Manager, Iritty Higher Secondary School, Kizhoor P.O., Irity-670 703 v Iritty High School Society (Reg. No.16/1955) and Others, including District Educational Officer, Kannur; Deputy Director of Education, Kannur; State of Kerala; N.V. Krishnan; K.T. Jayaprakash; Addl. S.O. V.P. Balachandran; Dr. Abdul Rahiman

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** ## **WA.No.1534 OF 2019** **AGAINST THE ORDER/JUDGMENT IN RP 892/2017 IN W.P. (C)NO.22494/2017 OF HIGH COURT OF KERALA** ## **APPELLANT/FIRST RESPONDENT IN THE REVIEW PETITION/PETITIONER IN THE WRIT PETITION:** ## **THE MANAGER** **IRITTY HIGHER SECONDARY SCHOOL,KIZHOOR P.O.,IRITTY670 703** **BY ADVS. SRI.M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA** **RESPONDENTS/RESPONDENTS 2 TO 4 IN THE REVIEW PETITION & PETITIONERS IN THE REVIEW PETITION/RESPONDENTS IN THE WRIT PETITION:** - **1 IRITTY HIGH SCHOOL SOCIETY REGISTRATION NO.16/1955,REPRESENTED BY ITS PRESIDENT,IRITTY HIGHER SECONDARY SCHOOL,KIZHOOR P.O.,IRITTY-670 703** - **2 DEPUTY DIRECTOR OF EDUCATION, KANNUR, PUZHATHY HOUSING COLONY, KANNUR-670 002** - **3 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HIGHER EDUCATION, THIRUVANANTHAPURAM-695 001** - **4 N.V.KRISHNAN, AGED 53 YEARS S/O. KRISHNAN NAMBIAR, GOKULAM, PUNNADOOR P.O., KANNUR-670 002** - **5 K.T.JAYAPRAKASH AGED 56 YEARS S/O. V.P.BALACHANDRAN,SHIVAM, B-10,S.N.NAGAR, THOTTADA P.O., KANNUR-670 007** WA.No.1534 OF 2019 & WP(C).22494/2017 2 **6 DR. ABDUL RAHIMAN, AGED 52 YEARS S/O.LATE HAMED HAJI, KEEZHOOR P.O., IRITTY, KANNUR DISTRICT-670 703** **R1 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR R1 BY ADV. SRI.DHEERAJ KRISHNAN PEROT R1 BY ADV. SMT.CHITRA JOHNSON R1 BY ADV. SMT.SMITHA (EZHUPUNNA) R2-3 BY GOVERNMENT PLEADER B/O R4-6 BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.) R4-6 BY ADV. SMT.S.AMBILY R4-6 BY ADV. SRI.SAJI THOMAS R4-6 BY ADV. SMT.NAMITHA NAMBIAR R4-6 BY ADV. SHRI.MICKY THOMAS** ## **OTHER PRESENT:** **SRI. K.K. CHANDRANPILLAI (SR), SMT RAJI T. BHASKER GP** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18.10.2019, ALONG WITH WP(C).22494/2017(J), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1534 OF 2019 & WP(C).22494/2017 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941** **WP(C).No.22494 OF 2017** ## **PETITIONER/S:** **MANAGER, IRITTY HIGHER SECONDARY SCHOOL KIZHOOR P.O., IRITTY-670 703.** **BY ADVS. SRI.M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA** ## **RESPONDENT/S:** |**1**|**IRITTY HIGH SCHOOL SOCIETY**| |---|---| ||**REG.NO.16/1955,REPRESENTED BY ITS PRESIDENT,IRITTY**| ||**HIGHER SECONDARY SCHOOL, KIZHOOR P.O., IRITTY-670**| ||**703.**| |***2**|**DISTRICT EDUCATIONAL OFFICER**| ||**THALASSERI,4TH FLOOR, MINI CIVIL STATION,**| ||**M.G.ROAD,THALLASSERI, KANNUR-670 101.**| ||***CORRECTED:**| ||**DEPUTY DIRECTOR OF EDUCATION, KANNUR, PUZHATHI**| ||**HOUSING COLONY, KANNUR, KERALA 670 002**| ||**[AS PER ORDER DATED 13.7.2017 IN I.A.NO.10749/2017]**| |**3**|**STATE OF KERALA**| ||**REPRESENTED BY SECRETARY,DEPARTMENT OF HIGHER**| ||**EDUCATION,THIRUVANANTHAPURAM.**| ||**ADDITIONAL R4 TO R6 IMPLEADED:**| |**ADDL.**|<br>**N.V.KRISHNAN,**| |---|---| |**R4**|**AGED 53 YEARS**| ||**S/O. KRISHNAN NAMBIAR, GOKULAM, PUNNADU P.O.,**| ||**KANNUR-670 703**| ||**K.T.JAYAPRAKASH**| ||**AGED 56 YEARS**| WA.No.1534 OF 2019 & WP(C).22494/2017 4 **ADDL. S/O. V.P.BALACHANDRAN,SHIVAM, B-10,S.N.NAGAR, R5 THOTTADA P.O., KANNUR-670 007 ADDL. DR. ABDUL REHIMAN, R6 AGED 62 YEARS S/O.LATE HAMED HAJI, KEEZHOOR P.O., IRITTY, KANNUR DISTRICT-670 703** **[IMPLEADED VIDE ORDER DATED 17.6.2019 IN I.A.NO.1/2019]** **R1 BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR R4 BY ADV. SRI.K.K.CHANDRAN PILLAI (SR.) R4 BY ADV. SMT.S.AMBILY R4 BY ADV. SMT.NAMITHA NAMBIAR R4 BY ADV. SRI.SAJI THOMAS R4 BY ADV. SHRI.MICKY THOMAS** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.10.2019, ALONG WITH WA.1534/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1534 OF 2019 & WP(C).22494/2017 5 ## **JUDGMENT** **[ WA.1534/2019, WP(C).22494/2017 ] Dated this the 18th day of October 2019** ## _**Shaffique, J.