Bombay High Court
Rajusingh Naik Shikshan Prasarak ... vs State Of Maharashtra & 4 Others on 21 April, 2016
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, P.N. Deshmukh
Judgment wp4038.01
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION Nos. 4038 & 4039 OF 2001.
**********
WRIT PETITION No. 4038 OF 2001.
Rajusingh Naik Shikshan Prasarak
Mandal, Pusad, District Yavatmal
through its President Shri Arun
s/o. Punamchand Naik, aged 50
years, r/o. Near Fulaji Hospital,
Washim, Taluq and District
Washim. ....PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary, Social
Justice Cultural Affairs and Sports
Department, Mantralaya,
Mumbai - 32.
2. Director of Social Welfare
State of Maharashtra,
Pune.
3. Divisional Social Welfare
Officer, Amravati Division,
Amravati.
::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 :::
Judgment wp4038.01
2
4. District Social Welfare Officer,
Washim, Taluq and District
Washim.
5. Shri Nathnange Maharaj Shikshan
Sanstha, a registered Public Trust
through its Secretary Shri Ratan
s/o Vithobaji Gid, aged about
38 years, r/o. At and post
Kinhiraja, Tahsil Malegaon,
District Akola. ....RESPONDENTS
.
ig WITH
WRIT PETITION No. 4039 OF 2001.
Rajusingh Naik Shikshan Prasarak
Mandal, Pusad, District Yavatmal
through its President Shri Arun
s/o. Punamchand Naik, aged 50
years, r/o. Near Fulaji Hospital,
Washim, Taluq and District
Washim. ....PETITIONER.
VERSUS
1. State of Maharashtra,
through its Secretary, Social
Justice Cultural Affairs and Sports
Department, Mantralaya,
Mumbai - 32.
2. Director of Social Welfare
State of Maharashtra,
Pune.
::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 :::
Judgment wp4038.01
3
3. Divisional Social Welfare
Officer, Amravati Division,
Amravati.
4. District Social Welfare Officer,
Washim, Taluq and District
Washim.
5. Gajadharji Rathod Bahuuddeshiya
Shikshan Sanstha, Wai (Gaul),
Tahsil Manora, District Washim
through its Secretary. ....RESPONDENTS
.
-----------------------------------
Mr. M.G. Bhangde, Senior Advocate with Shri R.B. Rathod,
Advocate for petitioner.
Ms. P.D. Rane and Mr. M.M. Ekre, Assistant Government Pleaders
for respondent no.1 State and its officers.
Mr. A.M. Ghare, Advocate for respondent no.5 ( in W.P.No.4038/2001)
Mr. P.C. Madkholkar, Advocate for respondent no.5 (in
W.P.No.4039/2001).
------------------------------------
CORAM : B.P. DHARMADHIKARI
& P.N. DESHMUKH , JJ.
DATED : APRIL 21, 2016.
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Very same petitioner has filed these two petitions questioning order dated 06.10.2001, passed by the respondent no.1 State Government, ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 4 whereby the earlier order transferring the Management of two basic Ashram Schools, then run by the petitioners to respective respondent no.5 on 19.08.1998 and 14.12.1998 have been maintained. The Ashram Schools were allotted to petitioners at place Kumbhi Tanda and Sonda, respectively in then Washim Tahsil.
2. Challenge in Writ Petition No. 4038/2001 pertains to said school at Sonda, administration of which has been handed over to respondent no.5 Shri Nathnange Maharaj Shikshan Sanstha. Challenge in Writ Petition No.4039/2001, is about Ashram School at Kumbhi Tanda, which has been allotted to respondent no.5 Gajadhar Rathod Bahuuddeshiya Shikshan Sanstha.
3. We have heard Shri M.G. Bhangde, learned Senior Counsel with Shri R.B. Rathod, learned Counsel for petitioners, Ms. P.D. Rane and Shri M.M. Ekre, learned Assistant Government Pleaders for respondent no.1 State and its officers. Shri A.M. Ghare, learned Counsel has argued the matter on behalf of respondent no.5 in Writ Petition No.4038/2001 and Shri P.C. Madkholkar, learned Counsel has argued the matter on behalf of respondent no.5 in Writ Petition No.4039/2001.
