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2011 DIGILAW 771 (KER)

Natarajan N. v. State of Kerala

2011-07-15

T.R.RAMACHANDRAN NAIR

body2011
JUDGMENT : T.R. Ramachandran Nair, J. Both these writ petitions concern the affairs of a High School, viz. Ganapathy Vilasam High School at Koovappady. WP (C) No. 16843/2010 is filed by one of the owners and Managing Committee members of the school, aggrieved by Ext. P5 order passed by the Government in a review petition filed by respondents 3 and 4 therein. The fifth respondent, viz. the Dharma Paripalana Sabha has obtained as per two sale deeds the rights of respondents 3 and 4 therein, in regard to the properties and right of management of the school. WP (C) No. 19196/2010 is filed by the Sabha and respondents 3 and 4 in the other writ petition, challenging the order passed by the Director of Public Instruction, which is confirmed by the Government refusing permission for the transfer. 2. The case of the petitioner in WP (C) No. 16843/2010 is that the school was established in the year 1938 by late Shri. A.S. Narayana Iyer, with the intention of promoting education among the Tamil Brahmin community which is a religious and linguistic minority. Ext. P1 is the proceedings of the Deputy Director of Public Instruction, approving the constitution of the school. The Educational Agency is known as "Ganapathy Viiasam High School, Koovappady." The petitioner points out that respondents 3 and 4, without waiting for prior sanction of the Director of Public Instruction as provided under Section 6 of the Kerala Education Act and Rule 5 of Chapter III of the Kerala Education Rules, executed two sale deeds as per Nos. 2027/2005 and 2028/2005 of the Sub Registry Office, Perumbavoor, in favour of the fifth respondent Sabha. Thereafter, they approached the Director of Public Instruction for sanction. This was rejected by the Director of Public Instruction as per Ext. P2 order. Ext. P3 is the judgment in OS No. 120/2005 filed by the petitioner which was a suit for declaration and prohibitory injunction for declaring that the sale deeds executed by respondents 3 and 4 are not binding on the petitioner and seeking for a prohibitory injunction against respondents 3 to 5. The suit was decreed as per Ext. P3 judgment, against which AS No. 72/2009 is pending before the bub Court, Perumbavoor. 3. The revision petition filed by respondents 3 and 4 against the order Ext. P2, also stands rejected by Ext. P4 order. The suit was decreed as per Ext. P3 judgment, against which AS No. 72/2009 is pending before the bub Court, Perumbavoor. 3. The revision petition filed by respondents 3 and 4 against the order Ext. P2, also stands rejected by Ext. P4 order. Respondents 3 and 4 filed a review petition before the Government which was allowed as per Ext. P5 order, even without issuing notice to the petitioner and without affording an opportunity for hearing. It is contended that the review petition itself is not maintainable, as Rule 93 of Chapter XIV-A KER permits review of only original orders. It is also pointed out that in the light of the binding judgment and decree of the Civil Court in favour of the petitioner, the Government was not correct in passing Ext. P5 order. The matter is now pending before the Civil Court in the form of an appeal against Ext. P3 judgment. 4. In WP (C) No. 19196/2010 also, the orders passed by the Director of Public Instruction and the Government have been produced as Exts. P5, P7 and P10. The copy of the review petition filed by the parties, have been produced as Ext. P9. The contention raised is that the review petition is maintainable and therefore the order Ext. P10 is valid in law. 5. Heard learned Senior Counsel for the petitioner in WP (C) No. 16843/2010 Shri. V. Chitambaresh, Smt. V.P. Seemanthini, learned Senior Counsel appearing for the petitioners in WP (C) No. 19196/2010, Shri. V.A. Mohammed and Shri. K.S. Arun Kumar, learned counsel appearing for the contesting respondents in WP (C) No. 16843/2010 and learned Govt. Pleader. 6. Shri. V. Chitambaresh, learned Senior Counsel appearing for the petitioner in WP (C) No. 16843/2010 submitted that the order Ext. P5 passed by the Government lacks jurisdiction. It is pointed out that the Government is not conferred with any express power for reviewing the order and even the power of review conferred under Rule 93 of Chapter XIV-A KER is only on the original orders passed by the Government. The order passed by the Government initially was in a revision petition filed against Ext. P2 order passed by the Director of Public Instruction and in that view of the matter, Rule 93 of Chapter XIV-A KER also will not apply. The order passed by the Government initially was in a revision petition filed against Ext. P2 order passed by the Director of Public Instruction and in that view of the matter, Rule 93 of Chapter XIV-A KER also will not apply. It is submitted that the power of review is not an inherent power and the order passed is thus without jurisdiction. Reliance is placed on the decision of the Apex Court in Kalabharati Advertising v. Hemant Yimalnath Narichani (2010 KHC 4641 : 2010 (3) KLT 986 (SC) : AIR 2010 SC 3745 : 2010 (9) SCC 437 .), in that regard. It is further pointed out that Section 6 of the Act and Rule 5 of Chapter III of the Rules prescribe prior sanction for transfer of the rights of properties of the school. Here, two out of the three Managing Committee members have transferred their rights over the property of the school to the Sabha. The petitioner has not transferred his rights over the property of the school. In such circumstances, without obtaining prior sanction as prescribed under Section 6 of the Act and Rule 5 of Chapter III of the Rules, they could not have transferred their rights. The Civil Court has declared that the transfer which is in violation of Section 6 of the Act, is void. It is further pointed out that it is well settled by various decisions of the Apex Court that when a Statute prescribes a particular mode of doing things, the same alone can be resorted to and other modes are excluded. In that context, reliance is placed on the decision of the Apex Court in A.R. Antulay v. Randas Snniwas Nayar and Another (1984 KHC 642 : 1984 (2) SCC 500 :1984 SCC (Cri) 277 : AIR 1984 SC 718 :1984 CriLJ 647 : 1984 Bom LR 228.). It is also pointed out, by relying upon various decisions of this Court that this is not a case where the entire properties of the school are