WA Nos. 1935 of 2022, 1952 of 2022 and 1994 of 2022 (Central Board of Anglo Indian Education v. Dalbin D'Cunha & others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 26[TH] DAY OF MAY 2023 / 5TH JYAISHTA, 1945 WA NO. 1935 OF 2022** **AGAINST THE ORDER IN WP(C) 1133/2019 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/4TH RESPONDENT:** **THE CENTRAL BOARD OF ANGLO INDIA EDUCATION REG.NO.8/1953, PERUMANOOR (PO), COCHIN - 682015 REPRESENTED BY ITS GENERAL SECRETARY,** ## **BY ADV PRATHEESH.P** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 3 AND 5 TO 9:** - **1 DALBIN D'CUNHA, AGED 66 YEARS S/O.THOMAS D CUNHA, MERRYLAND, ELAMKUNNAPUZHA, COCHIN - 682503** **2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM – 695001.** - **3 THE DIRECTOR GENERAL OF EDUCATION, JAGATHY, THIRUVANANTHAPURAM - 695014 (FORMERLY KNOWN AS DIRECTOR OF PUBLIC INSTRUCTION),** - **4 THE DEPUTY DIRECTOR OF EDUCATION KAKKANAD, ERNAKULAM - 682030** 2 W.A.Nos.1935 of 2022 & connected cases - **5 SRI.RAY MORRIS KALAVEDI PATTATHANAM P.O, KOLLAM – 691021 (DIED)** - **6 DONAL CORREYA S/O.MANUEL PETER CORREYA, AMBATT HOUSE, ERAKKAKULANGARA ROAD, PACHALAM, ERNAKULAM - 682012** - **7 ANDREW PONSEKA** - **S/O.LATE PAUL PONSEKA, VALLAPULLY HOUSE, M.A SAJEED ROAD, EDAPPALLY TOLL, KOCHI- 682024** - **8 PATRICK LIVERA, AGED 57 YEARS S/O.LOUIS LIVERA, MANTHARA HOUSE, OCHANTHURUTH POST, PIN - 682508** - **9 DANNEY MORERA, AGED 43 YEARS S/O.ROY MORERA, CHERUPULLY PARAMBIL HOUSE, KANAMPILLAY ROAD, PACHALAM, COCHIN - 682012** **BY ADVS. ELVIN PETER P.J. P.MARTIN JOSE G.RAJAGOPAL LAKSHMI RAMADAS P.K.RAVISANKAR SOJAN MICHEAL** ## **OTHER PRESENT:** **Sri.A.J.Varghese, Sr.G.P.** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.05.2023, ALONG WITH WA.1952/2022, 1994/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 W.A.Nos.1935 of 2022 & connected cases **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 26[TH] DAY OF MAY 2023 / 5TH JYAISHTA, 1945 WA NO. 1952 OF 2022** **AGAINST THE ORDER IN RP 1196/2022 OF HIGH COURT OF KERALA** ## **APPELLANT/REVIEW PETITIONER/ADDITIONAL 8TH RESPONDENT:** **PATRICK LIVERA, AGED 57 YEARS S/O LOUIS LIVERA, MANTHRA HOUSE, OCHANTHURUTH POST,, PIN - 682508** **BY ADV P.K.RAVISANKAR** ## **RESPONDENTS/RESPONDENTS/WRIT PETITIONER & RESPONDENTS 1** **TO 7 &9:** - **1 DALBIN D'CUNHA S/O THOMAS D'CUNHA, AGED 63 YEARS, MERRY LAND, ELAMKUNNAPUZHA POST, PIN - 682503** - **2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001** - **3 DIRECTOR OF PUBLIC INSTRUCTIONS JAGATHY, THIRUVANANTHAPURAM - 695001** - **4 DEPUTY DIRECTOR OF EDUCATION ERNAKULAM, KAKKANAD, COCHIN - 682030** - **5 CENTRAL BOARD OF ANGLO INDIAN ASSOCIATION** 4 W.A.Nos.1935 of 2022 & connected cases **REGISTRATION NO. 8/1953, PERUMANOOR, KOCHI - 682015 REPRESENTED BY ITS GENERAL SECRETARY,** - **6 RAY MORRIS KALAVEDI, PATTATHANAM P.O., KOLLAM, PIN - 691021** - **7 DONAL CORREYA S/O MANUEL PETER CORREYA, AMBATT HOUSE, ERATTAKULANGARA ROAD, PACHALAM, ERNAKULAM, PIN - 682012** - **8 ANDREW PONSEKA S/O LATE PONSEKA, VALLUPULLY HOUSE, M.A. SAJEED ROAD, EDAPPALLY TOLL, KOCHI - 682024** - **9 DANNEY MORERA** **AGED 40 YEARS, S/O ROY MORERA, CHERUPULLUY PARAMBIL HOUSE, KANAMPILLY ROAD, PACHALAM, COCHIN, PIN – 682012** **BY SRI.ELWIN PETER, SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.05.2023, ALONG WITH WA.1935/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 W.A.Nos.1935 of 2022 & connected cases **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 26[TH] DAY OF MAY 2023 / 5TH JYAISHTA, 1945 WA NO. 1994 OF 2022** **AGAINST THE ORDER IN WP(C) 1133/2019 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/ADDITIONAL 8TH RESPONDENT:** **PATRICK LIVERA, AGED 57 YEARS S/O LOUIS LIVERA, AGED 57 YEARS, MANTHRA HOUSE, OCHANTHURUTH POST,, PIN - 682508** **BY ADV P.K.RAVISANKAR** ## **RESPONDENTS/WRIT PETITIONER & RESPONDENTS 1 TO 7 & 9:** - **1 DALBIN D'CUNHA S/O THOMAS D'CUNHA, AGED 63 YEARS, MERRY LAND, ELAMKUNNAPUZHA POST,, PIN - 682503** - **2 STATE OF KERALA** **REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001** - **3 DIRECTOR OF GENERAL EDUCATION, (FORMERLY DIRECTOR OF PUBLIC INSTRUCTIONS) JAGATHY, THIRUVANANTHAPURAM - 695001** - **4 DEPUTY DIRECTOR OF EDUCATION ERNAKULAM, KAKKANAD, COCHIN - 682030** 6 W.A.Nos.1935 of 2022 & connected cases - **5 CENTRAL BOARD OF ANGLO INDIAN ASSOCIATION REGISTRATION NO. 8/1953, PERUMANOOR, KOCHI - 682015 REPRESENTED BY ITS GENERAL SECRETARY,** - **6 RAY MORRIS KALAVEDI, PATTATHANAM P.O., KOLLAM - 691021** - **7 DONAL CORREYA** - **S/O MANUEL PETER CORREYA, AMBATT HOUSE, ERATTAKULANGARA ROAD, PACHALAM, ERNAKULAM - 682012** - **8 ANDREW PONSEKA S/O LATE PONSEKA, VALLUPULLY HOUSE, M.A. SAJEED ROAD, EDAPPALLY TOLL, KOCHI - 682024** - **9 DANNEY MORERA AGED 40 YEARS, S/O ROY MORERA, CHERUPULLUY PARAMBIL HOUSE, KANAMPILLY ROAD, PACHALAM, COCHIN - 682012** **SR** **BY ADVS. ELVIN PETER P.J. SR. GOVERNMENT PLEADER SRI. A.J.VARGHESE PRATHEESH.P P.MARTIN JOSE G.RAJAGOPAL LAKSHMI RAMADAS SOJAN MICHEAL Adv.M.P.Sreekrishnan A.MUHAMMED MUSTHAFA(K/859-A/2015)** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26.05.2023, ALONG WITH WA.1935/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 7 W.A.Nos.1935 of 2022 & connected cases ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ. -----------------------------------------------** **Writ Appeal Nos.1935, 1952 and 1994 of 2022 ----------------------------------------------Dated this the 26[th] day of May, 2023.** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** Among these appeals, Writ appeal Nos.1935 of 2022 and 1994 of 2022 are preferred against the order dated 21.11.2022 in W.P.