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1991 DIGILAW 1169 (ALL)

Committee of Management, R. P. Degree College, Kamalganj v. State of U. P.

1991-09-10

M.L.BHAT

body1991
JUDGMENT M. L Bhat, J. 1. The petitioner challenges the order dated 20-12-1990, contained in Annexure VI to the writ petition, passed by the respondent No 1. The said order directs revocation of the appointment of the authorised controller and handing over the management to the committee of the management of the college. 2. The petition is filed through Sri Gopal Narain, who claims to be the Secretary of the college in question. The said college is affiliated to the Kanpur University and is said to be governed by the U. P. State Universities Act of 1973. It is averred in the writ petition that one Kulap Singh was the Secretary of the management for a number of years but he was removed from the office of Secretariship on 1-10-1986 on the alleged ground of embezzlement. The petitioner's committee is said to have been elected on 1-10-1986 which was approved by the Vice Chancellor on 3-12-1986. The said Kulap Singh at that time set up a rival committee of management As a result of this there was a dispute between the two rival committees with regard to their right to manage the affairs of the college. The State Government is said to have suspended the management of the college and appointed authorised controller on 24-10-1989 This order was challenged by the said Kulap Singh. respondent No. 4, through a writ petition which was dismissed on 2-11-1989. The State Government is said to have heard both the parties and appointed authorised controller for a period of two years. THEre were grounds, as stated by the petitioner, for appointment of authorised controller. A writ petition was filed by the respondent No. 4 in the Lucknow Bench of this Court, which is still pending. A counter affidavit is said to have been filed in the said writ petition on behalf of the State. The authorised controller is said to have directed the Head Clerk of the College to file the counter affidavit on behalf of the State (This fact is vehemently denied by the other side). It is submitted that the counter affidavit was not filed on behalf of the State or the authorised controller in that writ petition. The clerk of the college had filed the counter affidavit on behalf of the managing committee. It is submitted that the counter affidavit was not filed on behalf of the State or the authorised controller in that writ petition. The clerk of the college had filed the counter affidavit on behalf of the managing committee. This counter affidavit is relied upon only to show that there is allegedly some admission about Sri Gopal Narain being the secretary of the managing committee. The respondent No. 4, Kulap Singh, is said to have thereafter used political influence at Lucknow through the respondent No. 3, who was a Deputy Minister in the U P Government. It is stated that the impugned order dated 20-12-1990 was issued, copy whereof is contained in Annexure VI to the writ petition. It is stated that the conditions, which prevailed at the time of appointment of the authorised controller, have not changed and there is new event which would warrant the removal of the authorised controller. It is also contended that there is some police investigation going on about the misconduct of the respondent No. 4. The impugned order says that the management will be handed over to the committee of a management duly recognised by University. This fact is mentioned in the affidavit of the said Head Clerk filed by him before the Lucknow Bench. The impugned order is said to have been passed during the pendency of the writ petition in the Lucknow Bench. The said writ petition is said to have been filed by the respondent No. 4 for removal of the athorised controller but his contention is contested by the State Government. In this back -ground it is stated that the action of the State Government revoking the order of appointment of the authorised controller is bad and out-come of political influence of the respondent No. 4 by which he has manoeured to obtained the impugned order in his favour. The allegation of nepotism or favouritism are levelled against the respondent No. 4. 3. The allegation of nepotism or favouritism are levelled against the respondent No. 4. 3. ON 17-10-1990) the petitioner is also said to have requested the State Government that the authorised controller may be removed and the charge of management be handed over to the newly elected committee of management for which there is no dispute, according to the petitioner but the State Government being under the influence of the respondent No. 4 has directed the management to be given to the managing committee which is represented by the respondent No. 4. It is stated that the committee of management of the petitioner was elected on 25-12-1989 but the respondent No. 2 did not give charge of management to the petitioner's committee on account of pressure brought by the respondent 3 on him. The impugned order of revocation is said to have been passed in violation of the principles of natural justice. It does not disclose any reasons. Situation existing then and today is not changed. Therefore, the impugned order could not be passed. The impugned order is passed by the State Government in colourable exercise of its powers under the influence of the respondent No. 4. The order is said to be malafide and arbitrary. 