being transferred and therefore the transfer of fractional rights will attract the prohibition under Section 6 of the Act and Rule 5Aof Chapter III KER. Reliance is placed on the decision of a learned Single Judge of this Court in Thankamma Kunjamma and Others v. Krishnan Unnithan and Others and that of another learned Single Judge in ILR 1992 (2) Ker. Reliance is placed on the decision of a learned Single Judge of this Court in Thankamma Kunjamma and Others v. Krishnan Unnithan and Others and that of another learned Single Judge in ILR 1992 (2) Ker. 343 and Maroli Balan v. Maroli Dannu and Others (1986 KHC 231 : 1986 KLT 919 : 1986 KLJ 600 .). With regard to the interpretation of Rule 93 also, learned Senior Counsel relied upon the decision of a learned Single Judge of this Court in Rathee Devi v. State of Kerala (2002 KHC 58 : 2002 (1) KLT 271 : 2001 (2) KLJ 895 ), and that of a Division Bench in Rameshan v. Jayavally (1960 KHC 206 : 1960 KLT 803 : 1960 KLJ 1182). 7. Smt. V.P. Seemanthini, learned Senior Counsel for the petitioners in WP (C) No. 19196/2010 and Shri. V.A. Muhammed learned counsel appearing for the respondents in WP (C) No. 16843/2010 contended that herein is a transfer of the management of the school as a running concern along with the properties, to the Sabha and therefore the bar under section will not apply. It is submitted that two out of the three managing committee members, by majority decided to transfer their rights of management and properties to the Sabha and therefore the same has to be respected. It is pointed out that Rule 93 of Chapter XIV-A KER is not attracted, as the proceedings are not issued under Chapter XIV-A KER. By relying upon various decisions of this Court it is contended that when a running school is transferred, the educational authorities will have to see that there is no disruption to the affairs of the school and permission ought to have been granted even initially by the Director of Public Instruction. It is submitted that in the light of the judgment of the Civil Court that two of the members of the managing committee can approach the authorities for sanction, they filed a review petition before the Government. When the initial order was passed by the Government, the effect of the said finding of the Civil Court was not considered by the Government. They also relied upon Section 35 of the Act conferring power to the Government to remove difficulties, to contend that the order passed by the Government is perfectly within its jurisdiction. When the initial order was passed by the Government, the effect of the said finding of the Civil Court was not considered by the Government. They also relied upon Section 35 of the Act conferring power to the Government to remove difficulties, to contend that the order passed by the Government is perfectly within its jurisdiction. It is further pointed out that in the appeal filed before the Sub Court, an interim order has been passed permitting appointments in the school. It is also contended that the order passed by the Government in the review petition will have to be respected, especially since the School and affairs will have lobe permitted to be done without any hindrance. Learned counsel relied upon various decisions of this Court, viz. T.K. Eipe v. K.M. Koshi, P.V. John v. Director of Public Instruction and Another(ILR 1975 (2) Ker. 604), Abdul Rahim v. State of Kerala and Others (1984 KHC 331 : 1984 KLT 773 : 1984 KLJ 700 : AIR 1985 Kerala 103 : 1984 KLN 487 ), Dr. Philippose Mar Theophilus v. State of Kerala and Others(1986 KHC 467 : 1986 KLJ 1069 : 1986 KLT SN 93), Thankamma Kunjamma and Others v. Gopalakrishnan Unnithan and Others (1992 KHC 190 : 1992(1) KLJ 415 : 1992 (1) KLT SN 18 : ILR 1992 (2) Ker. 343), Vijayakumari Pillai v. State of Kerala (2001 (1) KLT SN Page 25, Case No. 28), Usha K. v. State of Kerala and Others (2008 (1) KHC 191 : ILR 2007 (4) Ker. 862 : 2008 (2) KLT SN 94 : 2008 (1) KLJ 939), Anilkumar v. State of Kerala(2009 (3) KHC 596 : 2009 (3) KLT 650 (FB) : 2009 (3) KLJ 1) and Mother Superior v. Vicar, St. Mary's Church( 2011 (2) KHC 399 : 2011 (2) KLT 837 : ILR 2011 (2) Ker. 605 : 2011 (2) KLJ 620 ). 8. In the light of the contentions raised above, a reference has to be made to the statutory scheme and the related aspects arising for consideration. Section 6 of the Act and Rule 5A of Chapter III KER reads as follows: "Section 6. 605 : 2011 (2) KLJ 620 ). 8. In the light of the contentions raised above, a reference has to be made to the statutory scheme and the related aspects arising for consideration. Section 6 of the Act and Rule 5A of Chapter III KER reads as follows: "Section 6. Restriction on alienation of property of aided school.- (1) Notwithstanding anything to the contrary contained in any law for the time being in force, no sale, mortgage, lease, pledge, charge or transfer of possession in respect of any property of an aided school shall be created or made except with the previous permission in writing of such officer not below the rank of a District Educational Officer, as may be authorised by the Government in this behalf. The officer shall grant such permission applied for unless the grant of such permission will, in his opinion adversely affect the working of the school. (2) Any person aggrieved by an order of the officer refusing or granting permission under sub-section (1) may in such manner and within such time as may be prescribed, appeal to the Government. (3) Any transaction made in contravention of sub-section (1) or sub-section (2) shall be null and void. (4) If any educational agency or the manager of any school acts in contravention of subsection (1) or of an order passed under sub-section (2) Government may withheld any grant to the school. Rule 5A. Change of Management involving change of ownership.