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VIVEKA NAND SHIKSHA SAMITI V/S STATE OF HARYANA, decided on Tuesday, June 2, 1992.
[ In the High Court of Punjab and Haryana, Letters Patent Appeal No. 352 of 1992. ] 02/06/1992
Judge(s) : A.S. NEHRA & R.S. MONGIA
Advocate(s) : Ajay Lamba, R.C. Setia, R.K. Malik.
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  "1993 AIR (P&H) 39"  







    Haryana Private Colleges (Taking Over Of The Management) Act 1978 - Section 3(5) -Constitution Of India Article 226 -Cases Referred:Ude Singh v. State of Haryana 1972 0 PLJ 20     A.S. NEHRA J J.(1) THIS appeal is directed against the judgement of the single Judge dt. Jan. 15 1992 by which the writ petition filed by the appellant was dismissed. Appellant Viveka Nand Shiksha Samiti Nangal Chaudhary (hereinafter referred to as Society) is a registered Society. Appellant-Society authorised Shri Mala Ram president of the Governing Body of the Viveka Nand College to file the writ petition under Art. 226 of the Constitution of India for the issuance of a writ of mandamus to the respondents to hand over the Management of Viveka Nand College Nangal Chaudhary to the newly constituted Governing Body of Viveka Nand College Nangal Chaudhary. (2) THE Society runs a degree college in the name of Viveka Nand College Nangal Chaudhary since 1987. Election of the Governing Body of Viveka Nand College was earlier held on 3/04/1988 and the term of the Governing Body was for three years. In the month of April 1990 Government issued a show cause notice to the Management/president of the Governing Body of the College to show cause as to why the Management be not taken over by the Government. Since no reply was submitted Government took over the Management of the College vide letter dated 27/07/1990 and an Administrator was appointed for a period of one year and in pursuance of appointment of the Administrator he joined on Aug. 7 1990. The term of the Administrator expired on Aug. 6 1991. (3) THE Society decided to hold the election on 27/07/1991 and for that purpose a Returning-cum-Presiding Officer was appointed. Returning-cum-Presiding Officer wrote a letter on 13/07/1991 to the Dean Colleges Development Council M. D. University Rohtak stating that the Society has decided to hold the election of the Governing Body that he had been appointed as Returning-cum-Presiding Officer to hold the election and that copy of the election programme was being sent to him and the Dean was requested to send his nominee at the time of election so that the election could be held according to the programme. A copy of the letter was also sent to the Director Higher Education Haryana with a prayer that nominee be sent at the time of election. In pursuance of the request made by the Returning-cum-Presiding Officer the Director Higher Education Haryana appointed the Principal Government College Narnaul as an Observer at the time of election which was to be held on 27/07/1991 at 10. 00 a. m. and the Principal was directed to send his report to the effect whether the election had been held properly as per rules immediately. Election of the Governing Body was held on 27/07/1991 and the nominee of the Government informed the Director Higher Education Haryana that the election of the Governing Body was held at the time fixed in the programme and the election held was valid. It was further stated by the Principal that the election has been held in accordance with law and the report of the election in original was sent to the Director Higher Education.(4) IN spite of the request made by the Returning-cum-Presiding Officer to the University to send their nominees University did not send its nominee at the time of election. Government of Haryana has issued instructions on Feb. 9 1983 regarding the presence of the nominee at the time of election of Governing Body of Private Colleges. The instructions issued by the Government read as under :-from The Director Higher Education Haryana Chandigarh. To All Governing Bodies of Private Colleges of the State. Memo No. 755-3/1-79-CII (2) Dated Chandigarh the 9-2-1983. Sub : Regarding the presence of the nominee at the time of election of Governing Body of Private Colleges. It has been brought in the notice of the Government that according to the instructions if the nominee of the University is not present at the time of election of the Managing Committee then the General Body has to postpone the election to some dates and due to this reason General Body has to face great difficulties because in the absence of the nominee the election is not considered as valid and due to this reason great difficulties were faced. By taking into consideration this difficulty Government has decided that at the time of the election along with nominee of the University the nominee of the Govt. be also summoned and if election has been held in the presence of one nominee still the election will be considered as valid. It has further been decided that nominee of the Govt. will be present who is the representative of the Govt. in the Governing Body of the College. Therefore whenever any date and time is fixed in the election of the Management the nominee of the University along with the nominee of the Government may be informed well in time. Acknowledgment be sent. Sd/-Deputy Director Higher Education for Director Higher Education Haryana. According to the instructions at the time of election if election has been held in the presence of one nominee the election will be considered as valid. (5) THE Society requested the Government to hand over the Management to the newly constituted Governing Body. The President of the Governing Body also requested the Government that the Management of the College be handed over to the newly constituted Governing Body but instead of handing over the Management respondent No. 1 has extended the term of the Administrator. It was further contended that the action of the respondent not to hand over the Management to the newly constituted Governing Body on 27/07/1991 is illegal unjust arbitrary and contrary to the provisions of the Haryana Private Colleges (Taking Over of the Management) Act 1978. The relevant Sections 