Rajasthan High Court - Jaipur
Kanti Kumar Kanoria And Anr vs State Of Raj & Ors on 22 December, 2010
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan
Jaipur Bench
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1-Civil Writ Petition No.8287/2010
Management Committee Kanoria PG Mahila
Mahavidhyalaya Versus State & Ors.
2-Civil Writ Petition No.8886/2010
Kanti Kr Kanoria & Anr Versus State & Ors.
3-Civil Writ Petition No.9902/2010
Nand Lal Garg Versus State & Ors.
Date of Order ::: 22/12/2010
Hon'ble Mr. Justice Ajay Rastogi
Mr. RN Mathur &
Mr. Akhil Simlote for petitioners
Mr. PK Sharma, }
Mr. Vimal Choudhary} for respondents
Mr. PP Mathur } Mr. Anant Bhandari, Dy. Govt. Counsel for respondent State.
Matter has come up on application seeking vacation of interim orders dt. 28/06/2010 in CWP-8287/2010, dt.25/08/2010 in CWP-8886/2010 & dt.26/07/2010 in CWP-9902/10. However, at joint request, matter involving common questions has been finally heard for disposal.
Managing Committee of Kanoria Post Graduate Girls College (Kanoria Girls College) has preferred instant petition assailing electoral college notified by Nodal Officer appointed by State Government as Election Officer and public notice dt. 03/06/2010 issued for holding election of members of Managing Committee of Educational Institution. Three of the Trustees of Kanoria Charitable Trust, Kolkata whose names find place in list of Electoral College sent by Kanoria Charitable Trust have later on preferred writ petitions seeking declaration that Kanoria Charitable Trust (Kanoria Charitable Trust) is running Kanoria Girls College and the elections having been held by Election Officer of Managing Committee of Kanoria Girls College be declared null and void; and with a further direction to re-conduct elections afresh in accordance with law.
It has come on record that in a list of Electoral College from Kanoria Charitable Trust Kolkatta, Shri Inder Durlabhji (at S.No.27) has filed civil suit before the Court of Additional Civil Judge Jaipur City alongwith application seeking temporary injunction assailing elections of Managing Committee of Kanoria Girls College impleading State Government & Election Officer as party defendants, which is pending adjudication.
Kanoria Girls College is a body registered under Rajasthan Public Trusts Act, 1959 and is receiving 90% grant-in-aid from State Government and being a recognised educational institution, is under obligation to comply with provisions of Rajasthan Non-Government Educational Institutions Act, 1989 (Act, 1989) & Rules, 1993 framed thereunder.
Under the Scheme of Act, 1989, every educational society or trust or body of persons interested to establish or maintain recognized non-Government educational institution as defined in S.2(h) of the Act, 1989 has to constitute its management/managing committee for running recognized non-Government educational institution and as per S.2(o) of the Act, 1989, management or managing committee in relation to any institution which means a committee of management constituted U/s 9 and include the Secretary or any other person, by whatever name designated, is vested with the authority to manage and conduct the affairs of the institution.
Under Section 2(q), a recognized institution means a non-Government educational institution which is affiliated to any University or recognized by the Board, Director of Education or any officer authorized by State Government or the Director of Education and in terms of S.3, institutions shall not be recognized as Non-Government Educational Institutions unless it has been registered under Rajasthan Societies Registration Act, 1958 or it is being run by a public trust registered under Rajasthan Public Trusts Act, 1959 or by a trust created in accordance with the provisions of Indian Trust Act, 1882.
Such recognized institutions have to constitute its managing committee in terms of S.9 and the procedure for constitution of Managing Committee has been provided U/r 23 of Rajasthan Non-Govt. Educational Institutions (Recognition Grant-in-aid & Service conditions etc.) Rules, 1993 (Rules, 1993) and the Managing Committee of recognized Institution has to hold election after every three years and constitute a new managing committee of a recognized institution to run its day to day administration in fulfillment of the object of the Act, 1989.
In regard to the constitution of managing committee, it shall consist of not less than 15 & not more than 21 members including the Head or Heads of the institution or institutions run by the society and that apart, their elected or nominated members, and it has been provided that the Managing Committee has to adopt the procedure for conducting the elections as provided U/r 23(3) of Rules, 1993.
From the Scheme of Act, 1989 and Rules framed thereunder, there appears to be no role of State Government as regards holding of elections of Managing Committee of a recognized non-Govt. educational institution. But it appears from the record that public interest litigation (CWP-5544/2003) came to the filed by Olive E.Malaki before this Court and the dispute arose that such institutions run by Trusts and not by the Society, there is no such provision specifically provided U/s 9 of the Act, 1989 or R.23 of Rules, 1993 in regard to holding elections of their managing committee with an interval of three years as provided U/r 23(1)(h) of Rules, 1993 and this Court while disposing of CWP (PIL)-5544/2003 vide judgment dt.06/04/2005 finally observed that such educational institutions run by Trusts will prepare their electoral college after following the procedure laid down under the Rules for holding elections of managing committee and observed ad infra:
... In the case of the institution which are run by the Trust, it is for the trustees to prepare the electoral college and after preparing the electoral college, they have to conduct the election after every three years and constitute new managing committee as per provisions of rule 1(h) of rule 23 and after preparation of the electoral college, the election officer can be nominated by the Director or any other competent person to hold the election of managing committee.
