C/M Mahatma Gandhi P.G. College & ... vs State Of U.P. & 2 Others
2014 Latest Caselaw 4060 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						    Reserved on 24.7.2014
 
						    Delivered on 6.8.2014 
 

 

 

 
Case :- WRIT - C No. - 37053 of 2014
 

 
Petitioner :- C/M Mahatma Gandhi P.G. College & Another
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- Jai Singh Yadav,Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.,Irshad Ali,J.B. Singh,Neeraj Tiwari
 

 
Hon'ble Mrs. Sunita Agarwal,J.

Impleadment application has been filed for impleadment of Piyush Khanna as respondent No. 4. Learned counsel for the respondents though raised objections to this application. However, in the facts and circumstances of the case, the impleadment application is allowed.

Present writ petition has been filed challenging the order dated 26.6.2014 passed by the Vice-Chancellor, Chhatrapati Shahu Ji Maharaj University, Kanpur i.e. respondent No.2 whereby the representation of the petitioners dated 20.2.2014 was rejected. The petitioner No.1 is the committee of management stated to have been elected by a society registered under the Societies Registration Act, 1869(in short "Act, 1860). Petitioner No. 2 claims to be manager of the Post Graduate College.

It is submitted by the learned counsel for the petitioners the there is a society in the name of style of Anglo Sanskrit College and Kunwar Chandra Bhushan Singh Anglo Sanskrit High School Committee, Fatehpur. It had decided to open a degree college and established in the name and style of Anglo Sanskrit Degree College. The name of the degree college continued as Anglo Sanskrit Degree College till 1971 when the college received grant for the construction of new building on the condition that it shall change its name to Mahatma Gandhi Degree College. In the meeting of the college held on 12.3.1972, the name of Anglo Sanskrit Degree College was changed to Mahatma Gandhi Degree College and an information to this effect was given to the Vice-Chancellor of the University vide letter dated 27.7.1972. This college was later on granted affiliation to run post graduate course in Political Science by the Vice-Chancellor and is now known as Mahatma Gandhi P.G. College, Fatehpur.

A dispute arose with regard to renewal of the society as certain other persons were granted renewal in the same name and style as of the petitioners' society vide letters dated 24.9.2012 and 9.10.2012, by the Assistant Registrar, Firms, Societies and Chits and notice was issued on 10.10.2012. Challenging the said proceedings, writ petition No.55497 of 2012 was filed which was allowed on 18.10.2012. Orders dated 24.9.2012, 9.10.2012 and the communication dated 10.10.2012 were quashed with a direction to the Assistant Registrar to remit the entire record to the State Government for decision, in accordance with the observations made in the order, under Section 3(b) of the Act, 1860. The State Government was directed to decide the matter after giving an opportunity of hearing to the parties. It was observed in the judgment and order dated 18.10.2012 that the renewal of the society in the same name in favour of different persons was beyond the jurisdiction of the Assistant Registrar and he ought to have referred the matter to the State Government under Section 3(b) of the Act, 1860.

The State Government after hearing both the parties, vide order dated 9.5.2013 has held that the society bearing Registration No.I-5696 was registered after the dissolution of old society registered as I-518, on the basis of proceedings of the then committee of management and General Body of the said society. However, without cancellation of the registration of society No. I-5696, with the similar name, another society was registered with the record No. I-12944 and I-15319 which is against the provisions of Section 3(2)(a) of the Act, 1860. There was no justification to renew the society No. I-15319 by the Assistant Registrar. It was held that society No.I-5696 is valid for renewal under the provisions of the Act. The order dated 9.5.2013 passed by the State Government has been challenged in writ petition Misc. Single No. 4014 of 2013 wherein notices were issued to the opposite parties. However, no interim order was granted. The writ petition is pending consideration before the Lucknow Bench of this Court.

