Gujarat High Court
Sardar Patel University vs Charutar Vidya Mandal on 5 January, 2022
Author: Aravind Kumar
Bench: Aravind Kumar, Ashutosh J. Shastri
C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1094 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 7770 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 1094 of 2021
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SARDAR PATEL UNIVERSITY Versus CHARUTAR VIDYA MANDAL ========================================================== Appearance:
MR KAMAL TRIVEDI SR. ADVOCATE with MR SUDHANSHU A JHA(8345) for the Appellant(s) No. 1 MR DHAVAL DAVE SR. ADVOCATE with UDIT N VYAS(9255) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI Date : 05/01/2022 CAV ORDER (PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)
1. By way of this appeal under Clause 15 of the Letters Patent Act, the appellant i.e. Sardar Patel University is challenging the legality and validity of the order dated 06.09.2021 passed by the learned Single Judge in Special Civil Application No. 7770 of 2021.
2. The case of the petitioner is that the respondent - institution addressed a letter on 30.03.2021 to the appellant - University, inter alia informing that respondent - institution has nominated its two representatives namely one Shri Manish S. Patel - Vice President and Shri Mehulbhai Dineshchandra Patel - for being members of the Page 1 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022 C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 Syndicate of the appellant - University. While responding to the said communication of the respondent - institution, the appellant -
University vide its reply dated 19.04.2021 informed to conduct election of the representatives as required by Clause (f) of sub- section (1) of Section 22 of the Sardar Patel University Act, 1955 (for short the "Act"). According to the appellant - University, this communication followed by subsequent communication dated 25.04.2021, reflecting on page 102 has given rise to the filing of the petition by the respondent - institution. According to the appellant though the petition was not maintainable in view of the statutory remedy being available under Section 59 of the Act, the learned Single Judge by the impugned order dated 06.09.2021 was pleased to allow the petition by quashing and setting the impugned communications as referred to above and it is against this order passed by the learned Single Judge, the appellant has preferred the present Letters Patent Appeal.
3. Shri Kamal Trivedi, learned Senior Advocate assisted by Mr. Sudhanshu A. Jha, learned advocate appearing for the appellant - University has, at the outset fairly conceded that the view adopted by the learned Single Judge insofar as its communication dated 19.04.2021, is not possible to be assailed in view of the fact that though provisions required by virtue of Section 22(1) Clause (f), two representatives elected by the Charutar Vidhya Mandal, but the approved Regulations and Rules of Charutar Vidhya Mandal which are in existence right from inception, instead of electing two representatives, nomination can be made by the respondent - institution by virtue of Clause (l) of Regulation 5, as is reflecting on Page 2 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022 C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 page 82A and that being so, he has fairly stated before the Court that the impugned communication to the effect that the election to Syndicate to be conducted by the University is not possible to be agitated and qua that the order under challenge is not assailable.
3.1. However, learned Senior Advocate Mr. Trivedi has pointed out from Chapter IV of the Sardar Patel University Act, 1995 which deals with Authorities of University and has submitted relevant clause which relates to the expression, ' the Syndicate'. By referring to Clause 15 sub-clause (D) has contended that Syndicate should consists of : The President, the Chairman, and The Secretary of the Charutar Vidya Mandal and as such, out of all these three, two representatives can be nominated by the respondent - institute and no person dehors this capacity which has been mentioned in the aforesaid provisions. To substantiate his contention, learned Senior Advocate Mr. Trivedi has pointed out from communication dated 30.03.2021 wherein it had mentioned that the names which are nominated as the representative on the Syndicate of the University for a period of three years commencing from 01.04.20121 are (1)Mr. Manish Patel -Vice President; (2) Mr. Mehulkumar Dineshchandra Patel - Sanket Sales are outside the scope of the names which are stipulated in Clause 15(D) and as such, there is a serious reservation so far as these two representatives who are nominated.
3.2. It has been further contended by the learned Senior Advocate with emphasis that these two representatives are neither President nor Chairman nor Secretary of the Charutar Vidya Mandal and as such, dehors this position, no persons can be nominated irrespective of the Page 3 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022 C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 fact that whether they are members elected or nominated, at least two representatives must be falling within the criteria which is mentioned in Clause 15(D) and this having not being appreciated by the learned Single Judge, the order is assailable, deserves to be corrected.
