Central Board of Anglo-Indian Education v Dalbin D'Cunha & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944`** ``` RP NO. 1172 OF 2022 AGAINST THE ORDER/JUDGMENT WP(C) 1133/2019 OF HIGH COURT OF KERALA ``` ## **`REVIEW PETITIONER/S:`** ``` THE CENTRAL BOARD OF ANGLO INDIA EDUCATION REG.NO.8/1953, PERUMANOOR (PO), COCHIN 682015 REPRESENTED BY ITS GENERAL SECRETARY. BY ADV PRATHEESH.P ``` ## **`RESPONDENT/S:`** ``` 1DALBIN.D' CUNHA AGED 63 YEARS S/O. THOMAS D CUNHA, MERRYLAND, ELAMKUNNAPUZHA, COCHIN - 682503. 2STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001. 3THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM - 695001. 4THE DEPUTY DIRECTOR OF EDUCATION, KAKKANAD, ERNAKULAM - 682030 . 5RAY MORRIS KALAVEDI, PATTATHANAM P.O, KOLLAM - 691021. 6DONAL CORREYA, S/O.MANUEL PETER CORREYA, AMBATT HOUSE, ERAKKAKULANGARA ROAD, PACHALAM, ERNAKULAM - 682012. 7ANDREW PONSEKA, S/O.LATE PAUL PONSEKA, VALLAPULLY HOUSE, M.A SAJEED ROAD, EDAPPALLY TOLL, KOCHI - 682024. ``` ``` RP NO. 1172 OF 2022 ``` ``` 2 ``` ``` PATRICK LIVERA, AGED 54 YEARS 8 S/O.LOUIS LIVERA, MANTHARA HOUSE, OCHANTHURUTH POST, PIN-682508. 9DANNEY MORERA, AGED 40 YEARS S/O.ROY MORERA, CHERUPULLY PARAMBIL HOUSE, KANAMPILLAY ROAD, PACHALAM, COCHIN - 682012. BY ADVS. ELVIN PETER P.J. K.R.GANESH(K/000551/1991) GOURI BALAGOPAL(K/002008/2019) ABHIJITH.K.ANIRUDHAN(K/1644/2020) SREELEKSHMI A.S.(K/1313/2021) ANU JOSEPH(K/000964/2022) ``` ``` THISREVIEWPETITIONHAVINGCOMEUPFORADMISSIONON 13.12.2022,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` RP NO. 1172 OF 2022 ``` ``` 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944`** ## **`RP NO. 1196 OF 2022 AGAINST THE ORDER/JUDGMENT WP(C) 1133/2019 OF HIGH COURT OF KERALA`** ## **`REVIEW PETITIONER/S:`** ``` PATRICK LIVERA AGED 54 YEARS S/O LOUIS LIVERA, MANTHRA HOUSE, OCHANTHURUTH POST,, PIN - 682508 BY ADV P.K.RAVISANKAR ``` ## **`RESPONDENT/S:`** ``` 1DALBIN D'CUNHA S/O THOMAS D'CUNHA, AGED 63 YEARS, MERRY LAND, ELAMKUNNAPUZHA POST,, PIN - 682503 2STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 3DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM, PIN - 695001 4DEPUTY DIRECTOR OF EDUCATION ERNAKULAM,KAKKANAD, COCHIN, PIN - 682030 5CENTRAL BOARD OF ANGLO INDIAN ASSOCIATION REGISTRATION NO. 8/1953, PERUMANOOR, KOCHI, REPRESENTED BY ITS GENERAL SECRETARY, PIN - 682015 6RAY MORRIS KALAVEDI, PATTATHANAM P.O., KOLLAM, PIN - 691021 ``` ``` RP NO. 1172 OF 2022 ``` ``` 4 ``` ``` 7DONAL CORREYA S/O MANUEL PETER CORREYA, AMBATT HOUSE, ERATTAKULANGARA ROAD, PACHALAM, ERNAKULAM PIN, PIN - 682012 8ANDREW PONSEKA S/O LATE PONSEKA, VALLUPULLY HOUSE, M.A. SAJEED ROAD, EDAPPALLY TOLL, KOCHI, PIN - 682024 9DANNEY MORERA AGED 40 YEARS, S/O ROY MORERA, CHERUPULLUY PARAMBIL HOUSE, KANAMPILLY ROAD, PACHALAM, COCHIN, PIN - 682012 SMT NISHA BOSE SR GP ``` ``` THISREVIEWPETITIONHAVINGCOMEUPFORADMISSIONON 13.12.2022,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` RP NO. 1172 OF 2022 ``` ``` 5 ``` ## **ORDER** These review petitions are filed seeking to review the order dated 21.11.2022 in W.P.(C.) No. 1133/2019. 2. By order dated 21.11.2022 in W.P.(C) No. 1133/2019, this Court, after hearing the contentions advanced by both sides, issued directions, the relevant portion reads as under: 18. Having narrated the sequence of events above, I find that the exercise conducted by this Court was to settle the dispute and to ensure that an election is conducted to elect the office bearers of the Central Board of Anglo-Indian Education in terms of its bye-laws. A perusal of the orders passed by this Court would reveal that much effort was taken and all sides were heard before finalizing the voters’ list in terms of the bye-laws. The Commissioner Advocate, after considering the contentions of all concerned and after evaluating the bye-laws as amended, the Minutes and other registers have finally arrived at the list of members, and the draft voters’ list has been circulated. It would be open to the learned Commissioner Advocate to decide on the members of the 4th respondent Board strictly in terms of Ext.C17. In that view of the matter, I am of the view that it is only just and proper that necessary directions can be issued to the Commissioner Advocate to act in terms of the order dated 12.02.2019 and proceed to conduct the General Meeting so as to elect the office bearers. 