Delhi District Court
Srsd Senior Secondary School vs Pt Shradha Ram Trust Committee on 20 December, 2024
IN THE COURT OF MR. SATYABRATA PANDA, DJ-04,
PATIALA HOUSE COURTS, NEW DELHI
ARBTN No.879/18
Date of Institution: 27.03.2018
Date of Arguments: 08.11.2024
Date of Judgment: 20.12.2024
SRSD Senior Secondary School,
Through its Manager,
Kanwal Nain Midha,
Lajpat Nagar-IV, New Delhi-110024. .....Petitioner
Vs.
1. Pt. Shradha Ram Trust Committee,
Through Divesh Nath, Secretary,
A-179, Dayanand Colony,
Lajpat Nagar-IV, New Delhi-110065.
Also at
A-178/13, Dayanand Colony,
Lajpat Nagar-IV, New Delhi-110065
&
227, Sukhdev Vihar, New Delhi-110065
2. Shri D.R. Kapila,
S/o Late Sh. Narsingh Lal Kapila,
A-178/13, Dayanand Colony,
Lajpat Nagar-IV, New Delhi-110065
3. Director of Education,
Department of Education,
Government of NCT of Delhi,
Old Secretariat, Delhi. ...Respondents
JUDGMENT
1. The petitioner has filed the present petition u/s. 34 of the Arbitration and Conciliation Act, 1996 ('A&C Act') ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 1 of 109 challenging the arbitral award dated 21.02.2018 passed by the Ld. sole arbitrator Dr. R. K. Yadav, District Judge (Retd.) in Case Ref. No. DAC/1244/07-16 in arbitration proceedings conducted under the aegis of the Delhi International Arbitration Centre (DIAC).
2. The arbitration proceedings were in respect of disputes in relation to the S.R.S.D. Senior Secondary School, an aided school under the Delhi School Education Act, 1973 and the Delhi School Education Rules, 1973, situated at Lajpat Nagar, New Delhi.
3. The undisputed position between the parties is that the Pt.
Shradha Ram Trust was constituted sometime in 1930 by Swami Tulsi Dev originally with 11 trustees to manage the school, and the property forming part of the Trust was donated by Swami Tulsi Dev.
PARTIES IN THE ARBITRATION DISPUTE
4. The status of the parties in the arbitration proceedings was as follows:
4.1. The Respondent No.1 herein i.e. the "Pt. Shradha Ram Trust Committee (through secretary Sh. Divesh Nath)" was the Claimant No.1 in the arbitration having filed the first Statement of Claim.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 2 of 109 4.2. The Respondent No.2 herein i.e. Sh. D.R. Kapila was the Claimant No.2 in the arbitration having filed a separate Statement of Claim.
4.3. The Petitioner herein i.e. the "SRSD Senior Secondary School (through its manager Sh. Kanwal Nain Midha)" was the Respondent No.1 in the arbitration.
4.4. The Respondent No.3 herein i.e. the Director of Education, Department of Education, Government of NCT of Delhi was the Respondent No.2 in the arbitration.
5. In the present judgment, for the sake of convenience, I have referred to the parties as per their status in the arbitration proceedings as mentioned above.
COMPOSITION OF THE PARTIES
6. The Claimant no.1 which was described as the "Pt.
Shradha Ram Trust Committee, through secretary Sh. Divesh Nath" essentially constituted of a body of the following 11 persons, including the Claimant no.2 Sh. D.R. Kapila, as mentioned in the Annexure-A to the Statement of Claim, and who claimed to be the trustees of the trust:
"1. Pt. Shradha Ram Trust Committee Through its Trustees:
i. Shri D. R. Kapila ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 3 of 109 S/o Late Sh. N. L. Kapila, R/o A-179, Dayanand Colony, Lajpat Nagar-IV, New Delhi-110024.
ii. Sh. Jagdish Prasad Agrawal, S/o Late Shri R. R. Agrawal, R/o F-201, Lane W-5-10 A, Sainik Farm, New Delhi.
iii. Sh. Shyam Sunder Agrawal, S/o Late Sh. Jugal Kishore Agrawal, R/o 37/78, Punjabi Bagh (West), New Delhi-110026.
iv. Sh. Divesh Nath S/o Late Sh. Naresh Nath, R/o 227, Sukhdev Vihar, New Delhi-110065.
v. Sh. Rohit Nath S/o Late Sh. Naresh Nath, R/o 227, Sukhdev Vihar, New Delhi-110065.
vi. Sh. Pradeep Gupta S/o Harish Chandra Gupta, R/o A-244, Defence Colony, New Delhi-110024.
vii. Sh. Vikram Jain, S/o Sh. Mukesh Jain, R/o 38-A, Punjabi Bagh (West) New Delhi-10026.
viii. Sh. Ratan Agrawal S/o Govind Lal Agrawal, R/o F-201, Lane W-5-A, ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 4 of 109 Sainik Farms, New Delhi.
ix. Sh. Amit Agrawal S/o Sh. Jagdish Prasad Agrawal, R/o H. No. 5, Parks Street, Choubey Colony, Raipur, Chattisgarh.
x. Sh. Vikas Baid S/o Sh. Ratan Lal Baid, R/o A-88, Rampuri, Chander Nagar, Ghaziabad (U.P).
xi. Smt. Neera Rani W/o Late Sh. Naresh Nath, R/o 32, Hanuman Road, New Delhi."
7. The Claimant no.2 was Sh. D.R. Kapila, who also filed a separate Statement of Claim claiming to be the original trustee of the trust.
8. The Respondent no.1 which was described as the "SRSD Senior Secondary School (through its manager Sh. Kanwal Nain Midha)" was essentially the body of persons who claimed to constitute part of the Managing Committee of the subject school under Rule 59 of the Delhi School Education Rules, 1973 pursuant to an alleged joint meeting dated 29.12.2002 between the Pt. Shradha Ram Trust and the Akhil Bharatiya Brahman Mahasabha.
CRUX OF THE DISPUTE IN ARBITRATION
9. Rule 59 of the Delhi School Education Rules, 1973 provides for the rules in respect of the Scheme of ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 5 of 109 Management of recognised schools and provides, inter alia, that an aided school such as the subject school would have not more than 15 members in the Management Committee of the school, out of which 7 members could be nominated or elected in accordance with the rules and regulations of the society or trust by which the school was run.
10. The dispute in the arbitration proceedings was essentially as to this Management Committee of the school under Rule 59, and particularly as to:
i) who all the Managing Committee of the subject school was to comprise of,
ii) which was the primary body to nominate the members of the Managing Committee, and
iii) who were those nominees.
BACKGROUND FACTS LEADING TO THE
ARBITRAL PROCEEDINGS
11. To better understand the dispute, it would be essential to take note of the background facts and circumstances leading to the commencement of the arbitral proceedings, which are narrated as follows:
11.1. Sh. D.R. Kapila (Claimant No.2), who was acting as the manager of the school, was arrested in connection with FIR No. 644/02 dated 03.10.2002 ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 6 of 109 u/s. 120B/420/467/468/471 IPC lodged with the Crime Branch, Delhi Police, New Delhi in connection with alleged fraud, cheating, forgery and discrepancies in relation to appointment of teachers in the school.
11.2. The executive committee of the Akhil Bharatiya Brahman Mahasabha, vide its letter dated 03.01.2003 to the Registrar of Societies, informed that Sh. Dashrath Raj Kapila (Claimant No.2), the manager of the school, had been arrested and was in judicial custody. It was further informed that the Chairman Sh. R.G. Srivastava, Secretary Sh. Narinder Singh and two other members Dr. S.D. Sharma and Sh. M.P. Srivastava had also resigned.
11.3. Vide the said letter dated 03.01.2003, it was further informed that the existing Managing Committee of the subject school had been dissolved and a new Managing Committee had been constituted by way of "a joint meeting of executive committee of the Akhil Bharatiya Brahman Mahasabha and Trustees of the Pt. Shradha Ram Trust held on 29.12.2002". This new Managing Committee was stated to constitute of the following 7 nominated members:
"1. Sh VD Dutta Chairman
2. Sh BM Goswami Vice Chairman
3. Sh. Surinder Mohan Sharma Manager
4. Sh. Bharat Bhushan Secretary ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 7 of 109
5. Sh. Manoj Kapila Member
6. Sh Nand Kishore Kapuria Member
7. Sh I M Goswami Member"
11.4. The aforesaid letter requested all the government departments to extend their full cooperation to the new managing committee of the subject school.
11.5. It is pertinent to mention that the Respondent no.1 in the arbitration proceedings was the same body of persons who claimed to be part of the Managing Committee which is alleged to have been constituted by way of the " joint meeting of executive committee of the Akhil Bharatiya Brahman Mahasabha and Trustees of the Pt. Shradha Ram Trust held on 29.12.2003".
11.6. Vide letter dated 14.01.2003, the Respondent No.2 (Department of Education) informed the Akhil Bharatiya Brahman Mahasabha that the new Managing Committee, i.e. the Respondent No.1, was approved for managing the affairs of the subject school.
11.7. The said letter dated 14.01.2003 was challenged before the Hon'ble High Court of Delhi by way of a writ petition being W.P.(C) No. 2046/2003 which was filed in the name of "Pt. Shradha Ram Trust Committee through its Trustees" as the petitioner.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 8 of 109 11.8. As per the memo of parties in the petition in W.P. (C) No. 2046/2003, as filed on the record, the said writ petition was filed by the following persons claiming to be the trustees:
"PT. SHRADHA RAM TRUST
COMMITTEE
Through
ITS TRUSTEES
1. MR. RAHUL SABHARWAL
S/o Sh RK Sabharwal, Rio 23-A, PocketA-9, Kelkaji Ext New Delhi
2. MR VINOD KASHYAP S/o Late Sh KC Pandit, Rio A-477, Kalkajı, New Delhi
3. MS SUMAN SRIVASTAVA D/o Late Sh M Snvestave Rio 250, Sector-19-
8. Noida, UP
4. SH D.R. KAPILA, S/o Late Sh Narsingh Lal A-179, Dayanand Colony, New Delhi.
5. MS. SAROJ KAPILA, W/o Sh DR Kapila, A-179, Dayanand Colony, New Delhi"
11.9. In the W.P.(C) No. 2046/2003, the Director of Education and the Akhil Bharatiya Brahman Mahasabha were arrayed as the Respondents Nos. 1 and 2, respectively, and the Respondents Nos. 3 ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 9 of 109 to 7 were five of the persons who had been alleged to have been nominated to the Managing Committee through the joint meeting dated 29.12.2002.
11.10. Vide order dated 28.11.2007, the Hon'ble High Court disposed of the W.P.(C) No. 2046/2003 by directing the Director of Education to take a fresh decision after considering all the materials and after giving reasonable opportunities to the parties. The order dated 28.11.2007 in the W.P.(C) No. 2046/2003 is extracted hereunder:
"ORDER 28.11.2007 Heard counsel for the parties The controversy in this case pertains to the Sanatan Dharan Senior Secondary School, Lajpat Nagar IV It is admitted case that the Pt Shradha, Ram Trust, constituted sometime in 1930, originally with 11 trustees, manages the said school The property forming part of the trust was donated by the Swami Tulsi Dev It is alleged that the approval granted on 14 1 2003 by the Directorate of Education ie the first respondent in this case to the body, on the footing that it was a properly constituted Managing Committee under Rule 59 of the ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 10 of 109 Delhi School Education Rules and other provisions of the Delhi School Education Act was without application of mind to the various documents. Learned counsel relied upon the affidavit of the first respondent to contend that according to its understanding, upon the arrest of some members of the Managing Committee, the body stood dissolved and, therefore, the subsequent committee said to have been constituted was proper and legal. It was submitted that this understanding is erroneous, and unsupported by law.
The respondents 2 to 7 contest these proceedings and submit that only few of the original trustees survive and that according to the understanding arrived at between the second respondent and the trust at some prior point of time the said respondent was entitled to send its nominees to the Managing Committee of the trust and the school.
I have considered the materials on record. The impugned order has not taken note of any controversies which are subject matter of present petition. It is in fact a non- speaking order, it does not disclose as to the basis for arriving a conclusion that the respondents 3 to ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 11 of 109 7 are members of a properly constituted Committee in terms of Rule.
In these circumstances, the respondent No.1 should take a fresh decision after considering all the materials and granting reasonable opportunities to the petitioner and the respondents 2 to 7 in that regard. The order shall be made within eight weeks from today and communicated directly to the parties.
The writ petition is disposed off in the above terms. All rights and contentions of the parties are hereby reserved."
11.11. Thereafter, the Respondent No.2 i.e. the Director of Education, gave an opportunity of hearing to the parties and, thereafter, passed order dated 29.02.2008 dismissing the objections of the persons claiming to be the trustees of the Pt. Shradha Ram Trust Committee and again holding that the Managing Committee constituted by the joint meeting dated 29.12.2002 and the letter dated 14.01.2003 earlier issued by the Director of Education was in accordance with law. The relevant portion of the order dated 29.02.2008 of the Director of Education is extracted hereunder:
"16. A perusal of the records made available to me reveals that subsequent to the arrest of ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 12 of 109 Sh. Dashrath Raj Kapila, the then Manager of the school and the resignation of the Chairman/Secretary and two other members from the Managing Committee of the school, Sh. V.D. Dutta, the then President of the Akhil Bhartiya Brahman Mahasabha as also one of the Trustees vide his letter dated 15.12.2002 addressed to Sh. C.L. Sharma, Trustee and Sh. Dhrupad Raj Kapila, Trustee informed about the above arrest and resignations and requested to dissolve the Managing Committee for the smooth running of the school. In response, Sh. C.L. Sharma, Trustee, vide his letter dated 20.12.2002 informed Sh. V.D. Dutta that it is imperative that a new Managing Committee be constituted for smooth functioning of the school. He further requested Sh. V.D. Dutta to urgently convene a joint meeting of Executive Committee of the Akhil Bhartiya Brahman Mahasabha and the Trust for the election of school Managing Committee. In pursuance of this letter, a joint meeting of the Trust and the Akhil Bhartiya Brahman Mahasabha was held on 29.12.2002 in which a decision was taken to dissolve the then existing Managing Committee and 7 new members, including the Chairman were appointed for the smooth functioning of the school. The said information was furnished to ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 13 of 109 the Registrar of Societies vide letter dated 03.01:2003 and also the Department of Education.
17. Sh. C.L. Sharma, son of Pt. Karam Chand and President of the Trust has also filed written submissions dated 06.02.2008 before me. It is categorically stated that the Managing Committee constituted in 2003 has been correctly constituted in accordance with the law. In addition, it has been stated that the Petitioner Nos. 1-5 in the Writ Petition are not the Trustees and were never the Trustees and hence have no right or locus-standi to file any claim or lodge any complaint on behalf of the Trust.
