Allowed

B.v.Sakeena Beevi by Power of Attorney Holder Rasheek Ahamed v. Director of Public Instruction

Kerala HC11 Oct 2021WP(C)/16913/2013

Case brief

AI extract

What is this about?

Petitioner challenged orders regarding change of ownership and management of Aleemul Islam Higher Secondary School. Court held that 8 out of 9 legal heirs agreed to the transfer, so the order stands. Regarding management dispute, stayed as the respondent manager died.

What did the court decide?

W.P.(C) No.16913/2013 dismissed. W.P.(C) No.23618/2015 disposed of with directions to give decision on new representation within two months.

B.v.Sakeena Beevi by Power of Attorney Holder… — Education and Admissions | Kerala HC (2021)

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WP(C)NOs.23618/2015 & 16913/2013

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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MONDAY, THE 11^TH DAY OF OCTOBER 2021 / 19TH ASWINA, 1943

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WP(C) NO. 23618 OF 2015

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PETITIONER:

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B.V.SAKEENA BEEVI

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BY POWER OF ATTORNEY HOLDER RASHEEK AHAMED, BUKARAYIL AYITTANDIYIL, P.O.MATHILAKAM, THRISSUR-680 685.

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BY ADVS. SRI.P.RAVINDRAN (SR.) SRI.SREEDHAR RAVINDRAN

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RESPONDENTS:

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1 DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THYCAUD P.O., THIRUVANANTHAPURAM-695 014.

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2 B.V.MOHAMMED RAFY THANGAL @MUHAMMED RAPHY THANGAL BUKHARAYIL VALAPPIL HOUSE, POST PADOOR, THRISSUR DISTRICT-680 524.

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3 MUSLIM VEETTIL CHALACKAL AHAMED HAJI ALIAS HAJI AHMED MOHIDDIN CHALACKAL, S/O. MOIDUNNI, ENGANDIYUR, KUNDALIYUR P.O., CHETUVA, THRISSUR DISTRICT-680 616.

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4 ADDL R4, SAKEENA BEEVI, W/O,. MOHAMMED RAFI THANGAL, BUKHARAYIL VALAPPIL, PADOOR.P.O, THRISSUR DISTRICT-680 524

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5 ADDL R5, B.V.RAFEEQ THANGAL ALIAS SYED MOHAMMED RAFEEQ THANGAL S/O.MOHAMMED RAFI THANGAL, BUKHARAYIL VALAPPIL, PADOOR. P.O, THRISSUR DISTRICT-680 524.

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6 ADDL R6, SOUDHA BEEVI.B.V. D/O.MOHAMMED RAFI THANGAL, BUKHARAYIL VALAPPIL, PADOOR. P.O, THRISSUR DISTRICT-680 524.

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7 ADDL R7, SYED MOHAMMED SHAFEEK THANGAL,

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WP(C)NOs.23618/2015 & 16913/2013 2

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S/O. MOHAMMED RAFI THANGAL, BUKHARAYIL VALAPPIL, PADOOR.P.O, THRISSUR DISTRICT-680 524. ARE IMPLEADED AS PER ORDER DATED 2-12-2019 IN IA 1/2019.

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BY ADVS. K.JAJU BABU (SR.) SRI.G.SREEKUMAR (CHELUR) M.U.VIJAYALAKSHMI BRIJESH MOHAN RESMI G. NAIR

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SMT.NISHA BOSE, SR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.10.2021, ALONG WITH WP(C).16913/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C)NOs.23618/2015 & 16913/2013

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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MONDAY, THE 11^TH DAY OF OCTOBER 2021 / 19TH ASWINA, 1943 WP(C) NO. 16913 OF 2013

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PETITIONER:

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B.V.SAKEENA BEEVI BY POWER OF ATTORNEY HOLDER RASHEEK AHAMED BUKARAYIL AYITTANDIYIL, P.O, MATHILAKAM, THRISSUR 680685 BY ADVS. SRI.P.RAVINDRAN (SR.) SRI.SREEDHAR RAVINDRAN