(C) No.1133 of 2019. Among the said appeals, Writ Appeal No.1935 of 2022 is preferred on behalf of the fourth respondent in the writ petition and Writ Appeal No.1994 of 2022 is preferred by the additional eighth respondent in the writ petition. The additional eighth respondent had earlier preferred R.P.No.1196 of 2022 in the writ petition seeking orders reviewing the order dated 21.11.2022 impugned in the above appeals and Writ Appeal No.1952 of 2022 is preferred by him against the order dated 13.12.2022 in the writ petition dismissing R.P.No.1196 of 2022. Parties and documents are referred to in this judgment, as they 8 W.A.Nos.1935 of 2022 & connected cases appear in the writ petition. 2. Essentially, the dispute pertains to the management of the Central Board of Anglo Indian Education, a society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Act and a few schools run by it. The Central Board of Anglo Indian Education (the Society) is the fourth respondent in the writ petition. 3. There are different classes of members who constitute the Society. In terms of the bye-laws of the Society, there has to be an election to the various offices of the Society every year. The offices of the Society include a Chairman, two Vice-Chairmen, a Secretary and an Administrative Committee. The bye-laws provide specifically that persons elected to the respective offices of the Society shall hold the same for a period of one year. The bye-laws provide that the Chairman shall be the Manager of all institutions and organisations run directly by the Society. 4. Undisputedly, the fifth respondent was elected as the Chairman of the Society on 27.05.2017. Even though the election to the various offices of the Society held on 9 W.A.Nos.1935 of 2022 & connected cases 27.05.2017 was challenged by a few members of the Society, in O.S.No.686 of 2017 before the Munsiff Court, Ernakulam, they could not secure any interim relief in the said suit. Consequently, as per Ext.P6 order, the Director of General Education approved the fifth respondent as the Manager of the Schools run by the Society from 27.05.2017 subject to the outcome of O.S.No.686 of 2017. It is seen that when the term of office of the Chairman expired, a request was made before the Director on behalf of the Society to approve one of the Vice-Chairmen of the Society as the Manager of the Schools. The said request was not acted upon by the Director. Instead, the Deputy Director of Education, Ernakulam was appointed as the Manager of the Schools from 26.05.2018. The said decision was challenged by one Marshal D'Cunha before this Court in W.P.(C) No.26074 of 2018. The said writ petition was disposed of as per Ext.P7 judgment directing the Director of General Education to consider whether any one of the Vice-Chairmen or other officers of the Society could be approved as the Manager of the Schools. It was also ordered by this Court in Ext.P7 judgment that until a decision as directed is taken by the 10 W.A.Nos.1935 of 2022 & connected cases Director, the Deputy Director of Education, Ernakulam will function as the Manager of the Schools. It is clarified in Ext.P7 judgment that if such a decision is not possible, the Deputy Director of Education may continue as the Manager of the Schools, until the matter is resolved through a civil court. 5. Pursuant to Ext.P7 judgment, the Director passed Ext.P8 order directing the Society to render particulars of their members to the Deputy Director of Education, Ernakulam and the said officer was directed to hold election to the various offices of the Society, so as to enable approval of the Chairman of the Society to be elected as the Manager of the Schools. The writ petition W.P.(C) No.1133 of 2019 was one instituted challenging Ext.P8 order and seeking other reliefs, including an order appointing an Advocate Commissioner to conduct election to the offices of the Society. It is alleged in the writ petition that the petitioner is a person who was elected as one of the Vice-Chairmen of the Society in the election held on 27.05.2017. The case set out by the petitioner in the writ petition is that as per the bye-laws of the Society, after the term of the Chairman, one of the Vice-Chairmen of the Society 11 W.A.Nos.1935 of 2022 & connected cases is entitled to function as the Chairman of the Society as also the Manager of the Schools for a period of one year and it is with a view to consider whether the petitioner could be approved as the Manager of the Schools on the said basis that the matter was remitted to the Director in terms of Ext.P7 judgment and that Ext.P8 order passed without considering the said aspect is illegal. It is also the case of the petitioner in the writ petition that at any rate, the Director has no authority to order election to the offices of the Society through the Deputy Director of General Education. The reliefs claimed in the writ petition read thus: i) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P8 and quash the same; ii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2[nd] respondent to consider the approval of the petitioner as the Manager of the school in accordance with bye-law 4(a) of Ext.P1 bye-law; iii) Declare that the 2[nd] and 3[rd] respondents have absolutely no authority to conduct the election to the office bearers of the Board; iv) Declare that Ext.P8 is one issued without any authority of law; v) Appoint an Advocate Commissioner as the Returning Officer to conduct the election to the Central Board of Anglo Indian Education, Cochin-682 015; and vi) Issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the 12 W.A.Nos.1935 of 2022 & connected cases ## case. Even though a relief was sought in the writ petition for appointment of an Advocate Commissioner for conducting election to the offices of the Society, there is no pleading in the writ petition to justify an approach to this Court for such a relief in a proceedings under Article 226 of the Constitution in respect of a private body like the Society. 