18. In view of above aforesaid facts and on perusal of written submissions and the documents filed before me, I am of the opinion that the Managing Committee constituted in 2003 was in accordance with the provisions of Delhi School Education Act and Rules, 1973, the Scheme of Management and the letter dated 14.01.2003 issued by the Directorate was in accordance with law. The Petitioners have no claim over the Management of the said school as the Trust had itself taken the decision to dissolve the ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 14 of 109 then Managing Committee and constituted a new Managing Committes in accordance with its Scheme of Management. The President of the Trust, Sh. C.L Sharma has also categorically stated the same and has further added that the Petitioner Nos. 1-5 in the Writ Petition are not the Trustees and were never the Trustees.
19. The claim of Petitioners, therefore, deserves to be dismissed and is accordingly dismissed."
11.12. The aforesaid order dated 29.02.2008 of the Director of Education was again challenged before the Hon'ble High Court in writ petition being W.P. (C) No. 2756/2008 which was again filed in the name of "Pt. Shradha Ram Trust Committee through its Trustees" as the petitioner.
11.13. As per the original memo of parties in the petition dated 28.03.2008 in W.P.(C) No. 2756/2008, as filed on the record, this time the said writ petition was filed by the following persons claiming to be the trustees:
"Pt. Shradha Ram Trust Committee Through its Trustees
1.Mr. D.R. Kapila ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 15 of 109 S/o, Late N.L. Kapila A-179, Dayanand Colony, New Delhi.
2. Mr. Vinod Kasyap R/o, WP-108, Morey Enclave, Pritampura, Delhi 110088.
3. Ms. Suman Srivastava D/o. Late M. Srivastava, R/o, 250, Sector-198, NOIDA (U.P.)
4. Sri Dev Varat Varma C-219-Am Prahladpur, New Delhi 110044.
5. Sh. M.L. Bakshi 139-C, (M.I.G.) Flats, Rajouri Garden, New Delhi.
6. Mrs. Saroj Kapila, A-179, Dayanand Colony, Lajpat Nagar-IV, New Delhi-110024.
7. Shri. Santosh Sukla S/o. Mr. Babu Ram Sukla, 397, Harphool Vihar, New Delhi-110045.
8. Sh. M.L. Dogra S/o, Late Sh., S.R. Dogra A-59. Gagan Vihar, Mithapur, Badarpur, New Delhi-110044.
9. Mukesh Kumar IInd, F-78, Lajpat Nagar, New Delhi."
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 16 of 109 11.14. The amended memo of parties in W.P.(C) No. 2756/2008, as filed on the record, shows the following persons claiming to be trustees:
"PT. Shradha Ram Trust Committee Through its Trustees:-
i). Shri D.R. Kapila S/o Late Sh. N.L. Kapila, R/o A-179, Dayanand Colony, Lajpat Nagar-IV, New Delhi-110024.
ii) Sh. Jagdish Prasad Agrawal.
1S/o Late Sh. R. R. Agrawal, R/o F-201, Lane W-5-10 A, Sainik Farm, New Delhi.
iii). Sh. Shyam Sunder Agrawal, S/o Late Sh. Jugal Kishore Agrawal, R/o 37/78, Punjabi Bagh (West), New Delhi-110026.
iv) Sh. Divesh Nath S/o Late Sh. Naresh Nath, R/o 227, Sukhdev Vihar, New Delhi-110065.
v). Sh.Rohit Nath S/o Late Sh. Naresh Nath, R/o 227, Sukhdev Vihar, New Delhi-110065
vi). Sh. Pradeep Gupta S/o Harish Chandra Gupta, R/o A-244, Defence Colony, New Delhi-110024 ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 17 of 109
vii) Sh. Vikram Jain S/o Sh. Mukesh Jain, R/o 38-A, Punjabi Bagh (West), New Delhi-10026.
viii). Sh. Ratan Agrawal S/o Govind Lal Agrawal, R/o F-201, Lane W-5-A, Sainik Farms,New Delhi.
ix) Sh. Amit Agrawal S/o Sh. Jagdish Prasad Arawal, R/o H. No. 5, Parks Street, Choubey Colony, Raipur, Chattisgarh.
x). Sh. Vikas Baid S/o Sh. Ratan Lal Baid, R/o A-88, Rampuri, Chander Nagar, Ghaziabad (U.P.).
xi). Smt. Neera Rani W/o Late Sh. Naresh Nath, R/o 32, Hanuman Road, New Delhi."
11.15. In the W.P.(C) No. 2756/2008, the Director of Education and the Akhil Bharatiya Brahman Mahasabha were arrayed as the Respondents Nos. 1 and 2, respectively, and the Respondents Nos. 3 to 6 were four of the persons who had been alleged to have been nominated to the Managing Committee through the joint meeting dated 29.12.2002, and the Respondent No.7 was the Respondent No.1 in the arbitration proceedings i.e. ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 18 of 109 the S.R.S.D. Senior Secondary School (through its manager).
11.16. In the meanwhile, the Respondent No.2 (Director of Education), finding that the Managing Committee which had been accepted was also mismanaging the school, vide order dated 10.01.2012, in exercise of powers under Section 20 of the Delhi School Education Act, 1973 took over the management of the school. A statutory appeal to the Lt. Governor did not find favour and the S.R.S.D. Senior Secondary School (through its manager), i.e. the Respondent No.1 in the arbitration proceedings, filed writ petition being W.P.(C) No. 5367/2013 challenging the said decision of the Respondent No.2 (Director of Education).
11.17. Both the writ petitions being W.P.(C) No. 2756/2008 and the W.P.(C) No. 5367/2013 were disposed of by the Hon'ble High Court vide common order dated 07.01.2016. The W.P.(C) No. 5367/2013 was dismissed on the ground that it was evident that the affairs of the school were in a mess and also that the said writ petition had become infructuous. The W.P.(C) No. 2756/2008 was disposed of by relegating the parties to civil proceedings/arbitration.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 19 of 109
12. The genesis of the arbitration proceedings is essentially in the common order dated 07.01.2016 passed by the Hon'ble High Court of Delhi in W.P.(C) No. 2756/2008 and W.P. (C) No.2046/2003, and it would be appropriate to extract the said order, in extenso, for better understanding of the dispute, as under:
"ORDER 07.01.2016
1. Both the petitions concern the S.R.S.D. Senior Secondary School, an aided school, within the meaning of the Delhi School Education Act, 1973 and Delhi School Education Rules, 1973, situated at Lajpat Nagar, New Delhi.
2. W.P.(C) No.2756/2008 has been filed impugning the order dated 29th February, 2008 of the Directorate of Education (DoE) of Government of NCT of Delhi (GNCTD). The said order came to be passed in pursuance to the order dated 28th November, 2007 in W.P. (C) No.2046/2003 earlier filed by the petitioner in W.P.(C) No.2756/2008.
3. It appears that disputes and differences had arisen as to the management of the aforesaid School and DoE had accepted/recognized one set of management and challenging which decision of the DoE, W.P.(C) No.2046/2003 was filed. Finding that the DoE had not given any reason for accepting one ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 20 of 109 set of management over the other, vide order dated 28th November, 2007 in W.P.(C) No.2046/2003, the DoE was directed to pass a fresh order after hearing all the parties and stating reasons.
4. The DoE in pursuance thereto passed the order dated 29th February, 2008 supra (reiterating that the Managing Committee of the School constituted in 2003 was in accordance with the Act, Rules and the Scheme of Management of the School sanctioned by DoE) impugned in W.P.(C) No.2756/2008. The said writ petition was accompanied with an application for interim relief but no interim relief was granted though the petition was entertained and pleadings have been completed.
5. During the pendency of W.P.(C) No.2756/2008, DoE, finding that the Managing Committee which had been accepted by it was also mismanaging the School, vide order dated 10th January, 2012 in exercise of powers under Section 20 of the School Act supra took over the management of the School.
A statutory appeal before the Lieutenant Governor was preferred thereagainst which also did not find favour and impugning which decision W.P.(C) No.5367/2013 has been filed.
6. An application for interim relief was filed along with W.P.(C) No.5367/2013 also. Though initially ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 21 of 109 there was some ambiguity whether the management of the School had been taken over or not but it was subsequently resolved and as of today it is the admitted position that in pursuance to the order dated 10th January, 2012, the management of the School has been taken over and the School is now being administered by the DoE and which order is valid till 31 January, 2016.
7. The counsel for the respondent GNCTD informs that the file has already been moved for extension of the said take over for a further period.
8. The counsels have been extensively heard.
9. The School Act and the School Rules only recognize the Managing Committee of the School even though schools are established by Societies or by Trusts.
10. In the present case, there is a dispute as to which is the sanctioned Scheme of Management of the subject School, with the petitioner in W.P.(C) No.2756/2008 relying upon one Scheme of Management and the petitioner in W.P.(C) No.5367/2013 relying upon another Scheme of Management Without it being determined as to which is the Scheme of Management in pursuance whereto the School aforesaid was established, the dispute as to who should constitute the management ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 22 of 109 of the School cannot be resolved It appears that the DoE in the order impugned dated 29th February, 2008 in W.P.(C) No.2756/2008 has found the Scheme of Management relied upon by the petitioner in the said petition to be the approved Scheme of Management, even though the order is against the said petitioner.
11. The dispute pervades even deeper. The Scheme of Management relied upon by both the petitioners provides for the Management Committee of the School to compromise inter alia of nominees of one Pt. Shradha Ram Trust Committee (Regd.). The said Trust was created vide Will of one Tulsi Dev and which Will also describes the constitution of the Pt. Shradha Ram Trust Committee (Regd.). While according to the Scheme of Management of the petitioner in W.P.(C) No.2756/2008, the Managing Committee of the School is to comprise of seven nominees of the aforesaid Trust Committee, according to the Scheme of Management relied upon by the petitioner in W.P.(C) No.5367/2013, the Managing Committee of the School is to comprise of only two members of the Trust Coinmittee; as per the said Scheme of Management, the Managing Committee of the School is to also comprise of nominees of Akhil Bhartiya Brahman Mahasabha (Regd.) / All India Brahman Mahasabha (Regd.) and which finds no mention in the Scheme of ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 23 of 109 Management relied upon by the petitioner in W.P. (C) No.2756/2008.
12. The position is compounded further by the existence of a Society registered under the Societies Registration Act, 1860 viz. the Managing Committee of Shradha Ram Sanatan Dharam High School. According to the senior counsel for the petitioner in W.P.(C) No.2756/2008, the said Society has no role in the constitution of the Managing Committee of the School. However, according to the counsel for the petitioner in W.P.(C) No.5367/2013, the Managing Committee of the School is itself registered as a Society. The same however does not appear to be permissible under the School Act and the School Rules which do not provide for the Managing Committee of the School to be a Society.
13. The question for consideration in W.P.(C) No.2756/2008 is the correctness of the order impugned therein rejecting the claim of the petitioner therein to be managing the School and upholding the claim of the petitioner in W.P. (C)No.5367/2013 to manage the School.
14. The counsel for the petitioner in W.P.(C) No.2756/2008 has of course contended that the order impugned in W.P.(C) No.2756/2008 is also ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 24 of 109 without any reason and the matter be remanded to the DoE for decision afresh.
15. In view of the aforesaid factual controversy, I have enquired from the counsels as to how the said factual controversy can possibly be resolved by the DoE and whether not the said factual controversy can only be resolved either in a suit, whether under Section 92 of the CPC or otherwise, or in an arbitration.
16. The DoE under the School Act has jurisdiction only over the Managing Committee of the School. Though the DoE, to a limited extent, can adjudicate, who is entitled to constitute the Managing Committee but the Managing Committee as per the Scheme of Management relied upon by both the parties is to comprise of also the nominees of the Trust Committee aforesaid. The decision as to the Managing Committee would also depend upon who are the nominees of the Trust Committee. The DoE cannot be directed to extend its jurisdiction to determine the constitution and nominees of the Managing Committee supra. Similarly, the DoE cannot be called upon to decide the role of the Society aforesaid. I am therefore of the opinion that the disputes as to who all the Managing Committee of the subject School is to comprise of and which is the proper body to nominate members to the ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 25 of 109 Managing Committee and who are those nominees cannot be ordered to be decided by the DoE. The parties necessarily have to be relegated to a civil suit or an arbitration for the said purpose.
17. As far as W.P.(C) No.5367/2013 is concerned, the challenge therein to the order of takeover of the School, is on technical grounds. It is argued that no proper show cause notice was given, no hearing given and the principles of natural justice were also not complied with. It is contended that the documents used for take over of the School were not even supplied to the Managing Committee earlier managing the School.
18. I have perused the order impugned in W.P.(C) No.5367/2013. The same, besides giving the reason of tussle between two factions of the management with regard to control of the School, also records the following deficiencies having been found on inspection of the School:
Despite the clarification given by National Council for Teacher Education to the effect that the course of 'Shiksha Visharad done by Mrs. Radhika Sharma from 'Hindi Sahitya Sammelan, Allahabad is not recognized as B.Ed. for appointment as PGT (Hindi) and the consequent approval accorded by Director ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 26 of 109 (Education) to cancel the appointment of Mrs. Radhika Sharma, she continues to be in the school.
The Managing Committee of the school was directed to cancel her appointment vide letter dated 17.06.2010 with immediate effect and the manager was asked vide letter dated 8.8.2010 about the compliance of the letter dated 17.06.2010. But he failed to comply with the directions communicated vide letter dated 17.06.2010. Further, the Manager of the school was, once again directed to comply with the orders dated 17.06.2010 vide letter dated 01.10.2010. However, Mrs. Radhika Sharma is still found to be attending the school till date. The Managing Committee failed to comply with directions of the Directorate, thus violating Rule 50 (xviii) of DSEAR-1973.
The School shows 500 students at its strength whereas the actual enrolment counted physically during the inspection (including absentees) is 327 only. The purpose of showing falsely inflated strength is to illegally obtain/retain posts of teachers and other staff. Surprisingly, the school retains 39 sanctioned posts for a meagre strength of 327.
The enrolment of the school has been declining. As per the data supplied by the school, it was 642 in 2005-06 which today has been reduced to 327.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 27 of 109 Students of almost all the classes from VI to XII complained (in writing) that donation was charged compulsorily, at the time of admission. The amount of compulsory donation ranged from Rs.4100/- to Rs. 12,100/-. Instead of one admission register the School maintains four. During scrutiny of these registers, it was observed that there are lots of cuttings and over-writings and these were not even attested by the Head of School. Some of the pages were even left blank without any entry.
Sh. R.C. Sharma, manager of the school, does not possess the qualification as laid down in order No.DE 15(Act)/2004/SDM/8464-8513 dated 19-10- 2004 of the Directorate. The manager of the school did not co-operate with the inspection team. He also levelled false allegations against the team.
The school management has not been maintain the cash books and the audited balance sheets for the last five years.