Thereafter, a representation was filed before the Vice-Chancellor of the University dated 31.5.2013 to approve the elections of committee of management of the Postgraduate/Degree College held on 2.1.2012 in the light of the judgment dated 18.10.2012 passed by this Court and order dated 9.5.2013 passed by the State Government. No decision was taken and hence a writ petition-C No.41014 of 2013 was filed which was disposed off with the direction to the Vice-Chancellor to examine the claim of the petitioners for grant of recognition to the committee of management of the institution.

In compliance thereof, the Vice-Chancellor passed an order which was communicated by the Registrar on 16.1.2014 wherein the Vice-Chancellor has refused to consider the case of the petitioners on the ground that there is a dispute of office bearers of the committee of management of the society which is pending in writ petition No. 4014 of 2013. Challenging the said communication, the writ petition No. 9226 of 2014 was filed by the petitioners which was disposed off with the direction to the Vice-Chancellor to comply with the order dated 30.7.2013 passed in writ petition No. 41014 of 2013.

The Vice-Chancellor in compliance of the order passed by this Court dated 13.2.2014 decided the representation of the petitioner filed on 20.2.2014 vide order dated 26.6.2014 which is impugned in the present writ petition.

Heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Jai Singh Yadav, learned counsel for the petitioners, Sri Ashok Khare, learned Senior Counsel assisted by Sri Irshad Ali, learned counsel for the respondent no.4. learned Standing Counsel appearing for respondent no.1, and Sri Neeraj Tiwari, learned counsel appearing for respondent Nos. 2 and 3.

Assailing the order of the Vice-Chancellor, Sri Ojha, learned Senior counsel for the petitioners submits that the matter regarding renewal and registration of the contesting society no. I-15319 was referred to the State Government, it has found that the renewal made by the Assistant Registrar of the said society was bad in view of the existence of the registration of the society namely, I-5696. There is no dispute that both the societies No. I-5696 and I-15319 are in the same name and style. Once the finding has been recorded by the State Government that the society No. 5696 was previously registered society, the Vice-Chancellor had erred in entering into the controversy and in concluding that the dispute is to determine as to who is the parent society running the degree college. He further submits that the Vice-Chancellor has limited power under Section 2(13) of the Act and could look into as to who is the body charged with managing the affairs of the college. In the order itself, the Vice-Chancellor has concluded that the degree college was being run from 2007 to 2010 by society no. I-5696. So far as the matter regarding determination of the parent society running the institution is concerned, the same has been decided by the State Government by the order dated 9.5.2013. It was found that the society no. I-15319 was wrongly registered by the Assistant Registrar in view of existence of society no. I-5696. Once it was held that after the dissolution of the original society no. 518, the society no. I-15319 was wrongly registered and it was found that no renewal of registration was required at all, the conclusion of the Vice Chancellor that the dispute was with regard to the parent society running the degree college is totally unwarranted.

Refuting the submission of learned counsel for the petitioners, Sri Ashok Khare, learned Senior Counsel for respondent no.4 submits that the order of the State Government was only effective for the purpose of registration or renewal of the society. The said order cannot be read to the extent that the society No.15319 became defunct and does not exist. The society can become defunct only under Section 13 and 14 of the Act, 1860 upon dissolution of the same by the members of the society. At the most, society no. I-15319 can be said to be an unregistered society but the fact remains that this society had run the institution till 2000. The society No. 5696 has no concern with the college and the finding of the Vice-Chancellor are based on the record existing in the college.

Learned Senior Advocate further referred to the application and the affidavit dated 9.1.2001 and 25.5.2001 placed before the Vice-Chancellor and brought on record before this Court with the impleadment application. Placing the contents of the application and the affidavit, learned Senior Advocate submits that the then Secretary of the society Col. R.K. Singh himself stated that the society had no concern with the managing committee of Mahatma Gandhi Degree College and in case, the said institution was being run by any other society, society No.I-5696 had no dispute with the said committee.

The Vice-Chancellor has considered the said documents and found that in view of own averment of the Secretary of the society, it is established that society no. I-5696 has no relation with Mahatma Gandhi Degree College, Fatehpur prior to 2007. After 2007, there was nothing on record to indicate that the college was being run by the society no. I-5696. As the said society had failed to establish that it was the parent society who had run the degree college, the election of the petitioner committee of the said society was rightly disapproved.

