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2007 DIGILAW 57 (ORI)

Samir Mohanty v. State of Orissa

2007-01-18

M.M.DAS

body2007
JUDGMENT M. M. DAS, J. : This writ appeal has been directed against the order dated 18.5.2006 passed by the learned Single Judge in W.P.(C) No.7189 of 2006. Though the facts leading to this appeal are voluminous and relate to various proceedings pending between the parties, it is not necessary to state the history of this litigation in detail, for the purpose of disposal of this appeal and, accordingly, we refrain from doing so. 2. It would suffice to state that there is a long standing litigation between the parties with regard to constitute of Governing Body of the Regional College of Management at Bhubanes¬war. In three writ petitions filed before this Court being O.J.C. No.4871 of 1999 and W.P.(C) Nos.6284 and 6287 of 2005, by order dated 2.8.2005, a Division Bench of this Court describing the facts leading to the cases in detail, held as follows :- “In W.P.(C) No.6284 of 2005 by order dated 10.5.2005, as an interim measure, status quo in respect of the management of the institution was directed to be maintained, since the order of reconstitution of the Governing Body in Annexure-7 made by the Director, Higher Education was under challenge mainly on the ground of jurisdiction and competence. Contentions have been raised that in view of the resolution of the Government dated 2.2.2005 (Annexure-5) prescribing guidelines for constitution of the Governing Body of all technical institutions which are gov¬erned by existing regulation of All India Council of Technical Education Regulation, the Director, Technical Education and Training shall be the authority to deal with constitution/recon¬stitution of the Governing Bodies of such institutions undertak¬ing Management Courses, and as such, the impugned order dated 29.4.2005 passed by the Director, Higher Education is without jurisdiction and has no legal sanction behind it. The writ peti¬tioners in W.P.(C) No.6287 of 2005 as well as W.P.(C) No.6284 of 2005 claim that they are still in management of the institution and the order of status quo protect their continuance. Allega¬tions of mismanagement and misappropriation of fund are made by each set against the other. The writ peti¬tioners in W.P.(C) No.6287 of 2005 as well as W.P.(C) No.6284 of 2005 claim that they are still in management of the institution and the order of status quo protect their continuance. Allega¬tions of mismanagement and misappropriation of fund are made by each set against the other. In view of the controversy raised as to the ownership of the institution, the constitution of the Governing Body and in view of the fact that the Governing Body of the institution was either approved or accepted by the Director, Higher Education so long since 1998, at this stage, without further consideration of the documents called for earlier, it cannot be definitely said as to which of the petitioners are the real owner and in management of the institution in question. In such view of the matter, we are of the considered opinion that in the interest of the contesting parties and the institution, an administrator should be appointed to manage the institution during the interregnum till the dispute is taken up and finally decided”. Upon holding as above, this Court by the said order while modifying the earlier order of status quo, directed the Chief Secretary of the Government of Orissa to depute and/or allot an Officer not below the rank of Joint Secretary, preferably with a technical background to manage the institute “Regional College of Management” as an Administrator for the time being until further orders. Other consequential direction in that regard was also issued. Against the said interim arrangement, the writ petitioner in W.P.(C) No.6284 of 2005, who is the respondent No.9 in this appeal filed S.L.P. No.22048 of 2005 before the Supreme Court and filed an interim application in the said S.L.P. The Supreme Court by an interim order has stayed the common order dated 2.8.2005 passed in the aforesaid three writ petitions. 3. It appears that thereafter the Regional College of Management in the capacity of a Registered Society represented through its alleged founder members who were opp.parties in W.P.(C) No.6284 of 2005, filed a Civil Suit No.110 of 2006 in the Court of the learned Civil Judge (Senior Division), Bhubaneswar. 3. It appears that thereafter the Regional College of Management in the capacity of a Registered Society represented through its alleged founder members who were opp.parties in W.P.(C) No.6284 of 2005, filed a Civil Suit No.110 of 2006 in the Court of the learned Civil Judge (Senior Division), Bhubaneswar. An interim application being I.A. No.69 of 2006 was filed by the plaintiffs as petitioners, under Order 39, Rules 1 and 2 C.P.C. praying therein for an interim injunction restraining the opp.parties in the said interim application who were defendants in the suit, from operating the Bank Account maintained in the name of the Regional College of Management and further restrain¬ing them for interfering in the administration of the institu¬tion. By order dated 19.4.2006, the learned Civil Judge (Sr. Division), Bhubaneswar disposed of the said interim application by dismissing the same. 4. The appellant who was an intervenor in the said suit and was impleaded as a party, challenged the said order dated 19.4.2006 passed by the learned Civil Judge (Sr. Division), Bhubaneswar in W.P.