W.A.No.1756 of 2019 & W.A.No.1983 of 2019, High Court of Kerala at Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** ## **WA.No.1756 OF 2019** **AGAINST THE JUDGMENT DATED 12.07.2019 IN WP(C) 15962/2019(U) OF HIGH COURT OF KERALA** ## **APPELLANT/2ND RESPONDENT:** **C.N.SAJEEVAN AGED 51 YEARS** **CHIRAKKAL NARAYANAN, PERUMPILLISSERY P.O., CHERPPU, THRISSUR, PIN - 680 561** **BY ADV. SRI.S.EASWARAN** ## **RESPONDENTS – PETITIONER AND 2ND RESPONDENT IN W.P:** - **1 THE EZHUTHACHAN EDUCATIONAL SOCIETY REG.NO.322/92, EZHUTHACHAN SAMAJAM OFFICE, THRISSUR - 680 020, REPRESENTED BY ITS SECRETARY SRI.P.S.JAYAGOPAL, AGED 52, S/O.SANKARANARAYANAN, UDAYA NAGAR, AYYANTHOLE P.O., THRISSUR.** - **2 THE DISTRICT REGISTRAR (GENERAL) CHEMBUKAVU, THRISSUR - 680 020.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2019, ALONG WITH WA.1983/2019, THE COURT ON 07.11.2019 DELIVERED THE FOLLOWING:** W.A.Nos.1756 of 2019 & 1983 of 2019 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** **WA.No.1983 OF 2019** **AGAINST THE JUDGMENT DATED 12.07.2019 IN WP(C) 15962/2019(U) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **THE EZHUTHACHAN EDUCATIONAL SOCIETY, REG. NO. 322/92, EZHUTHACHAN SAMAJAM OFFICE, THRISSUR 680 020, REPRESENTED BY ITS SECRETARY, SRI P.S JAYAGOPAL, AGED 52, S/O. SANKARANARAYANAN, UDAYA NAGAR, AYYANTHOLE P.O, THRISSUR** **BY ADVS. SRI.DINESH R.SHENOY SRI.P.ROHIT PREMANANDAN SHENOY** ## **RESPONDENTS/RESPONDENTS:** - **1 THE DISTRICT REGISTRAR (GENERAL), CHEMBUKKAVU, THRISSUR 680 020** - **2 SRI C.N SAJEEVAN, AGED 51 YEARS** **S/O. CHIRAKKAL NARAYANAN, PERUMPILLISSERY P.O, CHERPPU, THRISSUR, PIN 680 561** **SR.GP.SRI. ARAVIND KUMAR BABU** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2019, ALONG WITH WA.1756/2019, THE COURT ON 07.11.2019 DELIVERED THE FOLLOWING:** 3 W.A.Nos.1756 of 2019 & 1983 of 2019 ## **C.K.ABDUL REHIM, Ag.CJ &** ## **R.NARAYANA PISHARADI, J.** ************************** W.A.Nos.1756 of 2019 & 1983 of 2019 ---------------------------------------------Dated this the 7[th] day of November, 2019 ## **J U D G M E N T** ## **R.Narayana Pisharadi, J** These two writ appeals arise out of the judgment of the learned Single Judge of this Court in W.P.(C) No.15962/2019. The second respondent in the writ petition is the appellant in W.A.No.1756/2019. The writ petitioner is the appellant in W.A.No.1983/2019. 2. The issue in the writ petition and the appeals relates to the fight between two factions, one led by Sri.P.S.Jayagopal and the other led by Sri.C.N.Sajeevan, claiming the right to manage the affairs of the Ezhuthachan Educational Society (hereinafter referred to as 'the Society') which is registered W.A.Nos.1756 of 2019 & 1983 of 2019 4 under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (hereinafter referred to as 'the Act'). The society is said to be a body constituted by the Ezhuthachan Samajam (hereinafter referred to as 'the Samajam') for running the affairs of the educational institutions of the Samajam. 3. The writ petition was filed by P.S.Jayagopal representing himself as the Secretary of the Society. He alleged that Sajeevan, the second respondent in the writ petition, was expelled from the Samajam on 12.01.2017 and consequently, he was also expelled from the Society. In a suit filed by the Samajam as O.S.No.175/2017, Sajeevan produced a copy of the minutes of the meeting of the Samajam held on 01.01.2017 in which he was allegedly elected as the Secretary of the Samajam and also the Society. The writ petitioner and others have filed a suit in the Munsiff's Court, Thrissur as O.S.No.1484/2017 (representing themselves as the office bearers of the Society) against Sajeevan and another for granting a decree of declaration W.A.Nos.1756 of 2019 & 1983 of 2019 5 that they are the office-bearers of the Society. 4. Sajeevan had filed a list before the District Registrar, the first respondent in the writ petition, showing the names of the persons who were allegedly elected as the office-bearers of the Society in the meeting allegedly held on 01.01.2017. The list was accepted by the office of the District Registrar. Jayagopal filed objection on 22.03.2017 to the acceptance of the aforesaid list. As per Ext.P23 order dated 05.03.2018, the District Registrar cancelled the acceptance of the list filed by Sajeevan and allowed Jayagopal to file the list. 5. Sajeevan challenged Ext.P23 order in W.P.(C) No.37708/2018 filed before this Court. As per Ext.P24 judgment dated 26.02.2019, a learned Single Judge of this Court set aside Ext.P23 order and also the order passed by the District Registrar accepting the list filed by Jayagopal and directed the District Registrar to take a fresh decision after hearing the representatives of both factions. 