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2010 DIGILAW 637 (JK)

Ara v. State Of J&K

2010-12-22

Sunil Hali

body2010
1. The dispute in this writ petition relates to running of a private educational institute by the members of the Trust, namely, Women Empowerment Educational Trust, Anantnag (for short WEETA), who are litigating before the civil Court at Anantnag, 2. The petitioners claim to be the original trustees of the aforesaid Trust along with respondents 9, 10 and 11. Constitution of a Trust was imperative for the purpose of seeking registration/No Objection Certificate prior to its establishment. 3. It seems that the after constitution of the Trust on 07.08.2003, two supplementary Trust Deeds dated 10.04.2006 and 12.11.2007 came to be executed. Vide Trust Deed executed in the year 2005, the names of the petitioners were excluded on the pretext that they have resigned from the Trust and vide Trust Deed dated 12.11.2007 which came to be executed on 13.11.2007 the names of the petitioners continued to be shown as Trustees and respondents 12 and 13 as new trustees. 4. The fluctuation in relations between the petitioners and private respondents continued. Vide Trust Deed dated 22.12.2009 after invoking clause-45 of the original Trust Deed, the petitioners came to be removed from the said Trust. The respondents 14, 15 and 16 were incorporated as new Trustees. The Trust Deed dated 22.12.2009 came to be registered on 09.01.2010 before the concerned Sub-Registrar. 5. Before registration of the Trust Deed dated 09.01.2009, a suit under Section 92 of CPC came to be filed by the petitioners before the court of Principal District Judge, Anantnag. While the said suit is still pending, the present writ petition has been filed by the petitioners. 6. The case set out by the petitioners is that the private respondents have vide their acts of omission and commission converted this Trust into private affair, as a result of which, large scale irregularities have been committed by them. The various instances have been quoted in the writ petition, which point towards such irregularities committed by the private respondents. 6. The case set out by the petitioners is that the private respondents have vide their acts of omission and commission converted this Trust into private affair, as a result of which, large scale irregularities have been committed by them. The various instances have been quoted in the writ petition, which point towards such irregularities committed by the private respondents. Some of the allegations contained in the writ petition are as under: - (a) That the signatures of the petitioners were forged on the Cheques and the money was withdrawn from the bank in the year 2005; (b) That the land purchased for the College for an amount of Rs.11.50 lac has been shown to have been purchased for Rs.43.80 lac; (c) That amount so embezzled is being utilized for personal use by the trustees instead of using it towards the welfare of the Trust and institution; and (d) That the induction of private respondents without seeking prior permission from the competent authority violates the provisions of the J&K Private Colleges (Regulation and Control) Act and Rules. 7. On the other hand, the stand of the respondents is that the present writ petition is not maintainable as the petitioners have already availed the alternative remedy of filing a suit. Disputed questions of fact have been raised by the petitioners in this writ petition, which cannot be gone into by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India. 8. The stand of the respondents-State is that it is only on the basis of the original Trust Deed that the College has been granted No objection Certificate and the induction of the new Trust has not been brought to the notice of the Government as required under the statute. 9. I have heard learned counsel for the parties and perused the record. 10. In order to appreciate the controversy involved in this writ petition, it is important to note that for the purpose of running the private institutions, the State of J&K has promulgated an Act called as Jammu and Kashmir Private Colleges (Regulation and Control) Act, 2002 which provides that no private college shall be established or run without the prior permission, in writing, of the Government or the competent authority. The Act also provides that all the private colleges recognized under this Act shall be maintained and run by the Educational Agency in the prescribed manner. The `educational agency’ means any person or body of persons, a society or a Trust duly registered to establish, run or maintain any private college under this Act. The property is to be in the name of educational agency and any property or assets owned, held or acquired by any person for or on behalf of any private college, shall for the purposes of this Act, be deemed to be the property of the educational agency notwithstanding that such property stands in the name of any individual. 11. Before grant of permission by the competent authority, an Educational Agency intending to set up a College or an Institution above 10 + 2 level, shall have to satisfy the following requirements:- "(i) The educational Agency shall be a society consisting of at least five permanent residents of the Jammu and Kashmir State registered under the Section 4 of Societies Registration Act, Samvat 1948, or a trust managed by at least five permanent residents of Jammu and Kashmir State and registered by Sub-Registrar having jurisdiction over the area. (ii) A certificate duly issued by the concerned District Magistrate 9District Development Commissioner) to the effect that members of the Educational Agency, jointly or severally, have no involvement in anti national/subversive activities." 12. It also forbids the Government employee or an employee of an autonomous organization from running a private institution in his own name or in the name of his dependent family members. Any change in the constitution of the Trust and induction of new trustees, is required to be done with the prior permission of the competent authority. It also provides that the permission granted by the Government under Section 3 of the Act can be withdrawn on various counts which also includes if there is embezzlement of funds. 