Orissa High Court

Afr vs State Of Orissa And Others ... on 3 March, 2021

                      ORISSA HIGH COURT: CUTTACK

                        W.P.(C) NO. 9193 OF 2008

       In the matter of an application under Articles 226 and 227 of
       the Constitution of India.
                               ----------

AFR Rudra Prasad Sarangi ......... Petitioner

-versus-

State of Orissa and others ......... Opp.Parties

For petitioner : M/s. J.K. Rath, D.N. Rath, S.N. Rath and P.K. Rath, Advocates.

For opp.parties : Mr. B.P. Tripathy, Addl. Government Advocate.

PRESENT:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

DECIDED ON : 03.03.2021

DR. B.R.SARANGI, J. The petitioner, who is the Director of Vedic

Educational Trust, Sakhipada in the district of Sambalpur,

has filed this writ petition seeking to quash Annexure-6 dated

28.05.2008 passed by the Deputy Director, in the office of the

Regional Director of Education, Sambalpur in Annexure-6

keeping in abeyance the decisions taken in the High Power

Committee meeting held on 18.04.2008 regarding grant of

permission and recognition to self-financing courses run by

different institutions, including the petitioner-institution, until

further orders, as desired by the Minister, Higher Education of

Orissa, and further directing that a committee under the

Chairmanship of the Director, Higher Education, Orissa shall

further inspect the proposals within a period of four months.

2. The factual matrix of the case, in hand, is that

"Vedic Educational Trust" is a registered body established, for

the purpose of providing proper education, along with Yoga

and Meditation, Spoken English and Personality Development,

Vedic Mathematics, Computer Training, teaching regarding

Veda and General Knowledge, Group Discussion, Physical

Education Training, Martial Art, Excursion and Study Tour,

Medical Services etc., besides extending elaborate library

facility as well as sports and extra curricular activities within

the local students. To provide such facilities, which are

ordinarily not available in the general higher secondary

educational institutions, the "Vedic Educational Trust"

established a Vedic College of +2 Science, a residential

institution so as to preach the moral teaching and to make out

good, responsible and respective citizens of the future from

amongst such students. It provides curriculum, which is

prescribed by the Council of Higher Secondary Education,

Orissa, along with other moral and spiritual teaching, as

mentioned above. Accordingly, steps were taken for grant of

permission and recognition in favour of the institution. The

petitioner furnished necessary information, affidavits and

chalan deposits etc., as required for grant of permission under

Section 5 of the Orissa Education Act, which are mandatory

for establishment of Educational Institutions in the State of

Orissa.

2.1. Section 5 of the Orissa Education Act, as

amended from time to time, prescribes the procedure for

permission and establishment of the Educational Institution.

It provides that an application, along with necessary

documents and requisite fees, is to be submitted before the

prescribed authority, who shall, after being satisfied,

recommend to the committee for grant of permission in favour

of the institution. Such committee is known as High Power

Committee consisting of high dignitaries. If the committee is

satisfied that the educational need of the local area justifies for

establishment of an educational institution, then it will grant

permission and make an order to that effect and such order

will be communicated by the prescribed authority to the

applicant. Necessary application form, along with the affidavit

and other documents, was submitted for grant of permission

in favour of the petitioner-institution to commence teaching

from the session 2008-09. The opposite party no.3, being the

prescribed authority, as required under sub-section (5) of

Section 5 of the Orissa Education Act, scrutinized the

application and finding that the application was complete in

all respect and in conformity with the Act and Rules,

submitted a report, after causing such enquiry as deemed fit,

before the committee for grant of permission as contemplated

under sub-Section (6) of Section-5 of the Orissa Education Act.

