IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 WP(C).No. 6562 of 2010(O) ------------------------------------- (I.A. NO. 487/2010 IN A.S. NO. 23/2010 OF SUB COURT, KOZHIKODE) ................ PETITIONERS: --------------------- 1. K.P.MOHAMMED, S/O.MOIDEEN KOYA, DHANIYA, CHEVAYOOR P.O., CHEVAYUR, CALICUT-17. 2. N.T.MOHAMMED ALI, S/O.MUHAMMED KUTTY, DHAYA MANZIL, KACHERIPADI, VENGARA, MALAPPURAM DISTRICT. 3. P.AHAMMED KOYA, S/O.ABDURAHIMAN KUTTY, AMAAN, KASABA PUTHIYARA P.O., KOZHIKODE-4. 4. DR.C.P.ABOOBACKER, S/O.AYAMMED KUTTY, SHAMSUL KHAIR POONGOTTUKULAM, TIRUR P.O., MALAPPURAM -676 101. 5. K.M.FARIYA, D/O.ALIKOYA, 'PUTHENVEEDU', CHALIYAM P.O., CALICUT-673 301. 6. V.THAHIRA, D/O.V.S.A.THANGAL, VARAYALIL HOUSE, AYANCHERI, VADAKARA, KOZHIKODE DISTRICT. 7. V.K.BAVA, S/O.ABDULLA KOYA HAJI, KULANGARA HOUSE, FEROKE, KOZHIKODE. 8. K.ZEENATH, D/O.K.P.ABDUL KHADER, 22/1202, THIRUVANNUR, KOZHIKODE. 9. K.K.MOHAMMED ZAHIR, S/O.AHAMMED KUTTY, 22/382, WOOD ROSE, THIRUVANNOOR P.O., KOZHIKODE- 673 029. 10. PARAYARUKANDYSAIDUTTY, S/O.MOIDEEN, KOUSER MANZIL, PUVATTUPARAMBA P.O., KOZHIKODE-673 008. W.P.(C). NO.6562/2010-O: 11. ABDUL SALEEM C.C., S/O.KOYAN KUTTY.S., BUNGLOW, P.O.CHALIYAM, KOZHIKODE-673 201. 12. ABDUSHUKKUR THALATHIL, S/O.T.HUSSAIN, THALATHIL, MANJILATH, KODIYATHOOR P.O., MUKKAM, KOZHIKODE. BY ADV. MR.S.SREEKUMAR. RESPONDENTS: ------------------------ 1. ASSOCIATION FOR WELFARE OF THE HANDICAPPED, 17/194 A, M'SQUARE COMPLEX, PAVAMANI ROAD, CALICUT-67300, REPRESENTED BY ITS SECRETARY, DR.T.MOHAMMED, S/O.T.AHAMMED, 11/49A, MYSHA, PANTHALAYANI, KOYILANDI. 2. DR.T.MUHAMMED, S/O.AHAMMED, 11/49A, MYSHA, PANTHALAYANI, KOYILANDI. 3. DR.KUNH AHAMMED KUTTY, S/O.KUNHI MOIDEEN KUTTY HAJI, THIRIKKOT HOUSE, V.K,K MENON ROAD, PANNIYANKARA, KOZHIKODE. R1 TO R3 BY ADVS. MR.K.M.SATHYANATHA MENON, MR.B.G. BHASKER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2010,ALONG WITH W.P.(C). NO. 6600/2010, THE COURT ON 16/03/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.6562/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MEMORANDUM AND BYE LAWS OF THE ASSOCIATION FOR WELFARE OF THE HANDICAPPED, KOZHIKODE. EXT.P.2: COPY OF THE LIST OF MEMBERS OF THE PARALLEL COMMITTEE THAT WAS CONSTITUTED BY THE R.3. EXT.P.3: COPIES OF THE PLAINT IN O.S. NOS. 187/08, 226/08, 365/08, 368/08 & 537/08. EXT.P.4: COPY OF THE COMMON JUDGMENT IN O.S. NO. O.S. NO. 187/08, 226/08, 365/08, 368/08 & 537/08. EXT.P.5: COPY OF THE ORDER OF THE PRINCIPAL MUNSIFF-II, KOZHIKODE IN I.A. NO. 374/10 IN O.S. 368/08 DTD. 21/01/10. EXT.P.6: COPY OF THE ORDER DTD. 27/01/10 IN I.A. 374/10 IN O.S. 368/08. EXT.P.7: COPY OF THE APPEAL MEMORANDUM A.S. 23/10. EXT.P.8: COPY OF THE AFFIDAVIT IN SUPPORT OF THE I.A. EXT.P.9: COPY OF THE CROSS OBJECTION FILED BY THE PETITIONER. EXT.P.10: COPY OF THE AFFIDAVIT AND I.A. EXT.P.11: COPY OF THE ORDER DTD. 30/01/10 IN I.A. 487/10 IN A.S. NO. 23/10. RESPONDENTS' EXHIBIT: EXT.R3.A: COPY OF THE BYE-LAW OF RESPONDENT ASSOCIATION. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). Nos. 6562 & 6600 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of March, 2010. JUDGMENT Association for Welfare of the Handicapped (hereinafter referred to as the Association), a philanthropic association with the avowed object of looking after physically and mentally handicapped persons of the socially backward finds itself in doldrums mainly due to the recalcitrant attitude of its members and the persons in power. 2. The Association came into existence in 1973 and is registered under the Societies Registration Act (Act XXI of 1860). The registered office is at Kozhikode. 3. The work of the Association initially was confined to the backward region of Malabar in Kerala State. While the initial aim and object was the welfare of the persons with disability, as time passed by, their WPC. 6562 & 6600/10. 2 activities extended to other developmental needs of the community itself. There was a massive change in the activities of AWH in 1995 extending to areas like child health, nutrition, higher education,technical education etc. As on date, it has got 30 institutions under the Association. 4. As per the bye-laws, any person not below 18 years and following Islamic faith and who is willing to abide by the aims and objects of the Association is qualified to become a member. The Association consists of a General Body and Executive Committee. The General Body consists of ordinary members and associate members, having equal voting power in the meeting. As per the bye-laws, the membership of the Executive Committee shall not be less than nine and not more than 15. The period of the Executive Committee is three years. As on date there are thirteen members in the Executive Committee. The constitution of the Executive Committee is President, Vice President, Secretary, Joint Secretary, Treasurer, Manager cum Correspondent and members. WPC. 6562 & 6600/10. 