Mrs. Anita Gupta vs The Vice Chancellor And Ors.
2002 Latest Caselaw 1187 Del

JUDGMENT

R.C. Chopra, J.

1. This petition under Article 226 and 227 of the Constitution of India is directed against an Order dated 1.3.2002 and Notification dated 27.2.2002 issued by the respondents closing down the Programme Study Centre No. 0745(P) which was being run by the petitioner under the name of M/s Sofftech Computer City at Sector-7, Rohini, Delhi.

2. The case, as set up by the petitioner, is that the respondents are the officers of Indira Gandhi National Open University established under an Act of Parliament for advancement and dissemination of learning and knowledge in Communication Technology. To achieve its object the University through its Regional Centres have engaged the services of various private centres for imparting Computer education to the students. The petitioner, who is the proprietor of M/s Softtach Computer City, was engaged by the respondents and in terms of Memorandum of Understanding dated 23.9.1999 was awarded the status of Work Centre for the Certificate in Computing and Bachelors in Computer Application Programmes. The respondents allotted students to the petitioner's centre where all arrangements were made and basic facilities provided to the entire satisfaction of the respondents. The petitioner's centre was upgraded from Work Centre to Study Centre vide MOU dated 14.9.2000. The petitioner incurred heavy expenditure in creating the infrastructure and engaging staff for running the said Study Centre and was allotted 1716 students for the session January to June 2001 and 1150 students for July to December 2001 session. For January to June 2002, 1051 students were allotted to the petitioner vide respondents letter dated 21.12.01. The petitioner further pleaded that in view of satisfactory performance in the current session from January to June 2002 the respondents further allotted 58 seats vide letter dated 18.1.2002 and one more student vide letter dated 22.2.2002. On 24.1.2002 the respondents appreciated the programmes and education being imparted to the students at the petitioner's centre. Blank examination forms for the students for June 2002 were issued to the petitioner. According to the petitioner there was no complaint of any irregularity against the petitioner's Centre but still vide letter dated 1.3.2002 the respondents informed the petitioner that her Study Centre had been ordered to be closed with immediate effect. A copy of the Notification dated 27.2.2002 was also sent Along with this letter. The petitioner challenges this action of the respondent as arbitrary, without jurisdiction and against the provisions of the statute and submits that no Show Cause Notice was given before taking the action against her. The petitioner has prayed that the impugned letter and the order be quashed and the respondents be restrained from withdrawing the students from the Centre of the petitioner.

3. The respondents have opposed the prayer made by the petitioner by filing a counter affidavit in which preliminary objections have been raised to the effect that the petitioner is trying to seek enforcement of a Commercial contract and as such her petition under Article 226 of the Constitution of India is not maintainable. It is also pleaded that the petitioner is guilty of concealment and suppression of material facts from the Court on account of which even interim relief was obtained. It is pointed out that the petitioner did not disclose to the Court that there were so many complaints against her centre in regard to its functioning and as such her claim that there were no complaints against her Study Centre was false. The respondents submit that there were various irregularities in the petitioner's Study Centre in as much as the Councellors were not taking classes regularly and the students were being made to fill up and sign, at the beginning of the semestor itself, the attendance sheet in advance for creating false proof of the attendance of the students so as to stake false claim upon the respondent University for payment on the basis of students having attended the practical sessions. Vide a letter dated 22.9.2001 the petitioner was asked to explain these irregularities by 28.9.2001. The petitioner however did not respond to this letter (Annexure 4). In the course of inspection of Study Centre it was also found that out of a batch of 66 students the petitioner had marked 47 students present but only 9 students were physically present for the programme of BCA II. In the case of CAC out of the batch of 86 students only 26 students were found present. The respondents wrote a letter dated 9.10.01 to the petitioner to explain the position by 19.10.2001, (A copy of the letter is Annexure R-5) but the petitioner did not give any response. It was also pointed out to petitioner that the term of Programme in charge, Mr. V.K. Valuchi was coming to an end on 31.12.2001 and as such petitioner was requested on 6.11.01 to sent three names for filling up the post Time given was up to 16.11.2001 but despite so many reminders the petitioner sent a belated communication dated 5.12.2001 nominating one person only. Again a request was made to send the names of three Counsellors for the post of Programming in charge vide letter dated 1.1.02 (Annexure R.7).