::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 :::Judgment wp4038.01 5
4. Shri M.G. Bhangde, learned Senior Counsel submits that the Ashram School at Kumbhi Tanda was allotted to petitioner on grant-in-aid basis in 1985, while the Ashram School at Sonda was similarly allotted in the year 1987. The Schools were functioning satisfactorily, however, on 21.03.1996, the District Social Welfare Officer has issued show cause notice in relation to both the schools. No action thereafter was taken and show cause notices were not acted upon. On 07.12.1996, separate show cause notices were issued by the Director of Social Welfare, calling upon the petitioner to submit its explanation and warning that if explanation was not received, further action to cancel recognition or to hand over management, would be taken. Petitioners submitted its reply to these show cause notices on 22.12.1996. Thereafter, an order came to be passed on 23.05.1997, merely observing that explanation tendered by the petitioner was not satisfactory and, therefore, the Director of Social Welfare proceeded to appoint an Administrator on both the schools. The District Social Welfare Officer, Akola came to be appointed as an Administrator for a period of one year. The Administrator did not take over the charge and then by order dated 19.08.1998 (in Writ Petition No. 4038/2001) and later by order dated 14.12.1998 (in Writ Petition No. 4039/2001), the Management of schools respectively at Kumbhi Tanda and Sonda, came to be transferred to respondent no.5 Institution in respective Writ Petitions.
::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 :::Judgment wp4038.01 6
5. Order dated 19.08.1998, transferring Kumbhi Tanda school only was questioned by present Petitioner in Writ Petition No. 3137/1998.
During pendency of that challenge and a Contempt Petition No.52/1999, which petitioner was required to file on 12.08.1999, the State Government withdrew the order dated 19.08.1998 as also order dated 14.12.1998. Shri Nathnange Maharaj Shikshan Sanstha filed Writ Petition No. 3248/1999, while Gajadhar Rathod Bahuuddeshiya Shikshan Sanstha filed Writ Petition No. 340/1999, challenging this order dated 12.08.1999. Division Bench of this Court considered these two Writ Petitions along with Writ Petition No.3137/1998 on 11.06.2001, and passed separate orders. Writ Petition No. 3248/1999 was allowed after finding that no opportunity of hearing was given to that petitioner - Nathnange Maharaj Shikshan Sanstha, who was placed in management of Sonda Ashram School. The order dated 12.08.1999, was therefore, set aside and matter was remanded back to the State Government for reconsidering the same. In the backdrop of these reasons, Writ Petition No. 340/1999, pertaining to Kumbhi Tanda Ashram School was also allowed and disposed of on same lines. As the matters were to be reheard by the State Government, Writ Petition No.3137/1998 filed by this Petitioner was disposed of by in view of its statement that challenge in the petition did not survive.
::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 :::Judgment wp4038.01 7
6. After this adjudication, petitioner submitted a representation on 03.07.2001 pointing out that orders transferring management of its Schools to respective respondent no. 5 were passed behind its back, without any knowledge to it and in absence of any statutory provisions to support it.
The representation was repeated on 01.10.2001, where plea of absence of powers in respondents to order such transfer was specifically taken and it was also brought on record that no notice under the provisions of the Maharashtra Educational Institution (Transfer of Management) Act, 1971 (hereinafter referred to as "the 1971 Act" for short), was issued at any point of time to the petitioner.
7. Shri Bhangde, learned Senior Counsel submits that in the wake of these representations, even after High Court orders dated 11.06.2001 mentioned supra, no show cause notice was served upon the petitioner and on 06.10.2001 the impugned orders maintaining earlier transfers of management i.e. orders dated 19.08.1998 and 14.12.1998 are passed. He submits that this order therefore, suffers from vice of violation of principles of natural justice, as it does not specifically consider the say of the petitioners, and does not record any finding on it. He states that the application of mind therein is not "case- specific", no reasons as to why the ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 8 new management is permitted or then why the 1971 Act is applicable to the Ashram Schools are recorded..
8. Shri Bhangde, learned Senior Counsel therefore, submits that Schools legally allotted to petitioners have been transferred to different managements high highhandedly, and therefore, the same may be restored back to the petitioner.