The school has got the school magazine printed which contains some objectionable photographs in advertisements. The School management has earned money from the advertisements without caring that the photos are not in good taste for the children.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 28 of 109 In addition, the students also gave, in writing, the following grievances to the members of the visiting inspectión team:
a) School does not provide any books.
b) Library has not been opened for quite some time.
Later, the management also accepted that the library was not functional between 30-11-2003 and 16-02- 2009.
c) There is hardly any water facility.
d) Toilets remain dirty. Cleaning of school has to be done by students.
e) There is no Science Lab.
f) There is no computer education in the school.
g) School is charging Rs.90/-, including Rs.30/- to PTA, per quarter.
h) School is also charging Rs.100/- as Annual Charge.
f) Rs.30/- is separately being charged for 1-Card, so on and so forth.
19. The senior counsel for the petitioner in W.P.(C) No.2756/2008 of course controverts that no proper opportunity was given before the take over order or that the principles of natural justice were not complied with.
20. The counsel for the petitioner in W.P.(C) No.5367/2013 responds that the take over order is ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 29 of 109 the result of the complaints of the petitioner in W.P. (C) No.2756/2008.
21. I do not feel the need to adjudicate on the aspect whether there is a breach of procedure prescribed in law and/or of principle of natural justice in passing the order of take over of the School because it is evident from the aforesaid facts that the affairs of the School are in a mess. The School is funded to the extent of 95% by the GNCTD and the counsel for the GNCTD on enquiry states that as against 327 students earlier found studying in the School as against the capacity of 500, now 770 students are studying in the School. Moreover the period for which the School was taken over by the impugned order is already nearing expiry and the decision whether the said period of take over is to be extended is awaited.
22. W.P.(C) No.5367/2013 has thus become infructuous and is dismissed on this ground also.
23. The senior counsel for the petitioner in W.P.(C) No.2756/2008 states that while relegating the parties to the Civil Courts / arbitration, it be directed that the management of the School till then would continue to vest with the DoE.
24. The counsel for the petitioner in W.P.(C) No.5367/2013 opposes.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 30 of 109
25. The aforesaid question is not to be considered by this Court and is in the domain of the DoE. All that can be observed is that if the DoE decides to extend the period for take over of the School, it will be open to both the parties in the civil proceedings/arbitration to which they are being relegated to make applications for interim relief. I say so because the presence of the DoE would also be necessary in the said suit to determine which of the Scheme of Management i.e. relied upon in one petition or the other petition is the approved Scheme of Management and the presence of the DoE in the said suit is also necessary for compliance of the judgment / award to be ultimately passed in the said proceedings.
26. W.P.(C) No.2756/2008 is thus disposed of relegating the parties to the civil proceedings/arbitration.
27. I have enquired from the counsels whether they are agreeable to arbitration. While the senior counsel for the petitioner in W.P.(C) No.2756/2008 under instructions states that the petitioner therein is agreeable, the counsel for the petitioner in W.P.(C) No.5367/2013 states that he will need to obtain instructions.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 31 of 109
28. The parties, if so desire, may within one month enter into an agreement agreeing to an arbitrator and in which case the disputes aforesaid can be resolved expeditiously and which expediency is in the interest of the School. All parties are expected to take decision in this regard showing due regard to the better management of the School and to which they have no other right but as trustees.
No costs."
(Emphasis supplied by me)
13. Subsequently, the Claimant No.1 i.e. the "Pt. Shradha Ram Trust Committee (through secretary Sh. Divesh Nath)"
filed petition under Section 11 of the A&C Act being Arb.P. No.300/2016 before the Hon'ble High Court of Delhi for appointment of arbitrator. In the said petition, upon the agreement of the Claimant No.1 and the Respondent No.1 i.e. the S.R.S.D. Senior Secondary School (through its manager), vide order dated 02.06.2016, the matter was referred for arbitration under the aegis of the Delhi International Arbitration Centre (DIAC).
14. Accordingly, the arbitral proceedings commenced between the parties under the aegis of the DIAC and Dr. R.K. Yadav was appointed as the sole arbitrator.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 32 of 109 RELIEFS CLAIMED BY THE PARTIES IN THE ARBITRATION PROCEEDINGS
15. There were two Statements of Claims filed before the Ld. sole arbitrator.
16. The first Statement of Claim was filed by the Claimant no.1 described as "Pt. Shradha Ram Trust Committee (through its secretary Sh. Divesh Nath)" which, as already mentioned above, was essentially the body of 11 persons claiming themselves to be the trustees of the trust and as named in Annexure-A to the Statement of Claim. The following reliefs were prayed for in the aforesaid Statement of Claim:
"a. Call for records of the case from the Respondents.
b. To declare that the Claimant and its trustees as mentioned in the Annexure A as the rightful trust to nominate/appoint the Managing Committee of the SRSD Senior Secondary School.
c. To declare that the Claimant's and its trustees as mentioned in Annexure A to have the sole and absolute right to appoint/nominate its seven representatives in the managing. committee of the SRSD Senior Secondary School by setting- aside and quash the Order dated 14.01.2003 and ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 33 of 109 29.02.2008 passed by the Respondent No.2 being arbitrary and illegal.
d. To direct the Respondent No. 2 to recognize the Claimant Trust and its Trustees as mentioned in Annexure A as the rightful trust and approve the managing committee of the SRSD Senior Secondary School nominated/ appointed by the Claimant comprising its seven representatives.
e. Direct the Respondent No. 2 to handover the administration of the SRSD Senior Secondary School to the Managing Committee appointed by the Claimant's Trust.
g. Award the costs of these proceedings to the Claimant with interest at the rate of 18% p.a. till date of realization.
h. Pass any other order(s)/direction(s) as deemed fit in the facts and circumstances of the case."
17. The second Statement of Claim was filed by the Claimant no.2, Sh. D.R. Kapila, claiming to be the original trustee and President of the Pt. Shradha Ram Trust Committee. The following reliefs were prayed for in the aforesaid Statement of Claim:
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 34 of 109 "a. To quash the orders dated 14.01.2003 and 29.02.2008 passed by the education department / Respondent no. 2;
b. To declare the claimant as the original trustee of the Pt. Shradha Ram Trust Committee and to allow the claimant to hold fresh elections for the appointment of new managing committee under the trust for effective management of SRSD Senior Sec. School, Lajpat Nagar, New Delhi.
c. To quash the new managing committee as managed by its so called manager namely Mr. K. N. Midha as arbitrary and illegal.
d. To direct the respondent no. 2 to handover the administration of the SRSD Senior Secondary School, Dayanand Colony, Lajpat Nagar, New Delhi to the present claimant in view of the facts and submissions made herein above.
e. To pass any other order or orders as the Hon'ble Tribunal may deem fit and proper in the facts and circumstances mentioned herein above."
18. A Counter-Claim was also filed by the Respondent No.1 i.e. the "S.R.S.D. Senior Secondary School (through its manager)", in which the following reliefs were sought:
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 35 of 109 "(i) Declare that the Managing Committee constituted at the joint meeting dated 29.12.2002 was duly and properly constituted by the correct and proper bodies empowered to do so (being the Pt.
Shardha Ram Trust Committee and the Akhil Bhartiya Brahman Mahasabha);
(ii) Award the litigation costs including Arbitrator's fee and other expenses incurred by the Counter Claimant/ Respondent No. 1 for defending the present proceedings alongwith interest at 18% per annum realization; & till date of realization; &
(iii) Pass such other and further orders as it may deem fit and proper in the facts and circumstances of the present case."
19. The arbitration proceedings were conducted, and ultimately, the Ld. sole arbitrator passed the arbitral award dated 21.02.2018, which has now been impugned by way of the present petition.
CASE OF THE RESPECTIVE PARTIES IN THE ARBITRATION
20. Before moving forward, it would be appropriate to understand the respective case of the parties as set up before the Ld. sole arbitrator.
Case of the Claimant No.1 ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 36 of 109
21. The case of the Claimant No.1 in its Statement of Claim in the arbitration has been summarised in paragraphs 4 to 19 of the award, and it would be appropriate the extract the said paragraphs, in extenso, as under:
"4. Claim statement was filed by the Pt. Shradha Ram Trust Committee (hereinafter referred to as the Trust Committee) pleading therein that the Trust Committee has its address at A- 179 and A-178/13, Dayanand Colony, Lajpat Nagar-IV, New Delhi. The Trust Committee was formed before partition on 16.01.1936, through registered WILL of Swami Tulsi Dev Ji. The Management Committee, which governs the School, is formed and constituted exclusively by the Trust Committee. Trust Committee is represented through its Secretary, namely, Sh. Divesh Nath, who is duly authorized vide resolution letter dated 27.06.2013 to sign, verify and file the statement of claim.
5. The Trust Committee pleads that originally it was formed with 11 trustees in the year 1932, but subsequently on 16.01.1936 Swami Tulsi Dev Ji reduced the number of trustees to 7 and presently it comprises of 11 trustees, being a public trust. The Trust Committee does not rely upon the trustees for its legal identity and existence, being a juristic person.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 37 of 109
6. An institutional plot was allotted to the Trust Committee, vide letter dated 13/23 July, 1953 by the Ministry of Rehabilitation, Government of India, New Delhi, for construction of a school in Lajpat Nagar, New Delhi, in lieu of its school at Lahore. Lease Deed dated 22.09.1954, was executed in its favour by the President of India for a period of 99 years for construction of a school thereon. A building was constructed on the said plot and the Trust Committee is running SRSD Senior Secondary School since 1957. The Management Committee, which governs the school, is nominated and appointed by the Trust Committee. In the year 1954- 55, Management Committee had prepared its Memorandum of Association and Scheme of Management. The School is a 95% aided school by the State Government and provisions of The Delhi School Education Act, 1973 (hereinafter referred to as the Act) and The Delhi School Education Rules, 1973 (hereinafter referred to as the Rules) are applicable to it. Since the respondent No. 2 has taken over the school under the provisions of 20 of Act, vide order dated 29.02.2008 and 14.01.2013, it is cent percent aided as on date.
7. The school being a government aided school, the Management Committee has been appointed as per the provisions of rule 59 of the Rules. Rule 59 ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 38 of 109 prescribes the composition of the Management Committee of a school in the following manner:
i) the head of the school;
ii) one parent, who is a member of Parent-
Teachers' Association of the school, constituted in accordance with such instructions as may be issued by the Administrator, and is elected by that Association;
iii) two teachers of that school, to be elected by the teachers of that school from amongst themselves;
iv) two other persons, of whom one shall be woman, who are, or have been, teachers of any other school or of any college, to be nominated by the Advisory Board;
v) two members, to be nominated by the Director, of whom one shall be educationist and the other an officer of the Directorate of Education, Delhi, not below the rank of Principal of a Higher Secondary School;
vi) the remaining members to be nominated or elected, as the case may be, in accordance ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 39 of 109 with the rules and regulations of the society or trust by which the school is run;
8. The Trust Committee further pleads that the school management faced a financial crisis and as such it took a loan of Rs. 25,000/- from the Akhil Bharatiya Brahman Mahasabha (hereinafter referred to as the Mahasabha) way back in 1969, at which point of time it was agreed that till repayment of loan five members of the Management Committee will be of the Mahasabha. Necessary amendments were made in the Scheme of Managements in the year 1969 itself. Consequently five members were appointed from the Mahasabha in the Management Committee till July, 1989.
9. On 21.09.1989, Sh. H. R. Sharma, General Secretary of the Mahasabha, demanded back the loan alongwith interest, which was duly paid by the Trust Committee through cheque No. 490796 dated 06.09.1992. cheque No. 490797 dated 06.10.1992, and cheque No. 490800 dated 15.10.1992 all drawn for a sum of Rs. 15,000/- each, on saving bank account No. 27595, being maintained at State Bank of India. The said cheques were accepted and encashed by the Mahasabha and it was also accepted that none of its people would be appointed in the Management Committee of the school henceforth.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 40 of 109
10. Due to withdrawal of the members of the Mahasabha from the Management Committee of the school, the Scheme of Management was amended in October, 1989 bringing a major amendment in its composition, "seven nominees of Pt. Shradha Ram Trust Committee, Lajpat Nagar, New Delhi," as part of the Management Committee, in conformity with rule 59 of the Rules. The Scheme of Management, alongwith other documents, was submitted with the respondent No. 2 on 12.10.1989, which became effective and is valid till date.
11. In the year, 1989, the Management Committee was elected in conformity with the rule 59 and continued to be so elected till last nomination done on 17.11.1998, which fact gets affirmation from minutes of meeting dated 12.11 1008.
12. There was no dispute regarding composition of the Management Committee till the year, 2002. On 03.10.2002, FIR No 844/2002 was registered at Police Station Lajpat Nagar, raising baseless disputes and making bald allegations regarding appointment of teachers by the Management Committee. The then Manager, Management Committee, namely, Sh. D. R Kapila was arrested by the police. The Chairman and Secretary, namely, Sh. R. G. Srivastava and Sh. Narinder Singh respectively resigned from the Management ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 41 of 109 Committee. There is no provision in the Scheme of Management which may prescribe dissolution of the Management Committee simply due to filing of complaint against any of its members.
13. On account of the facts, referred in the preceding section, some people, having allegiance to the Mahasabha, made an attempt to take over Management Committee of the school. Those people forcibly formed a new Management Committee, that is the respondent No. 1, in a meeting held on 29.12.2002 and using force with support of respondent No. 2 took over the management of the school and since then a dispute exists.
14. On 01.01.2003, Smt. Saroj Kapila, one of the trustee, wrote a letter to the respondent No. 2 informing it about false FIR lodged and taking over of the school in an illegal manner. The respondent No. 2 responded to the letter on 04.01.2003, detailing that it was desirable to appoint new Management Committee by holding elections. Some members of the Mahasabha sought approval of the respondent No. 2, which approval was given vide letter dated 14.01.2003, even without addressing letter dated 04.01.2003 to the Mahasabha. The approval given by respondent No. 2 was illegal, since the Management Committee constituted by the ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 42 of 109 Trust Committee was in accordance with the Rules. It was pointed out to the respondent No. 2, vide letter dated 29.01.2003, that the members, who approved the Management Committee, were neither trustees nor associates of the Trust Committee in any manner and the Management Committee was formed in violation of rule 59 of the Rules. No response was received from the respondent No. 2.
15. Aggrieved by the inaction of the respondent No. 2 and its act of approval, the Trust Committee challenged order dated 14.01.2003 before Hon'ble High Court of Delhi vide Writ Petition (C) No. 2046/2003 and vide order dated 28.11.2007, it was observed by the Hon'ble High Court that approval was given by a non-speaking order and the respondent No. 2 was commanded to take a fresh decision in the matter. The respondent No. 1 was not a party to the Writ Petition.