- (1) Notwithstanding anything contained in these rules, no change of Management of any aided school involving change of ownership shall be effected except with the previous permission of the Director. The Director may grant such permission unless the grant of such permission will, in his opinion, adversely affect the working of the institution and the interests of the staff and the person to whom the Management is transferred. (2) Any person aggrieved by an order under sub-rule (1) may, within 30 days from the date of the receipt of the order, prefer an appeal to the Government. (2) Any person aggrieved by an order under sub-rule (1) may, within 30 days from the date of the receipt of the order, prefer an appeal to the Government. (3) In the case of change of management of a school involving change of ownership the new Manager of a corporate or an individual Educational Agency, shall be bound to absorb any member who is a claimant under Rule 51A of Chapter XIV-A or is eligible for protection belonging to teaching and non-teaching staff of any school of the transferor manager against the vacancies that may arise in the school." The restriction under Section 6 of the Act applies to sale, mortgage, lease, pledge, charge or transfer of possession in respect of any property of an aided school, except with the previous permission in writing of the officer authorised by the Government. Sub-section (3) of Section 6 states that "any transaction made in contravention of sub-section (1) or sub-section (2) shall be null and void." Sub-section (4) empowers the Government to withhold any grant to the school if the educational agency or the manager of any school acts in contravention of subsections (1) and (2). Rule 5A of Chapter III is applicable in the case of change of management involving change of ownership, which also requires previous permission of the Director of Public Instruction. 9. A reference to the sale deeds executed by the contesting respondents in WP (C) No. 16843/2010, viz. Exts. R4(c)and R4(d) shows that they have sold the rights of the respective parties to the Sabha. This is clear from the recitals in the documents. Therefore, what is transferred is their fractional rights in the properties and the management of the school. 10. A reading of the judgment of the Civil Court, viz. Ext. P3, shows that the suit was partly decreed and the operative portion of the judgment reads as follows: "1. It is hereby declared that Sale Deed Nos. 2027/2005 and 2028/2005 of Perumbavoor SRO executed by defendants 1 and 2 in favour of defendants 3 and 4 shall not bind the plaintiff or the plaint schedule school; 2. Defendants 3 and 4 are hereby restrained by way of permanent prohibitory injunction not to involve or participate in the administration and management of the plaint schedule school on the basis of Sale Deed Nos. Defendants 3 and 4 are hereby restrained by way of permanent prohibitory injunction not to involve or participate in the administration and management of the plaint schedule school on the basis of Sale Deed Nos. 2027/05 and 2028/05 of Perumbavoor SRO." The Civil Court in para 22 of the judgment, found that the transaction amounts to the transfer of the properties of the school, going by the sale deeds and not the managerial and administrative rights of the school alone. After considering the relevant Section 6 of the Act, the Court found that the transfer of property as per Exts. A8 and A9 sale deeds are in contravention of the provisions and hence null and void and it will not affect the right of the plaintiffs over the plaint schedule school. This finding was rendered after referring to the principles laid down by this Court in different decisions concerning the interpretation of Section 6 of the Act. The relevant findings in para 23 of the judgment with regard to the same, reads as follows: "In the case on hand a fractional interest over the management is seen transferred by defendants 1 and 2. Hence, it cannot consider as a transfer by one management to another management. The right, title and interest of plaintiff is not transferred in favour of defendants 3 and 4. In short, the transfer made by defendants 1 and 2 in favour of defendants 3 and 4 cannot be considered as a transfer of the entire proprietary, managerial and administrative right of the school. In spite of the transfer, the bundle of the rights of the plaintiff over the school administration will remain. His right will not be affected by the transfer of the right of defendants 1 and 2 in favour of defendants 3 and 4. It will adversely affect the working of the school. The intention of Section 6 is to facilitate smooth and uninterrupted management of the school. If the transfer of defendants 1 and 2 in favour of defendants 3 and 4 is valid it will definitely cause hurdles in the proper and smooth administration of the school. In such circumstances the defendants 1 and 2 have to obtain the permission of the educational authority concerned to sell their right over the school. If the transfer of defendants 1 and 2 in favour of defendants 3 and 4 is valid it will definitely cause hurdles in the proper and smooth administration of the school. In such circumstances the defendants 1 and 2 have to obtain the permission of the educational authority concerned to sell their right over the school. It is a fact that defendants 1 and 2 have absolute right to alienate and transfer their right over the management and administration of the school. In short, there is no total prohibition of assignment as per Section 6 of the Kerala Education Act. The only restriction is that they have to obtain the prior permission of educational authorities. It was not obtained by the defendants. Hence, as per sub-section 3 of Section 6 of Education Act, the transfer of property as per Ext. A8 and A9 are in contravention of the provisions and hence null and void. It will not affect the right of the plaintiff over the plaint schedule school." 11. In para 25 of the judgment, it was found that "there was no proper decision by the management committee to sell the rights of 1st and 2nd defendants to defendants 3 and 4. If there is no prior sanction from the educational authority, the transfer of alienation made by the defendants 1 and 2 are null and void. Hence, document Nos. Ext. A8 and A9 are not binding upon the plaintiff or plaint schedule property." In para 28, the prayer for grant of permanent prohibitory injunction to restrain defendants 1 and 2 from assigning, conveying or otherwise transferring the administration, management or their right over the plaint schedule school to the 3rd defendant or any person claiming under them, was considered. The finding on the said aspect is as follows: "In such circumstances, defendants 1 and 2 have every right to assign convey or transfer the administration, management or their right, title and interest over the plaint schedule property to any person including 3rd defendant with prior sanction of educational authority. If 3rd defendant purchased the right of defendants 1 and 2 as stated above, he has every right to involve in the administration and management of the school. Hence a prohibitory injunction as prayed for is not allowable. If 3rd defendant purchased the right of defendants 1 and 2 as stated above, he has every right to involve in the administration and management of the school. Hence a prohibitory injunction as prayed for is not allowable. At the same time, defendants 3 and 4 have no right to participate in the administration and management of the plaint schedule school on the basis of Ext. A8 and A9 since Ext. A8 and A9 are null and void. Plaintiff is entitled to get a prohibitory injunction in that respect. Hence issue No. 2 and addl. issue are answered accordingly." 