4. In the course of visit on 3.11.01 it was found that out of 57 computers installed at the petitioner's Centre 25 only were functional. Letter dated 27.11.01 (Annexure R-8) was issued to which a false reply dated 16.11.01 (Annexure R-9) was given by petitioner. The respondent issued another letter dated 20.11.01 to the petitioner highlighting the false and conflicting statements being made by her, a copy of which is Annexure R-10. The petitioner reiterated her stand vide letter dated 23.11.2001 (Annexure R-11) but did not say anything in regard to the services of the Programme in charge in the Centre. Serious irregularities in the conduct of examination for BCA and MCA were also detected, the details of which are given in para 16 of the counter. It is pointed out that despite clear instructions and guidelines given by the respondents a list of proposed examiners were sent on 28.12.2001 only which had to be submitted by 24.12.2001. While the examination was being conducted there was a disruption of power as a result of which all the computers were shut down and the work done by the students was lost. It was found that the petitioner had not provided any power back-up facility and even the generator was not functional. Till the time the generator was made functional at about 12.00 noon the students were just sitting helplessly. Even after repairs the generator could not take the entire load and only 20 computers could be made functional. There was no responsible officer present at the centre.

5. On 3.1.2002 also when the Assistant Regional Director visited the examination centre of the petitioner he found that neither any examination had been scheduled nor the Centre In-charge or Centre Superintendent were present. The matter was reported to the Regional Director. A copy the report is Annexure R-13. Since it was found that the petitioner's centre was not in a position to conduct the practical examination/Counselling Session as per the University guidelines, the Regional Director was required by the University to shift the students from the petitioner's centre to another centre and he was asked to take charge of all the question papers sent to the petitioner's centre. The petitioner was informed by letter dated 4.1.2002 that further examinations will not be held at its centre and he was asked to hand over the question papers Along with examination papers and other relevant material. He was also asked to give a list of eligible students for appearing in the examination. A copy of the letter is Annexure R.15. The petitioner accepted the said communication without any protest or demur and returned the question papers as well as examination material to the University through the handing over taking over letter Annexure R-16. Thereafter the students were notified (vide Annexure R-17) about the withdrawal of the examination centre from the petitioner's institute and they were allotted different centres.

6. It was also pointed out that the University had received number of complaints in regard to the irregularities and absence of facilities at the petitioner's centre. The complaints were Annexure R-20 (colly). Under the circumstances the notification dated 27.2.2002 for the closure of the petitioners Study Centre was issued. It was conveyed to the petitioner vide letter dated 1.3.2002. It was pleaded that the petitioner was not entitled to any relief in view of Section 14 of the Specific Relief Act because he could claim compensation as the contract between the parties could not be specifically enforced. It was also added that the petitioner's loss could be compensated in terms of money and the contract was determinable in nature. It was also submitted that the contract between the parties was of such a nature that it would be difficult for the Court to enforce and supervise its implementation. It was denied that the petitioners' Centre was running satisfactorily or that there were no complaints against the Study Centre. It was submitted that the students allocated to the petitioner's Centre were being allocated to other Centres due to unsatisfactory performance of the petitioner. It was denied that the respondents had been appreciating the centre of the petitioner. The letters referred to by the petitioner were stated to be circulars addressed to all the Centres to collect the required date for the Regional Centre. It was also stated that inspite of returning the study and examination material to the University, the petitioner had mischievously mentioned in the petition that she was conducting the examination/session. It was asserted that the action taken by the respondents was in the interest of upholding the goodwill of the University as well as the welfare of the students.