6. It is seen that on 12.02.2019, when the writ petition came up for hearing, this Court made a suggestion to appoint an Advocate Commissioner to conduct election to the various offices of the Society and the said suggestion was accepted by the Society and its former President who were arrayed as parties to the writ petition other than the State and its Officers. Consequently, this Court appointed an Advocate Commissioner to conduct election to the various offices of the Society. Despite the agreement aforesaid, on 08.07.2019, a counter affidavit was filed on behalf of the Society in the writ petition contending, among others, that the Society has agreed for appointment of an Advocate Commissioner to conduct the election under a _bona fide_ belief that there will be a free and 13 W.A.Nos.1935 of 2022 & connected cases fair election; that after the appointment of the Advocate Commissioner and during the process of the steps taken by him for preparing the list of members eligible to vote, serious disputes have arisen; that such disputes are to be adjudicated by a civil court after permitting the parties to adduce evidence and that the petitioner is, therefore, not entitled to any order for conducting election to the offices of the Society. It was also pointed out by the Society in their courter affidavit that a suit has already been instituted before the Munsiff's Court, Ernakulam as O.S.No.410 of 2019 for a mandatory injunction directing the Society to conduct election to its offices and inasmuch as the civil court has seized of the matter, it is only appropriate that the disputes be resolved by the civil court. 7. While so, the plaintiff in O.S.No.410 of 2019 who is stated to be a member of the Society in the capacity as Local Manager of the Cruz Milagres European Primary School, Ochenthurath run by the Society, filed an application seeking orders impleading him as an additional respondent in the writ petition and on the said application, this Court impleaded him as the additional eighth respondent in the writ petition on 14 W.A.Nos.1935 of 2022 & connected cases 03.07.2020. On 02.03.2021, the additional eighth respondent also filed a counter affidavit in the writ petition, pointing out that he has already filed an interlocutory application in O.S.No.410 of 2019 as I.A.No.2373 of 2019 for appointment of an Advocate Commissioner to conduct election to the offices of the Society and the said application is pending. In the meanwhile, on 26.02.2021, the Advocate Commissioner appointed by the Court filed a report as Report No.6 enclosing a draft voters list as Ext.C13 for the election directed to be conducted. In the context of the said report, the additional eighth respondent has contended in the counter affidavit that names of many of the members of the Society including him who are eligible to be included in the voters list are not included in Ext.C13 draft voters list and that 20 persons included therein are ineligible to be included in the voters list. Simultaneously, the additional eighth respondent has also filed an objection to Report No.6 on the aforesaid lines. 8. Without adverting to the objection filed by the additional eighth respondent, having regard to the objection filed by other party respondents, the Advocate Commissioner 15 W.A.Nos.1935 of 2022 & connected cases revised Ext.C13 draft voters list and produced another draft voters list as Ext.C15 along with Report No.8. Both the Society as also the additional eighth respondent filed objections to Ext.C15 draft on 26.07.2022, 22.08.2022 and 22.09.2022 respectively. One of the objections filed by the additional eighth respondent to Ext.C15 report was that all Local Managers of the Schools run by the Society who are entitled to cast their votes in the election are not included in Ext.C15 voters list. 9. On 22.09.2022, when the matter was taken up, it was pointed out on behalf of the additional eighth respondent that Ext.C15 draft cannot be acted upon. In the said context, the learned Single Judge took the view that since all Local Managers of the Schools except two are included in Ext.C15 draft and since the two local Managers who were omitted to be included in the draft did not assert that they are entitled to cast vote in the election on receipt of notice in the writ petition, there is no substance in the objection filed by the additional eighth respondent in Ext.C15 report. After having rejected the objection aforesaid raised by the additional eighth respondent, the learned Single Judge proceeded to direct the Advocate 16 W.A.Nos.1935 of 2022 & connected cases Commissioner to finalise the voters list in accordance with the bye-laws of the Society and conduct election to the offices of the Society. As noted, it is aggrieved by the said order as also the order dismissing the review petitions preferred in respect of the same that these appeals are preferred. 10. Heard Sri.M.R.Rajendran Nair, the learned Senior Counsel who appeared for the fourth respondent, Sri.P.K.Ravi Sankar, the learned counsel who appeared for the additional eighth respondent and Sri.Elvin Peter, the learned counsel who appeared for the petitioner in the writ petition. 