Vipin C. v. State of Kerala; Krishnadasan v. Village Officer, Thiruvegappura and Others

WP(C) Nos.42169/2018 & 29749/2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945** **WP(C) NO. 42169 OF 2018** ## **PETITIONER/S:** VIPIN C AGED 24 YEARS S/O.C.VASUDEVAN, CHEMBRA HOUSE, P.OCHEMBRA, VIA. THIRUVEGAPPURA PALAKKAD-679304. BY ADVS. SANTHEEP ANKARATH SMT.C.K.SHERIN ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695033. 2 DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM-695014. 3 DISTRICT EDUCATIONAL OFFICER OTTAPALAM-679101, PALAKKAD DISTRICT. 4 ASSISTANT EDUCATIONAL OFFICER PATTAMBI-679303, PALAKKAD DISTRICT. 5 KRISHNADASAN.C. S/O.PARAMESWARAN EZHUTHASSAN, CHEMBRA HOUSE, KIZHAKKEKKARA KOKKATH, MANISSERY.P.O., OTTAPALAM, PALAKKAD DISTRICT, PIN-679521.(FULL TIME HINDI TEACHER, CUPS, CHEMBRA, PALAKKAD DISTRICT). BY ADVS. SRI.V.A.MUHAMMED WP(C) Nos.42169/2018 & 29749/2022 2 SRI.M.SAJJAD ## **OTHER PRESENT:** SRI.K.M.FAISAL, GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2023, ALONG WITH WP(C).29749/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.42169/2018 & 29749/2022 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945** ## **WP(C) NO. 29749 OF 2022** ## **PETITIONER/S:** KRISHNADASAN AGED 51 YEARS S/O. PARAMESWARAN EZHUTHACHAN, KIZHAKKEKARA KOKKATH HOUSE, MANISSERY P.O., OTTAPPALAM VIA, PALAKKAD,, PIN - 679521 BY ADVS. K.R.VINOD M.S.LETHA K.S.SREEREKHA NABIL KHADER ## **RESPONDENT/S:** 1 THE VILLAGE OFFICER THIRUVEGAPPURA VILLAGE, THIRUVEGAPPURA P.O., PALAKKAD, PIN: 679 304., PIN - 679304 2 THE TAHSILDAR PATTAMBI TALUK, MINI CIVIL STATION, PATTAMBI, PIN - 670303 Addl.R3 VIPIN C S/O. C. VASUDEVAN, CHEMBRA HOUSE, P.O. CHEMBRA, VIA. THIRUVEGAPPURA, PALAKKAD (IMPLEADED AS PER ORDER DATED 23.03.2023 IN IA NO.1/2022) BY ADV SANTHEEP ANKARATH, SR.GP, SRI.K.M.FAISAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.03.2023, ALONG WITH WP(C).42169/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) Nos.42169/2018 & 29749/2022 4 ## **P.V.KUNHIKRISHNAN, J** ## **---------------------------------------** **W.P.(C) No. 42169 of 2018 & 29749 of 2022** **------------------------------------------Dated this the 23[rd] day of March, 2023** ## **JUDGMENT** These two writ petitions are connected, therefore, I am disposing of these two writ petitions by a common judgment. 2. I will narrate the facts in W.P.(C.) No. 42169/2018 first. The petitioner in this case is son of Sri.C.Vasudevan. Predecessors in interest of the petitioner established a pre KER school namely CUP School Chembra situated in Pattambi. The school is situated in the property that was acquired by Kunju Ezhuthachan, the great grandfather of the petitioner. According to the petitioner, the school was established and was being managed by Pachu Ezhuthachan, who is the brother of the grandfather of the petitioner. Pachu Ezhuthachan died without legal heirs and hence, the property is devolved on the children WP(C) Nos.42169/2018 & 29749/2022 5 of Kunju Ezhuthachan namely Vasu Ezhuthachan, Appu Ezhuthachan and Parameswaran Ezhuthachan. The school and its properties were also situated in the property of Pachu Ezhuthachan is the submission. According to the petitioner, Appu Ezhuthachan was managing the school for and on behalf of the other co-owners. He was officiating as the Manager. It is submitted that consequent to the death of Appu Ezhuthachan, as consented by other co-owners, wife of Appu Ezhuthachan namely Lakshmikutty amma was appointed as the Manager as a representative of other co-owners. It is further submitted that Vasu Ezhuthachan died issueless and unmarried. The petitioner's father Vasudevan and 5[th] respondent – Krishnadas are the children of Parameswaran Ezhuthachan, who is the brother of Vasu Ezhuthachan. It is the case of the petitioner that Vasu Ezhuthachan executed a Will in favour of the petitioner's father, 5[th] respondent and mother of the petitioner, namely Chinnu @ Lakshmikutty Amma. Lakshmikutty Amma, wife of Appu Ezhuthachan, who was the Manager of the school died at the age of 97 on 07.03.2017. Consequent to the death WP(C) Nos.42169/2018 & 29749/2022 6 of Lakshmikutty Amma, it is submitted that the school does not have a Manager. It is submitted that the 5[th] respondent is working as teacher in the very same school and therefore, there is disqualification as per Chapter III Rule 8(1) of Kerala Education Rules to be appointed as Manager. It is further stated that petitioner's mother Lakshmikutty Amma is also a teacher in the school, having the same disqualification. The further case is that the petitioner's brother is working at Coimbatore. Hence, the petitioner's mother and brother decided to appoint the petitioner to be the person to manage the school is the submission. 