7. The petitioner filed a rejoinder to the counter affidavit of the respondents controverting the pleas raised by the petitioner and reasserting that she is entitled to the relief as claimed in the petition. It was averred that the work of the petitioner's Centre was always found to be satisfactory, up to date and as per norms and guidelines of the University. Allegations were made against respondent No. 3 that he wanted one of his relatives to be appointed as Programme in charge at the petitioner's Centre but since the said person was neither having experience nor expertise the petitioner did not agree to the suggestion and for that reason the Respondent No. 3 had manipulated documents to hit the petitioner's Centre. Specific reference was made to a letter Annexure P-4 written by respondent No. 3 to show that he wanted the petitioner to contact the University and use her influence to get the pending payments cleared. The complaints received from the students were stated to be manipulated, procured and false. A reference was made again to letter dated 21.12.2001 (Annexure P-8) to assert that the respondent were fully satisfied with the petitioner's Centre. Regarding letter dated 13.8.2001 issued by the respondents it was pleaded that the same was frivolous and without any verification. It was asserted that the petitioner had sent a detailed reply dated 20.8.2001 to the said letter which was Annexure P-9. It was emphatically denied that the petitioner was making the students sign the attendance sheet at the beginning of the semester itself or that any false proof of any students attendance was being created before the schedule was drawn up so as to stake false claim upon the University for payment. The letter dated 1.10.2001 (Ex. P-12) was stated to be a reply sent to the respondents which fully explained the petitioner's position. The averments made by the respondents in regard to the lesser number of students being present, break down of the power system in the course of the examination or non-availability of the teaching staff were disputed. It was stated that the letter dated 7.11.2001 issued by the petitioner was replied vide letter dated 16.11.2001 (Annexure P-15). Strangely in para 14 of the rejoinder the letter dated 20.11.2001 issued by the respondents was first denied but in the same para it was stated that the contents of the said letter was without verification of the facts and its reply was sent to the respondents on 23.11.2001 by fac and another copy to the office of the respondents on 27.11.2001 which was Annexure P-16. The letter dated 21.12.01 was referred to support the petitioner's contention that the infrastructure available at the petitioner's Centre was adequate and satisfactory. A certificate from Delhi Vidyut Board (Annexure P-19) was added to show that there was no disruption of power supply in the area on 2.1.02 at about 11.15 AM and as such the pleas raised by the respondents that there was failure of system was stated to be false. It was denied that on 2.3.2002 the respondent No. 3 had visited the petitioner institute. The impugned action of the respondents was stated to be pre-planned and infurtherance of a conspiracy to harm the petitioner's interests. The representations dated 7.1.2002 and 2.3.2002 (Annexure P23 and P-24) were mentioned to show that the petitioner had been protesting against the high-handedness of the respondents.