11. Sri.M.R.Rajendran Nair, the learned Senior Counsel who appeared for the fourth respondent contended that the Society being a private body, the learned Single Judge ought not have, in a proceedings under Article 226 of the Constitution, directed an Advocate Commissioner to be appointed by this Court to conduct election to the various offices of the Society, especially since disputes have been raised by the contesting respondents as to the genuineness of the voters list prepared by the Advocate Commissioner. According to the learned Senior Counsel, the learned Single 17 W.A.Nos.1935 of 2022 & connected cases Judge ought to have held that the prayer in the writ petition for appointing an Advocate Commissioner to conduct the election to the offices of the Society is not maintainable. The learned Senior Counsel has relied on the observation made by this Court in Ext.P7 judgment that in the event an office bearer of the Society other than its Chairman cannot be appointed as the Manager of the Schools, the parties have to resolve their disputes by approaching a civil court, in support of the said argument. It is all the more so, according to the learned Senior Counsel, since the preparation of the voters list by the Advocate Commissioner had led to serious objections which could be resolved and adjudicated only by a competent civil court after permitting the parties to adduce evidence. As regards the voters list prepared by the Advocate Commissioner, it was argued by the learned Senior Counsel that the Advocate Commissioner misinterpreted provisions of the bye-laws of the Society and thereby included ineligible persons as members and excluded eligible persons. Various decisions of the Apex Court have been relied on by the learned Senior Counsel in support of the proposition argued by him that the writ petition, 18 W.A.Nos.1935 of 2022 & connected cases insofar as it relates to the prayer for appointment of the Advocate Commissioner, is not maintainable. Although it was conceded by the learned Senior Counsel that the maintainability of the writ petition was not taken up by the Society at the time of passing the impugned order, it was argued by the learned Senior Counsel that the said conduct on the part of the Society does not confer jurisdiction on the Court to pass an order in the nature of one impugned in the appeals. 12. Sri.P.K.Ravi Shankar, the learned counsel who appeared for the additional eighth respondent supported the arguments advanced by the learned Senior Counsel. In addition, it was pointed out by him that at any rate, inasmuch as the additional eighth respondent has already filed a suit before a competent civil court for a mandatory injunction directing the Society to conduct election to its offices, the learned Single Judge ought not have passed the impugned order. It was also argued by the learned counsel that the direction in the impugned order permitting the Advocate Commissioner to make appropriate changes in the voters list in order to make it in tune with the bye-laws of the Society, is _per_ 19 W.A.Nos.1935 of 2022 & connected cases _se_ illegal, inasmuch as the Advocate Commissioner cannot be conferred with any authority to adjudicate the disputed questions of facts. It was argued by the learned counsel that the learned Single Judge ought to have decided the sustainability or otherwise of the objections raised by the appellant and others as regards the inclusion/exclusion of persons from the draft voters list, instead of relegating the same to the Advocate Commissioner. It was asserted by the learned counsel that the additional eighth respondent never consented for appointment of an Advocate Commissioner for conducting election to the offices of the Society. It was also argued by the learned counsel that even assuming that there is consent on the part of the additional eighth respondent for appointment of Advocate Commissioner to conduct election, such consent will not confer jurisdiction on the court to pass an order in the nature of one impugned in the writ petition. The learned counsel has also relied on a few decisions of the Apex Court in support of the said propositions argued by him. 13. Sri.Elvin Peter, the learned counsel who appeared for the additional eighth respondent raised a 20 W.A.Nos.1935 of 2022 & connected cases preliminary objection as to the _locus standi_ of Sri.Ancily Luiz who instituted W.A.No.1935 of 2022 on behalf of the Society. According to the learned counsel, the Society was being represented all throughout in the proceedings by its General Secretary Eugine Luiz and he passed away on 26.08.2022. It was pointed out that the appeal is filed by Ancily Luiz on the premise that he has been nominated by the Administrative Committee to function as the General Secretary of the Society. According to the learned counsel, no such decision has been taken by the Administrative Committee and W.A.No.1935 of 2022 in the circumstances is liable to be dismissed on that sole ground. As regards the contention raised by the appellants as to the maintainability of the writ petition, insofar as it relates to the prayer for appointment of Advocate Commissioner to conduct election to the offices of the Society, Sri.Elvin Peter has persuasively argued that the impugned order being one rendered by the learned Single Judge with the consent of all parties, the appellants cannot be heard to contend that the writ petition, insofar as the said relief is concerned, is not maintainable. Placing reliance on the decision of this court in 21 W.A.Nos.1935 of 2022 & connected cases ## **Beedi Workers Industrial Co-op. Society v. Kunhikannan** , 1993 (2) KLT 716, it was argued by the learned counsel that the appellants who had participated in the proceedings before the learned Single Judge without raising any objection to the jurisdiction of the court to hear the writ petition, are precluded form contending that the impugned order is passed without jurisdiction. It was also argued by the learned counsel that the High Court is a superior court of unlimited jurisdiction and since it is a court of universal jurisdiction, it cannot be deprived of its ascendancy by showing that some other court could have entertained the particular action. The learned counsel has relied on the decision of the Apex Court in **M.M.Thomas v. State of Kerala,** (2000) 1 SCC 666, in support of the said proposition. It was also argued by the learned counsel that since the order dated 12.02.2019 and the subsequent orders passed so as to implement the order dated 12.02.2019 have not been challenged by the appellants, they are