12. Therefore, the crucial findings of the Civil Court are: (i) the transfers made as per documents, viz. Exts. R4(c) and R4(d) are null and void for want of prior sanction from the educational authorities; and (ii) Respondents 3 and 4 in WP (C) No. 16843/2010 who were defendants 1 and 2, will have to obtain prior sanction from the educational authority for assigning their rights over the plaint schedule property as well as for transferring the administration and management of their rights in the school. A prohibitory injunction was also granted against defendants 3 and 4, viz. the Sabha represented by its President and its Secretary, in participating the administration and management of the school. 13. It cannot be disputed that before the execution of the sale deeds, prior sanction was not obtained. The sale deeds were executed in 2005 and the applications submitted before the District Educational Officer after the execution of the sale deeds, were forwarded to the Director of Public Instruction. In Ext P2 order, various reasons have been stated for refusing sanction and it is mainly pointed out that no prior sanction was obtained. It was also noted that the transfer is seen proposed by two out of three share holders. The Government confirmed the same in the revision petition filed by respondents 3 and 4 in WP (C) No. 16843/2010. 14. What is ordered in Ext. P5 passed by the Government (produced in WP (C) No. 16843/2010) is ex-post facto sanction to alienate all the rights of the management and property of the school, held by respondents 3 and 4. The educational authorities have been directed to pass appropriate orders on the transfer of management of the school as per rules in due course, if any application is filed for that purpose. The educational authorities have been directed to pass appropriate orders on the transfer of management of the school as per rules in due course, if any application is filed for that purpose. A reading of the order Ext. P5 shows that the reasoning therein is that the Civil Court has "observed that respondents 3 and 4 have absolute right to alienate and transfer their right over the management and administration of the school. As the intention of the petitioners in having transferred their shares is for the smooth continuance of the school, it is only justifiable to condone the above procedural lapse for not obtaining sanction before transferring their shares to the D.P. Sabha." This finding was rendered after noticing the fact that the Civil Court has held that the sale deeds are null and void for want of prior sanction. 15. First I will consider the question whether there is power of review for the Government for passing such an order. The legal position with regard to the exercise of power of review under Rule 93 of Chapter XIV-A KER is that it can be exercised only in respect of original orders, which is specified in the rule itself. A learned Single Judge of this Court in Rathee Devi's case (2002 KHC 58 : 2002 (1) KLT 271 : 2001 (2) KLJ 895 ), held that the review is possible only if the order sought to be reviewed is an original order and not on the appellate or revisional orders. The Court observed as follows: "What is apparent in Rule 93 is that a distinction is drawn between original orders of the Government and orders of the Government which are not original, but based on original orders of some other inferior authority. It is very clear from a perusal of Rule 93 that there review possible is only of original orders of the Government and that the power will not be available in respect of orders passed by the Government in exercise of appellate or revisional jurisdiction.' A Division Bench in a later decision in Rameshan's case (2007 KHC 3486 : 2007 (2) KLT 325), also held that "if it is not an original order, the Government did not have the power under Rule 93 of chapter XIV-A KER." 16. Herein, the power invoked is not under Rule 93, contend the learned counsel for the opposing respondents and the learned Govt. Pleader. 17. The legal position with regard to the exercise of power of review is well settled that it is not an inherent one. The said legal position has been reiterated in Kalabharati Advertising's case (2010 KHC 4641 : 2010 (3) KLT 986 (SC): AIR 2010 SC 3745 : 2010 (9) SCC 437 ), by the Apex Court. In paragraphs 12, 13 and 14, the relevant legal principles have been laid down as follows: "Unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed is ultra vires, illegal and without jurisdiction. The power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in absence of any statutory provision for the same is nullity being without jurisdiction. In absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible." Therefore, an order which is passed invoking the power of review, in the absence of conferment of such power, has been held as ultra vires, illegal an without jurisdiction. It was also held that in the absence of such a provision for review, no application can be entertained characterising it as a clarification/modification/correction. The Apex Court relied upon various decisions in that regard. 18. In Paten Nurshi Thakershi and Others v. Shri. Pradyumansinghji Arjunsinghji (1971 KHC 713 : 1971 (3) SCC 844 : AIR 1970 SC 1273 .) also, it regard to the requirement of an express power, the Apex Court held thus in para 4: "It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to notice from which it could be gathered that the Government had power to review its own order. No provision in the Act was brought to notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order." 19. Evidently, under the Act and the Rules there is no power of review as far as the Government is concerned, of the appellate or revisional orders and no provision under the Act confers such an express power. In the absence of the power of review the Government could not have therefore entertained the review petition filed by respondents 3 and 4. As held by the Apex Court, the said order is ultra vires, illegal and without jurisdiction. 