EZHUTHACHAN EDUCATIONAL SOCIETY v. DISTRICT REGISTRAR (GENERAL), THRISSUR and SRI C.N. SAJEEVAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.MUHAMED MUSTAQUE** **FRIDAY, THE 12TH DAY OF JULY 2019 / 21ST ASHADHA, 1941** ## **WP(C).No.15962 of 2019** **PETITIONER/S:** **THE EZHUTHACHAN EDUCATIONAL SOCIETY, REG.NO.322/92, EZHUTHACHAN SAMAJAM OFFICE, THRISSUR-680 020, REPRESENTED BY ITS SECRETARY, SRI.P.S JAYAGOPAL, AGED 52, S/O SANKARANARAYANAN, UDAYA NAGAR, AYYANTHOLE P.O., THRISSUR.** **BY ADVS. SRI.DINESH R.SHENOY SRI.P.ROHIT PREMANANDAN SHENOY** ## **RESPONDENT/S:** **1 THE DISTRICT REGISTRAR (GENERAL), CHEMBUKKAVU, THRISSUR-680 020. 2 SRI.C.N.SAJEEVAN, AGED 51 YEARS, S/O.CHIRAKKAL NARAYANAN, PERUMPILLISERY P.O., CHERPPU, THRISSUR, PIN 680 561.** **BY ADVS. SRI.S.EASWARAN SMT.SOUMYA JAMES SRI.M.A.AUGUSTINE SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.P.SREEKUMAR (THOTTAKKATTUKARA) BY GOVERNMENT PLEADER, SMT.A.C.VIDYA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.07.2019, THE COURT ON 12.07.2019 DELIVERED THE FOLLOWING:** ## **W.P(C).No.15962/2019 2** ## **A.MUHAMED MUSTAQUE, J.** _********************************************************************************************_ ## W.P.(C) No.15962 of 2019 _********************************************************************************************_ Dated this the 12[th] day of July, 2019 ## **JUDGMENT** This writ petition is filed challenging the decision of the District Registrar, produced as Ext.P13 accepting the list submitted by persons claiming to be the governing body of Ezhuthachan Educational Society, a Society registered under the Travancore Cochin, Literary, Scientific and Charitable Societies Registration, 1955 (for short, the 'Act'). 2. The dispute is with regard to the acceptance of the list submitted by the persons claiming to be the governing body of the aforesaid Society. The list furnished by the second respondent was accepted and the list furnished by Sri.P.S.Jayagopal was rejected. 3. This writ petition is filed by the Society which is represented by Jayagopal. At the outset, I must say that since the right to represent the Society has not been recognized so far, the writ ## **W.P(C).No.15962/2019 3** petition could not have been filed by the Society represented by Jayagopal. Further, the Society itself cannot be aggrieved by the orders of the District Registrar. 4. Ezhuthachan Samajam is a registered Society constituted for the welfare of the members of the community called “Ezhuthachan”. Ezhuthachan Educational Society is a body that appears to have been constituted by the parent samajam for managing the affairs of the educational institutions established by the Ezhuthachan community. 5. Based on a general body meeting alleged to have been convened on 1.1.2017, a list of new office bearers of the governing body was furnished before the District Registrar as contemplated under Section 7(3) of the aforesaid Act. The list was furnished on 5.1.2017. As per the list, Sri.Aravindakshan is the President and Sri.Sajeevan is the General Secretary of the Society. ## **W.P(C).No.15962/2019 4** 6. On 25.3.2017 Jayagopal filed an affidavit before the District Registrar stating that a dispute in regard to the governing body is pending before the civil court and that till a decision is taken by the civil court in the matter the Registrar shall not renew the registration and also shall not do anything related to the Society. 