2.2 Accordingly, the High Power Committee in its

meeting held on 18.04.2008 considered the application

recommended by the prescribed authority for grant of

permission and since the petitioner-institution satisfied the

norms and the requirements of the Orissa Education Act and

the Rules made thereunder, decided to grant permission for

opening of the petitioner-institution, i.e. Vedic College of +2

Science at Ainthapali, Sambalpur on self financing basis from

the sessions 2008-09 with the condition to pledge an amount

of Rs.5 lakhs before the prescribed authority and further to

show bank deposit of Rs.20 lakhs in the name of the college

within a period of one month, failing which the institution

would not be permitted to admit the students. It was also

required that the educational agency/governing body should

furnish an undertaking in the form of an affidavit that the

institution will not claim any financial assistance or grant-in-

aid from the Government in future.

2.3 After permission was granted, the Vedic Science

College, Ainthapali, Sambalpur was allowed to open +2

Science with 128 seats (English, MIL & PCMB) 128 seats each,

IT & Electronics-64 seats each from the session 2008-09.

Necessary communication in regard to the same was made to

the petitioner vide Annexue-2 by the Regional Director-

opposite party no.3 on 01.05.2008. In compliance of the

same, the petitioner-institution pledged Rs.5 lakhs in favour of

opposite party no.3 and placed the same before him for

verification. The opposite party no.3 verified the same and

found to be correct, as per the endorsement made by him on

26.05.2008. The petitioner-institution also shown the bank

deposit of more than 26 lakhs for the satisfaction of the

opposite party no.3. The petitioner-institution also submitted

an affidavit before the opposite party no.2 in original stating in

clear terms that the institution would not claim any aid from

the State Government in any circumstance. After complying all

the paraphernalia required for the purpose of establishment of

institution, all on a sudden, on 28.05.2008, a communication

was made by the Deputy Director to the petitioner stating that

the decision taken by the High Power Committee in its meeting

held on 18.04.2008 regarding grant of permission and

recognition to self-financing courses run by different

institutions, including the petitioner-institution, is kept in

abeyance until further orders as desired by the Minister,

Higher Education, Orissa, and the Director, Higher Education,

Orissa shall further inspect the proposals within a period of

four months. Hence this application.

3. Mr. D.N. Rath, learned counsel for the petitioner

contended that in accordance with the statutory provisions if

the petitioner-institution has been granted permission by the

competent authority, namely, the High Power Committee and

has complied with the requirements on being duly

communicated, on the basis of an order the permission so

granted should not have been kept in abeyance, that too as

per desire of the Minister, Higher Education, Orissa, who has

no role to play so far as grant of permission is concerned. It is

thus contended that the impugned communication made on

28.05.2008 by the Deputy Director cannot sustain in the eye

of law, in view of the fact that the Deputy Director is not the

competent authority to issue such direction to the petitioner-

institution. More so, if the authority, which has passed such

an order and made communication thereof, has no

jurisdiction, the same is a nullity in the eye of law and thus

cannot sustain. Thereby, the order impugned in Annexure-6

dated 28.05.2006 is liable to be quashed.

To substantiate his contention, he has relied

upon the judgment of this Court in Governing Body of +2

Science College v. State of Odisha, 2014 (I) OLR 819 and

judgment of the apex Court in the case of DLF Universal Ltd.

& Anr vs Director, T.&C. Planning Haryana, AIR, 2011 SC

1463.

4. Mr. B.P. Tripathy, learned Addl. Government

Advocate appearing for the State opposite parties at the outset

sought adjournment to file counter affidavit. As it appears,

though time was sought by learned State Counsel on

23.02.2016 to file counter, till date the same has not been

filed. Since it a matter of the year 2008 and in the meantime

more than 12 years have passed, this Court did not feel

inclined to grant any further adjournment. However,

opportunity is given to Mr. B.P. Tripathy, learned Addl.

Government Advocate to address the Court on the basis of the

materials available on record and, as such, while justifying the

order impugned under Anenxure-6, he contended that the

authority has committed no illegality or irregularity in passing

such order so as to cause interference by this Court.

