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2016 DIGILAW 3392 (ALL)

St. Andrew'S College v. State of U. P.

2016-10-04

ASHWANI KUMAR MISHRA

body2016
JUDGMENT Ashwani Kumar Mishra, J. This writ petition is directed against an order of the Registrar, Deen Dayal Upadhyay, Gorakhpur University, Gorakhpur, intimating a decision of the Executive Council, withdrawing affiliation granted to the institution for imparting physical education at the graduation level for the Academic Sessions 2014-2015. The order proceeds to reject affiliation on the ground that the land upon which the institution itself situates is not recorded in the name of the society, and as such, the society has no right to run the institution from the land in question. 2. While entertaining the writ petition, following interim protection was granted on 10.4.2015: - "Supplementary affidavit filed today is taken on record. The challenge in the present petition is to an order dated 23/3/2015 pursuant to which the provisional affiliation granted by the respondent University has been cancelled by the Vice Chancellor. Shri Ashok Khare, learned Senior Counsel assisted by Shri Mohit Singh and Shri Padmesh Jain had submitted that the impugned order is clearly without jurisdiction inasmuch as in terms of the provisions of sub-sections (8) and (9) of Section 37 of the Act, 1973, action could have been taken either with the previous approval of the State Government by the Executive Council or by the State Government itself. He has further referred to the pleadings taken in the writ petition to contend that the adverse material and reports on the basis of which the order is based was never disclosed to the petitioner, nor were they put to notice in respect of the same. The matter requires consideration. Shri B.D. Pandey, learned counsel appearing for the respondent University prays for and is granted four weeks' time to file a counter affidavit in this petition. The petitioner shall have one week thereafter for filing rejoinder affidavit. List this petition upon the expiry of the aforesaid period. In the meanwhile and until further orders of this Court, the operation of the impugned order dated 23/3/2015, shall remain stayed." 3. Sri Ajay Bhanot, learned Senior Counsel appearing for the petitioner, contends that the order impugned is illegal for the following reasons: - (i). No opportunity of hearing has been afforded to the petitioner before passing the order. In the meanwhile and until further orders of this Court, the operation of the impugned order dated 23/3/2015, shall remain stayed." 3. Sri Ajay Bhanot, learned Senior Counsel appearing for the petitioner, contends that the order impugned is illegal for the following reasons: - (i). No opportunity of hearing has been afforded to the petitioner before passing the order. It is also stated that the report of Tehsildar, which has been relied upon for the purposes of passing the order has neither been furnished to the petitioner, nor petitioner has been given an opportunity to explain the circumstances in that regard. (ii). It is also stated that the institution is continuing upon the land in question since 1898. The institution is stated to be run by a society, which had filed original suit before the competent civil court being Original Suit No.121 of 1981 seeking declaration of right of the society over the land in question. The suit for declaration was decreed on 11.1.1984. An appeal preferred by the State of Uttar Pradesh before this Court being First Appeal No.556 of 1985 has also been allowed in part on 26.9.2007, but the possession of plaintiff over the land in question has been maintained. (iii). It is submitted that in view of a declaration granted by the competent civil court, which has been affirmed by this Court in appeal, the aspect of mutation losses significance, inasmuch as law is settled that a declaration of right by a competent civil court would be conclusive proof of determination of ownership and not a mutation entry. 4. Learned counsel appearing for the respondents, on the other hand, submits that the decree passed by civil court has not been placed before the authorities. It is, however, not disputed that petitioner has not been heard in the matter before passing the order impugned. 5. Having heard learned counsel for the parties, this Court is of the opinion that the order of Registrar is not liable to be sustained. This is so firstly for the reason that a material adverse to petitioner has been relied upon for the purposes of passing such order, without confronting the petitioner with such material and without affording an opportunity of hearing to it. This Court further finds that there is a declaration granted by a competent civil court, which has not been interfered with by this Court in appeal. This Court further finds that there is a declaration granted by a competent civil court, which has not been interfered with by this Court in appeal. The order passed by this Court in First Appeal No.556 of 1985 has been brought on record before this Court. Paragraphs-35 and 36 of the appellate judgment are reproduced: - "35. The appeal is partly allowed. The declaration given by the court below is modified. It is declared that the Christ Church and the property in dispute has vested in the plaintiff, however, it is not absolutes but is for the purposes of the Church of England and is subject to the Indian Church (Indian) Statutory Rules 1940. The defendant appellants are restrained from interfering with the possession of the plaintiff, except in accordance with law. 36. With these observations, the appeal is partly allowed. The parties will bear their cost." 6. It appears that all such issues have not been examined by the University, as there was no occasion for the petitioner to produce the same in the absence of a notice. 7. For the reasons aforesaid, the writ petition succeeds and is allowed. Order of the Registrar dated 23.3.2015 is set aside. The University is directed to examine the matter afresh, keeping in view the decree passed by the civil court as well as order passed by this Court in the matter, after affording opportunity of hearing to the petitioner, within a period of six weeks from the date of presentation of certified copy of this order. 8. It is lastly stated that result of first year students have already been declared, but such students have not been permitted to appear in the second year examinations. The University authorities, while examining the matter afresh, shall take a specific decision with regard to grant of permission to such students for appearing in the second year examinations also.