Kidmath Organisation of Padne v. State of Kerala and Others

W.P(c).No.14214/2019-B 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941** ## **WP(C).No.14214 of 2019** ## **PETITIONER:** **KIDMATH ORGANIZATION OF PADNE REG. NO. 247/1993, PADNE P.O., KASARAGOD DISTRICT 671 312, REPRESENTED BY ITS SECRETARY, T.P. ABDUL MUTHALIB. BY ADVS. SRI.P.A.MOHAMMED SHAH SHRI.ASWIN KUMAR M J SRI.K.ARJUN VENUGOPAL SRI.R.NANDAGOPAL SRI.SIDHARTH B PRASAD SMT.V.A.HARITHA** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION**| ||**DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM 695 001.**| |**2**|**KANNUR UNIVERSITY,**| ||**KANNUR P.O.,**| ||**PIN - 670 111 REPRESENTED BY IT REGISTRAR.**| |**3**|**PRINCIPAL,**| ||**SHARAF ARTS & SCIENCE COLLEGE, PADNE P.O.,**| ||**KASARAGOD DISTRICT 671 123.**| |**4**|**`SHARAF ARTS AND SCIENCE COLLEGE COMMITTEE'**| ||**REG. NO. 792/2006, CHOKKIKANDAM, PADNE.P.O.,**| ||**KASARAGOD DISTRICT 671 312,**| ||**REPRESENTED BY ITS SECRETARY.**| |**5**|**P.K.C. MUHAMMED HAJI, KOTTAYANTHAR PADNE P.O.,**| ||**KASARAGOD DISTRICT 671 123.**| ||**BY ADVS.**| ||**SRI.D.ANIL KUMAR**| ||**SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY**| ||**SRI.P.K.RAVISANKAR**| ||**G.P. SRI. B.UNNIKRISHANA KAIMAL**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.07.2019, THE COURT ON 11.07.2019 DELIVERED THE FOLLOWING:** W.P(c).No.14214/2019-B 2 ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.14214 of 2019-B ------------------------------------------- _Dated this the 11[th] day of July, 2019_ ## _**JUDGMENT**_ Petitioner claims to be the educational agency which established the Sharaf Arts and Science College, Padne ('the college' for short), purchased the land for it and applied for its affiliation. It is stated that the University issued Ext.P6 letter on 25.11.2006 stating that the petitioner is the educational agency in respect of the college. But as per Ext.P19 order, University set aside that letter and ordered that the 4[th] respondent is the educational agency in respect of the college and ordered affiliation in the name of the 4[th] respondent. 2. The petitioner claims to be a Society registered under the Societies Act, 1860 in the name of Kidmath Organisation of Padne (KOP) with the main object of empowering education and that Sharaf Arts and Science College, Padne ('the College' for short) was established by it. It is alleged that the 4[th] respondent -- the Sharaf Arts and Science College Committee, is a sham society which claims to be the educational agency in respect of the college. The petitioner claims that the college was started after getting affiliation on the basis of Ext.P1 application submitted by its office bearers in the year 2002 followed by a series of correspondence between them and the Kannur University; it purchased 9.70 acres of land in Cheruvathoor Village in the name of Sharaf Arts and Science College Committee, which was the governing body of the College nominated by the petitioner, to shift the college to Cheruvathoor Village. Based on a subsequent W.P(c).No.14214/2019-B 3 application for affiliation in 12/2003, the 2[nd] respondent University issued Ext.P4 order on 15.01.2004 recommending affiliation of the college; University had as per Ext.P6 letter dated 25.10.2006 informed that petitioner is the education agency in respect of the College. Whileso, as per Ext.P9 letter dated 24.08.2007, the University directed the Principal of the College to furnish financial guarantee. By Ext.P11 letter dated 13.09.2008, the University informed that the financial guarantee should be furnished by way of fixed deposit in the name of the educational agency and that the FD receipt in the name of a person cannot be accepted; the Secretary of the petitioner thereafter furnished the FD receipt on 03.01.2009, in the name of the petitioner. Petitioner claims that the University had in its Ext.P14 letter dated 24.11.2008 also informed that affiliation was granted to the college based on the application of the petitioner. 