7. The District Registrar, acting upon the affidavit filed by Jayagopal, passed an order on 5.3.2018. The list furnished by Sajeevan was cancelled on 05.03.2017 and Jayagopal was allowed to furnish the list of the governing body. 8. The order of the District Registrar was challenged by the Society represented by Sajeevan. Here also I must say, when Sajeevan's right has been cancelled by the order of the District Registrar, the Society itself could not have any grievance against the action of the Registrar. However, that writ petition was also filed by the Society represented by Sajeevan. **W.P(C).No.15962/2019 5** Anyhow, this Court entertained the writ petition and passed a judgment on 22.6.2019 setting aside the order of the District Registrar and directed the District Registrar to take a fresh decision in the matter. 9. Aggrieved by the judgment of the learned Single Judge the Society represented by Sajeevan filed a writ appeal before the Division Bench. The Division Bench was of the view that there was no justification on the part of the learned Single Judge in declaring the acceptance of the list furnished by Sajeevan, by the Registrar on 05.01.2017 as illegal based on a subsequent illegal decision taken by the Registrar. In other words, the Division Bench ordered that the scope of decision by the Registrar must be confined to the challenge made by Jayagopal in regard to the acceptance of original list by the Registrar on 05.01.2017. 10. As pointed out by the Division Bench, the scope of enquiry by the Registrar is limited to the legality of the acceptance of the list furnished on 5.1.2017. ## **W.P(C).No.15962/2019 6** The consideration regarding the acceptance of the list from Jayagopal would arise only in circumstances wherein the list furnished by Sajeevan is cancelled. 11. Section 7 of the Act refers to the general meetings and minutes of proceedings of such meetings. Section 7(3) of the Act states thus: “A list of the members of the first governing body of a Society shall be filed with the Registrar within fourteen days from the date of registration of the Society and thereafter the list of the governing body shall be filed with the Registrar within fourteen days after the date of the annual general meeting.” 12. To understand the scope of acceptance of the list one need to advert to section 7(2) of the Act. Section 7(2) refers to the convening of an annual general meeting for election to the governing body. 13. It is necessary to understand the scope of duties and functions of the Registrar in regard to acceptance of the list. The governing body has two fold functions and duties in relation to the affairs of the ## **W.P(C).No.15962/2019 7** Society. One relates to the obligation towards its members. It is purely a private matter between the members and the governing body. The other functions and duties of the governing body are in the nature of responsibilities under public law. The statutory provisions of the Act casts certain obligations and responsibilities on the governing body. Therefore, to create accountability under the public law, it is necessary to furnish the list of the governing body with the Registrar. 14. A Registrar cannot accept a list furnished in regard to the governing body of the Society unmindful of the consequences which may arise upon the acceptance of the list. He has to apply his mind and be satisfied that the list has been furnished based on the annual general meeting conducted. This satisfaction, in fact, is based on an enquiry. If he is of the view that there was no annual general meeting, he cannot accept the list furnished by the persons claiming to be elected as ## **W.P(C).No.15962/2019 8** the governing body. The functions and duties of the Registrar as adverted above is limited to the conducting of an enquiry for his _prima facie_ satisfaction to the acceptance of the list. He has no power of adjudication. When there is a serious dispute in regard to the election, the Registrar cannot accept the list furnished by either of the parties. But that does not mean that merely because a dispute has been raised he is precluded from conducting an enquiry prior to his acceptance of the list. He has to conduct an enquiry as to the nature of the election and the election of the governing body thereon. The two factors which are required to be looked into during such enquiry are meeting and election. 