Orissa High Court
Subhadra Girls High School Itipur ... vs State Of Odisha And Others on 9 May, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) NO. 3738 OF 2013
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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AFR
Subhadra Girls' High School, ......... Petitioner
Itipur represented by the M.C.
through its Secretary
Samiranjan Das.
-Versus-
State of Odisha and others ......... .Opp. Parties
For petitioner : M/s. Susanta Kumar Dash,
A.K. Otta, A. Dhalasamanta,
B.P. Dhal and P. Jali,
Advocates.
For opp. parties : Mr. A.K. Mohanty,
Standing Counsel (S&ME)
(O.Ps. no.1 to 3)
Mr. B. Senapati,
Addl. Govt. Advocate.
(O.Ps. no.4 and 5)
M/s. Chandrakanta Nayak,
S. Samal and R. Samal,
Advocates.
(O.P. no.6).
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PRESENT
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Date of hearing : 02.05.2017 : Date of judgment: 09.05.2017
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DR. B.R. SARANGI, J. Subhadra Girls' High School, Itipur in the
district of Kendrapara was established by the educational agency
pursuant to resolution of general body meeting held on 11.06.1989 in
the premises of Itipur Grama Panchayat Samiti M.E. School.
Bhabagrahi Das-opposite party no.6 was chosen as the secretary of
the managing committee constituted in the said meeting, but he
tendered his resignation on 31.05.1994, which was accepted in the
general body meeting attended by him on 08.06.1994. In his place,
Samiranjan Das, through whom this writ petition has been filed, was
appointed as secretary of the managing committee pursuant to
resolution of the general body dated 08.06.1994 in Annexure-2.
During the course of discharging the duty and responsibility assigned
to him, the petitioner-secretary took steps for obtaining permission
for establishment of the school, which was allowed by the Minister of
School and Mass Education, Odisha, Bhubaneswar in exercise of
power under Sub-section (8) of Section 5 of the Orissa Education
(Establishment, Recognition and Management of Private High
Schools) Rules, 1991 (hereinafter referred to as "Rules, 1991") on
04.01.2000in Appeal No.135 of 1998. Temporary recognition having been granted from time to time, students admitted school were appearing in High School Examination conducted by the Board of Secondary Education, Odisha, Cuttack.
2. The managing committee found that Pankaj Kumar Behura, Headmaster of Subhadra Girls' High School, Itipur was 3 indulged in subversive activities and, accordingly, through a resolution dated 03.09.2011, relieved him from the charge of Headmaster and entrusted the said duty to another teacher, namely, Braja Kishore Nayak. Pankaj Kumar Behura, the then Headmaster of the school, removed some of the documents and, with the help of previous secretary-opposite party no.6, started to create disturbances in the institution and in the process called a general body meeting on 01.11.2011 with a few henchmen in the premises of Hanumanjew temple at Itipur for reconstitution of the managing committee. While convening such meeting, opposite party no.6 described himself as an ex-secretary of the managing committee of Subhadra Girls' High School, Itipur. Though such meeting was actually not held, opposite party no.6 submitted an application for approval of a fictitious managing committee through opposite party no.3-District Education Officer, Kendrapara. The petitioner-secretary, having come to know the said fact, filed a representation before opposite party no.2-Director, Secondary Education on 07.05.2012 that an attempt was being made by a fictitious body to obtain approval of the authorities as the managing committee of the school. Pending the application of opposite party no.6 seeking approval of the managing committee, opposite party no.2 vide letter dated 12.06.2012 called upon opposite party no.3 to personally enquire into the allegations made in the said representation and furnish the 4 proposal indicating as to which managing committee is lawfully functioning.