4. A detailed counter affidavit is filed on behalf of respondent No. 4, Kulap Singh, and the respondents No. 1 and 2. However, the respondent No. 3 has not filed any counter affidavit. Sri Kulap Singh, respondent No. 4, in his counter affidavit has stated that the present petition is filed by the committee of management which is not recognised by the Vice Chancellor, as required by Statute 13.34 of the Kanpur University. In 1986 there was a dispute between the respondent No. 4 and Gopal Narain and after prolonged litigation the Vice Chancellor on 2-3-1987 recognised the committee of management of which the respondent No. 4 was the Secretary. This order came to be challenged under section 68 of the State Universities Act and was referred to the Vice Chancellor for his decision. On 17-10-1989 the Vice Chancellor has recognised the committee represented by Kulap Singh as the real committee of management. A copy of this order is contained in Annexure CA 1 to the counter affidavit. The Society of the college is also registered and the respondent No. 2 is its Secretary with one Raja Ram Verma as its President. On 17-10-1989 the Vice Chancellor has recognised the committee represented by Kulap Singh as the real committee of management. A copy of this order is contained in Annexure CA 1 to the counter affidavit. The Society of the college is also registered and the respondent No. 2 is its Secretary with one Raja Ram Verma as its President. It was registered on 17-5-1955 and renewed on 10-10-1990. In 1985-86 Sri Gopal Narain by misrepresentation claimed himself to be the Secretary of the Society which he got registered as R. P. Degree College Samiti. The respondent No. 4 filed a complaint on 7-3-1989 to the Registrar under the Societies Registration Act. The registration of the society was cancelled. A copy of the said order is contained in Annexure CA 3 to the counter affidavit. An appeal was filed against this order which was dismissed on 5-2-1990 by the Commissioner, Kanpur Division. A copy of this order is contained in Annexure CA 4 to the counter affidavit. The allegations are also levelled against one Subedar Singh who is said to be the Principal of the College. The said Principal has the active support of the authorised controller. He is also said to have embezzled the funds of the college and indulged in favouritism and nepotism. The allegations of corruption ane embezzlement levelled against the respondent No. 4 are denied by him. The respondent No. 4 has also alleged that the District Magistrate has reported to the Secretary of Education, U. P. Government through a letter that the continuance of the authorised controller is not in the interest of the college. However, a copy of this letter is not on the record. The respondent No. 4 denies having met any political leader or having any influence in the State Government through any political leader. It is submitted that the revocation is valid, no hearing is necessary and the committee of respondent No. 4 is duly constituted committee. It is also stated that there are several complaints against the authorised controller and serious doubt is cast on his integrity. A copy of the findings of the Vice Chancellor dated 7-10-1989 is placed on record with the counter affidavit. It is also stated that there are several complaints against the authorised controller and serious doubt is cast on his integrity. A copy of the findings of the Vice Chancellor dated 7-10-1989 is placed on record with the counter affidavit. The concluding para of these findings revealed that the Vice Chancellor has recognised Sri Kulap Singh as Secretary of the management and held that he has been in actual possession of the property of the college and the committee is recognised to be in the management of the college till a decision of a court of competent jurisdiction is available. 5. The respondent no. 1 has filed a counter affidavit through one Sri R. P. Sharma. He has denied the contents of the writ petition. It is denied that the impugned order was issued under the political influence. The order is said to have been passed on its merits. It is stated that no opportunity is to be given to any one for revoking the order of removal of the authorised controller. The committee of Management of Kulap Singh is said to be a recognised committee of management under the State Universities Act. 6. There is an affidavit of one Ashwani Kumar Singh on behalf of the respondent-State which says that the Vice Chancellor has granted approval in favour of the committee of management headed by Kulap Singh. A communication in this regard dated 2-8-1991 is referred to. A copy of this communication is placed on record as Annexure 1 to the counter affidavit. On behalf of the respondent no. 2 also there is a counter affidavit filed by one A. K. Baranwal. The affidavit is filed in his capacity as authorised controller of the college in question. It is stated by him that he has taken over charge of the authorised controller of the college on 9-1-1990 from his predecessor- in- office. His predecessor- in- office had taken charge as authorised controller on 27-10-1989 in pursuance of the Government's order dated 24-10-1989. From the record he submits that his predecessor had taken charge of the college as authorised controller from Sri Kulap Singh, respondent no. 4 in absentia. The earlier writ petition is said to have become infructuous. His predecessor- in- office had taken charge as authorised controller on 27-10-1989 in pursuance of the Government's order dated 24-10-1989. From the record he submits that his predecessor had taken charge of the college as authorised controller from Sri Kulap Singh, respondent no. 4 in absentia. The earlier writ petition is said to have become infructuous. The petitioner as well as the respondent no 4 are said to have approached him for handing over charge of the management of the college to them but the authorised controller has decided to hand over charge to the respondent no. 4, which was handed over to him on 4-1-1991. He denies of having taken charge from Subedar Singh, Principal. Charges are levelled against the Principal in the counter affidavit. 