Kerala High Court
Illath Abdul Majeed vs Padmanabhan.P.P on 2 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
RP NO. 765 OF 2022
(AGAINST THE JUDGMENT DATED 12.7.2022 IN OP(C) 377/2022 OF
THIS HON'BLE COURT)
REVIEW PETITIONERS/RESPONDENTS 2 & 3 IN O.P(C):
1 HARIDAS N.A, AGED 60 YEARS
S/O.LATE MADHAVAN NAIR,
MANNATHKANDY HOUSE, NANMINDA AMSOM AND DESOM,
NANMINDA P.O, KOZHIKODE., PIN - 673613.
2 K.BALARAMA KURUP, AGED 70 YEARS
S/O.KUNHIRAMAN, KIZHAKKAYIL HOUSE, SIVAPURAM AMSOM
AND DESOM, SIVAPURAM P.O, THAMARASSERY, KOZHIKODE
DISTRICT, PIN - 673612.
BY ADVS.SRI.ARJUN RAGHAVAN
SRI.T.R.HARIKUMAR
RESPONDENTS/PETITIONERS AND RESPONDENTS 1 & 4 TO 7 IN OP(C):
1 PADMANABHAN P.P, AGED 74 YEARS
S/O.LATE CHAPPUNNI NAIR,
MEYANA HOUSE, NADUVALLOOR AMSOM AND DESOM,
KAKKUR P.O, KOZHIKODE DISTRICT., PIN - 673613.
2 JAYAPRAKASH A.P, AGED 73 YEARS
S/O.LATE KUNHIRAMA, RAJASREE HOUSE,
NANMINDA AMSOM AND DESOM, NANMINDA P.O,
KOZHIKODE DISTRICT, PIN - 673613.
3 ILLATH ABDUL MAJEED, AGED 55 YEARS
S/O.ITHOTY, ILLATH HOUSE, SIVAPURAM AMSOM AND DESOM,
SIVAPURAM P.O, THAMARASSERY, KOZHIKODE DISTRICT,
PIN - 673612.
4 SAYAD MUHAMMED HAJI, AGED 79 YEARS
S/O.LATE KOLLANKANDY MAMMU, PUTHIYOTTIL HOUSE,
BALUSSERY P.O, KOZHIKODE, PIN - 673612.
R.P.Nos.765 & 827 of 2022 2
in O.P.(C)No.377 of 2022
5 BALAKRISHNA KIDAVU, AGED 63 YEARS
S/O.LATE RARUKUTTY NAIR,
KOODATHINGAL HOUSE, KOKKALLUR AMSOM AND
MANNAMPOYIL DESOM, MANNAMPOYIL P.O, KOYILANDY,
KOZHIKODE, PIN - 673612.
6 MINAS THENANCHERY, AGED 42 YEARS
S/O.MUHAMMED IQBAL, THENANCHERRY HOUSE,
KOZHIKODE AMSOM AND DESOM, KOZHIKODE P.O,
KOZHIKODE DISTRICT, PIN - 673004.
7 THE DISTRICT EDUCATIONAL OFFICER
THAMARASSERY, KOZHIKODE, PIN - 673573.
R1 & R2 BY ADVS.SRI.BIJU ABRAHAM
SRI.B.G.BHASKAR
R6 BY ADV.G.SREEKUMAR (CHELUR)
R3 & R5 BY ADVS.SMT.MAYA M.
SRI.V.M.KRISHNAKUMAR
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
02.12.2022, ALONG WITH RP.827/2022, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
R.P.Nos.765 & 827 of 2022 3
in O.P.(C)No.377 of 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA,
1944
RP NO. 827 OF 2022
AGAINST THE JUDGMENT DATED 12.7.2022 IN OP(C) 377/2022 OF
THIS HON'BLE COURT
REVIEW PETITIONERS/RESPONDENTS 1 & 5 IN OP(C):
1 ILLATH ABDUL MAJEED, AGED 55 YEARS
S/O.ITHOTY, ILLATH HOUSE, SIVAPURAM AMSOM AND
DESOM, SIVAPURAM.P.O, THAMARASSERY,
KOZHIKKODE DISTRICT., PIN - 673613
2 BALAKRISHNAN KIDAV, AGED 62 YEARS
S/O RARUKUTTY NAIR, KOODATHINGAL HOUSE,
KOKKALLUR AMSOM AND MANNAMPOYIL DESOM,
MANNAMPOYIL P.O, KOYILANDI,
KOZHIKKODE, PIN - 673612.
BY ADVS.SMT.MAYA M.
SRI.V.M.KRISHNAKUMAR
RESPONDENTS/PETITIONERS & RESPONDENTS 2,3,4,6 & 7:
1 PADMANABHAN.P.P, AGED 74 YEARS, S/O.LATE CHAPPUNNY
NAIR, MEYANA HOUSE, NADUVALLOOR AMSOM AND DESOM,
KAKKUR.P.O, KOZHIKODE DISTRICT, PIN - 673613.
