Kommoth Aboo Thahir vs The District Educational Officer
2023 Latest Caselaw 2423 Ker

WP(C) NO. 37804 OF 2022                   1



              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
            THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
  FRIDAY, THE 24TH DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944
                            WP(C) NO. 37804 OF 2022
PETITIONER/S:

              KOMMOTH ABOO THAHIR,
              AGED 67 YEARS
              S/O. KHADAR KUTTY, MANAGER, (PENDING APPROVAL) MM
              HIGHER SECONDARY SCHOOL, NEW MAHE KANNUR DISTRICT
              - 673311. RESIDING AT SAINAS, POST PERINGODE,
              KANNUR DISTRICT - 679535.

              BY ADV R.K.MURALEEDHARAN



RESPONDENT/S:

              THE DISTRICT EDUCATIONAL OFFICER,
              OFFICE OF THE DEO, THALASSERY, KANNUR DISTRICT -
              670101.


OTHER PRESENT:

              SMT.SURYA BINOY, SR.GP




       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   24.02.2023,          THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 37804 OF 2022               2




                        P.V.KUNHIKRISHNAN, J
                    ---------------------------------------
                      W.P.(C) No. 37804 of 2022
                     --------------------------------------
               Dated this the 24th day of February, 2023


                                JUDGMENT

The above writ petition is filed with following prayers :

(i) "Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P7 communication of the respondent dated 18.06.2022

(ii) Issue a writ of mandamus or any other appropriate, writ, order or direction directing the respondent to approve the appointment of the petitioner as Manager of MM Higher Secondary School and MM UP School, New Mahi within a time frame without insisting for the documents demanded as per Ext.P7.

(iii) Issue such other writ, orders or directions as this Hon'ble Court may be pleased to grant.

(iv) It is also prayed that this Hon'ble Court may be pleased to dispense with the production of translation of vernacular documents produced in the writ petition." [SIC]

2. MM Higher Secondary School and MM UP School,

New Mahi were established and run by Mayyalavia Muslim

Educational Society, New Mahi. The Society was registered

under the Societies Registration Act 1860 as evident by

Ext.P1 certificate of registration. As per the registered by-

law of the Society, Clause 13(A) says that the Manager under

the Corporate Management will be one among the managing

committee. The Manager is elected from among the 23

members of the elected managing committee members. It is

also the case of the petitioner that the last amendment to the

by-law was carried out during 1993 which was approved by

the annual general body meeting of the Society on

31.08.1993 and was registered with District Registrar vide

registration No. 2/1993. It is also submitted that as per

Clause 15 of the by-law, the term of the Manager was

specifically adverted to. The dispute has arisen among the

members regarding the election of the Society based on the

amendment brought in by 1993 amendment. It is the case of

the petitioner that as per 1993 amendment, a panel of

candidates has to contest in the election. The issue was

finally reached the Apex Court at the interlocutory stage

which resulted in Ext.P2 order. Pursuant to the direction in

Ext.P2, the election was conducted on 22.04.2012 and one

Mr.Yousuf V was elected as the Manager from 21.05.2012 by

replacing the then approved Manager Sri.V.M.Aboobacker.

The same was approved as per Exts.P3 and P3(a) by the

District Educational Officer. On completion of 5 years, on

20.05.2017, Sri.P.Muhammad Sharafudeen was elected as

Manager on 13.11.2017. Ext.P4 is the order approving

Sri.Sharafudeen as the Manager. Thereafter, the election

was conducted by the returning officer on 05.05.2022 and 23

persons were elected unanimously, without any rival panel

to the Managing committee of the society for the period from

2022 to 2027. Ext.P5 is the newly elected list of Managing

Committee members of the MM Educational Society along

with the certificate of filing received from the District

Registrar of Societies, Kannur. Sl.No.6 in Ext.P6 is the

petitioner who was elected as the Manager of the School.

Ext.P5 was submitted before the District Registrar of

Societies. In the light of the election to the Managing

Committee, the newly elected General Secretary submitted

request along with Ext.P5 and the minutes of the meeting

and copy of Ext.P5 for approval of newly elected Manager of

the school as per Rule 4(2) of Chapter III of KER. Ext.P6 is

the request. The respondent on receiving Ext.P6 instructed

the General Secretary to produce the approved list of

members by the Registrar. Ext.P7 is the letter. The same is

challenged in this case. According to the petitioner, as per

Sec. 4 of the Societies Registration Act, 1860 a list of

governing body shall be filed with the Registrar once in

every year. There is no requirement of approval of the

elected members by the Registrar. Since there was no

objection to the governing body submitted before the

Registrar, Ext.P5 was issued by the District Registrar. It is

also the case of the petitioner that the by-law of the society

was in existence from 1945 onwards and the last amendment

was brought in 1993 and based on the same, the elections

were conducted to the Managing Committee and Managers

were approved. It is also the case of the petitioner that this

Court in Ext.P8 judgment observed that when the school was

functioning under registered Society and by-laws were

existing for more than half a century, it has to be presumed

that the by-laws have to be treated as authentic and binding.

