Committee of Management, Maharajganj Inter College v. Deputy Director of Education
1987-04-22
A.P.MISRA, B.N.MISRA
body1987
DigiLaw.ai
JUDGMENT A.P. Misra, J. - The petitioner by means of the present writ petition has sought for a writ of certiorari quashing the order dated 25th Oct., 1986 (Annex-9 to the writ petition) passed by the District Inspector of Schools, Azamgarh (respondent No. 2). By means of this order the earlier order dated 28th July, 1986 passed by the same authority (Annex.-8 to the writ petition) was recalled. Annexure-8 to the writ petition was the order on the question whether the election for the constitution of the Committee of Management held on 26th January, 1986 was valid or not. But the said authority held that on the basis of the papers produced before him it is revealed that the members who participated in the said election were not admitted as such by the Society but by the Committee of Management and similarly the removal of the founder members namely Sri Patiraj Shukla and Sri Qazi Khalilur Rehman (petitioner No. 2) was also not by the Society but by the Committee of Management which is in violation of the rules and thus it is held that the constitution of Committee of Management by means of the election dated 26th Jan., 1986 was not accepted. 2. The litigation between the parties has a long history and it is relevant to refer shortly for proper appreciation of the dispute between the parties. The institution known as Maharajganj Inter College in the district of Azamgarh also known as Maharajganj Higher Secondary School managed and run by a registered Society known as "Lok Kalyan Samiti". The said institution is managed by the Committee of Management. It seems that after the election in the year 1968 the litigation started between various factions of the Committee of Management which resulted into appointment of a Receiver and the matter proceeded in the civil Court and finally that matter is still pending before this Court in the Second Appeal. Sometimes in the year 1968 as aforesaid one Sri Ram Badan Singh, the Secretary of the said society instituted a suit in the Court of the Munsif Haveli, Azamgarh. The suit was numbered as Suit No. 96 of 1968 in which he sought for an injunction restraining one Sri Abdul Aziz and others from interfering with the plaintiffs right.
Sometimes in the year 1968 as aforesaid one Sri Ram Badan Singh, the Secretary of the said society instituted a suit in the Court of the Munsif Haveli, Azamgarh. The suit was numbered as Suit No. 96 of 1968 in which he sought for an injunction restraining one Sri Abdul Aziz and others from interfering with the plaintiffs right. Initially, injunction was granted by the Court and was maintained by the appellate Court, but in revision this Court appointed Sub-Divisional Magistrate, Sagri to act as a Receiver during the pendency of the said suit. Then, it seems one Sri Sudarshan Singh along with some other members of the society is alleged to have entered into a compromise and on that basis obtained orders treating him to be the Manager. Subsequently, the aforesaid plaintiff filed an application for setting aside the aforesaid compromise decree, which was finally upheld by this Court in a writ petition filed by Sri Abdul Aziz and others in the same proceedings. On account of setting aside, the learned Munsif ordered the Receiver to maintain status quo and put back the Sub-Divisional Magistrate, Sagri who was the Receiver earlier to manage the affairs of the college. Even this order was challenged in appeal, but the same in respect of this was dismissed. Thereafter, a writ petition was also filed as against the said order initially, though stay order was granted but was subsequently vacated after hearing counsel for the parties. In the meanwhile, the Deputy Director of Education, VII Region, Gorakhpur by means of order dated 11th May, 1981, recognised Sri Sudarshan Singh as Manger and when this fact came to the notice of the aforesaid Ram Badan Singh he challenged the same by means of Writ Petition No. 7233 of 1981. This impugned order was passed under S. 16-A(7) of the U. P. Intermediate Education Act. This Court on 6th July, 1981, stayed the operation of the said order. However, the stay order passed was vacated on account of which a fresh election for the Committee of Management was held in the year 1982. A dispute arose then between the two Committees of Management one which was headed by Qazi Khalilur Rahman (petitioner No. 2) and other headed by Sudarshan Singh since deceased and replaced by his son Jai Bahadur Singh.
