Kerala High Court

B.V.Sakeena Beevi vs The Director Of Public ... on 19 November, 2021

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
            THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                     &
                THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
        Friday, the 19th day of November 2021 / 28th Karthika, 1943
                            W.A.NO. 1425 OF 2021
      AGAINST THE JUDGMENT DATED 11.10.2021 IN W.P.(C)NO.16913/2013 OF THIS
                                   COURT

APPELLANT/PETITIONER:


     B.V.SAKEENA BEEVI BY POWER OF ATTORNEY HOLDER RASHEEK AHAMED,
     BUKARAYIL AYITTANDIYIL P.O.MATHILAKAM, THRISSUR-680 685.

 BY ADV. SRI.P.RAVINDRAN (SR.) AND ADV.SRI.SREEDHAR RAVINDRAN

RESPONDENTS/RESPONDENTS:

  1. THE DIRECTOR OF PUBLIC INSTRUCTION,(DIRECTOR GENERAL OF EDUCATION),
     JAGATHY, THYCAUD P.O.THIRUVANANTHAPURAM, PIN-695 014.
  2. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD-680 506.
  3. MUSLIM VEETTIL CHALACKAL AHAMED HAJI ALIAS HAJI AHMED, MOHIDDIN
     CHALACKAL, S/O MOIDUNNI, ENGANDIYUR, KUNDALIYUR P.O.,CHETUVA,
     THRISSUR DISTRICT-680 616.

 BY GOVERNMENT PLEADER FOR R1 AND R2

 ADVS. SRI.K.JAJU BABU (SR.) AND

 M/s.BRIJESH MOHAN,M.U.VIJAYALAKSHMI

 & RESMI G. NAIR, Advocates for R3

      Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum the High Court be pleased
to stay all further proceedings pursuant to Ext.P6 including
consideration of request by the 3rd respondent for transfer of management
involving change of ownership of Aleemul Islam Higher Secondary School,
pending disposal of the Writ Appeal.

      This Writ Appeal coming on for orders on 19.11.2021 upon perusing
the appeal memorandum, the court on the same day passed the following:


                                                                  [P.T.O.]
 EXHIBIT.P6: TRUE COPY OF THE ORDER DATEED 22.06.2013.

EXHIBIT.P11: TRUE COPY OF JUDGMENT DATED 16.10.2020

IN R.F.A.NO.267/2016.

EXHIBIT.P12: TRUE COPY OF THE ORDER IN SPECIAL LEAVE

TO APPEAL (C) NO.769/2021 DATED 18.01.2021.
               A.K.JAYASANKARAN NAMBIAR, J.
                                  &
                  MOHAMMED NIAS C.P., J.
                    -------------------------------
                     W.A.NO.1425 OF 2021
                  -----------------------------------
          Dated this the 19th day of November, 2021

                            ORDER

A.K. Jayasankaran Nambiar, J.

I.A.No.2 of 2021:

Heard Allowed. Annexure-A1 is accepted as the additional

document in the Writ Appeal.

W.A.No.1425 of 2021:

The appellant before us, who was the petitioner in

W.P.(C).No.16913/2013, is aggrieved by the impugned judgment of

the learned Single Judge that dismissed the writ petition by

upholding the impugned order [Ext.P6] of the Director of Public

Instruction [DPI] that in turn rejected a representation preferred by

the appellant against the proposed assignment of the ownership and

management of the Aleemul Islam Higher Secondary School at

Padoor, Thrissur District, to the 3rd respondent herein. The facts in

the writ petition would indicate that the School was founded by late

B.V. Seethi Thangal, the father of the writ petitioner, and was being W.A.No.1425/2021 :: 2 ::

managed under his individual Educational Agency. Consequent to

the death of the father, the right over the property and management

of the School devolved on his nine children, of whom, the writ

petitioner was one. Although, in the immediate aftermath of the

death of Seethi Thangal, the writ petitioner had, through a power of

attorney dated 3.9.2002, agreed, along with her other siblings, to

entrust the management of the School to one of her brothers namely,

Sri.B.V. Mohammed Raphy Thangal, the said power of attorney was

subsequently revoked by her in the year 2012. In the meanwhile, on

the strength of a power of attorney executed in favour of her son, an

agreement dated 14.5.2007 was entered into between all the legal

heirs of late Seethi Thangal including the writ petitioner and the 3 rd

respondent herein, for the transfer of ownership of the School and

the properties attached thereto together with the management of the

School. While the 3rd respondent undertook that he would pay the

amounts covered under the agreement within time stipulated therein,

it turned out that the 3 rd respondent did not honor the terms of the

agreement even within the extended time permitted by the

agreement. Under the said circumstances, the writ petitioner

reneged from the agreement in relation to her share in the property

of the School, and refused to proceed further with the execution of W.A.No.1425/2021 :: 3 ::

the sale deed. It would appear that thereafter a sale deed dated

8.5.2013 was executed between the other legal heirs of late Seethi

Thangal and the 3rd respondent herein, transferring their respective

shares in the property of the School, to the 3 rd respondent. The sale

deed envisaged that thereafter the 3 rd respondent and the writ

petitioner would be the joint owners of the said property.

