Allahabad High Court
Committee Of Management, S.D.P.G. ... vs V.B.S. Purvanchal University And Ors. on 13 December, 2002
Equivalent citations: 2003(1)AWC462, (2003)1UPLBEC462
Author: Ashok Bhushan
Bench: G.P. Mathur, Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. We have heard Sri Ashok Khare, senior advocate assisted by Sri J.P. Singh for the appellant, Dr. R.G. Padia, senior advocate assisted by Sri R. N. Yadav for respondent Nos. 3 and 4 and Sri Anil Tiwari for respondent Nos. 1 and 2.
2. By this special appeal, appellant has prayed for quashing the judgment dated 27th November, 2002 passed by learned single Judge in Writ Petition No. 45067 of 2002 filed by respondent Nos. 3 and 4.
3. Brief facts giving rise to this special appeal are ; Sri Durgaji Post Graduate College, Chandeshwar, Azamgarh is a college affiliated to Veer Bahadur Singh Purvanchal University, Jaunpur. Late Sri Chandrabali Shastri Brahmchari executed a registered trust deed on 5th December, 1962, creating a Trust to run and manage Durgaji Post Graduate College. A Society was also registered on 30th September, 1964 under Societies Registration Act, 1860. On 16th September, 1997, trust deed was amended and a Will deed in favour of one Sri Phool Chandra Singh was executed by Sri Chandrabali Shastri Brahmchari. Sri Phool Chandra Singh was to be Manager of the Trust and institution. On 12th October, 1999, an election of the Committee of Management was held in which Dr. Dhirendra Singh was elected as President, late Sri Chandrabali Shastri Brahmchari as Manager and Sri Kanhaiya Singh as Deputy Manager. The election dated 12.10.1999 was communicated to the University and was recognised by the University. Before the term could expire, Sri Chandrabali Shastri Brahmchari died on 27.9.2000. The Committee of Management passed a resolution on 29.9.2000 electing Sri Kanhaiya Singh (who was functioning as Deputy Manager) as Manager for the remaining term of the committee. The Vice Chancellor vide its letter dated 13.10.2000 approved the resolution dated 29.9.2000. A writ petition being Writ Petition No. 53162 of 2000 was filed by respondent Nos. 3 and 4 praying for writ of certiorari for quashing of the order dated 30.10.2000. A writ of mandamus was also claimed for restraining the Committee of Management through Kanhaiya Singh from interfering in any manner with the peaceful functioning of the Committee of Management claimed to be represented by respondent Nos. 3 and 4. In the aforesaid writ petition, initially an interim order was granted but the writ petition was finally dismissed on 26th March, 2001. The orders of the Vice Chancellor recognising the selection held on 12th October, 1999 and recognising Sri Kanhaiya Singh as Manager were upheld. Against the judgment dated 26th March, 2001, a special appeal being Special Appeal No. 503 of 2001 was filed by respondent Nos. 3 and 4 which has been admitted but no interim order was passed by this Court. The term of the Committee of Management, which was managing affairs of the college, was coming to an end, hence the functioning Committee of Management wrote a letter dated 26th August, 2002, praying for appointment of Observer for the election of the Committee of Management. The Vice Chancellor vide its letter dated 14.9.2002 appointed one Dr. Sachchidanand Rai, Principal, Gandhi Smarak Triveni Post Graduate College, Varda, Azamgarh as Observer. The election of the Committee of Management was held on 28th September, 2002, in presence of the Observer appointed by the University in which appellant's Committee of Management was elected. The Observer appointed by University submitted a report on 28th September, 2002, itself that appellant's Committee of Management has been elected with Kanhaiya Singh as Manager.
