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2011 DIGILAW 336 (GAU)

Francis Dkhar Founder v. State of Meghalaya

2011-04-13

TINLIANTHANG VAIPHEI

body2011
JUDGMENT Tinlianthang Vaiphei, J. 1. In this writ petition, the Petitioner is questioning the legality of the order dated 13-5-2008 issued by the Deputy Inspector of Schools West Khasi Hills District (Respondent 3) approving the Managing Committee of the St. Mary's Roman Catholic Lower Primary School, Nonglwai (St. Mary's RCLP School) as constituted by the private Respondents. 2. The material facts leading to the filing of this writ petition, as pleaded therein, are that the Petitioner established St. Mary's RCLP School in the year 1987-88 at Nonglwai to meet the educational needs of the locality; that for day to day management of the School, there is a Managing Committee constituted with the approval of the Government after selection/nomination in a general meeting in consultation with the village elders, representatives, parents, teachers, etc. but never by the Roman Catholic Church of Rangblang or even Nongstoin. The first Managing Committee was constituted and approved in the year 1994 by the Respondent No. 3 with the Petitioner as the Secretary, and since then he has been regularly nominated as the Secretary of the Managing Committee of the School. In the year 1995, after the approval of the first Managing Committee by the Respondent No. 3, the Catholic Church, Nonglwai and the Rangbalang. Parish Board had illegally constituted a new Managing Committee of the School, which was wrongly approved by Respondent 3 on 31-5-1995. This was challenged by him before this Court in Civil Rule No. 68(SH) of 1995, and the same was allowed by this Court by quashing the said order. According to the Petitioner, the management of the School is under the direct supervision of the Managing Committee of the School, which was approved by the State authority from time to time: the Catholic Church has no key role in the administration or management of the School nor has it ever offered any fund for running of the School. The School is recognized under the Grants-in-Aid Scheme from the Government and has been receiving the grants-in-aid from the Government for payment of the salaries of its staff and other day to day expenditures of the School since the year 1991: no recognition was ever given by the Government to Catholic Parish, either of Nongstoin or Rangblang, as the creators of the School. 3. 3. It is also the pleaded case of the Petitioner that he, in the year 2004, constructed a separate building nearby the School within the land of Rangblang Parish only for the purpose of extension of the School in the interest of better functioning of the School as there was acute shortage of space to accommodate all the students of the School: he did not have any inkling that the Diocese of Nongstoin would eventually take advantage of the same and claim, as it did, that the School was established by the Parish and belonged to the Church. This prompted the Respondent No. 5 to lodge an FIR alleging that the construction was illegal and the Petitioner mis-utilized the School properties to the detriment of the student community, which was registered before the learned Executive Magistrate, Nongstoin as C.T. Case No. 4/2004 under Sections 145/107 Code of Criminal Procedure. The learned Executive Magistrate by the order dated 24-2-2005 declined to drop the proceeding and directed the parties to adduce their evidence. Aggrieved by this, the Petitioner approached this Court in Criminal Revision No. 11(SH) of 2005, and this Court by the order dated 28-6-2006 remanded the case to the learned District Magistrate, Nongstoin with a direction to proceed with the case and to take a decision as to whether the proceeding should be taken under Section 107 or Section 145 Code of Criminal Procedure. The learned Executive Magistrate, to whom the case was endorsed, by the order dated 22-11-2007 disposed of the same in favour of the Petitioner by holding that the case was purely of a civil nature, and she could not proceed with case either under Section 107 or under Section 145 Code of Criminal Procedure. This, according to the Petitioner, categorically negates the contention of the Respondent No. 5 that the School properties were ever mis-utilized by the School. Subsequently, Respondent No. 3 by the order dated 17-5-2005 cancelled the approval of the Managing Committee of the School, which was then challenged by the Petitioner before this Court in WP(C) No. 162(SH) of 2005: the cancellation order was stayed by this Court by the order dated 26-5-2005 which resulted in canceling the cancellation order. The constitution of the Managing Committee was never challenged thereafter. 4. The constitution of the Managing Committee was never challenged thereafter. 