Rajeev Agarwal vs State Of U.P.Thru.Prin.Secy. ...
2021 Latest Caselaw 8475 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Chief Justice's Court
 

 
Case :- P.I.L. CIVIL No. - 15537 of 2021
 

 
Petitioner :- Rajeev Agarwal
 
Respondent :- State Of U.P.Thru.Prin.Secy. Secondary Education & Ors.
 
Counsel for Petitioner :- Chandra Bhushan Pandey,Asim Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice
 
Hon'ble Manish Kumar,J.

Heard learned counsel for the parties.

By this public interest litigation, challenge is made to the order dated 13-07-2018 passed by the state government in pursuance of the order passed by this court on 23-02-2018 in Writ C No. 7383 of 2018. The representation made by the petitioner was not accepted and thereby the order passed by the state government has been challenged by way of this writ petition.

Learned counsel for the petitioner submits that the state government has framed two issues for its own consideration and have narrated in the impugned order dated 13-07-2018. The first issue was for construction of the shops on the land belonging to the educational institution without seeking permission of the competent authority as per the provisions of U.P. Educational Institutions (Prevention of Dissipation of Assets) Act,1974. The other issue was for use of property for purposes other than for educational institution, thereby misuse of power.

He submits that both the issues have not been answered in the impugned order though a specific reference of section 4(3)(a) of Act, 1974 has been given. The construction of 110 shops was undertaken without permission of the Director as envisaged under section 4(3)(a) of the Act,1974. It is also that the funds were utilized without taking note of the income of the institution. The state government has yet passed an order rejecting the representation made by the petitioner.

In view of above, the state government should have passed appropriate orders adverse to the institution for incurring huge amount for construction of 110 shops in violation of section 4(3)(a) of Act, 1974. Prayer is accordingly to set aside the order impugned herein with a direction for appointment of an Administrator.

Learned counsel for the petitioner has given reference to the Judgment and Order dated 31-03-2010 passed by this court in Writ C No. 13582 of 2010, C/M, Mahatama Gandhi Inter College & Another Versus State of U.P. Thru. P.S. Secondary Education & Ors.

In the said Judgment, this court found necessity to take sanction of Director in writing in case of expenditures are made by the educational institution. In the facts of that case, the court came to the conclusion that section 4(3) (a) of Act,1974 is attracted, thereby prayer is that similar order may be passed herein.

We have considered the submissions made by the learned counsel for the petitioner and perused the record.

The order dated 31-03-2010 has been challenged mainly in reference to section 4(3) of the Act, 1974. Thus, the aforesaid provision is quoted hereinunder :-

4.Prevention of dissipation-(1) Notwithstanding, anything in any other law for the time being in force, the management shall not incur any expenditure which is not in conformity with the aims and objects of the educational institution or is so exercise as to be disproportionate to the income thereof or is, for any other reasons, such as no prudent management would deemed fit to incur in the interest of the institution, and which is not sanctioned under this Act.

(2) Without prejudice to the generality of provisions of sub-section (1), the Director may by general or special order prohibit the management from incurring any specified expenditure or expenditure on any specified item or any expenditure beyond a specified limit or except in accordance with specified conditions and restrictions on any specified item.

(3)(a) Where the management is of opinion that certain expenditure is necessary or expedient but the nature or amount of expenditure is disproportionate to its income the management shall not incur it without the prior sanction in writing of the Director."

The provisions, as quoted above, require permission of the Director where the management is of the opinion that certain expenditures are necessary or expedient but the nature or amount of the expenditure is disproportionate to its income, the management shall not incur it without prior sanction of the Director in writing.

The provisions of section 4(3)(a) of the Act,1974 are not for the general application, but, in a case where the management comes to a conclusion that certain expenditures are necessary or expedient but the nature or amount of the expenditure is disproportionate to the its income.

There is nothing on record to show that expenditures made for construction of the shops were disproportionate to the income. In absence of it, as to how, provisions of section 4(3)(a) of Act, 1974, would be applicable, could not be explained. The provisions of section 4(3)(a) are not for general application. The facts further remain that construction of 110 shops was raised almost ten years prior to filing of the writ petition. The facts aforesaid has been narrated in the impugned order where out of 110 shops, 31 shops were constructed after the year 2009 and remaining shops were constructed prior to it.

It could not be explained as to why the petitioner has approached this court after delay of so many years. No justification of delay has been given.

At this stage, we would like to refer the issues framed by the state government while passing the impugned order dated 13-07-2018.

The first issue framed therein does not bring the case under section 4(3)(a) of Act,1974. The plain reading of first issue shows that the construction of the shops could have been taken without prior permission of the competent authority. The question no. 1 has been framed in ignorance of provisions of section 4(3)(a) of Act,1974, where a written permission of Director is required, only when the expenditure is disproportionate to the income of the institution.

In view of above, we doubt correctness of issue no. 1 framed by the state government.

Issue no. 2 framed regarding the use of property going against the interest of the institution. The issue does not fall under section 4(3)(a) of Act,1974. The state government, however, passed a detailed order taking note of the income of the institution in the years 2015-2016,2016-2017 and 2017-2018. It does not show construction of 110 shops almost ten years back to be illegal in any manner. It is not a case where the property of the institution was alienated without prior permission.

In view of above, we do not find order dated 13-07-2018 to be in ignorance of section 4(3)(a) of Act,1974.

Learned counsel for the petitioner has referred to the Judgement of this court in the case of C/M Mahatama Gandhi Inter College (Supra).

We have gone through the aforesaid Judgment, but, do not find it to be applicable on the facts of the present case.

It is clarified that section 4(3)(a) of Act,1974 is not for general application, but, in a case where expenditures are disproportionate to the income of the institution.

The Division Bench of this court in the case C/M Mahatama Gandhi Inter College (Supra) came to the conclusion that the construction of new shops does involve substantial amount of expenditure, thus, it should have been with prior sanction of the Director in writing. If the expenditures are disproportionate to the income, section 4(3)(a) would attract. In the said case income of the institution was not disclosed. The burden to show the income and expenditure of the institution was on the petitioner to attract section 4(3)(a) of the Act, 1974. No fact in this regard has been disclosed. In the absence of it, Judgment in the case of C/M Mahatama Gandhi Inter College (Supra), would have no application to the facts of the present case.

In view of discussions made hereinabove, we do not find any merit in the writ petition and the same is dismissed.

Order Date :- 23.7.2021

AKS