5. This Court heard Mr. D.N. Rath, learned counsel

for the petitioner and Mr. B.P. Tripathy, learned Addl.

Government Advocate for the State-opposite parties, and

perused the records. With the consent of learned counsel for

the parties, the matter is being finally disposed of at the stage

of admission.

6. For just and proper adjudication of the case, the

provisions contained under Section 5 of the Orissa Education

Act, 1969 are quoted below:

"5. Permission for establishment of Educational Institution- (1) No private educational institution which require recognition shall be established except in accordance with the provisions of this Act or the rules made thereunder.

(2) Any person or body of persons intending to,-

(a) establish a private educational institution; or

(b) open higher classes, new streams new optional subjects, additional sections or increase the number of students to be admitted or introduce Honours Courses in new subjects in a recognized private educational institutions; or

may make an application to the Prescribed Authority within such period and in such manner as may be prescribed for grant of permission therefore,

Provided that in respect of applications which were pending on the date of commencement of the Odisha Education (Amendment) Act, 1994, the applicants shall be allowed a period of thirty days to submit revised applications in accordance with the provisions of this Act.

(3) The applicant along with the application for permission, shall furnish an undertaking that in the event of permission being granted,-

(i) adequate financial provision shall be made for continued and efficient maintenance of the institution.

(ii) the institution shall be located on the lands specified in the application and that such lands are located in sanitary and healthy surroundings;

(iii) the building, playground, furniture, fixtures and other facilities shall be provided in accordance with the provisions of this Act and rules prescribed therefore; and

(iv) all the requirements laid down by the Act, the rules and orders, if any, issued thereunder shall be complied.

(4) Every such application shall be supported by an affidavit attesting the fact that all information furnished therein are true and correct to the best of knowledge of the applicant.

(5) The Prescribed Authority shall scrutinize each application, consider the applicants which are found complete in all respects and have been made in conformity with the Act and rules made thereunder and thereafter may make such inquiry as he may deem necessary. He shall make a report in respect of each application with his

recommendations which shall be placed before the Committee constituted in this behalf by the State Government.

(6) If the Committee is satisfied that the educational needs of the local area justify the establishment of an educational institution that the place where the educational institution is proposed to be established is likely to best serve the educational needs of that area, that the location of the educational institution is not otherwise objectionable and that permission may be granted to any person or body of persons, the Committee shall make an order to that effect specifying the conditions to be fulfilled by such agency.

(7) The order made by the Committee shall be communicated to the applicant by the Prescribed Authority in such manner as may be prescribed.

(8) Any applicant aggrieved by an order refusing to grant permission may, within one month from the date of receipt of such order, prefer an appeal before the State Government whose decision thereon shall be final and binding.

Provided that provisions of Sub-sections (3), (4), (5), (6), (7) and (8) shall mutatis mutandis, apply to applicants for purposes specified in Clauses (b) and (c) of Sub-section (2).

(9) When a new private educational institution is established in accordance with the permission granted under this Section the fact of such establishment shall be reported by the Agency to the Prescribed Authority forthwith and in any case not later than forty-five days from the date on which the institution starts functioning.

(10) Where a new private educational institution in relation to which permission has been accorded under this Section fails to start functioning within 45 days from the date of commencement of the academic year following the date on communication of the order of permission, the permission so accorded, shall lapse.

Provided that the Prescribed Authority may, for good and sufficient reasons extend, on application, the date from which the educational institution shall start functioning for such period not exceeding beyond the first day of the following academic year."