A dispute arose then between the two Committees of Management one which was headed by Qazi Khalilur Rahman (petitioner No. 2) and other headed by Sudarshan Singh since deceased and replaced by his son Jai Bahadur Singh. Petitioner No. 2 claimed that the election was held in June, 1982 whereas Sudarshan Singh claimed it to have been held in October, 1982. Both the parties denied the claim of each other. The District Inspector of Schools, respondent No. 2 after considering rival claim accepted petitioner No. 2 as Manager of the institution by attesting his signature on 28-12-1983. Feeling aggrieved against this order Jai Bahadur Singh filed Civil Misc. Writ Petition No. 572 of 1984. Initially this Court granted stay of the impugned order of that writ petition. Thereafter the District Inspector of Schools attested the signature of Jai Bahadur , Singh as the Manager. Aggrieved as against that petitioner No. 2 filed Civil Misc. Writ Petition No. 1301 of 1984. The latter writ petition was connected with the earlier. Finally this Court in the latter writ petition came to the conclusion that "prima facie the order of ; District Inspector of Schools attesting signatures of Sri Jai Bahadur Sing due to any order in Civil Misc. Writ Petition No. 572 of 1984 is illegal hardly admits of any doubt. Once it was held by him that selection of Sri Jai Bahadur Singh was invalid as he was not a member of Society or that meeting was not properly held the District Inspector of Schools could not attest his signature so long this order was set aside merely because other order in favour of Qazi Khalilur Rahman was stayed; nor did this Court give such direction while admitting Civil Misc. Writ Petition No. 572 of 1984". It is also pertinent to mention here that petitioner No. 2 claimed himself to be the Manager on the basis of the alleged resolution dated 22nd June, 1982 The District Inspector of Schools rejected his application for attesting his signature on 13th July, 1982 This order was challenged by petitioner No. 2 by means of Civil Misc. Writ Petition No. 12991 of 1982. which was finally dismissed on 17th Jan., 1983. 3. Finally this Court directed the District Inspector of Schools to decide as to whether Jai Bahadur Singh was validly elected as Manager in place of Sudarshan Singh after his death within six weeks.
Writ Petition No. 12991 of 1982. which was finally dismissed on 17th Jan., 1983. 3. Finally this Court directed the District Inspector of Schools to decide as to whether Jai Bahadur Singh was validly elected as Manager in place of Sudarshan Singh after his death within six weeks. Subsequently, the District Inspector of Schools after considering the matter came to the conclusion that by means of order dated 15th Oct., 1984 Jai Bahadur Singh could not be Manager of the institution inasmuch as he was not even a member of the Society. 4. Thereafter Jai Bahadur Singh challenged the validity of the aforesaid order dated 15th Oct., 1984, in the aforesaid Civil Misc. Writ Petition No. 572 of 1984 and this Court on 20th March, 1985 passed the order that in furtherance of interim order passed earlier in Civil Misc. Writ Petition No. 572 of 1998 direction was issued that the operation of the order passed by the District Inspector of Schools in so far as it purports to recognise : Qazi Khalilur Rahman and his Committee of Management. I shall remain stayed but the , election of Jai Bahadur Singh in place of Sudarshan Singh who admittedly died some time in the year 1983, shall stand vacated. Further direction issued to the Committee of Management of which Sudarshan Singh was Manager, was to hold fresh election and elect a new Manager in his place. 5. In pursuance of the aforesaid order passed by this Court it is alleged that the election took place in which it was shown that Sri Sant Vijai Singh had been elected as Manager and the report of the said election was sent to the District Inspector of Schools. This election is alleged to be forged by the petitioner. However, on the receipt of the said information, the District Inspector of Schools issued notice to the petitioner No. 2 (Annex.-4 to the writ petition) on 15th June, 1985 for presenting his case on 2nd July, 1985. Against the said notice petitioner No. 2 filed a reply on 7th May, 1985. It is alleged by the petitioner that for the first time Sant Vijai Singh moved an application in this Court that his signature be attested by the Manager on which only time was granted to the. Standing Counsel.