4. Respondent Nos. 3 and 4 also claim to have held an election on 22nd September, 2002 communication of which was submitted on 23rd September, 2002, before the Vice Chancellor. Respondent Nos. 2 and 3 have claimed that although a letter was written to Vice Chancellor for sending an Observer for the election but no heed was paid to the request and one Dr. Virendra Upadhyaya, Principal, Adarsh Bharti Sanskrit Mahavidyalaya, Khetasarai, Jaunpur, was asked to work as Observer in whose presence the election dated 22nd September, 2002 has been held. Respondent Nos. 3 and 4 filed Writ Petition No. 45067 of 2002 praying for writ of mandamus commanding respondent No. 2 to decide the representation filed on 23rd September, 2002, exercising the statutory power under Section 2 (13) of U. P. State Universities Act, 1973. A further writ of mandamus was claimed commanding the respondents to recognise the Committee of Management of the petitioners (respondent Nos. 2 and 3) by attesting the signatures of petitioner No. 2 (respondent No. 4). In the writ petition filed by respondent Nos. 3 and 4, they did not disclose that any other election of the Committee of Management has been held. An application for impleadment was filed by present appellant in the aforesaid writ petition praying that they be impleaded as respondents. Along with the impleadment application, an affidavit was also filed bringing on record of the writ petition the judgment of learned single Judge in Writ Petition No. 53162 of 2000 by which the writ petition was dismissed on 26th March, 2001, as well as the letter of the University dated 14.9.2002 appointing Dr. Sachchidanand Rai as Observer of the election and the report of the said Observer to the University intimating the election of the appellant's Committee of Management dated 28th September, 2002. Learned single Judge after hearing counsel for the writ petitioners (respondent Nos. 3 and 4) and counsel for appellant disposed of the writ petition vide its judgment dated 27th November, 2002, against which judgment present appeal has been filed.
5. Counsel for appellant in support of this appeal has raised following submissions :
"(i) The writ petition filed by respondent Nos. 3 and 4 was liable to be dismissed on the ground that writ petitioners (respondent Nos. 3 and 4) have not disclosed material facts in the writ petition, i.e.. the fact that earlier writ petition filed by them being Writ Petition No. 53162 of 2000 has been finally dismissed on 26th March, 2001 and the election of the Committee of Management has been held on 28th September, 2002 under the supervision of Observer appointed by the Vice Chancellor. In paragraphs 12 and 13 of the writ petition although reference was made to the interim order dated 7th December, 2000, in Writ Petition No. 53162 of 2000 but neither reference was made to the final judgment dismissing the writ petition nor copy of the judgment of the said writ petition was brought on the record.
(ii) Respondent Nos. 3 and 4 had not made out any case for issue of writ of mandamus nor even a prime facie case for consideration of their election had been made out in the writ petition. The facts and pleas on the basis of which claim has been set-up in the writ petition has already been considered and rejected by learned single Judge in Writ Petition No. 53162 of 2000 dismissed on 26th March, 2001, hence the petitioners (respondent Nos. 3 and 4) were not entitled for any relief in the writ petition.
(iii) The election held by appellant on 28th September, 2002, is election held by recognised outgoing committee under the supervision of Observer appointed by the University. The Committee of Management of the appellant elected on 28th September, 2002, is in effective control of the affairs of the institution and is discharging various duties as Committee of Management. By direction issued by learned single Judge, Vice Chancellor has been directed to consider claim of a committee which has no bona fide claim. There is no specific order for recognising a Committee of Management and the appellant's Committee of Management has been impliedly recognised by the Vice Chancellor by permitting the appellant's Committee of Management to discharge various functions of the Committee of Management.
(iv) Learned single Judge disposed of the writ petition without considering and adverting to the pleas raised by the appellant and the materials brought by appellant along with the affidavit in the record of the writ petition including dismissal of earlier writ petition filed by respondent Nos. 3 and 4."
6. Dr. R.G. Padia appearing for respondent Nos. 3 and 4 refuting the submissions of counsel for the appellant contended that "the special appeal at the instance of appellant is not even maintainable. Elaborating his submission, Dr. Padia contended that appellant is not a person aggrieved, who is entitled to prefer an appeal against the impugned judgment. Dr. Padia in support of his submission that only a person aggrieved can file a special appeal has relied on several decisions of this Court and other High Courts. Dr. Padia contended that under Section 2 (13) of the U. P. State Universities Act, 1973, Vice Chancellor has to pass an order recognising a Committee of Management. Referring to Statute 13.05 (f) of first statute of the Gorakhpur University, applicable in the present case, Dr. Padia submitted that said statue casts a duty on the Vice Chancellor to decide the question regarding election of the Committee of Management of the college. Dr. Padia submitted that Kanhaiya Singh, who claims to be Manager of appellant's Committee of Management has already been removed from the trusteeship. Dr. Padia also submitted that respondent Nos. 3 and 4 were not aware of the election of the appellant's Committee of Management and further there was no concealment of facts in the writ petition since reference was made to Writ Petition No. 53162 of 2002 and Special Appeal No. 503 of 2001 in the writ petition. Dr. Padia submitted that although respondent Nos, 3 and 4 are not claiming to be in effective control of the affairs of the institution but their election is entitled to be recognised by the Vice Chancellor in exercise of power under Section 2 (13) of the U. P. State Universities Act, 1973.