6. Sajeevan challenged Ext.P24 judgment by filing W.A.Nos.1756 of 2019 & 1983 of 2019 6 W.A.No.779/2019. As per Ext.P25 judgment dated 12.03.2019, a Division Bench of this Court partially allowed the aforesaid writ appeal and modified the direction given by the learned Single Judge in Ext.P24 judgment and directed that the District Registrar shall consider only the objection filed by Jayagopal and others against the original decision accepting the list filed by Sajeevan and the application for accepting the list filed by them (Jayagopal and others). 7. Thereafter, the District Registrar passed Ext.P27 order dated 27.03.2019 accepting the list filed by Sajeevan. Then, Jayagopal challenged Ext.P27 order before this Court in W.P.(C) No.10938/2019. As per Ext.P28 judgment in that writ petition, a learned Single Judge of this Court set aside Ext.P27 order of the District Registrar finding that it is a cryptic order without showing any reasons and directed the District Registrar to pass a fresh order after hearing the parties. 8. Thereafter, the District Registrar passed Ext.P30 order dated 29.05.2019, accepting the list filed by Sajeevan and W.A.Nos.1756 of 2019 & 1983 of 2019 7 rejecting the list filed by Jayagopal. It was also directed by the District Registrar that election of the new office-bearers of the Society shall be held without any change in the list of members of the Society. Jayagopal filed W.P.(C) No.15962/2019 challenging Ext.P30 order passed by the District Registrar. 9. As per the impugned judgment in W.P.(C) No.15962/2019, the learned Single Judge held that acceptance of a list of the office-bearers of the Society by the District Registrar can be made only after conducting enquiry to arrive at a prima facie satisfaction that a general election was held and the persons who are shown in the list are duly elected but the District Registrar has got no power of adjudication of the dispute. The learned Single Judge also held that a problem would arise when two sets of lists are furnished based on the annual general meeting and if the Registrar is unable to accept such lists of the parties without adjudication based on evidence, he should relegate the parties to approach the civil court where it could be adjudicated based on evidence. The learned Single Judge further W.A.Nos.1756 of 2019 & 1983 of 2019 8 held that when there is overwhelming evidence for taking a _prima facie_ view of accepting one's list, he should accept the list and relegate the other party to approach the civil court. It was further held that disputed questions of fact regarding the conducting of meeting and election cannot be decided by the District Registrar on enquiry. Ultimately, the learned Single Judge allowed the writ petition and set aside Ext.P30 order and directed the parties to approach the civil court to vindicate their rights to represent the Society. 10. Sajeevan has filed W.A.No.1756/2019 challenging the judgment of the learned Single Judge allowing the writ petition. Jayagopal has filed W.A.No.1983/2019 challenging certain observations made by the learned Single Judge in the impugned judgment regarding his right to represent the Society. 11. We have heard Sri.S.Easwaran, learned counsel for the appellant in W.A.No.1756/2019 and Sri.Dinesh R.Shenoy, learned counsel for the appellant in W.A.No.1983/ 2019 and also the learned Government Pleader. W.A.Nos.1756 of 2019 & 1983 of 2019 9 12. Section 7 of the Act deals with general meetings and minutes of proceedings of such meetings of a society registered under the Act. Sections 7(1) to (3) of the Act are extracted below: _“_ _**7. General meetings and minutes of proceedings of such meetings.-** (1) It shall be the duty of the governing body of a society to convene the first general meeting of the society within 18 months from the date of its registration and thereafter once at least in every calendar year and not more than 14 months after the holding of the last preceding meeting._ _(2) At the annual general meeting so held, election of members to the governing body shall be made as provided for in the rules and regulations of the society, provided the minimum number of persons in the governing body shall be three._ _(3) A list of the members of the first governing body of a society shall be filed with the Registrar within fourteen days from the date of registration of the society and thereafter the list of the governing body shall be filed with the Registrar within fourteen days after the date of the annual general meeting.”