16. Pursuant to order dated 28.11.2007, the Trust Committee made representations to the respondent No. 2 on 23.12.2007 and 09.02.2008, wherein it was explained that the Mahasabha had no role to play in the affairs of the school. It was further pointed out that the purported members of the Management Committee of the respondent No. 1 were trespassers, which fact could be verified from the record of the school. In total disregard to the statutory provisions ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 43 of 109 and the fact of the matter, the respondent No. 2 upheld the approval of the Management Committee of respondent No. 1, vide its order dated 29.02.2008.
16. Being aggrieved by the said order, the Trust Committee filed Writ Petition (C) No. 2756/2008 challenging the order dated 14.01.2003 and its confirmation vide order dated 29.02.2008. The respondent No. 1 was not impleaded as a party to the Writ Petition. It got itself impleaded in the matter vide order dated 07.04.2010 in C. M. No. 9333/2008.
18. The Trust Committee pleads facts which gave rise to order dated 10.01.2012, on the strength of which management of the school was taken over by the respondent No. 2. Since those facts are not relevant for the present controversy, hence the same are not repeated herein for sake of brevity.
19. The Trust Committee claims that formation of the Management Committee of the respondent No. 1, as aforesaid, is completely illegal. A declaration may be made in favour of Trust Committee and its trustees that is has right to nominate/appoint Management Committee of the school and orders dated 14.01.2003 and 29.02.2008 passed by the respondent No. 2 may be set aside and quashed being arbitratory and illegal. The administration of ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 44 of 109 the school may be handed over to the Management Committee appointed by the Trust Committee, besides awarding cost of arbitration proceedings to it."
Case of the Claimant No.2 Sh. D.R. Kapila
22. The case of the Claimant No.2 in its Statement of Claim in the arbitration has been summarised in paragraph 20 of the award, and it would be appropriate the extract the said paragraph, in extenso, as under:
"20. Sh. D. R. Kapila has filed his claim statement, contents of which are selfsame as to the contents of the claim statement filed by the Trust Committee, except the fact that he pleads that the Trust Committee was founded by his forefather with the objective of giving education to the poor strata of the society, besides opening up of dispensaries, widow homes, orphanage, and other social activities. He claims that he is president / original trustee of the Trust Committee and files his claim statement in that capacity. Besides the prayer made by the Trust Committee he seeks declaration to the effect that he is the original trustee, hence be allowed to hold fresh elections for appointment of new Management Committee for effective management of the school."
Case of the Respondent No.1 (Petitioner herein) ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 45 of 109
23. The case of the Respondent no.1 in its reply to the Statements of Claim in the arbitration has been summarised in paragraphs 21 to 35 of the award, and it would be appropriate the extract the said paragraphs, in extenso, as under:
"21. Counter was filed by respondent No. 1, through its manager, namely, Sh. Kanwal Nain Midha, pleading that the Trust Committee has not been in charge and management of the respondent school. In fact it is Pt. Shardha Ram Trust that is in charge and management of the school, which fact is evident out of letter dated 13/23, July, 1953, lease deed dated 22.09.1954, Memorandum of Association and Scheme of Management of the year, 1954 etc. This fact is also evident out of order dated 20.03.1953, passed by Claim Commissioner, Government of India, New Delhi. The statement of claim has been filed under the signatures of one Sh. Divesh Nath, claiming to be authorized representative of the Trust Committee. However in communication dated 27.09.2016, sent by Sh. D. R. Kapila to the Delhi International Arbitration Centre, he disputes the factum of Sh. Divesh Nath being authorized representative of the Trust Committee. It has been pleaded that the claim statement is not supported by any affidavit and on that account it is liable to be rejected in limine.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 46 of 109
22. It has been pleaded that facts presented by the Trust Committee are distorted and incorrect. The answering respondent presents that Pt. Shradha Ram Trust came into existence by virtue of a WILL of Swamy Tulsi Dev Ji, registered in the year 1936 at Lahore. Subsequent to partition of the country, the Ministry of Rehabilitation, Government of India, New Delhi, allotted a plot of land measuring 130425 sq ft. (about 3 acres) at Daya Nand Colony, Lajpat Nagar-IV, New Delhi on 13/23.07.1953 to the said Trust for construction and running of a school. Thereafter the school was got constructed by the said trust in or around in year 1956 and the said school has been run since then by the Trust Committee through its Management Committee. The Management Committee of the school is a registered society under the Societies Registration Act, 1860 and its Memorandum of Association, rules and regulation are filed with the Registrar of Societies.
23. By the year 1956, Sh. Narsingh Lal Kapila was working as principal in the school, while his eldest son, namely, Sh. Dhrupad Raj Kapila was working as a teacher, which fact emerge out of the salary sheet of the answering respondent for the month of July, 1956. In the year, 1958 Sh. Dhrupad Raj Kapila was inducted as a trustee in the Trust Committee. By the year 1969 all other trustees, ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 47 of 109 except Sh. Dhrupad Raj Kapila, expired. As such he inducted four new trustees in that very year, namely, Sh. Chaman Lal Sharma, Sh. Harbans Lal Rishi, Dr. Jagdish Ram Shardha, and Sh. Jagan Nath Sharma in the Trust Committee, which fact has been admitted by the Trust Committee in its rejoinder filed in Writ Petition (C) No. 2046/2003 before the Hon'ble High Court.
24. In the year 1969, the Management Committee of the school faced grave financial crises and as such an interest free loan of Rs. 25,000/- was taken from the Mahasabha with an understanding that the Mahasabha would be entitled to nominate five members in the Management Committee of the school. The Mahasabha is a separate and distinct society, duly registered with the Registrar of Societies, Delhi. Accordingly the Trust Committee amended the rules and regulation of the Management Committee, to provide for appointment of five members of the Mahasabha. The amended rules were also notified to the Registrar of Societies, since the Management Committee of the school was a duly registered society.
25. Sh. Dhrupad Raj Kapila retired from the services of the school on 31.07.1986. He was residing in a staff quarter allotted to him by the school. Sh. Dashrath Raj Kapila, also used to reside ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 48 of 109 with him in the said staff quarter. After his retirement Sh. Dhrupad Ral Kapila moved out of the said residential quarter. However, Sh. Dashrath Raj Kapila continued to reside in the said staff quarter.
26. Pursuant to retirement of Sh. Dhrupad Raj Kapila, Sh. Dashrath Raj Kapila started to work into the management of the school. He impersonated his elder brother, who used to append his signature as "D. R. Kapila" and not by his full name and started posing as a trustee of the Trust Committee. He also worked his way into the Management Committee of the school and ultimately started functioning as a manager thereof since 1995.
27. From the year 1986 to 2002, Sh. Dashrath Raj Kapila got appointed his lackeys on various posts in the school and indulged in several misdeeds, including appointment of unqualified teachers and misuse of school land for commercial purpose etc. A case FIR No. 644/2002 was registered and after investigation a charge- sheet has been filed, which fact go to establish the above acts of misfeasance. Sh. Dashrath Raj Kapila alongwith four others, including his daughter, were arrested by the Crime Branch of Delhi Police. Later on he was released on bail.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 49 of 109
28. By this time three trustees of the Trust Committee namely, Sh. Harbans Lal Rishi, Dr. Jagdish Ram Shardha and Sh. Jagan Nath Sharma had expired. Upon arrest of Sh. Dashrath Raj Kapila, four members of the Management Committee of the school, namely, Sh. R.G. Srivastava, Sh. Narinder Singh, Dr. S. P. Sharma and Sh. M. P. Srivastava resigned from their posts.
29. In view of this changed scenario, a joint meeting of the Trust Committee and the Mahasabha was held on 29.12.2002. In the said meeting, on account of arrest of Sh. Dashrath Raj Kapila and resignation of four other members, including chairman and the secretary, a decision was taken to dissolve the existing Management Committee and to constitute a new one according to law. Pursuant to the rule 59 of the Rules, seven new members were unanimously nominated to the Management Committee in the said meeting, whose names are as follows.
1) Sh. V. D. Dutta, Chairman.
2) Sh. B. M. Goswami, Vice Chairman.
3) Sh. Surender Mohan Sharma, Manager.
4) Sh. Bharat Bhushan, Secretary.
5) Sh. Manoj Kapila, Member
6) Sh. Nand Kishore Kapooriya, Member.
7) Sh. I. M. Goswami, Member.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 50 of 109
30. This fact was duly notified to the Registrar of Societies as well as to respondent No. 2. Letter dated 3.01.2003, addressed by the Mahasabha to the Registrar of Societies is annexed with the claim statement by the Trust Committee. Factum of constitution of the new Management Committee was duly acknowledged, verified and approved by the Director of Education, vide his letter dated 14.01.2003. Subsequently the Management Committee, elected on 29.12.2002 and duly approved on 14.01.2003, was reconstituted in the years 2005, 2007, 2009, 2011 and 2013. Due intimation of those election were sent to the Registrar of Societies, Delhi.
31. Immediately after the joint meeting held on 29.12.2002, relatives and associates of Sh. D. R. Kapila started making efforts to somehow keep control of the management of the school and for that end various letter were addressed by the wife and son in law of Sh. D. R. Kapila in various bogus capacities to the respondent No. 2. Since the respondent No. 2 opted not to concede to their fraudulent demands, a Writ Petition (C) No. 2046/2003 was filed before the Hon'ble High Court, wherein Sh. Dashrath Raj Kapila, his wife, his son in law, his sister in law and one other were shown as trustees of the Trust Committee. The said Writ Petition was deposed off by the Hon'ble High Court ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 51 of 109 vide order dated 28.11.2007, directing the respondent No. 2 to take a fresh decision after hearing the parties with regard to the approval accorded to the newly constituted Management Committee. After according hearing, as aforesaid, respondent No. 2 reaffirmed the approval granted vide its order dated 14.01.2003, on the strength of its order dated 29.02.2008. The said order was challenged by the Trust Committee by way of Writ Petition (C) No. 2756/2008. It is worth mentioning that not only different persons were named as trustees than those named in Writ Petition (C) No. 2046/2003 but mischievously the answering respondent was not arrayed as party to the said Writ Petition.
32. A detailed reply to the said Writ Petition was filed by Sh. B. B. Dhanwantri, who was also a trustee of the Trust Committee, which reply is annexed with this counter. Subsequently an application being C. M. No. 9333/2008, preferred by the answering respondent, was granted by the Hon'ble High Court and as such it was impleaded as respondent to the said Writ Petition. The said Writ Petition was disposed off by the Hon'ble High Court vide its order dated 07.01.2016, which order became bedrock for this arbitral proceedings.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 52 of 109
33. It has further been pleaded that though the answering respondent school was run smoothly and efficiently since 2003, yet the school was taken over by the respondent No. 2 vide order dated 10.01.2012, which order was assailed before the Hon'ble High Court by way of Writ Petition (C) No. 5367/2013. Since facts, which were assailed in the said Writ Petition, are not relevant for present proceedings, hence the same are not reproduced herein for sake of brevity.
34. The answering respondent pleads that the determination of core issues as to which group of persons constitute genuine trust, entitled to nominate members to the Management Committee of the school, does not depend on any subsequent events including the correctness or otherwise of the order of take over passed by the respondent No. 2 in the year 2012.
35. Besides the above factual matrix, the answering respondent disputes the facts pleaded in the claim statement by the Trust Committee vehemently. However certain facts pleaded in reply on merits, such as affidavit sworn by Sh. Haveli Ram Sharma on 25.02.2004, regarding payment of loan, no meeting or election of committee took place with effect from 31.07.1986 to the year 2002, framing of charge against Sh. Dashrath Raj Kapila ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 53 of 109 on 28.06.2008 in the aforesaid case, Smt. Saroj Kapila was not a trustee and she wrote a letter dated 01.01.2003, in the capacity of wife of Sh. Dashrath Raj Kapila, would be taken note of during the course of appreciation of facts, if found relevant in that regard. Various facts such as Sh. R. C. Sharma, worked as manager of the answering respondent with great distinction, Sh. Sham Sunder Sharma was made interim manager and thereafter Sh. K. N. Midha was appointed as manager of the school and facts relating to take over of the school by respondent No. 2 etc., burdens the record hence not repeated herein for the sake of brevity. The answering respondent pleads, in view of the facts detailed above, that the statements of claim are not maintainable and liable to be dismissed with heavy cost."
24. The case of the Respondent no.1 in its Counter-Claim in the arbitration has been summarised in paragraph 37 of the award, and it would be appropriate the extract the said paragraph, in extenso, as under:
"37. The respondent No. 1 prefers counter claim, pleading that as in the year, 2002 the Trust Committee and the Mahasabha were the bodies to nominate the members of the Management Committee of the school. The Management Committee, constituted at the joint meeting held on ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 54 of 109 29.12.2002 was duly constituted by the said two bodies. Subsequently the Management Committee, elected on 29.12.2002 and duly approved by the respondent No. 2 on 14.01.2003, was reconstituted in the years 2005, 2007, 2009, 2011, and 2013. Due intimation of said elections were sent to the Registrar Societies, Delhi. It has been claimed that declaration may be issued to the effect that the Management Committee, constituted in the joint meeting held on 29.12.2002, was duly and properly constituted by the correct and proper bodies and award, cost of litigation, including arbitrator's fee, alongwith interest @ 18 % per annum till date of realization in favour of counter clairnant, besides any other order as may be deemed fit and proper in fact and circumstances of the case, may be passed."
Case of the Respondent No.2 Dept. Of Education
25. The case of the Respondent no.2 in its reply to the Statements of Claim in the arbitration has been summarised in paragraph 36 of the award, and it would be appropriate the extract the said paragraph, in extenso, as under:
"36. Taking clue from the facts pleaded by the respondent No. 1 in its counter, the respondent No. 2 filed reply to the claim statement pleading that on arrest of Sh. D. R. Kapila and resignation of other ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 55 of 109 members of Management Committee, Sh. V. D. Dutta, than president of Mahasabha, who was one of the trustees of the Trust Committee, informed vide his letter dated 15.12.2012 relating to the above facts and requested that the Management Committee of the school may be dissolved for the smooth running of the school. In response Sh. C.L. Sharma, the trustee, vide his letter dated 20.12.2012 informed Sh. Dutta that it was imperative to constitute a new Management Committee. Thereafter a meeting was held on 29.12.2012 wherein a new Management Committee was constituted and information in that regard was furnished to Registrar of Societies as well as to the answering respondent. The answering respondent conveyed its approval to the new Management Committee, vide order dated 14.01.2003. In a Writ Petition, the said order was set aside with the direction to pass a speaking order. In compliance of the directions, issued by the Hon'ble High Court, the answering respondent called the parties by issuance of letters and heard the case on 06.02.2008 and 13.02.2008. After going through the record it was reiterated that the Management Committee, constituted in the year 2003, was in accordance with the provisions of the Act and the Rules, vide order dated 29.02.2008. It has been asserted that the claim statements, being devoid of merits, may be rejected."