bound by the said orders and the said orders cannot be collaterally attacked by the appellants in the present appeals. The learned counsel has relied on the decision of the Apex Court in **Union of India** 22 W.A.Nos.1935 of 2022 & connected cases **v. S.P. Sharma** , (2014) 6 SCC 351, in support of the said proposition. It was also argued by the learned counsel, placing reliance of the decision of the Apex Court in **L.K. Verma v. HMT Ltd.,** (2006) 2 SCC 269 that once a writ petition was entertained and determined on merits, except in rare cases, the courts shall not interfere in the matter on the ground of existence of alternative remedy. According to the learned counsel, since the learned Single Judges who dealt with the matter having taken conscientious efforts to verify the register of the Society, to compile the bye-laws of the Society etc. which culminated in the final order permitting the conduct of the election to the Society, the same cannot be interfered with, on the ground of existence of alternative remedy. It was also the argument of the learned counsel that unless there is specific provision absolutely barring or ousting the jurisdiction of the particular court from adjudicating the disputes and granting reliefs, then it cannot be said that the particular court lacks jurisdiction to decide upon the matter. It was pointed out by the learned counsel that in the present case, since Section 25 of the Travancore Cochin Literary, Scientific and Charitable 23 W.A.Nos.1935 of 2022 & connected cases Societies Registration Act, 1955 does not expressly bar the jurisdiction of the High court under Article 226, it cannot be said that the High Court does not have jurisdiction to try the matter under Article 226 of the Constitution of India. The learned counsel has relied on the decision of this Court in **Ezhuthachan National Academy v. Gopinathan Nair,** 2019 (2) KLT 1073, in support of the said proposition. 14. We have bestowed our attention to the arguments advanced by the learned counsel for the parties on either side. 15. Even though we find force in the arguments advanced by the learned counsel for the petitioner as to the _locus standi_ of Sri.Ancily Luiz to institute W.A.No.1935 of 2022 on behalf of the Society, we are of the view that it is unnecessary to go into the said aspect inasmuch as the grounds urged in W.A.No.1935 of 2022 are urged by the additional eighth respondent in W.A.No.1994 of 2022 filed by him also and the maintainability of the said writ appeal has not been questioned by the petitioner. 16. As noted, the essence of the various 24 W.A.Nos.1935 of 2022 & connected cases arguments advanced on behalf of the appellants is that the writ petition, insofar as it relates to the prayer for appointment of an Advocate Commissioner to conduct election to the various offices of the Society, is not maintainable and as such, the learned Single Judge ought not have issued the order impugned in W.A.Nos.1935 and 1994 of 2022. 17. Although a writ petition under Article 226 of the Constitution is maintainable against persons and authorities falling within the scope of “State” under Article 12 of the Constitution, even in such cases a writ petition would not lie to enforce private law rights as judicial review is designed to prevent the cases of abuse of power and neglect of duty by public authorities. True, the power under Article 226 could be invoked even against a private body, but such private body must be discharging public functions. Even though a body performing public functions is amenable to writ jurisdiction, all its decisions are not subject to judicial review. Rather, it is only those decisions which have the public element therein that can be judicially reviewed under the writ jurisdiction. The aforesaid propositions have been reiterated by the Apex Court in a recent 25 W.A.Nos.1935 of 2022 & connected cases judgment in **St. Mary's Education Society v. Rajendra Prasad Bhargava** , (2023) 4 SCC 498. As noted, the fourth respondent is only a society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Act and regulated by the provisions contained therein. Insofar as the Society is running a few Schools, even though in matters relating to the administration of the Schools, reliefs could be sought in a proceedings under Article 226 being a matter involving a public element, in matters relating to the administration of the Society such as the election to the various offices of the Society, a writ petition cannot be instituted. No doubt, the Statute, in terms of which the Society is constituted does not provide for a remedy to persons aggrieved by the inaction on the part of the Society in conducting the periodic election to its various offices. The Statute only provides for an application before the District Court within the jurisdiction of which the Society is registered for removing the governing body and appointing a fresh governing body or framing a scheme for the better and efficient management of the Society or for dissolving the Society. But that does not mean that a 26 W.A.Nos.1935 of 2022 & connected cases person aggrieved by the inaction of the part of the Society in conducting the periodic election to its various offices can approach the court under Article 226 of the Constitution. Inasmuch as no remedy is provided for such grievances under the Statute, the party aggrieved can only approach a competent civil court for appropriate relief. Needless to say, if election is not conducted to the various offices of the Society as provided for in the bye-laws, aggrieved persons can only approach a competent civil court for appropriate relief. In fact, the said view has been expressed by this Court in Ext.P7 judgment in relation to the dispute pertaining to the management of the Schools run by the Society. Needless to say, the writ petition, insofar as it relates to the prayer for appointment of an Advocate Commissioner to conduct election to the various offices of the Society, is not maintainable. 