8. I have heard learned counsel for the petitioner and learned counsel for the respondents.

9. After considering the submissions made by learned counsel for the parties and examining the controversies raised in this petition, this Court is of the considered view that this petition cannot be allowed and the reliefs as claimed cannot be granted to the petitioner mainly on three grounds. Firstly it is shown on record that the petitioner had not come to the Court with clean hands and had suppressed certain material facts solely with a view to mislead the Court and obtain the relief as prayed. The petitioner referred to and relied upon certain letters issued by the respondents to assert that the respondents were always satisfied with the functioning of the petitioner's Centre. Infact the petitioner succeeded even in obtaining interim relief from this Court but the fact of the matter is that none of the letter relied upon by the petitioner was an appreciation letter or a letter certifying the satisfactory functioning of her Centre. All these letters were routine circulars issued by the respondents to their Centres all over the country with a view to collect information and data. The pleasantries being offered to addressees were a formality and were not at all specifically towards any Centre including the petitioner's Centre so as to show that the performance of the said Centre was satisfactory. Not only that the petitioner by relying upon these letters attempted to mislead the Court but was also guilty of concealing earlier letters/correspondence between her and respondents which specifically referred to the complaints, shortcomings and irregularities detected by the respondents Officers in petitioner's Centre. Secondly the controversies raised by the petitioner in this writ petition are disputed questions of facts which cannot be properly adjudicated upon by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. Since the disputes are in regard to the performance or non-performance of contractual obligations, observations made during the inspections, genuineness of the complaints regarding shortcomings in the Centre the appropriate remedy for the petitioner lies in a suit and not in a writ petition. Thirdly the losses, if any, suffered by the petitioner arising out of a commercial contract between the parties can be adequately compensated in terms of money. Neither the petitioner's Centre is an educational institution controlled by statutory provisions nor the withdrawal of students would cause it an injury which cannot be compensated in terms of money. The petitioner had not entered into an Agreement with the respondents for serving the society or the students by imparting education in Computer Applications. The sole motive of the petitioner, to enter into this Agreement, was to do business and make money and in case the contract stands revoked illegally, arbitrarily or malafide, an equally efficacious and effective remedy lies in a claim for compensation from the respondents. Since the contract between the parties was determinable in nature, its specific performance is uncalled for further on account of the fact that it would be difficult for the Court to supervise its due performance and ensure that both the parties perform their part satisfactorily as per the terms of the contract. In education matters the authorities responsible for implementing and monitoring the programmes are in a better position to decide as to whether the things are going the right way or not. Considering the paramount welfare of the students, for whom such educational programmes are designed and implemented, the Courts must ordinarily refrain from interfering so as to avoid a situation in which because of the disputes between two parties the students suffer in their academic pursuits.

10. Adverting to the conduct of the petitioner in misleading the court and suppressing material facts, with a view to obtain relief, it has to be stated that the letters Annexure-D dated 21.12.01, Annexure K, dated 18.2.02 Annexure P dated 24.1.02 and Annexure Q dated 18.2.02 were relied upon by the petitioner to assert that these letters were letters of appreciation issued by the respondents on being satisfied with the performance of the petitioners Centre. However, a perusal of these letters shows that these were office circulars issued in routine by the respondents to their Centres all over the country with a view to collect data only. The pleasantries offered in these letters were routine and were not at all specifically related to any of the centres including that of the petitioner. Therefore, the entire claim of the petitioner that these letters were appreciation letter issued to her by the respondents but suddenly the respondents turned around and closed her centre was a calculated and misleading plea to misguide the Court and obtain a relief which could have been refused otherwise. The petitioner not only adopted misleading tactics but also indulged in suppression and concealment of material facts by not disclosing that much prior to the impugned orders of closure the respondents had been writing letters to the petitioner pointing out deficiencies and irregularities. None of these letters was filed Along with the writ petition nor any mention thereof was made with a view to present only favorable picture before the Court. This conduct of the petitioner is most reprehensible and dis-entitles her to any relief under Article 226 of the Constitution of India. Annexure R-3 dated 13.8.01 written by respondent No. 3 to petitioner Centre contained specific allegations against the petitioner's Centre. This letter was not mentioned even in the petition. After the filing of the counter, in which this letter was mentioned, a plea was raised in the rejoinder that its reply P-9 dated 20.08.01 was sent. The respondents do not admit the receipt of the reply which appears to be manipulated. If a reply had been sent the same ought to have mentioned in the petition itself but the petitioner conveniently omitted to mention Annexure R-3 as well as Annexure P-9. Same is the position in regard to the letter Annexure R-4 dated 22.9.01 and its alleged reply Annexure P-12 as well as Annexure R-5 and its alleged reply Annexure P-10. The letter Annexure R-8 dated 7.11.01 was even replied to by the petitioner vide reply Annexure R-9 but neither the letter Annexure R-8 nor its reply Annexure R-9 were mentioned in the petition. Letter Annexure R-10 dated 20.11.01 was regarding the absence of the Programme in charge since August 2001 and non availability of sufficient computers at petitioner's Centre. The respondent sent a reply Annexure R-11 to this letter but still both the letter as well as reply were concealed and not mentioned in the petition. The letter Annexure R.13 dated 3.1.02 and Reply R-15 dated 4.1.02 by the Regional Director of respondents show that respondent No. 3 was keeping his superiors apprised of the shortcomings at petitioner's Centre. Vide letter Annexure R-15 dated 4.1.02 the respondent No. 3 informed the petitioner about their decision not to hold examinations at the Centre of petitioner to which the petitioner sent a reply Annexure R-16 dated 5.1.02 in which nothing was controverter. These letters were also not referred to in the petition. As stated earlier also the whole idea of suppressing and keeping back this correspondence was that the petitioner never wanted to disclose to the Court that the respondents were raising objections against functioning of its Centre. The petitioner cleverly chose to rely on some routine circulars and that too in a misleading manner to represent that the petitioner's centre was being appreciated by the respondents. Infact by mis-representations and suppression of material facts the petitioner succeeded even in getting an ex parte stay in his favor from this Court. The Apex Court in S.P. Chengalvaraya Naidu v. Jagannath condemned the efforts of a litigant to mislead the Court and play a fraud upon it in the following words;-