3. In the meanwhile, the 5[th] respondent approached the Educational Authorities seeking his appointment as the Manager. This Court directed the 1[st] respondent to decide the matter as per Ext.P1 judgment. The 5[th] respondent also applied before the 1[st] respondent for exempting him from the vices of Chapter III Rule 8(1) of KER and sought for permission to be appointed as the Manager. It is the case of the petitioner that the 1[st] respondent without considering the grievance of the WP(C) Nos.42169/2018 & 29749/2022 7 petitioner, rejected his claim and granted exemption to the 5[th] respondent from the vices of Chapter III Rule 8(1) of KER and appointed him as the Manager. Ext.P2 is the order. Aggrieved by the same, this writ petitions are filed. 4. Heard the learned counsel for the petitioner and the learned Government Pleader. 5. The 5[th] respondent filed a counter affidavit in this writ petition and disputed some of the factual aspects narrated in the writ petition. According to the 5[th] respondent, Lakshmikutty Amma had executed a Will as evident by Ext.R5(a) in supercession of Exts.R5(b) and R5(c) lease. Lakshmikutty Amma expired on 07.03.2017. Consequently, it is submitted by the 5[th] respondent that on the basis of the Will executed by Lakshmikutty Amma, he became the owner and Manager of the school and hence, he approached the Government for exemption under Chapter III Rule 8 of KER. It is submitted that since the petitioner has raised a claim over the ownership of the property, which is a civil dispute, the Government approved the appointment of the 5[th] respondent as Manager provisionally and WP(C) Nos.42169/2018 & 29749/2022 8 subject to the decision of the civil court. The 5[th] respondent relied Exts.R5(d) and R5(e) to support his claim. It is the case of the 5[th] respondent that the petitioner or his mother and brother have no right over the school property. Therefore, the 5[th] respondent submitted that the writ petition may be dismissed. 6. W.P.(C.) No. 29749/2022 is filed by the 5[th] respondent in W.P.(C.) No. 42169/2018. In this writ petition, it is stated that he submitted Ext.P6 application before the 1[st] respondent praying to accept land tax offered by him with respect to the property owned by late Vasu Ezhuthachan vide Ext.P1 Kraya certificate under the footing of legal heirs of late Vasu Ezhuthachan. It is the case of the petitioner that he has already produced Ext.P5 tax receipt issued by the office of the 1[st] respondent earlier by which legal heirs of late Vasu Ezhuthachan were permitted to pay the land tax. The grievance of the petitioner is that the 1[st] respondent did not let the petitioner to pay the tax and issue receipt for the same in spite of several endeavours made by him. Hence, this writ petition is WP(C) Nos.42169/2018 & 29749/2022 9 ## filed with following prayers : _(i) “Issue a writ of mandamus directing the respondents No.1 to accept land tax offered by the petitioner and issue necessary receipt with respect to the property covered by Ext.P1 Kraya Certificate in the name of late Vasu Ezhuthachan, as paid by legal heirs of late Vasu Ezhuthachan within a time frame._ _(ii) Issue any other writ or direction appropriate in the circumstances of this case._ _(ii) To dispense with the filling of translation of vernacular documents.” [SIC]_ 7. Heard counsel appearing for the petitioners in these cases and the learned Government Pleader. The counsel appearing for the petitioner in W.P.(C)No.42169/2018 submitted that the 5[th] respondent in that writ petition who is the petitioner in W.P.(C)No.29749/2022 is legally barred from appointing as Manager as per Chapter III Rule 8(2) of KER. The counsel appearing for the petitioners submitted that simply because the 5[th] respondent is relying on a Will which according to him gives the right in this School property and management, the same can not be accepted without proving that Will in accordance with the law. Admittedly, the will produced by the WP(C) Nos.42169/2018 & 29749/2022 10 5[th] respondent is not proved in a manner known to the law is the submission. The petitioner also relied on the judgment of the Division Bench of this Court in **Sabitha K.V. v. Satheesan K.V and Others** [2022 (1) KHC 9]. Hence there is no need to give exemption to the 5[th] respondent in W.P.