18. The proposition aforesaid is not disputed by the learned counsel for the petitioner. Nevertheless, the learned counsel for the petitioner supported the order impugned in W.A.Nos.1935 and 1994 of 2022 mainly on the ground that the various orders passed by the Court 27 W.A.Nos.1935 of 2022 & connected cases commencing from the order dated 12.02.2019 upto the impugned order are orders passed with the consent of parties and that the question of maintainability of the writ petition was not raised by the contesting respondents at any point of time. Other technical grounds were also raised to support the said order. We have perused the counter affidavit filed by the Society as also the counter affidavit filed by the additional eighth respondent in the writ petition and it is seen that both the Society as also the additional eighth respondent have specifically contended in their respective counter affidavits that the writ petition is not maintainable insofar as it relates to the prayer therein for appointment of an Advocate Commissioner to conduct election to the offices of the Society. Paragraphs 5, 9, 10 and 11 of the counter affidavit filed by the Society in the writ petition read thus: “5. It was on the suggestion made by this Hon'ble Court, that all parties agreed for appointment of the Advocate Commissioner to conduct election to the office bearers of the Central Board of Anglo India Education. The agreement was in good faith on the bonafide belief that a free and fair election will be conducted. x x x x x 28 W.A.Nos.1935 of 2022 & connected cases 9. After the appointment of the Advocate Commissioner by this Hon'ble Court and during the process of the steps taken by Advocate Commissioner for preparing the list of members eligible to vote serious disputes have arisen, which are to be adjudicated by adducing evidences. If the list submitted by the 4[th] respondent as per Ext.C8 is not acceptable to anybody the objections or the rival claim only have to substantiate their claim in a civil court by adducing evidence. The Commissioner will not be in a position to decide on the eligibility of the members without taking evidence. 10. Therefore as things stand now the controversy and disputes can be resolved only in a civil suit. In the above circumstance, conducting election through the Advocate Commissioner is a relief not maintainable in law. Any dispute regarding the claims and eligibility of the members other than those included in Ext.C8 list furnished by the 4[th] respondent can be adjudicated only by a competent civil court after taking evidence and not by way of proceedings under Article 226 of the Constitution of India. 11. It is respectfully submitted that during the pendency of this writ petition some of members of the Board has filed a suit as O.S.No.410 of 2019 before Munsiff's Court, Ernakulam for a mandatory injunction to conduct election to office bearers and Administrative Committee of this respondent Board. The Munsiff's Court was pleased to issue summons and notice in I.A.No.2373/2019 the said suit. The Civil Court has is not seized of the matter with respect to the conduct of election to office bearers and Administrative Committee of the 4[th] respondent Board. As held by this Court in Exhibit P7 judgment the disputes are to be resolved by the Civil Court, if no decision of appointment of the chairman as per bylaw is 29 W.A.Nos.1935 of 2022 & connected cases taken by the DPI.“ ## Paragraphs 12 to 14 of the counter affidavit filed by the additional eighth respondent read thus: “12. None of the grounds raised are sustainable. The prayer to appoint Advocate Commissioner to conduct election to the 4[th] respondent cannot be granted. Complicated and disputed questions of facts are involved in the matter. It appears the learned Advocate Commissioner as per Report No.6 dated 262-2021 submitted a final Voters list consisting of 34 persons. The names of many of the members of the 4[th] respondent, including my name, who are eligible for being included in the Voters List, are not seen included in the final Voters list published by the learned Advocate Commissioner. The names of 20 ineligible persons including that of the petitioner is included in the said list. The eligibility of the persons to be included in the voters list is itself a vexed question of fact which can be resolved only by adducing oral and documentary evidence. Moreover, many of the persons shown as eligible in the Voters list prepared by the learned Advocate Commissioner are not members of the 4[th] respondent at all. 13. The Civil Court is already seized of the matter. The factual controversies can be resolved by the said court. The Civil Court is well equipped to deal with situations like the one that arises for consideration in the present case. 14. The question as regards the eligibility for being included in the voters list cannot be decided by summary procedure. Hence it is not appropriate for this honourable court to take up said task and render factual findings. In the facts and circumstances stated above it is most respectfully 30 W.A.Nos.1935 of 2022 & connected cases prayed that this honourable court may be pleased to dismiss the above WP with cost.” In the light of the pleadings aforesaid of the Society and the additional eighth respondent, it cannot be contended that the contesting respondents have not raised the question of maintainability of the writ petition at all. The learned counsel for the petitioner has made available a compilation of the various interim orders passed in the writ petition commencing from 12.02.2019 upto the order impugned in the two appeals referred to above. A perusal of the said orders indicates that the question of maintainability of the writ petition insofar as the relief referred to above is concerned, was not raised by anyone at the time of passing the said interim orders. Inasmuch as the Society and the additional eighth respondent have raised the question of maintainability in the counter affidavits filed by them, we are of the view that they cannot be precluded from raising the question of maintainability in the appeals, merely for the reason that they have not reiterated the same at the time of passing the impugned order. At any rate, it cannot be 31 W.A.Nos.1935 of 2022 & connected cases contended that the order dated 12.02.2019 is one passed with the consent of the additional eighth respondent as he got himself impleaded in the writ petition only much later. 