Against the said notice petitioner No. 2 filed a reply on 7th May, 1985. It is alleged by the petitioner that for the first time Sant Vijai Singh moved an application in this Court that his signature be attested by the Manager on which only time was granted to the. Standing Counsel. It is further urged by the petitioner that it was represented on behalf of Sant Vijai Singh that the District Inspector of Schools had committed contempt and actually under this impression he attested the signature of Vijai Singh as Manager without applying his mind on 18th Dec., 1985. It is further urged that no reason has been given in the said order dated 18th Dec., 1985. It is also the petitioners case that the District Inspector of Schools did not decide any of the controversies raised on behalf of the petitioner of Writ Petition No. 1301 of 1984 and he has not even considered as to who were the persons who were entitled to participate in the election. In the last the matter came up for consideration before this Court and this court on 11th Feb., 1986 passed the following order :- "Having heard learned counsel for the parties it cannot be disputed that District Inspector of Schools did not act properly in recognising Sant Vijai Singh as Manager for purpose of holding election only. It was incumbent on him to decide if he was duly elected. But he adopted strange course of by - passing order of this Court. But since fresh elections claim to have been held it is futile to pass any order. The petitioner, if aggrieved may approach the appropriate authority against the alleged election." The petitioner referred in the aforesaid order is really petitioner No. 2 in the present petition. It is also revealed from the earlier para of the same order that it was represented by respondent No. 3 in that case that fresh election of the Committee of Management has taken place on 26th Jan., 1986 and, therefore, the controversy that Sant Vijai Singh was duly recognised by the District Inspector of Schools or not has lost all its efficacy. 6. Thus the contest between the parties continued, each claiming to be the rightful person representing the proper Committee of Management duly elected in accordance with law.
6. Thus the contest between the parties continued, each claiming to be the rightful person representing the proper Committee of Management duly elected in accordance with law. However, it is relevant to mention here that after passing the aforesaid order dated 11th Feb., 1986, the main question which turned was whether the election held on 26th Jan., 1986 was proper or not. If the said election was properly held in accordance with law, the petitioner would have no say in the matter as then there would be duly constituted Committee of Management. However, if the aforesaid election was to be held as illegal, then the claim of respondents Nos. 3 and 4 could not be sustained and fresh consequence will follow for holding fresh election. It is not necessary for giving details of various other litigation for the purpose of disposal of the present writ petition. 7. Annexure-8 to the writ petition is the order on the basis of which the petitioner is claiming his right and it is the order passed in this annexure which has been recalled by order dated 25th Oct., 1986 (Annex.-9 of the present writ petition) which is impugned order of this writ petition. Therefore, it is necessary to give details of the two annexures for proper appreciation of the facts for adjudicating the claim of the parties. Annexure-8 of the writ petition is an order passed by the District Inspector of Schools on 28th July, 1986 and this order is communicated to Sri Dhanush Dhari Singh who is respondent No. 4. It is significant to mention here that by means of order dated 11th Feb., 1986 as aforesaid, this Court did not decide the question regarding the validity of the constitution of the Committee of Management which is said to have been elected on 26th Jan., 1986.
It is significant to mention here that by means of order dated 11th Feb., 1986 as aforesaid, this Court did not decide the question regarding the validity of the constitution of the Committee of Management which is said to have been elected on 26th Jan., 1986. By means of the aforesaid Annex.-8 to the writ petition the District Inspector of Schools came to the conclusion that the Committee of Management which is alleged to have been constituted on the basis of the election held on 26th Jan., 1986 could not be legally acceptable as on perusal of the documents produced before him it is revealed that the members who were admitted as members and who participated in the said election were admitted as members not by the Society but by the Committee of Management and similarly the founder members namely, Sri Patiraj Shukla and Khalilur Rahman were removed only by the Committee of Management. It seems, after communication of the said order Annex.-8 to the writ petition, another letter dated 6th Aug., 1986 was sent by respondent No. 4 to the District Inspector of Schools for reconsideration of the earlier order and the District Inspector of Schools by means of order dated 28th Oct., 1986 came to the conclusion that after reconsideration on the basis of the aforesaid letter of respondent No. 4 along with the record produced by him he is convinced that the opposite parties obtained the order dated 28th July, 1986 by concealment and misrepresentation of the facts. He finally held that the Committee of Management as elected on 26th Jan., 1986 was the validly constituted Committee of Management and the signature of Sant Vijai Singh as Manager was attested. He thus recalled the order dated 28th July, 1986 and order for single operation was accordingly terminated and a direction was issued for operation of account by Sant Vijai Singh. respondent No. 3 of the writ petition. 8. The main contention raised by the learned counsel for the petitioners was that the impugned order was passed without giving any opportunity to the petitioner and thus it violated the principles of natural justice. It was urged that once the order dated 28th July, 1986 was passed in which it is held that the constitution of Committee of Management on the basis of election on 26th Jan.