19. The learned Commissioner Advocate submitted that the final voters’ list is required to be published in all the schools in terms of the bye-laws of the 4th respondent Board. He asserted that the same can be done within ten days from today. It is further submitted that thereafter, the General Meeting can be held ``` RP NO. 1172 OF 2022 ``` ``` 6 ``` with prior notice of 15 days, and in the said meeting, further steps to elect the office bearers can be taken. 20. In that view of the matter, let the learned Commissioner Advocate take steps to publish the voters’ list in all the schools covered under the bye-laws of the 4th respondent Board within a period of ten days from today. Thereafter, the learned Commissioner Advocate shall proceed to conduct the General Meeting of the 4th respondent Board after giving 15 days prior notice and in terms of the provisions of the bye-laws to elect the members of the Administrative Committee. The entire exercise shall be completed on or before 27.12.2022. 3. Sri. M.R. Rajendran Nair, the learned Senior counsel, as instructed by Sri. Pratheesh P. appeared for the review petitioner in R.P.No. 1172/2022, who is the 4th respondent in the writ petition. 4. The learned senior counsel submits that the final voters’ list prepared by the Commissioner Advocate cannot be used to conduct the election as the same is not in tune with the bye-laws of the Board. It is further submitted that as the amendment brought to Ext.C17 bye-laws have neither been approved by the Board nor the Registrar of Societies, the voters' list, which has been prepared based on the same, lacks sanctity. It is urged that the last election to the Board was held on 27.05.2017, and as the period of officer bearers was for one year, the petitioner cannot claim to occupy the post of Vice Chairman of the Board and seek any relief. It is further submitted that the Commissioner has portrayed in the final voters’ list ``` RP NO. 1172 OF 2022 ``` ``` 7 ``` that it is one prepared with the approval of this Court, which according to the learned Senior counsel, is an assertion that is not correct. 5. Sri. Ravi Sankar, the learned counsel appearing for the review petitioner in R.P.No.1196/2022, the additional 8th respondent in the writ petition, submitted that though the review petitioner had filed detailed objections to the draft voters list, the Commissioner Advocate has not considered the objections so raised. It is further submitted that the contentions which were urged before this Court by the review petitioner do not find a place in the order sought to be reviewed. 6. In response, Sri. Elvin Peter, the learned counsel appearing for the contesting respondent, submitted that the exercise carried out by this Court was to give finality to the disputes and to ensure that the office bearers of the Central Board of Anglo-Indian Education are elected in terms of the bye-law. The learned counsel points out that the review petition is filed by Sri. Ansily Luiz, claiming himself to be the General Secretary of the Central Board of Anglo-Indian Education. According to the learned counsel, the Board was being represented earlier by a certain Eugin Luiz as the General Secretary. During the course of the proceeding, the Board produced the membership register and other records, which were considered, and directions were issued to the Commissioner Advocate to prepare a draft voters’ list in terms of the bye-laws. After having participated in the entire exercise, the Board cannot now turn around and take a different stand, ``` RP NO. 1172 OF 2022 ``` ``` 8 ``` contends the learned counsel. He would then refer to the objection