Indian Association Of Solid State ... vs University Of Jammu And Others
2021 Latest Caselaw 1287 j&K

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      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                                Reserved on : 05.10.2021
                                                Pronounced on:12.10.2021

                                                   OWP No. 257/2010
                                                   IA No.347/2010


Indian Association of Solid State Chemists and Allied Scientists ...Petitioner(s)


                            Through:- Mr. R.K.S.Thakur, Advocate
      V/s

University of Jammu and others                                ...Respondent(s)
                           Through:- Mr. Abhaydeep Singh Bali, Advocate
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                   JUDGMENT

1. The petitioner is a Society registered under the Societies Registration

Act with the aim and object of promoting research and teaching in Solid

State Chemistry and Allied Sciences in Jammu and Kashmir. It is claimed

that the petitioner-Society is an association of renowned professors,

scientists, scholars from various prestigious research institutes of the

Country. In the meeting of Executive Committee of the petitioner-

association held on 4th December, 2003, Prof. Indu Bhushan Sharma was

appointed as Trustee of the petitioner-Society.

2. On 02.11.2005, the petitioner-Society entered into an agreement with

respondent No.1 to establish research Institute known as ISCAS Institute of

Solid State and Material Sciences. As per the terms and conditions of the

agreement, the petitioner-Society was provided suitable piece of land for

raising construction of building for the Institute subject to the petitioner

adhering to its objectives enumerated vividly in the agreement itself. The

objectives, inter alia, include undertaking research and teaching in the solid

state and material sciences, organize seminars, symposia, conferences,

workshops and other educational, scientific and allied activities. It, thus,

seems that respondent No.1 promoted the Institute established by the

petitioner keeping in view its laudable objectives, which would make

petitioner-Institute to supplement the objectives of respondent No.1.

3. Be that as it may, pursuant to the execution of the agreement, ISCAS

Institute was established in a building constructed by the petitioner with the

concurrence of respondent No.1. It is submitted that prior to the

establishment of the ISCAS Institute by the petitioner, a research project

was sanctioned by the Government of India, Ministry of Science and

Technology vide letter No.SP/SI/F-50/88 dated 24th April, 1991 for

conducting "Structure, Properties and Preparation of some Perovskite

Type Complex Oxides" under the guidance of Dr. Indu Bhushan Sharma,

the then Professor in the Department of Chemistry of University of Jammu.

4. In the year 2001, another project entitled "Synthesis, Structure,

Electric Transport and Magnetic Properties of Ruddlesden-Popper Type

Phases" also came to be sanctioned by the Ministry of Science of

Technology, Government of India to be executed under the guidance of

Prof. Indu Bhushan Sharma and with a view to execute the project

effectively, a sum of Rs.32,28,200/- was sanctioned for purchase of

necessary equipments. As is evident from sanction letter dated 30.08.2001

issued by the Ministry of Science and Technology, the project was

sanctioned and the funds allotted were subject to the terms and conditions

elaborately laid down by the department of Science and Technology,

Government of India. As per clause 3, all the assets acquired from the grant

was to be the property of Government of India and should not be disposed

of, encumbered or utilized for the purposes other than those for which the

grant had been sanctioned without prior sanction of the Department. Clause

4 of the terms and conditions provided that at the conclusion/termination of

the project, the Government of India will be free to sell or otherwise

dispose of the assets acquired by the funds granted by the Government for

the project and the Institute would render to the Government necessary

facilities to arrange sale of these assets. The Government shall, however,

be free to gift the assets to the Institute or transfer them to any other

Institute, if it was considered appropriate.