It was urged that once the order dated 28th July, 1986 was passed in which it is held that the constitution of Committee of Management on the basis of election on 26th Jan. 1986 was invalid, the same could not be recalled without giving opportunity to the petitioner. On the f other hand, the learned counsel for the respondent Nos. 3 and 4 strenuously urged that the petitioner has no locus standi to file the present writ petition nor he can claim any right of being heard before recalling of the said order. It was also urged that no person can claim principles of natural justice who himself has no subsisting right. It is also urged that the order dated 28th July, 1986 was not passed after hearing the petitioner. Thus even on this account he has no right to be heard when the said order was recalled. 9. Learned counsel for the respondent Nos. 3 and 4 really produced before us the original register to show that the petitioner No. 2 was not removed by the Committee of Management but was really removed by the Society and thus the order dated 28th July, 1986 was obtained on this misrepresentation. It is also urged by the learned counsel for the 11 petitioner that petitioner No. 2 was removed as far back as on 13th June, 1982 and he having not challenged so far in any proceedings nor he has averred anything in this writ petition, could not be entitled to raise the same in the present writ petition. In fact, the bone of contention of the parties is, according to the petitioner, the meeting dated 13th June, 1982 was meeting of the Committee of Management and not of the Society while that of respondents Nos. 3 and 4 it was that of Society. 10. Coming to the first question raised by the learned counsel for the petitioners whether the principles of natural justice has been violated or not it is significant once again to revert to Annex.-8 to the petition. In the said order dated 28th July, 1986, no doubt there is reference of some letter dated nil of respondent No. 4 on the basis of which respondents were claiming to have constituted a Committee of Management on 26th Jan., 1986 and further the said order does not refer the petitioner whether he was heard or not.
In the said order dated 28th July, 1986, no doubt there is reference of some letter dated nil of respondent No. 4 on the basis of which respondents were claiming to have constituted a Committee of Management on 26th Jan., 1986 and further the said order does not refer the petitioner whether he was heard or not. But it is significant that there is reference of the founder members including petitioner No. 2 of having been illegally debarred by the Committee of Management and this was also the consideration for holding the constitution of the Committee of Management to be illegal, apart from other illegality referred in that order. 10A. We are of the clear opinion that it cannot be doubted that this order dated 28th July, 1986 recognised right in favour of petitioner No. 2. Once a right either created or recognised by means of an order, it cannot be argued that the said order could be withdrawn even without hearing the said person. In such a situation it is incumbent on the said authority before withdrawing the same to give an opportunity to the said person. 11. In the present case as is revealed by the impugned order dated 25th Oct., 1986 that the opposite parties by concealment and misrepresentation obtained the order dated 28th July, 1986. Thus respondent cannot say that the earlier order was passed only after hearing respondent No. 4 on that matter or without hearing any one else. No doubt, Annex.-8 to the writ petition does not disclose clearly but on reading the impugned order it is abundantly clear that the opposite parties obtained earlier order dated 28th July, 1986 by means of misrepresentation and concealment of facts. Even before us, learned counsel for respondent No. 3 could not clearly come out as to who were those opposite parties as referred in the said order. On the other hand, the learned counsel for the petitioner urged that the petitioners were heard on this fact and it has been admitted by respondent No. 4 in Para. 19 of the counter affidavit. Relevant extract of Para.
