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2017 DIGILAW 364 (KER)

KIDANGAYAM MUSLIM BROTHERS ASSOCIATION v. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATIONS DEPARTMENT

2017-02-21

A.M.BABU, K.SURENDRA MOHAN

body2017
JUDGMENT : K.SURENDRA MOHAN, J. The second petitioner in WP(C) No.2549/2008 is in appeal challenging the judgment of the learned single Judge dated 3.1.2017. As per the judgment appealed against, the learned Single Judge has directed the first respondent Government to consider the request made by the second petitioner in the writ petition. The first petitioner in the writ petition has not joined as a party to this appeal, since he is no more. 2. The dispute in the present case concerns succession to the post of Manager of A.M.L.P School, Kidangayam (hereinafter referred to as the 'school' for short). The school is an aided school that has been functioning for the past many decades. According to the appellant, an Association by name 'Kidangayam Muslim Brothers' Association' was formed in the year 1959 and was registered with the Wakf Board. In the year 1984, the Association purchased the school as per Ext.P1 sale deed dated 25.9.1984. Thereafter, as per Ext.P2 proceedings dated 16.4.1986, the Director of Public Instructions accorded sanction for the change of management. The second respondent who is one of the parties to Ext.P1 sale deed and the Secretary of the 'Kidangayam Muslim Brothers' Association' was approved as the Manager of the school. Accordingly, the school functioned. While so, on 27.1.2002 it is alleged that the second respondent was removed from the post of Manager of the school and one C.P. Muhammedali Haji was elected as the Manager, by the 'Kidangayam Muslim Brothers' Association'. He was the original first petitioner in the writ petition, but is no more. The dispute started at this stage. The change of personnel of the Manager was approved by the Assistant Educational Officer as per Ext.P8 proceedings dated 30.5.2002. The second respondent unsuccessfully challenged Ext.P8 before the Director of Public Instructions. As per Ext.P9 order dated 21.4.2003 Ext.P8 was confirmed. 3. In the meanwhile, the second respondent had approached this Court by filing O.P.No.16124/2002 challenging Ext.P8. As per Ext.R2 (f) judgment dated 6.2.2003, the Director of Public Instructions was directed to pass final orders in the matter within a period of two months from the date of receipt of a copy of the Judgment. It was accordingly that, Ext.P9 order was passed. Ext.P9 was challenged by the second respondent in revision before the Government. As per Ext.R2 (f) judgment dated 6.2.2003, the Director of Public Instructions was directed to pass final orders in the matter within a period of two months from the date of receipt of a copy of the Judgment. It was accordingly that, Ext.P9 order was passed. Ext.P9 was challenged by the second respondent in revision before the Government. At this juncture, writ petitions were filed before this Court, which are WP(C) No.16552/2004, O.P No. 23457/2002 and OP No.14571/2003. O.P No.14571/2003 was filed by the second respondent. All the petitions were disposed of by this Court as per Ext.P11 judgment dated 30.9.2005 relegating the parties to the Revisional Authority, the Government. This Court in Ext.P11 also framed the questions to be considered by the Revisional Authority. Accordingly, the revision was considered and has been allowed by Ext.P14. 4. The Government found in Ext.P14 that the second respondent was the rightful claimant to the post of the Manager of the school and therefore, negatived the claim of the original first writ petitioner. It was the said order that was under challenge before the learned Single Judge in WP(C) No.2549/2008. 5. The learned Single Judge considered the respective contentions of the parties, found that complicated questions with respect to the title of the school were involved, that such questions were required to be thrashed out before the competent civil court in a properly framed suit, but that, for the purposes of resolving the stalemate, the Educational Authorities were competent to decide the questions, subject to the final determination by the civil court and for the said purpose, directed the parties to appear before the Government. A decision in the matter has been directed to be taken within a period of two moths of the appearance of the parties. 6. According to Adv. George Poonthottam who appears for the appellant, as long as Ext.P14 remains intact, a dispassionate consideration of the issues that are involved cannot take place. This is for the reason that, the Government has already found in favour of the second respondent, which finding has not been set aside by this Court. According to the learned counsel, the finding in Ext.P14 suffers from a number of infirmities that the learned Single Judge has failed to take note of. This is for the reason that, the Government has already found in favour of the second respondent, which finding has not been set aside by this Court. According to the learned counsel, the finding in Ext.P14 suffers from a number of infirmities that the learned Single Judge has failed to take note of. It is pointed out that, there are two Associations involved in the present case, one of which is unregistered while the other is registered. The name of the unregistered Association is 'Kidangayam Muslim Brothers' Association' formed in the year 1959 while the name of registered Association is 'Muslim Brothers' Association, Kidangayam'. Both the names though deceptively similar, are distinct and separate and relate to different Associations that are separate entities. A perusal of Ext.P14 order shows that, the Government has proceeded on the assumption that 'Muslim Brothers' Association, Kidangayam' was formed and registered in the year 1963 and that the same was later on registered under the provisions of the Societies Registration Act. The said assumption according to the learned counsel, is factually incorrect and has vitiated the subsequent findings in Ext.P14. We have been taken through the sale deed Ext.P1 as well as the other documents produced in support of the case of the appellant, to drive home his point that, Ext.P14 has been rendered without appreciating the correct factual situation. 