_ W.A.Nos.1756 of 2019 & 1983 of 2019 10 13. Section 7(3) of the Act provides for filing of the list of the members of the governing body of the society with the Registrar. Section 4 of the Societies Registration Act, 1860 contains a similar provision for filing the list of the Governors, Directors etc. of a society registered under that Act. Dealing with the scope of Section 4 of the Societies Registration Act, in **C.M.Z.Musliar v. Aboobacker : 1998(1) KLT 136,** a Division Bench of this Court has held as follows: _“The filing of the returns with regard to the office bearers is for a purpose. The mere fact that the section does not clearly state that the Registrar has got power with regard to the acceptance of the returns does not mean that he can accept any number of returns with regard to the same society. That will not serve the purpose of filing of the returns as contemplated. Thus, in the case of a dispute when more than one return is filed, the Registrar has got the power to find out as to which one he should accept. There may not be an elaborate enquiry. Prima facie he has to satisfy as to which return is to be accepted._ In _this case, we find that the list given by the appellant was accepted, because it had the support of court_ W.A.Nos.1756 of 2019 & 1983 of 2019 11 _orders and also it was being followed for a large number of years. No doubt, such an enquiry made by the Registrar and the decision taken from it does not become final. The party can take up the matter before a competent court as to who are the members of the governing body”_ (emphasis supplied). Relying upon the aforesaid decision, learned counsel for the appellant Sajeevan, would contend that the District Registrar has got power to conduct an enquiry and decide which list shall be accepted. 14. On a perusal of the decision in **C.M.Z.Musliar** (supra) we find that what the Division Bench of this Court has stated therein was only that, when list is filed by rival factions, the Registrar has got power to conduct an enquiry to reach a prima facie satisfaction as to which list shall be accepted by him. The Division Bench has categorically stated that the enquiry to be conducted by the Registrar is not an elaborate enquiry. We find nothing in the aforesaid decision of the Division Bench of this Court laying down any dictum that the Registrar has got power to adjudicate the disputes between the rival factions with regard to W.A.Nos.1756 of 2019 & 1983 of 2019 12 their right to be the office-bearers of the society. On the other hand, the Division Bench has categorically held that the decision taken by the Registrar is not final and that the parties can approach the civil court to decide the dispute as to who are the members of the governing body. 15. In this context, it is to be noted that the decision of this Court in **C.M.Z.Musliar** (supra) was approved by the Supreme Court in **A.P.Aboobaker Musaliyar v. District Registrar : (2004) 11 SCC 247** , holding as follows: _“It is clear from what is stated above by the Division Bench that the enquiry made by the Registrar and the decision taken did not become final and the party could take up the matter before a competent court as to who were the members of the governing body. When there were two lists, the District Registrar, prima facie, on being satisfied, accepted the list filed by E.K. Aboobaker as he was filing the lists for the previous years also. The District Registrar has only taken into consideration the limited question of accepting the list of members of the governing body. The Division Bench of the High Court was right in_ W.A.Nos.1756 of 2019 & 1983 of 2019 13 _taking the view that the list accepted by the District Registrar did not become final; if the appellant was aggrieved, it was open to him to establish his claim in a competent court/forum. To us, it appears even the District Registrar did not adjudicate any dispute as such. It was only a question of accepting, prima facie, the list of members of the governing body. If the appellant's claim was right and justified, merely because the District Registrar accepted the list of the governing body of members given by E.R. Aboobaker, it did not prevent him from establishing his claim in a competent court”._ 16. When rival factions have filed lists as contemplated under Section 7(3) of the Act and when there is also dispute as to the convening of the general body meeting and the validity of the meeting and also the election of the office-bearers of the society, the validity of the lists filed cannot be determined by the District Registrar in a summary enquiry. Adducing of evidence would obviously be necessary to decide such disputes. A dispute as to the right to hold an office of a society, being a civil right, has to be decided by the competent forum which is the civil 14 W.A.Nos.1756 of 2019 & 1983 of 2019 court. 