Important points:
Directors of the Yogam took any effective steps to file annual returns/financial statements during the period from 2013-14 to 2015-16-Disqualification under Section 164(2) is by operation of law and automatic. Since the Yogam has not filed annual returns/financial statements from the year 2013-14 to 2015-16 for a continuous period of three years, the Directors who were holding the office during the period would be disqualified for reappointment for the next five years
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JUDGMENT :

N. NAGARESH, J.

1. The petitioner, a retired Professor, Writer and Critic, who has authored large number of literary works, has filed this writ petition. The petitioner is a social worker and is a member of the Aruvippuram Sree Narayana Dharma Paripalana Yogam. The petitioner seeks the following reliefs:-

“(i) Declare that respondents 4 to 7 are disqualified under Section 164(2) of the Companies Act, 2013 to act as the Directors/office bearers of respondent No. 3 Yogam.

(ii) Pass an order restraining respondent Nos. 4 to 7 from functioning as Directors of respondent No. 3 Yogam.

(iii) Appoint an Administrator to manage the day to day activities of respondent No. 3 Yogam and to conduct election to its Board of Directors/office bearers in accordance with law and under the supervision of this Hon'ble Court.

(iv) Issue a writ of Mandamus or any other appropriate writ or direction commanding respondent No. 1 to consider and pass orders on Ext.P4 after hearing the petitioner within a time frame as may be fixed by this Hon'ble Court.”

2. The petitioner states that the 3rd respondent-Aruvippuram Sree Narayana Dharma Paripalana Yogam (hereinafter referred to as the ‘Yogam’) was registered under the Travancore Regulation No. 1 of 1063 as an Association. The Kerala Non-trading Companies Act, 1961 came into effect from 01.03.1962 and the Yogam being an existing company came under the ambit of the Act, 1961. The Yogam is also deemed to be a company registered under the Companies Act, 1956 in view of Sections 3 to 5 of the Act, 1961. Consequent to the repeal of the Companies Act, 1956 and enactment of the Companies Act, 2013, the Act, 2013 would apply to the Yogam, as held by this Court in the judgment in K. Manoj @ Manoj Kadakampally and Others vs. Sree Narayana Dharma Paripalana Yogam and Others, 2020 (5) KLT 266. The competent authority under the Kerala Non-trading Companies Act, 1961 is the 2nd respondent-Inspector General of Registration.

3. The complaint of the petitioner is that the Yogam did not file annual returns from 2006 onwards. The 1st respondent-State of Kerala appointed an officer to adjudicate the matter as per Ext.P2. However, no effective steps were taken by the adjudicator. Ext.P3 information would show that annual returns have not been filed by the Yogam till that date.

4. The petitioner sent Ext.P4 representation to the 1st respondent pointing out that in view of Section 164(2) of the Companies Act, 2013, the Directors of the Yogam stand disqualified. According to the petitioner, the Yogam and persons who claim to be its Directors are taking advantage of absence of a proper and effective regulatory frame work. The petitioner urged that respondents 4 to 7, who are General Secretary, President, Vice President and Devaswom Secretary of the Yogam, stand disqualified for being Directors of the Yogam since the year 2017. But, they are reappointed as Directors from time to time.

5. The petitioner further alleged that the Yogam administers more than 40 Schools and 4 Colleges and respondents 4 to 7 are making appointments to various posts in the Schools and Colleges illegally. They are making amendments to the bye-laws without prior sanction of the Government. Local Branches and Unions of the Yogam are appointed and dismissed indiscriminately to stiffle dissent. As the Directors of the Yogam are disqualified, an Administrator has to be appointed for day to day functions and to conduct elections in accordance with law.

6. Respondents 3 to 7 filed a counter affidavit and defended the writ petition. Respondents 3 to 7 stated that Section 164(2) of the Companies Act, 2013 only prescribes that a person who is or has been a Director of a Company, which has not filed financial statements or annual returns for a continuous period of three financial years, is not eligible to be reappointed as a Director of the Company or appointed as Directors of any other Company for 5 years from the date of default. Therefore, attribution of disqualif