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RESPONDENTS:

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1 DIRECTOR OF PUBLIC INSTRUCTION JAGATHY, THYCAUD P.O, THIRUVANANTHAPURAM PIN-695014

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2 DISTRICT EDUCATIONAL OFFICER CHAVAKKAD-680506

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3 MUSLIM VEETTIL CHALACKAL AHAMED HAJI AIAS HAJI AHMED MOHIDDIN CHALACKAL S/O MOIDUNNI, ENGANDIYUR, KUNDALIYUR P.O, CHETUVA, THRISSUR DISTRICT-680616

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BY ADVS. K.JAJU BABU (SR.) SRI.G.SREEKUMAR CHELUR M.U.VIJAYALAKSHMI BRIJESH MOHAN RESMI G. NAIR SRI BIJOY CHANDRAN, SR GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.10.2021, ALONG WITH WP(C).23618/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C)NOs.23618/2015 & 16913/2013 4

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JUDGMENT

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The dispute between the petitioner and her siblings with regard to the change of management involving a change of ownership of the Aleemul Islam Higher Secondary School, Padoor has led to the filing of these petitions.

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For resolving the disputes, the facts of the case needs to be recapitulated briefly. The pleadings and parties in W.P.(C) No.23618/2015 shall be referred to unless otherwise stated for the sake of clarity.

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Late Sri. B. V. Seethi Thangal, the father of the petitioner, founded Aleemul Islam Higher Secondary School at Padoor and the school was being managed under Individual Educational Agency. Sri. Thangal passed away in the month of August 2002 leaving behind 9 children including the petitioner. On the death of Thangal, the right over the school and the right of management devolved on his legal representatives and thus the school came under a Corporate Educational Agency. Sri. B.V.Mohammed Rafy Thangal was the elder son of the founder and as authorised by the other legal heirs, he was managing the school.

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The petitioner states that being a semi-literate, she was not in a position to undertake the management of the school and in the

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WP(C)NOs.23618/2015 & 16913/2013

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said circumstances, a power of attorney was executed in favour of the 2nd respondent and he was managing the school on the cover of the same.

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While so, the legal heirs found it extremely difficult to carry out the management of the school. In the said circumstances, the legal heirs decided to transfer the ownership of the school and the properties attached thereto to the 3rd respondent. An agreement was entered into on 14.5.2007 as per which, the 3rd respondent undertook that he shall pay the amount covered under the agreement and the legal heirs agreed to execute and register the deed. The petitioner admits that an agreement was entered into and the 2nd respondent had signed the agreement for and on behalf of the petitioner as her power of attorney holder. Though the 2nd respondent received amounts from the 3rd respondent, the share of the petitioner was not paid.

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Being aggrieved, and suspecting a foul play, the petitioner cancelled the power of attorney executed in favour of the 2nd respondent and executed a fresh power of attorney in favour of her son, Rasheek Ahamed. The petitioner states that she is entitled to receive 1/9th share of the amount received by the 2nd respondent for and on behalf of all the legal heirs from the 3rd respondent. The petitioner states that taking advantage of the fact that the

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WP(C)NOs.23618/2015 & 16913/2013

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petitioner is a woman, steps were taken by respondents 2 and 3 to make it appear that the 3rd respondent is in ownership of the school.

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In the said circumstances, the petitioner is stated to have submitted Ext.P1 representation before the 1st respondent with a copy to the 2nd respondent. However, no action was taken. In the said circumstances, the petitioner approached this Court and filed W.P.(C) No.30131/2012 and pursuant to the directions issued by this Court as per Ext.P4 judgment, the 1st respondent issued Ext.P6 order on 22.6.2013 rejecting her request. The 1st respondent took note of the fact that 8 legal heirs out of the total 9 legal heirs had agreed to the change of management with ownership and hence the objection raised by the petitioner was liable to be rejected. The petitioner contends that the matter was heard by the Assistant Director though Ext.P6 reveals that the order was passed by the Additional Director of Public Instructions. Immediately thereafter, she approached this Court and filed W.P. (C) No.16913/2013 challenging the order passed by the Additional Director of Public Instructions. This Court granted an interim stay of all further proceedings pursuant to the order for transferring the management of Aleemul Islam Higher Secondary School, Padoor, involving change of its ownership. The said writ petition is still

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WP(C)NOs.23618/2015 & 16913/2013 7

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pending and the interim order is in force.

