P.V. MATHEWKUTTY v. STATE OF KERALA (and others)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 22ND DAY OF MAY 2018 / 1ST JYAISHTA, 1940** **WP(C).No. 8105 of 2013** ## **PETITIONER(S):** **P.V.MATHEWKUTTY, S/O.LATE PANAKKAL VAREED, PANAKKAL HOUSE, PUTHENPETTA BAZAR, KUNNAMKULAM.** **BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** ## **RESPONDENT(S):** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** **2. THE ASSISTANT EDUCATIONAL OFFICER, KUNNAMKULAM, THRISSUR DISTRICT, PIN-680 503.** ## **3. THE STAFF COMMITTEE,** **REPRESENTED BY ITS PRESIDENT, RAJA SREE SIR RAMA VARMA MEMORIAL GIRLS(R.S.S.R.V.M.G)LOWER PRIMARY SCHOOL, WADAKKANCHERRY ROAD, KUNNAMKULAM, THRISSUR-PIN-680 503.** ## **4. THE HEADMASTER,** **RAJA SREE SIR RAMA VARMA MEMORIAL GIRLS(R.S.S.R.V.M.G) LOWER PRIMARY SCHOOL, WADAKKANCHERRY ROAD, KUNNAMKULAM, THRISSUR-PIN-680 503.** **R1 & R2 BY GOVERNMENT PLEADER SMT.RANJITHA R4 BY ADV. SRI.G.SREEKUMAR (CHELUR)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-02-2018, THE COURT ON 22-05-2018 DELIVERED THE FOLLOWING:** **Msd.** ## **22.05.2018** **WP(C).No. 8105 of 2013 (K)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**EXT.P1:**|**TRUE COPY OF PARTITION DEED NO.2184/1951 OF SRO/KUNNAMKULAM.**| |---|---| |**EXT.P2:**|**TRUE COPY OF THE RELEASE DEED NO.17/1967 OF SRO/KUNNAMKULAM.**| |**EXT.P3:**|**TRUE COPY OF THE LEASE DEED DATED 21/05/1954.**| |**EXT.P4:**|**TRUE COPY OF THE LEASE DEED DATED 26/04/1957.**| |**EXT.P5:**|**TRUE COPY OF THE LEASE DEED DATED 14/06/1960.**| |**EXT.P6:**|**TRUE COPY OF THE LEASE DEED DATED 12/08/1966.**| |**EXT.P7:**|**TRUE COPY OF THE LEASE DEED DATED 03/09/1969.**| |**EXT.P8:**|**TRUE COPY OF THE DOCUMENT DATED 08/08/1974, THE RIGHT TO CONDUCT**| ||**THE SCHOOL WAS GIVEN IN FAVOUR OF SMT.CHINNA.**| |**EXT.P9:**|**TRUE COPY OF THE LEASE DEED DATED 17/11/1977.**| |**EXT.P10:**|**TRUE COPY OF THE LEASE DEED DATED 06/12/1982.**| |**EXT.P11:**|**TRUE COPY OF THE MEMO DATED 11/06/1957 ISSUED BY THE KUNNAMKUKLAM**| ||**MUNICIPALITY TO THE PETITIONER.**| |**EXT.P12:**|**TRUE COPY OF THE MEMO DATED 12/08/1960 ISSUED BY KUNNAMKULAM**| ||**MUNICIPALITY TO THE PETITIONER.**| |**EXT.P13:**|**TRUE COPY OF THE APPROVED PLAN FOR MAKING ADDITIONAL**| ||**CONSTRUCTIONS ATTACHED TO THE SCHOOL BUILDING.**| |**EXT.P14:**|**TRUE COPY OF G.O(MS)NO.33/71/S.EDN DATED 20/03/1971 ISSUED BY**| ||**THE GOVERNMENT.**| |**EXT.P15:**|**TRUE COPY OF APPLICATION DATED 05/04/2008 SUBMITTED BY**| ||**THE PETITIONER BEFORE THE A.E.O, KUNNAMKULAM.**| |**EXT.P16:**|**TRUE COPY OF ORDER NO.E/1319/2008 DATED 15/10/2008 ISSUED BY**| ||**THE 2ND RESPONDENT.**| |**EXT.P17:**|**TRUE COPY OF ORDER NO.F2/78856/08/DPI/K.DIS DATED 04/02/2009**| ||**ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTION.**| |**EXT.P18:**|**TRUE COPY OF REVISION PETITION DATED 16/02/2009 FILED BY**| ||**THE PETITIONER BEFORE THE 1ST RESPONDENT.**| |**EXT.P19:**|**TRUE COPY OF G.O.(RT)NO.856/10/G.EDN DATED 24/02/2010 ISSUED BY**| ||**THE GOVERNMENT.**| |**EXT.P20:**|**TRUE COPY OF JUDGMENT DATED 21/03/2012 IN W.P.(C)NO. 10390/2010**| ||**OF THIS HON'BLE COURT.**| **WP(C).No. 8105 of 2013 (K)** **EXT.P21: TRUE COPY OF G.O(RT)NO.791/2013/G.EDN DATED 18/02/2013 ISSUED BY THE GOVERNMENT.** **EXT.P22: TRUE PHOTOCOPY OF RELEASE DEED NO.864/1954 DATED 21.05.1954 OF SRO, KUNNAMKULAM. EXT.P23: TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE 4TH RESPONDENT IN W.P.(C)NO. 10390/2010. EXT.P24: TRUE PHOTOCOPY OF THE JUDGMENT DATED 31.01.2003 IN O.S.NO.164/99 IN THE FILE OF MUNSIFF, CHAVAKKAD. EXT.P25: TRUE PHOTOCOPY OF THE DECREE IN O.S.NO.164/1999 IN THE COURT OF MUNSIFF, CHAVAKKAD.** ## **RESPONDENT(S)' EXHIBITS :** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE** ## **Msd.** ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** ## **W.P.(C).No.8105 of 2013** **= = = = = = = = = = = = = = = Dated this the 22nd day of May, 2018** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- i) issue a writ of certiorari or any other writ, direction or order calling for the records leading to Ext.P21 order and quash the same. ii) issue a writ of mandamus or any other appropriate writ, direction or order directing respondents 1 and 2 to approve the petitioner as Manager of R.S.S.R.V.M.G.L.P. School, Wadakkancherry Road, Kunnamkulam, Thrissur District forthwith. iii) to declare that the petitioner is entitled to be approved as the Manager of R.S.S.R.V.M.G.L.P. School, Wadakkancherry Road, Kunnamkulam, Thrissur. iv) to issue a writ of mandamus or any other appropriate writ, order or direction to respondents 3 and 4 to handover the management of School, Wadakkancherry Road, Kunnamkulam, Thrissur to the petitioner forthwith.” 2.Heard learned counsel for the petitioner, learned Government Pleader as well as the learned counsel appearing for the contesting party respondents. W.P.