7. Adv.K.R.Ganesh, who appears for the second respondent vehemently opposes the contentions put forward by the learned counsel for the appellant. According to the learned counsel, the two Associations referred to above are distinct and separate. The registered Association is the real Association. It is the said Association that had earlier purchased the property and the school. The learned counsel asserts that the second respondent is in possession of the original sale deed of Ext.P1. According to the learned counsel, it was not the appellant Association that had purchased the school. Our attention is drawn to Ext.P3, a notice dated 20.6.1984 issued by the Kerala Wakf Board directing the Association to submit their income and expenditure statements for the year 1983-1984. It is contended that the Association referred to therein is "Muvasathul Muslimin Sanghom and Muslim Brothers' Association". Our attention is drawn to Ext.P3, a notice dated 20.6.1984 issued by the Kerala Wakf Board directing the Association to submit their income and expenditure statements for the year 1983-1984. It is contended that the Association referred to therein is "Muvasathul Muslimin Sanghom and Muslim Brothers' Association". On the basis of Ext.P3, it is contended that the name of the Association that was registered with the Wakf Board under Registration No.B6A.1593/RA was an Association by name "Muvasathul Muslimin Sanghom and Muslim Brothers' Association" and not 'Kidangayam Muslim Brothers' Association' as contended at present. It is further contended that, as per Sec.53 of the Wakf Act 1995, as well as under the earlier Act that was in force at the time of execution of Ext.P1, prior sanction of the Wakf Board had to be obtained for the purchase of properties. Though there are authentic documents in existence that would go to show whether the appellant has any claim over the school or its property, no such documents have been produced. The conduct only shows that the appellant has no right to make any claim over the school or its properties. According to the learned counsel, the impugned order Ext.P14 has considered the issues in proper perspective and has rightly held the second respondent to be the lawful claimant to the post of Manager of the school. It was for the said reason that, the learned Single Judge has not interfered with the same. According to the learned counsel, there are no grounds to interfere with Ext.P14. We have heard the Government Pleader also. 8. Heard. It is an admitted fact that, the school as well as its properties were purchased as per Ext.P1 document. It is a registered document dated 25.9.1984. A perusal of the said document shows that, the purchaser of the properties as per the recitals therein is an Association that is described to have been formed in the year 1959 by name 'Muslim Brothers' Association, Kidangayam'. On behalf of the Association, its President, Vice President, Secretary, Joint Secretary, Treasurer and Manager have taken the sale deed. The Secretary of the said Association who is described in the said sale deed is none other than the second respondent. In fact, there is no dispute regarding the fact that, the second respondent was the secretary of the said Association. The Secretary of the said Association who is described in the said sale deed is none other than the second respondent. In fact, there is no dispute regarding the fact that, the second respondent was the secretary of the said Association. In view of the recitals in Ext.P1 there cannot be any doubt regarding the fact that the school as well as its properties were purchased by the 'Kidangayam Muslim Brothers' Association' that was admittedly unregistered at the time of execution of Ext.P1 and represented by its office bearers including the second respondent who was its secretary. It appears that thereafter, the transfer of management and ownership of the school was ratified by the Director of Public Instructions as per Ext.P2 proceedings dated 16.4.1986. The said proceedings also referred to the second respondent as the Secretary, 'Muslim Brothers' Association, Kidangayam'. It is not in dispute that, thereafter the second respondent continued to function as the Manager of the school and to administer the same. 9. As already noticed above, the dispute appears to have arisen on 27.1.2002, on which date the second respondent was removed from the post of Manager of the school and one C.P.Muhammedali Haji was elected as the Manager. We also notice from Ext.R2(a), the certificate of registration of 'Muslim Brothers' Association, Kidangayam' that, the said certificate is dated 13.3.2002. Under what circumstances, an Association with an identical name with only a difference in position of the word 'Kidangayam' was registered after the second respondent was removed from the post of Manager, is not clear. At any rate, the Association that was functioning from