2 JAYAPRAKASH.A.P, AGED 73 YEARS
S/O LATE KUNHIRAMA, RAJASREE HOUSE,
NANMINDA AMSOM AND DESOM, NANMINDA.P.O,
KOZHIKKODE DISTRICT, PIN - 673613.
R.P.Nos.765 & 827 of 2022 4
in O.P.(C)No.377 of 2022
3 HARIDAS.N.A., AGED 60 YEARS
S/O LATE MADHAVAN NAIR, MANNATHKANDY HOUSE,
NANMINDA AMSOM AND DESOM, NANMINDA.P.O,
KOZHIKKODE, PIN - 673613.
4 K.BALARAMA KURUP, AGED 70 YEARS
S/O KUNHIRAMAN, KIZHAKKAYIL HOUSE,
SIVAPURAM AMSOM AND DESOM, SIVAPURAM.P.O,
THAMARASSERY, KOZHIKODE DISTRICT, PIN - 673612.
5 SAYAD MUHAMMAD HAJI, AGED 79 YEARS
S/O LATE KOKKANKANDY MAMMU,
PUTHIYOTIL HOUSE, BALUSSERY.P.O,
KOZHIKODE, PIN - 673612.
6 MINAS THENANCHERY, AGED 42 YEARS
S/O MUHAMMED IQBAL, THENANCHERRY HOUSE,
KOZHIKKODE AMSOM AND DESOM,
KOZHIKKODE.P.O, PIN - 673004.
7 THE DISTRICT EDUCATIONAL OFFICER
THAMARASSERY, KOZHIKKODE, PIN - 673573.
R1 & R2 BY ADV. BIJU ABRAHAM
SRI.B.G.BHASKAR
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
02.12.2022, ALONG WITH RP.765/2022, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
R.P.Nos.765 & 827 of 2022 5
in O.P.(C)No.377 of 2022
ORDER
These review petitions are filed for reviewing the
judgment and order dated 12.7.2022 in O.P.(C)No.377 of
2022 to the extent it restrained the defendants in O.S.173 of
2021 or anybody acting on behalf of the governing committee
of Nanminda High School Society from making any
appointment in the School till the disposal of the Original Suit.
2. Defendant Nos.1 to 3 and 5 in the original suit
are the review petitioners. The plaintiffs instituted the original
suit for a declaration that the general body meeting of
Nanminda High School Society held on 21.2.2021 is invalid
and non est and that there is no validly elected governing
body or office bearers for the Society. Nanminda High School
is managed by a Society named Nanminda High School
Society.
3. In the general body meeting of the Society held
on 21.1.2021 a governing body was elected. The plaintiffs
in O.P.(C)No.377 of 2022
essentially challenged the election of the present governing
committee contending that the meeting of the general body of
the Society was bereft of the prescribed quorum and hence
the committee elected at the meeting is per se invalid and
illegal.
4. The plaintiffs filed I.A.No.2 of 2021 in
O.S.No.173/2021 and prayed for a temporary injunction to
restrain the defendants from functioning as the office bearers
of Nanminda High School Society.
5. The trial Court dismissed I.A.No.2 of 2022. The
order of dismissal was challenged in C.M.A.No.52 of 2021
before the District Court which confirmed the order of the trial
Court.
6. The judgment of the District Court was under
challenge in O.P.(C)No.377 of 2022. This Court dismissed the
Original Petition finding that there was no reason to interfere
with the impugned order of the Court below.
in O.P.(C)No.377 of 2022
7. At the time of hearing, the plaintiffs/respondents
had raised a concern that the present management was taking
steps to make appointments in the School.
8. Therefore, while dismissing the Original Petition
this Court issued the following directions:-
"30. However, having regard to the rival
contentions, this Court is of the view that a direction is
to be issued to the trial Court to dispose of the original
suit and the other connected cases within three
months from this day. All policy decisions taken by
the present governing body of the Society shall be
subject to the result of the suit. The defendants or
anybody acting on behalf of the present committee
shall not make any appointment in the School till the
disposal of the suit. It is further made clear that the
findings of the Lower Appellate Court were only for the
purpose of deciding the interlocutory application and
the trial Court shall dispose of the suit untrammelled
by any of the observations made in the judgment of
the Lower Appellate Court."
9. Heard both sides.
10. The challenge in these review petitions is that
the directions issued by this Court restraining appointments to
Nanminda High School is against the mandate of Section 33 of
the Kerala Education Act, 1958. The learned Counsel for the
review petitioners, relying on a series of precedents,
in O.P.(C)No.377 of 2022
contended that no Court should grant any temporary
injunction or make any interim order restraining any process
of appointment of an aided school. The learned counsel for the
respondents/defendants per contra contended that while
exercising the powers under Article 227 of the Constitution of
India this Court has wide discretionary powers.
11. Section 33 of the Kerala Education Act, 1958
reads thus:-
"33. Courts not to grant injunction.-
Notwithstanding anything contained in the Code of Civil
Procedure, 1908, or in any other law for the time being
in force, no court shall grant any temporary injunction
or make any interim order restraining any proceedings
which is being or about to be taken under this Act."
