Bappa Shri Narain Vocational ... vs State Of U.P.Thru.Addl.Chief ...
2022 Latest Caselaw 11878 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 
Case :- WRIT - C No. - 9147 of 2021
 
Petitioner :- Bappa Shri Narain Vocational Institute Lko. And Ors.
 
Respondent :- State Of U.P.Thru.Addl.Chief Secy.Secondary Education And Ors.
 
Counsel for Petitioner :- Lalta Prasad Misra,Prafulla Tiwari
 
Counsel for Respondent :- C.S.C.,Ajay Pratap Singh
 

 
Hon'ble Pankaj Bhatia,J.

1. Heard Dr. L.P. Mishra, Advocate assisted by Shri Prafulla Tiwari, learned counsel appearing for the petitioners, learned Standing Counsel for respondent nos.1 to 4 and Shri Ajay Pratap Singh, learned counsel who appears for the complainant.

2. Present petition has been filed challenging the order dated 9.3.2021 whereby the recommendation has been made against the petitioner in exercise of powers under Section 16D(3) of The Intermediate Education Act, 1921 recommending the appointment of Authorised Controller and for exercise of powers under Section 16D(8) of the The Intermediate Education Act, 1921 by the State Government.

3. The facts, in brief, are that petitioner no.1 - institution is registered in the name of Bappa Shri Narain Vocational Institute, Lucknow and petitioner no.2 claims to be Manager of the institution. It is stated that the society was initially registered in the name of Kanya Kubj Vocational Institute, Lucknow and was later changed to Bappa Sri Narain Vocational Institute, Lucknow. The said society established a Junior High School in the year 1939, which was subsequently upgraded to High School and thereafter to Inter College, Lucknow.

4. It is stated that the society Kanya Kubj Vocational Institute (the erstwhile society which was subsequently renamed as Bappa Shri Narain Vocational Institute) is the owner of the land by virtue of a deed executed in their favour by Lucknow Improvement Trust and continues to be the owner of the property, including the constructions standing thereupon. It is claimed that a complaint was made by one Ms. Archana Dwivedi wife of one Ram Sanker Dwivedi, who was dismissed from service by the petitioner, alleging that the property of the institution was being misapplied and misused. Based upon the complaints, an inquiry was carried out which has led to passing of the impugned order.

5. From the perusal of the impugned order it is clear that in all complaints on three counts were made against the petitioner - institution, on the third count it found favour with the Inquiry Committee who were of the opinion that the institution has got constructed a hall for furtherance of educational studies on the land belonging to the institution, which was illegal and was in violation of not having obtained the permission under Section 5(1) of The U.P. Educational Institutions (Prevention of Dissipation of Assets) Act, 1974 (hereinafter referred to as 'Dissipation of Assets Act'). Finding the said violation, a recommendation was made to the State Government for exercise of powers as vested with the State under Section 16D(8) of the Intermediate Education Act, 1921 (hereinafter referred to as ''the Act of 1921').

6. Dr. L.P. Mishra assisted by Shri Prafulla Tiwari, learned counsel for the petitioners argues that the recommendation dated 9.3.2021 is wholly arbitrary, illegal and contrary to the powers conferred upon the Director. He draws my attention to the scheme of Section 16D of the Act of 1921, which confers the power upon the educational authorities to interfere with the management of the institution.

7. Section 16D is quoted hereinbelow:

"16D. (1) The Director may cause a recognised institution to be inspected from time to time.

(2) The Director may direct a management to remove any defect or deficiency found on inspection or otherwise.

(3) If on the receipt of information or otherwise, the Director is satisfied that. -

(i) the Committee of Management of an institution has failed to comply with the judgment of any Court or any direction made under this Act or any other law for the time being in force; or

(ii) the Committee has failed to appoint teaching staff possessing such qualifications as are necessary for the purpose of ensuring the maintenance of academic standard in the institution or has appointed or retained in service any teaching or non-teaching staff in contravention of the provisions of this Act or the Regulations; or

(iii) any dispute with respect to the right claimed by different persons to be lawful office-bearers of the Committee of Management has affected the smooth and orderly administration of the institution concerned; or