On the other hand, the learned counsel for the petitioner urged that the petitioners were heard on this fact and it has been admitted by respondent No. 4 in Para. 19 of the counter affidavit. Relevant extract of Para. 19 of the counter affidavit is quoted here in under: "It is further important to state here that the District Inspector of Schools may review this earlier order if found to have been obtained by fraud or misrepresentation of facts and in this present case, the order dated 28-7-1986 passed by the District Inspector of Schools was passed under misrepresentation of facts which was placed by the petitioner and the real picture has been placed before the District Inspector of Schools by the respondent No. 4." Thus it would be evident that the question whether the petitioner was heard in Annexure-8 to the writ petition or not in view of the aforesaid admission of respondents Nos. 3 and 4, could not create any doubt. The said admission makes it clear that the petitioners were heard when the earlier order dated 28th July, 1986 was passed. 12. Learned counsel for respondents Nos. 3 and 4 further urged that his averments in the counter affidavit may be excluded and the case be decided only up on the basis of the averments made in the writ petition. Such contention cannot be sustained after exchange of affidavits. In this case not only regular counter and rejoinder affidavits but even supplementary counter and rejoinder affidavits have been filed. This is a case having long ex-chequered history as aforesaid. 13. Even if, for the purpose of argument, for the time being, it is to be accepted, it cannot be said that no opportunity should be given to the petitioner in recalling the said order as admittedly the order dated 28th July, 1986 clearly refers the name of petitioner No. 2 and the said authority in effect hold that the removal of petitioner No. 2 along with other founder members could not be sustained. 14. In view of the aforesaid facts we are clearly of opinion that the impugned order dated 25th Oct., 1986 (Annexure-9 to the writ petition) could not be sustained as the said order was passed in violation of principles of natural justice without giving any opportunity to the petitioner. 15.
14. In view of the aforesaid facts we are clearly of opinion that the impugned order dated 25th Oct., 1986 (Annexure-9 to the writ petition) could not be sustained as the said order was passed in violation of principles of natural justice without giving any opportunity to the petitioner. 15. Learned counsel for the respondents strenuously urged that the petitioner has no locus standi to challenge the impugned order as he has been removed in June, 1982 and he having not challenged the said order, he has no right to file the present writ petition. As aforesaid, the learned counsel for the respondents even produced certain registers to show that the removal of petitioner No. 2 was not by the Committee of Management but by the Society. Learned counsel for the petitioners, on the other hand, challenged the said register and further urged that the proceeding for the relevant date in the said register shows that said meeting was only of its founder members and not of all members of the society. It was urged that the signing was only by five members which was below the quorum. In fact, he urged that the proceeding could not be accepted by this Court in the present proceeding. 16. The question of locus standi raised before the Court could be gone into only where the basic facts are not in dispute, in this case the bone of contention of each party has been both here and before the authority who passed the impugned order whether the removal of the petitioner was by the Committee of Management or by the Society. This question is a question basically of the facts and it is not possible for this Court to arrive at the conclusion on the basis of various registers and other documents which are challenged by other side. Thus we are of the opinion that the present writ petition cannot be thrown on the basis that the petitioner has no locus standi. 17. Learned counsel for the respondents further urged that under the Scheme of Administration these questions cannot be decided by any authority except by the authority mentioned in the Scheme of Administration. However, these are the questions on which we would not like to express any opinion. It is always open to a party to press the facts and law before the authority where the question is raised. 18.
However, these are the questions on which we would not like to express any opinion. It is always open to a party to press the facts and law before the authority where the question is raised. 18. Learned counsel for the respondents also with great vehemence urged that in any case the principles of natural justice are applicable only where some ones civil right is affected. Where no civil right is affected, the party cannot urge the violation of principles of natural justice and thus it was urged that the present writ petition should be rejected on this ground alone. For this purpose learned counsel for the respondents made reliance on the various authorities. We deliberately are not referring to them as the principles laid down in those authorities is never in doubt and is not challenged by the learned counsel for the petitioners. Only question is whether in the present case any civil right of the petitioners is affected or not. It is not disputed that the petitioner No. 2 was a founder member and it has been urged that he has been legally removed in accordance with law while the other side urged that his removal is not proper as it was done by the Committee of Management. This definitely is a question of continuance of petitioner No. 2 as a founder member on the Committee of Management which is the main body which manages the institution as aforesaid.Right of every individual to participate in the said Committee of Management is a right of the civil nature and admittedly if that right is being taken away or is alleged to have been extinct which is challenged by the petitioner it cannot be said that no civil right of the petitioner is affected. Once the civil right is affected, then the principles of natural justice comes into play if that right is taken away without giving any opportunity. 19. Finally, the learned counsel for respondents urged that on account of swear clause of the affidavit in the present writ petition in which every paragraph is stated to have been based on the personal knowledge, should not be accepted as the affidavit is sworn by Sri Surendra Nath Singh who is said to be the pairokar of the petitioner. For this proposition, he relied on the decision given in A.K.K. Nambiar v. Union of India, AIR 1970 SC 652 .