the year 1959 onwards was an unregistered Association. The association that was registered by the second respondent was on 13.3.2002. It is pointed out by the learned counsel for the appellant that in the registered Association except for the second respondent, all the others are outsiders, as evident from Ext.R2 (c). Ext.R2(c) is the bye-laws of the registered Association. We also notice that nowhere in the bye-laws any reference has been made to the present school that has admittedly been functioning ever since Ext.P1, under the management of the 'Kidangayam Muslim Brothers' Association' which is unregistered. In order to resolve the disputes regarding the claim to administer the school one way or the other, it is absolutely necessary that the parties should approach a competent civil court. In order to resolve the disputes regarding the claim to administer the school one way or the other, it is absolutely necessary that the parties should approach a competent civil court. However, in order to ensure that the functioning of the school is not affected by the disputes relating to the management thereof and to ensure that the interests of the students, teachers and other staff of the school are protected, it is absolutely necessary that at least a provisional resolution of the dispute is undertaken by the Educational Authorities. The law on the point is well settled that the Educational Authorities are clothed with ample powers to do so, subject of course, to the final verdict of the competent civil court. Therefore, we do not find any reason to differ from the view adopted by the learned Single Judge that the question would have to be decided immediately by the Government provisionally, until the same is conclusively decided by the competent civil court. But, the question that requires consideration is whether impugned order Ext.P14 requires to be interfered with or not. 10. A perusal of Ext.P14 shows that in paragraph 2 thereof what is stated is the following: Muslim Brothers Association, Kidangayam was formed and registered in the Wakf Board in the year as early as 1963 and the same was registered as No.88/02 on 13.3.2002 under the Societies Registration Act. 11. In paragraph 3 of Ext.P14 it is stated as follows: Another Association by name Kidangayam Muslim Brothers Association was formed and by its decision on 27.1.2002 resolved to appoint Sri.C.P.Mohammedali Haji as the Manager of the school. The Assistant Educational Officer, Manjeri vide Proceedings 1st cited approved the same. 12. The above passages in Ext.P14 show that the Government have proceeded on the assumption that it was the 'Muslim Brothers' Association, Kidangayam' that was formed and registered with the Wakf Board in the year 1963 and later registered under the Societies Registration Act also. The said assumption is wrong, as already found by us above. Ext.P14 next proceeds to state that another Association by name 'Kidangayam Muslim Brothers' Association' was formed and by its decision on 27.1.2002 resolved to appoint C.P.Muhammedali Haji as the Manger of the school. The above statement is also wrong. It is clear that the authorities have failed to notice the difference in the names of the two Associations that is crucial. The above statement is also wrong. It is clear that the authorities have failed to notice the difference in the names of the two Associations that is crucial. Since the difference in the names of the Associations is crucial to the determination of the dispute, we find that the Government have proceeded on an erroneous assumption while deciding the question of the claim to the post of Manager of the school. The mistake is further evident in paragraph 8. The above mistake has also tainted the decision of the Government in deciding as to what is the status-quo that should continue, until the dispute is finally and authoritatively settled in appropriate proceedings before a civil court. It is as a result of the said mistake that the Government has issued the impugned order Ext.P14. Therefore, we are satisfied that Ext.P14 is wrong and unsustainable. Unless Ext.P14 is set aside, a dispassionate consideration of the dispute involved at the hands of the Government would not be possible. Therefore, we set aside Ext.P14. 13. We are informed that pursuant to the direction of the learned Single Judge in the judgment appealed against, the Government have already issued notice to the parties by which a hearing is scheduled on 7.3.2017. Since the dispute is crucial to the smooth functioning of the school and a quick resolution thereof, necessary to secure the interests of the students, teachers and other staff of the school, it is expedient that a decision in the matter is taken and an appropriate arrangement for the smooth conduct of the school put in place, without further delay. Therefore, the parties shall appear before the Government in accordance with the notice already issued to them, on 7.3.2017. If necessary, the hearing could be rescheduled to another convenient date so as to give sufficient opportunity to the parties to get ready in the matter. In the result, this appeal is allowed to the extent of quashing Ext.P14, while maintaining the direction contained in paragraph 4 of the judgment appealed against to the Government to consider and take a decision with respect to the dispute involved in this case. The parties shall appear in accordance with the notice already issued to them before the first respondent on 7.3.2017. The first respondent shall hear the parties and shall pass necessary orders within a period of two months from the said date.