S. Afsar Ahmed v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944 ``` ``` WA NO. 858 OF 2022 ``` ``` JUDGMENT DATED 21.01.2021 IN WP(C) 21999/2019 OF HIGH COURT OF ``` ## **`KERALA`** ## **`APPELLANT/PETITIONER:`** ``` S.AFSAR AHMED AGED 57 YEARS, S/O. A.G. SAYED AHMED MAIL GUARD, RESIDING AT “SUHAAG” SURYA NAGAR, N.S.S ENGINEERING COLLEGE P.O., PALAKKAD, PIN – 678 008 ``` ``` BY ADVS.BIJU BALAKRISHNAN K.J.GISHA V.S.RAKHEE AJMAL P. ``` ## **`RESPONDENTS/RESPONDENTS:-`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF CO-OPERATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695001.`** - **`2 THE INSPECTOR GENERAL OF REGISTRATION, DIRECTORATE OF REGISTRATION, VANCHIYOOR, THIRUVANANTHAPURAM, PIN – 695035.`** - **`3 REGISTRAR OF SOCIETIES, OFFICE OF THE DISTRICT REGISTRAR (GENERAL), PALAKKAD,PIN – 678008.`** - **`4 KERALA STATE SPORTS COUNCIL, STATUE, THIRUVANANTHAPURAM, PIN – 695001, REPRESENTED BY THE SECRETARY`** - **`5 R.AYYAPPAN, VNRA - 165, PANGODU, THIRUMALA P.O, THIRUVANANTHAPURAM, PIN – 695006.`** - **`6 V.SUNIL KUMAR,`** ``` WA NO. 858 OF 2022 2 ``` ``` RESIDING AT TC 24/1085, METTUKADA, THYCAUD P.O, THIRUVANANTHAPURAM, PIN-695014. ``` - **`7 MRS. MARIAMMA KOSHY, RESIDING AT FLAT NO. 4 A, M.G. APARTMENTS, VIDHYA VIHAR ROAD, THEVARA, COCHIN – 682013.`** - **`8 HOCKEY INDIA, B1/E3, GROUND FLOOR, MOHAN CO-OPERATIVE INDUSTRIAL ESTATE, MATHURA ROAD, NEW DELHI - 110044. REPRESENTED BY ITS SECRETARY GENERAL.`** - **`9 KERALA HOCKEY, VNRA - 165, PANGODU, THIRUMALA P.O, THIRUVANANTHAPURAM, PIN 695006, REPRESENTED BY ITS SECRETARY.`** ``` ADDL. R10INDIAN OLYMPIC ASSOCIATION, OLYMPIC BHAVAN, B-29, OUTUB INSTITUTIONAL AREA, NEW DELHI, PIN – 110016, REPRESENTED BY ITS SECRETARY GENERAL. ``` ``` ADV. SRI.K.P.HARISH, SR GP FOR R1 TO R3, ``` ``` ADV. SMT. LATHA ANAND, SC FOR R4, ADV. DR. K.P.SATHEESAN(SR) FOR R5 AND R6, R8 BY ADVS.S.SREEKUMAR (SR.) ``` ``` P.MARTIN JOSE THOMAS P.KURUVILLA AJAY BEN JOSE SACHIN JACOB AMBAT HARIKRISHNAN S. P.PRIJITH R.GITHESH MANJUNATH MENON HANI P.NAIR ``` ``` ADV. SRI. JOHN VARGHESE,FOR ADDL. R10 ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 14.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WA NO. 858 OF 2022 3 ``` ## JUDGMENT ## S. Manikumar, C.J. This writ appeal is filed by the petitioner in W.P.(C.) No. 21999/2019 challenging the judgment of the learned Single Judge dated 21.01.2021 whereby the learned Single Judge dismissed the writ petition declining the following reliefs sought for by the petitioner:- _“I) Issue a Writ of certiorari quashing Ext. P9, the corresponding entries in 05-07-2017 and 13-072017 in Ext. P10 and Ext. P17, Order No.G35042/2017, dt. 25-05-2018 of the 3[rd] respondent. II) Issue a Writ of mandamus or any other appropriate Writ, Order or Direction commanding the 2[nd] respondent to consider and pass orders on Ext. P18 within a time limit to be fixed by this Hon'ble Court.”_ 2. Material facts for disposal of the writ appeal are as follows:- ``` WA NO. 858 OF 2022 4 ``` The ninth respondent – Kerala Hockey is a society registered under the provisions of the Societies Registration Act, 1860, which was formed with the objective to develop, organize and promote the game of hockey in the State of Kerala and other incidental activities of the said society. The appellant was the former Secretary General of the said society. 3. The grievance raised in the writ petition pertains to an amendment which was carried out to the bye-laws of the said society in the Annual General Body Meeting held on 02.10.2016; which according to the appellant was carried out in a surreptitious manner by respondents 5 to 7, who are apparently members of the society. It is also the case of the appellant that the amendment was done without convening a meeting as per the provisions of the bye-laws. Anyhow, it was the contention of the appellant that the amendment so brought to the bye-laws was filed before the Registrar ``` WA NO. 858 OF 2022 5 ``` of Societies, Palakkad, the third respondent and he has accepted the bye-laws without properly verifying the same and without conducting an enquiry. Therefore, the appellant has sought to quash Ext.P10, an amendment entered in the register of societies by the District Registrar. Thereafter, the appellant has filed W.P.