2 and 3 of the Act are reproduced below for ready reference :-2. in this Act unless the context otherwise requries (a) administrator means an Officer appointed by the State Government to take over the Management of a College; (b) college means an institution which is not run by the Central Government the State Government or a local authority which is reognised by the Kurukshetra University under the provisions of the Kurukshetra University Act 1956; or admitted to the privileges of the Maharishi Dayanand University under the provisions of the Maharishi Dayanand University Act 1975. (c) college property means all moveable and immoveable property belonging to or in the possession of a college and all other rights and interests in or arising out of such property and includes land buildings and its appurtenances play grounds hostels furniture books apparatus maps equipment utensils cash reserve funds investment and bank balances. (d) managing committee means the body of the individuals entrusted with the management of a college; (e) minority College means a college established and administered by a minority having the right to do so under clause (1) of Art. 30 of the Constitution; and (f) president in relation to a college means the person by whatever name called who is entrusted with the management of the affairs of the College immediately before taking over the management under this Act.3. Power to take over management of colleges :- (1) Whenever the State Government on receipt of a report from the University concerned or otherwise is satisfied that the managing committee or president of a College has -(a) neglected to perform or persistently made default in the performance of duties and functions imposed on it under the Kurukshetra University Act 1956 or the Maharishi Dayanand University Act 1975 or the statutes ordinances and regulations made thereunder; or (b) failed to carry out any order passed or directive issued by the State Government or any order passed by the Director under the Haryana Affiliated Colleges (Security of Service) Act 1979; or(c) exceeded or abused its or his powers and that it is expedient in the interest of college education to take over the management of such college the State Government may after giving the Managing Committee or the president of such Collage a reasonable opportunity of showing cause against the proposed action and after considering the reply if any made by the Managing Committee or the President of such College as the ease may be make an order for taking over the Management of such college by an Administrator for a period not exceeding three years as it may deem fit. 2) Whenever the Management of any college is taken over under sub-s. (1) every person m-charge of the Management of such college immediately before its Management is taken over shall deliver the possession of the College property to the Administrator. 3) After taking over the Management of a College under this Section the Administrator shall exercise all the powers of the Managing Committee and the President; 4) During the period the College remains under the Management of an Administrator;-(a) the Managing Committee and the President shall cease to exercise powers and functions of Management over the affairs of the College as long as the Management vests in the Administrator; b) the service conditions of the employees of the college who were in employment immediately before the date on which the Management was taken over shall not be varied to their disadvantage; c) all educational facilities which the college had been affording immediately before such Management was taken over shall continue to be afforded; d) the College fund pupils fund; Management fund and any other existing fund shall continue to be available to the Administrator for being spent for the purpose of the College. e) without prejudice to the generality of the provisions of Sub-Section (3) of Sec. 3 of the Act no decision or resolution of the Management Committee made after the date of the show cause notice issued under Sub-Sec. (1) of Section 3 shall be given effect to unless approved by the Administrator; and (f) the Administrator shall report to the State Government all such decisions and his orders thereon and it shall be open to the State Government to confirm modify or reverse the order of the Administrator. 5) The State Government may at any time before the expiry of the period for which the Management of a College is taken over and shall on the expiry of the period for which the Management of the College is taken over hand over the Management along with the college property to the duly constituted Managing Committee of the College. (6) WRITTEN statement on behalf of respondent No. 1 has been filed by the Deputy Secretary Education. In para 6 of the written statement it has been stated that the Administrator vide Memo No. 5062 dated 22/07/1991 intimated the Government that the Lecturers of the College are fearing harassment at the hands of previous Management and the development of the college will cease if the present arrangement is discontinued and that the Administrator recommended the extension of the term of the Administrator. It has been further mentioned that the Teachers Union of the College had made representation requesting the Government for extention of the term of the Administrator because the newly elected Management is not interested in the welfare of the College and huge amount collected from the people of the area for the construction of College building will not be properly utilised and therefore in view of the report of the Administrator the Government had decided to extend the term of the Administrator. (7) AVERMENTS made in para 7 of the writ petition to the effect that the Government was asked to send its nominees have been admitted in written statement. Averments made in Para 8 of the writ petition to the effect that the election was held on 27/07/1991 and the nominee of the Government has reported that the election was held properly and in accordance with law has also been admitted by respondent No. 1. In para 8 of the written statement it has been stated that the election of the Governing body is totally