(iv) the Committee has persistently failed to provide the institution with such adequate and proper accommodation, library, furniture, stationery, laboratory equipment or other facilities as are necessary for the efficient administration of such institution; or

(v) the Committee has substantially diverted, misapplied or misappropriated the property of the institution to its detriment or has transferred any property in contravention of the provisions of the Uttar Pradesh Educational Institutions (Prevention of Dissipation of Assets) Act, 1974 (U.P. Act No. No. 3 of 1975);

(vi) the draft of the Scheme of Administration has not been submitted with the time allowed therefor under Section 16-B, or that the Management of the institution is being conducted otherwise than in accordance with the Scheme of the Administration or the affairs of the institution are being otherwise mis-managed;

(vii) the Scheme of Administration in relation to an institution, approved before the commencement of the Intermediate Education (Amendment) Act, 1980, is inconsistent with the provisions of this Act and the management of the institution has failed to alter or modify it within a reasonable time despite notice under Section 16-CCC.;

he may refer the case to the Board for withdrawal of recognition of such institution, or issue notice to the Committee of Management to show cause within thirty days from the date of receipt of such notice why an order under sub-section (4) should not be made.

(4) Where the Committee of Management of an institution fails to show cause within the time allowed under sub-section (3) or within such extended time as the Director may from time to time allow, or where the Director is, after considering the cause shown by the Committee of Management, satisfied that any of the grounds mentioned in sub-section (3) exists, he may, recommend to the State Government to appoint an Authorised Controller for that institution, and thereupon, the State Government may, by order, for reasons to be recorded, authorise any person (hereinafter referred to as the Authorised Controller) to take over, for such period not exceeding two years, as may be specified, the Management of such institution and its properties :

Provided that if the State Government is of opinion that it is expedient so to do in order to continue to secure the proper management of the institution and its properties, it may, from time to time, extend the operation of the order, for such period, not exceeding one year at a time, as it may specify, so however, that the total period of operation of the order, including the period specified in the initial order, but excluding the period specified in sub-section (8), does not exceed five years :

Provided further that if at the expiration of the said period of five years, there in no lawfully constituted Committed of Management of the institution, the Authorised Controller shall continue to function as such, until the State Government is satisfied that a Committee of Management has been lawfully constituted.

(5) If on the receipt of information or otherwise, the State Government is of opinion that in relation to an institution the ground mentioned in clause (iii) or clause (v) of sub-section (3) exists, and that the interest of the institution calls for immediate action, it may, notwithstanding anything contained in the said sub-section, issue notice to the Management of such institution to show cause within fifteen days from the date of receipt of such notice why an Authorised Controller be not appointed in respect of such institution.

(6) Where the Committee of Management of the concerned institution fails to show cause within the time allowed under sub-section (5), or within such extended time as the State Government may, from time to time allow, or where the State Government is, after considering the cause shown by the Committee of Management, satisfied that any of the grounds mentioned in clause (iii) or clause (v) of sub-section (3) exists, it may by order and for reasons to be recorded, appoint an Authorised Controller in respect of such institution, and thereupon, the provisions of sub-section (4) shall, mutatis mutandis apply.

(7) Every notice issued by the Director under sub-section (3) on or before the service of the notice referred to in sub-section (5) and not finally disposed of on the date of such service shall with effect from the said date, be deemed to have been placed in abeyance : Provided that nothing contained in this sub-section shall be deemed to prevent the Director to take action upon grounds other than those mentioned in clauses (iii) and (v) of sub-section (3) in case the notice issued by the State Government under subsection (5) is discharged.

(8) If the State Government is of opinion that immediate suspension of the Committee of Management is also necessary or expedient in the interest of the institution concerned, it may, while issuing notice under sub-section (5), by order and for reasons to be recorded, suspend the Committee of Management and make such arrangement as it thinks proper for managing the affairs of the institution pending the order that may subsequently be made under sub-section (6) :

Provided that the suspension shall not remain in force for more than six months from the date it becomes effective.

Explanation I. - For the removal of doubts it is hereby declared that in computing the period of time specified in sub-section (4) or sub-section (8), the time during which the operation of the order was suspended by the High Court in exercise of the powers under Article 226 of the Constitution shall be excluded.