(C.) No. 32620/2017, challenging Ext.P10 and this Court directed the District Registrar to enquire into the complaint and take a decision. The District Registrar in compliance with the directions passed Ext.P17 order, held that the decision to amend the bye-laws of the society taken on 02.10.2016 was in order and that, there was no violation of the provisions of the Societies Registration Act or the Rules framed thereunder with regard to the incorporation of the amendment in the Register maintained in the office of the third respondent. The District Registrar further held that the internal disputes between the members of the society ``` WA NO. 858 OF 2022 6 ``` have led the appellant to raise such claims and the District Registrar will not be justified in entering into a deeper probe into the affairs of the society which can only be done by a competent Civil Court. It is thus aggrieved by Ext.P17 that the writ petition was filed. 4. The learned Single Judge after taking into consideration the submissions put forth by the rival parties has arrived at the conclusion that the writ petition is not maintainable since the society is not a State under Article 226 of the Constitution of India and accordingly, the writ petition was dismissed holding as ## follows:- “5. The first question is whether the writ petition itself is maintainable or not. Sri. Biju Balakrishnan, the learned counsel relying on the judgment of the Apex Court in **Zee Telefilms Ltd. V. Union of India** and the **Board of Control for Cricket in India v. Cricket Association of Bihar** has argued that the 8[th] respondent Association being a body discharging public functions by holding monopoly over the game of Hockey though would not amount to a State, would be amenable to the writ jurisdiction under Article 226 of the Constitution of India. ``` WA NO. 858 OF 2022 7 ``` The learned Senior Counsel, on the other hand, tried to distinguish the ratio and it was argued that the principles laid in the above decision would be applicable only if the Hockey Association commits any act in violation of these statutory rights of a citizen. In the case on hand, the internal dispute between the members of a Society concerning the amendments which were brought to the bye-laws is being agitated. Essentially, what is contended is that the amendment carried out to the bye-laws is not in tune with the regulations governing the functioning of the Society and its bye-laws. There is no violation of any statutory or fundamental rights of the petitioner nor any other person. The learned Senior Counsel would also point out that while disposing of the earlier writ petition this Court had no occasion to consider the question as to whether the disputes raised by the petitioner are amenable to be considered by this Court under Article 226 of the Constitution of India. After hearing the rival submissions and after going through the records, I find considerable merit in the submission of the learned Senior Counsel. The inter se disputes between the members of the Society cannot be a matter which requires to be adjudicated under Article 226 of the Constitution of India. It would also not be proper for this Court to venture into disputed questions and adjudicate as to whether a meeting was in fact held on 2.10.2016 or whether the amendment was carried out in a legal manner. The petitioner may have to establish these aspects in accordance with law if he wants to succeed and that can only be in a properly instituted suit. ``` WA NO. 858 OF 2022 8 ``` 6. Even on merits, I do not think that the petitioner has made out any case for interference. Insofar as Ext.P17 order is concerned, it is well settled that this Court, in exercise of judicial review, is not concerned with the correctness of the finding of fact on the basis of which orders are made so long as those findings are reasonable and supported by evidence. The duty of the Court is to confine itself to the question of legality. The Court has to consider as to whether the decision making authority