7. A detailed rejoinder affidavit is filed by the petitioner with some new facts, which were not pleaded by him in the writ petition. The correctness of the contents of the counter affidavits filed by the contesting respondents is refuted. The letter purported to have been written by the District Magistrate, Farrukhabad to the Secretary of Education is in respect of some other dispute which is unconnected with the present dispute. Some documents are also produced with the rejoinder affidavit which have bearing on the appointment of the authorised controller in 1989. 8. The pleadings are exhaustive and detailed, but the points for determination in this writ petition are very short. Whether the State Government is required to give reasons for the revocation of the appointment of the authorised controller and whether such an order is to be passed after hearing both the parties is one of the main points on which both the parties have addressed detailed arguments. During the pendency of the writ petition filed by the respondent no. 4 in the Lucknow Bench whether it was proper for the State Government to issue an order. The petitioner seems to be aggrieved against the impugned order mainly on the grounds that the management of the college in question is directed to be handed over to the managing committee represented by the respondent no. 4 otherwise at one stage before the issuance of the impugned order the petitioner had also prayed for the removal of the authorised controller. 4 otherwise at one stage before the issuance of the impugned order the petitioner had also prayed for the removal of the authorised controller. The removal of the authorised controller is prayed for by both the sides but the grievance is about the handing over of the charge of management to a particular side. If it was handed over to the petitioner, this writ petition would not have been filed. Since it was handed over to the respondent no. 4 the petitioner is obviously aggrieved. The standing counsel and the learned counsel for the parties were heard and a thoughtful consideration was given to the submissions as also to the pleadings and documents on the file. On what grounds the authorised controller was appointed initially and whether his appointment was warranted at that stage does not at all fall for consideration. The considerations for appointment of the authorised controller are different than the considerations for the removal of the authorised controller. For the appointment of the authorised controller the procedure laid down under section 57 of the U.P. State Universities Act, hereinafter called 'the Act', is necessarily to be followed. Under section 58 of the Act the State Government after being satisfied that any ground mentioned in section 57 exists it may by order, authorise any person to take over the management for such period not more than two years as may be specified. The said person is called authorised controller. For appointing authorised controller the State Government has to call upon the management to show cause why an order under section 58 of the Act should not be made. If there is any dispute about the office bearers of the management such notice shall be issued to all persons claiming to be so. 9. Under proviso III of section 58 (1) it is provided that the State Government may, at any time, revoke an order made under sub-section (1) of section 58 The order of revocation is purely an administrative order whereas the order appointing the authorised controller is something more than the administrative order because it requires issuance of show cause notice which means that right of hearing is to be given to the management to show cause why authorised controller should not be appointed. The administrative order is in the nature of quasi-judicial order because it requires the State Government to act on an information that the conditions given in section 57 exist which require it to call upon the management to show cause why an order under section 58 should not be made. The order under section 58 cannot be made unless the mandatory requirement of affording an opportunity to the management is not complied with. Right of hearing is sine qua non for passing an order under section 58. Therefore, at that stage complete procedure prescribed under section 57 of the Act is to be followed which indicates that the order passed under section 58 (1) has attributes of a quasi judicial order. But in case the State Government chooses to revoke the said order it is not required to follow the principles of natural justice. It is not at all the requirement of the Proviso III to section 58 (I) of the Act that before passing an order revoking the order of appointment a hearing is to be given to any party. Issuance of prior notice is not at all necessary for revoking the order of appointment of the authorised controller. The third proviso to section 58 (1) has a different import and connotation than is attached to section 58 (1) of the Act. Section 58 (1) pre- supposes that requirements of section 57 are complied with. For revocation of the order no such requirement is needed. Therefore, it is within the powers of the State Government to revoke an order passed by it under section 58 (1) of the Act at any time and no fetters are attached to the powers of the State Government in this regard. 10. It is pertinent to mention that both the petitioner as also the respondent no. 4 have been trying hard to get the order of appointment of authorised Controller withdrawn. The petitioner has made a representation in this regard and the respondent no. 4 has filed a writ petition before the Lucknow Bench of this Court, which is still pending. However, no interim order is granted in the said writ petition. Therefore, pendency of that writ petition would not come in the way of the respondent No. 1 to revoke the order of appointment of authorised controller. 