7. Before proceeding with the merits of the case, submission of Dr. R.G. Padia regarding maintainability of the appeal at the instance of appellant has to be considered. Dr. Padia elaborating his submission that appeal can be filed only by aggrieved person, submitted that since none of the rights of the appellant has been effected by the impugned order, hence the appeal is not maintainable. For the aforesaid submission, Dr. Padia has placed reliance on Balkrishna Das Agarwal v. Smt. Radha Devi and Ors., AIR 1989 All 133 ; Raja Ram v. Moolraj Singh, 1961 ALJ 473 ; Rajinder Prasad and Anr. v. Punjab State and Ors., AIR 1966 Pun] 185 (FB) ; Babu Ram Ashok Kumar and Anr. v. Antarim Zila Parishad, AIR 1964 All 534 (FB) ; Deputy Commercial Tax Officer v. Cosmopolitan Club, AIR 1954 Mad 1144 and State of Andhra now Andhra Pradesh v. Tavvineni Gangappa and another, AIR 1958 AP 140. Referring to Division Bench judgment in Balkrishna Das's case (supra), it was submitted that only a person having legal grievance against a decision can file an appeal. Referring to judgment in Raja Ram's case (supra) it was submitted that said judgment was a judgment of Division Bench of this Court in special appeal in which Division Bench held, "we have indicated earlier that appellant was not in any manner directly affected or prejudiced by the order which had been made by learned single Judge. Therefore, in our judgment, the appellant was not a 'person aggrieved' and could not sustain the present appeal. The other judgments relied by Dr. Padia do support the above proposition submitted by him. There is no dispute with the proposition laid down in above cases. An appeal can only be filed by a person, who is aggrieved. However, question as to whether a person filing an appeal is aggrieved or not depends on facts of each case. The appellant's case in the present special appeal is that order was passed by learned single Judge on the writ petition filed by respondent Nos. 3 and 4 for consideration of their election whereas respondent Nos. 3 and 4 failed to establish any case for issuing any direction for considering their election. Furthermore, respondent Nos. 3 and 4 in the writ petition had not even brought on the record the judgment of learned single Judge of this Court in Writ Petition No. 53162 of 2000 dated 26th March, 2002 by which writ petition filed by respondent Nos. 3 and 4 was dismissed and their claim on the basis of registered trust deed dated 21st May, 1999, claiming right in the Trust and the institution has been rejected. The appellant further contended that their election was held under the supervision of Observer appointed by the University vide its letter dated 14.9.2002 and the Observer appointed by the University had already submitted a report to the University about holding of the election on 28th September, 2002 in which appellant's Committee of Management has been elected. The appellant further claimed that his Committee of Management is managing the affairs of the institution and the University has impliedly recognised appellant's Committee of Management by permitting them to discharge the functions of the Committee of Management. It is relevant to note that respondent Nos. 3 and 4 in their writ petition have not even claimed that they are functioning as Committee of Management of the college or in effective control of the affairs. The election of the appellant which was conducted under the supervision of the Observer appointed by the university and as contended by the appellant they are discharging the functions of the Committee of Management and the claim of respondent Nos. 3 and 4 on the basis of trust deed dated 21st May, 1999, having been rejected by learned single Judge, there is no right in respondent Nos. 3 and 4 to conduct any election nor the claim of respondent Nos. 3 and 4 is even a bona fide claim worth consideration. This Court by the impugned order having directed the Vice Chancellor to consider the claim of the writ petitioners (respondent Nos. 3 and 4) certainly affects the appellant's Committee of Management. In view of the facts of the present case, we are satisfied that the appellant is aggrieved person and has right to file an appeal. There is one more aspect of the matter on which the right of filing of appeal to the appellant cannot be denied. Admittedly, before the learned single Judge, appellant has filed an affidavit bringing on the record earlier judgment of this Court dated 26th March, 2001, dismissing the writ petition filed by respondent Nos. 3 and 4 and the other relevant papers to show that the election of the appellant has been held by the Observer appointed by the University and in the election of writ petitioners (respondent Nos. 3 and 4) neither any Observer was appointed by the University nor they had any right to hold the election. The learned single Judge while disposing of the writ petition had not adverted to the pleas raised by appellant, hence he has right to contend before the appellate court that judgment suffers from non-consideration of material facts brought by him, consideration of which would have entailed dismissal of the writ petition. In view of the above, the submission of counsel for respondent Nos. 3 and 4 that appeal is not maintainable cannot be accepted.