Learned counsel for the newly impleaded respondent no. 4 further submits that there is an alternative remedy of making reference under Section 68 of the U.P. State Universities Act, 1973 before the Chancellor of the University. The said remedy being statutory remedy, this Court may not interfere in the order passed by the Vice-Chancellor. He drew attention to clause (b) of Second proviso to Section 68 of the U.P. State Universities Act.

Lastly, the argument is that the order of single operation is going on and the salary bills are being passed under single head operation. This apart, the Vice-Chancellor has recommended for appointment of the Authorized Controller so that the dispute between the parties may not affect the smooth and orderly administration of the college and interest of the students and the staff may not suffer. He submits that before appointment of Authorized Controller, opportunity will be provided to both the parties and in view of the same also, this  Court may not interfere in the order passed by the Vice-Chancellor.

Sri Neeraj Tewari, learned counsel appearing for the respondent University has adopted the submissions of learned Senior Advocate Sri Ashok Khare appearing for newly impleaded respondent No.4 to defend the impugned order.

Having carefully considered the submissions of learned counsel for the parties and perused the record, this Court finds it useful to go through UP Act 29 of 1974 (U.P. State Universities Act, 1973) which deals with the power of the Vice-Chancellor to recognize the managing committee of an affiliated college and Statute framed thereunder.

Section 2(13) of UP Act No. 29 of 1974 is relevant and reproduced as under:-

"2(13) Management in relation to an affiliated or associated college, means the managing committee or other body charged with managing the affairs of that college and recognized as such by the University."

Statute 13.34 of the First Statute of the Kanpur University(framed under Section 49(n) of the Act, 1973) reads as under:-

"Statute 13.34:- Whenever there is a dispute regarding the management of an affiliated college, persons found by the Vice-Chancellor to be in actual possession and control of the college properties may, for purposes of the Act and these Statutes, be recognized to constitute the Management of such college until a Court of competent jurisdiction orders other-wise;"

"Provided that the Vice-Chancellor shall before making an order under this Statute, afford an opportunity to the rival claimants to make written representations."

"Explanation- In determining the question as to who is in actual possession and control of the college properties the Vice-Chancellor shall have regard to the control over the funds of the institution and over the actual administration, the receipt of the income from the property of the institution and to other relevant circumstances which might have bearing on the question to be determined."

From a conjoint reading of the said provisions, it is evident that under sub section 13 of Section 2 of the Act, the Vice-Chancellor has jurisdiction to recognise managing committee of an affiliated or associated college of the University. Statute 13.34 authorised the Vice-Chancellor to adjudicate upon the dispute regarding management of an affiliated college. The Vice-Chancellor has to determine as to who was the person in actual possession and control of the college properties and after determining the said question, he may recognize the management of an affiliated college after affording an opportunity of hearing to the rival claimants to make written representations. The Explanation further provides that in determining the question as to who is in actual possession and control of the college properties, the Vice-Chancellor shall have regard to the control over the funds of the institution and over the actual administration, the receipt of the income from the property of the institution and to other relevant circumstances which might have bearing on the question to be determined.

Thus, the Vice-Chancellor will not only have to balance the claim of the rival contenders but will be required to sift the material placed by them. The process, therefore, will involve an application of mind by the Vice-Chancellor.

In the instant case, the Vice-Chancellor found that the college was being run by society no. I-5696 from 2007 to 2010, but he did not advert himself to the dispute raised before it in accordance with the provisions of Statute 13.34. No finding has been recorded as to who was in actual possession and control of the college properties on the date of election i.e. on 2.1.2012.

It appears that the Vice-Chancellor has deviated from the actual dispute and gone into the question as to who was the parent society which could have run the institution in the year 2007.