exceeded its powers, committed an error of law, violated rules of natural justice, reached a decision which no reasonable man would have reached or otherwise abused its powers. Though the Court is not expected to act as a court of appeal, nevertheless it can be examined whether the decision making process was reasonable, rational, not arbitrary or not violative of Article 14 of the Constitution of India. The 3[rd] respondent, after having heard all the parties pursuant to directions issued by this Court, has concluded that the decision taken to amend the bye-laws on 2.10.2016 and the manner in which the amendment was filed before the Registrar are in order. Having considered Ext.P17 in all its perspectives, I find no reason to interfere with the same. This writ petition will stand dismissed.” It is thus challenging the legality and correctness of the judgment, this writ appeal is filed. 5. We have heard, Sri. Biju Balakrishnan, learned counsel appearing for the appellant, Sri. K.P. Harish, `WA NO. 858 OF 2022 9` Senior Government Pleader appearing for respondents 1 to 3, Smt. Latha Anand, learned Standing Counsel appearing for the 4[th] respondent, Dr. K.P. Satheesan, learned Senior Counsel appearing for respondent Nos. 5, 6 and 9, Sri. S. Sreekumar, learned Senior Counsel appearing for the eighth respondent and Sri. John Varghese, learned counsel appearing for the additional tenth respondent and perused the pleadings and materials on record. 6. Even though various contentions are raised in the writ appeal seeking interference with the judgment of the learned Single Judge, we are of the considered opinion that the findings rendered by the learned Single Judge is in accordance with law for the basic reason that, what is materially alleged in the writ petition is a dispute by and between the members of the Kerala Hockey and the amendments made to the bye-laws. Considering so, writ petition may not be the appropriate ``` WA NO. 858 OF 2022 10 ``` remedy to ventilate the grievance of the appellant. We are also of the view that the judgment of the Hon’ble Apex Court in **Zee Telefilms Ltd. v. Union of India [2015(4) SCC 649]** and **Board of Control for Cricket in India v. Cricket Association of Bihar [2015(3) SCC 251]** are not applicable to the facts and circumstances of this case, for the basic reason that therein the question considered was entirely different from the one raised by the appellant in the writ petition ie; with regard to statutory violations. In that view of the matter, we do not find any reason to interfere with the judgment of the learned Single Judge, there being no jurisdictional error or other legal infirmities justifying us to do so. 7. However, at this juncture, learned counsel for the appellant submitted that consequent to the following findings contained at paragraph No. 6 of the judgment, the appellant would not be even in a position ``` WA NO. 858 OF 2022 11 ``` ## to ventilate his grievances by resorting to a civil proceeding. The said finding reads thus:- “The 3[rd] respondent, after having heard all the parties pursuant to directions issued by this Court, has concluded that the decision taken to amend the bye-laws on 2.10.2016 and the manner in which the amendment was filed before the Registrar are in order.” 8. Not much of deliberation is required in that matter since the learned Senior Counsel appearing for the eighth respondent i.e., Hockey India submitted that the eighth respondent has no objection in vacating the said finding rendered by the learned Single Judge. 9. We are also of the opinion that since the learned Single Judge has found that the writ petition is not maintainable against the nineth respondent society, i.e., Kerala hockey, necessarily, there should be a way out to the appellant to seek redressal of his grievances. Taking into account the said aspect, it is only appropriate that the above extracted portion in the 6[th] ``` WA NO. 858 OF 2022 12 ``` paragraph of the judgment is vacated. Accordingly, we do so. Therefore, the writ appeal is partly allowed as above. Sd/- **S. MANIKUMAR CHIEF JUSTICE** Sd/- **SHAJI P. CHALY JUDGE** DCS/14.07.2022