4. It is further pleaded by the Petitioner that on 18-10-2007, the members of the Managing Committee, by giving sufficient notice to all concerned, convened a General Meeting for constituting a new Managing Committee of the School, which was accordingly done with the Petitioner as its Secretary, and the same was approved by Respondent 3 by his order dated 8-11-2007. Though there was no illegality in the constitution of the Managing Committee, the Respondent No. 5 challenged the same before this Court in WP (C) No. 15(SH) of 2008 and obtained the order dated 9-4-2008 staying the operation of the order dated 8-11-2007. Subsequently, a General Meeting was convened behind the back of the Petitioner and members of the previous Managing Committee purportedly on the basis of the order of this Court dated 9-4-2008 whereby a new Managing Committee came to be constituted by wrongly appointing Respondent 5 as the Secretary of the School and some other persons having vested interest as members and office-bearers. Subsequent to the interim order dated 9-4-2007, the Diocese of Nongstoin, in the normal course of business, in the month of April, 2008, was pleased to transfer the Priests of the Churches under the Diocese of Nongstoin and Fr. Sebastian Tirkey, SDB, PP was posted as Parish Priest, Catholic Church, Nonglwai and, as such, Respondent 5 was no longer the Parish Priest of the Catholic Church, Rangblang: he has since then been posted under the Diocese of Jowai, which is outside the jurisdiction of Diocese of Nongstoin and he cannot, therefore, hold the post of Secretary of the Managing Committee of Nonglwai Catholic Church or the School. However, much to the surprise of the Petitioner and the villagers of the locality, the Respondent No. 3 by the order dated 13-5-2008, purportedly on the basis of the direction of this Court, in a most illegal and arbitrary manner granted approval to the new Managing Committee. Aggrieved by this, this writ petition has been filed by the Petitioner for appropriate order(s). 5. Opposing the writ petition, both the State-Respondents through the Respondent No. 3 and the private Respondent have filed their respective affidavits-in-opposition. Aggrieved by this, this writ petition has been filed by the Petitioner for appropriate order(s). 5. Opposing the writ petition, both the State-Respondents through the Respondent No. 3 and the private Respondent have filed their respective affidavits-in-opposition. The case of the State-Respondents is that the School has been functioning under the control of the Catholic Church at their property since the advent of the Church in the West Khasi Hills area and not by the Petitioner but it started receiving Government aid only around 1987-88. It is stated by the answering Respondents that the Managing Committee was selected in a general meeting in consultation with the villagers, parents and teachers in which the Church was involved in the day to day functioning of the School. According to the answering Respondents, the School had been set up by the Church in the Church's property after their arrival in the West Khasi Hills area and not by the Petitioner. The State-Respondents deny that there is any infirmity in the impugned decision. These are the sum and substance of the case of the State-Respondents. 6. The case of the private Respondent, as projected in the counter-affidavit, in short, is that the Church's revival in Assam was marked under the leadership of a Frenchman, who was designated the Bishop of Shillong. The Church established its Diocese in Shillong and established several other Dioceses and subordinate Parishes all over the North East and also in the joint Khasi-Jaintia Hills area, and subsequently the Diocese spread to Nongstoin and Nonglwai where the Church acquired a plot and opened the School for the purpose of imparting education to the village folks and their children: the building set for this purpose was also utilized for preaching, religious gatherings, worship and ceremonial services. It was the Church which established the School building on the plot of land which was owned by it and all expenses for construction of the School structures were borne by the Church: the name Roman Catholic is a name associated only with schools run only by the Roman Catholic religious organizations and the Church never permitted any other individual or organization to run a school under the Roman Catholic banner. The private Respondent denies that the School was established by the Petitioner and asserts that the School was established by it around 1950. The private Respondent denies that the School was established by the Petitioner and asserts that the School was established by it around 1950. According to the private Respondent, the School is situated at Nonglwai, which is 10-15 kilometres from Nongstoion and the School has always been catering to the educational needs of the children of the families living at Nonglwai: there have never been students from Nongstoin studying at the School and why should the villagers of Nongstoin travel all the way to Nonglwai to the Petitioner start the School. In fact, the Headman, Dorbar Shnong, Nonglwai, Nongstoin Syiemship had vide his letter dated 6-6-2005 stated that during his tenure as Chairman of the Managing Committee of the School, the School was run by the Catholic Church and the salaries of the teachers were paid by the Church. It is claimed by the private Respondent that the separate building mentioned by the Petitioner is almost one kilometer away from the School and the use of the word "nearby" is thus misconceived and that he did not set up the building as an extension of the School but moved the School to another plot of land and in the process, he locked up the original premises thereby depriving the Church access to the School premises. He also persuaded the students and their parents to attend to the new premises he had built: in fact, he moved the entire School along with the school furniture without the knowledge of the Respondent and behind his back. These are the principal contention of the private Respondent. 