Sri Malolan Educational Trust (Reg.) v. State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 12-08-2009CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.28665 of 2008 and M.P.No.1 of 2008Sri Malolan Educational Trust (Reg.)Rep. by its Authorised Agent Dr.P.N.Sridharan,2/385, First Main Road,A.G.S. Colony, Kottivakkam,Thiruvanmiyur, Chennai-600 041... Petitioner.Versus1.State of Tamilnadu, Rep. by itsSecretary to the Government,Dept. Of School Education,Government of Tamilnadu,Fort St. George,Chennai-600 009.2.The Director of School Education,DPI Complex, Chennai-600 006.3.Joint Director (Higher Secondary)DPI Complex, Chennai-600 006.4. The Registrar of Societies,District Registrar,Additional Inspector General,Societies Registration,Saidapet, Chennai-600 015.5.Sri Ahobila Mutt Samskrita VidhyaAbhivardhini Sabha, representedby its Secretary, Dr.N.V.Vasudevachariar,117, K.R.Koil Street, West Mambalam,Chennai-600 017... Respondents.Prayer: Petition filed seeking for a writ of Certiorarified Mandamusto call for the records relating to the impugned proceedings of thethird respondent in Na.Ka.No.18830/W4/E3/2006, dated 3.5.2008, andquash the same and consequently, direct the third respondent hereinto consider the matter on merits and in accordance with law based onrecords and evidence or refer the matter under Section 53-A of theTamil Nadu Private Schools (Regulation) Act, 1973, (Tamilnadu Act29/74). https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.T.V.Ramanujam, Senior Counsel for Mr.T.V.KrishnamachariFor Respondents : Ms.Dakshayani Reddy Government Advocate (R1 to R4) Mr.R.Sundar Rajan (R5)O R D E RHeard the learned counsel appearing for the petitioner andthe learned counsels appearing for the respondents.2. This writ petition has been filed challenging theproceedings of the Director of School Education, dated 3.5.2008, madein Na.Ka.No.18830/W4/E3/2006. By the said impugned order, theDirector of School Education had stated that the petitioner Trust, toget its relief, of changing the Educational Agency of Sri AhobilaMutt Oriental Higher Secondary School, West Mamabalam, Chennai,should go to the Registrar of Societies and cancel the registrationof the fifth respondent Sabha. In such circumstances, the petitionerTrust has preferred the present writ petition before this Court,under Article 226 of the Constitution of India, challenging the saidproceedings, dated 3.5.2008, and for a consequential direction toconsider the matter, on merits and in accordance with law, based onthe records and the evidence available, under Section 53-A of theTamil Nadu Recognised Private Schools (Regulation) Act, 1973.3. The petitioner Trust has stated that many educationalinstitutions have been established by Sri Ahobila Mutt. One suchinstitution is Sri Ahobila Mutt Oriental Higher Secondary School,West Mamabalam, Chennai. The said school had been established by HisHoliness, the 43rd Jeer of Sri Ahobila Mutt, in the year, 1953. Theland on which the School is housed had been taken on lease by SriAhobila Mutt, for a period of 99 years, by means of a registeredlease deed, dated 10.5.1954. The School has been managed by thesuccessive heads of Sri Ahobila Mutt, from the 43rd Jeer onwards. 4. It has been further stated that by a Government Order inG.O.(Ms.)No.1911, Education and Public Health Department, dated23.7.1962, the Government of Madras, had granted recognition to theOriental Schools founded and run by Sri Ahobila Mutt, under Rule 63of the Madras Educational Rules. While so, in the year 1968, a fewpersons had got together and formed a society and registered the sameunder the banner `Sri Ahobila Mutt Samaskrita Vidya AbhivardhiniSabha', the fifth respondent herein. 5. It was stated that the formation of such a registeredSociety was necessary due to the fact that the Tamil Nadu RecognisedPrivate Schools (Regulation) Act, 1973, had come into force.Subsequently, some of the persons appointed by His Holiness forlooking after the educational institutions, had also registered aSociety, under the Tamil Nadu Societies Registration Act, 1975. https://hcservices.ecourts.gov.in/hcservices/

6. Thereafter, in the year 1982, certain disputes had arisenamongst the members of the Society, resulting in litigation. A suitin C.S.No.221 of 1986 had been filed before this Court, for adeclaration that the Sri Ahobila Mutt Oriental Higher SecondarySchool, West Mambalam, Chennai, was owned by Sri Ahobila Mutt andthat the fifth respondent Sabha and its members have no right tomanage, or to administer the schools and for a permanent injunctionrestraining the fifth respondent Sabha from interfering with themanagement of the educational institutions and for a mandatoryinjunction, directing the defendants therein to hand over therecords, and for other reliefs. 