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The petitioner states that the 2nd respondent was appointed as

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Manager of the School when the children of late Sri. Seethi Thangal were in ownership of the school. However, since attempts were made to transfer the ownership of the school against the interest of the petitioner she was constrained to raise objections against the 2nd respondent continuing as the Manager. In the said circumstances, she is stated to have submitted a representation to the 1st respondent seeking removal of the 2nd respondent from managership and also sought for framing of a rule for the administration of the school. The petitioner contends that in response, she has been served with Ext.P6 communication dated 31.3.2015 that her representation cannot be considered in view of the pendency of W.P.(C)No.16913/2013. In the said circumstances, she has filed W.P.(C) No. 23618/2015 seeking to set aside Ext.P6 and for a further direction to the 1st respondent to take up Ext.P5 and take a decision in accordance with the provisions of Chapter III of the KER and for a further direction to the 1st respondent to frame bye-laws for the administration of the Corporate Educational agency of Aleemul Islam Higher Secondary school in accordance with Chapter III Rule 2 of the KER.

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A counter affidavit has been filed by the 1st respondent. After

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WP(C)NOs.23618/2015 & 16913/2013

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reiterating the sequence of events, it is stated that pursuant to directions issued by this Court in W.P.(C) No.30131/2012, notice was issued to the petitioner to appear for a personal hearing on 11.4.2013. Sri. Rasheek Ahammed, the power of attorney holder of the petitioner appeared and sought an adjournment. The petitioner, her power of attorney holder and the party respondents appeared for hearing on 4.5.2013. Sri. Rasheek Ahammed, the power of attorney holder of the petitioner informed the 1st respondent at the time of hearing that they have arrived at an amicable settlement regarding the dispute in the change of management with ownership of AIHS, Padoor and that in view of the said statement, the 1st respondent directed the petitioner, the 3rd respondent and Sri. B.V. Mohammed Rafi Thangal to submit a joint statement. However, later, the petitioner informed that a dispute has arisen and demanded that the matter be posted for hearing. It is further stated that the additional legal heirs agreed with the change of management of the ownership and in view of the majority opinion, the request of the petitioner was rejected.

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A counter affidavit has been filed by the 3rd respondent in W.P.(C) 16913/2013. It is stated that after the death of Seethi Thangal, the legal heirs of the founder became the Corporate Educational Agency. Later, the legal heirs including the petitioner decided to transfer the school and property in the name of the respondent. The petitioner executed a power of attorney in the name of her brother Mohammed Rafi Thangal, who in turn sold the property to the 3rd respondent and all the other co-owners except the petitioner and her siblings

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WP(C)NOs.23618/2015 & 16913/2013

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consented to the said transaction. Later, due to some dispute with the family members, the petitioner has turned around and is claiming otherwise. It is stated that the other legal heirs have also executed power of attorney stating that they shall execute necessary documents in favour of the 3rd respondent. It is stated that Ext.R3(b) power of attorney has been executed by the petitioner herein undertaking that she has no objection in changing management involving ownership of the school. It is further stated that the corporate educational agency has the power to appoint any person as manager of the school and in the instant case also, the majority has taken a decision to transfer the ownership as well as the management. The petitioner having only 1/11 share of the school, is not entitled to oppose the change of management against the will of the majority.

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I have heard Sri. M.R.Sabu, the learned counsel appearing for the petitioner, Sri. Jaju Babu, the learned senior counsel appearing for the 3rd respondent in W.P.(C) No.16913/2013 and the learned Government Pleader.