The finding recorded by the Vice-Chancellor on the basis of a letter and an affidavit of Colonel R.K. Singh, is that the then Secretary of society no. 5696 himself stated that it had no concern with Mahatma Gandhi Degree College, Fatehpur and, therefore, the said society could not prove its relation with the Degree College.

From a perusal of the application dated 9.10.2001 and the affidavit dated 25.5.2001 filed by Colonel R.K. Singh, it appears that the said application was moved by Colonel R.K. Singh in his capacity as Manager of Anglo Sanskrit Inter College, Fatehpur for renewal of registration of society No. 5696 with regard to the institutions namely, Anglo Sanskrit Inter College and K.C.B.A.S. High School, Fatehpur. A perusal of the contents of the said letter indicates that it was stated therein that earlier the committee of management of Anglo Sanskrit Inter College and K.C.B.S.A.S. High School, Fatehpur and of the Degree college was same. However, with the change of Anglo Sanskrit Degree College, Fatehpur to Mahatma Gandhi Degree College, Fatehpur, now the committee of management of both the Inter College and degree college are different. The Managing Committee of the Inter College and High School had no concern with the managing committee of Mahatma Gandhi Degree College and there was no dispute between the two managing committees. As the renewal application was moved by Colonel R.K. Singh in the capacity of Manager of  Anglo Sanskrit Inter College and K.C.B.S.A.S. High  School, Fatehpur, the  said  averment in the  application and the affidavit moved by him would not  be a determining factor to hold  that society no. 5696 had no concern with Mahatma  Gandhi Degree  College, Fatehpur prior to the year 2007 or thereafter. Moreso, in view of the finding that it was managing the institution from 2007 to 2010.

So far as  the submission of learned counsel for the respondent no. 4  that the order dated 9.5.2013 passed by the  State  Government is effective only to the extent of  registration or  renewal of the society, and it has no concern with the  existence of the society. It is noteworthy that  in view of the finding recorded by the  State  Government  in the order dated 9.5.2013 that the  society  No. I-15319 was  wrongly  registered in view of the   existence of the society no. I-5696 in the same name and style, it appears that the  existence of the society no. I-15319 was  put under cloud.

However, this Court would desist from making any further comments or observations on the order of the State Government as the dispute therein was with regard to the society and not about the managing committee of the degree/P.G. college. This apart, it is noteworthy that no rival election of the committee of management has been set up by the respondent No. 4 who claims to be the Ex-Manager of the committee of management of the P.G. College.

The Vice-Chancellor has committed jurisdictional error in concluding that the dispute before him was about the parent society which could run the institution.

The question of actual physical control and possession of the college properties was required to be decided by the Vice-Chancellor on the basis of evidence before him as also the records of the College. It appears that no such effort was made by the Vice-Chancellor before recording the findings that there was no evidence to show that society No. I-5696 was managing the college. It appears that the Vice-Chancellor was in a hurry to decide the matter as though he had gone into the dispute but decided it in a cursory manner.

There is complete non-application of mind on the part of the Vice-Chancellor in deciding the real controversy before him. The Vice-Chancellor has exceeded in its jurisdiction and has failed to exercise the jurisdiction vested in him under section 2(13) of the Act and the Statute framed therein in accordance with law.

Learned counsel for the respondent has also raised an objection to the effect that against the order of the Vice-Chancellor, the petitioners have an alternative remedy which may normally be pursued but in the instant case as the Vice-Chancellor has committed jurisdictional error and has completely failed to exercise his jurisdiction in accordance with the Act and the Statute, it would be unjust to dismiss the writ petition on the ground of alternative remedy.

In view of the above discussions, there was no justification to recommend for appointment of the Authorized Controller under Section 57 and 58 of the State Universities Act at this stage. The order dated 26.6.2014 passed by the Vice Chancellor is hereby quashed.

The matter is remanded to the Vice-Chancellor to decide afresh keeping in view of the observations made above and having regard to the Statutory provisions, as expeditiously as possible preferably within two months from the date of communication of this order.

With these observations, the writ petition is finally disposed off.

Order Date :- 6.8.2014

P.P.