15. Once the Registrar is satisfied that there was an election and that the list has been furnished in accordance with the election, any dispute in regard to such election can be only resolved through the civil court. Therefore, focal concern of the Registrar in ## **W.P(C).No.15962/2019 9** such enquiry relates to the convening of the general body for the purpose of the election and electing the governing body thereon. If a general body was convened for the election, and the list was furnished pursuant to such election, he should accept such list leaving the liberty of deciding any dispute relating to the election to the civil court. A problem still arises when two sets of lists are furnished based on such annual general meeting. If the Registrar is unable to accept such lists of the parties without adjudication based on evidence, he should relegate the parties to approach the civil court where this could be adjudicated based on evidence. However, when there is overwhelming evidence for taking _prima facie_ view of accepting one’s list, he should accept the list and relegate the other party to approach the civil court. [See the Division Bench judgment of this Court in ## **C.M.Z.Musliar v. Aboobacker[1998 (1) KLT 136]** . **W.P(C).No.15962/2019 10** 16. The term of elected office bearers of the Ezhuthachan Educational Society is due to expire only on 21.8.2020. The term of the governing body is five years as per the bye law. It is obvious that a list can be furnished during midterm only after removing the existing office bearers. 17. The first objection raised by Jayagopal was on 25.3.2017 and at that time a civil suit was pending in regard to the affairs of the governing body. 18. The objection to the acceptance of the list will have to be considered to understand the legality of the impugned order. The first objection was raised in regard to the convening of a meeting of the educational society on 1.1.2017. It was specifically raised in the argument note that no general body meeting of the society was convened on 1.1.2017. The second objection was based on the civil suit, O.S.No.175/2017 which was filed by Jayagopal representing Ezhuthachan Samajam against Aravindakshan, **W.P(C).No.15962/2019 11** Sajeevan and others for permanent injunction. An interim injunction application was also filed. That was subsequently allowed. Aggrieved by the injunction order, Aravindakshan, Sajeevan and others filed an appeal before the District Court. The appeal was dismissed. Ezhuthachan Educational Society represented by Sajeevan also filed an appeal. That was also dismissed. The essential dispute as seen from the common order passed in C.M.A. is in regard to possession of the buildings belonged to Samajam and Society. 19. When there is a serious dispute about the convening of a general body, it is the bounden duty of the District Registrar to enquire about the convening of the general body meeting. The District Registrar failed to address the issue in a right perspective. There is nothing on record atleast for a _prima facie_ satisfaction that there was an annual general meeting convened on 1.1.2017 for electing new office bearers. **W.P(C).No.15962/2019 12** As already adverted this would depend upon the validity of the alleged suspension/expulsion of the existing office bearers. When there is a serious dispute in regard to the election, it is appropriate for the District Registrar to relegate the parties to the civil court. 