**_ W.A.No.1534/2019 is filed by the first respondent in R.P.No.892/2017 in W.P.(C) No.22494/2017. The review petition came to be filed challenging the direction issued by the learned Single Judge directing an election of the 1[st] respondent - Society to be held in the presence of an Advocate Commissioner. The writ petition was filed by the appellant herein, inter alia, seeking for a direction to the second respondent - District Educational Officer, Kannur to conduct election to the governing body of the Society under the supervision of an Advocate Commissioner. 2. Appellant, is the Manager of a corporate educational agency, contended that Ext.P1 is the bye-laws of the Society which has been approved and the election has not been held on account of the obstruction being created by some of the members and hence he sought for such a direction. 3. The writ petition came to be disposed of issuing a WA.No.1534 OF 2019 & WP(C).22494/2017 6 direction to conduct election through an Advocate Commissioner and until such time, the appellant/petitioner was permitted to continue. The election was held and the Advocate Commissioner filed a report. At that stage, the review petitioners herein, approached this Court, seeking to review the judgment, inter alia, contending that the judgment had been obtained without reference to a suit which had been filed by them before the civil court and without making them as a party to the writ petition. It was inter alia pointed out that Ext.P1 is not the approved byelaw and the election ought to have been held on the basis of the judgment of a civil court which was decided on 31.01.2011 in O.S.Nos.432/1990 and 150/1992. It was also brought to the notice of this Court that the suit summons had been served even prior to the date of filing of the original suit and even the conduct of election and it is without disclosing these facts that they filed the writ petition. 4. In the review petition, the learned Single Judge having taken note of the aforesaid facts, including summoning of the court records from the civil court, observed that the Process Server's diary contained certain corrections by way of erasers by white ink and entries seen to have been made. Directions had WA.No.1534 OF 2019 & WP(C).22494/2017 7 been issued to the Registry to place the matter before the Hon'ble Chief Justice to conduct appropriate enquiry into the matter. However, having noticed that the substantial contentions of the review petitioners require to be heard, the review petition was allowed recalling the judgment dated 13.07.2017. 5. The learned counsel for the appellant would submit that there was no reason to recall the judgment insofar as the review petitioners had participated in the election process and having lost the election, they had approached this Court. 6. The learned counsel appearing for the first respondent- Society places reliance on a judgment of the Apex Court in **Parsion Devi And Ors v. Sumitri Devi and Ors [(1997) 8 SCC 715]** in order to contend that a review petition is maintainable only if there is an error apparent on the face of the record. 