyar, S/o Thyagaraja Mudaliar (3) W.D.Nataraja Mudaliyar, S/o W.C.Duraisamy Mudaliar (4) N.P.Thannigai Arasu, S/o Parasuram Mudaliar (5) Smt.Rajeswari Vedhachalam, W/o M.Rao Bahadur M.Vedachallam Mudaliar (6) W.T.Kannappa Mudaliyar, S/o S.Thirumalaisamy Mudaliar (7) Dr.R.N.Vaidyanathan, S/o R.V.Natesa Iyer The terms of the Trust Deed indicated that the above mentioned Trustees would continue for their lifetime and on their vacating the post of Trustee either on resignation or on their death, the remaining Trustees were expected to appoint new Trustees by consensus vote as put forth in https://hcservices.ecourts.gov.in/hcservices/ the Trust Deed. It is further stated that the terms of the Trust Deed may be read as part and parcel of the counter affidavit for better appreciation of the rights, duties and obligation that were cast upon eligible Trustees to effectively administer the Trust, which was intended to achieve the objects with which the said Trust was established. (iii) The term of the office bearer, namely the President was determined to be for a period of three years and the terms of the Trust Deed itself provided the names of the individuals who were expected to function as the President. Though the term of the President was determined to be for a period of three years, as per the terms of the Trust Deed, the first President who was elected, namely T.Manickam Chettiyar, was expected to function as a President till his lifetime. Similarly, Sri.Nataraja Mudaliyar, the Treasurer was authorised till his lifetime to function. Thiru.Masilamani Mudaliyar functioned as Secretary of the Trust-cum- Correspondent of the Higher Secondary School. Thiru.N.P.Thannigai Arasu was elected as Joint Secretary till his lifetime. The intentions of the Founder-Trustee could be gathered from the stipulations of the Trust Deed, which indicated that the Trustees who were elected and appointed in the position of President, the Treasurer and Joint Secretary, were expected to function till their lifetime and in the event of them being unable to carry on their function, for reasons assigned, the remaining Board of Trustees would either on nomination or consensus, elect the new officer bearers who were expected to function for a fixed period of three years. (iv) The Founder expressed his wish that the successor members of his family should form a part of the administration of the Trust as Board of Trustees. The following is the family tree of W.T.Masilamani Mudaliyar, comprising of his legal heirs who could have claimed for representation in the Trust Board under the terms of the Trust Deed: W.T.Masilamani Mudaliyar | |--------------------------------------------------| Kumarasivam (son) (daughter) name not known | --------------------------------------------------------------------- | | | | | | K.Thirunavukkarasu Sivanarul Gandhimathi Renuka Gomathi Kalavathi (grand son)(grand daughter) (grand daughter) (grand daughter)(grand daughter)(grand daughter) (writ petitioner) W/o Venkatesan | ------------------------------------ | | | V.Thiyagarajan Dharanikamatchi Sundari (son) (daughter) (daughter) (v) After the death of W.T.Masilamani Mudaliyar in 1967, Kumarasivam, the only son who had estranged from W.T.Masilamani Mudaliyar, even during https://hcservices.ecourts.gov.in/hcservices/ the lifetime of W.T.Masilamani Mudaliar, warranted Thiru.W.T.Masilamani Mudaliyar to make a public announcement that no claim whatsoever should be made by Kumarasivam and any act of encumbrance by the said Kumarasivam to his personal or Trust properties, would be binding. The behaviour of Kumarasivam resulted in mismanagement and waste of corpus of the Trust, as he had indulged himself in nefarious activities by creating false, fraudulent, fictitious, unlawful documents, by way of sale, which had no legal sanction even during the lifetime of W.T.Masilamani Mudaliar and only as a precautionary measure, W.T.Masilamani Mudaliyar was compelled to issue a paper notification to that effect. Such being the activity of the said Kumarasivam, on the death of W.T.Masilamani Mudaliyar, he forced himself to the Trust activities, to which the other Trustees could not raise any objections. By way of his unwanted activities, he was implicated in a criminal case under the provisions of the Indian Penal Code to which he was convicted and was rendered disqualified and unfit to continue as a Secretary of the School Committee of W.T.Masilamani Mudaliyar Higher Secondary School, Walajabad, in the year 1973 and thereafter, he died in 1974. (vi) The non-indulgence of the other Trustees in the administration of the Trust and the school activities, the competent authorities, namely the respondents 1 to 3 herein, have initiated action to cause disbursement of salary by way of direct payment and finally by re-constitution of the Board of Trustees and the School Committee by way of proceedings of the first respondent, dated 27.2.1978, re-constitution of the School Committee was approved by the competent authority. For the period between 1978 and 2011, more specifically upto 5.3.2011, no member of W.T.Masilamani Mudaliar was available after the death of Kumarasivam to even seek representation in the Trust Board. The Trust Deed contemplated a socially responsible person to be an eligible member to be nominated