3.3. Learned Senior Advocate Mr. Trivedi has contended that though the affidavit-in-reply is silent to explicitly clear this stand of the appellant, but there appears to be a clear stand taken in the further affidavit which has been filed on 23.07.2021 and by referring to paragraph 4 and 5 therein, it has been contended that no outsider or ordinary person can contest the elections to the Syndicate as same is prohibited by virtue of statute 125. Statute prohibits clearly ordinary fellow from any constituency to stand in the election inasmuch as the name is included in the roll of voters and these two representatives who are nominated, are not mentioned in the roll of voters and as such, the order passed by the learned Single Judge requires to be corrected, as this aspect having not dealt with. This being the position, the impugned order passed by the learned Single Judge requires to be corrected and as such, he has pointed out that subsequent communication which is also quashed and set aside dated 25.04.2021 ought not to have been interfered with by the learned Single Judge.
3.4. Learned Senior Advocate Mr. Trivedi has pointed that though the practice of the sending two representatives might be a practice for number of years, but that would not allow to give a go-bye to the statutory provisions which are being insisted upon by the present appellant. As a result of this, the impugned order deserves to be Page 4 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022 C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 corrected. No other grounds or contentions are raised.
4. As against this, learned Senior Advocate Mr. Dhaval Dave assisted by Mr. Udit Vyas, learned advocate appearing for the respondent has vehemently contended that this point which is tried to be canvassed was never agitated before the learned Single Judge and the learned Single Judge had no opportunity to deal with the same, he would further contend that by virtue of approved Regulations of Charutar Vidya Mandal which is registered under the Societies Registration Act, 1860 it is clearly stipulated under Clause 4(l) that the Chairman in consultation with the governing body shall nominate members of Mandal to the various institutions where Charutar Vidya Mandal is to be represented, instead of electing them by General Body, such nominated members shall be considered duly elected by the Mandal and as such, when that being permitted, appellant - University has no role to interfere with the internal administration of the institution. On the contrary by referring to Clause 22(1) (f), it has been mentioned that two representatives elected by Charutar Vidya Mandal and the interpretation which is sought to be canvassed that those are to be elected by the appellant University is quite dehors the provisions of the Act itself, and as such, the impugned communication dated 19th April, 2021 is per se not sustainable in the eye of law.
4.1. It has been canvassed by learned Senior Advocate Mr. Dave that on this issue the learned Senior Advocate Mr. Trivedi has rightly conceded and left the issue, but it is also clearly visible that this practice of sending representatives was in vogue, and this practice is Page 5 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022 C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 continued throughout since inception and never objected to by the University. There are other institutions who also are sending their representatives in similar manner and as such, the action on the part of the appellant - University singling out petitioner was clearly found to be erroneous by the learned Single Judge and has rightly quashed and set aside the impugned communication. It has further been contended that close perusal of the provisions of the Act also would clearly indicate that two representatives for Syndicate are not to be elected in any way by the appellant University and as such, insistence by the appellant - University is not only arbitrary, but tainted with mala fides. It has been pointed out by learned Senior Advocate Mr. Dave that even from the first impugned communication a detailed representation was submitted on 22.04.2021 in which also, after narrating all the relevant provisions of the statue itself, a specific contention was raised that Sardar Patel University has no role to play in the election of Charutar Vidya Mandal for its representation in the Syndicate. The learned Single Judge has rightly appreciated the relevant provisions and only thereafter arrived at a conclusion. It has further been contended that as a matter of fact, following the practice of past since inception, a communication was addressed on 30.03.2021, requesting the respondent - Mandal to nominate its representatives under Section 22(1) (f) of the Act, however, election of such representatives of Charutar Vidya Mandal was to be conducted by the Sardar Patel University. This communication would not have been addressed, in fact, notification dated 05.03.2021was issued by the appellant - University for conducting elections to the Syndicate only so in respect of vacancies to be filled in under Section 22(1)(c), 22(1)(d) and 22(1) (e) of the Act, which clearly suggest that Page 6 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022 C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 the aforesaid view is nothing, but an after thought and for extraneous consideration. It is always open and up-till now open for Charutar Vidya Mandal and several other institution like this to elect their own representatives for Syndicate and none of the actions of other organizations have been interfered with by the appellant - University in respect of sending representatives for being included as Syndicate and as such, a contention that election is to be conducted by the University raised by the appellant is out of context and not finding support from any corner and, as a result of this, order passed by the learned Single Judge does not call for any interference especially when detail analysis of the provisions at length have been done for arriving at a conclusion that action of University is liable to be set aside.
4.2. Learned Senior Advocate Mr. Dave has further submitted that this practice of nominating and sending representatives on Syndicate is prevailing since long, practically from beginning, and there are several other institutions which are also sending representatives to the syndicate in the same manner and it is only qua the respondent Mandal, the appellant University for extraneous reasons is objecting.
4.3. Learned Senior Advocate Mr. Dave has further submitted that even the impugned communications are also quite contrary to literal interpretation of Section 22(1)(f) and appellate University has sent impugned communication under sheer mistaken belief and erroneous interpretation. In fact, the University has no role to play in respect of the elections / nominations of two representatives of the Institutions.