3. When the matter stood thus, on 23.09.2011, the petitioner-secretary applied for registration of the managing committee under the Societies Registration Act, 1860 before opposite party no.4-Collector, Kendrapara, whereas opposite party no.6 by a latter application sought for registration of another body as the managing committee of the very same high school. Consequent upon the rival claim, the District Office called for reports from the District Education Officer (DEO) and the Block Development Officer (BDO), who accordingly submitted reports on 28.09.2012 by enclosing relevant documents. Opposite party no.5-B.D.O. Kendrapara, who had earlier submitted report on 08.11.2011 in favour of the actual managing committee, wrote a letter on 31.07.2012 to opposite party no.4 and requested for registration of managing committee formed on 01.11.2011, i.e., the fictitious body in which opposite party no.6 was the secretary. In furtherance of the said letter of the BDO, opposite party no.6 approached this Court by filing W.P.(C) No.21049 of 2012 and this Court vide order dated 12.12.2012 disposed of the said writ petition directing the Collector, Kendrapara to take a decision on the recommendation made by the BDO, Kendrapara within a period of three weeks from the date of receipt of the said order. Thereafter, the Collector, Kendrapara took a decision on the recommendation made by the BDO, Kendrapara and directed for 5 registration of the fictitious managing committee without giving any importance to the reports dated 28.09.2012 and 08.11.2011 of the District Education Officer and BDO, Kendrapara respectively. Being aggrieved by the issuance of certificate of registration in favour of opposite party no.6, this application has been filed by the Managing Committee of which Samiranjan Das is the secretary.
4. Mr. S.K. Dash, learned counsel for the petitioner states that opposite party no.6 had not approached this Court with a clean hand, while filing W.P.(C) No.21049 of 2012 seeking for direction to opposite party no.4, the Collector, Kendrapara, for grant of certificate of registration of the managing committee on the basis of the letter dated 31.07.2012 of the BDO. As such, by suppression of material fact, opposite party no.6 had fraudulently and clandestinely obtained direction from this Court and achieved his ulterior motive of getting the fictitious managing committee registered. Therefore, the petitioner in the instant writ petition seeks for quashing of the registration certificate issued to the fictitious managing committee and further seeks for direction for issuance of certificate of registration in favour of the managing committee, for which application has been duly made on 23.09.2011.
5. Mr. B. Senapati, learned Addl. Govt. Advocate appearing for opposite party no.5 referring to counter affidavit states that the BDO is not competent authority to determine the genuineness of rival claims of two different bodies as the managing committee of 6 Subhadra Girls' High School. It is stated that in compliance of the instruction contained in the District Office letter dated 07.12.2011, the office of opposite party no.5 caused inquiry and basing upon the report submitted by the S.I. of Schools vide letter dated 02.07.2012, apprised the District Office on 31.07.2012 that the managing committee of the said high school formed on 01.11.2011 is genuine and further requested for registration of the managing committee as per rules. However, it was subsequently revealed on the basis of further inquiry by the BDO that the report of S.I. of Schools was not correct and the managing committee formed on 01.11.2011 was not genuine. Thereafter, the office of opposite party no.5 vide letter dated 07.08.2012 intimated the Dy. Collector (Gen. & Misc. Section of the Collectorate), Kendrapara that the report earlier submitted by the office of opposite party no.5 dated 08.11.2011 was correct. Therefore, relying upon the report submitted on 31.07.2012, the certificate of registration granted in favour of opposite party no.6 should not be acted upon.
6. Mr. A.K. Mohanty, learned Standing Counsel for the School and Mass Education Department states that the BDO-opposite party no.5 was not competent to submit report with regard to managing committee of the school in question and on that basis no certificate of registration could have been granted to such institution. It is contended that after the initial permission and recognition was granted by the competent authority, the public decided to get the 7 body formally registered under the Societies Registration Act, 1860, which is pre-requisite for managing committee approval. He also tried to justify the action of the Collector, who has directed to issue the certificate of registration in favour of opposite party no.6.
7. Mr. Chandrakanta Nayak, learned counsel for opposite party no.6 strenuously urged that the letter issued by the BDO on 31.07.2012 was on the basis of the report of the S.I. of Schools, who caused an inquiry into the genuineness of formation of actual managing committee and submitted the report on 02.07.2012, which has not been challenged by the petitioner. The basis on which the managing committee has been registered, having not been challenged, the relief sought to quash the certificate issued consequentially cannot sustain in the eye of law. It is contended that the letter dated 31.07.2012 of the BDO addressed to the Collector, Kendrapara, having not been sought to be quashed, consequentially the relief sought to quash the registration certificate granted in favour of opposite party no.6, cannot sustain in the eye of law. Therefore, the writ petition is liable to be dismissed.
8. Heard Mr. S.K. Das, learned counsel for the petitioner; Mr. B. Senapati, learned Addl. Govt. Advocate; Mr. A.K. Mohanty, learned Standing Counsel for the School and Mass Education Department and Mr. Chandrakanta Nayak, learned counsel for opposite party no.6. Pleadings between the parties having been 8 exchanged, with the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission.