20. Now I will consider the arguments raised by the learned counsel for the respondents and learned Govt. Pleader, relying upon the observations made by the Civil Court in Ext. P3 judgment, Section 35 of the Act and the power to correct mistake conferred on a statutory or administrative authority. It was the contention by Smt. V.P. Seemanthini, learned Senior Counsel and Shri. V.A. Muhammed that the judgment of the Civil Court clearly found that respondents 3 and 4 have got power to alienate and therefore the Government has only corrected m error. Learned Senior Counsel for the petitioner in WP (C) No. 16843/2010, Shri V. Chitambaresh submitted that the same amounts to a misreading of the judgment of the Civil Court. The finding of the Civil Court clearly show that the sale deeds were declared as null and raid, since they have been executed in violation of Section 6 of the Kerala Education Act, i.e. for want of prior sanction. Sub-section (3) itself provides that any transaction made in contravention of sub-sections (1) and (2) will be null and void. 21. The next question is whether the findings rendered in para 28 of Ext. P3 judgment with regard to the power of alienation of defendants 1 and 2 therein, will enable the Government to issue an order like Ext. P5. Sub-section (3) itself provides that any transaction made in contravention of sub-sections (1) and (2) will be null and void. 21. The next question is whether the findings rendered in para 28 of Ext. P3 judgment with regard to the power of alienation of defendants 1 and 2 therein, will enable the Government to issue an order like Ext. P5. What was found by the Civil Court therein is that "defendants 1 and 2 have every right to assign convey or transfer the administration, management or their right, title and interest over the plaint schedule property to any person including third defendant with prior sanction of educational authority " It was further observed as follows: "At the same time, defendants 3 and 4 have no right to participate in the administration and management of the plaint schedule school on the basis of Ext. A8 and A9 since Ext.A8 and A9 are null and void The plaintiff is entitled to get a prohibitory injunction in that respect." Therefore, this finding also is to the effect that they should obtain prior sanction for alienation It is not an ex-post facto sanction at all. Hence, the argument that the observation in para 28 of Ext. P3 judgment that defendants 1 and 2 have got the powder to alienate, clearly enables the Government to have a re-look of the matter, cannot at all be supported. The above findings in para 28 will have to be read along with the findings in paragraphs 23 to 26 also. It was clearly held in para 23 that fractional interest over the management alone is transferred by defendants 1 and 2 and that the transfer cannot be of the entire proprietary, administrative and managerial right of the school by defendants 1 and 2 in favour of defendants 3 and 4 and in spite of the transfer of the bundle of rights of the plaintiff over the school administration will remain. Accordingly, it was held that in the light of sub-section (3) of Section 6 of the Act, the transfers effected are in contravention of the provision and it is null and void. This crucial aspect has not been considered by the Government. Of course, an appeal is filed from the judgment and decree before the Sub Court which is still pending. The findings as of now, by the Civil Court binding on the parties. This crucial aspect has not been considered by the Government. Of course, an appeal is filed from the judgment and decree before the Sub Court which is still pending. The findings as of now, by the Civil Court binding on the parties. The appeal as noted above, is yet to be disposed of. 22. Section 35 of the Act is in the following terms: "Removal of difficulties - If any difficulty arises in giving effect to the provisions of this Act, the Government may by order, do anything not inconsistent with such provisions which appear to them to be necessary or expedient for the purpose of removing the difficulty." The said provision is specifically enacted for conferring power on the Government to pass appropriate orders if any difficulty arises in giving effect to the provisions of the Act. At the same time, the Government cannot do anything which is inconsistent with such provisions also. 23. Learned Senior Counsel for the petitioner in WP (C) No. 19196/2010, Smt. V.P. Seemanthini and Shri. V.A. Muhammed, learned counsel appearing for the contesting respondents in WP (C) No. 16843/2010 relied upon the recent Judgment of a Division Bench of this Court in Mother Superior's case ( 2011 (2) KHC 399 : 2011 (2) KLT 837 : ILR 2011 (2) Ker. 605 : 2011 (2) KLJ 620 ), wherein an order passed by the Government was upheld as one under Section 35 of the Act also. A reading of the judgment shows that the facts are totally different. That was a case where an order passed by the Regional Deputy Director of Public Instruction approving the bye law of the management of the school, was challenged by way of a petition by the appellant before the Division Bench and the Government reversed the said order. Arguments were raised with regard to the power of the Government to issue such an order. The learned Single found that Section 35 has no application. The Division Bench in para 11 held that "it vests unlimited powers on the Government and the only restriction is that the Government shall not do anything inconsistent with the provisions of the Act. Arguments were raised with regard to the power of the Government to issue such an order. The learned Single found that Section 35 has no application. The Division Bench in para 11 held that "it vests unlimited powers on the Government and the only restriction is that the Government shall not do anything inconsistent with the provisions of the Act. "The Division Bench was also of the view that the order passed by the Regional Deputy Director was not only under Rule 2, but under Rule 5 or 5A of Chapter III KER and therefore it could be subject matter of appeal/revision before the Government. It is in that context, the following observations were made in para 11: "Since we have already found that Ext. P1 should be treated as an order not only under Rule 2 but under Rule 5 or 5A as well which could be subject-matter of appeal/revision before Government and in any case in exercise of residuary powers under Section 35 Government has jurisdiction to consider a petition filed before it by the appellant against Ext. P1 order, we have to only consider Ext. P5 on merits." 