13. The Act also provides inspection of the Institutions to be conducted by the Inspection Team appointed by the competent authority which consists of three members of the Education Department. The Inspection Committee has been empowered to make definite observations about the institution and its functioning and also suggest, remedial measures, to be taken by the management for improving the working of the institution. 14. The Inspection Committee has been empowered to make definite observations about the institution and its functioning and also suggest, remedial measures, to be taken by the management for improving the working of the institution. 14. The scheme of the Act clearly envisages a well built mechanism by virtue of which installation, management and other issues relating to running of the institution are contemplated. It is self contained code, which provides remedial measures, which are required to be taken in this behalf. The scheme clearly provides that the institution is being run to supplement the States role of providing education to the people at large. The role has been assigned to the private institutions in view of the financial constraints of the State in providing right to education to its people. The institutions so established are engaged in the activities, which are in the nature of the public duties. The assets of the institutions in the shape of immoveable property are the property of the institutions. 15. In the light of the aforementioned discussions, the contention of the petitioners is required to be examined. 16. The nature of controversy raised by the petitioners is that educational agency is not running the institute in accordance with the aims and objectives of the Trust. There are large scale embezzlement of funds and the property is misused by the respondents ignoring the interests of the institution. The other limb of the argument is that the removal of the petitioners as trustees is arbitrary as also in violation of the Trust Act. 17. Regarding first contention of the petitioners all that has been stated by them is required to be enquired into, for which necessary remedy is provided under the Act itself. It has been contended that the provisions of the Regulation and the Act has been violated, more particularly, in incorporating private respondents 14 to 16 and also embezzlements committed by the members of the Trust. This aspect of the matter can be examined by the Inspection Committee and the competent authority authorized under rules and regulation who is required to ensure smooth functioning of the institution. This Court cannot on mere allegations deem it proper to proceed against the respondents. This aspect of the matter can be dealt with by the competent authority. This aspect of the matter can be examined by the Inspection Committee and the competent authority authorized under rules and regulation who is required to ensure smooth functioning of the institution. This Court cannot on mere allegations deem it proper to proceed against the respondents. This aspect of the matter can be dealt with by the competent authority. If there is embezzlement committed by the members of the Trust and if there is any violation of the rules, the same can be brought by the petitioners to the notice of the competent authority, for which the proper action can be taken only after hearing the parties. Any violation of the rules can result in withdrawal of the permission granted in favour of the Trust. 18. Regarding other contention raised by the petitioners that they have been removed from the trust unauthorizedly and in violation of the Act, is an issue which is pending before the District Judge, Anantnag. The petitioners having already availed the alternative remedy, this Court will not enter into this arena. 19. In view of the above, I, therefore, direct that the petitioners may approach the competent authority by bringing to its notice all the irregularities/embezzlements committed by the members of the Trust, who will enquire into the matter after hearing the parties and pass appropriate orders in this behalf looking to the facts and circumstances of the case, within three months from the date a copy of the order is served upon the competent authority by the petitioners provided, any such, representation is made by the petitioners within fifteen days from the date of this order. The competent authority will issue notice to the respondents before proceeding in the matter. 20. After having said so, the directions dated 17.06.2010 issued by this Court are required to be modified by stating that since the management of the Trust is being run by the private respondents and they are engaged in managing day to day affairs of the Trust, it will be appropriate at this stage to allow the private respondents to manage day to day affairs of the Institution. Fee received by the private respondents shall be deposited in the bank and the record of entries of withdrawals and expenditures incurred for managing the affairs of the Trust, shall be prepared by them and submitted to the concerned Nodal Officer after every fifteen days. Fee received by the private respondents shall be deposited in the bank and the record of entries of withdrawals and expenditures incurred for managing the affairs of the Trust, shall be prepared by them and submitted to the concerned Nodal Officer after every fifteen days. The petitioners at this stage cannot be permitted to manage the affairs of the Trust as they stand ousted from the Trust. However, they will have a right to examine the fortnightly statement submitted by the private respondents to the Nodal Officer. In case, any such, discrepancy or omission is deducted, they can bring this fact to the notice of the competent authority. 21. This petition, as such, is disposed of along with connected CMP(s), if any, in the terms aforementioned.