3. The representation preferred by the writ petitioner before

the educational authorities was in the wake of alleged steps taken by

the 3rd respondent to obtain a transfer of ownership and management

of the School in his name. The writ petitioner's representation dated

23.11.2012 to the DPI indicated that she had not agreed to sell the

property, and that, in view of Rule 5A of Chapter III of the Kerala

Education Rules, the transfer of management and ownership could

not be effected without securing her prior consent to the transfer.

Although the DPI did not initially take any decision in the matter,

pursuant to the judgment dated 18.12.2021 in W.P.(C).No.30131/2012,

the DPI, by Ext.P6 order, rejected the representation of the petitioner

inter alia on the contention that majority of the share holders of the

property of the School had already agreed to the transfer of the

ownership and management of the School, and hence, the writ W.A.No.1425/2021 :: 4 ::

petitioner alone could not scuttle the said conveyance. It is under the

said circumstances that the writ petitioner approached this Court

through the present writ petition, and the judgment was passed by

the learned Single Judge confirming the order of the DPI.

4. When the matter came up for admission before us, we

noticed that the 3rd respondent had filed O.S.No.862/2013 before the

Sub Court, Chavakkad, seeking specific performance of the

agreement dated 14.5.2007, inasmuch as it pertained to the

obligation of the writ petitioner under the said agreement. The said

suit was dismissed on 30.10.2015, and against the said dismissal, the

3rd respondent approached this Court through R.F.A.No.267/2016,

which also was dismissed by Ext.P11 judgment dated 16.10.2020.

Against the said judgment, the 3 rd respondent had approached the

Supreme Court through S.L.P.No.769/2021, in which, by an interim

order dated 18.1.2021, the Supreme Court has directed that status

quo as of that date be maintained by the parties with regard to the

suit property. We find that, as a result of Ext.P12 Supreme Court

Order, the appellant and the 3rd respondent are both obliged to

maintain status quo with regard to their respective rights in the suit

property. It is our view that in the interregnum, the inter se dispute W.A.No.1425/2021 :: 5 ::

between the appellant and the 3 rd respondent as regards who should

function as the Manager of the School, should be resolved taking

note of the pendency of the litigation before the Supreme Court, and

Ext.P12 order passed therein. We are of the view that under the

aforesaid circumstances, the arrangement put in place must be one

that ensures that both the appellant and the 3 rd respondent play a

role in the management of the School till such time as their inter se

rights in the property of the School are finally determined in the

proceedings before the Supreme Court. We are convinced that such

a course of action would be in the best interests of the School, whose

property requires to be managed effectively pending resolution of the

disputes between the rival factions. We also take note of the fact

that, after the admission of the Writ Appeal on 2.11.2021, by an order

dated 15.11.2021, which appears to have been passed on an

application dated 3.11.2021 submitted by the 3 rd respondent, the

District Educational Officer [DEO], Chavakkad has recognized the 3 rd

respondent as the Manager of the School with effect from 3.9.2019.

Although the said application dated 3.11.2021 is stated to have been

preferred in continuation of an earlier representation dated

9.11.2012, we are of the view that it was not proper for the DEO, to

have passed such an order, more so when Ext.P12 status quo order W.A.No.1425/2021 :: 6 ::

by the Supreme Court was in force. At any rate, in the light of the

circumstances enumerated above, we are of the view that the

interests of justice would require us to make the following

arrangements for the management of the School during the pendency

of this Writ Appeal:

(i) The impugned judgment of the learned Single Judge as also the operation of Annexure-A1 of the DEO dated 15.11.2021 shall remain stayed during the pendency of this Writ Appeal.

(ii) The management of the School shall vest with the DEO, Chavakkad, the 2nd respondent herein, who in turn, shall discharge the functions of the Manager on the joint instructions of both the appellant and the 3 rd respondent. The instructions issued to the DEO, on every aspect of the management of the School, including in the matter of appointment of teaching and non-teaching staff, shall be jointly signed by the appellant and the 3rd respondent, and on verification of the same, the DEO shall act on those instructions in accordance with the provisions of the Kerala Education Act and Rules.