(C)No.42169/2018 for appointment as Manager is the submission. The counsel appearing for the 5[th] respondent in W.P.(C)No.42169/2018 submitted that, he already approached the court concerned to probate the Will. In such circumstances, this Court may not interfere with Ext.P2 in W.P.(C)No.42169/2018, is the submission. 8. It is an admitted fact that the 5[th] respondent is relying a Will allegedly executed by Lakshmikutty Amma as evident by Ext.R5(a) in W.P.(C)No.42169/2018. Admittedly, the Will is not proved in the manner in which it is to be proved as per the Evidence Act. In such circumstances, what is to be done is considered by this Court in **Sabitha K.V.** 's case (supra). It will be better to extract the relevant portion of the above judgment: “7. In all cases where a Will is set up, the procedure prescribed under S.68 of the Indian Evidence Act, 1872, will have WP(C) Nos.42169/2018 & 29749/2022 11 to be followed and it is the burden of the propounder of the Will to prove that the Will is duly executed. The propounder also has a legal obligation apart from proving the execution and genuineness of the Will, to explain the suspicious circumstances, if any, surrounding the execution of the Will. S.68 of the Evidence Act does not contain any distinction between an admitted Will and disputed Will as regards the mode of proof. Due execution of the Will cannot be proved otherwise than by a recourse to S.68 of the Evidence Act and S.63 of the Indian Succession Act, 1925. It has to be seen that in the instant case all the other legal heirs except the propounder disputes the Will as a fraudulently created one. In view of the said position, the arguments of the learned Senior Counsel for the appellant that the respondents know the existence of a Will, therefore, it must be taken to be valid till it is set aside at the instance of the respondents cannot be countenanced at all. None of the decisions relied on by the appellant in support of this contention holds otherwise. We agree with the submission of the learned Senior Counsel for the appellant that the educational authorities cannot decide complicated questions of fact or law which requires evidence and the same can be done only through Civil Court. It was for the appellant, the propounder of the Will and who was staking a claim on that basis to prove the same by filing an appropriate civil suit and to prove the Will in accordance with law. That not having been done, her claim was rightly rejected by the educational authorities and it calls for no interference. 8. In such circumstances, we find nothing wrong in the educational authorities declining to accept the recitals in the Will or to confer any benefit on the basis of the said Will. We also cannot construe the terms much less consider the genuineness of WP(C) Nos.42169/2018 & 29749/2022 12 a Will in an appeal against a proceedings under Art.226 of the Constitution of India. As rightly found by the learned Single Judge, as it stands now, being a corporate educational agency, the institutions are to be governed in terms of the provisions of the Kerala Education Act and Rules, which calls for a scheme or byelaw, which determines the mode of selecting the Manager. 9. Before parting, we notice that the learned Single Judge had observed that even if the Will is taken to be genuine, it would concede no right to Sabitha K. V. to stake a claim on the basis of a Will as the managership is not a civil right but a statutory right and the same could not have been the subject matter of a bequest. We note that the said observation of the learned Single Judge cannot be taken as a blanket proposition of law applicable to all situations. Since we are not called upon to decide the said issue in these appeals, we are not deciding the same, and therefore, the said question is left open. We are in complete agreement with the directions given in the judgment under appeal. In the result, the above appeals are dismissed.” 