7. To give effect to the provisions contained under

Section 5, as mentioned above, the rules have been framed,

called the Odisha Education (Establishment, Recognition and

Management of Private Junior College/Higher Secondary

Schools) Rules, 1991 (in short "Rules, 1991"), which has also

undergone amendment in 2001. The relevant provisions of

Chapter-II of the said Rules, which laid down as to how the

application has to be made and as to how permission is to be

granted, reads as under:-

"3. Preparation of Master-plan - (1) The Director shall prepare for the State a Master-Plan each year by the end of September listing out the Blocks, in which there is no Junior College or Higher Secondary School and the Municipalities and Notified Area where establishment of Junior Colleges or Higher Secondary Schools is justified in conformity with the provisions of Sub-section (5) of Section 5. The Master-plan shall also project the requirement of additional seats or new streams or subjects in the existing institutions within a Block, Notified Area or Municipality. The Master-plan so prepared shall be placed before the Government for approval.

(2) The grant of permission for starting any new institution in the State or introduction of new streams or subjects during the next academic session shall be in conformity with the Master-plan prepared under Sub-rule (1) and approved by the Government.

(3) The permission and recognition of a new institution under Sub-section (3) of Section 4 shall be accorded by the Director on behalf of the State Government.

4. Application for permission - (1) Any Educational Agency desirous of establishing a new institution in a particular year shall make an application to the Director between the, 1st day of October and 30th day of November of the year immediately preceding the particular year. Applications received prior to, or after this period shall not be taken into consideration.

Provided that the State Government may, for good and sufficient reasons, extend the last date of receiving applications in any particular year.

(2) Applications for permission to establish new institutions shall be made in duplicate in Form No.1.

(3) The application shall be accompanied with a fee of Rs.200/- (Rupees two hundred only) to be deposited in Government Treasury.

(4) Applications, received by the Director within the period specified under Sub-rule (1) shall be entered in an Index Register to be maintained for the purpose and the receipt of the applications shall be duly acknowledged.

5. Documents accompanying the application - Every application made under Rule-4 shall be accompanied by

(a) The challan receipt of the feed paid;

(b) A sketch map of the Block or the Municipality or the Notified Area, as the case may be showing the location of the proposed institution along with other existing institutions, if any, and the High Schools located with the Block, the Notified Area or the Municipality;

6. Content of the application - The application in respect of a proposed institution shall inter alia specify the following.

(a) The number of students to be enrolled in each stream, viz, Arts, Science or Commerce in which teaching is proposed to be imparted.

(b) The names of the subjects, both compulsory and optional proposed to be introduced under each stream

with the number of students to be permitted for being offered with each optional subject.

7. Grant of permission - (1) The Director shall scrutinize each individual application and may make such enquiries as may be deemed necessary. After necessary enquiry if the Director is satisfied that there is need for establishing a Junior College or Higher Secondary School in any particular area, he shall after obtaining prior concurrence of the Government make an order under Sub-section (4) of Section 5 granting permission in favour of anyone of the applicants who, in his opinion is likely to best serve the educational needs of that area.

(2) The order of the Director granting permission to an Educational Agency for establishment of a new institution shall specify the following :-

(a) The Educational Agency in whose favour the permission is granted;

(b) The exact location of the institution;

(d) The streams and optional subjects under each stream in which instructions may be imparted along with the permitted strength of students under each subject;

(e) The conditions to be fulfilled by the institutions in respect of the following;

           (i)     Site

           (ii)    Building and accommodation;

(iii) Laboratory equipments and teaching aid;

           (iv)    Staff;

            (v)  Fixed deposit to be made and pledged in
favour of the Council; and





                   (f)   Such other matter as the Director may
      specify;

8. Date of functioning of institution - (1) When permission is accorded for establishing a new institution/it shall start functioning from the date specified in the order made by the Director under Rule-7.

(2) Subject to the proviso to Sub-section (9) of Section 5 the Director may extend this date by a period not exceeding thirty days on an application made by an Educational Agency in whose favour permission has been granted."