20. Ext.P13 is the minutes of the General Body meeting of the Ezhuthachan Samajam held on 1.1.2017. In that meeting it was decided to suspend Shri N.K.Krishnanunni as the President and Jayagopal as the Secretary of Samajam and Society. A committee was also constituted to inquire into the charges levelled against them. In the same meeting a decision was taken to appoint Aravindakshan and Sajeev as the Secretary of the Samajam and Society. As also seen from Ext.P20, several persons have been elected to the governing body. In Ext.P20 number of persons of the governing body are 16. In Ext.P13 minutes, the number of members ## **W.P(C).No.15962/2019 13** of elected body has been shown as 19. It is also not known that without any agenda an election can be held. It is also not possible to hold that new office bearers can be elected while existing officers are suspended. The Registrar also did not conduct any enquiry as to quorum required for a general body. These kind of disputes will have to be adjudicated through the evidence. In that background, the District Registrar could not have taken a decision without adjudicating it as a dispute. It is beyond the scope of inquiry to appreciate disputed question as above in an inquiry like the one to be held by a District Registrar for accepting a list of governing body. 21. It is made clear that this Court has not declared the list furnished by Sajeevan, the second respondent as invalid. Neither has it accepted Jayagopal's right in representing the governing body. This Court interfered with the orders of the District ## **W.P(C).No.15962/2019 14** Registrar for the reason that in the light of a serious dispute in the matter, the Registrar was not competent to take a decision. 22. Before parting the judgment, I must say when there is a dispute in regard to the election in a registered Society, the parties cannot represent the Society and file the writ petition on behalf of the Society. The respondent in an earlier occasion and Jayagopal in this writ petition has adopted a course to vindicate their individual cause as the cause of the Society. Therefore, the writ petition in all respects would be treated as a writ petition filed by Jayagopal in his individual capacity and not as a representative of the Society. This Court had not examined the right of Jayagopal and his faction to represent the Society. The question of constitution of a governing body will have to be decided by the civil court. None of the parties can claim that they are entitled to represent **W.P(C).No.15962/2019 15** the Society unless it is duly acknowledged through resolution by the civil court and acceptance of the subsequent list by the Registrar. With the above observations, the writ petition is allowed. The impugned order is set aside. The parties are directed to approach the civil court to vindicate their rights to represent the Society. No costs. ## **Sd/-** ## **A.MUHAMED MUSTAQUE** **JUDGE** ln **W.P(C).No.15962/2019 16** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF REGISTERED BYELAWS OF THE EZHUTHACHAN EDUCATIONAL SOCIETY.** **EXHIBIT P2 TRUE PHOTOCOPY OF REGISTERED BYELAWS OF THE EZHUTHACHAN SAMJAM REG NO.13/1969.** **EXHIBIT P3 TRUE PHOTOCOPY OF MINUTES OF ANNUAL GENERAL BODY MEETING DATED 20.5.2016.** **EXHIBIT P4 TRUE PHOTOCOPY OF MINUTES OF ANNUAL GENERAL BODY MEETING DATED 8.8.2017.** **EXHIBIT P5 TRUE PHOTOCOPY OF MINUTES OF ANNUAL GENERAL BODY MEETING DATED 10.4.2018.** - **EXHIBIT P6 TRUE PHOTOCOPY OF THE RETURN OF OFFICE BEARERS AND THE INCOME AND EXPENDITURE STATEMENT PASSED BY THE ANNUAL GENERAL BODY MEETING OF THE EZHUTHACHAN EDUCATIONAL SOCIETY DATED 20.5.2016.** - **EXHIBIT P7 TRUE PHOTOCOPY OF THE RETURN OF OFFICE BEARERS AND THE INCOME AND EXPENDITURE STATEMENT PASSED BY THE ANNUAL GENERAL BODY MEETING OF THE EZHUTHACHAN EDUCATIONAL SOCIETY DATED 8.8.2017 TOGETHER WITH RECEIPT ISSUED BY THE FIRST RESPONDENT.** **EXHIBIT P8 TRUE PHOTOCOPY OF THE RETURN OF OFFICE BEARERS AND THE INCOME AND EXPENDITURE STATEMENT PASSED BY THE ANNUAL GENERAL BODY MEETING OF THE EZHUTHACHAN EDUCATIONAL SOCIETY DATED 10.4.2018 TOGETHER WITH RECEIPT ISSUED BY THE FIRST RESPONDENT.