7. The fact that the School is bearing the name of St. Mary's Roman Catholic Lower Primary School (St. Mary's RCLP School) is not in dispute. If a particular school bears the name of a Roman Catholic School, there is a presumption that the School is an institution run by none other than the Roman Catholic: it is common knowledge that such a school is not run by a private individual like the Petitioner. The Petitioner also does not dispute the fact that a part of the land belonging to the private Respondent (though how big it is, is not mentioned by him) is utilized for the School building in question. The Petitioner also does not dispute the fact that a part of the land belonging to the private Respondent (though how big it is, is not mentioned by him) is utilized for the School building in question. Therefore, the burden of proof lies upon the Petitioner to establish that this particular School occupying a part of the land of the private Respondent and is bearing the name of a School normally associated with a Roman Catholic School is actually run by him and not by a Roman Catholic organization such as the private Respondents herein. In my opinion, he has miserably failed to discharge this initial burden of proving that the School has been established or is run by him heretofore. Moreover, reading the writ petition and the counter-affidavit of the private Respondents in juxtaposition, I cannot but fail to observe that the case of the Petitioner involves serious and complicated questions of the fact requiring adduction of oral evidence. In a writ petition, theoretically, the High Court has jurisdiction to determine questions both of fact and law. But, usually, the Court is reluctant to go into the questions of facts which require oral evidence for their determination. The attitude of the Court is that questions of fact are best determined in an ordinary suit after adducing evidence, and not in a writ petition which is in essence supervisory and not appellate jurisdiction. This reminds me of the following observations of the Apex Court in DLF Housing Construction (P) Ltd. vs. Delhi Municipal Corporation (1976)3 SCC 160 : 20. In our opinion, in a case where the basic facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ Court is not the proper forum for seeking relief The right course for the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon the determination of the points involved. On this short ground while setting aside the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The Appellants may, if so advised, seek their remedy by a regular suit. In the absence of firm and adequate factual foundation, it was hazardous to embark upon the determination of the points involved. On this short ground while setting aside the findings of the High Court, we would dismiss both the writ petition and the appeal with costs. The Appellants may, if so advised, seek their remedy by a regular suit. But I must hasten to clarify that merely because some questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule. For example, if the dispute raised by the opposite party pertains to the meaning of a clause of the insurance contract, it does not become a disputed fact. If such an objection as to disputed questions or interpretation is raised in the writ petition the Court in exercise of its jurisdiction under Article 226 of the Constitution can very well go into the same and decide that objection if facts permit. See ABL International Ltd. vs. Export Credit Guarantee Corporation of India Ltd. (2004)3 SCC 553 . As already noticed, the question to be determined in this case is as to who actually established, and is running the School. There is claim and counter-claim. In the face of assertion of various facts raised by the private Respondent, this Court cannot embark upon an inquiry as to who, in fact, established, or runs, the School. This is all the more so, when the case set up by the private Respondent is supported by the State Respondents and a particular Headman of the village who once held the post of the Chairman of the Managing Committee of the School. In my judgment, this writ petition is not maintainable in the present form and is, therefore, liable to be dismissed. 8. The offshoot of the aforesaid discussion is that this writ petition is found to be not maintainable due to disputed questions of fact and, is accordingly, dismissed, but by directing the parties to bear their respective costs. Petition dismissed.