Partly allowed

Shihab Thangal Educational & Charitable Trust, v. the State of Kerala

Kerala HC5 Apr 2023WP(C)/6171/2022

Case brief

AI extract

What is this about?

The High Court of Kerala set aside an order declaring a trust's acquisition of school property invalid. The court directed the Additional Director of General Education to reconsider the management transfer application expeditiously, considering a specific circular and cited judgments, while reserving merit for a future proceeding.

What did the court decide?

Exhibits.P10 set aside; 1st respondent directed to reconsider the matter in light of Ext.P9 within three months.

Shihab Thangal Educational & Charitable Trust, Vs… — Education and Admissions | Kerala HC (2023)

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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 P.V.KUNHIKRISHNAN

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WEDNESDAY, THE 5^TH DAY OF APRIL 2023 / 15TH CHAITHRA, 1945

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WP(C) NO. 6171 OF 2022

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PETITIONER:

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SHIHAB THANGAL EDUCATIONAL & CHARITABLE TRUST, MAMPAD P.O., MALAPPURAM DISTRICT, KERALA, PIN – 676542, REPRESENTED BY ITS SECRETARY, SRI.MUHAMMAD MUSTHAFA K.P. BY ADVS. P.MARTIN JOSE P.K.SOYUZ THOMAS P.KURUVILLA P.PRIJITH R.GITHESH AJAY BEN JOSE MANJUNATH MENON SACHIN JACOB AMBAT ANNA LINDA V.J HARIKRISHNAN S.

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RESPONDENTS:

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1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

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2 THE ADDITIONAL DIRECTOR OF GENERAL EDUCATION (ACADEMIC)JAGATHI, THIRUVANANTHAPURAM, PIN - 695014

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3 THE DEPUTY DIRECTOR OF EDUCATION, DOWN HILL, MALAPPURAM, PIN - 676519

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4 THE DISTRICT EDUCATIONAL OFFICER WANDOOR, MALAPPURAM, PIN - 679328

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5 THE ASSISTANT EDUCATIONAL OFFICER, NILAMBOOR, MALAPPURAM, PIN - 679328

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6 P.MUHAMMED SHAFI, AGED 52 YEARS

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WP(C) NO. 6171 OF 2022

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S/O.SEETHI PANANILATH HOUSE, THOTTINTAKKARA, MAMPAD P.O., MALAPPURAM, PIN - 676542

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7 ADDL.R7 RAHMATHULLA, AGED 51 YEARS, S/O HAMZA MUSALIAR, MOOCHITHODEN HOUSE, MOOTHEDAM.PO., EDAKKARA, NILAMUR, MALAPPURAM - 679 331 [ADDL.R7 IS IMPLEADED AS PER ORDER DATED 24/11/2022 IN I.A-1/2022 IN WP(C) 6171/2022]

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BY ADVS. ADVOCATE GENERAL OFFICE KERALA V.A.MUHAMMED SUMAN CHAKRAVARTHY M.SAJJAD K.R.RIJA AMJATH A.R SMT.NISHA BOSE, SENIOR GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 6171 OF 2022

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P.V.KUNHIKRISHNAN, J.

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------------------------------

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W.P.(C)No. 6171 of 2022

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Dated this the 05^th day of April, 2023

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JUDGMENT

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The above writ petition is filed with the following prayers:

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“(i) Call for the records leading to Exhibits.P8 and P10, and quash the same by issue of a writ of certiorari or other writ order or direction;

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(ii) Issue a writ of mandamus or other writ order or direction, compelling the 2 nd respondent to approve the change of management of A.M.U.P. School, Mumped P.O.in favour of the petitioner within a time limit to be fixed by this Hon'ble Court;

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(iii) Issue such other writ order or direction as may be necessary in the interest of justice.”[SIC]

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The petitioner is a charitable and educational trust formed as per Exhibit P1. It is the case of the petitioner that the petitioner trust purchased the property having an extent of 3 acres in Re-Survey No. 31/2, Block No. 82 of Mampad amsom desom with a UP