8. Before coming to the merits of the case, it is relevant to note the relevant statutory provisions contained in U. P. State Universities Act, 1973 and the first statute of the University. Section 2 of the U. P. State Universities Act, 1973, is the definition clause and Section 2 (13) defines the management as follows :
"2 (13). "management", in relation to an affiliated or associated college, means the managing committee or other body charged with managing the affairs of that college and recognised as such by the University :
Provided that in relation to any such college maintained by a Municipal Board of a Nagar Mahapalika, the expression 'management, means the education committee of such Board or Mahapalika, as the case may be, and the expression 'Head of the Management' means the Chairman of such committee."
9. The first statutes of the University have been framed under Section 49 of the U. P. State Universities Act, 1973. It is admitted to both the parties that first statutes of the Gorakhpur University are applicable to Veer Bahadur Singh Purvanchal University, Jaunpur, Chapter 13 of the Statutes deals with affiliated colleges. Statute 13.05 which is relevant for the purpose is quoted as below :
"13.05. The Constitution of the Management of every college shall provide that--(Sections 37 and 49 (m)).
(a) the Principal of the college shall be ex officio member of the management;
(b) twenty-five per cent of the members of the management, are teachers (including the Principal) ;
(c) the teachers (excluding the Principal) referred to in Clause (b) are such members for a period of one year by rotation in order of seniority ;
(d) one member of the management shall be from the non-teaching class III employees of the college selected for a period of one year by rotation in order of seniority ;
(e) subject to the provisions of Clause (c) no two members of the management shall be related to each other within the meaning of the Explanation to Section 20 ;
(f) no change in the said Constitution shall be made except with the prior permission of the Vice Chancellor ;
(g) if any question arises whether any person has been duly chosen as, or is entitled to be a member or office bearer of the management or whether the management is legally constituted, the decision of the Vice Chancellor shall be final;
(h) the college is prepared to place before any person or persons authorised by the Vice-Chancellor or before the panel of Inspectors appointed by the University all original documents pertaining to income and expenditure of the college including the accounts of the Society/ Trust/Board/Parent body under which it may be operating ;
(i) the income from the Endowment Funds referred to in Statute 13.06 shall be available for the maintenance of the college."
10. Statute 13.34 of the Statutes deals with dispute regarding management. Statute 13.34 is quoted as below :
"13.34. Whenever there is a dispute regarding the management of an affiliated college, persons found by the Vice Chancellor to be in actual possession and control of the college properties may be, for purposes of the Act and these Statutes, recognised to constitute the management of such college until a court of competent jurisdiction orders otherwise. (Section 49 (o):
Provided that the Vice Chancelor shall before making an order under this Statute, afford an opportunity to the rival claimants to make written representations.
Explanation.--In determining the question as to who is in actual possession and control of the college properties the Vice Chancellor shall have regard to the control over the funds of the institution and over the actual administration, the receipt of the income from the property of the institution and to other relevant circumstances which might have bearing on the question to be determined."
11. Section 2 (13) of the U.P. State Universities Act, 1973, defines management. Definition clause only says that management in relation to an affiliated college means the Managing Committee recognised as such by the University. Section 2 (13) definition clause emphasises that only that body will be treated as management, which is recognised as Management Committee by the University. Definition clause does not provide any further regarding manner and procedure of recognition. University has been defined in Section 2 (20) which is quoted as below :
"2 (20). "University" means an existing university or a new university established after the commencement of this Act under Section 4."
12. Section 2 (13) does not even say as who has to recognise the management and in what manner. It is thus, clear that Section 2 (13) is only definition clause and is not a substantive provision pertaining to manner or procedure for recognising the Committee of Management.