5. At the conclusion of the project and with the establishment of

ISCAS Institute by the petitioner, Department of Science and Technology,

Government of India acceded to the request of Prof. Indu Bhushan Sharma,

who by that time had retired from University of Jammu and had taken over

as Trustee of the petitioner-Society and conveyed vide communication

bearing No.SR/S1/H-14/2000 dated 3rd September, 2004, Ministry of

Science and Technology conveyed its no objection for transfer of the two

instruments sanctioned in the DST projects to the ISCAS Institute of the

petitioner. The transfer of the two instruments aforesaid to the Institute of

the petitioner was subject to concurrence of respondent No.1. It is

submitted that respondent No.1 considered the matter in the 94 th meeting of

the University Syndicate held on 08.09.2008 and approved the action taken

by the Vice-Chancellor, University of Jammu for transfer the instruments

along with accessories to the ISCAS Institute from the Department of

Chemistry. This was a time when the two i.e. the Institute established by

the petitioner and the University of Jammu, which has facilitated its

establishment on its soil, were working in tandem and in an atmosphere of

cordiality. Soon dispute between the petitioner and respondent No.1

erupted with regard to installation of gate in front of ISCAS Institute

established by the petitioner.

6. The matter went to arbitration in view of the arbitration clause

contained in the agreement. The petitioner claims that it also succeeded in

getting an interim order in an application filed under Section 9 of the

Arbitration and Conciliation Act. In this atmosphere of confrontation

between the petitioner and respondent No.1, respondent No.1 allegedly

started interfering into the functioning of the petitioner. Two news items

that appeared in daily newspaper "Early Times" in its edition dated 4th and

5th March, 2010 gave an apprehension to the petitioner that the respondent

No.1 may take over the Institute established by the petitioner and also

instruments transferred by the Ministry of Science and Technology from

the department of Chemistry to the petitioner. This apprehension appears to

have led the petitioner to file the instant petition seeking, inter alia,

following reliefs:-

"1. Writ of prohibition prohibiting the respondents No.1 and 2 from taking (1) Leybold Closed Cycle Helium Cryostat along with Keithley Electric Transport Measurement System and (2) Rigaku Multiflex X-ray Diffractometer and any other material from the premises of the petitioner situated at Opp. Directorate of Distance Education Jammu University Campus, Jammu and Prohibiting the respondents 1 and 2 from taking over the institute.

ii) Or for any other relief which the Hon'ble Court deems just and proper in the facts and circumstances of the case."

7. Respondent Nos. 1 and 2 have filed their objections through

Mr.W.S.Nargal, Senior Counsel. Apart from taking preliminary objection

with regard to the maintainability of the writ petition in view of the nature

of the agreement executed between the parties, the averments made in the

writ petition have been sought to be met by pleading, inter alia, that the

two instruments i..e. Leybold Closed Cycle Helium Crystat along with

Keithley Electric Transport Measurement System and Regaky Multiflex X-

ray diffractometer were sanctioned for the projects which were being run

by the Department of Chemistry, University of Jammu and, therefore, the

property of respondent No.1. The transfer of these instruments to the

Institute of the petitioner to achieve its objective was temporary in nature

and these instruments were liable to be reverted, on failure of the petitioner

to achieve its objectives enumerated in the agreement dated 2nd November,

2005. Strong reliance has been placed by respondent Nos. 1 and 2 on the

terms and conditions of the agreement dated 02.11.2005 to contend that the

petitioner has to conduct its activities subject to the instructions that may be

issued and the restrictions that may be imposed by the University.

8. Respondent No.3-Union of India through Ministry of Science and

Technology has filed its separate objections. In the objections filed,

respondent No.3 has taken a very categoric stand that the equipments over

which the petitioner and respondent No.1 are fighting was and continues to

be property of Government of India. The equipments were sanction in the

Department of Science and Technology funded projects which were to be

implemented by the Department of Chemistry, Jammu University under the

guidance of Prof. Indu Bhushan Sharma. The instruments were, later on,

transferred to ISCAS Institute of the petitioner at Jammu with the

concurrence of Jammu University with the expectation that transfer will

help the researchers at Jammu University and elsewhere. Respondent No.3,

therefore, has expressed its regret that the object for which the funds were

granted and the equipments were purchased is not being achieved and this

may constrain respondent No.3 to take these equipments from Jammu and

place it at the dispose of some other Institution.