9. Ms. Rane and Shri Ekre, learned respective A.G.Ps, oppose the petition. They state that initial order dated 23.05.1997 is under Section 3 of the Maharashtra Educational Institutions (Management) Act, 1976 (hereinafter referred to as "the 1976 Act" for short), and the said provision enables the respondents to take over institution i.e. also to take over management and thereafter hand it over to any other management. The order dated 23.05.1997 considers these provision and is also after grant of opportunity to petitioner. The conclusion, that the explanation furnished by the petitioner was not satisfactory, is also recorded. This appointment of Administrator was never questioned by the petitioner. As the situation was helpless and Administrator could not take over charge, the State Government, vide later two orders transferred management to respective respondent no.5. Order dated 19.08.1998, was only questioned before this ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 9 Court in Writ Petition No. 3137/1998, while order dated 14.12.1998 relating to transfer of Sonda School was never assailed. Our attention is also drawn to the fact that under Section 3[4] of the 1976 Act, a remedy of filing appeal was available, but, the petitioner did not file any such appeal.
It is submitted that when the Administrator was appointed initially, provisions of 1971 Act were not used and order appointing Administrator was never questioned by the petitioner, as such the argument of violation of principles of natural justice is erroneous and misconceived.
10. The impugned order dated 06.10.2001 is read out to demonstrate that it contains necessary application of mind.
11. Shri Ghare, learned Counsel appearing for respondent no.5 in Writ Petition No. 4038/2001 has invited our attention to written submissions filed by the said respondent. He states that respondent no.4 found condition of School at Sonda so bad that he was unable to take over charge as an Administrator. As such, he submitted his report and then a order of transfer of Management of Sonda School to respondent no.5 came to be passed on 14.12.1998. That order has attained finality as it was never questioned by the petitioners before any Court or Authority. He invites our attention to a communication dated 28.01.1997, send by the petitioner to ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 10 one of the teachers in Ashram School at Sonda. It contains a statement that the petitioner - Management had already decided to close down that school.
Learned advocate has invited our attention to first show cause notice dated 21.03.1996 and later one dated 07.12.1996. Warning to the Petitioner of handing over administration of both the Ashram Schools, in case explanations thereto were not found not satisfactory by the department was already given and within knowledge of petitioner. Petitioner submitted identical reply on 26.12.1996, but, in that reply, did not meet the facts on deficiencies or lacunae noticed and reply contained general comments.
Allotment or handing over of management of Sonda School to respondent no.5 in Writ Petition No. 4038/2001 is being questioned only after the matter came to be remanded by this Court on 11.06.2001. He relies upon the order dated 14.12.1998 to urge that the school allotted to the petitioner at Sonda has been shifted to other place by the respondent no.5. He contends that as transfer of management to respondent no.5 and School at Sonda did not form part of challenge in Writ Petition No.3137/1998, order dated 12.08.1999 canceling that allotment to respondent no.5 is without jurisdiction. He further argues that in this situation, orders of this Court dated 11.06.2001, cannot reopen the controversy which had attained finality.
::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 :::Judgment wp4038.01 11
12. Shri Madkholkar, learned Counsel appearing for respondent no.5 in Writ Petition No.4039/2001, adopts the arguments of learned A.G.Ps. as also of Advocate Ghare. He submits that show cause notice served upon the petitioner on 07.12.1996, contains the instances which show improper and unsatisfactory working as also mismanagement. Show cause notice expressly called upon the petitioner to explain why approval or recognition should not be canceled or then, the management should not be transferred.
He has invited our attention to reply filed by the petitioner thereto on 26.12.1996 to urge that the petitioner has accepted those lacunae or instances or improper management. According to him, the reply itself shows inability of the petitioner to manage the Ashram School, and in this background first order dated 26.05.1997, appointing Administrator for a period of one year is fully justified. The petitioner did not challenge appointment of Administrator and hence, has acquiesced in it. Even in Writ Petition No.3137/1998, the petitioner did not make any grievance about appointment of Administrator and ultimately the said petition was withdrawn on 11.06.2001. Therefore, according to him the impugned order which upholds transfer of management is, liable to be maintained. He reiterates that after transfer of management, the question of validity of appointment of Administrator is no longer open. Our attention is drawn to a representation dated 23.09.1997 submitted by the petitioner to the State ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 12 Government, in which the petitioner is shown as appellant and the Director of Social Welfare has been shown as respondent. Shri Madkholkar, learned counsel submits that this representation or appeal contained a prayer to cancel the order dated 23.05.1997, by which the Administrator was appointed. However, thereafter said challenge was never pressed.