Page 7 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 4.4. Learned Senior Advocate Shri Dave has contended that learned Senior Advocate Shri Trivedi has made an attempt to divulge the attention from the core issue by indicating that the representatives to be elected/nominated out under Clause (D) of Section 15, as mentioned in the Act. But, this apparently deals with the constitution of Senate and not the Syndicate in any form and as such, no error has been committed by the learned Single Judge.
4.5. Attention which has been drawn of Section 53 that every election to any authority of the University made in this Act shall be made by system of proportional representation by means of the single transferable of vote by ballot is not applicable so far as election/ nomination of two representatives is concerned.
4.6. Statute 116 has no application to the case of the petitioner for the reason that Statute 116(a) clearly delineates specific class of persons to which it is applicable and it does not include the petitioner and further, Statute 116(a) is not applicable to any election for the Syndicate and is applicable only to the election to the senate. Whereas, Statute 116(b) specifically deals with the election to the Senate, and it clearly states that for the purpose of election to the Syndicate, register of members of Senate is to be treated as electoral roll and as such, interpretation, which is tried to be canvassed by the learned Senior Advocate Shri Kamal Trivedi, is contrary to the Statute itself.
4.8. Further, representative of the other institutions, namely the institute of Agricultural to be elected by the trustees of Sheth Page 8 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022 C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 Mansukhlal Chhaganlal Trust and Sheth Mungalal Geonka Trust and representatives to be elected by Birla Education Trust are also under similar way and as such, term 'Elected' used in such Section is only to ensure that these representatives sent by the petitioner and other similarly placed organizations are their own members and not third party strangers. Hence, there appears to be no error committed by learned Single Judge. Accordingly, appeal lacks merit.
4.9. Learned Senior Advocate Mr. Dave has further submitted that looking to the aforesaid situation, in absence of any patent illegality or any perversity, the view adopted by the learned Single Judge on the basis of the very same material may not be substituted looking to the scope contained under Clause 15 of the Letters Patent. That being so, the appeal lacks merit, may be dismissed in the interest of justice.
5. Having heard the learned counsel appearing for the respective parties and having perused the relevant material, we found that following are the circumstances which are not possible to be ignored by this Court while even testing the validity of an order passed by the learned Single Judge. While examining this, we have also kept in mind the scope of intra court appeal. Hence, few circumstances we deem it proper to consider, hereunder.
5.1. Vide communication dated 30.03.2021 pursuant to the letter issued by the appellant - University, two persons have been nominated by the respondent - Charutar Vidya Mandal as the representatives for the Syndicate for a period of three years commencing from 01.04.2021. Based upon such intimation given by Page 9 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022 C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 the opponent, the appellant - University has on 19.04.2021 issued one communication to the opponent by indicating that in view of the provisions of the Act and the Statute of Sardar Patel University, the election to Syndicate and Senate be conducted by the University and, therefore, the election under Clause (f) of sub-section (1) of Section 22 is to be conducted by the University and not by the appellants and as such, names have not been accepted which have been sent vide this impugned communication. It appears that the opponent has given a detailed reply vide representations in writing dated 22.04.2021 and pointed out specifically that this is the past practice practically from initial stage of sending representatives for Syndicate in similar manner as has been followed by the several other organizations as well. It has been clearly pointed out in the written representations that a bare reading of Section 22(1) (f) would clearly indicate that Sardar Patel University has no role to play in election of its representatives by Charutar Vidya Mandal as representatives of Syndicate for appellant University. In this very representation not only the said provision is highlighted but the past practice as well as other organizations which are sending their representatives in the similar manner have also been pointed out but then it appears that after receipt of the said representations again on 25.04.2021, the University appears to have reiterated the stand and has passed the communication that by virtue of Section 14 of the Act, Syndicate does not differentiate between Charutar Vidya Mandal representatives, members the Senate or other Syndicate members and so the election thereto by referring to this the stand since reiterated which has led the opponent to prefer a writ petition before this Court challenging the impugned communication.
Page 10 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 5.2. To test the submission made by learned Senior Advocate Mr. Trivedi we have perused the relevant provisions relating to Constitution of Syndicate. Section 22(1) (f) postulates that Syndicate shall be an Executive authority of the University and shall consists of the following namely (1) Two representatives represented by Charutar Vidya Mandal and as such, at the outset, the stand which is being taken in impugned communication by the appellant University is not sustainable at all. Looking at this literal meaning of words mentioned in the provisions. In addition to this, learned Senior Advocate Mr. Dave has pointed out that this Charutar Vidya Mandal namely the opponent is registered under the provisions to Societies of Registration Act, 1860 and its Rules and Regulations which are approved by the competent authority and these Rules permit the Charutar Vidya Mandal in respect of nominating the members and as such, a reference is made to Regulation 4. Learned Senior Advocate Mr. Trivedi rightly not insisted upon the said aspect where these two representatives are to be elected by the University or to be nominated and as such rightly has left said issue without any further submissions. Regulation 4 (l) which reads as under :
"Regulation 4(l) Chairman in consultation with the Governing body shall nominate members of the mandal to the various Institutions where Charutar Vidya Mandal is to be represented instead of electing them by the General Body. Such nominated members shall be considered duly elected by the mandal."