19. Even assuming that none of the parties to the writ petition have raised the question of maintainability of the writ petition in the proceedings before the learned Single Judge, according to us, they cannot be precluded from raising the question of the maintainability of the writ petition in the appeal on that ground, for it is now settled that if a court passes an order without jurisdiction in respect of the subject matter of the action, its validity can be challenged at any stage of the proceedings [See **Kanwar Singh Saini v. High Court of Delhi** , (2012) 4 SCC 307) and **Kiran Singh v. Chaman Paswan** , AIR 1954 SC 340]. Let us now assume that the order impugned in the two appeals referred to above is one passed with the consent of all the parties. According to us, the same also does not improve the case of the petitioner, as conferment of jurisdiction is a legislative function and the same cannot be assumed by any court with the consent of parties [See **Narendra S. Chavan v. Vaishali V. Bhadekar** , (2009) 15 32 W.A.Nos.1935 of 2022 & connected cases ## SCC 166 and **Kalabharati Advertising v. Hemant Vimalnath Narichania** , (2010) 9 SCC 437]. 20. Going by the pleadings in the writ petition, it is essentially one instituted challenging Ext.P8 order. The prayer for appointment of Advocate Commissioner to conduct election to the various offices of the Society is one which is seen to have been made casually without there being any pleading to justify an approach to this Court for such a relief in a proceedings under Article 226 of the Constitution in respect of a private body like the Society. As noted, when the writ petition came up for hearing on 12.02.2019, this Court made a suggestion to appoint an Advocate Commissioner to conduct election to the various offices of the Society and the said suggestion was accepted by the party respondents in the writ petition. The order passed by this Court on 12.02.2019 reads thus: “Considering the nature of dispute this Court suggested to appoint an Advocate Commissioner to elect the office bearer of Central Board of Anglo Indian Education in terms of its byelaw produced as Ext.P1. All parties unanimously agreed for suggestion. Accordingly, this Court appoints Sri.Sahasranaman to conduct election to the office of Central Board of Anglo 33 W.A.Nos.1935 of 2022 & connected cases Indian Education. The Advocate Commissioner shall prepare a draft voters list in accordance with Ext.P1 and place before this Court within two weeks. An initial _batta_ of Rs.50,000/(Rupees fifty thousand only) shall be paid to the Advocate Commissioner by the fourth respondent. For production of draft voters list, post on 26.02.2019”. As evident from the extracted order, the same is issued on the premise that inasmuch as the contesting respondents have no objection to the course suggested by the Court, there is no impediment in conducting an election to the offices of the Society through the process of this Court. It is necessary to note at once that only the Society and its former President were arrayed as parties to the writ petition other than the State and the officials of the General Education Department of the State Government. None of the members of the Society were parties to the writ petition. There was also no publication in the writ petition so as to bring the existence of a writ petition seeking the aforesaid relief to the members of the Society as provided for in Rule 148 of the Rules of the High Court of Kerala also. In other words, the order aforesaid was one passed under a mistaken impression that all persons who would be affected 34 W.A.Nos.1935 of 2022 & connected cases by the election proposed to be conducted through an Advocate Commissioner appointed by this Court are in the array of parties to the writ petition and agreed to the course suggested by the Court. In other words, according to us, the order dated 12.02.2019 is one vitiated by mistake. As argued by the learned counsel for the petitioner, the various orders passed by the Court thereafter upto the order dated 21.11.2022 impugned in W.A.Nos.1935 and 1994 of 2022, are orders issued to give effect to the order dated 12.02.2019. Inasmuch as the order dated 12.02.2019 is vitiated by mistake, according to us, the orders passed subsequent to the said order including the order dated 21.11.2022, are also vitiated by mistake. 21. Now let us consider the arguments advanced by the learned counsel for the petitioner to support of the order impugned in the two appeals referred to above in seriatim. 22. As noted, both the Society as also the additional eighth respondent have contended specifically in the counter affidavits filed by them that the writ petition, insofar as it relates to the prayer for appointment of an Advocate Commissioner for conducting election to the various offices of 35 W.A.Nos.1935 of 2022 & connected cases the Society, is not maintainable. In the light of the contentions aforesaid of the Society and the additional eighth respondent, according to us, the argument advanced based on the decision of the Apex Court in **Beedi Workers Industrial Co-op. Society** _(supra)_ is only to be rejected. 