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Judgment
S.S. Subramani, J.—Petitioner seeks issuance of writ of mandamus directing Respondents 1 to 4 to take all necessary steps to re-open the Schools, namely, 1. The Vivekananda Higher Secondary School (Boys) and (2) Sri Saradha Girls Higher Secondary School, both situated at Pasupathipalayam, Karur District, and to help the Petitioner in running the schools smoothly without interference from 6th Respondent, and thus render justice.
Petitioner is the Secretary of The Vivekanandha Higher Secondary School (Boys) and Sri Saradha Girls Higher Secondary School, which were founded and established-by Sri Ramakrishna Tapovanam, Tirupparaithurai, Trichy District. Sri Ramakrishna Tapovanam is a Society registered under the Societies Registration Act. They were founded by Swamy Chidbavananda in the year 1942. The main object of Sri Ramakrishna Tapovanam is to impart spiritual education and to instil discipline amongst students. There are many monastic members of Sri Ramakrishna Tapovanam, and they were used to be deputed to various places to manage the educational and other institutions. Sri Ramakrishna Tapovanam had overall control of all the institutions. There is a General body for the Association. There is also a governing body. Swamy Chidbavananda continued to be the head of Sri Ramakrishna Tapovanam till he attained Maha Samadhi on 16.11.1985.
6th Respondent joined the Tapovanam as an ordinary worker. Later he was initiated into Sanyasam by Swami Chidbhavananda. He was in the Headquarters (at Thiruparaithurai) for some time. In Karur, Sri Ramakrishna Tapovanam established (1) The Vivekanandha Primary School, (2) The Vivekananda English School, (3) The Vivekanandha Higher Secondary School, (Boys), (4) The Vivekananda Matriculation Higher Secondary School at Pasupathipalayam, and (5) Sri Saradha Girls Higher Secondary School. These Institutions were established with the funds provided by Tapovanam, and also from contributions collected from public, 6th Respondent was deputed by Swamy Chidbhavananda to look after the affairs at Karur. After the attainment of Maha Samathi by Swamy Chidbavananda, 6th Respondent entertained an idea of claiming ownership of all the above-mentioned five institutions for himself. With that end in view, he filed O.S.459 of 1991, on the file of District Munsif''s Court, Karur, claiming ownership and also prayed for injunction against the parent body, viz., Sri Ramakrishna Tapovanam not to interfere with the management of the Institutions. The suit was dismissed on 30-4-1992. It was confirmed in Appeal, and finally in S.A.604 of 1993. Second Appeal preferred by 6th Respondent herein was also dismissed. In the suit, it was declared that Tapovanam is the owner of all the Institutions including the schools, which are the subject matter of this Writ Petition. In the meanwhile, 6th Respondent had been removed from monastic membership of the Tapovanam from 1.9.1991 for his acts of disobedience and anti-parent body activities. He ceased to be an agent of the Tapovanam as soon as he was expelled from it. The present Petitioner was already appointed as Secretary-cum-Correspondent of these two institutions. After the judgment in SA.604 of 1993, a statement was published in ''Dinamalar'' on 24.5.1997 that the present Petitioner-Secretary will manage these two Institutions. 6th Respondent published a counter-statement in the same Daily on 28.5.1997. Respondents 1 to 3 had originally recognised Sri Ramakrishna Tapovanam as educational agency of the aforementioned two schools, and disbursement of salary to teachers and non-teaching staff was made by Petitioner herein as President-cum-Secretary of the institutions. In October 1993, 3rd Respondent did not make disbursement of salary through the Petitioner. Therefore, W.P.21876 of 1993 was filed for appropriate relief. A. third person also filed W.P. No. 14215 of 1994 to recognise him as Headmaster of the Boys School. Both these Writ Petitions-were disposed of by a common order on merits.