different issue and has no concern with the taking over of the administration. Averments made in para 9 of the writ petition to the effect that if at the time of election if nominee of the Government or nominee of the University is present then the election will not be invalid merely because one nominee either of the University or of the Government is not present have also been admitted in the written statement. But it has been further submitted in para 9 of the written statement that the election of the Managing Committee is not relevant for extension of the term of the Administrator. It has been further averred in para 10 of the written statement that the Government has carefully considered the request of the Governing body for handing over the Administration of the College and had come to the conclusion that the new Governing Body is headed by the persons against whom there were serious allegations on account of which the Administration of the College was taken over earlier that the staff of the College and notable persons of the area as per report of the Administrator had represented that the affairs of the College would greatly suffer if the present arrangement was discontinued that the Government has given careful consideration to all the aspects of the matter and has come to the conclusion that college education will greatly suffer if charge was handed over to the Management and that therefore the term of the Administrator has been extended. Legal averments made in para 11 of the writ petition have been denied. (8) ADMINISTRATOR Dr. Mahavir Singh I. A. S. respondent No. 2 has filed written statement and has raised nine preliminary objections stating that the writ petition is liable to be dismissed for non-joinder of parties; that Maharishi Dayanand University Rohtak is a necessary party; that the University has not been impleaded with mala fide intentions; that election to the Governing Body was controlled monitored and approved by the University; and that proper procedure was not followed for holding the election. The other eight preliminary objections raised by the Administrator are frivolous. Therefore these are not being reproduced in the judgement. (9) ON merits it has been stated by respondent No. 2 in the written statement that the election process could not be initiated suo motu by the Society by appointing the Returning Officer; that the University was not informed about the election and that in the absence of the University nominee election is invalid. Other pleas raised in the written statement of respondent No. 1 have been reiterated by respondent No. 2 in his written statement. Along with the written statement Administrator has annexed Annexure R. 2/5 which reads as under :-maharshi Dayanand University Rohtak no. CB-VI/91/7415 Dated 15-10-91 to The Administrator Vivekanand College Nangal Chaudhary. Sub : Supply of information. Dear Sir With reference to your letter No. MNC/91/1360 dt. 14-10-91 regarding certain clarification about the elections of the Governing Body I am desired to inform you that :-1. It is the Society running the College to start with the process of elections of the office bearers of Governing Body. 2. The Society as mentioned above appoints a Returning Officer for conducting the elections. 3. The elections held on 27-7-91 in the absence of University Observer was not valid. 4. The University had not approved the elections of 27-7-91 which was not held in accordance with the University Rules (Statute 38 Clause 25 (i) of the University Calender Volume I). 5. Copy of the Statute 38 of University Calender Volume I is attached herewith. 6. The University was informed just a couple of days prior to the elections but sufficient time was not given for appointment of University Observer. Any election of the Governing Body without the presence of University Observer cannot be approved by the University. Yours faithfully Sd/-Assistant Registrar (College)for DEAN College Dev. Counsil. DA/as above. In para 6 of the letter which has been reproduced above addressed to respondent No. 2 by the University it has been stated that the University was informed just a couple of days prior to the election but sufficient time was not given for appointment of University Observer. (10) MR. R. K. Malik counsel for the appellant has submitted that the Governing Body/managing Committee of the College was duly constituted on 27/07/1991 when the election was held in the presence of the nominee of the Government; that the nominee of the Government has informed the Government on 30/07/1991 that the election of the Governing Body of the College was valid and it was held in accordance with law; and that therefore in view of the provisions of Section 3 (5) of the Act which reads as under : 3 (5) :- The State Government may at any time before the expiry of the period for which the management of the College is taken over and shall on the expiry of the period for which the management of a college is taken over hand over the Management along with the college property to the duly constituted Managing Committee of the College. the appellant is entitled to take over the Management of the College along with the College property from the Administrator because the provisions of S. 3 (5) of the Act is mandatory. (11) MR. Ajay Lamba learned counsel for the Administrator has submitted that the Administrator Vide Memo. No. 5062 dt. 22/07/1991 had intimated the Government that the Lecturers of the College are fearing harassment at the hands of the previous Management and the development of the College will cease if the present arrangement is discontinued. He has further submitted that the Administrator had recommended the extension of the term of the Administrator to the Government and that the Teachers Union of the College had made representation on 30/07/1991 requesting for the extension of the term of the Administrator because the newly elected Management was not interested in the welfare of the College and huge amount collected from the people of the area for the construction of the building would not be properly utilised. It has been further submitted by the learned counsel for the Administrator that the Government has extended the term of the Administrator on Oct. 1 1991 vide Annexure R-4 for one year i. e. from 27/07/1991 to Jul 26/07/1992 and since this order passed by the Government has not been challenged by the appellant in the writ petition therefore the writ petition filed by the appellant is liable to be dismissed on this ground alone. It may be pointed out that the appointment of the Administrator beyond 27/07/1991 was extended till further orders by the Government on Aug. 30 1991 vide Annexure R-2/6.