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The materials made available before this Court would reveal that the Aleemul Islam Higher Secondary School, Padoor was founded by Sri. B.V.Seethi Thangal. The aforesaid Seethi Thangal had 9 children including the petitioner. It is undisputed that after the death of Seethi Thangal in the year 2002, the school came under a Corporate Educational Agency and it was being owned and managed by the children of the founder. The children decided to

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entrust the management with B.V.Mohammed Rafi Thangal, the 2nd respondent in W.P.(C) No.23618/2015. Later, the legal heirs decided to assign the school as well as the 3 Acres and 35 cents of property on which the school was situated. An agreement was entered into with the 3rd respondent on 14.5.2007. It is undisputed that the petitioner had executed a power of attorney in favour of the 2nd respondent and for and on behalf of the petitioner he had signed the agreement. Later, document No.1191 of 2013 dated 8.5.2013 of the Mullasserry Sub registry was executed and registered, and the entire rights except that of the petitioner stand transferred to the 3rd respondent.

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The grievance of the petitioner is that though amounts were received by the 2nd respondent from the 3rd respondent, her share was not paid. It is in the afore circumstances that she had lodged a representation before the 1st respondent seeking to consider her objection before entertaining any request for effecting a change of management involving a change of ownership of the school. The respondent considered the request and rejected the same holding that 8 legal heirs out of the total 9 legal heirs have agreed with the change of management with ownership, the majority decision has to prevail. From the counter affidavit, it appears that the parties had initially come to an understanding and later due to some disputes they could not arrive at a consensus.

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It appears that the third respondent instituted O.S.No 862/2013 before the Sub Court, Chavakkad, arraying the petitioner as the sole defendant and seeking a decree of specific performance of an agreement for sale. The said suit was dismissed against which the third respondent instituted RFA No. 267/2016 which was also dismissed by this Court as per judgement dated 16.10.2020. It appears that the third respondent has approached the Hon'ble Supreme Court and filed Special Leave to Appeal No.769 of 2021 and the Apex Court has ordered the parties to maintain the status quo. This aspect is borne out from Exhibit P12 produced in W.P. (C) No. 16913/2013. During the pendency of the Writ Petition, the second respondent passed away and his legal heirs have been impleaded as additional respondents 4 to 7.

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From the submissions of the parties, it appears that the main grievance of the petitioner is that as she had not received her share of the consideration paid by the buyer and hence the request for effecting the change of management involving a change of ownership of the school in the name of the 3rd respondent shall not be considered. The 8 legal heirs out of the total 9 legal heirs have agreed to the change of management with ownership and it was in the said circumstances that the request made by the petitioner was rejected. The group opposing the petitioner is in majority as of now. If the petitioner has a grievance that the money due to her has not been paid, it is for her to approach the jurisdictional forum and institute appropriate proceedings for realizing the amount which is due.

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Insofar as W.P.(C) No.23618/2015 is concerned, the records reveal that the petitioner had submitted Ext.P5 representation seeking initiation of steps for withdrawal of the approval of managership of Sri.B.V.Mohammed Rafy Thangal, the 2nd respondent in the writ petition, and also for making arrangements for approval of the appointment of a new Manager as suggested by the present corporate educational agency. She had also sought for entrusting the administration of the school with the District Educational Officer. The 1st respondent had refused to consider the representation on the sole ground that W.P.(C) No.16913/2013 was pending and orders can be passed only after disposal of the said writ petition. The 2nd respondent has passed away during the pendency of the proceedings and in that view of the matter, nothing further subsists insofar as Ext.P5 representation is concerned.

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Having considered the entire facts and circumstances, I am of the view that the petitioner has not made out any case for interfering with Ext.P6 order passed by the 1st respondent, which is under challenge in W.P.(C) No. 16913/2013. The records reveal that the school and the property in which it stood has been assigned in favour of Sri. Ahammed Haji and this fact is undisputed. All the legal heirs of the founder have agreed to the change of management with ownership. In that view of the matter, W.P.(C) No.16913/2013 will stand dismissed.

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Insofar as the prayer sought for by the petitioner in W.P.(C) No.