7.By an order of injunction, dated 11.4.1986, the defendantsand all other persons claiming through them were restrained frominterfering with the management and administration of the Sri AhobilaMutt Oriental Higher Secondary School, West Mambalam, Chennai, duringthe pendency of the suit. Subsequently, the suit had been transferredto the City Civil Court, Chennai, and re-numbered as O.S.No.3395 of1996. During the pendency of the suit a settlement had been madebetween the members of the fifth respondent Sabha and His Holinessthe 45th jeer of Sri Ahobila Mutt. 8. By an order, dated 6.8.1999, the suit in O.S.No.3395 of1996, had been dismissed, as settled out of Court. However, a suit inC.S.No.16 of 2004, had been filed before this Court, praying for apermanent injunction to restrain the defendants therein, includingthe fifth respondent Sabha in the present writ petition, frominterfering with the plaintiff's possession and management of SriAhobila Mutt educational institutions at Madurantakam and for otherreliefs.9. It has been further stated that the fifth respondent Sabhahad started acting in a unilateral manner, contrary to the objectsfor which it had been formed. Therefore, His Holiness the 45th Jeer ofSri Ahobila Mutt had revoked the permission given to the fifthrespondent Sabha by his office order, dated 17.1.2004, and he hadappointed the petitioner Trust to manage the affairs of the School. 10. In spite of many requests the fifth respondent Sabha hadfailed to hand over the records, accounts and vouchers to HisHoliness. Since the fifth respondent Sabha was evading from its dutyto hand over the records to the petitioner Trust, a representation,dated 24.1.2005, had been submitted to the Joint Director ofEducation, Chennai, who is the competent authority. Copies had beenmarked to the District Educational Officer, the Chief EducationalOfficer, Chennai, and the other authorities stating that thepetitioner Trust is the educational agency in respect of theeducational institutions run by the petitioner Trust. Thereafter,several other representations had also been made. https://hcservices.ecourts.gov.in/hcservices/

11. A writ petition, in W.P.No.3741 of 2006, had been filedbefore this Court praying for a Writ of Mandamus to direct the thirdrespondent, the Joint Director (Higher Secondary), Chennai, toconsider the representations, dated 24.1.2005, 11.2.2005, and10.3.2005. By an order, dated 11.7.2006, this Court had passed anorder directing the respondents in the said writ petition, namely,the Joint Director (Higher Secondary) and the Chief EducationalOfficer, to consider the said representations of the petitionerTrust.12. It had been further stated that the petitioner Trust hadreceived an order, dated 30.3.2006, from the Joint Director (HigherSecondary), wherein, it had been stated that the fifth respondentSabha, represented by Dr.N.V.Vasudevachariar, was to furnish certainparticulars. In the said order, it had been stated that the fifthrespondent Sabha had been registered under the Tamil Nadu SocietiesRegistration Act, 1975, and that the educational agency has beenregistered before the Registrar of Societies and that His Holiness ofSri Ahobila Mutt should take steps to cancel the registration, underthe provisions of the Tamil Nadu Societies Registration Act, 1975,and that till such steps had been taken no further action would beinitiated. 13. Aggrieved by the said order, dated 30.3.2006, thepetitioner Trust had filed an appeal before the appellate authority,namely, the Director of School Education, raising various grounds.Since there was a delay of 9 days in filing the appeal, the appellateauthority had passed an order declining the request of the petitionerTrust to condone the delay of nine days. Therefore, the appeal hadbeen rejected, by an order, dated 9.5.2006. 14. Aggrieved by the said order, a revision petition has beenpreferred by the petitioner Trust to the Secretary of the State ofTamil Nadu, Education Department, on 23.5.2006. Since the saidrevision petition was pending for a long time, a writ petition hadbeen moved by the petitioner Trust before this Court, in W.P.No.31804of 2006. By an order, dated 8.9.2006, the first respondent thereinhad been directed to hear and dispose of the revision petition filedby the petitioner Trust. However, the State Government had passed anorder, dated 16.2.2007, dismissing the revision petition. 15. Aggrieved by the said order of the first respondent, awrit petition, in W.P.No.9715 of 2007, had been filed before thisCourt. The said writ petition had been allowed, on 15.3.2007, settingaside the order passed by the first respondent. A direction had alsobeen issued to the appellate authority, the second respondenttherein, on 9.5.2006, to hear the appeal that had been filed by thepetitioner Trust. The direction had been issued to the secondrespondent to pass appropriate orders, within a period of four weeksfrom the date of the production of a copy of the order. However, theappellate authority, the second respondent herein, had passed a vague https://hcservices.ecourts.gov.in/hcservices/ order, dated 3.5.2008, stating that the petitioner Trust should gobefore the Registrar of Societies and to cancel the registration ofthe fifth respondent Sabha. Such a procedure is unknown to law. 16. The learned counsel for the petitioner Trust had furtherstated that Sri Ahobila Mutt Oriental Higher Secondary School, wasfounded by Sri Ahobila Mutt, in the year, 1952 and it is theabsolute owner of the School. The concerned authorities of theeducation Department had granted recognition to the schoolsmaintained by Sri Ahobila Mutt, in the year, 1962, vide G.O.