In the meanwhile, 6th Respondent started collecting donations from students and public, and the amount so collected was also never accounted for, though the same was collected in the name of Tapovanam. To prevent 6th Respondent from defrauding the public and for other reliefs, W.P.7968 of 1997 was filed before this Court, seeking police protection, to enable the Petitioner therein to manage the educational institutions without interference from 6th Respondent. The Writ Petition was dismissed on the ground that Civil Suit, viz., O.S.273 of 1992 (renumbered as O.S.1254 of 1994, Sub-Court, Trichy) was pending. Learned Judge, while disposing of W.P.7968 of 1997 directed the learned Subordinate Judge to dispose of the suit without any delay, 3rd Respondent thereafter, passed an order on 29.3.1998, recognising the Petitioner as Secretary of the Schools and also as educational agency. The order has been passed under the Tamil Nadu Recognised Private Schools (Regulation) Act, in compliance with the direction of this Court. It is the case of the Petitioner that once the 3rd Respondent has recognised the Petitioner herein as Correspondent, there is a duty cast on the Authorities to see that he is allowed to manage the Schools in accordance with law, and they should also prevent interference from any source. According to Petitioner, Respondents 1 to 5 have not taken any action against 6th Respondent, who is still continuing his illegal activities. It is also stated in the affidavit that the fourth Respondent who is the District Collector is very much associated with the 6th Respondent and he has sent a favourable report, and, therefore, even the police is not helping the Petitioner whenever occasion arises. The reason for filing this Writ Petition is that after the Petitioner was recognised as Correspondent-cum-Manager of the Schools, he had to order closure of the schools indefinitely and the students were also asked to leave the school, since tile attitude of the 6th Respondent has affected the Institution itself and has also created labour unrest. Though telegrams were sent to concerned Authorities for taking appropriate action, they were of no avail. It is further said that O.S. 1254 of 1994 is pending on the file of Sub Court, Trichy, and recording of evidence has already started. According to Petitioner, the pendency of that suit cannot be a ground to permit the 6th Respondent to have his say in the management'' of the School Under the circumstances stated above, Petitioner has prayed for interference of this Court to restrain the 6th Respondent from interfering with the affairs of the Schools, and also for other reliefs mentioned above.
When the matter came up for admission, I ordered notice of motion, and I further directed that the Petitioner must be given all necessary and adequate police protection for supervising and managing the school. On the basis of my order, when Petitioner sought the help of police, the police officer is alleged to have told him that he will give protection only to Petitioner''s body and he will not allow him to take any Assistant from the School, and for them protection will not be granted. According to Petitioner, such a technical interpretation was given to the order of this Court only under the influence of the 4th Respondent. Subsequent to that, Petitioner himself filed a Contempt Application against the 6th Respondent and others. I directed the police officers to provide adequate police protection for proper management of the School, and I also observed that the Police Officers should not interpret the order as if it is something personal to the Petitioner.
Sixth Respondent, after receipt of notice in the Writ Petition, filed W.M.P. No. 14864 of 1998 to vacate the interim order, and has also filed a counter affidavit.
In the counter-affidavit, he only narrates the previous history as to how he was being treated by Swamy Chidbavananda and how he has brought up the entire Institution. It is his case that the Petitioner-Tapoyanam has no right over these educational institutions and it is only because of his respect to his Guru, he applied for permission to start the school in the name of his late Guru. It is his case that he alone has spent for construction of the buildings and for establishing the schools, and he is in possession of the entire records, and he is maintaining the same. It is also said that in view of the pendency of O.S.1254 of 1994, the request of the Petitioner for police protection was denied by this Court in WJ.7968/97. According to him, the circumstances have not changed for filing the present Writ Petition and, therefore, the Writ Petition is premature. He also denies that he was ever an agent of the Tapovanam. According to him, he is completely controlling the affairs and management of these institutions. It is the further case of Petitioner that the earlier suit filed by him was on the basis of wrong legal advice, and it is now said that the Court which decided the suit was one without jurisdiction and to consider the same, he has filed a Review Application before this Court. It is further said that when the Petitioner himself has said that the 6th Respondent is in possession of properties, and, therefore, the filing of this Writ Petition is mischievous and the same cannot be entertained.
I heard learned Counsel for all the parties in detail.
It is not disputed by either party that with respect to the very same schools, there were prior civil litigations. The suit filed by 6th Respondent was to declare that he was the Founder and educational agency of these two Institutions. Present Writ Petitioner was one of the Defendants therein. He disputed the claim of the sixth Respondent. According to Petitioner, 6th Respondent herein was only looking after the affairs of Tapovanam and that too the matters entrusted to him by Swamy Chidbavanandba. It was only the funds of Tapovanam and contribution from public that were utilised for establishing the educational institutions, and the 6th Respondent who is a Sanyasi was not having any funds of his own.
On the basis of these contentions, issues were raised as to whether the sixth Respondent herein is having any right over the school or whether he was acting only as an agent. Issues that were raised by 6th Respondent in the Civil
Suit are extracted in paragraph 45 of his counter.