3 5. Things went on smoothly till almost 2005. In 2008 there was an election conducted to the Executive Committee, and that was held on 12.3.2008. The new Committee came into existence. The petitioners say that petitioners 1 to 5 and 7 to 12 in W.P.(C) 6562 of 2010 were the members of the Executive Committee elected by the General Body on 12.3.2008. It is alleged that under the leadership of the third respondent in the said writ petition a parallel General Body with his three henchmen were convened on 24.3.2008 and have constituted another Executive Committee. That sparked off a series of litigations. There were as many as five suits filed before the principal Munsiff's Court, Kozhikode. 6. O.S. No.187 of 2008 was a suit for declaration. O.S.365 of 2008 was one for permanent prohibitory injunction, mandatory injunction and for damages. O.S. 368 of 2008 was one for declaration, perpetual injunction and for mandatory injunction. O.S. 537 of 2008 was a suit for declaration and injunction. O.S. 226 of 2008 was a suit for WPC. 6562 & 6600/10. 4 perpetual prohibitory injunction. All the suits were tried together and a common judgment was rendered. The operative portion of the decree reads as follows: “In the result, O.S. 187/08, O.S. 226/08 and O.S. 365/08 are dismissed, however, without cost. O.S. 537/08 is decreed without cost as below:- 1. It is hereby declared that the decision taken by the Registrar of Societies (General), Kozhikode on 4.4.2008 approving the list of members of the governing body consisting of defendants 1 to 5 and 7 to 12 is illegal and improper since there was no legal election on 12.3.2008. It is further declared that the expulsion of the plaintiff from the executive committee of AWH on 24.6.2008 and his removal from general body of AWH on 20.2.2008 are illegal and contrary to the bye-laws of AWH. It is hereby declared that the plaintiff continues to be the member of AWH. It is further declared that the meetings alleged to have been conducted by defendant Nos.1 to 5 and 7 to 12 on the basis of their alleged election to the governing body on 12.3.2008 are illegal, improper and null and void. WPC. 6562 & 6600/10. 5 2. Defendants 1 to 5 and 7 to 12 are restrained by a prohibitory injunction from functioning as the office bearers of the governing body of AWH for the period 2008-2011. A preliminary decree is passed in O.S. 368/08 to the following effect:- 1. The elections to the executive committee of AWH alleged to have held on 12.3.2008 and 24.3.2008 by the rival groups are declared as invalid. 2. Expulsion of three members M/s. Dr.Fakrudheen, Dr.Ayisha Kalliyath and K. Abdul Rahiman from the executive committee on 24.6.2007 is declared invalid. 3. Expulsion of the aforesaid three members from the general body of AWH on 20.2.2008 is also declared invalid. 4. Admission of 21 members by the alleged executive committee headed by P.W.1, on 26.11.2007 into the general body of AWH is also declared invalid. 5. Inclusion of members by the executive committee headed by DW2, after 1.4.2008 and expulsion of some of the members after 1.4.2008 is also held invalid. WPC. 6562 & 6600/10. 6 6. It is hereby declared that, as on 1.4.2008, AWH was having 41 legally enrolled members. A commissioner shall be appointed by the court for supervising the general body meeting of the members of AWH and for the election of executive committee members consisting of 13 members including the office bearers. The general body meeting and election shall be conducted strictly in accordance with the provisions of Ext.A5 bye-laws, after giving notice to all the aforesaid 41 members. The commissioner appointed by the court shall act as the Returning Officer in the election. The entire process of election shall be completed within a period of two months from this date.” 7. Both the parties were taken by surprise by the decree since they did not seek determination of many of the issues on which decision was rendered by the trial court. In fact the prayers in the suit were confined to the declaration of election conducted by each side to be null and void and for consequential reliefs. A perusal of the decree extracted WPC. 6562 & 6600/10. 7 above would show that the court has gone far beyond the reliefs sought for in the suits. 