as a Trustee, when none of the Board of Trustees found the family members of W.T.Masilamani Mudaliyar, eligible to be nominated, and the petitioner cannot today make an allegation of the same. As on date, the Board of Trustees comprises of members as admitted by the petitioner, who have been nominated as per the procedure contemplated in the Trust Deed. The School Committee of W.T.Masilamani Mudaliar Higher Secondary School, has been reconstituted as per the terms of the Tamil Nadu Recognised Private Schools (Regulation) Act and the Rules framed thereunder and has been validly renewed periodically. (vii) By making a false allegation that the fourth respondent is causing alienation of Trust properties, the petitioner has chosen to make out a cause of action and has preferred the present Writ Petition to secure her representation as a Board of Trustees inasmuch as the nomination of a member into a Board of Trustees, is not automatic and the terms of the Trust Deed is to be satisfied to enable the present Board of Trustees to nominate them as a Trustee and there can be no compulsion on the part of the Board of Trustees all of a sudden to nominate the family members of W.T.Masilamani Mudaliyar, inasmuch as the terms of the Trust https://hcservices.ecourts.gov.in/hcservices/ Deed have to be read and given effect to in its true scope and spirit and cannot be read in isolation particularly when the petitioner has acted in a manner reflecting their motivated and mala-fide interest against the welfare of the Trust properties. (viii) The act of waste of the corpus of the Trust property, was caused by the petitioner and K.Thirunavukkarasu, her brother, even when they have been kept out of the administration of the Trust, by merely misusing and abusing their lineage of succession as a grand daughter and grand son of W.T.Masilamani Mudaliyar, when the said Masilamani Mudaliyar expressed himself clearly in letter and on record that the acts of Kumarasivam were not reflecting the true interest to safeguard the Trust property and similarly, the action of both Renuka and K.Thirunavukkarasu, the grand children of W.T.Masilamani Mudaliyar, who had also indulged in fabricating the sale deeds and causing alienation of the Trust properties, which are a subject matter of civil proceedings as on date before the Supreme Court, disqualify them from being considered for nomination on the Board of Trustees as members. (ix) The petitioner has contended that she is fully qualified to be appointed as a Trustee as contained in the Trust Deed and she further contended that after the death of her grand father W.T.Masilamani Mudaliyar, the Trust Board did not choose to appoint or elect one person of W.T.Masilamani Mudaliyar's family to be on the Board, inspite of several representations by her and her brother. This contention of the petitioner is denied by the fourth respondent in the counter affidavit and further stated that the petitioner is put to strict proof of the same. (x) It is a matter of fact that after the death of W.T.Masilamani Mudaliyar in 1967, his son Kumarasivam Mudaliyar was brought as a member on the Trust Board and was nominated as the Secretary, whereupon, he also functioned as a Correspondent of the Schools established by the Trust as contemplated under the terms of the Trust Deed. However, due to his misconduct which resulted in criminal proceedings of conviction in a Criminal Court of law, the competent authority disqualified him from continuing as a Secretary of the Trust and thereupon, he was also removed as the Correspondent of all the Schools established by the Trust. The petitioner, having knowledge of such facts, chosen to suppress the same before this Court and alternatively pleading ignorance of these facts, which only exhibits her act of ulterior motive, which is in contrast to the scope and spirit with which her grandfather established the Trust and thereupon being prejudicial to the interest and functioning of the Trust, was non-suited by the competent authorities, to which, no attribution could be caused to the fourth respondent or to their predecessor-in- interest. To this extent, the contention of the petitioner is denied by the fourth respondent in the counter affidavit. (xi) The petitioner has knowledge of the proceedings of the Director of School Education, dated 26.10.1977, it is wholly unacceptable on the https://hcservices.ecourts.gov.in/hcservices/ part of the petitioner that she had no knowledge of the proceedings in G.O.Ms.No.350, dated 5.3.1975 or the proceedings of the Director of School Education, made in D.Dis.No.255970 (G.3)/77, dated 27.2.1978. The petitioner cannot selectively put forth such a contention and misrepresent certain facts, thereby making an allegation against the fourth respondent, while the fourth respondent has only performed his duty as a Secretary of the School Committee as well as the Secretary of the Trust. 