After discussing the entire evidence, the trial Court came to the conclusion that sixth Respondent herein (who was Plaintiff in O.S.459 of 1991, on the file of District Munsifs Court, Karur) is not having any right over the institutions and he was only an employee or care-taker of Tapovanam. The suit was dismissed, and the dismissal was confirmed both in first and Second Appeal. In S.A.604 of 1993, I had occasion to consider the case of 6th Respondent in detail. Finally, I held that, the 6th Respondent is only an agent and the educational agency is the Tapovanam, and 6th Respondent herein was acting as Secretary-cum-Correspondent. His appointment as Correspondent and Secretary was on the basis of resolutions passed by Tapovanam. I further found that the decisions of the Courts below that the 6th Respondent was only looking after the affairs of Tapovanam is correct and, therefore, the concurrent finding of fact was not liable to be interfered with. I further considered the law as to the possession of 6th Respondent of these educational institutions and what is the consequence of such possession by the agent. I held that if an agent is in possession, it amounts to possession of the principal himself and, therefore, sixth Respondent cannot claim any adverse interest in the property. I also held that all the documents only show that Tapovanam is the owner of the institutions and 6th Respondent who claims to be a Sanyasi should not have put forward such a claim and that too against his own Guru. I dismissed the Second Appeal with costs.
On the basis of this judgment in Second Appeal which concluded the rights of parties, it is clear that the 6th Respondent herein is only an agent.
In the meanwhile, a Writ Petition, viz. W.P.7968 of 97 was filed by one Swamy Sadanandha claiming as Secretary of Sri Ramakrishna Tapovanam, and Petitioner had also filed a suit as O.S.273 of 1992, on the file of Sub-Court, Trichy for recovery of possession and other consequential reliefs. When the petition filed by Petitioner herein for police protection came up for arguments, this Court held that since the Petitioner has availed remedy through Civil Court, proceedings binder Article 226 of the Constitution is not to be entertained, and a direction was given by a learned Judge of this Court to the learned Subordinate Judge, Karur, to dispose of the suit O.S.273 of 1992, within a period of six months from the date of receipt of the order. (O.S.273 of 1992 is now renumbered as O.S.1254 of 1994).
It may be noted that at the time when W.P.7968 of 1997 was disposed of, I have already delivered the judgment in the Second Appeal declaring that the 6th Respondent is an Agent.
After the pronouncement of the judgment in Second Appeal, Petitioner herein has been appointed as Correspondent-cum-Secretary of the Institutions in question, by third Respondent herein, as per Order dated 29.3.1998. That order was issued on the basis of a request made by Petitioner on 22.11.1997 wherein he refers to my judgment in S.A.604 of 1993 and wanted the salary to be disbursed through him. It is on the basis of that letter, Petitioner was recognised as Secretary-cum-Correspondent of the Schools. After getting himself recognised as CorRespondent, Petitioner wanted to manage the Schools and the same was not allowed by the 6th Respondent. This Writ Petition is filed to get the grievance redressed.
Learned Senior Counsel for sixth Respondent argued that the Writ Petition itself is not maintainable. Petitioner claims himself as Secretary of the Tapovanam and not to an educational agency or any Committee. It was further argued by learned Senior Counsel that the order refusing police protection bars the present Writ Petition since relief in both the cases is similar, and there is no change of circumstance after November 1997. Even now, a decision in O.S.273 of 1992 is awaited and, therefore, this Court should not interfere at this stage. It is further represented by learned Senior Counsel that the order approving the Petitioner as correspondent was obtained by suppressing material facts. The order passed in W.P.7968 of 1998 was not brought to the notice of the Authorities, and reliance was placed only on the judgment in S.A. No. 604 of 1993. Third Respondent has also not issued any notice before passing that Order and, therefore, he has challenged the same in revision, which is pending. Learned senior counsel further submitted-that the present Writ Petition should-not be entertained since it concerns the right to immovable properties. The decision in S.A.604 of 1993 is also challenged on the ground that such a suit itself is not maintainable u/s 53 of the Tamil Nadu Private Schools (Regulation) Act, and, therefore, the judgment itself is without jurisdiction.
After having heard learned Counsel on both sides, I feel that this is a case where the Petitioner must be granted the relief sought for.
The contention that the judgment in S.A.604 of 1993 should not be the basis of the claim, cannot be accepted. The argument that the suit was not maintainable and is barred u/s 53 of the Tamil Nadu Private Schools (Regulation) Act is also without any substance. On going by the issues in that case, the question was, what is the legal relation between Tapovanam and sixth Respondent. Incidentally the question of management may also arise. The suit itself was instituted by 6th Respondent and he joined in issue as to whether he is only an agent or owner of the property and the schools. That relief could be granted only in a Civil Suit though the question of educational agency may arise incidentally in such cases. One thing is clear, namely, that there is an effectual finding that the 6th Respondent is only an agent of the Tapovanam and he was managing the affairs of the School only in that capacity. According to me, that decision concludes the matter and it is too late for 6th Respondent to contend that the judgment in the earlier Civil Suit is not valid in law and the suit was filed on wrong legal advice. That contention is barred.