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 56 of 109 POINTS FOR ADJUDICATION IN THE ARBITRATION
26. In paragraph 47 of the Award, the Ld. Arbitrator has summarised the propositions which arose in the controversy at hand for adjudication and which formed the crux of the dispute, and, for better understanding, the said paragraph is extracted as under:
"47. The controversy, referred for adjudication by the Hon'ble High Court, raised propositions:
(i) as to which is the proper body to nominate the members to the Management Committee,
(ii) who are the Management Committee of the subject school is to comprise of, and
(iii) who are those nominees?"
27. After setting out the aforesaid propositions to be adjudicated in paragraph 47 of the award, the Ld. Arbitrator has then proceeded to adjudicate the matter in the following paragraphs of the award.
FINDINGS AND DECISION IN THE ARBITRAL AWARD
28. In the impugned award, the Ld. Arbitrator has, ultimately, effectively come to the following findings:
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 57 of 109
i) The Claimant no.1 Trust Committee was the body which was competent to nominate the persons to the Management Committee of the school.
ii) The Akhil Bharatiya Brahman Mahasabha had no role to play in the constitution of the Management Committee. Hence, the constitution of the Respondent No.1 Managing Committee was invalid.
iii) The Claimant No.1 Trust Committee was entitled to handle the administration of the school through its Managing Committee.
29. On the basis of the aforesaid findings in the award, the issues were, thus, decided in favour of the Claimants No.1 and 2, and against the Respondent No.1. The orders dated 14.01.2003 and 29.02.2008 passed by the Respondent No.2 were, hence, set aside. The counter-claim of the Respondent No.1 was also dismissed. The relevant paragraph 71 of the award is extracted hereunder:
"71. In view of forgoing discussions, it is announced that orders dated 14.01.2003 and its conformation vide order dated 29.02.2008 by the respondent No. 2 are not valid and legal orders. The same are accordingly set aside. It is declared that the Trust Committee is entitled to handle the administration of the school through its Management Committee, ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 58 of 109 which would be constituted by way of election nomination at the earliest or atleast within a period of three months from today and the respondent No. 2 shall handover the administration of the school to the Management Committee, so constitute by the Trust Committee. The issues referred are according answered in favour of the Trust Committee and against the respondent No. 1. The counter claim raised by the respondent No. 1 is also brushed aside. The respondent No. 1 shall bear the costs of the Arbitral proceedings, which has been quantified to Rs.2,30,000/- out of which the Respondent No.1 shall get adjustment of an amount. of Rs. 67,500/- deposited. with Delhi International Arbitration Centre by now. An award is, accordingly, passed."
30. Being aggrieved by the aforesaid impugned award dated 21.02.2018, the Respondent No.1 has filed the present petition u/s. 34 of the A&C Act.
31. Heard the submissions of Mr. Deeptakirti Verma, Ld. Counsel for the Respondent No.1 (i.e. petitioner herein), Mr. Anil Sapra, Ld. Senior Counsel assisted by Dr. Harsh Pathak, Ld. Counsel for the Claimant No.1, Mr. S.C. Chawla, Ld. Counsel for the Claimant No.2, and Mr. Neeraj Aggarwal, Ld. Counsel for the Respondent/Department of Education.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 59 of 109 SUBMISSIONS OF RESPONDENT NO.1 (PETITIONER HEREIN)
32. Ld. counsel for the Respondent No.1 in the arbitration proceedings, i.e. petitioner herein, has made the following submissions:
32.1. It is submitted that a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent illegality u/s. 34 of the A&C Act. In this regard, reference is made to PSA SICAL Terminals (P) Ltd. v. Board of Trustees 2021 SCC Online SC 508 and Associate Builders v. DDA, (2015) 3 SCC 49. It is submitted that, in the present case, the sole arbitrator's findings are wholly perverse in as much as the arbitrator has given findings based on no evidence, has taken into account irrelevant facts while arriving at his conclusions, and has ignored vital evidence in arriving at the decision. It is submitted that the conclusions returned in the impugned award are based wholly on surmises and conjectures that are without any basis or supporting evidence.
32.2. It is submitted that the sole arbitrator framed the issues for consideration in paragraph 47 of the award, and the very first issue, from which the ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 60 of 109 second and third issues flow, necessarily required him to adjudicate and decide as to who are the duly nominated trustees comprising the Trust. It is submitted that crucially, however, this question has not been answered anywhere in the entire award.
32.3. It is further submitted that the most important finding in the entire award is contained in paragraph 53 of the Award, wherein the sole arbitrator has simply "assumed" that the Claimant No.2 i.e. Sh. D.R. Kapila was rightly inducted as a trustee. It is submitted that this finding has been made despite the sole arbitrator himself noting in the preceding portion of the very same paragraph that "Sh. D.R. Kapila claims to be a trustee without projecting as to when and by whom he was inducted therein." Ld. Counsel has emphasized that in the earlier portion of his award in paragraph 48, the sole arbitrator has clearly set out the procedure for appointment of a new trustee which is that the existing trustees may elect new members of the trust, who shall be such a person who had full faith in the clauses of the Will. It is submitted that once the sole arbitrator had noted that the Claimant No.2 had failed to set out, let alone establish, as to when and by whom he was inducted as a trustee, the question of the sole arbitrator holding the Claimant No.2 to be a ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 61 of 109 validly appointed trustee could not arise at all. It is submitted that, however, merely on an assumption which was without any basis, and which was impermissible in law, the sole arbitrator has held with regard to the Claimant No.2 (in the same paragraph 53 of the Award) that "...an ordinary prudent man would comment that he is acting as pivot to run the Trust Committee.
None else other than him has control over the affairs of the Trust Committee, which is running the school."
32.4. It is submitted that, therefore, in effect, while himself noting in the paragraph 53 of the Award that the Claimant No.2 Sh. Dashrath Raj Kapila had wholly failed to establish how and when he was inducted as a Trustee, the sole arbitrator nevertheless went on to hold that he and none other than him was running the Trust. It is submitted that the said finding is ex facie a finding based on no evidence and amounts to a perverse finding.
32.5. It is submitted that, per contra, vital documentary evidence placed on record by the Respondent No.1 before the sole arbitrator establishing that the Claimant No.2 Sh. D.R. Kapila was never appointed as a Trustee was not taken into consideration by the sole arbitrator which would ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 62 of 109 also render the award as perverse. It is submitted that the Respondent No.1 had placed on record various documents establishing the falsity of the claim of Sh. D.R. Kapila (Sh. Dashrath Raj Kapila) as trustee, including but not limited to the Written Submissions of Sh. C.L. Sharma and the Statement of Sh. Dhrupad Raj Kapila to the Police forming part of the charge-sheet in the criminal case against Sh. D.R. Kapila and his associates. It is submitted that the said statements/submissions of Sh. C.L. Sharma and Sh. Dhrupad Raj Kapila were relevant because these persons were admitted, by the petitioners before the Hon'ble High Court in the earlier round of litigation in in W.P. (C) No. 2046 of 2003, to have been appointed as trustees, as is clear from the Rejoinder in W.P. (C) No. 2046 of 2003. It is submitted that the said documents would clearly show that Mr. Dashrath Raj Kapila was never appointed as a Trustee, and that he had in fact impersonated as a Trustee by fraudulently adopting the identity of his elder brother Sh. Dhrupad Raj Kapila (who was the actual Trustee). It is submitted that despite such documentary evidence being heavily relied upon by the Respondent No.1 in its arguments before the sole arbitrator, the said documents have not even been referred to, let alone considered, in the award.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 63 of 109 32.6. It is further submitted that even the other crucial issue whether the Mahasabha's loan was returned leading to their exclusion from the Management Committee w.e.f. 1989 (as per the version of the Claimants Nos. 1 and 2) or not (as per the version of the Respondent No.1) has been dealt with by the sole arbitrator without considering the documentary evidence placed on record and relied upon by the Respondent No.1.
32.7. It is further submitted that it was argued by the Claimants before the sole arbitrator that the meeting dated 29.12.2002 was vitiated by the presence of the Mahasabha, as their role in election of Managing Committee was excluded after (i) repayment of Mahasabha's loan and (ii) framing and submission of new Scheme of Management to the Directorate of Education (DOE) in 1989. It is submitted that, per contra, it was argued by the Respondent No.1 before the Ld. Arbitrator that no such developments took place in 1989 and the documents placed on record by Respondent No. 1 regarding both its claims of
(i) repayment of Mahasabha's loan and (ii) framing and submission of new Scheme of Management to the Directorate of Education (DOE) in 1989 were forged and got-up documents. It is submitted that, thus, there being contradictory versions of the events put forward ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 64 of 109 by the contesting parties, it was incumbent upon the Ld. Arbitrator to adjudicate upon the issue as the same was crucial for adjudication of the validity of the meeting of 29.12.2002 and the Managing Committee constituted at the said meeting.
32.8. It is submitted that as recorded in paragraph 56 of the Award, the case of Claimants Nos. 1 and 2 that the loan amount was returned and the Mahasabha was excluded from the Managing Committee in 1989 was wholly based on the alleged letter dated 21.09.1989 stated to have been issued by Sh. H.R. Sharma, General Secretary of the Mahasabha. The Ld. Arbitrator thereafter records that "There has not been any dispute on issuance of the letter and its contents thereof." It is submitted that effectively, therefore, the Ld. Arbitrator treats the said letter as an admitted document qua the Respondent No. 1. It is submitted that such treatment of the said letter as an admitted document was ex facie contrary to the record, and therefore perverse. It is submitted that the said letter has been disputed by the Respondent No. 1 in the arbitration proceedings both in its pleading at Paragraph 12 of the Reply and its arguments in the Written Submissions. It is submitted that in its Written Submissions, it was the specific case of the Respondent No. 1 that the alleged letter dated ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 65 of 109 21.09.1989 was a got-up and concocted document. It is submitted that therefore it was evident that the vociferous opposition by the Respondent No. 1 to the said letter both in its pleadings and its arguments have been completely and unjustifiably omitted/missed by the Ld. Arbitrator while deciding such a crucial issue, which renders his finding thereon wholly perverse. On the basis of such perverse finding, the Ld. Arbitrator refuses to even consider the version of events stated by the Respondent No. 1. The Respondent No. 1 had made several submissions which establish the falsity of the claim of Claimants Nos. 1 and 2 regarding alleged repayment of loan of the Mahasabha and consequent falsity of the entire case set up by Claimants Nos. 1 and 2, however, none of such submissions were even adverted to, let alone considered, in the Award on the patently wrong finding returned by the Ld. Arbitrator that the authenticity or contents of letter dated 21.09.1989 was not challenged by the Respondent No. 1, which is ex facie a finding contrary to the record. This approach of the Ld. Arbitrator is also perverse since he could not have refused to consider the version of the Respondent No. 1 and/or the documents and evidence produced by it on the issue of alleged repayment of loan to the Mahasabha.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 66 of 109 32.9. It is further submitted that this being a case of civil nature, the Ld. Arbitrator was obligated to consider the documents and evidence of both sides and thereafter apply the test of "Preponderence of Probability" and decide whose version of events was more probable or likely which he has failed and neglected to do thus rendering the Award unsustainable in law. It is submitted that the Respondent No. 1 had filed the documents establishing the falsity of the alleged story of repayment of loan to the Mahasabha and alleged framing and submission of new Scheme of Management to the Directorate of Education (DOE) in 1989, which was set up by the Claimants. It is submitted that it was incumbent upon the Ld. Arbitrator to take into consideration these documents and material placed on record by the Respondent No.1 and thereafter return his considered findings thereon, which he has failed to do thus rendering the Award perverse on this count also.
32.10. It is further submitted that even other important documents filed by the Respondent No.1 before the sole arbitrator do not find any mention, let alone consideration, in the award, even though all of which were relied upon and referred to in arguments as evident from the written ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 67 of 109 submissions filed by the Respondent No.1 before the sole arbitrator.
32.11. It is further submitted that, otherwise also, the award is inherently contradictory in terms of findings recorded therein. In this regard, it is submitted that in paragraph 58 of the award, it has been recorded that "It has not been the case of the respondent no. 1 that representatives of the Mahasabha were nominated in the Management Committee of the school by the Trust Committee from the year 1989 till 2002", however, in paragraph 62, it is recorded to the contrary that "The respondent no. 1 disputes this factual position, claiming that the representatives of the Mahasabha were there in the Management Committee of the school, which claim stood castigated through the contents of the letter dated 21.09.1989, written by Sh. H.R. Sharma."
32.12. It is further submitted that by way of the impugned award, the sole arbitrator has effectively handed over the school to a person, being the Claimant No.2 Mr. Dashrath Raj Kapila, who has serious criminal charges against him regarding affairs of the school. It is submitted that such an award would shock the conscience of the Court and this is a justifiable ground for interference with the award. It is further submitted ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 68 of 109 that taking into the larger and overriding public interest, the award merits interference on this ground also.
SUBMISSIONS OF THE CLAIMANTS NOS. 1 AND 2(RESPONDENTS NOS. 1 AND 2 HEREIN)
33. On the other hand, Ld. Senior Counsel for the Claimant No.1, i.e. Respondent No.1 herein, has made the following submissions:
33.1. It is submitted that the challenge raised by the petitioner herein in the petition u/s. 34 of the A&C Act would be governed by the well settled principles of law laid down in various precedents. Reference in this regard is made to the decisions in UHL Power Co. Ltd. V. State of H.P., (2022) 4 SCC 116, State of Chhattisgarh SAL Udyog (P) Ltd., (2022) 2 SCC 275, Ssangyong Engg. & Construction Co. Ltd. Vs NHAI reported in (2019) 15 SCC 131, Delhi Airport Metro ExpressPrivate Ltd. Vs Delhi Metro Rail Corporation Limited reported in (2022) SCC 131. It is submitted that it is well settled that the Courts while hearing the objection to an award under Section 34, should refrain from appreciating or re-
appreciating matters of fact as well as law. It is submitted that re-appreciation of evidence, which is what an Appellate Court is permitted to do, is not permitted in a challenge under Section 34. It is ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 69 of 109 submitted that it is well settled that even if the view expressed by the Learned Arbitrator is a possible view, though not a plausible view, the same would be sufficient to uphold the award. It is submitted that that unless the arbitrator construes the contract in a manner that no fair minded or reasonable person would arrive at the said conclusion, the award shall not be liable to be set aside. It is submitted that it is well settled that the Courts should be reluctant in interfering with an award and there should be minimal judicial interference with arbitral awards and the Courts do not sit in appeal against the arbitral award. It is submitted that it is well settled that even a contravention of a statute not linked to public policy or public interest cannot be a ground to set at naught an arbitral award.