13. In the background, he has invited our attention to Section 8 of the 1976 Act, to urge that the inability of Administrator to assume charge or then of management to function is taken care of, and in that eventuality, management can be handed over to other management as mentioned therein. He has invited our attention to the fact that respondent no.5 has continued with the management of schools for a period over 17 years, and in this situation, at this juncture the management of said schools or teaching therein cannot be disturbed. He contends that there are no complaints whatsoever against the respondent no.5 and taking over all view of the matter, the Government may have exercised its special privilege and power to hand over the schools of petitioners to respective respondent no.5.
14. Without prejudice he submits that the petitioner have not produced before this Court any material to demonstrate that today they are equipped to manage the schools, if schools are handed over to them. In this ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 13 situation, by way of abundant precaution, Adv. Madkholkar adds that if remand of matter back to the respondent for fresh consideration is needed, the position prevailing today cannot be disturbed.
15. He has relied upon the judgment of the Hon'ble Apex Court reported at (2013) 1 SCC 1 (Sahara India Real Estate Corporation Ltd and others .vs. Securities and Exchange Board of India and another) (paragraph nos. 258, 259 and 262) to urge that mere argument of violation of principles of natural justice is not sufficient in such cases, and unless and until the petitioner demonstrates accompanying prejudice, the impugned action can not be held vitiated. As no such prejudice has been demonstrated in present matter, the petition is liable to be dismissed.
16. In its reply arguments, learned Senior Counsel Shri Bhangde, has invited our attention to Section 8 of the 1976 Act. That section applies only when the Administrator completes his tenure and the school is to be handed over back to the original management. He points out the peculiar arrangement made therein and submits that as in present case, no action has been taken under 1971 Act, in absence of adherence to the procedure stipulated in said section, the management of petitioner school cannot continue with respondent no.5. He states that in Writ Petition filed earlier ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 14 vide Writ Petition No. 3137/1998, though order dated 14.12.1998 was not in question, orders dated 19.08.1998 and 14.12.1998 were withdrawn by the State Government itself. Said withdrawal or cancellation was questioned by respective respondent no.5 by filing Writ Petition Nos. 3248/1999 and 340/1999. Division Bench of this Court after hearing all concerned, by a reasoned order, directed the State Government to reconsider the issue. As such according to him, order dated 19.08.1998 or 14.12.1998 do not revive and an exercise for passing of suitable orders was required to be undertaken afresh. In view of this development, it was not necessary to have any adjudication in Writ Petition No. 3137/1997, on merits. He further contends that inherent lack of powers or jurisdiction in State Government to order change of management can be pointed out in any judicial proceedings at any point of time. He relies upon a judgment of the Hon'ble Apex Court reported at (1979) 2 SCC 34 (Chief Justice of Andhra Pradesh and others .vrs. B.S. Dixitulu and others) particularly paragraph no.24 therein, to buttress this submissions.
17. He submits that none of the respondents before this Court have pointed out any disqualification or absence of eligibility in petitioners to receive back the Ashram Schools. He contends that after appointment of Administrator on 23.05.1997, earlier show cause notice or proceedings in ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 15 relation thereto came to an end and stood exhausted. Appointment of Administrator thereafter would have been and has to be an independent exercise in adherence to principles of natural justice. If management was to be transferred or handed over to a third party, petitioners ought to have been heard and for that necessary opportunity should have been extended to petitioners. As that has not been done, the orders dated 14.12.1998 and 19.08.1998 in favour of respective respondent no.5 are without jurisdiction and unsustainable. He adds that no such change of hands is possible in view of Section 8 of 1976 Act.
18. He further submits that the petitioner had submitted representations on two occasions after the judgment of Division Bench of this Court dated 11.06.2001. Necessary factual matrix have been made available in it. That material needed consideration by the respondent State Government before passing the impugned order dated 06.10.2001. The competency of the petitioners to administer the school, availability of infrastructure or other aspects having bearing upon it, are all facts which needed evaluation in order dated 06.10.2001, and as that has not been done, the order is bad in law. Learned Senior Counsel submits that the petitioner has approached this Court pointing out non-application of mind and it is not for this Court to record any finding about eligibility or absence ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 16 thereof qua Petitioner. If respondents wanted to raise any such defence, they ought to have made relevant material available to this Court.
19. He further contends that the petitioners have all the while been making attempt to obtain the schools back. They have accordingly made representation after order dated 23.05.1997, and then approached this Court in Writ Petition No. 3137/1998. The petitioners also submitted their representation on 03.07.2001 and 01.10.2001 after remand ordered by this Court on 11.06.2001. After adverse order dated 06.10.2001, present petitions have been filed. Fact that petitions have remained pending before this Court for 17 years, therefore, cannot be used to the detriment of the present petitioner. He submits that ignoring said period, the issue needs to be addressed to by considering the situation prevailing on 06.10.2001. He therefore, prays for handing over back the management of both the schools to petitioner.