13. Now coming to Statute 13.05, it is clear that Statute 13.05 only requires that what has to be provided by the management in the constitution. Section 13.05 (f) requires that management has to provide in its constitution that if any question arises whether any person is duly chosen as, or is entitled to be a member or office bearer of the management or whether the management is legally constituted, the decision of the Vice Chancellor shall be final. Statute 13.05 (f) requires the management to provide in its constitution the aforesaid matter and the aforesaid Statute read with the provision in the Constitution clothing the Vice Chancellor with power to decide the question as stated in Clause (f) of Statute 13.05. Statute 13.34 contemplates dispute regarding management of an affiliated college. Statute 13.34 of the State Universities Act, 1973, is para materia with Section 16A (7) of the U. P. Intermediate Education Act. The jurisdiction under Section 16A (7) is exercisable only when there are two Committees of Management. The Division Bench of this Court in Committee of Management v. District Inspector of Schools, 1992 ACJ 505 and Smt. Santosh Kumari Kapoor and Ors. v. State of U.P., 1994 (2) AWC 1218 : 1994 (3) UPLBEC 1496, has held that unless there exist two rival Committees of Management, jurisdiction under Section 16A (7) cannot be exercised. In Santosh Kumari's case (supra), it was held in paragraph 10 which is as under :
"10. Before parting with the case, it may be mentioned that the learned single Judge was not justified to direct the Deputy Director of Education to decide the dispute about the election for two reasons ; Firstly, Section 16A (1) of the Act which is reproduced below, only empowers the Deputy Director of Education to recognise the Committee of Management of the institution whenever there is dispute with regard to the management."
"(7) Whenever there is dispute with respect to the management of an institution person found by the Regional Deputy Director of Education upon such enquiry as is deemed fit to be in actual control of its affairs may, for purposes of this Act, be recognised to constitute the Committee of Management of such institution until a court of competent jurisdiction directs otherwise :
Provided that the Regional Deputy Director of Education shall, before making an order under this sub-section, afford reasonable opportunity to the rival claimants to make representation in writing.
Explanation.--In determining the question as to who is in actual control of the affairs of the institution, the Regional Deputy Director of Education shall have regard to the control over the funds of the institution and over the administration, the receipt of income from its properties, the scheme of administration approved under Sub-section (5) and other relevant circumstances."
A Division Bench of this Court in the case of Committee of Management v. District Inspector of Schools. 1992 ACJ 505, has held that jurisdiction of the Deputy Director of Education under the above provision cannot be invoked, unless there exist two rival Committees of Management. In the present case the dispute was not between two rival committees. Deputy Director, as such, could not have decided validity of the election under the above provision ..........................
14. A learned single Judge of this Court considered the provisions of Section 3 (13) of U. P. State Universities Act, 1973 and Statutes 13.05 and 13.34 applicable to the Purvanchal University in Saltamat Bahadur Mahavidyalaya Badiapur and Ors. v. Vice Chancellor, Puruanchal University, Jaunpur and Ors., 1950-1991 (4) AIEC 148. In the aforesaid judgment, learned single Judge held that Statute 13.05 (f) is not self-operative and further jurisdiction under Section 13.34 can be invoked by Vice Chancellor when there are two or more rival Committees of Management. After quoting the aforesaid provisions, the learned single Judge held in paragraph 4 as under :
"4. The Vice-Chancellor derives the power to decide the dispute relating to the constitution of the Committee of Management of affiliated college from Section 2 (13) of the Act. Statute 13.34 which is analogous to Section 16A (7) of the U. P. Intermediate Education Act, authorises the Vice Chancellor to decide the dispute regarding the management of an affiliated college. A Division Bench of this Court in the Committee of Management v.
D.I.O.S., 1992 ACJ 505, while interpreting analogous provisions of Section 16A (7) of Intermediate Education Act, held that the Deputy Director gets jurisdiction to decide a dispute only when there are two or more rival Committees of Management which have staked their claim to manage the college. Unless there are rival Committees of Management the Deputy Director cannot exercise the power under Section 16A (7).
On the same reasoning the Vice Chancellor gets the power to decide the dispute under Statute 13.34 only if there is dispute between the rival Committees of Management regarding management of the affiliated college. Power under Section 2 (13) of the Act can be exercised by the Vice Chancellor when his approval of the Committee of Management is sought. But power under Statute 13.34 can be exercised only when the dispute is raised by two or more rival Committees of Management.
Statute 13.05 is not self-operative.
Right given to the Vice Chancellor under Statute 13.05 becomes operative only after incorporation of the above Statute In the constitution of the management of the college. After incorporation of Clause (f) of Statute 13.05 in the constitution of the management of the college the Vice Chancellor has not only the power to decide a dispute pertaining to the management of the college but has also the power to decide whether any person has been duly chosen as or is entitled to be member or office bearer of the management."