Explanation II. - Nothing in sub-section (4) or sub-section (6) shall preclude the State Government from removing of appointment of an Authorised Controller appointed under any of the said provisions.

(9) Nothing in this section shall be construed to confer on the Authorised Controller appointed under sub-section (4) or sub-section (8), the power to transfer any immovable property belonging to the institution (except by way of letting from month to month in the ordinary course of management) or to create any charge thereon (except as a condition of receipt of any grant-in-aid for the institution from the State Government or the Government of India).

(10) Any order made under this section shall have effect notwithstanding anything inconsistent therewith contained in any other enactment or in any instrument (including any Scheme of Administration relating to the management and control of the institution or its property : Provided that the property of the institution and may income therefrom shall continue to be applied for the purposes of the institution as provided in any such instrument.

(11) The Director may give to the Authorised Controller such directions as he may deem necessary for the proper management of the institution or its properties, and the Authorised Controller shall carry out those directions.

(12) No order made by the Board withdrawing recognition in pursuance of a reference made under sub-section (3) and no order made or direction given under this section by the Director or the State Government shall be called in question in any Court, and no injunctions shall be granted by any Court in respect of any action taken or to be taken in pursuance of any power conferred by or under this section.

(13) The powers conferred by this shall be in addition to, and not in derogation of any powers conferred on the State Government or the Authorised Controller under any other law for the time being in force.

(14) Nothing contained in sub-sections (3) to (13) shall apply to all institution established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India."

8. Learned counsel for the petitioner also draws my attention to the provisions of Dissipation of Assets Act and in particular, the definition of "property" as contained in Section 2(d) as well as Section 5, which requires prior permission for doing acts as prohibited under Section 5.

Section 2(d) and Section 5 are quoted hereinbelow:

"2. Definitions. - In this Act, unless the context otherwise requires,-

(a)...

(b)...

(c)...

(d) 'property', in relation to an institution, includes all immovable properties belonging to or endowed wholly or purely for the benefit of the institution, including lands, buildings and all other rights and interests arising out of such property as may be in the ownership, possession, power or control of the management.

5. Previous approval necessary for transfer of property. - (1) Notwithstanding anything in any other law for the time being in force, no transfer of property belonging to or endowed for purposes of an educational institution shall be valid unless prior written sanction of the Director, on the ground of the transfer being necessary or beneficial to or expedient in the interest of the institution, has been obtained.

(2) The management, if aggrieved by an order of the Director refusing sanction under sub-section (1), may within thirty days from the date of communication thereof to it appeal against that order to the District Judge within whose jurisdiction the said institution or the property concerned lies, and the order of the District Judge in appeal shall be final."

9. On the basis of the said statutory provisions, Dr. L.P. Mishra argues that the power conferred upon the Director under Section 16D(3) of the Act of 1921 authorises him to take action only in the events as specified in Clause - (i) to (vii). He argues that apparently the Director has passed the order based upon the provisions as contained in Section 16D(3)(v) of the Act of 1921.

10. He argues that to invoke the powers as conferred upon the Director by virtue of Clause (v), it is essential to establish or form an opinion that (a) the committee has substantially diverted, misapplied or misappropriated the property of the institution to its detriment or (b) has transferred any property in contravention of the provisions of Dissipation of Assets Act.

11. He argues that from the plain reading of the recommendation dated 9.3.2021, it is clear that the Director was of the opinion that the petitioners are guilty of not following the mandate of the U.P. educational mandate and have done acts, which are prohibited under Section 5(1) of the Dissipation of Assets Act.

12. He next draws my attention to the mandate of Section 5(1), which provides that previous approval is necessary before a property belonging to or endowed for the purposes of an educational institution is transferred from the Director.

13. Dr. L.P. Mishra, argues that as the property has never been transferred and only a hall was constructed that too for vocational studies under the P.M. Kaushal Yojana, no violation of Section 5(1) has apparently happened. He, thus, argues that the recommendation dated 9.3.2021 is in excess of powers conferred upon the Director and without there being any statutory basis. He further argues that the construction of a hall in furtherance of academic activities carried out by the institution is for honing the skills and the studies which are being imparted to the students, which cannot be considered to be detrimental to the interest of the institution or the children studying therein.