20. We have examined the controversy in the light of these arguments.
The orders passed by the respondents are dated 23.05.1997, 19.08.1998, 14.12.1998, 12.08.1999 and 06.10.2001. The judgment/orders of this Court dated 11.06.2001 also need appreciation.
::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 :::Judgment wp4038.01 17
21. There were, in past, three writ petitions before this Court i.e. Writ Petition No. 3137 of 1998 filed by present petitioner, Writ Petition No. 3248 of 1999 and Writ Petition No. 340 of 1999 filed by respective Respondent No. 5 in present petitions. Those writ petitions are disposed of on 11.06.2001. Writ Petition No. 3137 of 1998 was not pressed because of adjudication in Writ Petition No. 3248 of 1999. The judgment delivered in Writ Petition No. 3248 of 1998 on the very same day reveals that the order dated 12.08.1999, transferring management of the petitioner's School at Sonda to the respondent No.5 in that petition was set aside and the matter was remanded to Respondent No. 1 - State for considering the issue regarding allotment of Ashram School, Sonda, after hearing the concerned parties. The present petitioner was Respondent No. 5 in said Writ Petition No. 3248 of 1999. Similarly, identical challenge in relation to Kunbhi Tanda School was considered on the very same day in Writ Petition No. 340 of 1999 and that writ petition was also disposed of on the same lines.
The present petitioner was Respondent No. 3 in Writ Petition No. 340 of 1999. It is, therefore, obvious that after 11.06.2001, the orders dated 19.08.1998 or 14.12.1998 do not survive. Directions issued on ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 18 11.06.2001 by this Court have attained finality and acted upon or acquiesced in by everybody. The contention of Shri Ghare, learned counsel, that the order dated 14.12.1998 was not questioned by present petitioner in its earlier Writ Petition No. 3137 of 1998 is, therefore, not relevant.
22. Orders dated 19.08. 1998 and dated 14.12.1998 were recalled by the State Government itself on 12.08.1999 and respective Respondent No. 5 in present Writ Petitions were constrained to file above mentioned Writ Petition No. 3248 of 1999 and Writ Petition No. 340 of 1999 against it. That order dated 12.08.1999 was set aside by this Court and the State Government was supposed to pass fresh orders after hearing all concerned. It, therefore, follows that the orders dated 14.12.1998 and 19.08.1998 did not revive. The earlier order dated 23.05.1997 did appoint an Administrator for a period of one year on both Schools. In that order, grant of an opportunity to present petitioner, personal visit on 24.11.1995 and report submitted thereafter are mentioned. The contents of that report and absence of coordination between management and staff was noted. This fact also ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 19 finds mention in order dated 23.05.1997. Thereafter, in said order, it is concluded that Ashram Schools were not being run by the Petitioner to further the government objective and as per Government policy as the management was not proper. Explanation to show cause notice given by the Petitioner was found not satisfactory, and hence, the Administrator came to be appointed. Thus, in its opening paragraph, certain events which are prior to issuance of show cause notice have been narrated and on that basis, after giving an opportunity to Petitioner, an Administrator came to be appointed on both Schools.
This order dated 23.05.1997 is admittedly under Section 3 of 1976 Act.
Its life was one year and it was never questioned by the present petitioner. It never came into force.
23. As the Administrator then could not take over charge of any School, it is claimed that he submitted a report accordingly and on the basis of that report, the order transferring the management to respective Respondent No. 5 were passed on 19.08.1998 and 14.12.1998. Thus, those orders were passed after expiry of order dated 23.05.1997 after a period in excess of 15 months. The ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 20 Administrator could not assume the charge after 23.05.1997 and ultimately the Government found it fit to transfer the management itself.
24. In the light of judgment delivered by this Court on 11.06.2001, it is apparent that validity of this action needed to be looked into. As the administrator supposed to manage the affairs of both the Schools of Petitioner could not enter the management, the first order appointing the administrator never came into being and never operated. We therefore find no substance in the contention of Petitioners that said order dated 23.05.1997 exhausted itself. Inability of the Petitioner to take over the management for whatever reasons, can not have the effect of killing the order dated 23.05.1997.