(C).No.8105/13 2 3.The petitioner contends that he is the title holder of the property of the 4[th] respondent's school on the strength of Exhibit P1, partition deed and Exhibit P2, release deed. It is stated that Sri.Kaku, who was the brother of the petitioner's father had entrusted the property and the school building to one Chummar S/o.Kizhakkoot Joseph, who was the Headmaster of the school for the conduct of the school. It is stated that thereafter, Sri.Chummar had relinquished the right to conduct the school as per a release deed and Exhibit P3 lease deed was executed for the conduct of the school in the property. The lease was periodically extended till 1987 and the school was being run thereafter also by the 3[rd] respondent. It is stated that after the death of Kaku, the petitioner, as the owner of the school, was conducting repairs and maintenance of the school. The petitioner had thereafter made applications for appointing him as the Manager of the school, which was rejected by Exhibit P16 order. An appeal preferred before the DPI was also rejected and the petitioner approached the W.P.(C).No.8105/13 3 Government. By the impugned order, the revision petition also stands dismissed holding that the petitioner has not been able to substantiate that he is the educational agency and therefore he can have no right to claim the right of appointment as Manager. - 4.The contention of the petitioner is that the title to the property in which the school is situated having devolved on the petitioner, the petitioner is the present educational agency in respect of the school and it is the prerogative of the educational agency to appoint a Manager. It is stated that the concept of staff management schools is alien to the Scheme of the K.E.Act and Rules and that the finding of the Government is therefore perverse and unsustainable. - 5.A counter affidavit has been filed on behalf of the Government, inter alia, contending as follows:- - “The documents available regarding the school is a partition deed and a release deed produced by the petitioner. From the W.P.(C).No.8105/13 4 reading of the above said deed, it is not clear who started the school. The only thing that is clear is that Sri. Kakku constructed a building in the property owned by him for leasing out to Sri. Chummar for conducting the school. The arrangement has been made as per a registered deed No. 973/1122, the copy of which is not available. The arrangement of leasing out the said building for conducting the school continued till 1982 by the strength of lease deeds executed between Sri. Kakku and his successor and staff committee of the school. Therefore, Sri. Kakku could not be considered as the person who established the school. The petitioner could not prove that it was Sri. Kakku who established the school and therefore as successor of Sri. Kakku, he is proprietor of the school. From the above said partition deed it is seen that Sri. Kakku constructed a building to lease out to Sri. Chummar for conducting a school and as a surety for the rent etc. a plot of land of land in the name Sri.Chummar has been given as security. No mention has been made regarding the ownership or proprietorship of the school. Proprietor of an institution W.P.(C).No.8105/13 5 means the owner of the institution. The management of the school and the building and the land where the school functioning did not belong to any agency or person. In other words, the land and the building where the school functioning was not the property of the school. The petitioner could not substantiate the claim that there is alienation of property of the school in contravention of Section 6 of the Kerala Education Act. There are many schools in the State that are managed by the staff, R.S.S.R.V.M. Girls L.P. School, Kunnamkulam is one such school managed by the staff of the school. It has been held by the Hon'ble High Court in **Ganapathy Iyer Vs. State of Kerala** [1981 (1) ILR 714] that a staff managed school is a private school and its management rests with the staff. In a staff managed school nobody other than the staff have any voice in the management and property rights. Therefore, the petitioner is not entitled to the management of the school as per relevant provisions of the Kerala Education Act and Rules. W.P.(C).No.8105/13 6 - 6.The decision of this Court **Aleyamma Varghese v. State of Kerala** [2007 (4) KLT 12] is relied upon to contend that aided schools under the management of the staff are also to be considered as Corporate Managements. - 7.The 4[th] respondent has also filed a detailed counter affidavit. It is contended that the petitioner had earlier filed a suit for eviction of the school for conducting business in the property. The school had been established by Sri.Chummar and the staff of the school constitutes the educational agency of the school. It is contended that the petitioner is only the owner of the land in which the school is situated and he cannot claim to be the educational agency in respect of the school. It is stated that the questions regarding the title to the property and the building situated therein are liable to be considered separately in civil proceedings after adducing evidence and the petitioner, who intended to evict the school and start a business in the premises cannot claim the rights of an educational agency. W.P.