15. Dr. R.G. Padia, counsel for respondents referring to provisions of Statute 13.05 (f) contended that this provision obliges the Vice Chancellor to decide any question referred to in Sub-clause (f) if it arises before him. Dr. Padia elaborating his contention submitted that provisions of Statute 13.05 (f) is a special provision given in the statutes and there is no analogous provision in the U.P. Intermediate Education Act, 1921, and jurisdiction of the Vice Chancellor is entirely different with that of the District Inspector of Schools and the Regional Deputy Director of Education which is exercised under the U.P. Intermediate Education Act, 1921. He has also placed reliance on a Division Bench decision of this Court in Committee of Management of Abmika Pratap Narain Degree College, Basti and Anr. v. Gorakhpur University, Gorakhpur and Anr., 1988 UPLBEC 549. The submission of the counsel for the appellant in above respect is that Statute 13.05 is not attracted till said provision is incorporated by the management in the constitution. Although in the present case, Constitution of the college has not been brought on the record to show that whether any such provision is contained in the Constitution, however, since the question raises a large issue and frequently arises in cases pertaining to claim of recognition of the management and dispute between the rival claimants, we are proceeding on the premise that as required by statutes, said provision is contained in the Constitution of the college. Statute 13.05 as quoted above, is very widely worded. The question which can be considered under Statute 13.05 may be, (i) whether any person has been duly chosen as, or is entitled to be a member or office bearer of the management and (ii) whether the management is legally constituted. Thus, the aforesaid provision makes it clear that any question regarding election of a person as member or office bearer of the management or whether the management itself is legally constituted can be considered and decided by Vice Chancellor in exercise of power under Statute 13.05 (f) read with the Constitution of the college. The Division Bench judgment cited by Dr. R.G. Padia in Committee of Management of Ambika Pratap Narain Degree College's case (supra) does support the contention raised by Dr. Padia. In the aforesaid case, the order of Vice Chancellor dated 4th March, 1986 refusing to recognise the committee of management represented by petitioners was challenged. The question arose as to whether the said order is without jurisdiction or the Vice Chancellor in exercise of power under Statute 13.05 has jurisdiction to decide the question. The Division Bench repelled the contention and held that Vice Chancellor has jurisdiction to decide the question. It was held in paragraph 4 of the aforesaid judgment which is quoted below :
"4. We are unable to agree. The Vice Chancellor, derives his power to determine dispute pertaining to the constitution of the Committee of Management of the institution affiliated to State Universities primarily under Section 2 (13) of the State Universities Act. The next provision under which the Vice Chancellor gets authority to determine such a dispute is Clause (f) of Statute 13.05 which reads as follows :
"if any question arises whether any person has been duly chosen as, or is entitled to be a member or office-bearer of the management or whether the management is legally constituted, the decision of the Vice Chancellor shall be final."
16. The dispute under Statute 13.05 (f) may arise in several contingencies. An election is claimed by a set of persons which is challenged before the Vice Chancellor by a person, that person claiming election of the management are not legally constituted. Any person having interest in the affairs of the institution may challenge the constitution of the Committee of Management before the Vice Chancellor. Statute 13.05 (f) gives ample jurisdiction to the Vice Chancellor to enter into and determine a dispute. Question pertaining to election of even only one office bearer or member of a management may be raised which may also be covered by Statute 13.05.
17. Further, the question to be considered is as to whether when two rival claimants claim themselves to be management of the college, what will be the procedure and provision for deciding the dispute by the Vice Chancellor. Statute 13.05 (fl read with Constitution of the College and the Statute 13.34 have to be harmoniously construed. Statute 13.34 uses the word 'dispute'. Further, proviso to Statute 13.34 provides that Vice Chancellor shall, before making an order, afford an opportunity to the rival claimants. A 'dispute' means a conflict or contest, it postulates assertion of claim by one party and its denial by the other. Thus, precondition of applicability of Statute 13.34 is existence of rival claimants. When dispute regarding management arises between rival claimants, provisions of Statute 13.34 gets attracted and in that situation, the Vice Chancellor may recognise the Committee of Management of such college who may be in actual possession and control of the college. Statute 13.34 requires the decision on the basis of actual possession and control. Thus, in the event of dispute between two claimants the jurisdiction of Vice Chancellor to decide the dispute is hedged by provisions of Statute 13.34 and in that event, the Vice Chancellor is obliged to decide the issue in accordance with Statute 13.34. However, the word 'may' used in Statute 13.34 suggests that it is not mandatory for the Vice Chancellor to recognise the Committee of Management which is in control of the affairs. For example, if a rank trespasser takes control of the institution by resorting to unlawful means and use of force, the said persons cannot be recognised under Statute 13.34. A case may arise that outgoing committee is in control of the affairs whose term has already expired and has no right to continue, in that event, also that committee cannot be recognised. For the purposes of Statute 13.34, it will be appropriate to mention the Full Bench Judgment of this Court in Committee of Management Sri Kashi Raj Mahavidyalaya Aurai, Bhadohi v. Deputy Director of Education, Vth Region, Varanasi and Ors., 1996 (3) ESC 344. in which the Full Bench while, examining the question as to whether Deputy Director of Education while deciding a dispute under Section 16A (7) of the Intermediate Education Act, functions as Tribunal or not. The Full Bench has made pertinent observation while considering the scope of Section 16A (7). Following was observation of Full Bench in paragraphs 6 and 16 of the said judgment :