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23618/2015 is concerned, as the 2nd respondent in the writ petition is no more, nothing further survives in the said writ petition. It would be open to the petitioner to prefer fresh representation before the concerned respondent if she has any subsisting grievance. If any such representation is submitted, the concerned respondent shall take a decision expeditiously, in any event, within a period of two months from the date of filing of the representation. Insofar as the right of the petitioner over the ownership over the school is concerned, the matter is pending before the Hon’ble Supreme Court and the parties may have to wait till a final decision is arrived at in the said matter.

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W.P.(C) No.16913/2013 will stand dismissed and W.P.(C) No.23618/2015

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will stand disposed of with directions.

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Sd/-

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RAJA VIJAYARAGHAVAN V

JUDGE

APPENDIX OF WP(C) 16913/2013

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PETITIONER'S EXHIBITS

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EXHIBIT	P1 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE IST RESPONDENT
EXHIBIT	P2 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT SERVED ON THE IST RESPONDENT DATED 23-11- 2012
EXHIBIT	P3 TRUE COPY OF THE POSTAL ACKNOWLEDGMENT SERVED ON THE DISTRICT EDUCATIONAL OFFICER, DATED 22-11-2012
EXHIBIT	P4 TRUE COPY OF THE JUDGMENT IN WPC NO 30131/2012 DATED 18-12-2012
EXHIBIT	P5 TRUE COPY OF THE SUBMISSION DATED 04-05- 2013
EXHIBIT	P6 TRUE COPY OF THE ORDER DATED 22-06-2013.
EXHIBIT	P7 TRUE COPY OF THE COVERING LETTER DATED 21.7.2013
EXHIBIT	P8 TRUE COPY OF THE PROOF OF DELIVERY OF EXT.P7 DATED 23.07.2013
EXHIBIT	P9 TRUE COPY OF THE REPRESENTATION DATED 26.08.2013
EXHIBIT	P10 TRUE COPY OF THE GOVERNMENT ORDER DATED 31.08.2013
EXHIBIT	P11 TRUE COPY OF JUDGMENT DATED 16.10.2020 IN R.F.A.NO.267/2016
EXHIBIT	P12 TRUE COPY OF THE ORDER IN SPECIAL LEAVE TO APPEAL(C)NO.769/2021 DATED 18.01.2021
RESPOND	ENTS' EXHIBITS:
EXHIBIT	R3(A) TRUE COPY OF THE ORDER
	NO.GO(RT)NO.3292/2013/G.EDN.DATED 5.8.2013

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EXHIBIT R3(B) TRUE COPY OF THE AFFIDAVIT OF THE PETITIONER DATED 30.04.2013 EXHIBIT R3(C) TRUE COPY OF THE G.O. (RT).NO.3625/2008/G.EDN. DATED 6.8.2008 OF THE GOVERNMENT EXHIBIT R3(D) TRUE COPY OF THE JUDGMENT IN W.P. (C).NO.27680/2008 DATED 28.10.2008 EXHIBIT R3(E) TRUE COPY OF THE G.O.(RT).NO.1480/10/G.EDN DATED 30.3.2010 OF THE GOVERNMENT EXHIBIT R3(F) TRUE COPY OF THE ORDER OF THE DIRECTOR OF PUBLIC INSTRUCTION DATED 7.4.2011

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APPENDIX OF WP(C) 23618/2015

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT ON 23.11.2012. EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN WPC NO.30131/2012 DTD.18.12.2012. EXHIBIT P3 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DTD.22.6.2013. EXHIBIT P4 TRUE COPY OF THE INTERIM ORDER IN WPC NO.16913/13 DTD.5.7.2013. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT DTD.3.2.2015. EXHIBIT P6 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DTD.31.3.2015.

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RESPONDENTS' EXHIBITS:

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NIL

B.v.Sakeena Beevi by Power of Attorney Holder Rasheek Ahamed v. Director of Public Instruction

Case brief

What is this about?

What did the court decide?

B.v.Sakeena Beevi by Power of Attorney Holder Rasheek Ahamed v. Director of Public Instruction

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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