A further contention was taken that the order in the Writ proceedings seeking police protection having been dismissed, the present Writ Petition without change of circumstances-should not be entertained.
The said contention also cannot be accepted. Petitioner wanted police protection to manage the School and this Court dismissed the same on the ground of pendency of the suit. Thereafter, circumstances have changed. Petitioner has been declared as correspondent of the School and, therefore, he is competent to manage and administer all the Schools belonging to Tapovanam, and, under the Education Act also, his right to manage the schools cannot be interfered with by any person.
The further question that arises for consideration is, whether the pendency of the Civil Suit O.S.1254 of 1994 is a bar for granting any relief in this case. It is true that the Petitioner himself has filed a suit for recovery of possession and for accounts. The argument is that when the Petitioner himself has filed such a suit and the same is pending before Civil Court, if a relief is granted in this Writ Petition, it will amount to passing a decree in the Civil Suit itself. It is also submitted that the reasoning given by Jayarama Chouta, J., while dismissing the Writ Petition for police protection still holds good, i.e., when a Civil Suit is pending, Writ Proceedings cannot be entertained? The said submission also cannot be correct in this case. It is true that the Petitioner filed a civil suit for'' recovery of possession and for accounts. The recovery sought for is by the Principal against the agent, and that status has already been declared by this Court. Merely because the Principal seeks recovery, that cannot be answered by agent against the Principal by stating that he is not entitled to enforce his legal rights. Again, when the Principal also happens to be the correspondent of the School, he is entitled to manage the same without any interference from any other person. I do not find any ground to sustain the objections now raised by sixth Respondent.
A further contention was also urged by learned Senior Counsel that the cause title in the petition is not correct. Petitioner has filed this Writ Petition only as Secretary, and not as educational agency, etc. I do not find any merit in the said submission. The Secretary has been defined under the Tamil Nadu Recognised Private Schools (Regulation) Act in relation to ''Secretary'' referred to in Section 16. Section 16 deals with Secretary of School Committee. Any School Committee shall have a Secretary who will exercise such functions as may be prescribed. The contention is that the School cannot have a Secretary, and only a School Committee can have a Secretary. The said contention is also without any basis. Merely because Plaintiff claims to be the Secretary of a School, that will not disentitle him to the relief, and if we go by the entire averments in the Writ Petition, it is found that a legal ground, has been made out for a relief, and the Court is bound to grant the same. Technicalities should not defeat the ends of justice.
Two days after the matter was taken up for disposal, learned Counsel for Petitioner submitted before Court that O.S. No. 273 of 1992, now renumbered as O.S.1254 of 1994 was decreed in favour of the Petitioner.
A contention was also raised by learned Senior Counsel that the Order dated 29.5.1998 issued by third Respondent appointing the Petitioner herein as Correspondent was obtained by suppression of facts. The application filed by Petitioner before third Respondent was also brought to my notice. The argument is that no argument was advanced on the judgment, in W.P. No. 7968 of 1997. If that judgment had also been brought to the notice of their Lordships, the order would have been different. The said contention is also without any basis. Merely because the Petitioner did not get police protection, that will not alter the position or relationship between the parties, namely, principal and agent. In the representation filed by Petitioner before the third Respondent, my judgment was brought to his notice to show that the sixth Respondent is only an agent.
In the result, I direct Respondents 1 to 4 to take all necessary steps to see that Vivekanandha Higher Secondary School (Boys) and Sri Saradha Girls Higher Secondary School situated at Pasupathipalayam, Karur, function smoothly and effectively, and Respondents 1 to 4 are directed to take necessary action against the 6th Respondent not to interfere with the affairs of the Schools. I further direct that Respondents 1 to 4 should also see that the Secretary-cum-Correspondent of the Schools manages the Schools without any third party''s interference. Fourth Respondent should see that his-closeness with the sixth Respondent is not a cause for not giving police protection to the Petitioner. As and when Petitioner requires police protection for implementation of this Order, Respondents 1 to 4 are bound to provide the same. I direct that the sixth Respondent should not interfere with the management, of School. I further direct the sixth Respondent to refrain himself from issuing any pamphlet in the name of the Tapovanam, and also from collecting donation from public in the name of the Tapovanam. The Writ Petition is allowed as indicated above. No costs. W.M.P. Nos. 13889 and 13890 of 1998 are closed. W.M.P. No. 14864 of 1998 is dismissed.