Allahabad High Court
Committee Of Management, Lal Bahadur ... vs Gorakhpur University And Another on 22 February, 1999
Equivalent citations: 1999(2)AWC1470, (1999)2UPLBEC957, 1999 ALL. L. J. 1553, 1999 A I H C 3907, (1999) 2 ALL WC 1470, (1999) 3 ESC 1965, (1999) 2 UPLBEC 957
Author: O.P. Garg
Bench: O.P. Garg
JUDGMENT O.P. Garg, J.
1. There is a Jawahar Lal Nehru Memorial Society, Maharajganj, which is a society registered under the Societies Registration Act under the aegis of which two Post Graduate Colleges, viz., Jawahar Lal Nehru Smarak Post Graduate College, Maharajganj (for short 'J.L.N. College'), and Lal Bahadur Shastri Smarak Degree College. Anand Nagar, Maharajganj (for short 'L.B.S. College') are being run. Both these institutions have separate bye-laws for constitution of Committee of management their governance and management. These institutions are affiliated to Gorakhpur University and are governed by the provisions of U. P. State Universities Act, 1973 (hereinafter referred to as 'the Act of 1973') and the first Statute of the University.
2. The short and die-hard question raised in this writ petition is whether the term of the Committee of Management of L.B.S. College is for a period of three years or only one year. This controversy has been raised in the wake of following facts :
The last elections to constitute the Committee of Management of L.B.S. College were held on 21.7.1996 and Dr. Balram Bhatt--Petitioner No. 2 is alleged to have been elected as its President/Manager. The relevant papers with regard to the said elections were submitted to the Vice-chancellor, Gorakhpur University for grant of recognition under the provisions of Section 2(13) of the Act of 1973. who accorded recognition which fact was communicated to the petitioners by letter dated 10/12.9.1996. Annexure-2 to the writ petition. In the said letter, it was clearly mentioned that the term of the Committee of Management of which" Dr. Balram Bhatt--Petitioner No. 2 is the President/Manager shall be three years. Accordingly, the petitioners' Committee of Management continued to manage the affairs of L.B.S. College. Surprisingly a letter dated 9.9.1998, Annexure-4 to the writ petition was sent by the Registrar of the University to the petitioners intimating them that on scrutiny of the papers, it was found that in view of the decision dated 23.11.1988 passed by this Court in Civil Misc. Writ Petition No. 843 of 1988, the term of the Committee of Management of L.B.S. College is only one year, and consequently tenure of the Committee of Management elected on 21.7.1996 has already come to an end. The grievance of the petitioners is that the aforesaid impugned order dated 9.9.1998 has the effect of illegally curtailing the period of term of the Committee of Management from 3 years to one year though according to the provisions made in clause 8 y the term of the Committee of Management is 3 years and the committee elected on 21.7.1996 has to function up to 20.7.1999. It is alleged that Sri Ramesh Chandra Misra, the present Vice-Chancellor of the Gorakhpur University is a person, who is in the fold of Amarnath Misra and Narsingh Narain Pandey, rival parties with whom long drawn litigation with petitioner No. 2 is going on and at their behest, the Vice-Chancellor has passed the impugned illegal order. The background in which certain observations with regard to the term of one year of the Committee of Management came to be made in the order dated 23.11.1988 passed in Civil Misc. Writ Petition No. 843 of 1988 have been narrated and the case of the petitioners is that it was on account of misconception of facts that it was observed in the decision of the aforesaid writ petition that the parties have admitted that the term of the Committee of Management of both the colleges was one year.
3. The petitioners have heavily relied upon the admission made by Amarnath Mishra, the contesting respondent in the earlier cases that the term of the Committee of Management of L.B.S. College is 3 years. Accordingly, by means of this writ petition, under Article 226 of the Constitution of India, it is prayed that the impugned order dated 9.9.1998. Annexure-4 to the writ petition. Issued by Gorakhpur University be quashed and the respondents be restrained from taking any action, whatsoever, on the basis of the said order or to interfere, in any manner, in the functioning of the petitioners to manage the affairs of L.B.S. College.
4. Amarnath Mishra, a rival claimant, filed a caveat and appeared through Sri R.N. Singh, Senior Advocate. He raised a preliminary objection about the maintainability of the present writ petition. After hearing Sri Ashok Khare, learned counsel for the petitioners and Sri R. N. Singh, learned counsel for the caveator, the following order was passed by this Court on 21.9.1998 at the initial stage of the case :
"Heard Sri Ashok Khare, learned counsel for the petitioners and Sri R. N. Singh, who appears on behalf of A. N. Mishra, caveator.