14. Shri Ajay Pratap Singh, learned counsel for the complainant argues that since the land is being used for commercial purpose for which the hall was got constructed, the Director was well within its right to exercise its power as conferred under Section 16D(3) of the Act of 1921. He further argues that in the report itself it is recorded that the Lucknow Improvement Trust had given the property to Kanya Kubj Inter College for educational purposes and the property does not stand in the name of the petitioner.

15. Learned Standing Counsel argues that a lease deed was executed on 4.3.2015 by one Shri A.K. Shukla, Manager, Sri Jai Narain Inter College, Lucknow in favour of Shri R.K. Shukla, Manager, Bappa Sri Narain Vocational Institute, Lucknow. He further argues that the auditorium (hall) in the institution premises was constructed from the funds allocated from the M.P./M.L.A. fund in the year 1998-99, 1999-2000 whereas the said lease deed was executed on 4.3.2015. In the light of the said, he argues that the order has been rightly passed and requires no interference by this court.

16. In rejoinder to the argument of Shri Ajay Pratap Singh, Dr. L.P. Mishra, counsel for the petitioners argues that there is no material on record to establish that the property/hall is being used for the commercial purpose and there is no finding to that effect in the impugned order as argued by Shri Ajay Pratap Singh, counsel for the complainant.

17. In rejoinder to the argument of learned Standing Counsel, counsel for the petitioners argues that by means of a lease deed dated 4.3.2015, the property was transferred in favour of the institution and not by the institution.

18. He further argues that the defense taken in the counter affidavit is not a part of the discussion leading to the passing of the order dated 9.3.2021. He argues that it is well settled that the orders passed have to be defended on their own strength and not through a counter affidavit. He places reliance on the judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill & Anr. v. The Chief Election Commissioner & Ors. - AIR 1978 SC 851.

19. In the light of the arguments as raised and as recorded above, this Court is to consider, whether the recommendation is proper exercise of powers conferred upon the Director under Section 16D(3)(v) of the Act of 1921 read with provisions of Section 5(1) of the Dissipation of Assets Act?

20. It is clear that the provisions of Section 16D of the Act of 1921 as well as the provisions of Dissipation of Assets Act, are aimed at restricting the rights enshrined in favour of the title holder under Article 300A of the Constitution of India. Any infringement/restriction on a constitutional right has to be interpreted strictly as the action prima-facie is an expropriatory action, which requires strict interpretation. 

21. In the present case, the allegation is that the petitioners did not take permission under Section 5(1) of the Dissipation of Assets Act while constructing the hall over the premises owned by the institution.

22. On a plain reading of Section 5, it is clear that consent from the Director is required for any transfer of property. As 'transfer of property' has not been defined under the Act, it has to interpret in context of 'transfer of property' as defined under the Transfer of Property Act. There is no allegation that the land owned in the name of the petitioner has been transferred by any of the modes prescribed under the Transfer of Property Act; in the absence of any such allegation/finding against the petitioner, recourse to Section 5(1) was not available to the Director for passing the order of the nature as has been done on 9.3.2021.

23. Although the sole ground for passing the impugned order is violation of Section 5(1), even if the order is tested on the grounds as available in first part of Clause - (v), Section 16D(3) that the committee has substantially diverted, misapplied or misappropriated the property of the institution to its detriment, no case can be said to be made out against the petitioners as there is no material to suggest that the construction of the hall by the petitioners was to the detriment of the institution. In fact, the construction of the hall for providing vocational training under the P.M. Kaushal Yojana is in furtherance to the object of teaching and not to the detriment of the institutional activities, thus, on that ground also, no case against the petitioner was made out.

24. Thus, for all the reasons as recorded above, this Court finds that the exercise of powers under Section 16D(3)(v) of the Act of 1921 was an arbitrary exercise of powers without there being any material to justify the exercise of power especially on the allegations of violation of Section 16D(3)(v), as such, the impugned order dated 9.3.2021 (Annexure - 1) being arbitrary, perverse and illegal is liable to be set aside.

25. Accordingly, the writ petition is allowed.

26. Impugned order dated 9.3.2021 (Annexure - 1) is set aside without any costs.

Order Date :- 31.8.2022			       [Justice Pankaj Bhatia]
 
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