8. In view of the provisions contained under Section

5 of the Act read with the Rules, as mentioned above, on

receipt of the application along with required documents, the

prescribed authority shall scrutinize each of the applications,

consider the applications which are found complete in all

respects and have been made in conformity with the Act and

Rules made thereunder and, thereafter, may make such

inquiry as he may deem necessary. He shall make a report in

respect of each application with his recommendations which

shall be placed before the committee constituted in this behalf

by the State Government. As per the provisions of sub-section

(6) of Section 5 of the Act, if the committee is satisfied that the

educational needs of the local area justify establishment of an

educational institution, that the place where the educational

institution is proposed to be established is likely to best serve

the educational needs of that area, the permission will be

granted and the same will be communicated to him who

submitted the application. In the case at hand, required

procedure, as envisaged under the Act and Rules, was duly

followed and accordingly the application submitted by the

petitioner was placed before the High Power Committee, which

in its meeting held on 18.04.2008 granted necessary

permission, as per Annexure-B appended to Annexure-5 to the

writ petition, for opening of new +2 science college with 128

seats (English, MIL & PCMB) 128 seats each, I.T. &

Electronics-64 seats each from the session 2008-09 and, as

such, the said decision was also communicated vide

Annexure-2 on 01.05.2008 to the petitioner for compliance of

the conditions therein to run the institution. Though the same

was complied with by 26.05.2008 and when the institution

was going to be functioning, on 28.05.2008 the order

impugned has been issued.

9. It is well settled law laid down by the apex

Court that if the power has been vested with the particular

authority, the same can only be exercised by the same

authority. In Zuari Cement Limited v. Regional Director,

Employees' State insurance Corporation, Hyderabad and

others, (2015) 7 SCC 690, the apex Court held that it is the

basic principle of law long settled that if the manner of doing a

particular act is prescribed under any statute, the act must be

done in that manner or not at all. The origin of this Rule is

traceable to the decision in Taylor v. Tailor, (1875) LR I Ch D

426, which was subsequently followed by Lord Roche in Nazir

Ahmad v. King Emperor, AIR 1936 PC 253(2) and

subsequently, the said principle has also been followed in

Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422.

10. In Nazir Ahmed v. King Emperor, AIR 1936 PC

253, law is well settled "where a power is given to do a certain

thing in a certain way the thing must be done in that way or

not at all. Other methods of performance are necessarily

forbidden." The said principles have been followed

subsequently in State of Uttar Pradesh v. Singhara Singh,

AIR 1964 SC 358, Dhananjay Reddy v. State of Karnataka,

AIR 2001 SC 1512, Chandra Kishore Jha v. Mahabir

Prasad, AIR 1999 SC 3558, Gujrat Urja Vikas Nigam Ltd. v.

Essar Power Ltd., AIR 2008 SC 1921, Ram Deen Maurya v.

State of U.P., (2009) 6 SCC 735.

11. It is apt to refer here the legal maxim "Expressio

Unius est exclusion alterius" i.e. if a statute provides for a

thing to be done in a particular manner, then it has to be done

in that manner and any other manner are barred. Similar

question had come up for consideration before this Court in

Subash Chandra Nayak v. Union of India, 2016 (I) OLR 922

and this Court in paragraph-8 observed as follows:

".............the statute prescribed a thing to be done in a particular manner, the same has to adhered to in the same manner or not at all. The origin of the Rule is traceable to the decision in Taylor v. Tailor, (1875) LR I Ch D 426, which was subsequently followed by Lord Roche in Nazir Ahmad v. King Emperor, AIR 1936 PC 253(2). But the said principle has been well recognized and holds the field till today in Babu Verghese v. Bar Council of Kerala (1999) 3 SCC 422, and Zuari Cement Limited v. Regional Director, Employees' State insurance Corporation, Hyderabad and others, (2015) 7 SCC 690 and the said principles has been referred to

by this Court in Manguli Behera v. State of Odisha and others (W.P.(C) No. 21999 of 2014 disposed of on 10.03.2016)".