25. After remand on 11.06.2001, the petitioner has submitted two representations. Those representations are dated 03.07.2001 and 01.10.2001. In the said representations, it has pointed out absence of an opportunity, absence of legal provisions, absence of power in respondents to order such transfer of management. The respective parties have invited our attention to provisions of 1976 Act as also ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 21 1971 Act.
26. Shri Bhangde, learned Senior Advocate has pointed out that while defining the School, 1976 Act, vide Section 2 specifically envisages Ashram Schools and hence 1976 Act is applicable to Petitioner's Ashram Schools. He has pointed out that 1971 Act which defines Educational Institutions or institution, does not expressly include Ashram School within its sweep. Though the respondents have not expressly contended that this argument is erroneous, they have attempted to urge that in present situation, the said 1971 Act can be taken recourse to. Shri M.M. Ekre, learned AGP has pointed out that during pendency of these petitions, the State Government has brought into force a law by name " Ashram Shala Sanhita, 2006, (in Marathi)".
However, no provision therein is pressed into service and no arguments have been advanced before us to show that said Sanhita (Code) enables the respondents to transfer management from one Society to other Society. Prayer clause "1-A" has been allowed to be added in W.P. 4039 pf 2001 on 29.04.204 and thereby a prayer to quash and set aside the GR dated 18.01.2003 permitting shifting of Kumbhi(Tanda) ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 22 school to a village Shendona in other Tahsil has been made. None of the parties have invited our attention to this prayer and no arguments in that respect have been advanced.
27. It is in this situation that representations submitted by the petitioner on 01.10.2001 needed appreciation. In the impugned order passed thereafter on 06.10.2001, there is no application of mind qua the objections raised by the Petitioner. Said order does not refer to any legal provision as source of power to usher a new person or society into management. The respondents have not pointed out as to how they can divest the petitioner - management of its properties or the School and entrust it to some third person/ institution/ Trust. Scheme apparent from Section 3 or Section 8 of 1976 Act also does not find any evaluation. We, therefore, find the order dated 06.10.2001 unsustainable.
28. However, here, the petitioners have not managed these two Schools after 1998 till date, except for a brief period when because of order dated 12.08.1999, the management was restored back. But after 1999, period of more than 16 years have now expired. Ashram School ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 23 at Kumbhi(Tanda) is apparently being run in some other premises and at a different place ie at village Shendona. The petitioner has not shown to this Court that the petitioner is running any other Schools or Ashram Schools. The petitioner has not shown that it has invested any amount in purchasing movable or immovable property for these two Ashram Schools. The petitioner has also not pointed out that the respective Respondent No. 5 have not shifted the working place of School to some other area. Respective respondent No. 5 have also not pointed out any of these facts.
29. This Court has to give paramount importance to the education in these Schools and see to it that this litigation does not result any prejudice to the students therein or affect its staff. It is in this situation, we find it not proper to disturb the management of respective Respondent No. 5 on Schools with them though we quash and set aside the impugned order dated 06.10.2001. We direct Respondent No. 1 to hear the petitioner and respective Respondent No. 5 as also representative of department, afresh. The relevant records shall also be perused. All facts and developments having bearing on ::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 ::: Judgment wp4038.01 24 establishment or location of these two Schools shall also be duly evaluated. Petitioner as also the Respondents will be given due opportunity to have their say in the matter. Keeping in mind all these factors, the fresh decision on further course of action available, after receipt of report of Administrator that he was not in a position to take over the charge of two Ashram Schools shall be reached at the earliest.
30. Respondent No. 1 shall proceed to procure relevant records and material needed to complete this exercise. It shall permit the parties to peruse it and submit their say in writing on it within reasonable time. Respondent No. 1 shall then proceed to hear them and take appropriate decision at the earliest and in any case within next three months. We direct the parties to appear before Respondent No. 1 for this purpose on 30.05.2016.
31. Till passing of such fresh orders by Respondent No. 1, the conduct and management of respective Ashram Schools by Respondent No. 5 shall not be disturbed. This interim arrangement shall be subject to outcome of exercise to be completed by the Respondent No. 1.
::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 :::Judgment wp4038.01 25
32. Writ Petitions are thus partly allowed and disposed of. Rule is made absolute accordingly. No order as to costs.
JUDGE JUDGE
Rgd/GS.
::: Uploaded on - 29/04/2016 ::: Downloaded on - 29/07/2016 23:11:21 :::