12. In Damodaran v. Vasudevan (1990 KHC
495) this Court held that as per Section 33 of the Kerala
Education Act a Civil Court is not competent to grant
temporary injunction or make any interim order restraining
any proceeding which is being or about to be taken under the
Act.
in O.P.(C)No.377 of 2022
13. In Kamalakshi Amma v. Karthiyani Amma
(1999 KHC 377) this Court, while interpreting Section 33 of
the Kerala Education Act, held that an interim injunction
cannot be granted restraining the Manager of an aided school
from making appointments.
14. A Full Bench of this Court in A.M.S.Mannadiar
v. State of Kerala (1995 KHC 206), while interpreting the
scope of Section 33 of the Kerala Education Act, held that no
Court shall grant any temporary injunction or make any
interim order restraining any proceeding which is being or
about to be taken under the Act.
15. While dismissing the Original Petition, this Court
had directed the trial Court to dispose of the Original Suit
within a period of three months from the date of the
judgment. In view of the challenge on the validity of the
election to the governing committee in the general body
meeting held on 21.1.2021, to do complete justice, this Court
in O.P.(C)No.377 of 2022
directed that there shall not be any appointment till the
disposal of the suit.
16. The fact that the Manager of the School, in his
capacity as a statutory authority, was not a party to the
proceedings and the bar contained in Section 33 of the Kerala
Education Act were not brought to the notice of this Court.
The direction issued by this Court restraining the appointment
is contrary to Section 33 of the Kerala Education Act. This is
an error apparent on the face of the record.
17. The learned counsel for the
respondents/plaintiffs contended that this Court issued the
direction exercising its judicial discretion conferred by Article
227 of the Constitution of India to do complete justice in view
of the nature of the dispute regarding the management of the
School.
18. In Manish Goel v. Rohini Goel [AIR 2010 SC
1099] the Apex Court held that generally no court has
competence to issue a direction contrary to law nor the Court
in O.P.(C)No.377 of 2022
can direct an authority to act in contravention of the statutory
provisions. In Anurag Kumar Singh v. State of
Uttarakhand (AIR 2016 SC 4542) the Apex Court held that
judicial discretion can be exercised by a Court only when there
are two or more possible lawful solutions. The discretion
assumes the freedom to choose among several lawful
alternatives.
19. Section 33 of the Kerala Education Act
mandates that no Court shall grant any temporary injunction
or make any interim order restraining any proceedings which
are being or about to be taken under the provisions of the Act.
The petitioners in R.P.No.827 of 2022 have produced an order
dated 20.3.2013 by the DEO, Thamarassery, approving
defendant No.5 as the Manager (temporary) for a period from
24.1.2021 to 23.1.2024 (Annexure-1). As per Annexure 2
order dated 12.5.2022, the Additional Director of General
Education modified Annexure 1 order of the DEO,
Thamarassery to the effect that approval of the appointment
in O.P.(C)No.377 of 2022
of defendant No.5 as Manager of the School is subject to the
result of O.S.No.132/2021. Therefore, defendant No.5
continues to be the Manager of the School as per the
provisions of the Kerala Education Act and Rules. The
appointment to the various posts in Nanminda High School is a
proceeding to be initiated under the provisions of the Kerala
Education Act.
20. Resultantly, the direction contained in the
judgment in O.P.(C)No.377 of 2022 to the extent it restrained
the appointment in Nanminda High School till the disposal of
the suit stands vacated.
21. However, it is made clear that all appointments
to be made in Nanminda High School shall be subject to the
decision in O.S.No.173 of 2021. The appointing authority, in
case of making any appointment, shall mention in the order of
appointment that the appointment shall be subject to the
result of O.S.No.173 of 2021 so as to bring the same to the
notice of the prospective appointee. The direction to the Court
in O.P.(C)No.377 of 2022
below is also modified. The Court below shall dispose of
O.S.No.173/2021 within a period of two months from this day.
22. Registry shall forthwith communicate the
directions to the Court below.
The review petitions are disposed of as above.
Sd/-
K.BABU
Judge
TKS
in O.P.(C)No.377 of 2022
APPENDIX OF RP 765/2022
PETITIONERS ANNEXURES
Annexure-I A TRUE COPY OF THE PAPER NOTIFICATION
PUBLISHED IN THE MALAYALA MANORAMA
DAILY DATED 12-06-2022.
in O.P.(C)No.377 of 2022
APPENDIX OF RP 827/2022
PETITIONERS' ANNEXURES
Annexure 1 TRUE COPY OF THE ORDER OF THE DISTRICT
EDUCATIONAL OFFICER THAMARASSERY, ORDER
NO.A5/764/21 KDS DATED 20.03.2021
Annexure 2 TRUE COPY OF THE ORDER OF THE DIRECTOR OF
GENERAL EDUCATION, ORDER NO.EM3/5335/2021
DGE DATED 12.05.2022