(Ms.)No.1911, Education and Public Health Department, dated 23.7.1962 andin Government Memo No.48725/I-3/66-18, Director of School Education44554/66, dated 31.12.1969. Thus, Sri Ahobila Mutt is the educationalagency of the School, in accordance with the provisions of the theTamil Nadu Recognised Private Schools (Regulation) Act, 1973. 17. The learned counsel for the petitioner Trust had furtherstated that the fifth respondent Sabha had been found only in theyear, 1968 and it had managed the School only on behalf of SriAhobila Mutt, by forming a School Committee, from time to time, asper the the Tamil Nadu Recognised Private Schools (Regulation) Act,1973. The fifth respondent Sabha does not own the School, nor theland on which the School building is situated. Sri Ahobila Mutt,which is the owner and the educational agency of the School, hadrevoked the permission given to the fifth respondent Sabha to run theSchool, through a letter, dated 17.1.2004. 18. It has been further stated that the third respondent hadfailed to see that Sri Ahobila Mutt, headed by the present HisHoliness Jeer of Sri Ahobila Mutt, is the owner of Sri Ahobila MuttOriental Higher Secondary School, West Mambalam, Chennai, and as theeducational agency, the said Mutt is entitled to appoint the SchoolCommittee, which would decide as to who should manage the School,from time to time. The directions given by the second and thirdrespondents, that the petitioner Trust should go to the Registrar ofSocieties, to carry out certain formalities, under the Tamil NaduSocieties Registration Act, 1975, are improper and illegal. Suchdirections are not contemplated by the provisions of the the TamilNadu Recognised Private Schools (Regulation) Act, 1973. Since thesaid order had been passed without appreciating the facts and thecircumstances of the case and as it has been issued contrary to thedirections issued by this Court, in its order, dated 15.3.2007, madein W.P.No.9715 of 2007, the impugned order is arbitrary, illegal andvoid.19. In the counter affidavit filed on behalf of the fifthrespondent Sabha the averments and allegations made by the petitionerTrust have been denied. It has been stated that the trustees of thepetitioner Trust had chosen to file the present writ petitionauthorising Mr.P.N.Sridharan to act on their behalf. Though the writpetition is alleged to have been filed by the registered Trust, ithas not been represented by the managing trustees or the Chairman of https://hcservices.ecourts.gov.in/hcservices/ the Trust. The Constitution of the Trust had not been disclosed. TheScheme of the Trust does not permit the delegation of its powers to athird party. Therefore, the writ petition is not maintainable in law.20. In fact, Section 47 of The Indian Trusts Act, 1882, doesnot permit delegation. The document produced by the petitioner Trust,by which it has claimed that Dr.P.N.Sridharan has been authorised todo all acts and things on behalf of the petitioner Trust, is only theminutes of the meeting of the Board of Trustees, said to have beenheld, on 21.10.2008, wherein, a resolution is said to have beenpassed. The petitioner Trust, in fact, had not authorised,Dr.P.N.Sridharan, to file the present writ petition or the suit inC.S.No.16 of 2004, before this Court. Therefore, Dr.P.N.Sridharan,does not have the locus standi to file the present writ petition, onbehalf of the petitioner Trust. Since there is no dispute between aneducational agency and the fifth respondent Sabha, the educationalauthorities concerned cannot invoke Section 53-A of the Tamil NaduRecognised Private Schools (Regulation) Act, 1973. The petitionerTrust cannot be called as an educational agency, under Section 2(3)of the the Tamil Nadu Recognised Private Schools (Regulation) Act,1973. 21. The main claim of the petitioner Trust is that they wantonly the transfer of the agency and the management of Sri AhobilaMutt Oriental Higher Secondary School, West Mambalam, Chennai. Sincethe petitioner Trust is not an educational agency, it cannot raise adispute before the educational authorities concerned. In fact, thepetitioner Trust is a stranger to the said school. Since there is nodispute between two educational agencies, Section 53-A of the theTamil Nadu Recognised Private Schools (Regulation) Act, 1973, cannotbe invoked in the present case. 22. In view of the submissions made by the learned counselsappearing on behalf of the petitioner, as well as the respondents andon a perusal of the records available, it is clear that there hasbeen a long standing dispute between the petitioner Trust and thefifth respondent Sabha. Various civil suits and writ petitions hadbeen filed before this Court, as well as the Civil Courts, wherein,many issues had been raised, including the issue relating to themanagement of Sri Ahobila Mutt Oriental Higher Secondary School, WestMambalam, Chennai. 