(C) No.7189 of 2006. It appears from the order passed by the learned Single Judge which is impugned in this appeal that the learned counsel for the appellant who was the writ petitioner submitted before the learned Single Judge that the appellant-petitioner was not afforded with an opportunity of hearing by the learned Civil Judge (Sr. Division), Bhubaneswar before passing the order impugned in the writ petition. On further query of the learned Single Judge, learned counsel for the appellant submitted before him that had the appellant-peti¬tioner been given an opportunity of hearing, he would have op¬posed the prayer for injunction. On this ground, the learned Single Judge has come to the conclusion that as ultimately the prayer for injunction is refused, no prejudice has been caused to the appellant-petitioner and there was no reason to interfere with the impugned order at the behest of the appellant-petition¬er. It also appears from the order of the learned Single Judge that it was submitted before him during the hearing of the writ petition that the trial Court while disposing of the interim application has made certain observations on the basis of which the State Government is likely to take action against the appel¬lant-petitioner. However, learned counsel for the appellant-petitioner was unable to show any such observation from the impugned order passed by the learned trial Court. However, learned counsel for the appellant-petitioner was unable to show any such observation from the impugned order passed by the learned trial Court. In view of the above, the learned Single Judge dismissed the writ petition. 5. Mr. B. P. Ray, learned counsel for the appellant submitted before us that in the order impugned in the writ petition, the learned trial Court has mis-quoted the observation of this Court passed in the common order dated 2.8.2005 in the aforesaid three writ petitions which are pending before this Court and the S.L.P. arising therefrom is also pending before the Supreme Court. Mr. Ray specifically submitted that this Court has, no where, in the said order, stated that the writ petitioner in W.P.(C) No.6284 of 2005 is still in the management of the institution, rather, it has been observed by this Court that the writ petitioner in the said W.P.(C) No.6284 of 2005 claims that he is still in management of the institution whereas the learned Civil Judge (Senior Division), Bhubaneswar in the order impugned before the learned Single Judge has wrongly observed in the penultimate paragraph of the said order as follows :- “The petitioners in writ petition No.6284 of 2005 are the present opp.parties 1 to 3. Hence, the Hon’ble High Court have observed while passing common order in writ petitions that the opp.parties 1 to 3 are still in management of the institution:. (Emphasis supplied by us) 6. Mr. Ray, submitted that taking advantage of the above erroneous observation, the respondent No.9 along with other respondents has made false representation before the bankers and the police and is operating the accounts of the institution, though not authorized. 7. Learned counsel appearing for the respondents raised a question with regard to maintainability of this appeal and in support of their contention relied upon certain decisions of this Court. 8. Since after hearing Mr. B. P. Ray, learned counsel for the appellant, we are not inclined to interfere with the order passed by the learned Single Judge, we do not feel it appropriate to enter into the question of maintainability of the appeal. 9. 8. Since after hearing Mr. B. P. Ray, learned counsel for the appellant, we are not inclined to interfere with the order passed by the learned Single Judge, we do not feel it appropriate to enter into the question of maintainability of the appeal. 9. However, as we find, though the appellant is not prejudiced by the dismissal of the interim application by the learned trial Court which was impugned by him in the writ peti¬tion but as a matter of fact, the learned trial Court has commit¬ted an error in wrongly stating that this Court made an observa¬tion that the petitioners in W.P.(C) No.6284 of 2005 are still in management of the institution. Rather from the portion of the common order quoted above, it appears that this Court observed that the petitioners claim that they are still in management of the institution. 10. We dispose of this Writ Appeal giving liberty to the appellant to file an appropriate application before the learned trial Court bringing this apparent error to the knowledge of the learned trial Court and making a prayer for deletion of the said portion from the order passed by the learned trial Court which was impugned in the writ petition. If such an application is filed, the learned trial Court shall dispose of the same keeping the above observation in view. S. B. ROY, C.J. I agree. Writ appeal disposed of.