The Secretary therefore, submitted Ext.P9 to the respondent

by producing Annexure-1 to 5 as enclosures to reconsider

the demand for additional documents and to approve the

petitioner as Manager. The same is not considered is the

grievance. Hence, this writ petition.

3. Heard the learned counsel for the petitioner and

the learned Government Pleader.

4. The grievance of the petitioner is that, there are

practical difficulties in producing all the documents referred

in Ext.P7. The counsel for the petitioner submitted that that

the petitioner is ready to produce the by-law. There is no

constitution for the society and there will be only by-law in

the Society. As far as the approval of the list by the

Registrar, the counsel submitted that there is no such

procedure as per the Societies Registration Act. The only

thing is that the details of the elected persons will be

submitted before the Registrar and the same is Ext.P5.

5. The Government Pleader relied the last sentence in

paragraph 10 of Ext.P8 judgment and submitted that this

Court clearly stated that in the event of change in the by-law,

the approval is necessary. The counsel for the petitioner

submitted that Clause 15 of the by-law says about the

appointment and approval of Manager and there is no

change in Clause 15 and therefore, the same is not

applicable. There is force in the argument of the counsel for

the petitioner. I am of the opinion that in the light of Ext.P8

judgment, the direction in Ext.P7 to produce documents to

that effect will not stand. It will be better to extract

paragraph 10 of Ext.P8 judgment.

"10. The next issue is whether the byelaws already in existence was inherently subjected to a disability. In view of the reliance placed on the byelaws for more than half a century and since this Court had approved the byelaws and even directed holding of election on the basis of such byelaws, it has to be presumed that the byelaws have to be

treated as authentic and binding. We have to notice that the petitioner represents the school which came to be established before the Kerala Education Act came to the statute book. S.3(4) provides that all existing schools shall be deemed to have been established in accordance with the Act. Therefore, when the byelaws took care of the day to day administration, especially since there was no fresh constitution of a Corporate Management after the advent of the rules, the byelaws were not to be subjected to a re- approval. We have also to bear in mind if the byelaws run counter to the rules, the latter automatically takes care of the situation and the byelaws have to be delegated to the background. I further make it clear that only in the event of a change in the byelaws hereafter, approval may become necessary."

6. As per Ext.P7, three documents are sought by the

District Educational Officer. As rightly contended by the

petitioner, there is no requirement of approval from the

Registrar of the elected members because such a procedure

is not contemplated in the Act. As far as document Nos. 2

and 3 are concerned, there is only by-law as far as Society is

concerned. The petitioner is ready to produce the same. If

that is the case, according to me, the District Educational

Officer shall proceed with the petition for approval of the

Management based on Ext.P5 and the by-law of the Society

produced by the petitioner without insisting any constitution of

the Society or approval of the by-law by the Registrar.

Therefore, this writ petition is disposed of with the

following directions :

1) The respondent is directed to consider Ext.P6

application without insisting the approved by-law or

the approved constitution, but should consider the

application based on Exts.P5 and the by-law already in

existence.

2) The above exercise shall be completed by the

respondent as expeditiously as possible, at any rate,

within one month from the date of receipt of a copy of

this judgment.

3) The petitioner will produce a certified copy of this

judgment along with a copy of this writ petition before

the respondent for compliance.

Sd/-

P.V.KUNHIKRISHNAN JUDGE SKS

APPENDIX OF WP(C) 37804/2022

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF CERTIFICATE OF REGISTRATION NO. 1 OF 1945 REGISTERED UNDER THE SOCIETIES REGISTRATION ACT 1860.

Exhibit P2 A A TRUE COPY OF THE ORDER IN CIVIL APPEAL NOS. 2749-2750 OF 2012 DATED 12.03.2012.

Exhibit P3 A TRUE COPY OF THE ORDER NO.

B414643/2003/K.DIS OF THE RESPONDENT DATED 07.04.2004 ALONG WITH TYPED COPY.

Exhibit P3 A A TRUE COPY OF THE ORDER NO.

5640/2012/K.DIS OF THE RESPONDENT DATED 26.07.2012.

Exhibit P4 A TRUE COPY OF THE ORDER NO. B7/3722 / 17/K.DIS OF THE RESPONDENT DATED 13.11.2017.

Exhibit P5 A TRUE COPY OF THE NEWLY ELECTED LIST OF MANAGING COMMITTEE MEMBERS OF THE M.M EDUCATIONAL SOCIETY ALONG WITH THE CERTIFICATE OF FILING RECEIVED FROM THE DISTRICT REGISTRAR OF SOCIETIES, KANNUR DATED 15.07.2022.

Exhibit P6 A TRUE COPY OF THE REQUEST SUBMITTED BY THE GENERAL SECRETARY TO THE RESPONDENT DATED 11.05.2022.

Exhibit P7 A TRUE COPY OF THE INTIMATION RECEIVED FROM THE RESPONDENT DATED 18.06.2022.

Exhibit P8 A TRUE COPY OF THE JUDGMENT REPORTED MA GANGADHARAN MOOSATH VS. DEO & ORS REPORTED IN 2003(2) KLJ 520.

Exhibit P9 A TRUE COPY OF THE REPLY SUBMITTED BY THE GENERAL SECRETARY DATED 14.07.2022 EXCLUDING THE ENCLOSURES.