3. It is stated that while the affairs of the College were being managed by its sub committee - Sharaf Arts and Science College Committee, disputes arose between its office bearers; the general body of the petitioner held on 04.10.2006 expelled the then office bearers, the 5[th] respondent and certain others; the 5[th] respondent thereupon registered the 4[th] respondent sham society on 11.10.2006. The President of the petitioner along with 8 others thereafter filed O.S.No.329/2006 before the Munsiff Court Hozdurg and sought an injunction against 14 persons, who were members of the 4[th] respondent society, restraining them from interferring with the management of the petitioner and also the management of the college. Temporary injunction was granted on 10.1.2007 in I.A.No.2979/2006. Another O.S.No.240/2008 filed by the ousted office bearers against the newly elected committee is also pending before the Munsiff Court and W.P(c).No.14214/2019-B 4 that injunction is granted in favour of the newly elected members. It is stated that disputes arose before the University also with respect to the actual members of the governing body of the college. The President of the 4[th] respondent preferred a complaint before the University; Ext.P1 order was issued on 22.08.2012 directing the committee of two members of the Syndicate constituted by the Vice Chancellor to study and report on the disputes between two factions of the management of the college. After conducting a hearing the committee submitted its report and the University found that the 4[th] respondent is the educational agency of the college and issued Ext.P19 order revising the ownership and affiliation of the college in the name of the 4[th] respondent. 4. Disputes were raised before the revenue authorities regarding the collection of tax in view of the disputes over the title of the land raised by the petitioner as well as the 4[th] respondent Society. It is stated that the revenue authorities also passed orders for accepting tax from the 4[th] respondent. Even though the petitioner challenged the order of the Tahsildar passed in favour of the 4[th] respondent filing W.P.(C).No.32293/2015 pending decision in appeal before the District Collector, the District Collector also found in favour of the 4[th] respondent. It is stated that the revision petition thereafter filed was also rejected by the Revenue Commissioner. In view of the orders of the revenue authorities as well as the provisional affiliation granted in favour of the 4[th] respondent as per Ext.P19 order issued on 20.10.2015, the University excluded the petitioner college from the single window admission procedure. It is stated that the petitioner filed W.P(c).No.24401 of 2018 seeking for a direction to the University to permit it to admit the students for the Academic Year 2018-19. This Court had passed Ext.P22 W.P(c).No.14214/2019-B 5 order on 26.7.2018 without entering into the controversy as to the managership of the college and directed that University shall make admission to the entire seats in all the programmes conducted by the college having affiliation with the University and that the Principal shall admit students and keep the admission fee and any other fee collected in a separate account and that appropriation of any amount would be subject to further orders from the court. Thereafter by Ext.P23 judgment dated 7.9.2018, W.P(c).No.24401 of 2018 was disposed of directing that the Principal shall act upon the directions issued by the educational agency which is approved by the University, subject to any orders to be passed by the civil court. It was also directed that the fees collected by the Principal can be appropriated only in accordance with the directions of such educational agency. While disposing of W.P(c).No.24401 of 2018 the observations in Writ Petition No.32293/2015 filed in respect of the approval of the educational agency as well as the judgment in W.A.No.1065 of 2018 filed against that judgment in which this Court declined interference was taken note of. It is in these circumstances that the petitioner has approached this Court again alleging that admissions to the college are nearing and any action of the 4[th] respondent in dealing the accounts would affect the educational agency. The petitioner claimed that as per the orders of the civil court, the college is under the management of the petitioner; it is claimed that the college was purchased by the funds advanced by the petitioner, which includes fees by way of debt and the college was established and recognised on the basis of the application submitted by the petitioner. According to the petitioner, the 4[th] respondent does not have any authority to manage the college. It is also stated that the University does not have any