4 has filed a writ petition before the Lucknow Bench of this Court, which is still pending. However, no interim order is granted in the said writ petition. Therefore, pendency of that writ petition would not come in the way of the respondent No. 1 to revoke the order of appointment of authorised controller. The power, which is exercised by the State Government, is surely administrative and if the Court has not prohibited it the respondent No. 1 can issue such an order. There is no rider to its power to issue such an order. As already stated, the impugned order is in the parts. IT revokes the appointment of the authorised controller which probably satisfies the petitioner also but it directs handing over the management to the respondent No. 4, which has pinched the petitioner. Therefore, the exercise of filing this writ petition is undertaken by the petitioner. Mr. Sudhir Chandra arguing for the petitioner submitted that there was no change in the conditions which existed when the authorised controller was appointed and now. Therefore the removal of the authorised controller without hearing the petitioner was bad. Proviso in section 58 (1) does not postulate the State Government is enjoined to consider the change in situation and then alone it can revoke the order of appointment of authorised controller. it has the power of revocation and it is not obliged to consider the situation which obtained when the authorised controller was appointed or when he is to be discharged. 11. Some authorities were also cited at the bar. Mr. Naithani has relied on the case of the Committee of Management of Bundelkhand College, Jhansi v. State of U. P., 1982 UP LB EC 531. A Division Bench of this Court has held that the order of revocation of appointment of the authorised controller and handing over management to one of the rival sets of committee is merely a tentative order. Aggrieved committee has a right to agitate its grievance in civil court or in any other forum. It states that it is not necessary to call for the representations of the rival committee for the revocation of the order but when the representations were called it cannot be held to be illegal if the order is passed after considering the representations. In the case of Km. Neelima Misra v. Dr. It states that it is not necessary to call for the representations of the rival committee for the revocation of the order but when the representations were called it cannot be held to be illegal if the order is passed after considering the representations. In the case of Km. Neelima Misra v. Dr. Harinder Kaur Faintal, AIR 1990 SC 1402 , the Supreme Court has held that administrative action may become quasi-judicial. Even in administrative action concept of fairness is to be followed. The fairness or fair procedure in the administrative action is a broader notion which is now followed in administrative actions. In the case of Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851 , it was held by the Supreme Court that if the order of statutory functionary is based on certain grounds, its validity is to be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. In the case of M/s. Mahabir Jute Mills Ltd. v Shibban Lal Saxena, AIR 1975 SC 5057 it, was held that an administrative order may not be a speaking order. The order is not vitiated for absence of reasons. The Court was considering the order of the Government under section 4-K of the U. P. Industrial Disputes Act- The said order was not required to contain reasons. It was held that it was the discretion of the Government to make a reference of the industrial dispute. Interference in such order by the High Court under Article 226 of the Constitution was not called for. 12. Mr. Sudhir Chandra has contended that the judgment reported in 1982 UP LB EC 531 helps the petitioner rather than the respondent No. 4. After examination of the said judgment I feel reluctant to agree with MR. Sudhir Chandra. The facts of that case were different. 12. Mr. Sudhir Chandra has contended that the judgment reported in 1982 UP LB EC 531 helps the petitioner rather than the respondent No. 4. After examination of the said judgment I feel reluctant to agree with MR. Sudhir Chandra. The facts of that case were different. The representations of both sides were considered and then an order was passed in favour of one of the rival committees which order was held to be tentative subject to the decision of civil suit or any other remedy which was available to the other committee, which was not given the charge of management by the State Government. By this judgment this Court does not consider the validity or otherwise of the committee of management represented by the respondent No. 4. That matter is left open and the petitioner, if so advised, can seek appropriate remedy available to him under law against the recognition of committee,of management represented by the respondent No. 4. In view of the lengthy pleadings it was necessary to set out the case of the parties in their own words. The point for adjudication was very short which turns upon the construction of third proviso to section 58 (1) of the State Universities Act. That point has been answered and any expression used in the judgment about the rival managing committees should not be construed to be an opinion on the validity or otherwise of their constitution under law. Handing over of management to the committee represented by the respondent No. 4 is only a tentative affair subject to the decision of the court, if invited by the aggrieved party. 13. For the reasons given above the petition fails and is accordingly dismissed but in the peculiar circumstances of the case, there will be no order as to costs. 14. The interim order dated 11-1-1991 is hereby vacated.