24. Therefore evidently, what was before the Government was not a petition for reviewing an order passed by the Government earlier. What was under challenge was an order passed by Regional Deputy Director in an appeal/revision before the Government. Therein, the order was sustained with the aid of Section 35 also Herein, we are confronted with an order passed by invoking the power of review and the petition filed by the party respondents before the Government was itself styled as a review petition which is evident from Ext. P9 produced in WP(C) No. 19196/2010. Therefore, the said decision will not help the petitioners therein. 25. Lastly, the question is whether the order is only one correcting a mistake and the learned Government Pleader, in that context, relied upon the decision of a learned Single Judge of this Court in V.V. Prakasini v. K.P.S C. and Others (1993 KHC 209 : 1993 (1) KLJ 632) wherein it was held that the public authorities have power to correct apparent mistake in orders even without a specific provision. The dictum laid down therein in pare 18 is the following: "Such a reserve power to correct mistakes committed by itself has to be located in every public authority in the interests of justice and to avoid arbitrariness. It is not uncommon - in fact it is human failing that errors are committed in the conduct of human affairs. Infallibility is not a human virtue, that being a quality attributable only to the Almighty. Such a power to correct apparent mistakes is therefore an absolute necessity and has to be found in every authority, even without a specific provision. Therefore, what is considered by this Court is the power to correct apparent mistake in orders and the said power was recognised even in the absence of a specific provision. No parallel can be drawn on the basis of it herein, as a review petition was entertained by the Government and the decision therein is not by way of correcting an error or mistake, but after entering upon fresh findings and passing an order on the merits. As we have already noticed, such an exercise cannot be termed as legal, as the Apex Court in Kalabharati Advertising's case, 2010 (3) KLT 986 (SC) clearly held that a petition cannot be entertained under the garb of clarification/modification/correction, when what is actually sought is a review itself. Therefore, the said decision also will not help to sustain the order passed by the Government." 26. Apart from that, the order is one passed without hearing the petitioner in WP (C) No 116843/2010 Ext. P4 is the order passed in the revision petition wherein all the parties were heard. Therefore, the order violates the principles of natural justice also. While reviewing the order by Ext. P4 and by issuing Ext. P5 the Government did not issue notice to the petitioner in WP (C) No. 16843/2010. In that view of the matter also, the order cannot be sustained. 27. One another decision relied upon to sustain the order passed by the Government is of a learned Single Judge of this Court in Usha K.'s case (2008 (1) KHC 191 : ILR 2007 (4) Ker. 862 : 2008 (2) KLT SN 94 : 2008 (1) KLJ 939). In that view of the matter also, the order cannot be sustained. 27. One another decision relied upon to sustain the order passed by the Government is of a learned Single Judge of this Court in Usha K.'s case (2008 (1) KHC 191 : ILR 2007 (4) Ker. 862 : 2008 (2) KLT SN 94 : 2008 (1) KLJ 939). Therein, the power of the Government to correct an administrative order was considered and it was held as follows, in para 29: "Where a decision taken by the Government is per se unconstitutional and therefore void, no irrevocability can be attributed to such order and it probably would be the constitutional obligation on the part of the executive Government to set right an infraction of law and constitutional provisions, which it had committed earlier. I also refer to the following decisions cited by the learned Advocate General in this context, wherein it has been held that administrative orders can also be corrected if it is later found that such orders are vitiated by an error of law or of jurisdiction or that it is otherwise unconstitutional." Evidently, the said principle was laid down in the matter of an executive order and not a quasi judicial order. Therefore, that decision will not help the resolution of the dispute here. 28. The next question is whether, as argued by the learned Senior Counsel Smt. V.P. Seemanthini and learned counsel Shri. V.A. Mohammed, the prohibition under Section 6 is not attracted to the facts of the case. According to them, the rights of management and the properties of the school have been transferred to the Sabha and the school has been transferred as a running concern itself In that context, it is contended that the bar under Section 6 will not apply. 29. In P.V. John v. Director of Public Instruction (ILR 1975 (2) Ker. 604)., with regard to the interpretation of Section 6 of the Act, it was held that prohibition under Section 6 cannot apply to such a transfer, whereby the school itself is transferred. 30. In Vijayakumari Pillai's case, 2001 (1) KLT SN page 25, Case No. 28 also it was held thus with reference to Section 6: "Prohibition in Section 6 of the Act is only against the alienation of any property of an aided school without previous sanction. 30. In Vijayakumari Pillai's case, 2001 (1) KLT SN page 25, Case No. 28 also it was held thus with reference to Section 6: "Prohibition in Section 6 of the Act is only against the alienation of any property of an aided school without previous sanction. When a running school as such with all its properties and right to management is transferred, Section 6 of the Act will not be attracted. What is sought to be prevented by Section 6 is the alienation of any property of an aided school by an educational agency because in that case the working of the school will be adversely affected when any property or properties of the school go into the hands of third persons. When a school is transferred as a going concern, such a difficulty will not arise and hence the prohibition in Section 6 will not apply to such transfer. Here the school was transferred as a going concern. Therefor, the argument that the transfer is hit by Section 6 of the Kerala Education Act is overruled." The question is whether the said principle will squarely apply here. In fact, this Court need not go into the said aspect in the light of the finding already rendered by the Civil Court in Ext. P3 judgment that there is violation of Section 6 of the Act and therefore the transfer itself is void. It was found that what is transferred is the fractional interest of the two defendants and the plaintiff retained his bundle of right over the school. In that view of the matter, as the appeal against the said Judgment is pending, this Court will not be justified in going into the said question. As of now, the said finding will bind all parties. 