8. At this stage one may not be much concerned about the reliefs sought for. Suffice it to say, the judgment and decree were carried in appeal to the Sub Court, Kozhikode. The petitioners in W.P.(C) 6562 of 2010 filed A.S. 23 of 2010 aggrieved by the judgment and decree in O.S. 368 of 2008. They have also filed I.A. 487 of 2010 for stay of operation of the judgment and decree. That I.A. was disposed of in the following terms: “In the circumstance, the preliminary decree passed for conducting election of new office-bearers of the Association within a period of two months from the date of decree is stayed till the disposal of the appeal.” 9. The petitioners in W.P.(C) 6600 of 2010 challenged the judgment and decree in O.S. 537 of 2008 by filing A.S.24 of 2010. There too, they filed I.A. 575 of 2010 WPC. 6562 & 6600/10. 8 for interim stay of operation of the judgment and decree. The said I.A. was disposed of in the following terms: “So, this court is of the view that it is not proper to suspend the decree and judgment passed by the trial court in O.S. 537 of 2008. The petition is hence dismissed with the observation that the committee elected for the period 2005 to 2008 an function till the disposal of the appeal and a new committee is formed.” 10. W.P.(C) 6562 of 2010 is directed against the order in I.A. 487 of 2010 in A.S.23 of 2010 of Sub Court,Kozhikode and W.P.(C) 6600 of 2010 is directed against the order in I.A. 575 of 2010 in A.S. 24 of 2010 before the same court. 11. As both the writ petitions throw up same issues for consideration, they are being disposed of together. 12. The grievance of the petitioners before this court is that apart from the fact that the trial court has gone far beyond the reliefs prayed for in the respective suits, now WPC. 6562 & 6600/10. 9 by the order of the appellate court in the interlocutory applications, the position has become still worse. Attention was drawn to the fact that the trial court has declared the elections of both the groups of Executive Committee members as invalid and had ordered re-election. Now the appellate court by its order has not only allowed one of the groups, who is said to have been elected in 2005, to continue in office till the new office bearers are elected, but has also stayed the election directed to be conducted by the trial court. The result, according to learned counsel for the petitioners is that the members elected in the illegal election will continue to hold office and no proper election will be conducted in the near future. This anomalous position ought to have been avoided. 13. Learned counsel appearing for the respondents pointed out that the persons who have been allowed to continue in office are validly elected persons and they are permitted to continue in office until new office bearers take charge. There is no harm in the appellate court WPC. 6562 & 6600/10. 10 having ordered that the said Executive Committee will continue in office. Since neither side had prayed for a re- election, the appellate court was justified in staying re- election also. 14. One can only feel pity for the Association. It is rather unfortunate that an Association with laudable objects and purpose should reach such sate of affairs. The elected Executive Committee is to remain in office for a period of three years. The last election was in 2005. The term of that Committee expired in 2008. By virtue of the order of the appellate court, the Executive Committee,which now continues in office, cannot be said to have been validly elected, since the trial court has held that the said election is invalid in law. So their continuance in office is not justified. 15. Probably the trial court might have gone far beyond the scope of the suit. But when viewed from the angle of the present state of affairs of the Association, if the trial court was inclined to put an end to the wrangles between the two groups by taking some steps, it was WPC. 6562 & 6600/10. 11 justified in passing the assailed oder. One fact is evident. A re-election will have to be conducted because the trial court has held that the respective elections claimed by both sides are invalid and cannot be given effect to. 16. From the records it is very evident that there is scramble for possession and also position. It is also clear that the affairs of the Association is in a disarray and the fate of AWH is in peril. None of the members seems to be worried about the inmates of the institutions nor about the fate of the institutions. One can only say that these unpleasant situations could have been easily avoided. 