Uttarakhand High Court
Jasbeer Marwah vs State Of Uttarakhand And Others on 2 June, 2020
Equivalent citations: AIR 2020 UTTARAKHAND 124, AIRONLINE 2020 UTR 183
Bench: Ramesh Ranganathan, R.C. Khulbe
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
CLMA DELAY CONDONATION APPLICATION NO. 3459 OF
2020
IN
SPECIAL APPEAL NO. 93 of 2020
Jasbeer Marwah ............Appellant.
Vs.
State of Uttarakhand and others. ...Respondents
Sri M.C. Pant, learned counsel for the appellant.
Sri Anil Kumar Bisht, learned Standing Counsel and Sri Suyash Pant, learned Brief
Holder for the State of Uttarakhand.
Dated: 2nd June, 2020
Coram:Hon'ble Ramesh Ranganathan, C.J.
Hon'ble R.C. Khulbe, J.
Ramesh Ranganathan, C.J. (Oral) The delay in preferring the Special Appeal is not opposed by the learned counsel for the respondents and is, therefore, condoned. The Application seeking condonation of delay stands disposed of accordingly.
2. This appeal is preferred against the order of the learned Single Judge in Writ Petition (M/S) No. 203 of 2020 dated 05.03.2020, whereby the writ petition was disposed of.
3. The petitioner, in Writ Petition (M/S) No. 203 of 2020, has preferred the present appeal before us contending that the order under appeal suffers from a patent illegality, in as much as the very appointment of an authorized controller, for a minority institution, is contrary to Section 34(14) of the Uttarakhand School Education Act, 2006 (for short the "2006 Act").
4. In the writ petition filed by him, the petitioner had sought a writ of certiorarified mandamus to declare the advertisement dated 16.01.2020 as arbitrary and void ab initio, and to command the respondents to take immediate steps for conducting election of the Committee of Management of the Institute on the basis of the list of 2 members as existed prior to completion of the tenure of the erstwhile Committee of Management as on 01.04.2016, and fix the time-limit for conducting election of the Committee of Management of the Institute; a writ of quo-warranto and prohibition to declare the continuance of the sixth respondent as an Authorised Controller as contrary to law, and the order appointing the 5th respondent as Authorised Controller as void ab initio; and to remove the 5th and 6th respondents as Authorised Controllers of the petitioner College.
5. An Authorised Controller was appointed, by order dated 26.12.2016, to manage the affairs of the petitioner-College as the three-year period of the Committee of Management had expired in the month of October, 2016.
6. While it is true that the appellant-writ petitioner had challenged the appointment of the Authorised Controller, albeit more than three years after his appointment on 26.12.2016, the complaint before us is that the learned Single Judge had failed to examine the contentions, urged on behalf of the appellant-writ petitioner, that the very appointment of the Authorised Controller falls foul of Section 34(14) of the 2006 Act.
7. Sri M.C. Pant, learned counsel for the appellant-writ petitioner, would submit that Sri Guru Nanak Public Boys Inter College is a minority Institution under Article 30(1) of the Constitution of India and consequently, in terms of Section 34(14) of the 2006 Act, no Authorised Controller could have been appointed for the said college; and this contention, though raised, has not been dealt with by the learned Single Judge in the order under appeal. Learned counsel would rely on the judgment in Writ Petition (M/S) No. 624 of 2015 dated 19.03.2015, as affirmed by the Division Bench in Special Appeal No. 165 of 2015 dated 14.09.2015, in this regard.
38. It is true that a learned Single Judge had in his order in Writ Petition (M/S) No. 624 of 2015 dated 19.03.2015, with respect to another minority institution, held that, in view of Section 34(14) of the 2006 Act, it was beyond the powers and jurisdiction of the Educational Authority to appoint an Administrator to run and manage the minority educational institution. This order of the learned Single Judge was upheld by a Division Bench in its order in Special Appeal No. 165 of 2015 dated 14.09.2015.