23. In Halsbury's Laws of England (4[th] Edition Vol.10 para 713), it is stated thus: “The chief distinctions between superior and inferior courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and superintendency in certain classes of actions, and cannot be deprived of its ascendancy by showing that some other court could have entertained the particular action.” Placing reliance on the said passage, it was held as follows by the Apex Court in **M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd.** , 1993 Supp (2) SCC 433: 36 W.A.Nos.1935 of 2022 & connected cases “The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction….” The aforesaid passages have been relied on by the Apex Court in **M.M.Thomas** _(supra)_ to hold that the plenary power of the High Courts in India would include the power to review relating to the errors apparent on the face of the record. Paragraph 17 of the said judgment reads thus: “If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record.” We fail to understand as to how the aforesaid judgment would help the petitioner to support the impugned order passed without jurisdiction, especially in the light of the observation made by the Apex Court in **M.V. Elisabeth** _(supra)_ that the unlimited jurisdiction of the High Court could be exercised only in respect of matters over which its jurisdiction is expressly or impliedly barred. The argument based on the decision in 37 W.A.Nos.1935 of 2022 & connected cases ## **M.M.Thomas** _(supra)_ also therefore, fails. 24. There is no merit in the contention raised by the learned counsel for the petitioner that the appellants have not challenged the orders commencing from 12.02.2019 leading to the order impugned in the two appeals referred to above as the same do not affect the rights of the appellants in any manner inasmuch as they are only procedural orders. It is all the more so since they are interlocutory orders which the parties to the proceedings are not obliged to challenge during the pendency of the writ petition unless the same substantially affect their rights. 25. It was held by the Apex Court in **L.K. Verma** _(supra)_ that once a writ petition was entertained and determined on merits, except in rare cases, the courts shall not interfere in the matter on the ground of existence of alternative remedy. The said judgment also, according to us, has no application to the facts of the present case as the same was one rendered in the context of invoking the jurisdiction of the High Court under Article 226 when alternative remedies are available to the parties. The argument that the Statute does 38 W.A.Nos.1935 of 2022 & connected cases not provide for a remedy for conducting election to the offices of the Society through the process of the court and therefore, the power under Article 226 of the Constitution can be invoked, is also without any substance. As indicated, according to us, in such situations, in a case of this nature, the party aggrieved can only invoke the jurisdiction of a competent civil court for redressal of his/her grievance. 26. Even assuming that the Society is an entity amenable to the jurisdiction of this Court under Article 226 of the Constitution, according to us, in the nature of the pleadings of the parties and the contentions raised by them as narrated in initial paragraphs of this judgement, it is not a case where this could have ordered an election to the various offices of the Society through the process of this Court inasmuch as the factual disputes raised by the conducting respondents are such that the same can be resolved only after affording the parties concerned an opportunity to adduce evidence. That apart, as noted, the sustainability or otherwise of the various objections raised to the draft voters list prepared by the Advocate Commissioner by the contesting respondents were not 39 W.A.Nos.1935 of 2022 & connected cases considered by the Court, but by the Advocate Commissioner. As pointed out by the learned counsel for the additional eight respondent, even as per the order impugned in W.A.Nos.1935 and 1994 of 2022, the learned Single Judge permitted the Advocate Commissioner to make appropriate corrections in the draft voters list finalised as per the said order. The procedure aforesaid is unknown to law and the voters list, on the basis of which the election was directed to be conducted, cannot therefore be said to be a valid voters list, which is a mandatory prerequisite for conducting an election. 27. In the light of the discussion aforesaid, the impugned orders are liable to be set aside and we do so. It is, however, made clear that this judgment will not preclude the learned Single Judge from deciding the writ petition on merits, insofar as it relates to prayers (i) to (iv). The writ appeals are disposed of as above. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **SOPHY THOMAS, JUDGE.** YKB 40 W.A.Nos.1935 of 2022 & connected cases ## **APPENDIX OF WA 1994/2022** ## **RESPONDENT EXHIBITS** **Exhibit R1(a)** **True copy of the Counter Affidavit filed by the 1st respondent dated 06.08.2019 filed in I.A. 5 /2019 in WPC 1133/2019.** ## **PETITIONER ANNEXURES** **Annexure P(1)** **True copy of the order dated 3-7-2020 in I.A. No. 5 of 2019 in W.P. (C) No. 1133 of 2019 of this honourable Court** **Annexure P(2)** **True copy of the reply affidavit filed by the Appellant in I.A. No. 5 of 2019 in W.P. (C) No. 1133 of 2019 of this honourable Court** 41 W.A.Nos.1935 of 2022 & connected cases ## **APPENDIX OF WA 1935/2022** ## **RESPONDENT EXHIBITS** **Exhibit R1(a)** **True copy of the Counter Affidavit dated 10.12.2022 filed in R.P. No.1172/2022** ## **PETITIONER ANNEXURES** **Annexure A1** **The true copy of the judgment dated 13.12.2022 in R.P No.1172/2022**