23. On a perusal of the records relating to C.S.No.16 of2004, pending before this Court, it is seen that the said suit hasbeen filed by one Dr.P.N.Sridharan, wherein the fifth respondentSabha had been arrayed as the first defendant. The said suit has beenfiled praying for a permanent injunction to restrain the defendantstherein and their agents and servants from, in any way, interferingwith the plaintiff's possession and management of Sri Ahobila MuttEducational Institution at Madurantakam. The present writ petitionhas been filed by Dr.P.N.Sridharan, said to be the authorised agentof the petitioner Trust. https://hcservices.ecourts.gov.in/hcservices/

24. The prayer in the present writ petition is for a writ ofCertiorarified Mandamus to call for and quash the proceedings of theDirector of School Education, dated 3.5.2008, stating that thepetitioner Trust should approach the Registrar of Societies, to alterthe name of the educational agency, before the other issues raisedbefore him could be gone into. The petitioner Trust has placed beforethis Court an order, dated 15.3.2007, passed by this Court, inW.P.No.9715 of 2007, wherein a direction has been issued to thesecond respondent therein for fresh consideration of the appeal filedby the petitioner Trust, on merits and in accordance with law, withina specified period. However, the Director of School Education,Chennai, the second respondent herein, had passed the impugned order,dated 3.5.2008, without going into the merits of the matter, contraryto the directions issued by this Court, by its order, dated15.3.2007. 25. At the time of the hearing of the present writ petition,the learned counsel appearing on behalf of the petitioner Trust hadsubmitted that it would suffice if the impugned order of the secondrespondent, dated 3.5.2008, is set aside and the matter is remittedback to the third respondent for its decision, on the merits of thematter, under Section 53-A of the Tamil Nadu Recognised PrivateSchools (Regulation) Act, 1973, after hearing the petitioner Trust,as well as the fifth respondent Sabha, and the other partiesconcerned, if any, and pass appropriate orders thereon, in accordancewith law, within a specified period.26. In view of the submissions made on behalf of the partiesconcerned and on considering the facts and circumstances of thepresent case, this Court finds it appropriate to set aside theimpugned order of the Director of School Education, dated 3.5.2008,and to remit the matter back to the third respondent, namely, theJoint Director (Higher Secondary), to consider the matter, afresh, onmerits and in accordance with law, as prayed for by the petitioner. 27. Accordingly, the impugned order of the second respondent,dated 3.5.2008, is set aside and the matter is remitted back to thethird respondent to be heard, on merits and in accordance with law,after giving a reasonable opportunity of hearing to the petitioner,the fifth respondent Sabha and the other parties concerned, if any,and for passing appropriate orders thereon, within a period of twelveweeks from the date of receipt of a copy of this order. It is madeclear that it would be open to the fifth respondent Sabha to raiseall the issues before the concerned authority hearing the matter,under Section 53-A of the the Tamil Nadu Recognised Private Schools(Regulation) Act, 1973. However, if the concerned authority,authorised to hear the matter, under Section 53-A of the the TamilNadu Recognised Private Schools (Regulation) Act, 1973, is of theconsidered opinion that the matter involves intricate disputedissues, which have to be necessarily decided by a civil forum, itwould be open to the said authority to refer the dispute to the https://hcservices.ecourts.gov.in/hcservices/ appropriate civil forum for the adjudication of the dispute, inaccordance with the procedures established by law. Accordingly, thewrit petition is disposed of with the above directions. No costs.Consequently, connected miscellaneous petition is closed. Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarcshTo1. The Secretary to the Government,Dept. of School Education,Government of Tamilnadu,Fort St. George,Chennai-600 009.2.The Director of School Education,DPI Complex, Chennai-600 006.3.The Joint Director (Higher Secondary)DPI Complex, Chennai-600 006.4. The Registrar of Societies,District Registrar,Additional Inspector General,Societies Registration,Saidapet, Chennai-600 015.+ 1 cc to Government Pleader,SR..38256+ 1 cc to Mr.T.V.Krishnamachari,Advocate,SR.37902+ 2 CC to Mr.R.Sundar Rajan,Advocate,SR.37886Writ Petition No.28665 of 2008KA(CO)EM/26.8.09