In this writ petition, the order dated 9.9.1998 communicated by the Registrar, Gorakhpur University has come to be challenged whereby it has been intimated that the term of the Committee of Management of L.B.S. Smarak Post Graduate College, Anand Nagar, district Maharajganj is one year. Sri Ashok Khare, learned counsel for the petitioners pointed out that the term of the Committee of Management is three years as has been earlier held by the Vice-Chancellor of the University.
Sri R.N. Singh appears on behalf of the caveator Amarnath Misra who claims himself to be Manager of the College. A preliminary objection was taken that the present petition is barred by the provisions of Section 68 of the U. P. State Universities Act, 1973, and since an efficacious remedy is available to the petitioners, present writ petition is not maintainable. In support of his contention, the learned counsel placed reliance on a number of decisions.
The bar of alternative remedy is in fact, a self-imposed restriction by the Court. In suitable cases, even if alternative remedy is available, the writ petition may be entertained. In the present writ petition, Sri Khare pointed out that the impugned order has been passed without affording any opportunity of hearing to the petitioners, thereby flagrantly violating the principles of natural justice and in such a case, the bar of alternative remedy should not be applied. It was also urged that the Vice-Chancellor had no power to review his earlier order.
After having heard the learned counsel for the parties. I find that subject to the objection raised by Sri R.N. Singh, with regard to the maintainability of the present writ petition. It would be appropriate to hear the parties on merits of the case also. Let contesting respondents file counter-affidavit by 5th October, 1998.
Put up this case for further hearing on 7th October, 1998.
Till the next date fixed, the Vice-Chancellor, Gorakhpur University shall not pass any further order with regard to the affairs of the Committee of Management of Lal Bahadur Shastri Smarak Degree College, Anand Nagar, district Maharajganj.
Sd./-
O. P. Garg. J.
21.9.1998"
5. Counter-affidavits have been filed on behalf of Amarnath Mishra along with an application for impleadment, as well as on behalf of the Gorakhpur University. With the consent of the learned counsel for the parties, this writ petition is being finally disposed of at this stage in accordance with the Rule of Court.
6. Heard Sri Ashok Khare, assisted by Sri S. C. Dwivedi, learned counsel for the petitioner and Sri R.N. Singh, learned Senior Advocate, assisted by Sri A.P. Sahi on behalf of Amar Nath Misra as well as Sri Dilip Gupta on behalf of the Gorakhpur University.
7. On behalf of the respondents, it is reiterated that the present writ petition is not maintainable in view of the fact the petitioners have not exhausted the alternative remedy under Section 68 of the Act of 1973. On merits of the case, it is maintained that the order dated 10.9.1996. Annexure-2 to the writ petition is manipulated and procured document as the election of the petitioners alleged to have taken place on 21.7.1996 could not be recognised by the Vice-Chancellor and that when true facts came to light that it has been finally decided between the parties in Civil Misc. Writ Petition No. 843 of 1988 that the period of Committee of Management of L.B.S. College is one year, the University has rightly issued the impugned letter dated 9.9.1998. It is also urged that the copy of the bye laws. Annexure-1, filed by the petitioner is forged and fictitious document and the petitioner No. 2 has been taking shifting stands to suit the exigencies of the case as in his application addressed to the Vice-Chancellor on 11.9.1998, a copy of which has been filed as Annexure-SCA-7 to the short counter-affidavit of the University, he has taken the stand that the period of Committee of Management of L.B.S. College is 5 years and not three years.