For this proposition, he relied on the decision given in A.K.K. Nambiar v. Union of India, AIR 1970 SC 652 . Relevant para is quoted here in under : "The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations maybe true to knowledge or allegations may be tree. to information received from persons o allegations may be based on records. The importance of verification is to test genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification it me ring required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. In absence of proper verification, affidavits cannot be admitted in evidence." In reply the learned counsel for the Petitioners urged that in fact, Surendra Nath Singh has been closely associated with the petitioner who for the last several years in various writ petitions referred to above, has been filing the affidavits on behalf of the petitioner and has got personal knowledge for these matters and, therefore, on this account the writ petition is not liable to be rejected. 20. It is true that the swearing clause has not been very happily sworn in and in our feeling it is very necessary and it is also the onerous duty of the counsel while getting the said swearing done to take care ;hat every para of the facts stated in the said affidavit is sworn properly either on the basis of personal knowledge or on the basis of the record or on the basis of the information received by naming the person who has given the said information. However, in the present case the main question on which we have to decide this writ petition was whether there was any opportunity given to the petitioner or not before passing the impugned order (Annexure-9 to the writ petition). For this what is required was merely perusal of Annexures 8 and 9 of the writ petition and para 19 of the counter affidavit. Even for the time being if it could be said that some paras of the affidavit should not be accepted, there would be no difference in the result.
For this what is required was merely perusal of Annexures 8 and 9 of the writ petition and para 19 of the counter affidavit. Even for the time being if it could be said that some paras of the affidavit should not be accepted, there would be no difference in the result. As aforesaid, the question whether any opportunity was given to the petitioner or not is revealed by the two Annexures visa vis Annexures Band 9, which is not disputed by the respondents and admission by them in para 19 of the counter affidavit. In view of this even this objection raised by the counsel for the respondents Nos. 3 and 4 is not sustainable. 21. In view of the aforesaid facts and circumstances and we having found that the petitioner was not given any opportunity before passing the impugned order dated 25th Oct., 1986 which resulted into violation of principles of natural justice, the said order could not be sustained. 22. In the end the learned counsel for the petitioners urged that the District Inspector of Schools has no authority to review his earlier order dated 28th July, 1986 as he has no power to review. This argument cannot be sustained. It has been held and the matter is settled in law that the District Inspector of Schools has power to review only in case where there has been misrepresentation, concealment of facts by the party or fraud is committed in obtaining the order. In the present case it has been stated by the District Inspector of Schools that the earlier order was passed by concealment of facts and misrepresentation. Thus it cannot be said that the District Inspector of Schools has no jurisdiction to review his earlier order. In the alternative it has been urged by the learned counsel for the petitioners that actually there was no concealment or misrepresentation of facts and the District Inspector of Schools has wrongly recorded it. This is a question in which we are of opinion that it is not necessary for us to go into it. Since the impugned order is being quashed, it is for the petitioners to raise the question before the District Inspector of Schools whether there was any concealment or misrepresentation or not. 23.
This is a question in which we are of opinion that it is not necessary for us to go into it. Since the impugned order is being quashed, it is for the petitioners to raise the question before the District Inspector of Schools whether there was any concealment or misrepresentation or not. 23. In the result, the impugned order dated 25th Oct., 1986 is quashed and respondent No. 2 is directed to decide afresh the application dated 6th Aug., 1986 made by respondent No. 4 for recalling the earlier order dated 28th July, 1986 after giving opportunity to both the parties namely the petitioners and respondents Nos. 3 and 4. Costs on parties.