Chandra Bhal Singh v. State of U. P — 1990 DIGILAW 1163 (ALL)

JUDGMENT B.L. Yadav, J. - Whether opportunity of showing cause against the irregularities noticed in the working of the committee of Management of Mahabir Intermediate College, Bichiya Venkat, Varanasi, (For short the constitution), was afforded to the petitioners' and whether the impugned order dated 3-8-1990 (Annexure-23 to the petition), passed by the State Government contain reasons before appointing the Authorised Controller as required by Section 16D(6) of the U.P. Intermediate Education Act, 1921, (For short the Act); and whether the provisions of Section 5 of the U.P. Educational Institutions (Prevention of Dissipation of Assets) Act, 1974, (For short the Act of 1474), were mandatory, are the short questions that fall for determination in the present petition filed by the petitioners, the Manager and the Committee of a Management of the institution under Article 226 of the Constitution of India (sic) the prayer that the impugned order may be quashed. 2. The factual matrix of the case is that the institution was a recognised institution under the provisions of the Act and the same is run by a registered society. Certain irregularities in the management of the institution were pointed out including the transfer of certain land of the institution without the prior written sanction of the Director of Education and a number of other financial irregularities were also brought to the notice of the Manager of the institution by the order dated 18.7.89 passed by the Additional Director of Education (Annexure-18 to the petition), and they were replied so by the petitioners in detail (vide Annexure-19 to the petition). After considering the reply of the petitioners a notice under Section 16D(3) of the Act was served on the petitioners indicating that after perusal of the reply sent by the petitioners (Annexure-19) it was found that there are a number of irregularities in the institution and that the institution was run in complete disregard of the provisions of the Act rules and the departmental instructions and Government orders. A notice of show cause was served on the petitioners indicating as to why no action under Section 16D(4) of the Act may be taken and for that purpose recommendation may be made to the State Government. After considering the show cause reply of the petitioners, the impugned order dated 3.8.90 has been passed. 3. A notice of show cause was served on the petitioners indicating as to why no action under Section 16D(4) of the Act may be taken and for that purpose recommendation may be made to the State Government. After considering the show cause reply of the petitioners, the impugned order dated 3.8.90 has been passed. 3. Sri G.C. Dwivedi, learned counsel for the petitioners urged that opportunity of showing cause was not given to the petitioners and that the impugned order did not contain reasons as required by Section 16D(6) of the Act. He further urged that under the circumstances, the prior written sanction of the director of the Education was not required as envisaged by Section 5 of the Act of 1974 as the situation prevailing in the institution was of an unprecedented nature and in any case Section 5 of the Act of 1974 was directory in nature, hence even if no written sanction of the Director of Education was obtained, there was no irregularity, Reliance was placed on State of U.P. v. The Committee of Management, Arya Kanya intermediate College, AIR. 1973 458, and Committee of Management S.S.B.L. Intermediate College, Deoria, v. State of U.P. others 1979 ACJ. 522. 4. Sri R.N. Singh, learned counsel appearing for Sri Uridhi Narain Singh, added as respondent No. 6 by order of this court dated 5.10.90, passed on the application of impleadment urged that sufficient opportunity of showing cause was afforded and even after considering the explanation and reply of the petitioners it was found that there were a number of irregularities prevailing in the institution, hence the impugned order was passed recording sufficient reasons as required by Section 16D(4) of the Act; and that the provision of Section 5 of the Act of 1974 was mandatory. As no prior written sanction of the Director of Education was obtained, hence the sale deeds of the properties of the institution was illegal and after considering the cause shown by the Committee of Management, the State Government was satisfied that the grounds mentioned in Section 16D(3)(v) and (vi) of the Act existed and the affairs of the institution were being mismanaged and that the impugned order contains reasons and no ground for issuance of a writ of Certiorari was made out. 5. 5. Sri M.C. Dwivedi, learned standing Counsel, however, adopted the arguments advanced by Sri R.N. Singh, Learned Counsel appearing for respondent No. 6. 6. As regards the first question about the lack of opportunity of showing cause as contemplated by Section 16D(4) of the Act, it is sufficient to indicate that a number of financial and other irregularities as contemplated by Section 16D(3)(v) and (vi) of the Act were brought to the notice of the petitioners (Annexure-18) and the institution was directed to remove those irregularities within 12 days and submit four copies of the report and reply. The said reply of the petitioner was submitted vide Annexure-19 and those replies of the petitioner to the show cause notice were considered by the Director and he was satisfied that the grounds mentioned in sub-section (3) of Section 16D(v) and (vi) existed and consequently another notice was sent to the institution vide Annexure-20 as to why not the recommendation may be made to the State Government as contemplated by Section 16D(4) of the Act for appointment of an authorised Controller. That notice was also replied by the petitioners by Annexure-21 and after taking into account the said recommendation of the Director and the replies given to the show cause notice, the impugned order has been passed. Consequently twice the notice for show cause was issued to the petitioners. In the impugned order in para. 3 it has been clearly stated that the recommendations of the Director were considered and thereafter the replies of the institution were also considered. (To quote the exact words): " izcU/k ls izkIr mRrj ds voyksdu ls ;g ik;k x;k gS fd muds }kjk okLro esa fdlh Hkh vfu;ferrk dk fujkdj.k ugha fd;k x;kA " Again on the next page of the impugned order it has been stated that after considering the reply of the institution to the show cause notice the order was passed. Reasons have also been given including the reason that under Section 5 of the Act of 1974 the prior written sanction of the Director was not obtained before making the sale deed of the properties of the institution. It was not proved by the petitioners that the transfer of land specified in the impugned order was necessary or beneficial or the same was expedient in the interest of the institution. It was not proved by the petitioners that the transfer of land specified in the impugned order was necessary or beneficial or the same was expedient in the interest of the institution. Similarly other reasons for irregularities have also been pointed out in the impugned order. Consequently, it cannot be said that the opportunity of showing cause was not afforded to petitioners. 