8. Let us first clear the cobwebs with regard to the preliminary question of maintainability of the writ petition. Sri R.N. Singh, learned counsel for Amar Nath Misra urged that it is not permissible to invoke the jurisdiction of this Court under Article 226 of the Constitution of India by by-passing the machinery designed and designated by the Act of 1973 of the determination of dispute in hand. According to learned counsel the order of the Vice-Chancellor dated 9.9.1998. Annexure-4 to the writ petition, is undoubtedly subject to reference under Section 68 of the Act of 1973. In support of his contention. Sri Singh placed reliance on the decision of this Court dated 30.7.1998 in Civil Misc. Writ Petition No. 20732 of 1998, Committee of Management, Jawahar Lal Nehru Post Graduate College and another v. Gorakhpur University, filed by the present petitioners, pertaining to an election dispute of the J.L.N. College. The said petition was dismissed as not maintainable on the clear finding that it was not maintainable as the petitioner had failed to exhaust the comparatively more effective and efficacious remedy provided under Section 68 of the Act of 1973. It was pointed out that the decision in the aforesaid case was appealed against and the Special Appeal No. 597 of 1998 was dismissed as being devoid of merits on 10.8.1998 by a Division Bench of this Court. The petitioners, it was pointed out carried the matter to the Apex Court by filing a Special Leave to Appeal (Civil) Petition No. 15128 of 1998 but met with no better luck as the petition was dismissed on 23.9.1998. Besides placing reliance on the decision aforesaid, a reference was made to the earlier decisions of this Court in Ved Pal Singh v. Vice-Chancellor, Meerut University, Meerut, 1981 UPLBEC 356 ; Dr. Nand Kumar Singh v. Benaras Hindu University, Varanasi and others, (1990) 1 UPLBEC 215 ; Committee of Management, Dharma Samaj College, Aligarh and others v. Vice-Chancellor, Agra University and others, (1994) 3 UPLBEC 1666. A reference was also made to Gujarat University v. N. U. Rajguru, AIR 1988 SC 66. Existence of adequate legal remedy is a factor to be taken into consideration in the matter of granting writ, is the view taken by the Apex Court in the case of Rashid Ahmad v. Municipal Board, Kairana, AIR 1950 SC 163. This case was followed in subsequent case of K. S. Rashid and Sons v. Income Tax Investigation Commission, AIR 1954 SC 207. In all the above cases as well as a plethora of other decisions of the Apex Court and this Court, a firm view has been taken that where an alternative efficacious and adequate remedy is available, a petition under Article 226 of the Constitution shall not be entertained. Side by side, there is another line of decisions in which it has been held that the bar of alternative remedy is not an inflexible rule but a rule of mere policy, convenience and discretion. The bar of alternative remedy is not to be applied with rigidity in every case which comes up before the Court. A specific and clear rule was laid down in Stale of U. P. v. Mohd. Nooh, AIR 1958 SC 86, in which it was observed as follows :
"But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies."
9. The matter came to be considered by the Constitution Bench of Apex Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadwani, AIR 1961 SC 1506, which summarised the legal position as below :
"The passages in the judgment of this Court we have extracted would indicate (1) that the two exception which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the breadlines of the general principles on which the Court should act having been clearly laid down, the application to the facts of each particular case must necessarily be dependent on a variety of individual fact which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."
Similar view was taken in another decision of the Constitution Bench of the Apex Court in the case of Calcutta Discount Co. v. I.T.O., Companies Distt., AIR 1961 SC 372. A reference was also made to the decision of the Apex Court in the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U. P.) and others, AIR 1987 SC 2186 and Dr. Bal Krishna Agarwal v. State of U. P. and others, (1995) 1 SCC 614.
10. The power under Article 226 of the Constitution can be exercised by the High Court not only for issuing the writ for enforcement of any of the fundamental rights contained in Part III of Constitution but also for any other purpose. The power to issue writs under the aforesaid Article is plenary in nature and is not limited by any other provision of the Constitution. The question of alternative remedy with reference to the power of the High Court under Article 226 of the Constitution to be considered in a very recent decision of the Apex Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1. After analyzing the various authorities, the Apex Court observed that much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution in spite of the alternative statutory remedies, is not affected specially in a case where the authority against whom the writ is filed, is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. Law as it stands, has been summarized in paragraph 15 of the aforesaid decision as under :
"Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decision of the evolutionary era of the constitutional law as they still hold the field."
In my view, law is no cold-blooded craft bound by traditional techniques and formal forceps handed down to us in the form of precedents, but a warm blooded art with a break for the past and a tyrist with the present deriving its sole force from the current plant of the decision of the Apex Court, the latest of which is Whirlpool (supra).
11. Sri Ashok Khare, learned counsel for the petitioners is right in making the submission that the bar of alternative remedy is a self-imposed restriction and in exceptional circumstances where alternative remedy is illusory or is not equally efficacious, there is nothing to prevent the High Court to entertain the petition under Article 226 and to decide the same on merits. In the backdrop of the law discussed above, it is well-established that there is no rule of law which absolutely bar entertainment of the writ petition under Article 226 on the ground of availability of alternative remedy.