12. Similar question had come up for consideration

in Governing Body of +2 Science College mentioned supra,

wherein this Court held that as per the statute, no other

authority has jurisdiction to change the decision of the High

Power Committee. Thereby, the other authority has no

jurisdiction to pass the order in contra. As it appears, the

order in Annexure-6 dated 28.05.2008 has been passed by the

Deputy Director, who is not competent to do so. Thereby, the

order in question is without jurisdiction. Apart from the same,

the said order keeping in abeyance the decision taken in the

High Power Committee meeting held on 18.04.2008 has been

evidently passed, as desired by the Minister, Higher

Education, Orissa. Therefore, if the power has been vested

with the committee to grant permission, the Minister, Higher

Education, Orissa cannot have any jurisdiction to interfere

with the same because the committee was constituted

comprising following members:-

1. Commissioner-cum-Secretary to Government Higher Education Department

2. Vice Chancellor, Shree Jagannath Sanskrit University, Puri

3. Director, Higher Education

4. Chairman, Council of Higher Secondary Education

5. Deputy Secretary to Government, Law Department

6. Deputy Secretary to Government, Finance Department

7. Regional Director of Education, Bhubaneswar

8. Regional Director of Education, Berhampur

9. Regional Director of Education, Berhampur

10. Joint Secretary to Government, Higher Education Department.

In view of such position, if any decision has been taken by the

authority, which is not competent to pass such order, the

same is a nullity in the eye of law, as he has no jurisdiction.

13. In Hiralal Moolchand Doshi v. Barot Raman

Lal Ranchhoddas, AIR 1993 SC 1449 : (1993) 2 SCC 458, the

apex Court held as follows:

"A decree is said to be a nullity if it is passed by a Court having no inherent jurisdiction. Merely because a Court erroneously passes a decree or there is an error while passing the decree, the decree cannot be called a nullity. The decree to be called a nullity is to be understood in the sense

that it is ultra vires the powers of the Court passing the decree and not merely voidable decree."

14. While considering Section 2(2) of the Civil

Procedure Code, the definition of decree defined as a decree

passed by the Court without jurisdiction is nullity. When

defect of jurisdiction is such which cannot be cured by

consent or waiver of party, the defence of nullity can be set up

whenever such decree is sought to be enforced.

In Urban Improvement Trust, Jodhpur v.

Gokul Narain, AIR 1996 SC 1819: (1996) 4 SCC 178, the

apex Court held that a decree passed by the Court without

jurisdiction is a 'nullity'.

15. Similar view has also been taken by the apex

Court in DLF Universal Ltd. mentioned supra, where in

paragraphs-36 and 37 of the judgment, the apex Court held as

follows:-

"36. In our considered opinion the Director is not authorized to interfere with agreements voluntarily entered into by and between the owner/colonizer and the purchasers of plots/flats. The agreed terms and conditions by and between the parties do not require the approval or ratification by the Director nor is the Director authorized to issue any direction to amend, modify or

alter any of the clauses in the agreement entered into by and between the parties.

37. It is thus clear that there is no provision in the Act, Rules or in the licence that empowers the Director to fix the sale price of the plots or the cost of flats. The impugned directions issued by the Director are beyond the limits provided by the empowering Act. The directions so issued by the Director suffer from lack of power. It needs no restatement that any order which is ultra vires or outside jurisdiction is void in law, i.e. deprived of its legal effect. An order which is not within the powers given by the empowering Act, it has no legal leg to stand on. Order which is ultra vires is a nullity, utterly without existence or effect in law."

In view of such settled position of the law, as laid down by the

apex Court, with regard to the meaning attached to the word

'nullity', the order passed by the Deputy Director vide

Annexure-6 dated 28.05.2008, being without jurisdiction, this

Court is of the considered view that the same is a 'nullity' in

the eye of law and cannot sustain, as he has no jurisdiction to

pass such order.

16. Taking into consideration the factual matrix of

the case and the principles of law, as discussed above, this

Court is of the considered view that the order so passed by the

Deputy Director on 28.05.2008 in Annexure-6 keeping in

abeyance the decision taken by the High Power Committee in