9. On the basis of factual matrix delineated above, it is to be considered whether the registration certificate granted by the opposite party no.4 is justified or not. The undisputed fact being that initially the educational agency passed resolution in its general body meeting held on 11.06.1989, wherein opposite party no.6 was chosen as the secretary of the managing committee, but subsequently he submitted his resignation on 31.05.1994 which was accepted by the general body meeting attended by him on 08.06.1994. Thereafter, the petitioner-secretary, who was appointed by the managing committee through the very same resolution dated 08.06.1994, took steps for obtaining permission for establishment of the school which was ultimately allowed by the Minister of School and Mass Education vide order dated 04.01.2000 in Appeal No.135 of 1998. Thereafter, the petitioner applied for registration of managing committee under the Societies Registration Act, 1860 before the Collector on 23.09.2011, but subsequently opposite party no.6 submitted an application seeking similar registration of the managing committee of the institution. When the petitioner's application was pending, consequent upon rival claim, the District Office called for a report from the District Education Officer and BDO, who accordingly submitted reports on 28.09.2012 and 08.11.2011 respectively stating that there was no other managing committee, save and except, the 9 one of which Samiranjan Das was the secretary and under whose guidance the institution was running. Subsequently, on the basis of the report furnished by the S.I. of Schools, the very same BDO submitted a report on 31.07.2012, wherein it has been stated that the managing committee constituted by opposite party no.6 is continuing basing upon which the certificate of registration was granted vide Annexure-10. Challenging the same, the petitioner- secretary has approached this Court by filing this application and this Court vide order dated 22.03.2013 passed interim order to the extent that the parties are directed to maintain status quo so far as the management of the institution in question is concerned, till the next date.
10. A counter affidavit has been filed by the opposite party no.5-BDO, Kendrapara wherein it has been specifically stated that in response to the instructions contained in District Office letter dated 07.12.2011, the BDO caused an inquiry and basing on the report submitted by the S.I. of Schools dated 02.07.2012, apprised the District Office on 31.07.2012 that the managing committee of the the high school in question formed on 01.11.2011 was genuine. Therefore, requested for registration of said managing committee. But, subsequently, it revealed on the basis of further inquiry made by the BDO that the report of the S.I. of Schools was not correct and the managing committee formed on 01.11.2011 was not genuine. Accordingly, on 07.08.2012, the office of the BDO intimated the Dy. 10 Collector (Gen. and Misc. Section of the Collectorate), Kendrapara that the report earlier submitted on 31.07.2012 by the office of the BDO was not correct, rather the report submitted on 08.11.2011 was correct one. The communication made on 07.08.2012 is also annexed as Annexure-B/5 to the counter affidavit.
11. In view of the candid admission to the extent indicated above made by the BDO in paragraph-7 of his counter affidavit, there is no justifiable reason to grant certificate of registration in favour of opposite party no.6 managing committee. In addition to that, opposite party no.6 had not approached this Court with a clean hand, meaning thereby, opposite party no.6 had approached this Court by suppressing the material fact that he had earlier filed an application for grant of certificate of registration on the basis of the reports of the BDO dated 08.11.2011 and the DEO dated 28.09.2012. Rather he has relied upon the letter dated 31.07.2012 of the BDO and sought for direction with an innocuous prayer that the Collector, Kendrapara should take a decision on the basis of the letter dated 31.07.2012 with regard to grant of certificate of registration in its favour.
12. No doubt, writ petitions are decided on the basis of statements on affidavit. If the petition contains misleading, inaccurate statements or there are suppression of material facts, the Court will not entertain the petition.
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13. In R. v. Kensington, Income Tax Commissioner, (1917) 1 KB 486 at page 506, it was held that "the prerogative writ is not a matter of course; the applicant must come in the manner prescribed and must be perfectly frank and open with the Court."
14. In State of Haryana v. Karnal Distillery, AIR 1977 SC 781, the apex Court refused to grant relief on the ground that the applicant has misled the Court.
15. In Chancellor v. Bijayananda Kar, AIR 1994 SC 579, the apex Court held that a writ petition is liable to be dismissed on the ground that the petitioner did not approach the Court with clean hands.