7. As regards the second submission that reasons have not been recorded, suffice it to say that a perusal of the impugned order indicates that it contain reasons including that a number of plots of the institution were transferred by the Manager in complete disregard of the provisions of Section 5 of the Act of 1974 without obtaining the prior written sanction of the Director. Similarly other reasons as contemplated by Section 16D(4) of the Act have also been indicated. 8. In the State of U.P. v. The Committee of Management. Arya Kanya Inter College, (Supra), neither any opportunity was given to the institution for showing cause nor in the impugned order instances of the mismanagement prevalent in the institution were indicated, rather it has completely violated the report of the Director and on that basis it was held that the impugned order violated the principles of natural justice, (vide para. 2 page 459). In the present case the facts are entirely different. The opportunity has been sufficiently afforded twice and reasons have been recorded and mismanagement has also been pointed out. Consequently the case of the State of U.P. v. Committee of Management, Arya Kanya Inter College, (Supra), is clearly distinguishable. 9. The Committee of Management, S.S.B.L. Intermediate College v. State of U.P. (Supra), may be distinguished with profound regards. That was a case under unamended Section 16D(5A) of the Act under which the requirement was that the order of the State Government must contain special and exceptional reasons. But that provision has now been amended that the special and exceptional reasons need not be recorded. Those reasons have to be recorded and the opinion of the State Government has to be formed with reference to the irregularities and mismanagement. Consequently that case was under the old provisions of Section 16D(5-A) of the Act which was no longer in operation. Hence no assistance can be derived from that case. 10. Those reasons have to be recorded and the opinion of the State Government has to be formed with reference to the irregularities and mismanagement. Consequently that case was under the old provisions of Section 16D(5-A) of the Act which was no longer in operation. Hence no assistance can be derived from that case. 10. Now reverting to the point as to whether the provisions of Section 5 of the Act of 1974 is mandatory, it is beneficial to set out the provisions of Section 5 as follows: 5. Previous approval necessary for transfer of property:--1. Notwithstanding anything in any other law for the time being in force, no transfer of property belonging to or endowed for purpose of an educational institution shall be valid unless prior written sanction of the Director, on the ground to the transfer being necessary or beneficial to or expedient in the interest of the institution has been obtained. 2. The management, if aggrieved by an order of the Director refusing sanction under sub-section (1) may within thirty days from the date or communication thereof to it appeal against that order to the District judge within whose jurisdiction the said institution or the property concerned lies, and the order of the District Judge in appeal shall be final. 11. The manifest object and purpose of the Act was to provide for measures to prevent dissipation of assets of an educational institution and for that purpose section 5 was brought on the statute book which opens with a non obstinate clause with the words 'notwithstanding anything in any other law for the time being in force'. If the object of the Act would have been otherwise, the language employed by the legislature under Section 5 could have been differently worded instead of using the language "unless prior written sanction of the Director was obtained, and while obtaining the written sanction of the Director, the institution would have shown as to on which ground the transfer was necessary and whether it was beneficial or expedient in the interest of the institution or not. Nothing was shown by the petitioners. However, even if the sanction would have been refused, the provision for appeal has been made under sub-section (2) of Section 5. Nothing was shown by the petitioners. However, even if the sanction would have been refused, the provision for appeal has been made under sub-section (2) of Section 5. In case the provisions of Section 5 were deemed to have been operative as directory, the penalty for non-compliance of provisions of Section 5 of the Act of 1974 would not have been provided under Section 7 of the Act. In case the provisions of Section 5 are held to be directory that would reduce the legislation to futility and would fail to achieve the manifest purpose of the legislation. Section 5 was brought on the statute book only for preventing mismanagement of the properties of the institution. In that event out of two constructions possible to be placed on Section 5, the bolder construction has to be adopted. In case two particular constructions are open that alternative list to be chosen which would be consistent with the smooth working of the system which the statute purports to be regulating. (See Nokes v. Doncaster Amalgamated Collieries Ltd. 1940 AC 1014 page 1022 and Engineer Industry Training Board v. Samuel Telbot (Engineers) Ltd. (1969) 2 WL 464). I am accordingly of the view that the only interpretation of section 5 which would be consistent with the object and purpose of the Act would be that Section 5 is held to be mandatory and its failure on the part of the institution to comply with the said provision would certainly be with a view to reduce the said provision to be a futility. 12. As regards the next submission about the discretion of issuance of a writ of Certiorari, it is now well settled that writ of certiorari is a discretionary remedy available to a petitioner under Article 226 of the Constitution of India and for issuance of the same either the authority must have acted without jurisdiction or it has refused to exercise jurisdiction or there was error much apparent on the face of record. In the present case no such error much less an error apparent on the face of record, has been pointed out. Further, writ of certiorari could not be issued as a matter of course, rather it has to be issued on sufficient in justice being shown. In the present case no such error much less an error apparent on the face of record, has been pointed out. Further, writ of certiorari could not be issued as a matter of course, rather it has to be issued on sufficient in justice being shown. It the instant case substantial justice has been done by the impugned order, in as much as a number of irregularities were committed by the petitioners. Even the properties of the institution were sold without any authority and genuine cause and without obtaining prior written sanction of the Director as contemplated by section 5 of the Act of 1974. Consequently, I am of the opinion that no ground for issuance of a writ of certiorari has been made out. 13. In view of the premises above and applying the priority and posterior reasonings I am of the view that the present petition lacks merit and the same is dismissed summarily. The interim order dated 20.8.90 as extended from time to time, is hereby vacated.