17. There seems to be some substance in the grievance voiced by the petitioners in these writ petitions that the result of the orders passed by the appellate court is that the Committee, which was not validly elected will continue in office and election will not be held in the near future. That is against the interest of the judgment and decree of the trial court. It was with an intention to put an end to impasse that the trial court had ordered re-election. WPC. 6562 & 6600/10. 12 On the facts of the case, one can only say that the order is justified. If the trial court felt that a re-election to the new Committee may solve the problem, it could not be found fault with. It was done with good intention and in the interest of the Association. 18. Several suggestions were made by this court to the parties for an amicable arrangement during the interregnum so that the affairs of the Association can be carried on smoothly and effectively. One of the suggestions was that a party receiver be appointed, who is accountable to the trial court. The choice of the persons to be appointed as Receiver was given to the respective groups. The petitioners were willing to have three persons, whom they named can act as Receivers, but the respondent was not agreeable to that course. Then it was suggested that three persons from either side would be suggested with a court receiver for supervision. This suggestion was made with the hope that the affairs of the institutions could be carried on smoothly. It was felt by this court that imposition of a WPC. 6562 & 6600/10. 13 stranger as a Receiver may cause difficulties for the smooth functioning of the Association. Unfortunately the respondents in these writ petitions are not amenable to any of those suggestions. They are adamant that the Executive Committee, whose election has been found invalid should continue and nobody else shall be appointed even as Receiver to take charge of the office. 19. The above attitude of the respondents, to say the least, is unfortunate. It shows that the particular group has no intention to solve the issue amicably. It is clear from the records that the affairs of the Association are not carried out properly and smoothly and it causes considerable difficulties to the various institutions and the Association as well. That has to be prevented. Both the groups are not willing for an amicable settlement. Of course the petitioners say that they are willing to have a group consisting of three or six persons acceptable to both sides, who can be put at the realm of affairs till election is conducted and a new Executive Committee is taken charge. WPC. 6562 & 6600/10. 14 But the respondents are not willing to accept the said suggestion. At the end of the day, one is left to wonder as to actually who is mentally and physically handicapped, whether it is the inmates of the institutions or the members of the Association. 20. One has to notice that the orders assailed in these writ petitions cause considerable difficulties and results in unacceptable situation. The petitioners are justified in voicing the grievances against the orders. 21. In order to resolve the present stalemate and scramble for possession and power, the only option available to this court is to appoint a Receiver to manage the affairs of the Association. Since the respondents are not willing to accept any of the members of the Association as a Receiver except themselves, an outsider has to be appointed as the Receiver. In the result, these writ petitions are disposed of as follows: WPC. 6562 & 6600/10. 15 (i) A Receiver, preferably a retired District Judge, shall be appointed by the trial court to manage the affairs of the Association in the place of the existing Executive Committee forthwith. (ii) The Receiver shall have the liberty to co-opt at the most, four persons of his choice to aid and assist him in the management of the affairs of the institutions of the Association. (iii) The remuneration for the Receiver shall be fixed by the trial court. (iv) The appellate court is directed to dispose of the appeals pending before it from the suits disposed of by the trial court as expeditiously as possible at any rate within a period of six months from the date of receipt of a copy of this judgment. (v) Till then, the direction to conduct election by the trial court shall be kept in abeyance and the trial court will be at liberty to pass such orders as WPC. 6562 & 6600/10. 16 are necessary for the effective functioning of the Receiver as sought for or as found required by the court below. P. BHAVADASAN, JUDGE sb.