17. In the case at hand, the faction led by Jayagopal has already instituted a suit in the Munsiff's Court, Thrissur as O.S.No.1484/2017 for granting a decree of declaration that they are the duly elected members of the governing body of the Society. Learned Single Judge has only directed the parties to approach the civil court to establish their right to represent the Society. Learned counsel for the appellant Sajeevan would contend that he is not bound to institute a suit for establishment of his right as Secretary of the Society since the District Registrar had accepted the list filed by him. If any person has got any grievance that his civil right is violated or denied by any other person, it is for him to establish such right through a civil court. Of course, it is his choice to approach the civil court or not. In the instant case, the appellant Sajeevan can also resist the suit filed by the faction led by Jayagopal. In this connection, it is to be noted that the learned Single Judge has made it clear in the impugned judgment that this Court has not declared the list W.A.Nos.1756 of 2019 & 1983 of 2019 15 furnished by Sajeevan as invalid nor it has accepted the right of Jayagopal to represent the governing body of the Society. 18. The appellant Jayagopal is aggrieved by certain findings and observations made by the learned Single Judge in the impugned judgment. In paragraph 3 of the impugned judgment, the learned Single Judge has stated as follows: _“This writ petition is filed by the Society which is represented by Jayagopal. At the outset, I must say that since the right to represent the Society has not been recognized so far, the writ petition could not have been filed by the Society represented by Jayagopal. Further, the Society itself cannot be aggrieved by the orders of the District Registrar.”_ ## 19. Again in paragraph 22 of the impugned judgment, the learned Single Judge has stated as follows: _“Before parting the judgment, I must say when there is a dispute in regard to the election in a registered society, the parties cannot represent the Society and file the writ petition on behalf of the Society. The respondent in an earlier occasion and Jayagopal in this writ petition has adopted a_ W.A.Nos.1756 of 2019 & 1983 of 2019 16 _course to vindicate their individual cause as the cause of the Society. Therefore, the writ petition in all respects would be treated as a writ petition filed by Jayagopal in his individual capacity and not as a representative of the Society. This Court had not examined the right of Jayagopal and his faction to represent the Society. The question of constitution of a governing body will have to be decided by the civil court. None of the parties can claim that they are entitled to represent the Society unless it is duly acknowledged through resolution by the civil court and acceptance of the subsequent list by the Registrar.”_ 20. We do not find any error, impropriety or illegality in the aforesaid observations made by the learned Single Judge. When the right of the rival parties to represent the Society is in dispute and when such dispute is pending before a civil court, it is not proper for any such party to file a writ petition representing the Society to agitate his individual causes. We also make it clear that the writ appeal filed by Jayagopal shall be treated as an appeal filed by him in his individual capacity. 21. Before parting with the judgment, we take note of the W.A.Nos.1756 of 2019 & 1983 of 2019 17 fact that the dispute raised in the proceedings before the District Registrar which led to the passing of Ext.P30 order and also the dispute in the writ petition and the writ appeals relate to the list filed by Sajeevan on 05.01.2017 before the District Registrar for the year 2016-2017 and the list filed by Jayagopal for the years 2016-2017 and 2017-2018. As per Section 7(1) of the Act, a society registered under the Act has to conduct general meeting once atleast in every calendar year before the expiry of the period of 15 months after the holding of the last preceding meeting. As per Section 7(3) of the Act, the list shall be filed with the Registrar within 14 days after the date of the annual general meeting. Therefore, the dispute in the writ petition and the appeals, which relates to the lists filed for the years 2016 to 2018, has practically become infructuous. 22. Consequently, the writ appeals are dismissed We make it clear that the suit, if any, pending before the competent civil court in relation to the same issue involved in the writ petition or the writ appeals or any such suit which may be filed, W.A.Nos.1756 of 2019 & 1983 of 2019 18 shall be decided by the civil court untrammeled by any of the observations contained in the impugned judgment or in the present judgment in the writ appeals as to the right of the rival parties to be the office-bearers of the Society. No costs. (sd/-) **C.K.ABDUL REHIM, JUDGE** (sd/-) **R.NARAYANA PISHARADI, JUDGE** **jsr/09/10/2019** 19 W.A.Nos.1756 of 2019 & 1983 of 2019 ## **APPENDIX OF WA 1983/2019** ## **APPELLANT'S EXHIBITS:** **ANNEXURE A1** **TRUE PHOTOCOPY OF I.A NO 5787/2017 IN O.S NO. 1484/2017, IIIRD ADDITIONAL MUNSIFF COURT, THRISSUR, TOGETHER WITH TRANSLATION.** RESPONDENTS' EXHIBITS: NIL TRUE COPY PS TO JUDGE