33.2. Ld. Senior Counsel for the Claimant No.1 has referred to the impugned arbitral award dated 21.02.2018 and has submitted that the award is a well-reasoned award based on substantial evidence placed before the arbitrator. It is submitted that the findings of the arbitral tribunal are reasonable and no ground exists to set aside the same. It is submitted that this Court cannot sit in appeal and re- appreciate the evidence and the award is liable to be upheld. It is submitted that the award dated 21.02.2018, in paragraphs 49 to 54 thereof, clearly gives details of the persons who constitute the ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 70 of 109 Trustees of the Trust Committee and clearly gives a finding as to who are the real Trustees. It is submitted that thereafter, in the award, the arbitrator in paragraphs 56 to 61 has given sound reasoning as to why the appointment of the Managing Committee was illegal and void and goes on to hold thereafter that the orders dated 14.1.2003 and 29.2.2008 were invalid and illegal. It is submitted that the arbitrator has further given directions for constitution of the new Managing Committee by the Trust Committee. It is submitted that, thus, the Ld. arbitrator after considering the documentary evidence filed before him, has passed a fair and reasonable Award and as such the petition u/s. 34 of the A&C Act is liable to be dismissed.
33.3. It is further submitted that apart from the legal limitations imposed by law on interference with an arbitral award, the first and foremost question which is of primary importance is of the fact that the Respondent No.1 i.e. the petitioner herein before this Court has no locus standi as a legal entity having jurisdiction or authority to challenge the Award. It is submitted that the petitioner herein claims itself to be the Managing Committee of the School, which came to be constituted in the meeting held on 29.12.2002 i.e. the illegal and unauthorized meeting held by 74 Members of the Maha Sabha. It is submitted that the petitioner claims to be the 7 ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 71 of 109 appointees by the Maha Sabha out of the total 15 nominees which 15 Members constitute the complete Managing Committee. It is submitted that, thus, the Petitioners do not even comprise of the complete Managing Committee and are only part thereof. It is submitted that in any event, a perusal of the Minutes of Meeting dated 29.12.2002 reveals that the Petitioners were allegedly nominated by the said 74 Members, which admittedly had no authority under law (Rule 59 of the Delhi School Education Rule) and the only authority/ body which is entitled to nominate or elect the Members on the Managing Committee, is the Trust Committee and not the Maha Sabha or alleged joint constituents of the Maha Sabha and some alleged Trustees of the Trust Committee. Additionally, it is the Petitioner's own case that a Managing Committee is appointed for a period of three years as per the Scheme of Management and in any event the tenure of the Petitioners herein came to an end in the year 2005, even if they were validly constituted. Thus, the Petitioners before this Court have no locus of any nature to challenge the Award or seek any relief.
33.4. It is submitted that the Petitioner herein has further sought to contend that the Maha Sabha continued to have the right to nominate 5 persons of the Managing Committee and have contended that the amount of Rs.25,000/- was neither sought nor was ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 72 of 109 ever refunded to the Maha Sabha. It is submitted that the Maha Sabha has till date not disputed the factum of the writing of letter dated 21.9.1989 by Secretary Shri H.R. Sharma demanding back the amount of Rs.25,000/-, nor has disputed having received the amount of Rs.25,000/- with interest from the Trust Committee nor has disputed the fact that no nominee suggested by them has been appointed on the Managing Committee of the School since the year 1989. The Maha Sabha has not challenged the decision of the Trust Committee not to nominate any members suggested by the Maha Sabha at any point till date. The Maha Sabha was a party in the two writ petitions filed by the Trust Committee before the Hon'ble Delhi High Court and they chose not to contest any of the said petitions and thus admitted the averments/contentions of the Trust Committee i.e. Claimant No. 1 to the effect of seeking a refund by the Maha Sabha and refund of amount thereof. The Petitioners have no authority on behalf of the Maha Sabha to take up its cause and cannot admit or deny any facts which relate to the Maha Sabha.
33.5. It is further submitted that there was no counter-
claim filed before the Ld. Arbitrator by the petitioners herein contending that A, B and C were not the real trustees of the Trust Committee and that instead X, Y and Z were the real Trustees. It is submitted that the petitioner herein never placed ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 73 of 109 before the Ld. Arbitrator the name of persons who the petitioner herein considers to be the true and real trustees of the Trust Committee. It is submitted that the contention of the petitioner herein merely stating that the persons filing the petitions were not the real trustees was thus meaningless and baseless and was rightly rejected by the Ld. Arbitrator.
33.6. It is further submitted that a perusal of the Scheme of Management filed before the Director of Education on 10.8.1969 and on 12.10.1989 would clearly reveal that while the 1969 Scheme clearly stipulated that 5 members out of the 7 would be those nominated by the Maha Sabha and the remaining to be nominated by the Trust Committee, the Scheme of 1989 on the other hand clearly stated that all 7 nominees of the Managing Committee shall be nominated/elected by the Trust Committee alone.
33.7. It is further submitted that if at all there was any right or grievance qua no representation being given to the nominees of the Maha Sabha, the same could have been only and only of the Maha Sabha alone and not the petitioner herein. It is submitted that the petitioner herein constitutes of only a one-time constituted members of the Managing Committee illegally appointed in the year 2002 for at best a period of three years. It is submitted that the Maha ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 74 of 109 Sabha has chosen not to seek any right or to refute the claim made by the Claimant No.1 Trust Committee. The Petitioners have no right to dispute the claim made by the Claimant No.1 or to seek any claim against the Claimant No.1. The Petitioners have neither even contended as to who are the persons who constitute the Trustees of the Trust Committee, nor have stated on what basis they are disputing the Trustees who represented the Trust Committee, nor have filed any document to show who according to them are the real trustees. No proof of any nature has been furnished by the Petitioner before the Ld. Arbitrator and their case is totally false and frivolous. The Petitioners have no right to contend that the Maha Sabha should be given right to nominate the members of the Managing Committee.
33.8. It is further submitted that in the WP(C) no.
2756/2008, the Claimant No.1 had filed an application under Order 1 Rule 10 CPC along with copy of minutes of meeting dated 29.05.2008, 21.07.2008 and 29.07.2008. It is submitted that, however, the Respondent No.1 filed in the arbitration proceedings the copy of the said application under Order 1 Rule 10 CPC along with only the copy of minutes of meeting dated 29.05.2008 and 29.07.2008, and without the copy of minutes of meeting dated 21.07.2008. It is submitted ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 75 of 109 that it was only because of the absence of the filing of the said copy of minutes of meeting dated 21.07.2008 that the Ld. Arbitrator observed in paragraph 52 of the award that there was no explanation as to how some of the trustees were inducted and why the names of some trustees were added in the minutes of meeting. It is submitted that, when the minutes of meeting dated 21.07.2008 are read in conjunction with the minutes of meeting dated 29.05.2008 and 29.07.2008, then this discrepancy would disappear.
34. Ld. counsel for the Claimant No.2 has also adopted the submissions made on behalf of the Claimant No.1.
REJOINDER SUBMISSIONS
35. In rejoinder, Ld. counsel for the Respondent No.1 in the arbitration i.e. petitioner herein has made the following submissions:
35.1. It is submitted that the petitioner has the locus to file the present petition. It is submitted that the petitioner was impleaded by the Hon'ble High Court in the 2008 Writ Petition filed by the alleged trustees including Sh. Dashrath Raj Kapila, vide its order dated 07.04.2010. Such impleadment of the petitioner was not opposed by the alleged trustees including Sh. Dashrath Raj Kapila, nor was the said order appealed against by them. The petitioner was ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 76 of 109 duly heard by the Hon'ble High Court while passing the order dated 07.01.2016 which formed the reference order for the arbitration proceedings. By the said order, it was the dispute between the petitioner and Claimants that was referred to civil court/arbitration. When the Claimants filed petition under section 11 of the Arbitration & Conciliation Act, 1996 for appointment of arbitrator by the Hon'ble High Court being Arb. P. No. 300 of 2016, they arrayed the petitioner herein as a party respondent in the said petition. The entire arbitration proceedings were conducted between the petitioner herein and the Claimants. In view of such participation of the petitioner in the entire proceedings over almost a decade without any objection being raised by Claimant no.1 and on the contrary Claimant no. 1 herein itself arraying the petitioner herein as a party at various stages, it is submitted that Claimant no.1 is estopped from challenging the locus standi of the Petitioner to file the present petition. Additionally, in the arbitration proceedings, the petitioner herein was the only contesting party against Claimant nos. 1 and 2. Thus, none other than the petitioner can assail the impugned award. By seeking to now oust the petitioner from the proceedings, Claimant no. 1 is seeking to ensure that the impugned award remains uncontested despite the glaring and obvious infirmities evident therein. Such opportunistic stand ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 77 of 109 on the part of Claimant no. 1 does not merit consideration by the Court.
35.2. It is submitted that the Claimant No. 1 has also argued that the Petitioner herein had failed to clarify or state who were the trustees comprising the Trust that appointed such Managing Committee, and in effect, the Claimant no.1 has argued that the Petitioner herein has failed to disclose the composition of the Trust in the arbitration proceedings. It is submitted that the Written Submissions of Sri C.L. Sharma which were filed before the Directorate of Education clearly set out who all were inducted as trustees from time to time, and the composition of the Trust in 2002 and 2003 as also on the date of filing of such Written Submissions i.e. 06.02.2008. It is submitted that Sri C.L. Sharma was one of the persons who was admitted in pleadings before the Hon'ble High Court in the earlier round of litigation by the Claimants (including Sri Dashrath Raj Kapila) to have been appointed as trustees, particularly in the Rejoinder in W.P. (C) No. 2046 of 2003. The said Written Submissions of Sri C.L. Sharma do not require any elaboration and contain the complete answer to the said objection raised on behalf of Claimant No. 1.
35.3. It is further submitted that the Ld. Counsel for the Claimant No. 1 has also sought to argue various ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 78 of 109 factual aspects before this Court in the present proceedings in support of the impugned Award. It is submitted that the Impugned Award cannot now be sought to sustained by way of supplementing it with additional submissions/reasons sought to be advanced during arguments, even assuming without conceding that such submissions are relevant and germane to the issues arising for consideration. The impugned Award has to necessarily stand on its own merits. Reliance, in this regard, is placed on Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405 which was the case of judicial review of an order of a statutory authority. It is submitted that as per the ratio of the decision, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. It is submitted that in as much as an Arbitrator is also a creature of statute, and further in as much as the scope of scrutiny of an Award under section 34 of the 1996 Act is of similar restricted nature as the scope of scrutiny of order of a statutory authority in judicial review, the same principle as laid down in Mohinder Singh Gill (supra) would apply in the present proceedings.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 79 of 109 35.4. It is further submitted that the arguments of prejudice advanced by the Claimant No. 1 regarding alleged situation of the School while under charge of the Petitioner herein, are not germane at all in the present proceedings under section 34 of the 1996 Act. Such submissions are in any event denied.
35.5. It is lastly submitted that the fact is that there is no specific finding in the entire Award in favour of Claimant No. 1 or the persons who claim to be Trustees in the Statement of Claim filed by Claimant No. 1 before the Ld. Arbitrator. The only person in favour of whom the Ld. Arbitrator returns a finding of being a trustee is Sri Dashrath Raj Kapila in paragraph 53 of the impugned Award, albeit such finding is also made on pure assumption and conjecture. In other words, as the Award stands, the only person entitled to lay claim to being a trustee under the same is only Claimant No. 2 and not. Claimant No. 1. This fact assumes significance as Sri Dashrath Raj Kapila had filed a separate and independent Statement of Claim while the persons comprising Claimant No. 1 had filed a separate Statement of Claim before the Ld. Arbitrator. Thus, in any event, no relief can accrue to Claimant No. 1 under the impugned Award.
36. Both parties have also filed their respective written submissions.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 80 of 109 DISCUSSION, FINDINGS & DECISION
37. I have considered the submissions of the ld. Counsels for the parties and I have perused the record.
38. It is well settled that the scope of jurisdiction u/s. 34 of the A&C Act is limited in nature. As held by the Hon'ble High Court of Delhi in Delhi Development Authority v. Bhardwaj Brothers, 2014 SCC OnLine Del 1581, the judicial review of an arbitral award is the judicial review of the decision making process and not of the decision on merits and cannot be converted into an appeal, and Section 34 provides for annulment only on the grounds affecting legitimacy of the process of decision as distinct from substantive correctness of the contents of the decision. The impugned award has been considered with this fundamental principle in mind.
39. The first proposition to be adjudicated as recorded in paragraph 47 of the award was "as to which was the proper body to nominate the members of the management committee". A perusal of the findings of the Ld. Arbitrator on the first issue as to which was the proper body to nominate the members to the management committee clearly shows that the findings in this regard are highly problematic. The approach of the Ld. Arbitrator in this regard to ultimately give a finding in favour of the Claimants has been clearly and patently perverse and resulted in a flawed process of decision making.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 81 of 109
40. Rule 59 of the relevant Rules, provides for the Scheme of Management of recognised schools, and the same is extracted hereunder:
"59. Scheme of Management of recognized schools-
(1) The Scheme of Management in relation to a recognized school shall provide that:
a) the Management Committee of a recognized aided school shall consist of not more than fifteen members; and the Management Committee of a recognized unaided school shall consist of not more than twenty one members;
b) subject to the total number of members specified in clause (a) every Management Committee shall include the following, namely:
i) the head of the school;
ii) one parent, who is a member of Parent- Teachers' Association of the school, constituted in accordance with such instructions as may be issued by the Administrator, and is elected by that Association;
iii) two teachers of that school, to be elected by the teachers of that school from amongst themselves;
iv) two other persons, of whom one shall be woman, who are, or have been, teachers of any other school or of any college, to be nominated by the Advisory Board;
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 82 of 109
v) two members, to be nominated by the Director, of whom one shall be educationist and the other an officer of the Directorate of Education, Delhi, not below the rank of Principal of a Higher Secondary School;
vi) the remaining members to be nominated or elected, as the case may be, in accordance with the rules and regulations of the society or trust by which the school is run;
2) The scheme of management shall also provide for the following, namely: -
a) the term of office of the members of the Management Committee and the manner of its reconstitution or filling any vacancy occurring therein;
b) The manner of election to the Management Committee;
c) that for the purpose of elections to the Management Committee, the head of the school shall be the returning officer and shall conduct, and be in charge of elections;
3) The Management Committee of an existing school shall make the draft of scheme of management after the commencement of these rules and shall, within ninety days from such commencement submit such draft to the appropriate authority for its approval:
Provided that the appropriate authority may, after giving to the Management Committee a reasonable opportunity of being heard make such alterations or ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 83 of 109 modifications in the draft scheme of management as the circumstances of the case may require:
4) The Management Committee of existing school shall bring, within ninety days from the date of approval of the scheme of management by the appropriate authority, the composition thereof in conformity with the scheme of management as approved by the appropriate authority."
(Emphasis supplied by me)
41. As per Rule 59, the school could not have more than 15 members in the Management Committee, out of which 7 members could be nominated or elected in accordance with the rules and regulations of the society or trust by which the school was run.