(C).No.8105/13 7 - 8.I have considered the contentions advanced. The petitioner has produced documents to show his title over the property in question. It is pertinent here to consider the provisions of the Kerala Education Act (hereinafter referred to as the Act) with regard to the establishment and management of the school. Section 2(2) defines educational agency as any person or body of persons permitted to establish and maintain any private school under this Act. Section 2(3) defines existing school as an aided, recognised or Government school established before the commencement of this Act and continuing as such at such commencement. School includes the land, buildings, play grounds and hostels of the school and the movable properties pertaining to the school. - 9.The school in question is therefore an existing school in terms of Section 2(3) of the Act. The question which is to be considered is as to who is the educational agency. The question is pertinent because Rule 1 of Chapter III KER W.P.(C).No.8105/13 8 classifies private educational institutions into two categories, that is, those under individual educational agency and those under Corporate Educational Agency. Rule 3 provides that the management of every aided school may be vested by the educational agency in a person who shall be referred as the Manager. Rule 4 provides for approval of appointment of Managers. - 10.In the instant case, the question as to who had established the school is not capable of being decided in these proceedings, since it is submitted before me by both parties that there is no record of that crucial fact. Staff management of schools is clearly a recognized phenomena since Rule 8(1) which provides disqualifications for a Manager for appointment in schools under the educational agency. In the case of managers or members or the other office bearers of the managing body working as teachers including headmaster when the rules come into force, they are exempted from disqualification under the Rule. This Court in the decisions W.P.(C).No.8105/13 9 referred above has also held that where staff managements constitute the educational agency, they can continue to do so without reference to the restrictions imposed by the Rules. 11.In the above circumstances, the contention raised by the petitioner that the educational agency of an aided school cannot vest in a staff management committee is totally unsustainable. However, the learned counsel for the petitioner contends that the decision relied on by the learned counsel for the petitioner as well as the learned Government Pleader is with respect to schools where the property itself is vested in the Management Committee. I do not see any such distinction. From the definition of the educational agency, as defined in the Act, it is clear that what is to be considered is as to who had established the school in question. According to me, the further question as to who was the educational agency when Kerala Education Act came into effect also has relevance. The contention of the petitioner that he is the owner of the property in which the school is situated and that W.P.(C).No.8105/13 10 he would therefore automatically be the educational agency in respect of the school cannot be accepted in view of the language employed in the definition clause of 'educational agency' in the Act. The ownership of the property on which the school is situated and the right to conduct the school as its educational agency are distinct and separate and there can be no assumption as contended by the learned counsel for the petitioner. 12.The question as to the establishment of the school is not an issue which can be answered by this Court in these proceedings. The Government having considered the materials on record and having reached the conclusion that the staff management committee is entitled to exercise the rights of the educational agency, I am of the opinion that materials produced before me and the arguments raised are insufficient to hold that the finding of the Government in the impugned order was vitiated by any error of facts or law apparent on the face of record. In the facts and circumstances of the instant W.P.(C).No.8105/13 11 case, I am not inclined to interfere with the order of the Government. I am of the opinion that the right of the petitioner would be confined to claiming rent or necessary consideration from the staff committee for the use of his property for conduct of the school. Reserving the right of the petitioner to raise all appropriate contentions in that regard, in appropriate proceedings, the writ petition stands dismissed. The contentions of the parties with regard to the establishment of the school are left open. Sd/- **Anu Sivaraman, Judge** sj