Against judgment dt.06/04/2005 in CWP(PIL)-5544/2003 special leave petition (Civil) No.15472/2005 was filed and decided by Apex Court on 18/08/2006 directing, the petitioner shall place before the High Court the composition of the Electoral College as per directions of the High Court.
It appears from the record that in terms of directions of the Court, since elections were to be held regarding constitution of Managing committee of Kanoria Girls College, names of Electoral College were sent by Kanoria Charitable Trust claiming to be a Trust running recognized institution (Kanoria Girls College). After the objections were raised, it has also filed misc. application No.13/2010 in CWP (PIL) No. 5544/2003 before the Court that their list may be taken on record; however the Court vide order dt.22/03/2010 disposed of the application No.13/2010 observing ad infra:
The learned Counsel for the parties agree that the voter list has already been prepared. The election Officer may hear the objections on the voter list and hold the election in accordance with the provisions of law.
With these observations the application stands disposed of. The aforesaid exercise may be undertaken within a period of three months.
Since the Court directed the State Government to hold elections of managing committee of Kanoria Girls College, the Government vide its order dt.22/04/2010 appointed Joint Director as Nodal Election Officer to hold elections and pursuant thereto, list of Electoral College was invited by Election Officer vide letter dt.29/04/2010, which was submitted by Kanoria Chairtable Trust, Kolkata and also by Principal of Kanora Girls College on 10/05/2010 and thereafter, Election Officer called for objections vide notice dt. 21/05/2010 and taking note of their objections, list of electoral college was published by Election officer on 02/06/2010 (Ann.5) and notice was issued on 03/06/2010 laying down Schedule for holding election.
It is relevant to observe that pursuant to the election notice published on 03/06/2010, nominations were to be submitted from 21/06/2010 to 23/06/2010 and withdrawal was permitted on or before 25/06/2010 and the elections are to be held on 07/07/10, if need.
But it appears from the record that after withdrawal of nominations on 25/06/2010, finally there remained only 14 contestants and no voting was required to be conducted as per election programme on 07/07/2010. Since it was not required and there was complete unanimity, list of elected members (Ann.R1/3-CWP-8886/10) was published on 25/06/2010 constituting managing committee.
Thereafter two writ petitions were filed by Kanti Kumar Kanoria & Satya Narain Agarwal jointly and another by Nandlal Garg; inasmuch as at the same time, a civil suit was also filed by Inder Durlabhji and all the four are named in electoral college furnished by Kanoria Chairtable Trust, Kolkata.
It is relevant to observe that that one Manju Rajgaria who has sworn affidavit filed as Secretary of Managing Committee of Kanoria Girls College is also one of the members of elected Managing Committee, as is evident from list of elected members published on 25/06/2010.
Kanoria Chairtable Trust is a trust registered at Kolkatta, as alleged but not under Rajasthan Public Trust Act, 1959; at the same time, the present Educational Institution has been registered under the Rajasthan Public Trust Act in the name of Kanoria Girls College Jaipur. However, it has come on record that the dispute in regard to correction in certificate of registration of the Kanoria Girls College is pending before Assistant Commissioner Devasthan but no such correction has been made so far; as such it is presently registered under Rajasthan Public Trust Act as Kanoria Mahila Mahavidhyalya.
Counsel for petitioners submits that the trust having been registered as public trust in the name of Kanoria Mahila Mahavidhyalya, error has crept in certificate of registration and it is Kanoria Charitable Trust Kolkatta running educational institution (Kanoria Girls College) and as per directions of the Court, Electoral College was to be submitted by the Trust and the election officer was under obligation to carry out election of managing committee in terms of Electoral college sent by Kanoria Charitable Trust and thus the very process initiated by Election Officer in holding elections of managing committee of Kanoria Girls College is in clear contravention of directions of the Court; inasmuch as a process initiated in finalizing list of electoral college by election officer and holding election pursuant thereto for constitution of Managing committee is in violation of R.23 of Rules, 1993.
Counsel further contends that act of the Principal of Kanoria College in submitting list of electoral college was wholly without jurisdiction and the election officer has failed to decide objections of the petitioner-Trust and raised by Secretary of the Trust and without deciding those objections, list of Electoral college was published and pasted on the notice board of Kanoria Girls College by Election Officer which was in clear defiance of procedure provided under the Act, 1989 & Rules, 1993 framed thereunder.
It has also been contended that as per notice of holding elections published by Election Officer on 03/06/2010, nominations were to be submitted in between 21st & 23rd June, 2010 and withdrawal was permitted by 25/06/2010 and the election was to be held on 07/07/2010 but the elections were not held in terms of public notice dt.03/06/2010 and list of elected members was notified on 25/06/2010 which clearly shows that action of respondent-3 in holding election of managing committee of Kanoria Girls College was wholly arbitrary and in clear contravention of directions of the Court.