9. In the light of the above dictum laid down by this Court, I am of the considered opinion that the 5[th] respondent can not rely the alleged Will executed in favour of him as far as the School Management is concerned. It is submitted by the 5[th] respondent that he already approached the competent Civil court to probate the Will. But as long as the Civil court declared the right of the party based on the alleged will executed, the 5[th] WP(C) Nos.42169/2018 & 29749/2022 13 respondent can not rely on the Will to get the right in the management of the School. The principle laid down by **Sabitha K.V.** 's case (supra) is squarely applicable in such cases. 10. Admittedly, the 5[th] respondent in W.P. (C)No.42169/2018 is a teacher in the same School. There is a bar in appointing teachers as Managers in Chapter III Rule 8(2) of KER. The 1[st] respondent in W.P.(C)No.42169/2018 granted exemption to the 5[th] respondent from the rigour in Chapter III Rule 8(2) of KER by invoking the powers under Rule 3 Chapter I KER stating that, there will be a vacuum in the School as far as the management is concerned in the light of the Will produced by the 5[th] respondent. In the light of the dictum laid down in **Sabitha K.V.** 's case (supra) there can not be any vacuum because _dehors_ the Will, the petitioners in these writ petitions are admittedly co-owners. The Government granted exemption to the 5[th] respondent in W.P.(C)No.42169/2018 only because of the Will produced by him and to avoid a vacuum as far as the management of the School is concerned. Rule 3 of Chapter I KER says that, if the Government are satisfied that the WP(C) Nos.42169/2018 & 29749/2022 14 operation of any rule under these Rules causes undue hardship in any particular case, the Government may dispense with or relax the requirements of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner. In the light of the fact that, _dehors_ the Will, the petitioners in these writ petitions are co-owners, there is no problem in appointing the petitioner in W.P.(C)No.42169/2018 as Manager till the matter is finally decided by the Civil court. The exercise of power under Rule 3 of Chapter I KER is considered by this Court in **K.K.Moidu v. State of Kerala and others** [1973 KHC 350]. It will be better to extract the relevant portion of the above judgment: “4. On a perusal of Ex. P2 it is seen that the Government have not differed from the view taken by the subordinate officers regarding the applicability of R.43 to the case in question. What has been done under Ex. P2 is to sanction the appointment of the 5th respondent as a peon, notwithstanding the fact that it is opposed to the mandatory provision contained in R.43, by purporting to invoke the Government's power under R.3 of Chap. 1 of the Kerala Education Rules. That rule reads: "Where the Government are satisfied that the operation of any rule under these Rules causes undue hardship in any particular case, the Government may dispense with or relax the WP(C) Nos.42169/2018 & 29749/2022 15 requirements of that rule to such extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner". In my opinion, it is not possible to construe the above rule as conferring a naked and arbitrary power on the State Government to mete out special treatment to any individual case according to its whim or fancy in a manner directly opposed to the provisions contained in the Rules. Such an interpretation would render the rule open to attack on the ground that it is violative of Art. 14 of the Constitution. It is obvious that the purpose of R.3 is only to reserve power with the Government to grant a relaxation of the rigour of any of the provisions contained in the Kerala Education Rules in special cases where the circumstances are such as would warrant a valid classification of the said case for purposes of Art. 14 of the Constitution and where manifest injustice and inequity would otherwise result. In T. C. Sreedharan Pillai v. State of Kerala and Others, 1973 KLJ 187, a Full Bench of this Court had occasion to consider and explain the scope of R.39 of Part 2 of the Kerala State and Subordinate Services Rules which is a provision substantially similar I to R.3 with which we are now concerned and the observations contained in the said judgment are fully relevant and applicable in the present case.” 11. In the light of the above principle, according to me, there is no circumstance to give an exemption to the 5[th] respondent in W.P.