16. In view of the law discussed above, since opposite party no.6 had not approached this Court by disclosing proper facts in his writ petition bearing W.P.(C) No.21049 of 2012 and sought for innocuous relief and on that basis writ petition was disposed of and the Collector, Kendrapara had acted upon the direction so given in the said writ petition, such action taken by the Collector is bad in law and is liable to be set aside.
17. The educational agency by resolution of the general body meeting held on 11.06.1989 chosen opposite party no.6 as secretary of the managing committee, who subsequently submitted resignation on 31.05.1994, which was also accepted in the general body meeting on 08.06.1994. Consequence thereof, a new managing committee 12 was constituted wherein Samiranjan Das through whom this writ petition has been filed, was allowed to continue as the secretary of the said committee. Therefore, the subsequent step taken by opposite party no.6 with regard to constitution or reconstitution of the managing committee is absolutely without any locus standi and any action taken by such fictitious person is misconceived one.
18. Similar question had come up for consideration before this Court in Mahanta Ramakrushna Dash and another v. State of Orissa and others, AIR 2011 ORISSA 106, wherein this Court referring to Section 7 of Orissa Education Act read with Rules 21 and 23 of the Orissa Education (Establishment, Recognition and Management of the Private Colleges) Rules, 1991 specifically held that after the first governing body constituted by the educational agency spent its force, no resolution was passed in the meeting of the governing body nominating its successors as per the Rule 23(i) for which in accordance with the second proviso to the said Rule 23(i), the Sub-Collector was directed that the governing body of +2 wing of which he was the President shall be in-charge to manage the affairs of +3 wing of the said college until further orders. Subsequently, the governing body was reconstituted as per the said proviso in the year 2003 and as per the proposal of the said governing body, again the governing body was reconstituted in the year 2006. The petitioners therein had never objected to such reconstitution of the governing body from the year 2003. Thus, the 13 scheme of the Rules shows that after the first constitution of the governing body by the educational agency, there was no further right for the said educational agency with regard to participating in any meeting for giving a proposal for reconstitution of the governing body.
19. Applying the above analogy to the present case, once opposite party no.6 had submitted his resignation and the same was accepted by resolution dated 08.06.1994 and the managing committee having appointed through whom this writ petition has been filed, Samiranjan Das as secretary of such managing committee pursuant to very same resolution, and he having taken steps for getting permission for establishment of school and other consequential action, any subsequent managing committee at the behest of opposite party no.6 could not have filed an application for grant of certificate of registration and, as such, any action taken on his behalf cannot sustain in the eye of law. Further, the contention raised that the petitioner having not been challenged the report dated 31.07.2012, basing upon which the certificate was granted, the writ petition is not maintainable, is absolutely misnomer, in view of the fact that in the counter affidavit filed by the opposite party no.5-BDO it has been candidly and solemnly admitted that on the basis of the report furnished by the S.I. of Schools, such report was furnished and, as such, the managing committee formed on 01.11.2011 was not genuine one. Therefore, on 7.8.2012 intimation was issued to the 14 Dy. Collector (Gen. and Misc. Section of the Collectorate), Kendrapara that the earlier report submitted on 08.11.2011 was correct one, wherein the managing committee of which Samiranjan Das is the secretary, has been described as genuine one.
20. In view of the aforesaid facts and circumstances, this Court is of the considered view that the registration of certificate issued on 31.01.2013 in Annexure-10 on the basis of the report dated 31.07.2012 cannot sustain in the eye of law and deserves to be quashed. Accordingly, the certificate of registration issued on 31.01.2013 in Annexure-10 is hereby quashed. Opposite party no.4- Collector, Kendrapara is directed to issue a fresh certificate of registration taking into consideration the report of District Education Officer, Kendrapara dated 28.09.2012 and report of the BDO, Kendrapara dated 08.11.2011 and further inquiry report submitted by the very same officer on 07.08.2012 in Annexure-B/5. The entire exercise shall be done by opposite party no.4-Collector, Kendrapara as expeditiously as possible, preferably within a period of two months from the date of communication of this judgment and order.
21. The writ petition is accordingly allowed. No order to cost.
Sd/-
(DR. B.R. SARANGI ) JUDGE The High Court of Orissa, Cuttack The 9th May, 2017/Ashok/GDS True copy Sr. Secretary