42. The Ld. Arbitrator has ultimately held that it was the Trust which was entitled to nominate or elect the aforesaid 7 members to the Management Committee of the school. In so far as this particular finding is concerned, there is no error in the same, since, as per Rule 59, it was the Trust which could have nominated/elected the 7 members to the Management Committee of the school in accordance with the rules and regulations of the Trust.
43. However, although the Ld. Arbitrator was correct in holding that the Trust was the body which would elect or nominate the Management Committee of the school, the matter did not end there. Ultimately, the real question which was in dispute was as to who were the persons who comprised the trustees of the Trust so as to nominate the ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 84 of 109 members to the Management Committee of the school. Unfortunately, the Ld. Arbitrator has completely misdirected himself with respect to this issue.
44. As already mentioned, the first Statement of Claim was filed in the name of the Pt. Shradha Ram Trust Committee by 11 persons (including Sh. D.R. Kapila) claiming to be the trustees and who were named in the Annexure-A to the Statement of Claim. The relief of declaration which was sought in this Statement of Claim was that "the Claimant and its trustees as mentioned in the Annexure-A" be declared as "the rightful trust to nominate/appoint the Management Committee of the SRSD Senior Secondary School". Another relief of declaration which was sought in this Statement of Claim was that "the Claimant and its trustees as mentioned in the Annexure-A" be declared "to have the sole and absolute right to appoint/nominate its seven representatives in the Management Committee of the SRSD Senior Secondary School". On this basis, the further relief which was sought was a direction to the Respondent No.2 to recognize "the Claimant and its trustees as mentioned in the Annexure-A" as the rightful trust and to approve the Management Committee of the SRSD Senior Secondary School nominated/appointed by the Claimant comprising its seven representatives.
45. A decision on the aforesaid reliefs for declaration necessarily meant an adjudication as to whether the 11 persons who claimed themselves as trustees in the Pt.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 85 of 109 Shradha Ram Trust Committee and who were named in the Annexure-A to the Statement of Claim were actually the lawful trustees of the Trust. The onus was on these 11 persons, including Sh. D.R. Kapila, who were claiming themselves to be trustees of the Trust to show that they were the lawful trustees of the Trust through cogent material.
46. As correctly observed by the Ld. Arbitrator in paragraph 48 of the award, the will of Swami Tulsi Dev Ji would have given answer to the proposition as to which was the proper body to nominate the members to the Management Committee. This was so since Swami Tulsi Dev Ji nominated the trustees in his will and also formulated the rule as to how the new trustees would be inducted in the trust. The will provided that in case of death of any member or his leaving the trust, the remaining members shall have the power to elect the new members. The will provided as to how the new trustee was to be nominated and what were the qualifications to be a trustee. The relevant observations in this regard are contained in paragraph 48 and part of paragraph 49 of the award, and the same are extracted hereunder:
"48. WILL of Swami Tulsi Dev Ji 'gives an answer to the proposition as to which is the proper body to nominate members to the Management Committee. In his WILL, he appoints Pt. Shradha Ram Trust Committee to follow the objectives detailed in the ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 86 of 109 WILL. For that purpose he grants right and duties to the Trust Committee, with a view to empower it to fullfill the mission created by him through the said WILL. He nominated trustees in the WILL. At that time he was well aware that man is mortal and formulated a rule as to how new trustees would be inducted in the trust. At the cost of repetition, the rule created by the Swami Ji is reproduced thus.
"........may also elect any person in case of death of any member or his leaving the trust, the remaining members shall have power to elect new members, and the new members shall also be such a person who had full faith in the clauses of the WILL."
49. The WILL of Swami Tulsi Dev Ji postulates that the trustees shall carry out the objectives for which the Trust Committee is constituted. As trustees are given power to elect a new trustee, the WILL postulates; (i) As to how a new trustee shall be nominated, and (ii) what are the qualifications for becoming a trustee? ... ... ..."
47. Hence, any person claiming to be trustee of the said trust would have to show either that he was nominated as a trustee by Swami Tulsi Dev Ji in his will or that he was nominated by the members of the trust in accordance with the provisions of the will of Swami Tulsi Dev Ji. For this ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 87 of 109 purpose, the persons claiming to be the trustees were required to establish the continuous line of trustees leading to their appointment or, at least, show that they were duly appointment by persons who were admittedly already the trustees. The onus was on the Claimants as persons claiming to be the trustees to show through cogent material as to when, by whom, and how and in what manner they became the trustees in terms of the provisions of the will of Swami Tusli Dev Ji.
48. However, a perusal of the arbitral award does not show any discussion by the Ld. Arbitrator of any material or evidence led by the 11 persons who were claiming to be trustees to show when, by whom, and how or in what manner they became the trustees in terms of the provisions of the will of Swami Tusli Dev Ji. Rather, the Ld. Arbitrator has referred to the minutes of the meetings in May 2008 and July 2008 which were relied upon by the Claimants and his observations in respect of these meetings show that the Ld. Arbitrator was having doubts about the manner in which the persons were inducted as trustees. The relevant observations in this regard are contained in paragraphs 49 to 52 of the award, and the same are extracted hereunder:
"49. The WILL of Swami Tulsi Dev Ji postulates that the trustees shall carry out the objectives for which the Trust Committee is constituted. As trustees are given power to elect a new trustee, the ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 88 of 109 WILL postulates; (i) As to how a new trustee shall be nominated, and (ii) what are the qualifications for becoming a trustee? Before proceeding further as to who are the trustees, it would be expedient to not that the respondent No. 1 asserts that the Writ Petitions, filed in the year 2003 and 2008, were presented by incompetent persons. To bring his submissions home, Sh. Verma referred to the names of the petitioners in those two petitions as well as names mentioned in two meetings held in May and July, 2008. He argued that a confusion pervades as to who were the trustees, in whom a right vested to assail the order of the respondent No. 2. To reach the issue, it becomes opportune to scan those facts. Writ Petition (C) No. 2046/2003 gives an answer as to who were claiming to be trustees at that time, since a few of them joined hands to file that writ before the Hon'ble High Court. Sh. Rahul Sabharwal, Sh. Vinod Kashyap, Ms. Suman Srivastava, Sh. D. R. Kapila and Ms. Saroj Kapila claim themselves to be the trustees and raised an issue against approval of the Management Committee by the respondent No.
2. In the year 2008 Writ Petition (C) No. 2756/2008 was filed wherein Sh. D. R. Kapila, Sh. Vinod Kashyap, Ms. Suman Srivastava, Sh. Devarat Verma, Sh. M. L. Bakhshi, Ms. Saroj Kapila, Sh. Santosh Shukla, Sh. M. L Dogra and Sh. Mukesh Kumar claimed themselves to be trustees of the Trust Committee. Copies of minutes of meeting held ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 89 of 109 on 29.05.2008 and 29.07.2008 are placed on record by respondent No. 1, wherein names of the trustees of Trust Committee are detailed. In minutes of meeting held on 29.05.2008 following names of the trustees are mentioned:
1. Sh. D. R. Kapila
2. Sh. M.L. Dogra
3. Sh. Suman Srivastava
4. Sh. Santosh Srivastava
5. Sh. M. L. Bakhshi
6. Sh. Jagdish Prakash Aggarwal
7. Ms. Neera Rani
8. Sh. Divesh Nath
9. Sh. Rohit Nath
10. Sh. Shyam Sunder Aggarwal
11. Ms. Mamta Nath
50. In minutes of meeting held on 29.07.2008 following names appear to be the trustees:
1. Sh. Jagdish Prakash Aggarwal
2. Ms. Meera Rani
3. Sh. Divesh nath
4. Sh. Rohit nath
5. Sh. Shyam sunder aggarwal
6. Sh. Ratan aggarwal
7. Sh. Vikas Vaid
8. Sh. Vikram Jain
9. Sh. Amit aggarwal ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 90 of 109
10. Sh. Pradeep gupta
11. Sh. D. R. Kapila
51. When Writ Petition was filed in year 2003 Sh.
Rahul Shabharwal, Sh. Vinod Kashyap, and Ms. Suman Srivastava were the trustees including Sh. D. R. Kapila and his wife Ms. Saroj Kapila. At the time of filing of the Writ Petition in the year 2008, Sh. Vinod Kashyap, Ms. Suman Srivastava, Sh. Devrath Verma, Sh. M.L. Bakhshi, Sh. Santosh Shukla, Sh. M. L. Dogra and Sh. Mukesh Kumar were the trustees, besides Sh. D. R. Kapila and his wife Saroj Kapila. It is merging over the record that Sh. Vinod Kashyap and Ms. Suman Srivastava were the two common trustees in the two Writ Petitions besides Sh. D. R. Kapila and Ms. Saroj Kapila.
52. When meetings were held in May, 2008 and July, 2008 a few new names emerged as trustees of the Trust Committee. As per minutes of meeting dated 29.05.2008 Ms. Saroj Kapila, Sh. Devrath Verma, resigned while Sh. Jagdish Prasad Aggarwal, Divesh Nath, and Neera Rani, Sh. Rohit Nath, Sh. Shyam Sunder Aggarwal and Ms. Mamta Nath were inducted as new trustees. However in meeting dated 29.07.2008 names of Sh. M.L.Dogra, Ms Suman Srivastava and Sh. Santosh Srivastava do not figure as trustees. It is no where mentioned that they have resigned or removed or expired and new persons ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 91 of 109 were inducted in their place. Sh. M.L.Bakshi and Ms. Mamta Nath, who names figure in minutes dated 29.05.2008 were not shown as trustees in minutes dated 29.07.2008, without projecting that they have resigned or removed or expired by then. Names of Sh. Ratan Aggarwal, Sh. Vikas Vaid, Sh. Vikram Jain, Sh. Amit Aggarwal and Sh. Pradeep Gupta appear as trustees in meeting dated 29.07.2008, without any whisper of fact as to when and by whom they were inducted as trustees."
(Emphasis supplied by me)
49. Thereafter, in paragraph 53 of the award, the Ld. Arbitrator has made observations regarding Sh. D.R. Kapila as the trustee. This paragraph 53 is extracted as under:
"53. When a glance is made on the situation it is emerging over the record that a common name, which finds place everywhere, is of Sh. D.R. Kapila, Sh. D.R. Kapila claims to be trustee without projecting as to when and by whom he was inducted therein. Assuming that he was rightly inducted a trustee, an ordinary prudent man would comment that he is acting as pivot to run the Trust Committee. None else other than him has control over the affairs of the Trust Committee, who is running the school."
(Emphasis supplied by me) ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 92 of 109
50. A perusal of paragraph 53 clearly shows that the Ld. Arbitrator had found that Sh. D.R. Kapila was claiming to be a trustee "without projecting as to when and by whom he was inducted therein". Thus, there is a clear finding by the Ld. Arbitrator to the effect that although Sh. D.R. Kapila was claiming to be a trustee, however, he had not shown as to when and by whom he had been inducted as a trustee. This clearly meant that the Ld. Arbitrator found no evidence or material as to how, when or in what manner Sh. D.R. Kapila became a trustee. However, the Ld. Arbitrator has nevertheless proceeded to observe that:
"Assuming that he was rightly inducted a trustee, an ordinary prudent man would comment that he is acting as pivot to run the Trust Committee. None else other than him has control over the affairs of the Trust Committee, who is running the school". The afore-quoted finding is completely absurd and perverse. Having held that there was nothing to show as to when and by whom Sh. D.R. Kapila was inducted as a trustee, there was no occasion for the Ld. Arbitrator to "assume" that Sh. D.R. Kapila was rightly inducted as a trustee. Further, the observations of the Ld. Arbitrator to the effect that Sh. D.R. Kapila was "acting as pivot to run the Trust Committee" and that "none else other than him has control over the affairs of the Trust Committee, who is running the school" are also pure assumptions and are not based on any reasoning or materials which can be deduced from the award. Hence, the finding in paragraph 53 assuming Sh. D.R. Kapila to be the trustee is totally perverse and patently illegal. These ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 93 of 109 findings are not based on any reasoning or materials which can be deduced from the award, but are purely based on assumptions, surmises and conjectures.
51. Despite finding no basis as to how these 11 persons claiming in the name of the Claimant No.1 were inducted as trustees, the Ld. Arbitrator has, in paragraphs 54 to 55 of the award, gone on to effectively hold that these persons, who had filed the arbitration claim as trustees of the Pt. Shradha Ram Trust Committee, were the trustees merely on the basis that these persons had filed the writ petitions and the Respondent No.1 had failed to question their locus to file the writ petitions. These paragraphs of the award are extracted as under:
"54. Though the respondent No. 1 disputes the Writ Petitions filed in 2003 and 2008 were moved by competent persons, yet not even an iota of fact has been demonstrated to substantiate that claim. There were other trustees, besides Sh. D. R Kapila and his wife Ms. Saroj Kapila, who joined hands in raising issues before the Hon'ble High Court. The respondent No. 1 failed to questioned their locus to file those petitions. Under these circumstances it is concluded that those Writ Petitions were moved by the persons having locus to do so, when their rights were infringed.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 94 of 109
55. Before this Arbitral Tribunal the Trust Committee is the claimant, who filed claim statement pursuant to reference of the dispute for adjudication. It is not a matter of dispute that the Trust Committee is a juristic person, since law attributes personality to the corpus also that is in the some fund or estate devoted to special uses- a charitable fund, for example or a trust estate. Hence claim statement is presented by a juristic person and found to be maintainable."
52. The aforesaid reasoning given by the Ld. Arbitrator in effectually holding that the persons who had filed the arbitration claim in the name of the Pt. Shradha Ram Trust Committee to be the actual trustees is totally illogical, grossly perverse and patently illegal. In paragraph 54 of the award, the Ld. Arbitrator has held that although the Respondent No.1 disputed that the writ petitions were filed in 2003 and 2008 by competent persons, yet no iota of fact had been demonstrated by the Respondent No.1 to substantiate this claim. Thus, the Ld. Arbitrator effectually held that it was for the Respondent No.1 to show that the persons who had filed the writ petitions in 2003 and 2008 on behalf of the trust were not competent, meaning they were not the trustees. However, this was a grave misdirection by the Ld. Arbitrator, since the onus to show the competency was first and foremost upon the 11 persons who had filed the arbitration claim in the name of the trust and who were claiming themselves to be trustees ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 95 of 109 of the trust. It is only when these 11 persons who had filed the arbitration claim had been able to discharge the onus to show their competency as trustees that the onus would have shifted to the Respondent No.1. It is the most elementary principle of law that the party seeking a judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists. (See section 101 of the Indian Evidence Act) Further, the burden of proof lies on the person who would fail if no evidence at all were given on either side. (See section 102 of the Indian Evidence Act) This effectively means that the onus to prove a fact would be on the person asserting the fact and the other party cannot be called upon to prove in the negative. However, rather than requiring the 11 persons who had filed the arbitration claim claiming to be trustees and seeking reliefs as such to show their competency as trustees to file the claim in the name of the trust, the Ld. Arbitrator did the exact opposite by requiring the Respondent No.1 to show in the negative that these persons were not so competent. This misdirection has led to a completely perverse finding by the Ld. Arbitrator effectively holding the persons filing the arbitration claim in the name of the trust to be the trustees, although the Ld. Arbitrator himself observes that there was nothing to show as to how, when or by whom these persons were inducted as trustees.