filed by Sri. Eugin Luiz, the former Secretary, to Report No. 9 submitted by the Commissioner Advocate, and it is pointed out that the Secretary had asserted that the election to the Board was conducted last in 2017, and its term had expired on 26.05.2018. It has also been stated therein that the present office bearers had become defunct. The aforesaid Eugin passed away in the month of August 2022, while the writ petition was pending consideration of this Court. According to the learned counsel, a clear procedure is prescribed in the bye-laws for the election of office bearers, and there was no occasion for convening a General Meeting during the pendency of the writ petition to elect the General Secretary, that too, without seeking the permission of the Court. The learned counsel submits that a party is not entitled to seek a review of the judgment merely for the purpose of rehearing the matter. He points out that nowhere in the review petition filed by the person claiming to be the General Secretary of the Board has it been mentioned that there is an error apparent on the face of the record or that he was incapacitated in producing some new and important matter of evidence which was not within his knowledge at the time of the hearing. Reliance is placed on the law laid down in **Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi,** [(1980) 2 SCC 167] and in **Meera Bhanja v. Nirmala Kumari Choudhury** , [(1995) 1 SCC 170] to substantiate his contention. According to the learned counsel, it is well settled that review proceedings are not by way ``` RP NO. 1172 OF 2022 ``` ``` 9 ``` of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of the CPC. The learned counsel would point out that if the review petitioners were of the view that the order issued by this Court is erroneous and it substantially affects or touches upon the substantial rights and liabilities of the parties, they ought to have preferred an appeal. It is contended that there are definitive limits to the power of review, and no such exercise is warranted in the facts and circumstances. 7. I have carefully considered the submissions advanced. 8. I find that in R.P.No. 1172/2022, the petitioner has not even pleaded that there is an error apparent on the face of the record or that he was prevented from producing a new and important matter or evidence that was not within his knowledge at the time of the earlier hearing. All that is stated is that the exercise carried out by the Commissioner Advocate is irregular. In the order under review, this Court had detailed the long sequence of events that ultimately led to the passing of the order. Furthermore, the review petitioner in R.P.No.1172/2022 has admittedly been included in the final voters’ list. 9. Insofar as R.P.No.1196/2022 is concerned, the assertion is that the contentions advanced before this Court by the learned counsel do not find a place in the order. 10. Though, as observed by the Hon’ble Supreme Court in **Shivdeo Singh v. State of Punjab** [AIR 1963 SC 1909], there is nothing in Art.226 ``` RP NO. 1172 OF 2022 ``` ``` 10 ``` of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it, there are definitive limits to the exercise of the power of review. The power of review can be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. As held by the Apex Court in **Lily Thomas v. Union of India** [(2000) 6 SCC 224], the review is not an appeal in disguise. Having considered the matter in all its perspectives, I am not satisfied that the petitioners have made out a case for reviewing the order dated 21.11.2022. These review petitions will stand dismissed. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** ``` avs ``` ``` RP NO. 1172 OF 2022 ``` ``` 11 ``` ## **`APPENDIX OF RP 1172/2022`** ``` PETITIONER ANNEXURES ANNEXURE A1THE TRUE COPY OF THE VOTERS LIST PUBLISHED IN THE SCHOOLS OF THE 4TH RESPONDENT BOARD BY THE ADVOCATE COMMISSIONER. ``` ``` RESPONDENT ANNEXURES ANNEXURE R11(A)TRUE COPY OF EXHIBIT C4 ```