(12) AFTER hearing the counsel for the parties we find force in the arguments raised by Mr. R. K. Malik counsel for the appellant that the State Government is legally bound to hand over the Management of the College along with the college property to the appellant which is newly elected Governing body of the college. The Governing body of the College was elected on 27/07/1991 in the presence of the nominee of the Government. Nominee of the Government had intimated the Government that the election of the Governing body of the College was held in his presence and the election was valid. University was also informed to send its nominees at the time of election but the University did not send its nominee at the time of election. Since the nominee of the University was not present at the time of election therefore it cannot be held in view of the instructions of the Government that the election of the Governing body is not valid. According to the instructions of the Government dt. Feb. 9 1983 Annexure P. 4 if the election held in the presence of one nominee still the election will be considered as valid election of the Governing body. Therefore respondents are legally bound to hand over the Management of the College and property of the College to the appellant. We find no force in the contention raised by Shri Ajay Lamba learned counsel for respondent No. 2 that the development of the college will cease if the present arrangement is discontinued because the newly elected Management is not interested in the welfare of the college and huge amount collected from the people of the area for construction of the building of the College will not be properly utilised. In case this argument of the learned counsel of respondent No. 2 is accepted that will amount to prejudging the functioning of the Governing body. It has not been allowed to take over the Administration of the College by the Administrator. In para 6 of the written statement filed on behalf of respondent No. 1 it has been stated that newly elected Management is not interested in the welfare of the college. This averment of respondent No. 1 in para 6 has established a fact that fresh election has been held on 27/07/1991 of the Governing Body of the College. Respondent No. 2 who is an Administrator appointed by the Government is not entitled to raise plea that the election held on 27/07/1991 in the absence of the University nominee is invalid. Respondent No. 2 has contested this case in such a manner as if he has got a legal right to remain Administrator of the College till further orders. (13) THE appellant is duly constituted Managing/governing Body of the College and therefore the appellant is entitled to take over the Management of the College along with the College property from the respondents. The learned counsel for the appellant has further submitted that the learned single Judge has erred in law in dismissing the writ petition of the appellant on the ground that the appellant had not challenged the order dt. Aug. 30 1991 by which the term of the Administrator had been extended till further orders. He had further submitted that the term of the Administrator was extended on Oct. 1 1991 vide Annexure R-4 after the appellant had filed writ petition and since the appellant was entitled to take over the Management from the respondents after the election therefore the appellant was not bound to challenge the order of the State Government dt. Aug. 30 1991. He has further submitted that even if the appellant has not challenged the order of the Government dt. Oct. 1 1991 and Aug. 30 1991 this Court under Art. 226 of the Constitution of India has very wide discretion in the matter of framing its writs to suit the exigencies of particular cases and a writ petition under Art. 226 of the Constitution of India cannot be thrown out simply on the ground that the orders dt. Oct. 1 1991 and Aug. 30 1991 passed by the Government have not been challenged in the writ petition. In support of his arguments he has relied upon Ude Singh v. State of Haryana 1972 PLJ 20. Learned counsel for the appellant has further submitted that the single Judge has erred in law in dismissing the writ petition of the appellant on the ground that the Managing Committee of the College has not filed the writ petition. Admittedly Viveka Nand Shiksha Samiti (a registered Society) has filed the writ petition through Shri Mala Ram President of the Governing Body of the appellant-College Nangal Chaudhary. Since the Society has authorised Shri Mala Ram President of the Governing Body of the College to file the writ petition therefore writ petition is competent and the learned single Judge has erred in dismissing the writ petition on the ground that the Managing Committee of the College has not filed the writ petition.(14) WE also find force in the contention of the learned counsel for the appellant that the High Court under Art. 226 of the Constitution of India certainly has wide powers and there is no reason why a High Court should not frame its writs to suit the exigencies of particular cases wherein a proper writ or direction has not been prayed for quashing the orders of the Government dt. Oct. 1 1991 and Aug. 30 1991 contained in Annex. R-4. (15) IN view of our above-mentioned discussion this appeal is allowed and the judgement passed by the learned single Judge on 15-1-1992 is set aside. The writ petition filed by the appellant is allowed. The orders dt. 1-10-1991 (Annexure R-4) and 30-8-1991 (Annexure R-2/6) are quashed. The respondents are directed to hand over the management of the College along with the property of the College to the appellant forthwith. No order as to costs. Appeal allowed.