"The Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the Court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party."

11. In this petition a case was set up as if there was no complaint at all against the petitioner but the Court finds that for quite some time the respondents were finding shortcomings and raising objections against the petitioner's Centre. This Court therefore has no hezitation in concluding that on this ground alone the petitioner's writ petition is liable to be thrown out. The petitioner played a fraud upon the Court by referring to certain documents which were written to her in a different context and also by concealing and supressing those facts and documents which were against her. A litigant guilty of suppressio veri is not entitled to any relief from a Court of law.

12. There are no two views about the legal preposition that in a matter in which disputed questions of facts are raised the Court should refrain from exercising its writ jurisdiction as it is not in a position to hold a trial to ascertain the truth or falsity of the averments made by the parties. In a recent judgment in "State of Bihar and Ors. v. Jain Plastic and Chemicals Limited" the Apex Court clearly held that in a case where seriously disputed questions or rival claims are required to be investigated and determined a Writ petition under Article 226 of the Constitution of India is not a proper proceeding and in such a case the alternative and equally efficacious remedy lies in the filing of the suit in which evidence can be recorded and controversies determined on the basis thereof. The matter before the Apex Court was between the State of Bihar and a Company arising out of an alleged breach of contract. Hon'ble Mr. Justice M.B. Shah speaking for the Bench categorically held that a Writ was not the remedy for enforcing contractual obligations and since seriously disputed questions and rival claims of the parties were to be investigated and determined the same ought to be investigated in a Civil Suit and not in Writ jurisdiction. In another judgment "Daljit Singh Dalal through Lrs. v. Union of India and Anr." also the Supreme Court declined to exercise its Writ jurisdiction under Article 32 of the Constitution of India mainly on the ground that the disputes being questions of fact could not be examined in a Writ petition.

13. In the present case the petitioner is alleging breach of the contract between her and the respondents and has challenged the impugned action of the respondents on the ground that inspite of the efficient and satisfactory running of her Centre the respondents had arbitrarily and for malafide reasons decided to terminate the Memorandum Of Understanding and close her Centre. The respondents, on the other hand, have pleaded that there were several complaints against the petitioner's Centre and inspite of repeated warnings, the things were not getting improved and as such, they had no alternative but to close down the petitioner's Centre as the interests of the students, who were attached to the petitioners' Centre, could not be jeopardised. The respondents are relying upon various complaints, inspection reports as well as letters issued to the petitioner which are being controverter by the petitioner as false and manipulated. Most of the disputes between the parties are based on facts, e.g. non-availability of the Programme in charge at the Centre at the time of inspection by the respondents, disruption/failure of electricity, non-availability of computers, manipulation of attendance records, issuance of letters by respondents etc. All these disputes are controversies of facts and are required to be adjudicated by way of trial only. It is, therefore, clear that the controversies raised in this petition by the parties are factual controversies which cannot be adjudicated upon on the basis of affidavits only. The claim of the petitioner and the counter allegations of the respondents require to be tried and as such, it is not a fit case for exercise of Writ jurisdiction under Article 226 of the Constitution of India.