authority to decide which is the educational W.P(c).No.14214/2019-B 6 agency or to approve changes, if any, in the educational agency. It is stated that even though the petitioner challenged the order passed by the 2[nd] respondent before the Chancellor, the same was rejected taking note of the observation of this Court in the other Writ Petition to settle the issue in a civil suit. The petitioner claims that R.P.No.336/2019 filed against the judgment in Writ Appeal is pending consideration and therefore if the 4[th] respondent is allowed to carry on the collection of adminission fees, the entire amount of fees would be siphoned out by the 4[th] respondent; in order to preserve the subject matter of the dispute it is only proper that the 4[th] respondent is directed to deposit the amounts collected for admission in a separate account. 5. The 4[th] respondent has filed a counter affidavit objecting to the maintainability of a writ petition against the 3[rd] and 4[th] respondents, who are private parties, when no violation of statutory duty cast on them is pointed out and the rights agitated are of purely of private character. According to them, the petitioner society does not have anything to do with the administration and management of the 3[rd] respondent or the internal affairs of the 4[th] respondent. It is stated that the petitioner had filed W.P(c).No.36440 of 2018 for a direction to the University to clarify that affiliation is reviewed in favour of the committee constituted by it. But the petitioner did not press that relief at the time of hearing and that Writ Petition was dismissed as per Ext.R4(a) judgment. According to it, the property was purchased by the 4[th] respondent for establishing the college and sale deeds were registered in its name; the office bearers of the petitioner society claimed right over the administration of the college after its establishment, before the University and before the Munsiff Court in O.S.No.329/2006, claiming that the W.P(c).No.14214/2019-B 7 petitioner is the educational agency. It is stated that the University had conducted an enquiry into the complaint of the 4[th] respondent society and the University came to the conclusion that the 4[th] respondent is the educational agency and Ext.P6 letter dt.25.11.2006 of the Registrar of the University was set aside. Pointing out the dismissal of the Writ Petitions and Writ Appeals successively filed by the petitioner against Ext.P19 order of the University as per Exts.P20 and P21 judgments, the 4[th] respondent seeks dismissal of the Writ Petition. It is stated that the 4[th] respondent is not the governing body of the college nominated by the petitioner; it is a separate and independent society, which owns the college. It is pointed out that in the suits stated to be pending before the civil court, the 4[th] respondent is not made a party. 6. The petitioner has filed a reply affidavit reiterating its contentions and stating that R.P.No.336/2019 filed against the judgment in the Writ Appeal is pending consideration of the court. According to the petitioner, the Chancellor declined interference only because of the observation of this Court in Ext.P21 judgment. The petitioner claims that since the issue relates to an educational institution, which discharges a public duty, Writ Petition will lie before this Court in the light of the judgment in _**Marwari Balika Vidyalaya v. Asha Srivastava & Ors**_ : ILR 2019(2) Ker 787. 7. The learned counsel for the petitioner also relied on the judgment dated 06.01.2010 in P.Jeyachandran _v._ The Director of Technical Education of the Madras High Court, and the judgment dated 6.6.2019 in W.P.No.22234/2016 of the Madras High Court and asserts that even in matters relating to administration, Writ Petition will lie. W.P(c).No.14214/2019-B 8 8. In the judgment dated 6.1.2010 the Madras High Court was considering the question where the Librarians challenged the order of dismissal. In the judgment dt.6.6.2019 the issue was relating to the Health insurance policy claim and challenging the order passed by the Insurance Ombudsman Chennai. 9. On the other hand, the learned counsel for the 4[th] respondent relied on the judgment of the Apex Court in _**Sushmita Basu & Ors. v. Ballygunge Siksha Samity & Ors.**_ [2006 (7) SCC 680] in support of the contention that the Writ Petition will not lie against an unaided institution. 