"6. ........................................Moreover, the decision of the Regional Deputy Director of Education as to the persons who are found in actual control of affairs may or may not result in any effective order. Sub-section (7) only permits such persons as are found to be in actual control of affairs to be recognised to constitute the Committee of Management of such institution. The word, "may" occurring in Sub-section (7) makes it clear that it is not imperative that such persons should necessarily be recognised to constitute the Committee of Management. Further, even if such persons are recognised to constitute a Committee of Management, the recognition is not to settle the dispute between the rival claimants for all purposes, but only for the purposes of the Act. This coupled with the fact that the recognition is stipulated in Sub-section (7) is to operate until the decision of the Court of competent jurisdiction suggests that the Regional Deputy Director of Education has not been entrusted with the inherent judicial power of the State."
"16. As pointed out earlier, under Section 16A (7), the Regional Deputy Director of Education may find the persons who are in actual control of the affairs of an institution, yet those persons may not be recognised as constituting the Committee of Management. By way of illustration, such a situation may obtain where valid election has been held, but the previous Committee of Management has not allowed the newly elected persons to have actual control of affairs of the institution. In such a case, even though members of previous Committee of Management may be in actual control of the affairs of the authority, they may not be recognised as constituting the Committee of Management. Whether the persons, who are found to be in actual control of the affairs of an institution are to be recognised as constituting the Committee of Management of the institution under Sub-section (7) of Section 16A is essentially administrative in character. The finding of the Deputy Director of Education as to the person in actual control of affairs of the institution does not decide the dispute as to the entitlement to be members of the Committee of Management. He is not entrusted with the duty to act judicially, though he must act fairly. He has no trappings of the Court. This finding as to the persons in actual control of the affairs of an institution lacks in finality or conclusiveness and binding nature, which is associated with the decisions of a Court or a Tribunal."
18. The above observations of the Full Bench are also pertinent while considering the scope under Statute 13.34. In view of the above, there may also be situation in which a dispute may arise under Section 13.34 that although certain persons are in control of the affairs of the institution but they are not entitled to be recognised. The said claim may be raised even by claimants, who are not in control over the affairs of the institution. For exercise of jurisdiction under Statute 13.34 only precondition is existence of two rival claimants.
19. However, looking to the facts of the present case, it is clear that respondent Nos. 3 and 4 have not raised a dispute within the meaning of Statute 13.34. There is no material on the record to show that respondent Nos. 3 and 4 have raised their claim that appellant is not entitled to be recognised under Statute 13.34. Respondent Nos. 3 and 4 having not raised any claim within the meaning of Statute 13.34, there is no occasion to issue any direction to the Vice Chancellor to exercise jurisdiction under Statute 13.34. It is, however, observed that it is open to respondent Nos. 3 and 4 to approach the Vice Chancellor raising a dispute as contemplated under Statute 13.34.
20. The aforesaid provisions of Section 2 (13) of the U. P. State Universities Act, 1973 and the Statutes, as quoted above, lay down that Section 2 (13) is a definition clause which defines the management. The manner and procedure by which management is to be recognised has not been laid down in definition clause. The management which is recognised by the University is entitled to function, in case of a dispute as to whether any person has been duly chosen as or is entitled to be member or office bearer of the management or whether the management is legally constituted, power is vested with the Vice Chancellor provided said provision is provided in the Constitution of college. Further, in a case where there are disputes between two rival claimants, the provisions of Statute 13.34 gets attracted. Scheme of the statutes makes it clear that when there is dispute between two rival claimants, i.e., two bodies claiming right of management, the dispute by the Vice Chancellor is to be decided in accordance with the provisions of Statute 13.34. In case of dispute between two managements, the provision applicable is only Statute 13.34 and the Vice Chancellor is obliged to recognise the Committee of Management for purposes of this Act which is found to be in actual possession and control of the college until a court of competent Jurisdiction orders otherwise. The recognition under Statute 13.34 is only a summary recognition for the period till the competent court directs otherwise. This provision makes it clear that decision of the Vice Chancellor under Statute 13.34 is subject to decision of the civil court and the final adjudication regarding dispute between the rival claimants is to be done by competent court.