5. An additional affidavit has been filed by the fourth respondent, after the above counter affidavit, stating as follows: (a) After the death of Masilamani Mudaliyar, his son Kumarasivam was inducted and he being disqualified on conviction, the Board came to be reconstituted with one Mr.N.P.Thanigaiarasu who was the then Joint Secretary, was inducted as a Secretary and the School Committee was constituted in 1978 and as a matter of fact, the said Kumarasivam died on 5.6.1975. Only keeping in mind the terms of the Trust Deed, the direct family members of W.T.Masilamani Mudaliyar not being available for consideration to be brought on record, after the death of Kumarasivam in 1975, his son was of the age group, i.e. 17 years, was disqualified in terms of the age and none of the girls of the family who were all married and gone, were not available for consideration. The then Board of Trustees inducted the family members of W.T.Masilamani Mudaliyar, bearing in mind the terms of the Trust Deed, whereby W.N.Nataraja Mudaliyar, son of Thiru.Duraiswamy Mudaliyar, brother of W.T.Masilamani Mudaliar, was brought as the Trustee on the Board of Trust in 1963 and he functioned as the President of the Trust throughout his lifetime till his son Thiru.W.N.Thirunavukkarasu Mudaliyar was inducted as a Trustee only for the reason that he happened to be the family member of W.T.Masilamani Mudaliyar, who is functioning as on date as the Joint Secretary and he is also the Treasurer of the Trust as on date. Further, another close relative of W.T.Masilamani Mudaliyar, Dr.Amaresaon, who is his sister's grand son and renowned Nephrologist, has been inducted in the Board of Trust, which adequately satisfies the terms of the Trust Deed. (b) When the terms of the Trust Deed stipulates the number and the tenure of the Trustees on Board, no addition or deletion to the same can be caused, without due orders from the Civil Court of law, which alone is competent to deal with the modification of the terms of the Trust Deed under the appropriate proceedings to be instituted in law. As regards the present restrainment of the approval to the School Committee is concerned, it causes undue hardship, as the Management is incapacitated from finalising such statutory activities contemplated in law, which is essential for the day-to-day administration of the School, which has been stalled and satisfies the personal interest of the petitioner without bearing in mind any public or charitable interest with which the Trust has been created. Further, only to get rid of the proceedings initiated and pending before the Supreme Court in S.L.P.No.24222—24223/10 with reference to the properties alienated by her and her brother, the present proceedings have been initiated. By reason of the interim order, the aid https://hcservices.ecourts.gov.in/hcservices/ which is to be received by the Management for disbursement of salary for the teachers, had also been put on hold inspite of the fact that the Management has submitted its proposal for approval of the School Committee. Therefore, the fourth respondent prayed for vacating the interim order. 6. In support of the above statements made by the fourth respondent, two independent affidavits have been filed by W.N.Thirunavukkarasu, son of W.D.Nataraja Mudaliyar and Dr.Amaresan, son of Subramani Mudaliyar, stating that to honour the wishes of W.T.Masilamani Mudaliyar, they are included as the family members in the Trust. 7. A reply affidavit to the counter affidavit and additional affidavit filed by the fourth respondent, has been filed, contending as follows: (a) As per the Act and the Rules, no civil Court shall have jurisdiction to decide or deal with any question which is required to be decided by the authority mentioned in the Act. In the present case, the petitioner's prayer is to direct the third respondent-District Educational Officer, Kanchipuram, to conduct an enquiry before granting approval to the extension of the term of office for the present office bearers of the Trust for a further period from 2011 to 2014. It is the duty of the District Educational Officer to grant approval to the educational agency and the School Committee. If the third respondent found that the family members of W.T.Masilamani Mudaliyar is not included in the Trust Board, he is the competent authority to refer the matter to the Civil Court to decide the issue. Pending decision of the Civil Court, the competent authority has to appoint an officer to discharge the functions of the educational agency, the School Committee or the Secretary. In the abovesaid circumstances, the petitioner need not approach the Civil Court and the Writ Petition is maintainable in law. (b) The averment that the petitioner's father was implicated in a criminal case and convicted by Court, is totally false, frivolous and misleading. After the order of conviction, the petitioner's father preferred a Criminal Appeal in Crl.A.No.174 of 1974 before the Sessions Court and the appeal was allowed on 5.2.1975 and the conviction and sentence were set aside. After the order of acquittal, the petitioner's father continued as Secretary/Correspondent of the School Committee and educational agency. On 23.1.1976, the petitioner and other legal heirs, filed a petition before the Sessions Court for refund of the fine amount paid in S.C.No.15 of 1974. (c) The averment that the direct family members of W.T.Masilamani Mudaliyar, were not available for consideration to bring on record after the death of Kumarasivam in 1975, is false and baseless. At that time, when the petitioner's brother Thirunavukkarasu Mudaliyar approached the then Board to include him as a Trustee, was not considered for the