53. Furthermore, even the observation of the Ld. Arbitrator in paragraph 54 of the award observing that the Respondent ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 96 of 109 No.1 had failed to question the locus of the persons who had filed the writ petitions in the name of the trust to do so is also completely perverse and contrary to the facts. In fact, a perusal of the record shows that Sh. Bharat Bhushan Dhanwantri who was a member and secretary of the disputed Managing Committee i.e. Respondent No.1 had filed reply in the Writ Petition (Civil) No. 2756 of 2008 in which it is categorically stated that the persons who had filed the writ petition calling themselves as trustees were only posing as trustees and that they had no locus standi or right to file the petition in the name of the trust. Hence, the observation of the Ld. Arbitrator that the locus standi of the petitioners in the writ petitions to file the writ petitions was not disputed is factually incorrect. Furthermore, even in the proceedings before the Director of Education, the locus of the persons making objections by claiming to be trustees was disputed. In any case, even otherwise, in the given facts and circumstances of the case, and considering that the dispute was in respect of a public charitable trust, public policy dictates that the persons who had filed the arbitration claim in the name of the trust were required to cogently prove their competency as trustees since they were essentially seeking declarations in their favour in such capacity as trustees.
54. The observations of the Ld. Arbitrator in paragraph 55 of the impugned award are also rather curious. The Ld. Arbitrator has simply observed that it was not in dispute that the "Trust Committee" was a juristic entity and, ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 97 of 109 hence, the statement of claim presented by a juristic entity was found to be maintainable. However, the mere fact that the existence of the trust which was created through the will of the Swami Ji was not in dispute did not mean that there was no dispute that the 11 persons who had filed the claim in the name of the trust claiming to be trustees were actually the trustees. The Respondent No.1 had in the arbitration proceedings clearly disputed that the persons who had filed the arbitration claim were the actual trustees of the trust originally created by the Swami Ji. Hence, these persons were required to prove that they were trustees of the trust through cogent material, which was not done in the present case. The Ld. Arbitrator has however without reference to any material or evidence filed on record held the persons who had filed the arbitration claim to have been competent as trustees simply on the erroneous basis that no dispute in this regard was raised in the writ proceedings. This approach of the Ld. Arbitrator was wholly perverse and vitiates the findings holding the persons who filed the claim in the name of the trust to be the trustees.
55. It is also pertinent that in the award the Ld. Arbitrator has categorically rejected the claim of the Claimant No.2 that the trust was founded by his forefathers. This is very clear from the findings of the Ld. Arbitrator in paragraphs 66 and 67 of the award, which are extracted hereunder:
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 98 of 109 "66. Sh. Kapila boasts that the Trust Committee was founded by his forefather way back at Lahore. One would be inclined to know as to whether Sh. Kapila has any lineage descendancy from Swami Tulsi Dev Ji. Answer is available in the WILL of Swami Ji wherein he declares as follows:
"......But I could not find a person of that nature nor there is any devotee or heir of mine. Therefore, I am constituting Shradha Ram Trust to fulfill the objectives and look after the property for which I propose to appoint the committee styled as Shradha Ram Trust Committee..."
67. As announced by Swami Ji neither his devotee nor heir was there, hence he was constrained to appoint the Trust Committee to follow the mission of Pt. Shradha Ram. Claim made by Sh. D. R. Kapila that the Trust Committee was founded by his forefather is false to his own knowledge."
(Emphasis supplied by me)
56. Although the Ld. Arbitrator observed in paragraph 53 of the award that "Sh. D.R. Kapila claims to be trustee without projecting as to when and by whom he was inducted therein" and in paragraph 67 that "Claim made by Sh. D.R. Kapila that the Trust Committee was founded by his forefather is false to his own knowledge", curiously ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 99 of 109 the Ld. Arbitrator has gone on to hold in paragraph 68 of the award that it was expected from Sh. D.R. Kapila that while being a trustee, he would allow others to be elected or nominated to the Management Committee of the school. The relevant paragraph 68 of the award is extracted hereunder:
"68. The Trust Committee was constituted by Swami Tulsi Dev Ji to follow mission of Pt. Shradha Ram. Swami Tulsi Dev Ji lived a pious life and wished that the trustees of the Trust Committee would be men of character, trustworthy and fully devoted to the general good. When Sh. Kapila came in conflict with law, relating to his affair with the management of the school, his integrity, character and trustworthiness came under cloud. Allegations of corruptions, nepotism and fabrication of the record of the school are levelled against Sh. Kapila, for which he is facing trial before a Court of Law. I am not oblivious of the presumption that he is deemed to be innocent unless held otherwise by the Court of Law. Clean administration, ethical values and social responsibilities are punctillios of etiquettes which a man in public life should adhere to. Purity and honesty in public life is expected of a person who wants to achieve office in public trust, like present one. Hence it is expected from Sh. D. R. Kapila that while being a trustee, he would allow ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 100 of 109 others to be elected or nominated to the Management Committee of the school."
57. Crucially, this was the case of a public charitable trust, and as such, public policy dictated that there be some cogent basis and material for handing over charge of such a public charitable trust to the claimants as trustees. The approach of the Ld. Arbitrator has however, been found wanting in this regard. When the Ld. Arbitrator found no real basis that the persons representing under the name of the Claimant No.1 were actually the trustees, then there was no occasion to hand over the administration of the school to such persons including the Claimant No.2.
58. I may also deal with the argument made on behalf of the Claimant No.1 in the present petition in respect of the copy of minutes of meeting dated 21.07.2008 which was not filed before the Ld. Arbitrator. It is submitted that it was only because of the absence of the filing of the said copy of minutes of meeting dated 21.07.2008 that the Ld. Arbitrator observed in paragraph 52 of the award that there was no explanation as to how some of the trustees were inducted and why the names of some trustees were added in the minutes of meeting. It is submitted that, when the minutes of meeting dated 21.07.2008 are read in conjunction with the minutes of meeting dated 29.05.2008 and 29.07.2008, then this discrepancy would disappear. I have considered this submission as well, but do not find this to be of any assistance to the Claimant No.1. The fact ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 101 of 109 of the matter is that the copy of the said minutes of meeting dated 21.07.2008 was not before the Ld. Arbitrator, and the Ld. Arbitrator categorically observed that it was unclear how the trustees were getting inducted or removed. Nevertheless, the Ld. Arbitrator continued to give a stamp of approval to the persons who had filed the claim as trustees of the Trust. This only shows that the Ld. Arbitrator did not properly consider the material that was before him. The proceedings under section 34 of the Arbitration and Conciliation Act are in the nature of proceedings of judicial review, which are more focussed on the sanctity of the process of adjudication than on the merits of the award. The observations of the Ld. Arbitrator in paragraphs 52 and 53 of the award clearly show that there was nothing before the Ld. Arbitrator to show that the persons claiming to be the trustees were actually the trustees, and the Ld. Arbitrator was himself doubtful about this. When this was the position, then the conclusion in the award holding the persons claiming to the trustees in the trust to be the body of persons who could manage the school was wholly perverse and without any basis. The Claimant No.1 cannot now in the proceedings under Section 34 of the A&C Act seek to supplement the award by way of fresh material which was never before the Ld. Arbitrator. In any case, even if the copy of the said minutes of meeting dated 21.07.2008 were to be considered to explain the gap as to who were the trustees between the minutes of meeting dated 29.05.2008 and 29.07.2008, the same would not explain as to how the trustees as ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 102 of 109 mentioned in the minutes of meeting dated 29.05.2008 themselves came to appointed in terms of the will of Swami Tulsi Dev Ji. It is pertinent that the Claimant No.2 Sh. D.R. Kapila was one of the trustees mentioned in the copy of the minutes of meeting dated 29.05.2008. However, as observed by the Ld. Arbitrator in paragraph 53 of the award: "Sh. D.R. Kapila claims to be trustee without projecting as to when and by whom he was inducted therein".
59. The submission made on behalf the Claimants objecting to the locus of the Respondent No.1 i.e. petitioner herein to file the present petition also deserves to be rejected. The Claimants had themselves arrayed the Respondent No.1 as a party in the arbitration petition u/s. 11 of the A&C Act as well as in the arbitration proceedings, and, resultantly, the arbitral award has been passed. The Claimants cannot now be permitted to turn around and question the locus of the petitioner herein to file the present petition u/s. 34 of the A&C Act.
60. In the result, the findings of the Ld. Arbitrator as contained in paragraphs 53, 54 and 55 of the award effectively holding the persons, who filed the claim in the name of the Claimant No.1, to be the trustees and entitled to nominate the members to the Management Committee of the School are perverse and liable to be set aside. Resultantly, the consequential finding of the Ld. Arbitrator as contained in paragraph 71 of the award declaring that the Claimant ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 103 of 109 No.1 was entitled to handle the administration of the school through its Management Committee is also perverse and liable to be set aside. These findings and consequential directions in the award are accordingly set aside.
61. However, the aforesaid observations and decision would not ipso facto mean that dismissal of the counter-claim filed by the Respondent No.1 calls for interference. The counter-claim of the Respondent No.1 was to stand on its own legs.
62. The Respondent No.1 comprises essentially of the persons who were members of the Management Committee which was alleged to have been constituted at the joint meeting dated 29.12.2002 of the Pt. Shradha Ram Trust Committee and the Akhil Bharatiya Brahman Mahasabha. In its counter-claim, the Respondent No.1 sought declaration to the effect that it was the duly and properly constituted management committee to run the school.
63. I have also carefully perused the award and the arbitral record on the aspect of the counter-claim of the Respondent No.1, and I do not find any reason to interfere with the dismissal of the counter-claim of the Respondent No.1. As per Rule 59 of the relevant Rules, the Management Committee of the school was to comprise of 15 members out of which 7 members were to be nominated or elected in accordance with the rules and ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 104 of 109 regulations of the trust which ran the school. The Ld. Arbitrator has taken note of Rule 59 in the award. The Ld. Arbitrator has correctly opined that under Rule 59 it was only the Trust which could nominate or elect the members to the Management Committee of the school and that the Akhil Bharatiya Brahman Mahasabha had no role to pay in this. Thus, when the Akhil Bharatiya Brahman Mahasabha had no role to play in the nomination of the members to the Management Committee of the school, the Respondent No.1 was clearly not entitled to the declaration of being the valid Management Committee to run the school as was sought in its counter claim and, resultantly, the counter claim was correctly dismissed.
64. Moreover, just as the Claimants were unable to show as to when, by whom, how and in what manner they were appointed as trustees of the Trust, even the Respondent No.1 did not show as to who were the trustees in the trust who had nominated the members of the Respondent No.1 and as to how such persons came to become the trustees. Although the Respondent no.1 claimed that it was nominated through a joint meeting of the Trust and the Akhil Bharatiya Brahman Mahasabha, there is no mention as to who were the trustees of the Trust who had authorised such a joint meeting or who had participated in the nomination of the members of the Respondent No.1. The Respondent No.1 did not even call any trustees in the Trust as witnesses to show as to who were the actual trustees. The Respondent No.1 did not also mention as to ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 105 of 109 who were actually the current trustees who were supporting the Respondent No.1. Thus, there is a big question mark over the constitution of the Respondent No.1 also.
65. Hence, the part of the award of the Ld. Arbitrator in so far as the counter-claim of the Respondent No.1 seeking declaration that it was the valid Management Committee was dismissed does not call for any interference. The natural corollary to this is also that the part of the award setting aside the orders dated 14.01.2003 and 29.02.2008 of the Respondent No.2 also does not call for any interference. This part of the award is clearly severable from the other part of the award which has been set aside.
SUMMARY OF DECISION
66. To summarise, the decision is as follows:
66.1. The part of the award containing findings of the Ld. Arbitrator, such as paragraphs 53, 54 and 55, effectively holding the persons including the Claimant No.2 Sh. D.R. Kapila, who filed the claim in the name of the Claimant No.1, to be the trustees and entitled to nominate the members to the Management Committee of the School and consequential directions are set aside. The reference to Claimant No.2 Sh. D.R. Kapila as trustee in the trust and directions to Sh. D.R. Kapila in the capacity as trustee as contained in part of the award ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 106 of 109 are also set aside. The part of the award, in paragraph 71, declaring that the Claimant No.1 was entitled to handle the administration of the school through its Management Committee and consequential directions are also set aside.
66.2. The part of the award in so far as the counter-claim of the Respondent No.1 seeking declaration that it was the valid Management Committee was dismissed is not interfered with.
66.3. The part of the award setting aside the orders dated 14.01.2003 and 29.02.2008 of the Respondent No.2 is also not interfered with.
THE WAY FORWARD FOR ADMINISTRATION OF THE TRUST AND THE SCHOOL
67. During the course of the arbitration proceedings it was the Director of Education which was taking care of the management of the school. This position has continued even during the pendency of the present petition.
68. The school has to eventually be run by the Trust. However, the position today seems that there are vying groups claiming control of the school. On the one hand, the persons who filed the statement of claim in the name of the trust, including Sh. D.R. Kapila, failed to show that they were the trustees. On the other hand, the Management Committee which was alleged to have been constituted ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 107 of 109 jointly with the Akhil Bharatiya Brahman Mahasabha has been found to be invalid. Furthermore, just as the Claimants in the arbitration could not show that they were the trustees, even the Respondent No.1 could not show as to who were the real and actual trustees of the trust. Thus, the resultant position is that the administration of the trust as well as of the school run by the trust is in a limbo and is suffering. This scheme of affairs ought not to continue, since the trust was created for a public purpose.
69. The trust was created for public purposes of a charitable and religious nature and as such, prima facie, this would be a case for invoking the jurisdiction of the appropriate Civil Court for effective and proper administration of the trust and its properties including the school, under Section 92 read with Section 93 of the Code of Civil Procedure, 1908. In these circumstances, it is directed that the Respondent No.3 herein i.e. Director of Education/Department of Education, which is a Department of the Government of NCT of Delhi, shall within 10 days communicate a copy of the present order to the concerned department/office/authority of the State for information and necessary action for the effective and proper administration of the trust and its properties including the school as per law.
70. The petition under Section 34 of the A&C Act is disposed of in the aforesaid terms. Parties to bear own costs.
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 108 of 109
71. File be consigned to record room after due compliance.
Digitally signed
Satyabrata by Satyabrata
Panda
Panda Date: 2024.12.20
17:34:31 +0530
(SATYABRATA PANDA)
District Judge-04
Judge Code- DL01057
PHC/New Delhi/20.12.2024
ARBTN No.879/18 SRSD Senior Secondary School Vs. Pt. Shradha Ram Trust Committee Page No. 109 of 109