(C)No.42169/2018 to appoint as the Manager when he is working as a teacher in the School invoking the powers under Rule 3 of Chapter I KER. The petitioners in WP(C) Nos.42169/2018 & 29749/2022 16 these writ petitions are co-owners. There is no problem in appointing the petitioner in W.P.(C)No.42169/2018 as the Manager till the validity of the Will is decided by the competent Civil court in the light of the dictum laid down by this Court in **Sabitha K.V** .'s case (supra). 12. As far as W.P.(C)No.29749/2022 is concerned, the main issue is regrading the acceptance of tax. An interim order was passed by this Court on 13.01.2023. The same is extracted hereunder: “W.P.(C) No.42169 of 2018 has been filed challenging an order whereby one Krishnadasan was appointed as Manager of a School. W.P.(C) No.29749 of 2022 has been filed by the said Krishnadasan praying for a direction to respondent No.1 to accept land tax with regard to the properties where the school is located. The application for acceptance of tax has been produced as Ext.P6 in which it is stated that the property belonged to one Vasu Ezhuthachan and tax was paid in 1998. It is also stated that a Will had been registered in 1982 whereby the property belonged to Lakshmikutty, W/o Parameswaran Ezhuthachan, Vasudevan and Krishnadasan and since Lakshmikutty and Vasudevan are no more, the petitioner is entitled to pay the tax. In Ext.P6, there is an endorsement by the Revenue Officer to the effect that the original documents and encumbrance certificate should be produced for the purpose of acceptance of tax. In W.P.(C) No.42169 of 2018 the petitioner, who claims as another legal heir WP(C) Nos.42169/2018 & 29749/2022 17 of Vasu Ezhuthachan has challenged the contention of Krishnadasan based on the Will. The exclusive right of Krishnadasan is yet to be decided. There cannot hence be a direction to the 1[st] respondent to accept the tax exclusively from the petitioner in W.P.(C) No.29749 of 2022 for the time being. There will hence be a direction to the 1[st] respondent in W.P. (C)No.29749 of 2022, to provisionally accept the tax and issue receipt showing that the payment has been effected by the legal heirs of Vasu Ezhuthachan. Post the writ petitions on 06.02.2023. The tax need be accepted only if all the necessary documents are produced by the petitioner, since presently the property is shown as Puramboke as there has been a delay in payment of tax. ” 13. In the light of the above interim order, nothing survives in this case. That writ petition can be closed recording the above interim order and subject to the decision of the Civil court. Therefore, these writ petitions are disposed of in the following manner: 1. Ext.P2 in W.P.(C)No.42169/2018 is quashed and the 1[st] respondent is directed to reconsider the matter in the light of the observations in this judgment and also in the light of the dictum laid down by this Court in **Sabitha K.V.** WP(C) Nos.42169/2018 & 29749/2022 18 **v. Satheesan K.V and Others** [2022 (1) KHC 9], as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. Orders passed by the Government will be subject to the final decision of the Civil court. 2. W.P.(C)No.29749/2022 is disposed of recording the interim order dated 13.01.2023 and the acceptance of tax will be subject to the final decision of the Civil court. Sd/- **P.V.KUNHIKRISHNAN JUDGE** SKS DM WP(C) Nos.42169/2018 & 29749/2022 19 ## **APPENDIX OF WP(C) 29749/2022** PETITIONER EXHIBITS Exhibit P1 THE COPY OF THE KRAYA CERTIFICATE OBTAINED BY LATE VASU EZHUTHACHAN Exhibit P2 THE COPY OF THE ORDER OF THE LAND TRIBUNAL, PATTAMBI IN SM NO.1088/1979 DATED 27.11.1979 Exhibit P3 THE COPY OF THE REGISTERED WILL DATED 23.03.1982 EXECUTED BY LATE VASU EZHUTHACHAN - Exhibit P4 THE COPY OF THE DEATH CERTIFICATE OF LATE VASU EZHUTHACHAN ISSUED BY THIRUVEGAPPURA GRAMA PANCHAYATH Exhibit P5 THE COPY OF THE LAND TAX RECEIPT DATED 20.02.1997 PERTAINING TO THE PAYMENT OF LAND TAX WITH RESPECT TO THE PROPERTY COVERED BY EXT.P1 KRAYA CERTIFICATE OF LATE VASU EZHUTHACHAN Exhibit P6 THE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 29.08.2022 BEFORE THE 1 ST RESPONDENT TO LET HIM TO PAY THE LAND TAX OF THE PROPERTY OF LATE VASU EZHUTHACHAN WP(C) Nos.42169/2018 & 29749/2022 20 ## **APPENDIX OF WP(C) 42169/2018** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF JUDGMENT DATED 21/05/2018 IN WP(C)NO.15894/2018 PASSED BY THIS HON'BLE COURT. EXHIBIT P2 TRUE COPY OF G.O(RT) NO.4866/2018/GEDN DATED 22/11/2018 ISSUED BY THE 1ST RESPONDENT