14. Moreover, the averments in the petition that the impugned action of the respondents was arbitrary or malafide engineered by respondent No. 3 for his personal vendetta cannot be accepted on the face of it for the reason that in the Writ petition, no specific averments in regard to any personal motive of respondent No. 3 were made. It was only after the respondents filed their counter affidavit that the petitioner came out with certain allegations against respondent No. 3 in her attempt to show that everything at her Centre was in order but still the respondent No. 3 was bent upon projecting her Centre as a mis-managed Centre. The allegation against respondent No. 3 that he wanted his relative to be appointed Programme in charge appears to be after thought. Even Exhibit P-4 does not show any malafides on the part of respondent No. 3. As already discussed above, the petitioner herself is guilty of misleading the Court and suppressing material facts in the Writ petition which suggests that the petitioner is capable of telling lies and cannot be safely relied upon.

15. Learned counsel for the petitioner has vehemently argued that the impugned action taken by the respondents was in violation of the principles of natural justice and equity as no show cause notice was issued to the petitioner before ordering the closure of her Centre. Learned counsel for the respondents on the other hand submits that considering the emergency created by the petitioner herself by not abiding by the directions being issued to her from time to time and by not responding to the letters being issued by the respondents the career of the students was at stake and as such the respondents were compelled to initiate action against her. It is submitted that the order for closing the petitioner's Centre was made after issuing so many communications to the petitioner to rectify the shortcomings which amounted to due notice and as such nothing turns on this arguments. This Court is of the considered view that the principles of natural justice, equity and fair play certainly required the respondents to issue a proper show cause notice to the petitioner before closing her Centre but, as the facts of the present case reveal, the petitioner was being noticed by the respondents from time to time about the shortcomings and draw backs in her Centre and was being asked to rectify the shortcomings but nothing was being done. In view of the fact that due to the defaults of the petitioner the academic career of the students attached to the petitioner's Centre was at Stake some urgent action had to be taken. the respondents had no option except to close the petitioner Centre immediately and as such non-issuance of a notice was inconsequential.

16. Leaving aside everything, this Court is further of the view that the petitioner is not entitled to any relief on the ground that in view of the nature of the contract between the parties and its repercussions on the students who had been attached with the petitioner's Centre for pursuing their studies an equally efficacious and appropriate remedy to the petitioner is in claim of damages from the respondents for the loss, if any, suffered by her. She cannot insist that inspite of the respondents' reservations about efficient running of her Centre, they should be compelled to permit her to run the same. The nature of the contract between the parties is such that on account of disputes between them and lack of co-ordination, the sufferers would be students alone who have nothing to do with the disputes between the parties. Therefore, this Court is of the considered view that instead of insisting that the respondents should allow her to run the Centre, the petitioner should claim damages from them in accordance with law. Compensation in terms of money would be an equally efficacious remedy to the petitioner.

17. Last but not the least, it is also to be added that the petition as filed by the petitioner suffers from a further infirmity that all the three respondents imp leaded in this petition are neither juristic nor natural persons. They were not imp leaded by names and were merely imp leaded under the names of their posts. The petitioner failed to implead even Indira Gandhi National Open University against which the relief was being claimed. On this score also, the petition as filed by the petitioner is liable to be rejected.

18. In the result, this Court is of the considered view that the petitioner has failed to make out a case for grant of relief under Article 226 and 227 of the Constitution of India as prayed.

The petition, therefore, stands dismissed.