The main legal point established in the judgment is that the exemption order (Ext.P5) issued under the Companies Act, 1956 was without authority of law, and the Articles of Association of the Yogam restricting the voting rights of its members were declared ultra-vires the statutory provisions.

JUDGMENT :

T.R. RAVI, J.

1. The reliefs sought for in these writ petitions are intrinsically connected and the writ petitions are hence being heard and disposed of together.

W.P. (C) No. 8382/2020

2. This writ petition has been filed praying to quash Ext.P5 order issued by the 3rd respondent whereby M/s. Sree Narayana Dharma Paripalana Yogam (hereinafter referred to as ‘the Yogam’) was exempted from the provisions of Sections 172(2), 219 and Article 14 of Table-C of Schedule I of the Companies Act, 1956 (hereinafter referred to as ‘the Act’) in exercise of the power conferred under Section 25(6) of the Act. The petitioner has also prayed for a declaration that clause 44 of the Articles of Association of the Yogam is ultra-vires the Union, illegal and unenforceable in law and for a writ of mandamus appointing an independent and responsible person or persons as Administrator/ Administrators for the Yogam for the purpose of preparing a true and correct voters' list of the members and to conduct the election thereafter.

W.P. (C) No. 1385/2021

3. The writ petition has been filed praying for a writ of certiorari to quash Ext.P2 order issued by the 3rd respondent (Ext.P5 in W.P. (C) No. 8382/2020) or in the alternative to declare Ext.P2 as having been rendered without jurisdiction, obtained by fraud, misrepresentation and suppression of facts and therefore liable to be quashed. The petitioner has also sought for a declaration that every member of the Yogam has a right to vote at any election to be held by the Yogam. Unless otherwise indicated, the reference to documents in this judgment are as they are referred to in W.P. (C) No. 8382 of 2020.

FACTS RELEVANT FOR DECIDING THE DISPUTE:

4. The Yogam was originally incorporated as a Company under Regulation 1 of 1063 of Travancore Regulations, which was the equivalent of the Indian Companies Act, 1882. Ext.P1 is the copy of the Certificate of Incorporation of the Yogam and it is dated 15.05.1903. Ext.P1 would show that the Yogam was formed for the purpose of promoting and encouraging religious and secular education and industrious habits among the ‘Ezhava’ community and the doing all such other things as are incidental or conducive to the attainment of the above said objects with limited liability, but without the addition of the word ‘Limited’ to its name. Such a form of registration was permissible under Section 26 of the Indian Companies Act, 1882 which corresponds to Section 25 of the Companies Act, 1956. The Yogam continued to be governed by the Companies Act, 1956. The Kerala Non-Trading Companies Act, 1961 (Act 42 of 1961) (hereinafter referred to as the Kerala Act) came into force with effect from 01.03.1962. A copy of the Act has been produced as Ext.P1 in W.P. (C) No. 1385/2021. As per the preamble to the Kerala Act, its purpose is to provide for the incorporation, regulation and winding up of Companies, other than trading corporations (including banking, insurance and financial corporations), with objects confined to the State of Kerala. The petitioners as well as the contesting respondents (Yogam) are now in agreement, that by virtue of the Kerala Act, the Yogam is governed by the Kerala Act and not by the Companies Act, 1956 and its successor enactment. In 1968, regulations were issued under the Kerala Act and Regulation 6 stipulated that the Memorandum of Association of the proposed company shall be in the Form specified in Annexure 1 or in a Form as near to, as circumstances admit. Clause 5(6) of Annexure 1 says that no alteration shall be made to the Memorandum of Association or to the Articles of Association of the Company which are for the time being in force, unless the alteration has been previously submitted to and approved by the Government.

5. Ext.P4 is the Articles of Association of the Yogam, of the year 1966. Clause 47 of Ext.P4 which is in the vernacular, when translated to English says that in the general meeting of the Yogam, the members of the Director Board, Union P