9. While the above submission put forth by Sri M.C. Pant, learned counsel for the appellant-writ petitioner, on the basis of Article 30(1) of the Constitution of India read with Section 34(14) of the 2006 Act, cannot be said to be without merit, a bare reading of the order under appeal would show that it is at the appellant- petitioner's request that the Authorised Controller was directed to hold elections within four months.
10. In the order under appeal, the learned Single Judge records that:
"the learned counsel for the petitioner submits that the Authorised Controller may be directed to hold elections within some stipulated time-frame; learned counsel for the respondent also submits that it is desirable that the elections are conducted in the society without any further delay".
11. The afore-extracted portion of the order under appeal makes us believe that the said order is an order passed with the consent of the learned counsel for the parties.
12. If, as is now contended before us, the very appointment of the Authorised Controller is illegal, then the appellant-writ petitioner ought not to have requested the learned Single Judge to direct an authority, whose very appointment is claimed to be illegal, to hold elections within a stipulated time-frame.
413. While Sri M.C. Pant, learned counsel for the appellant-writ petitioner, would insist that, even if no such contention had been raised during the course of hearing, the learned Single Judge was obligated to follow the law laid down by the Division Bench, we are not impressed with this submission, since it is only such contentions, which are urged during the course of hearing, which are required to be dealt with by the learned Single Judge and since, from a reading of the order, it appears that the only request made before the learned Single Judge was to direct the Authorised Controller to hold elections, the learned Single Judge cannot be said to have erred in not undertaking an examination, suo motu, of the question whether or not the appointment of the Authorised Controller is illegal.
14. Sri M.C. Pant, learned counsel for the appellant-writ petitioner, would then contend that, though this contention was raised before the learned Single Judge, he has not dealt with it in his order; and the appellant-writ petitioner cannot be faulted for the failure of the learned Single Judge to record his contention.
15. In State of Maharashtra vs. Ramdas Srinivas Nayak :
(1982) 2 SCC 463, the Supreme Court held as under:
".......When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submissions made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation". Per Lord Atkinson in Somasundaran v. Subramanian A.I.R. 1926 P.C. 136 We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the judges to be contradicted 5 by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is' incumbent, upon the party, while the matter is still fresh in the minds of the judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. Per Lord Buckmaster in Madhusudan v. Chanderwati A.I.R. 1917 P.C. 30 That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.
In Rev. Mellor 7 Cox. C.C. 454 Martin B was reported to have said "we must consider the statement of the learned judge as absolute verity and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court which of itself implies an absolute verity".
In King Emperor v. Barendra Kumar Ghost 28 C.W.N. 170 said:
"...these proceedings emphasise the importance of rigidly maintaining the rule that a statement by a learned judge as to what took place during the course of a trial before him is final and decisive; it is not to be criticized or circumvented; much less is it to be exposed to animadversion."
In Sarat Chandra v. Bibhabati Debi 34 C.L.J. 302. Sir Asutosh Mookerjee explained what had to be done:
....It is plain that in cases of this character where a litigant feels aggrieved by the statement in a judgment that an admission has been made, the most convenient and satisfactory course to follow, wherever practicable, is to apply to the Judge without delay and ask for rectification or review of the judgment.6
So the judges, record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the judge himself, but nowhere else.
....emphasis supplied"
16. It is not open to the appellant-writ petitioner, in the light of the aforesaid judgment, to contend before us that, though he had questioned the validity of the appointment of the Authorised Controller, the learned Single Judge had failed to record the said contention or to consider the same. Such a grievance can only be addressed on a review petition being filed, against the order, before the very same learned Single Judge, bringing to his notice any error which may have occurred in recording the appellant-writ petitioner's contention, and in examining the same.
17. It would be wholly inappropriate for a Division Bench, that too in an intra-Court appeal, to accept this contention that the learned Single Judge has not noted the submission urged on behalf of the appellant-writ petitioner, and has not examined the same on its merits. Leaving it open to the appellant-writ petitioner, if he so chooses, to seek review of the order under appeal, the Special Appeal fails and is, accordingly, dismissed. No costs.
(R.C. Khulbe, J.) (Ramesh Ranganathan, C.J.) 02.06.2020 02.06.2020 Rathour