31. Learned Senior Counsel Smt. V.P. Seemanthini and learned counsel Shri V.A. Mohammed heavily relied upon the principles contained in Dr. Philippose Mar Theophilus, case (1986 KHC 467 : 1986 KLJ 1069 : 1986 KLT SN 93), to contend for the position that if the rights of management of the Sabha could be traced to ownership of the school, then the educational officers can recognize such a right for approving the manager-ship and they need not wait for the ultimate decision by the Civil Court. My attention was invited to the decision of a Division Bench of this Court in T.K. Eipe's case also in that context. It was also pointed out that even going by the definition of "Educational Agency" under Section 2(2) of the Act and in the light of the relevant rules of Chapter III of the Rules, when one of the persons having ownership right being the Manager of the school transferred his rights over the school, that fact ought to have been considered by the Director of Public Instruction before refusing sanction. 32. Section 2(2) of the Act defines Educational Agency as "any person or body of persons permitted to establish and maintain a private school under this Act." Of course, Section 6 deals with the property of the school. It was argued by learned Senior Counsel Smt. V.P. Seemanthini that what is mentioned in Rule 3 of Chapter III is a vesting of the management of the school on the Manager and therefore what is important is the manager-ship. It is contended that the relevant rules do not refer to the title of the properties and herein as the majority, viz. two out of three members have decided to transfer their rights of he management and properties of the school, the ex-post facto sanction alone was required. In that context, my attention was invited to the observations of a Division Bench of this Court in T.K. Eipe's case (1960 KHC 206 : 1960 KLT 803 : 1960 KLJ 1182), with regard to the power of the Manager. It is a case where the power of the Manager to order a transfer of a teacher, was disputed and the Division Bench relied upon Rule 3 of Chapter III and held as follows in para 10: "It follows therefore that on the appointment of a manager by the Educational Agency, the power of the latter become vested in the former. The manager may therefore be characterised as the legally authorised delegate of the Educational Agency." Of course, that was a case where the power of the Manager to issue the transfer order was recognised in the light of the above rule. True that the Manager is a person who is appointed by the educational agency. Herein, there are three members in the Managing Committee also. Going by the approved bye-laws of the school, one person has to be elected as Manager. True that the Manager is a person who is appointed by the educational agency. Herein, there are three members in the Managing Committee also. Going by the approved bye-laws of the school, one person has to be elected as Manager. It is contended by the learned Senior Counsel Smt. V.P. Seemanthini and learned counsel Shri. V.A. Mohammed that since one of the transferees is the Manager itself, the steps for smooth running of the school alone should have been the consideration by the departmental authorities and it is in that context the decision in Dr. Philippose Mar Theophilus's case, was relied upon. With regard to the importance of the Managership of a school, the learned Judge observed thus in para 3: "The provisions of the Act and the Rules thus show that every aided school shall have a Manager, responsible for running the institution in accordance with the Act and the Rules, and answerable to the Department. In the case of institutions under individual management, the proprietor himself can be the manager, if approval is obtained; but in the case of Corporate managements, the choice and appointment of managers are to be governed by the rules (or constitution) required to be framed under Rule 2 Chapter III." Heavy reliance was placed on certain observations contained in para 14, to contend for the position that it is not always necessary for the educational officers to relegate the party to the Civil Court and under Rule 5 A of Chapter III of KER, they can take a decision with regard to the manager-ship. Therein, after referring to various decisions, this Court found thus: "The case law thus suggests that abdication of jurisdiction (under Rule 5A) by the statutory authorities in every case, on the ground that the dispute is a fit one for the Civil Court, cannot be justified; it also suggests that there would be cases where the disputes involve complicated questions of fact and law beyond their reach In each case arising under Rule 5A, therefore, the D.P.I. (or Government) will have to decide whether a case of change of ownership is involved, so as to justify grant of approval for a consequent change of management. If possible they should decide the question in all cases, at least for the limited purposes of the Act and Rules. If possible they should decide the question in all cases, at least for the limited purposes of the Act and Rules. But where the problems are far too complex, requiring the taking of evidence and the determination of difficult legal questions, they can certainly hold their hands and await appropriate decisions from Civil Courts, if they are satisfied that there would be no vacuum in the management of the school in the meanwhile. After all, what is important is that there should be some one to function as Manager under the control of the Educational authorities; and that some one should be one chosen by a person who is prima facie at least owner of the institution. The question of real ownership and a final determination of the