5.3. We further notice from the impugned communication that the point which is tried to be canvassed by learned Senior Advocate Mr. Trivedi that these two representatives are to be from the post of Page 11 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022 C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 President, Chairman and the Secretary of the Charutar Vidya Mandal but the impugned communication apparently does not indicate such stand being taken before the learned Single Judge so emphatically nor before us by the learned Senior Advocate Mr. Trivedi. Even the affidavit-in-reply which has been filed originally is also not emphasizing much on this issue. However, Mr. Trivedi learned Senior Advocate has drawn our attention to the further assertion of the appellant University by drawing substance from from further affidavit filed before the Court on 23.07.2021. A perusal of the said assertion contained in paragraph 4 and 5 is taken in aid and to canvass the point that irrespective of the election or nomination of two representatives by the respondent - Mandal, the persons who are to be nominated as representatives must be in the capacity has provided under Section 15(D). To test this contention, we have perused further provisions in light of Chapter IV and find that same is referable to the members under the Constitution of Senate. As to how Syndicate is to be constituted is provided under Section 22 which clearly points out that two representatives are to be elected by the Charutar Vidya Mandal and this being the position, contention to contrary which is tried to be canvassed appears to be ill founded and said contention having not been agitated before the learned Single Judge in the manner in which is tried to be canvassed before us, we are not inclined to entertain said contention. It further appears that a reference is made to a Statue 116. Statute 116(a) appears to have no applicability to the controversy involved in the petition, firstly for the reason that Statue 116(a) clearly delineates a specific class of a person to which it is applicable which does not include the petitioner's nomination and secondly, it is not applicable to an Page 12 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022 C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 election for the Syndicate and is applicable only to the election for the Senate and this distinction between two classes which clearly indicates that stand taken by Mr. Trivedi, learned Senior Advocate is out of place. As a result of the stand taken by the appellant is not impressive enough to substitute the finding arrived at by the learned Single Judge.
6. Furthermore, Statute 116(b) would have an application only to elections under Section 22(1)(c),(d) and (e) which specifically empowers Senate to elect the concerned representative and not for the representatives to be elected by the opponent Mandal under Section 22(1) (f) and as such, evidently, the members of the Senate cannot form an electoral for election of representatives of the petitioner to the Syndicate. The issue tried to be raised in this appeal is not well founded. From the other relevant provisions contained from the Statute 128 to 131, it appears that the election by the respondent of its two representatives to be sent at Syndicate pursuant to Section 22(1) (f) of the Sardar Patel University Act is not of election of the authority of respondent University, and as such, prima facie, it appears that the impugned communication are not only not sustainable in the eye of law, but the submissions which has been made by the appellant before this Court cannot be accepted and we are unable to set at naught the well reasoned order passed by the learned Single Judge. Hence, we are of the considered opinion that no error has crept in the order passed by the learned Single Judge made and appeal found to be meritless.
7. At this stage, we may remind ourselves of the scope of Letters Page 13 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022 C/LPA/1094/2021 CAV ORDER DATED: 05/01/2022 Patent Appeal as defined by the Hon'ble Apex Court in a decision in the case of Management of Narendra & Company Private Limited v. Workmen of Narendra & Company reported in (2016) 3 SCC
340. Since we have considered the same, we deem it proper to refer the relevant observations contained in paragraph 5 of the said decision-
"5. Once the learned Single Judge having seen the records had come to the conclusion that the industry was not functioning after January 1995, there is no justification in entering a different finding without any further material before the Division Bench. The Appellate Bench ought to have noticed that the statement of MW 3 is itself part of the evidence before the Labour Court. Be that as it may, in an intra-court appeal, on a finding of fact, unless the Appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."
8. In view of the aforesaid discussion and in view of the overall consideration of rival contentions and in the background of material on record, we are of the opinion that appeal lacks merits, accordingly, same is dismissed. Consequentially, civil application for stay also stands dismissed.
(ARAVIND KUMAR,CJ) (ASHUTOSH J. SHASTRI, J) phalguni Page 14 of 14 Downloaded on : Wed Jan 12 17:04:22 IST 2022