10. I heard the learned counsel appearing on both sides. 11. The Writ Petition is filed seeking the following reliefs: _“I) issue a writ of mandamus directing the 3[rd] respondent to deposit the fees collected for admission to Sharaf Arts and Science College, Padne in a separate bank account of the college and that all the money transactions relating to admission are carried out through the said Bank account solely for the purpose of day to day administration of the college; II) to issue a writ of mandamus directing the respondents 3 to 4 to not use any amunt from the money collected during the admission process except for the purpose for paying salary to the employees of Sharaf Arts and Science College, Padne and for meeting the expenditure of day to day administration of the college; and_ _to grant such other relief as are just and proper in the nature of the case. “_ The only relief sought in the Writ Petition is against respondents 3 and 4 and the dispute is with respect to the society in which educational agency vests and over the ownership of the land in which the college is situated. Several civil disputes are pending. It cannot be said that there is any public element involved in these disputes between the petitioner and the 4[th] respondent as raised in this Writ Petition. Merely because the institute over which the dispute is centred round is one imparting education, will not by itself make the dispute amenable to writ jurisdiction when the rival claims are regarding the ownership over the land and the educational agency. The legitimate expectation of the petitioner that the W.P(c).No.14214/2019-B 9 ownership would be vested in it on a future date cannot also be a reason for this Court to entertain the Writ Petition. From the pleadings it is seen that the dispute between the petitioner and respondents 3 and 4 has been going on for the last several years, at least from 2006 onwards. Therefore, the petitioner cannot be granted any relief in this Writ Petition. The petitioner cannot have any right to see that the funds collected for admission to the college are kept in a bank account as prayed for in the Writ Petition. The judgments relied on by the petitioner will not help the petitioner as those are not applicable to the factual circumstances of this case. In the above circumstances, the Writ Petition is dismissed. _**Sd/-**_ _**(P.V.ASHA, JUDGE)**_ _rtr/_ W.P(c).No.14214/2019-B 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE APPLICATION SUBMITTED BEFORE THE 2ND RESPONDENT DATED 29.12.2002.** **EXHIBIT P2 THE TRUE COPY OF THE MEMO ISSUED BY THE 2ND RESPONDENT DATED 3.2.2003. EXHIBIT P3 THE TRUE COPY OF THE NOTICE DATED 21.2.2003. EXHIBIT P4 THE TRUE COPY OF THE ORDER DATED 15.1.2004. EXHIBIT P5 THE TRUE COPY OF THE MEMORANDUM OF ASSOCIATION OF 4TH RESPONDENT SOCIETY DATED 11.10.2006. EXHIBIT P6 THE TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DATED 25.11.2006. EXHIBIT P7 THE TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT, HOSDURG IN IA NO. 2979/2006 IN OS NO. 329/2006 DATED 10.1.2007. EXHIBIT P8 THE TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT HOSDURG DATED 27.11.2008. EXHIBIT P9 THE TRUE COPY OF LETTER DATED 24.8.2007. EXHIBIT P10 THE TRUE COPY OF THE LETTER DATED 2.6.2008. EXHIBIT P11 THE TRUE COPY OF THE LETTER DATED 13.5.2008. EXHIBIT P12 THE TRUE COPY OF THE LETTER DATED 3.1.2009. EXHIBIT P13 THE TRUE COPY OF THE FIXED DEPOSIT RECEIPT DATED 3.1.2009. EXHIBIT P14 THE TRUE COPY OF THE LETTER DATED 24.11.2008. EXHIBIT P15 THE TRUE COPY OF THE LETTER DATED 31.5.2011. EXHIBIT P16 THE TRUE COPY OF THE ORDER DATED 22.8.2012. EXHIBIT P17 THE TRUE COPY OF THE LETTER DATED 18.11.2014. EXHIBIT P18 THE TRUE COPY OF THE LEGAL OPINION DATED 28.5.2015. EXHIBIT P19 THE TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 20.10.2015.** W.P(c).No.14214/2019-B 11 **EXHIBIT P20 THE TRUE COPY OF THE JUDGMENT OF THIS HONBLE COURT IN WPC NO. 32293/2015. EXHIBIT P21 THE TRUE COPY OF THE JUDGMENT IN WRIT APPEAL NO. 1065/2018 DATED 17.8.2018. EXHIBIT P22 THE TRUE COPY OF THE INTERIM ORDER IN WPC NO. 24401/2018 DAETD 26.7.2018. EXHIBIT P23 THE TRUE COPY OF THE JUDGMENT IN WPC NO. 24401/2018 DATED 7.9.2018. EXHIBIT P24 THE TRUE COPY OF THE AFFIDAVIT FIELD BY THE PRINCIPAL DATED 19.11.2018.** RESPONDENTS' EXHIBITS EXT.R4(a) TRUE COPY OF THE JUDGMENT DATED 23.1.2019 IN WP(C).NO.36440 OF 2018 BEFORE THIS COURT.