PARAYIL THENGAL ABDUL AZEEZ Vs. STATE OF KERALA,

JUDGEMENT

(1.) PETITIONER in W.P.(C). No. 12919/2005 is the plaintiff in O.S. No. 67/2002, the suit for specific performance of contract for sale of the school by name, A.L.P. School, Cherukavu with land and building along with the right of management of the school. The suit was eventually decreed with direction. There was a Regular First Appeal (RFA.532/2005) before this Court at the instance of defendants 1 and 2, which we have already heard along with this writ petition and the same has been dismissed as per judgment dated 30/10/2007. When this writ petition came up for consideration before the learned Single Judge, the same was posted along with R.F.A. as above and heard.

(2.) W .P.(C). No. 12919/2005 is filed for a writ of mandamus commanding respondents 2 and 3 to remove the 4th respondent from functioning as the Manager of the A.L.P. School, Cherukavu and to direct the 4th respondent not to effect any appointments in the school or to take any policy decision or to take any other action functioning as Manager of the School and for a further direction commanding the 2nd respondent to approve the change of ownership and change of management of the school in favour of the petitioner and also to set aside the proceedings of the 2nd respondent approving the 4th respondent as Manager as per proceedings dated 7/6/2001 with effect from 20/11/1995 to 20/11/2005.

(3.) AS could be seen from the prayers made in this writ petition, there is no specific prayer seeking any direction to the Educational Authorities to consider any application said to have been submitted by the petitioner. But the petitioner has sought for a writ of mandamus to set aside the proceedings approving the 4th respondent as Manager for the period from 20/11/1995 to 20/11/2005. No writ of mandamus can be issued to set aside the proceedings and it can only be quashed in a writ of certiorari. But the proceedings as such is not produced. As such the relief to set aside such proceedings cannot be granted. The other reliefs are to remove the 4th respondent from functioning as the Manager. Admittedly, the 4th respondent was approved as the Manager, based on the application submitted by him. The school was originally belonged to one Madhavan Ezhuthachan from whom the 4th respondent and Ors. purchased the school as a running concern. The right of management however was not transferred. In the meantime, Madhavan Ezhuthachan died. After obtaining necessary consent from the legal heirs of Madhavan Ezhuthachan, the application submitted was duly considered by the authorities for effecting transfer of management in favour of the 4th respondent, who was also the Manager. At the relevant time, the petitioner has not purchased the school and admittedly the petitioner entered into an agreement with the 4th respondent and Ors. for purchase of the school as a running concern along with the right of management. Eventually the decree was passed in favour of the petitioner as evidenced by Ext.P1. As per the judgment, execution of the sale deed is subject to the compliance of the provisions of Rule 5A of Chapter III of the Kerala Education Rules and there is also a direction to the 4th respondent herein, he being the Manager of the School at the time of passing the decree, to apply for necessary permission for the change of management in favour of the petitioner. Therefore, the 4th respondent was the Manager of the school even as on the date of passing the decree so recognised and accepted by the court below and confirmed by this Court. It is therefore for the 4th respondent to comply with the judgment failing which the petitioner should take necessary steps in this regard by approaching the court below. As the matter stands, the appointment of the 4th respondent as the Manager of the school prior to the passing of the decree cannot be validly assailed. In the result, the prayer for quashing the proceedings appointing the 4th respondent as the Manager, is refused. When the 4th respondent is recognised as the Manager, appropriate direction issued to him as per the decree to apply for transfer/change of management, because he being the existing Manager, has to make an application in accordance with the decree for transfer/change of management of the school in terms of the agreement. As respect the other reliefs are concerned, so long as the 4th respondent was the Manager, he cannot be injuncted from making any appointment. The decree passed by the court below, being a specific performance decree, should be deemed as a preliminary decree passed in this case and it is always open to the parties to seek further directions in this regard. But since the decree now passed as such has not injuncted the 4th respondent from making any appointment, there cannot be any direction issued to the 4th respondent not to make any appointment, in this proceedings. W.P.(C) No. 12919/2005 is accordingly dismissed.