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WP(C) NO. 6171 OF 2022

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School namely "A.M.U.P. School, Mampad" and its management as per Exhibits.P2 and P3 respectively. After the assignment in favour of the petitioner, the then Manager Smt. Aaminakutty was permitted to continue as Manager, is the submission. The petitioner took over the management and administration of the School in pursuance of Exhibits. P2 and P3 and by Exhibit P4 the 5^th respondent approved the appointment of Sri. Muhammed Ali Kambrath provisionally with effect from 1-07-2018 without change in management. By Exhibit.P5, the 3^rd respondent approved the bye laws and by Exhibit. P6 the 4^th respondent approved the bye laws for the administration and management of the School submitted by the petitioner, is the further submission. It is submitted that by Exhibit. P7 the application for change of management submitted by the petitioner was rejected by the 2^nd respondent. Against Exhibit P7, the petitioner filed Exhibit P8 appeal before the 1^st respondent under Sub Rule (2) of Rule 5A of Chapter III KER.

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WP(C) NO. 6171 OF 2022

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It is the case of the petitioner that, in the meanwhile,

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the 1^st respondent issued Exhibit P9 circular dated 24/11/2021 prescribing the procedure for regularization of assignment of the management of the school. The 1^st respondent by Exhibit P10 order dated 5/2/2022 held that since the transfer in favour of the petitioner was in violation of Rule 5A of Chapter III of KER, the transfer is invalid and affirmed Exhibit P7 order of the 2^nd respondent rejecting the application for change of management. The grievance of the petitioner is that the 1^st respondent has not considered Ext.P9 circular. Hence, this Writ Petition is filed.

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Heard Senior counsel Adv. S.Sreekumar as instructed by Adv.P.K.Soyuz appearing for the petitioners, the learned Government Pleader and the counsel appearing for the 6^th respondent.

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When this writ petition came up for consideration, the Senior counsel submitted that the petitioner will be satisfied if Ext.P10 is set aside and a

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WP(C) NO. 6171 OF 2022

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direction is issued to the Government to reconsider the matter in the light of Ext.P9 circular. The counsel appearing for the 6^th respondent submitted that Ext.P9 circular will not stand because it is against the Rules and several judgments issued by this Court. Since the petitioner has got a case that Ext.P9 circular is not considered and it is also an admitted fact that Ext.P9 is in force as on today, I think Ext.P10 can be set aside and the Government can be directed to reconsider the matter once again with notice to all the parties. I make it clear that I have not considered the matter on merit and all the contentions raised by the petitioner and the 6^th respondent are left open.

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Therefore, this writ petition is disposed of in the following manner:

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i. Ext.P10 is set aside.

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ii. The 1^st respondent is directed to reconsider Ext.P8 in the light of Ext.P9 circular, as expeditiously as possible, at any rate, within a period of three

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WP(C) NO. 6171 OF 2022

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months from the date of receipt of a stamped certified copy of this judgment.

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ii. Before passing final orders, the 1^st

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respondent will give an opportunity of hearing to the petitioner and the 6^th respondent.

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iii. The 1^st respondent will also consider the applicability of Exts.R6(c) to R6(g) judgments also while deciding the matter.

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iv. Petitioner will produce a stamped certified copy of this judgment along with a copy of this writ petition before the 1^st respondent for compliance.