7. No doubt, a review can be filed, only if there is an error apparent on the face of record. But in a case where it is brought to the notice of the court that there is suppression of material facts, necessarily, the court is obliged to consider the said issues in its proper perspective and thereafter to pass an WA.No.1534 OF 2019 & WP(C).22494/2017 8 order after hearing the affected parties. It is true that the review petitioners had participated in the election. But according to them, they had objected before the Advocate Commissioner regarding the manner in which the election is to be conducted, especially, on account of the disputed facts with regard to the number of votes that a member has, depending upon the amount of membership. Be that as it may, when the learned Single Judge, after considering the entire issues, thought it fit that the earlier judgment requires to be recalled and the matter should be reheard, we do not find any reason to interfere with the said order. Accordingly, the writ appeal is dismissed. We have also called for the judges papers in W.P. (C)No.22494/2017 and it was felt that it would be appropriate to dispose of the writ petition as well. As already stated, the writ petition was filed seeking for a direction to conduct election in respect of a corporate management. Though a corporate management conducts the school based on the directions issued by the Educational Authorities and the Government, as the case may be, as far as election to the corporate management is concerned, it is purely a private affair and it has nothing to do with any such public function. Therefore, a request for WA.No.1534 OF 2019 & WP(C).22494/2017 9 conducting election in a private body is not a matter which could be adjudicated by this Court. The remedy lies elsewhere by filing a suit. It shall be open for either of the parties, who are aggrieved by the non-conduct of election to approach the civil court in appropriate proceedings. We are of the view that the writ petition itself is not maintainable and it has to be dismissed. It is also brought to our notice that a civil suit as O.S.No.229/2017 is pending before the civil court. It shall be open for any aggrieved party to approach a civil court and obtain appropriate reliefs, either to conduct election or for other reliefs, as the case may be. We do not think that it is necessary for us to interfere in the internal management of a Society with reference to the election to be conducted to its governing body. Accordingly, the writ petition itself is dismissed. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** ## **Sd/-** ## **T.V.ANILKUMAR** **JUDGE** shg WA.No.1534 OF 2019 & WP(C).22494/2017 10 ## **APPENDIX OF WP(C) 22494/2017** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE CONSTITUTION OF THE IRITTY HIGHER SECONDARY SCHOOL APPROVED BY THE 2ND RESPONDENT.** **EXHIBIT P2 A TRUE COPY OF THE ORDER DATED 21.11.2015. EXHIBIT P3 A TRUE COPY OF THE NOTICE, DATED 08.06.2017.** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(A) COPY OF NOTICE DATED 29.03.2019 ISSUED JOINTLY TO THE PETITIONER AND 1ST RESPONDENT IN THE WRIT PETITION.** **EXHIBIT R4(B) COPY OF REPLY DATED 11.04.2019 REPLY GIVEN BY THE PETITIONER IN THE WRIT PETITION. EXHIBIT R4(C) COPY OF REPLY DATED 09.04.2019 REPLY GIVEN BY THE 1ST RESPONDENT IN THE WRIT PETITION. EXHIBIT R4(D) COPY OF MEMORANDUM OF ASSOCIATION DATED 10.06.1955 OF IRITTY HIGH SCHOOL SOCIETY. EXHIBIT R4(E) RULES AND REGULATIONS DATED 10.06.1955 OF IRITTY HIGH SCHOOL SOCIETY. EXHIBIT R(F) COPY OF APPLICATION DATED 04.07.2018 UNDER THE RI ACT. EXHIBIT R(G) COPY OF REPLY DATED 07.07.2018 TO EXT.R4(F). EXHIBIT R4(H) COPY OF STATEMENT DATED 15.10.2018 FILED BY EDUCATION DEPARTMENT IN RP 892/17 IN WPC 22494/17 WITH EXHIBITS. EXHIBIT R4(I) COPY OF NOTICE DATED 10.05.2019 ISSUED TO THE 4TH RESPONDENT BY THE 1ST RESPONDENT IN WRIT PETITION. EXHIBIT R4(J) COPY OF NOTICE DATED 10.05.2019 ISSUED TO K.T. ANOOP**