Counsel has further tried to persuade that election having been held in constituting managing committee of institution (Kanoria College) by election officer is totally biased and whole process for holding election deserves to be set aside.
Reply to the writ petitions has been filed by State Government and also by the added respondents. As regards State Government it has been averred that process of holding election was initiated in terms of directions of the Court and after submitting list of Electoral College from respective persons, its Secretary and principal of institution (Kanroia College), it was finalised after taking note of all objections filed and only thereafter election programme was published on 03/06/2010 and nominations were to be withdrawn by 25/06/2010 and since 14 members were to be elected and only 14 remained as contestants after withdrawal on 25/06/2010 and when there was a complete unanimity and no election was required to be held as it was duly notified in election notice in an unequivocal terms that the election would be held on 07/07/2010 if needed, and in view thereof, since election was not required to be held after withdrawal being made on 25/06/2010; as such list of elected members was declared by election officer in 2nd half of 25/06/2010.
Further objections have been raised by other contesting respondents regarding legal status of Kanoria Charitable Trust and it has been urged that the Trust has been registered under Rajasthan Public Trust Act in the name of Kandoria Mahila Mahavidhyalaya and not in the name & style of Kanoria Charitable Trust as claimed and the dispute in regard to correction in certificate of registration is pending adjudication before Assistant Commissioner Devasthan.
Counsel for contesting respondent further urged that very list of electoral College furnished by Kanoria Charitable Trust was wholly unwarranted; and list of Electoral College submitted by the petitioner Trust cannot be said to be in conformity with judgment of the Court and has further supported the procedure having been adopted by election officer in holding election process and in finalizing the list declared of elected members of managing committee on 25/06/2010 is in conformity of R.23 of the Rules, 1993.
Counsel for respondents further urged that the election of managing committee has rightly been held on 25/06/2010 and if at all petitioner feels aggrieved either of election process or of finalization of the Electoral College or the list of elected members of the committee declared on 25/06/2010, it could have been assailed either by election petition or civil suit; however, one of persons of Electoral college (Inder Durlabhji) whose name finds place in the list of electoral college furnished by Kanoria Charitable Trust has instituted a civil suit assailing election process and finalization of list of elected members of the managing committee notified by election officer alongwith application seeking temporary injunction which is pending adjudication and there being a disputed questions of fact, the same could not be examined by this Court in a limited scope of judicial review in instant petitions which are not maintainable.
Per contra, Counsel for petitioner submits that that there are no disputed questions of fact raised herein and only question requires to be examined is as to whether list of electoral college submitted by the Principal of Kanoria Girls College is at all in accordance with directions of the Court and once list was submitted by Kanoria Charitable Trust, election officer was under obligation to hold election pursuant thereto and in such circumstances very process initiated by election officer and finalization of list of members being elected of the managing committee is wholly unwarranted and deserves to be set aside.
In fact, there is no role of State Government in holding elections of the Managing Committee of a recognized institution under Act, 1989 and Rules, 1993 framed thereunder. Since present institution (Kanoria Girls College) is run by the Trust and the Scheme of the Act, 1989 is not clear in regard to holding of elections of Managing Committee of educational institution run by a Trust while disposing of PIL, this Court directed to hold elections, under the supervision of the State Government which appears to be for the purpose of holding fair & impartial election. However, the State Govt. has otherwise got no role as regards election of managing committee of recognized educational institution.
It is also a fact having come on record that after list of Electoral College was being declared by election Officer, election programme was published on 03/06/2010 and after nomination papers were finalised upon last date for withdrawal whereof on 25/06/2010, list of elected members having remained uncontested was published on that very day. Rest of the process is for the members of Managing committee to nominate its chairman, secretary & other office bearers.
However, it has come on record that some decisions besides resolution were taken by elected members of managing committee in its meeting held on 26/06/2010. Admittedly in the facts of present case (supra), election process has been finalized after declaring the list of elected member and the grievance having been raised by present petitioners to annul the election process, itself initiated by election officer after finalization of list of Electoral college and the election of members being duly notified on 25/06/2010, in the opinion of this Court, relates to election dispute involving disputed questions of fact, which could be examined either in a civil suit or by election petition provided under law; and such disputed questions of fact cannot be examined by this Court in its limited scope of judicial review U/Art.226 of the Constitution. Moreso, when civil suit instituted by one of members (Inder Durlabhji) whose name finds place in list of Electoral college furnished by Kanoria Charitable Trust assailing process of election impugned herein & seeking temporary injunction is pending adjudication before the learned civil court.
For the reasons stated (supra), writ petitions being not maintainable are hereby dismissed. However, petitioners are at liberty to avail of remedy under the law. No costs.
(Ajay Rastogi), J.
K.Khatri/p15/ 8287CW2010Rsr22Dec(3).doc