21. From the facts which are brought on the record, it is clear that appellant claims to be Committee of Management elected by outgoing recognised Committee of Management and its election has been held under the supervision of Observer appointed by the University. An election has been set up by respondent Nos. 3 and 4 on 22.9.2002. Thus, the claim of respondent Nos. 3 and 4 at best is claim of a rival claimant of the management. Neither in the writ petition nor in this special appeal, respondent Nos. 3 and 4 even claim that the Committee of Management of respondent Nos. 3 and 4 is in control of the affairs of the institution. When there is no claim by respondent Nos. 3 and 4 of recognition on the basis of any control of the institution as envisaged under Statute 13.34, there is no occasion at this stage to direct the Vice Chancellor to exercise its jurisdiction under Statute 13.34. The claim of respondent Nos. 3 and 4 that new trust deed was created on 21st May, 1999 and the trusteeship of Kanhaiya Singh and certain other persons have been terminated are the questions which need adjudication of facts by a competent civil court.
22. Further the claim which was raised by respondent Nos. 3 and 4 in Writ Petition No. 45067 of 2002, was a claim based on election which requires adjudication of facts and the remedy of the writ petitioners (respondent Nos. 3 and 4) was to file a civil suit for establishing their election. The submission of counsel for the appellant that respondent Nos. 3 and 4 in their writ petition have concealed material facts has also substance. On the facts which have been stated in the writ petition by respondent Nos. 3 and 4, they had claimed an election of the Committee of Management on 4.10.2000. Appellant had claimed another election of the Committee of Management on 12.10.1999 and thereafter election of manager on 29.9.2000, after death of Sri Chandrabali Shastri Brahmchari. The claim set up by Kanhaiya Singh regarding election dated 12.10.1999 and thereafter election held on 29.9.2000, was accepted by the University and the writ petition filed by respondent Nos. 3 and 4 being Writ Petition No. 53162 of 2000 was dismissed by this Court vide its judgment dated 26th March, 2001, after hearing both the parties. Although a special appeal has been filed against the said judgment which has been admitted but no interim order has been granted in the special appeal. The aforesaid judgment which was between the parties was relevant material which ought to have been brought by respondent Nos. 3 and 4 in the writ petition. The respondent Nos. 3 and 4 have neither referred to the aforesaid judgment in the list of dates nor in any of the paragraphs of the writ petition. They have also not annexed the copy of the aforesaid judgment. In view of the aforesaid facts, respondent Nos. 3 and 4 are not entitled for exercise of any discretion in their favour in writ jurisdiction by this Court.
23. From the foregoing discussions, it is clear that respondent Nos. 3 and 4 in their writ petition had not made out any case for issue of writ of mandamus directing for consideration of their case for recognition of election claimed to be held on 22.9.2002. Respondent Nos. 3 and 4 in their writ petition have not raised any challenge to election of appellant nor any dispute within meaning of Statute 13.34 was raised by respondent Nos. 3 and 4 before the Vice Chancellor. Respondent Nos. 3 and 4 in their writ petition have not even claimed control over the affairs of the institution so as to claim recognition of their management within Statute 13.34, in view of this no occasion, has arisen for issuing a direction to the Vice Chancellor to decide the dispute under Statute 13.34. However, it is open to respondent Nos. 3 and 4, who were writ petitioners to file a civil suit before the competent civil court for establishing their right to be recognised as management of the college. As observed above, the order of the Vice Chancellor under Statute 13.34 is always subject to decision of the competent civil court. Further, it is always open to a person to get his rights of management established from civil court.
24. In view of the above, we are satisfied that respondent Nos. 3 and 4 were not entitled for any direction in their writ petition and the learned single Judge without considering the materials brought before the learned single Judge by appellant through his affidavit filed in support of the impleadment application, disposed of the writ petition. In view of this, the order of learned single Judge dated 27th November, 2002, cannot be sustained and is hereby set aside. It is, however, observed that it will be open to respondent Nos. 3 and 4 to get their rights regarding management of the college established in a competent civil court or raise a dispute before the Vice Chancellor under Statute 13.34 in accordance with the observations as made above in this judgment.
25. The special appeal is allowed subject to observations as made above.