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Sd/-

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P.V.KUNHIKRISHNAN JUDGE

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WP(C) NO. 6171 OF 2022

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APPENDIX OF WP(C) 6171/2022

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PETITIONER EXHIBITS

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EXHIBIT	P 1 TRUE COPY OF DOC DATED 30/09/2011	UMENT NO: 788/2011
EXHIBIT	P 2 TRUE COPY OF SALE	DEED NO: 2027/2013
	DATED 20-04-2013
EXHIBIT	P 2(A) ENGLISH TRANSLATION	OF EXHIBIT.P2
EXHIBIT	P 3 TRUE COPY OF SALE DATED 20-04-2013,	DEED NO:2028/2013
EXHIBIT	P 3(A) ENGLISH TRANSLATION	OF EXHIBIT.P3
EXHIBIT	P 4 TRUE COPY OF ORDER THE 5TH RESPONDENT	DATED 13/08/2018 OF
EXHIBIT	P 4(A) ENGLISH TRANSLATION	OF EXHIBIT.P4
EXHIBIT	P 5 TRUE COPY OF ORDER THE 3RD RESPONDENT	DATED 07-08-2019 OF
EXHIBIT	P 5(A) ENGLISH TRANSLATION	OF EXHIBIT.P5
EXHIBIT	P 6 TRUE COPY OF OR DATED 19-08-2019 OF	DER NO.A6/3872/2019 THE 4TH RESPONDENT
EXHIBIT	P6(A) ENGLISH TRANSLATION	OF EXHIBIT.P6
EXHIBIT	P 7 TRUE COPY OF ORDER THE 2ND RESPONDENT	DATED 26-02-2021 OF
EXHIBIT	P 7(A) ENGLISH TRANSLATION	OF EXHIBIT.P7
EXHIBIT	P 8 TRUE COPY OF APPE	AL DATED 29-06-2021
	FILED BY THE PETITI	ONER BEFORE THE 1ST
	RESPONDENT UNDER SU 5A OF CHAPTER III	B RULE (2) OF RULE
EXHIBIT	P 8(A) ENGLISH TRANSLATION	OF EXHIBIT.P8
EXHIBIT	P 9 TRUE COPY OF CIRCUL ISSUED BY THE 1ST RE	AR DATED 24/11/2021 SPONDENT
EXHIBIT	P 9(A) ENGLISH TRANSLATION	OF EXHIBIT.P9
EXHIBIT	P10 TRUE COPY OF ORDER	DATED 05-02-2022 OF

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WP(C) NO. 6171 OF 2022

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THE 1ST RESPONDENT EXHIBIT P 10(A) ENGLISH TRANSLATION OF EXHIBIT.P10 EXHIBIT P 11 TRUE COPY OF JUDGMENT IN W.P. (C).NO.29025 OF 2011, DATED 08-02-2013 OF THIS HON'BLE COURT

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RESPONDENT EXHIBITS

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EXHIBIT R6(A)	TRUE COPY OF THE REVISION PETITION
	SUBMITTED BEFORE THE GOVERNMENT BY THE 6TH RESPONDENT DATED 10.03.2021.
EXHIBIT R6(B)	TRUE COPY OF THE JUDGMENT IN W.P(C) NO. 10798/2021 DATED 23.09.2021.
EXHIBIT R6(C)	TRUE COPY OF THE JUDGMENT IN W.A NO.1534/2019 DATED 18.10.2019.
EXHIBIT R6(D)	TRUE COPY OF THE JUDGMENT IN W.A.
	NO.2258/2019 DATED 03.02.2020.
EXHIBIT R6(E)	TRUE COPY OF THE DECISION REPORTED IN 2014 KHC 69 DECIDED ON 23.01.2014.
EXHIBIT R6(F)	TRUE COPY OF THE JUDGMENT IN W.A
	NO.1372/2020 DATED 21.10.2020.
EXHIBIT R6(G)	TRUE COPY OF THE JUDGMENT IN W.P(C)
	NO.3300/2022 DATED 04.03.2022.
EXHIBIT R5(A)	TRUE COPY OF THE CIRCULAR
	NO.H(2)/72141/2000/DPI DATED 10/10/2000
EXHIBIT R5(B)	TRUE COPY OF THE LETTER NO.G.EDN
	F2/83/21-G.EDN DATED 16.06.2021
EXHIBIT R7(1)	A TRUE COPY OF THE APPROVED CONSTITUTION OF THE PETITIONER TRUST.

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//TRUE COPY// PA TO JUDGE

Shihab Thangal Educational & Charitable Trust, v. the State of Kerala

Case brief

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Shihab Thangal Educational & Charitable Trust, v. the State of Kerala

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