** **EXHIBIT P9 TRUE PHOTOCOPY OF MINUTES OF ANNUAL GENERAL BODY MEETING OF THE EZHUTHACHAN EDUCATIONAL SOCIETY DATED 22.8.2015.** ## **W.P(C).No.15962/2019 17** ## **EXHIBIT P10** **TRUE PHOTOCOPY OF MINUTES OF EXECUTIVE COMMITTEE OF THE EZHUTHAN EDUCATIONAL SOCIETY DATED 12.1.2017.** - **EXHIBIT P11 TRUE PHOTOCOPY OF MINUTES OF THE ANNUAL GENERAL BODY MEETING OF EZHUTHAN EDUCATIONAL SOCIETY DATED 27.8.2017.** - **EXHIBIT P12 TRUE PHOTOCOPY OF MINUTES OF THE ANNUAL GENERAL BODY MEETING OF EZHUTHAN EDUCATIONAL SOCIETY DATED 8.8.2017.** - **EXHIBIT P13 TRUE PHOTOCOPY OF THE MINUTES OF THE MEETING SAID TO HAVE BEEN HELD ON 1.1.2017 BY THE 2N RESPONDENT AND OTHERS PRODUCED IN OS 175/2017, MUNSIFF COURT, THRISSUR BY THE 2ND RESPONDENT HEREIN.** - **EXHIBIT P14 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT DATED 17.1.17 BY THE 2ND RESPONDENT IN IA NO 645/2017 IN OS NO 175/2017 MUNSIFF COURT, THRISSUR.** - **EXHIBIT P15 TRUE PHOTOCOPY OF PLAINT IN OS NO 1484/2017 IIIRD MUNSIFF COURT, THRISSUR.** - **EXHIBIT P16 TRUE PHOTOCOPY OF ORDER DATED 28.3.2017 IN IA NO 5787/2017 IN OS NO 1484/2017 111RD ADDITIONAL MUNSIFF COURT, THRISSUR.** - **EXHIBIT P17 TRUE PHOTOCOPY OF ORDER DATED 6.4.2017 IN IA NO 645/2017 IN OS NO 175/2017, 1ST ADDITIONAL MUNSIFF COURT, THRISSUR.** - **EXHIBIT P18 TRUE PHOTOCOPY OF THE REPORT OF THE ADVOCATE COMMISSIONER ADVOCATE SIBY JOSE IN CMA NO 29/2017 DISTRICT COURT, THRISSUR.** - **EXHIBIT P19 TRUE PHOTOCOPY OF JUDGMENT DATED 23.8.2017 IN CMA NO 29 & 30 OF 2017 DISTRICT COURT, THRISSUR.** - **EXHIBIT P20 TRUE PHOTOCOPY OF LIST OF OFFICE BEARERS OF EZHUTHACHAN SOCIETY FILED BY THE 2ND RESPONDENT HEREIN.** ## **W.P(C).No.15962/2019 18** **EXHIBIT P21** - **TRUE PHOTOCOPY OF RECEIPT DATED 5.1.2017 PURPORTED ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P22 TRUE PHOTOCOPY OF REPRESENTATION DATED 25.3.207 FILED BY THE PETITIONER.** - **EXHIBIT P23 TRUE PHOTOCOPY OF ORDER ISSUED BY THE 1ST RESPONDENT DATED 5.3.2018.** - **EXHIBIT P24 TRUE PHOTOCOPY OF JUDGMENT DATED 26.2.2019 IN WPC NO 37708/2018 HIGH COURT OF KERALA.** - **EXHIBIT P25 TRUE PHOTOCOPY OF JUDGMENT DATED 12.3.2019 IN WA NO 779/2019 HIGH COURT OF KERALA.** - **EXHIBIT P26 TRUE PHOTOCOPY OF NOTES OF ARGUMENTS AND LIST OF DOCUMENTS SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P27 TRUE PHOTOCOPY OF ORDER DATED 27.3.2019 ISSUED BY THE 1ST RESPONDENT SERVED ON 4/ 4 /2019.** - **EXHIBIT P28 TRUE PHOTOCOPY OF JUDGMENT DATED 10.4.2019 IN WPC NO 10938/2019, HIGH COURT OF KERALA.** - **EXHIBIT P29 TRUE PHOTOCOPY OF REPRESENTATION DATED 30.4.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P30 TRUE PHOTOCOPY OF ORDER DATED 29.5.2019 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P31 TRUE PHOTOCOPY OF ORDER DATED 5/10/2017 IN R.P.NO.845/2017, HIGH COURT OF KERALA.** - **EXHIBIT P32 TRUE PHOTOCOPY OF MINUTES OF CENTRAL COMMITTEE OF THE EZHUTHACHAN SAMAJAM DATED 1/1/2017.** - **EXHIBIT P33 TRUE PHOTOCOPY O FTHE GOVERNMENT ORDER DATED 1/3/2016 SHOWING ALLOTMENT OF COLLEGE TO THE EZHUTHACHAN SAMAJAM.** **EXHIBIT P34 TRUE PHOTOCOPY OF THE LETTER DATED 14/3/2016 ISSUED BY THE UNIVERSITY OF CALICUT TO THE EZHUTHACHAN SAMAJAM.** **W.P(C).No.15962/2019 19** **EXHIBIT P35 TRUE PHOTOCOPY OF THE EMAIL DATED 29/7/2017 ISSUED TO THE EZHUTHACHAN SAMAJAM.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R2 (A)** COPY OF THE APPLICATION SUBMITTED UNDER THE RIGHT TO INFORMATION ACT. **EXHIBIT R2 B** COPY OF THE INFORMATION FURNISHED BY THE 1ST RESPONDENT. **EXHIBIT R2 C** COPY OF THE REPORT SUBMITTED BY THE STANDING COUNSEL TO THE UNIVERSITY OF CALICUT. **EXHIBIT R2 D** COPY OF THE SALE DEED NO.755/18 DATED 19/3/2018. **EXHIBIT R2 E** COPY OF THE SALE DEED NO.758/2018 DATED 19/3/2018. //TRUE COPY// P.A.TO JUDGE