same, in so far as they amount to recognition of civil rights are obviously out of bounds for the D.P.I, and the Government." Emphasis was given to the following sentence "After all, what is important is that there should be some one to function as Manager under the control of the Educational authorities; and that some one should be one chosen by a person who is prima facie at least, the owner of the institution.", by the learned Senior Counsel Smt. V.P. Seemanthini. The case law thus suggests that abdication of jurisdiction under Rule 5A by the statutory authorities in every case, on the ground that the dispute is a fit one for the Civil Court, cannot be justified. On the facts of the above case also, the order passed by the Government was finally interfered with by this Court, leaving the matter to be decided by the Civil Court. Herein, evidently, the parties have already agitated the matter before the Civil Court. The judgment Ext. P3 has already been rendered after hearing all the parties. Therefore, the educational authorities, at this stage, cannot ignore the same and enter upon a decision contrary to the findings therein. Of course, the matter is still pending appeal before the Sub Court. Therefore, unless and until it is reversed, these findings will bind everybody. Therefore, the observations in the said judgment also cannot help the argument of the learned Senior Counsel for the petitioners in WP (C) No. 19196/2010. 33. Of course, the matter is still pending appeal before the Sub Court. Therefore, unless and until it is reversed, these findings will bind everybody. Therefore, the observations in the said judgment also cannot help the argument of the learned Senior Counsel for the petitioners in WP (C) No. 19196/2010. 33. Shri. V.A. Mohammed, relied on the decision of a Full bench of this Court in Anilkumar's case (2009 (3) KHC 596 : 2009 (3) KLT 650 (FB) : 2009 (3) KLJ 1), wherein it was held that under Article 226 of the Constitution of India, if quashing of an order results, in resurrection of an illegal order, the discretion need not be exercised. But herein, we are dealing with a case where the Government invoked a power of review which was never conferred on it and going by the decision of the Apex Court in Kalabharati Advertising's case (2010 KHC 4641 : 2010 (3) KLT 986 : AIR 2010 SC 3745 : 2010 (9) SCC 437 ), in the absence of such explicit power, the order passed is ultra vires, illegal and without jurisdiction. Therefore, the said principle cannot help the arguments of the learned counsel for respondents 3 to 5 in WP (C) No. 16843/2010. 34. Smt. V.P. Seemanthini, learned Senior Counsel and Shri. V.A. Mohammed, learned counsel vehemently pleaded for maintaining the order Ext. P5 passed by the Government, by contending that if the order is quashed, that will affect the functioning of the school. It was pointed out that in the appeal filed before the Civil Court, permission has been obtained by the Manager to make appointment. Therein, a reading of the order in lA No. 538/2011 in AS No. 72/2009 passed Sub Court, Perumbavoor shows that the petitioner therein is the third respondent in the appeal, represented by his power holder who is the approved Manager of the school. He is the second petitioner in WP (C) No. 19196/2010 and fourth respondent in WP (C) No. 16843/2010 and one of the transferees. The said interlocutory application is not filed by the Sabha. Therein, permission has been granted to fill up the vacancy of one English Teacher and one Teacher in Mathematics, as otherwise the functioning of the school will be adversely affected. Therein, the Sub Court noticed that the said petitioner, viz. the Manager of the school is still acting as Manager. The said interlocutory application is not filed by the Sabha. Therein, permission has been granted to fill up the vacancy of one English Teacher and one Teacher in Mathematics, as otherwise the functioning of the school will be adversely affected. Therein, the Sub Court noticed that the said petitioner, viz. the Manager of the school is still acting as Manager. A reading of the order does not show that the Court has recognised the rights of the Sabha. 35. In fact, this Court at this stage, need not go into the larger question whether the transfer is valid or not and whether the transferee is entitled to manage the school now, since all these are matters which the Civil Court alone can decide, especially since the appeal and cross-objection are pending consideration before the Sub Court in AS No. 72/2009. Even the order now passed by the Government as per Ext. P5 only allows the parties to move the Educational officers after the Government granted ex-post facto sanction. 36. Shri. Chitambaresh, learned Senior Counsel appearing for the petitioner in WP (C) No. 16843/2010 relied upon the following decision viz: A.R. Antulay's case (1984 KHC 642 : 1984 (2) SCC 500 : 1984 SCC (Cri) 277 : AIR 1984 SC 718 : 1984 CriLJ 647), Maroli Balan v. Maroli Dannu and Others (1986 KHC 231 : 1986 KLT 919 : 1986 KLJ 600 .), and Thankamma Kunjamma's case (1992 KHC 190 : ILR 1992 (2) Ker. 343 : 1992 (1) KLT SN 18 : 1992 (1) KLJ 415), to contend for the position that the procedure prescribed under Section 6 is mandatory and previous sanction is required in the case of sale of the properties of the school by different sharers. Shri. Chitambaresh also submitted that even going by the decision relied upon by Smt. V.P. Seemanthini, learned Senior Counsel, viz. Shri. Chitambaresh also submitted that even going by the decision relied upon by Smt. V.P. Seemanthini, learned Senior Counsel, viz. Vijayakumari Pillai's case, 2001 (1) KLT SN page 25, Case No. 28, it can be seen that the learned Judge observed that "what is sought to be prevented by Section 6, is the alienation of any property of an aided school by an educational agency because in that case the working of the school will be adversely affected when any property or properties of the school go into the hands of third parties." It is pointed out that herein, the petitioner in WP (C) No. 16843, 2010 has never transferred his rights. 37. I am not entering into any findings on various aspects which are to be considered by the Civil Court itself in the appeal. Therefore, the consideration herein is only to the limited question with regard to the validity of Ext. P5 alone. For all these reasons, WP (C) No. 16843/2010 is allowed and Ext. P5 is quashed. WP (C)No. 19196/2010 is consequently dismissed. No costs.