9. In short, the Government of India has asserted its light on the two

equipments, which were first lent to the Jammu University for execution of

the two projects and thereafter transferred to the petitioner for carrying out

its research activities.

10. Having heard learned counsel for the parties and perused the record,

I am of the considered view that dispute that has erupted between the

petitioner and respondent No.1 with regard to two instruments mentioned

above is totally uncalled for and has stemmed out of misconception of both

the parties.

11. From the perusal of the material on record and the stand of

respondent No.3, I have no doubt in my mind that the two instruments,

which were provided to the department of Chemistry of University of

Jammu for execution of two projects to be executed under the guidance of

the then Prof. Indu Bhushan Sharma of Department of Chemistry, was the

property of Government of India lent to the University only for a specific

purpose.

12. As per the terms and conditions of the grant out of which these two

Instruments were purchased, all the assets acquired from the grant were to

remain the property of Government of India and the same was not to be

disposed of or encumbered or utilized for purpose other than for which the

grant had been sanctioned without prior sanction of the Government.

Clause (4) specifically provides that on conclusion of the project,

Government of India would be free to sell or otherwise dispose of the

assets which were the property of the Government. The Government of

India also retained its discretion to gift these assets to the Institute i.e.

University or transfer them to any other Institute, if it was considered

appropriate. The Government of India, acting under these clauses of terms

and conditions of the grant and with the concurrence of University of

Jammu transferred these assets i.e. two instruments in favour of the

petitioner for carrying on the purposes for which the ISCAS Institute had

been established.

13. I am not in agreement with the learned counsel for the petitioner that

these instruments were gifted by the Department of Science and

Technology and, therefore, have become the property of the Petitioner.

From a plain reading of communication dated 03.09.2004 issued by the

Ministry of Science and Technology, Government of India, it is abundantly

clear that Government of India only intended to transfer these instruments

to the petitioner that, too with the concurrence of respondent No.1.

14. Be that as it may, the fact remains that these two instruments are

neither the property of the petitioner nor that of respondent No.1 but is the

property of respondent No.3. Respondent No.3 being its owner is free to

dispose it of in the manner it likes. Respondent No.3 shall be well within its

right to examine the issue at its own level and, if it finds that the petitioner

has failed to achieve the objectives for which these two costly equipments

were placed at its disposal, it may pass appropriate orders either reverting

those instruments to the Department of Chemistry, University of Jammu or

any other Institution, which may be engaged in the research activities

relevant to the use of these instruments.

15. The plea of respondent No.1 that in the face of availability of

arbitration clause, this petition is not maintainable is not well merited. The

dispute with regard to the transfer of instruments from respondent No.1 to

the petitioner is not subject matter of any of the terms and conditions of the

agreement executed between the parties on 02.11.2005. The dispute

between the petitioner and respondent cannot be construed to be a dispute

pertaining to the terms and conditions of the agreement nor does it pertain

to any right or liability accruing in pursuance or under the agreement. The

dispute raised in this petition viz-a-viz the instruments aforementioned is a

dispute independent of the agreement and, therefore, not arbitrable.

16. For the foregoing reasons, this petition is disposed of by holding that

neither petitioner nor respondent Nos. 1 and 2 are the owner of the

instruments aforementioned and, accordingly, respondent No.3 is directed

to examine the issue at its own level. If, respondent No.3, upon enquiry or

otherwise, is of the view that the petitioner has failed to achieve the

objective for which these two instruments were placed at its disposal, it

shall be free to dispose of these two instruments in the manner it deems

appropriate. These instruments can either be reverted to the Department of

Chemistry, University of Jammu for the benefit of research scholars or to

any other Institution, which is engaged in such research activities as would

require the use of these two instruments. The Union of India shall take a

view on the issue within a period of six weeks from the date copy of this

judgment is served upon it. Till the appropriate decision in this regard is

taken by respondent No.3, there shall be status quo with regard to the use

and possession of these instruments.

(Sanjeev Kumar) Judge JAMMU.

12.10.2021 Vinod.

Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No