12. As distinguished, from the mere question of fact, whether the term of the Committee of Management of L.B.S. College is three years or one year, the interpretation and the impact of certain observations made in the decision of this Court dated 23.11.1988 in Civil Misc. Writ Petition No. 843 of 1988 is involved. The following observations :
"......It is admitted to the parties that the term of the office bears of the Committee of Management shall be one year from the date of their election provided that the term of the office-bearers shall continue till their successors are elected at the next annual general meeting. Since the term of the Committee of Management is only one year, it would be only of academic interest to go into the validity of the impugned orders passed by the respondent Nos. 1 and 2 (Chancellor and Vice-Chancellor, Gorakhpur University) upholding the validity of the election of the Committee of Management held in November, 1985 and hence it would not be necessary to go into the validity of the impugned orders."
in the decision dated 23.11.1988 have been made the sheet anchor by the Vice-Chancellor to observe in the impugned letter dated 9.9.1998 that the term of the Committee of Management of the L.B.S. College is only one year. This order rests on fragile foundation and reads more like ipsi dixit. In view of clear cut observation made in the decision, aforesaid, based on the admission of the parties, the Chancellor would not be able to give effective and efficacious interpretation of and verdict with regard to the true import of the judgment of this Court. Ultimately, of necessity, this Court is required to interpret its own order passed in earlier writ petition. Not only this, it is accepted at all hands that the impugned order dated 9.9.1998 has been passed by the Vice-Chancellor without affording an opportunity of hearing to the petitioners the resultant effect of which is that the impugned order is in .flagrant violation of the principles of natural justice. An elected Committee of Management was duly recognised by the Vice-Chancellor under the provisions of Section 2 (13) of the Act of 1973 in the year 1996 observing that the term of the newly elected committee shall be three years. It is amazing to note that the impugned order dated 9.9.1998 was issued without performing even the empty formality of giving notice to the petitioners and thus undisputedly, the said order is against all the canons of principles of natural justice. In a case where there is a blatant and patent violation of principles of natural justice, the writ court would not hesitate to step in with a view to rectify the mistake. There are cases when law bends before justice. The anxiety of this Court is that the element of justice should not be sacrificed at the altar of the concept of alternative remedy. The legal proposition whether the parties can be permitted to make an admission against their pleadings and the specific provisions made in the bye-laws, can well be considered and decided by this Court. It is not a mere case of factual controversy between the parties. The forum of Section 68 of the Act of 1973 though available for the petitioners, is not, in the circumstances of the case, efficacious. In my view, this petition cannot be thrown out on the mere ground that petitioners have an alternative remedy of a reference under Section 68 of the Act.
13. Now it is time to consider the merits of the case. In clause 8 y of the bye-laws of L.B.S. College, a copy of which is Annexure-1 to the writ petition, it is specifically provided that the term of the Committee of Management shall be three year from the date of the election. The last election was held on 21.7.1996 in which petitioner No. 2 was elected as President-cum-
Manager of the Committee of Management. In view of the aforesaid provisions in the bye-laws, the term of the petitioners' in Committee of Management is to expire on 20.7.99. This is the position, which was accepted by the Vice-Chancellor while issuing the order dated 10/12.9.1996, Annexure 2 passed under Section 2 (13) of the Act of 1973. Subsequently, on 9.9.1998, the impugned letter, Annexure 4 was issued by the Registrar of the University obviously for and on behalf of the Vice-Chancellor, that in view of the decision of this Court in Civil Misc. Writ Petition No. 843 of 1988, the term of the Committee of Management of L.B.S. College is only one year and, therefore, the tenure of the committee elected on 21.7.96 stands expired.
14. Now let us look into the circumstances, in the background of which, observations made in the decision dated 23.11.1988 in Civil Misc. Writ Petition No. 843 of 1988, on the plank of which, the impugned letter dated 9.9.1998 is based, came to be and the impact of the said observation on the controversy in hand. The dispute in aforesaid writ petition pertained to both the Committee of Management of J.L.N. College and L.B.S. College. Dr. Balram Bhatt, who claimed himself to be the Manager of the two institutions challenged the order of the Vice-Chancellor on 9.3.1987 as affirmed by the Chancellor on 26.10.1987 whereby the claim of Dr. Balram Bhatt was rejected and the claim of Nar Singh Naryan Pandey and Amar Nath Misra and their Committee of Management was recognised. The said petition was decided in view of the agreement between the parties and since a fresh election of the Committee of Management was long overdue, it was directed that the fresh elections of the office-bearers of the Committee of Management of the two colleges shall be held by and under the supervision of the Director of Education, U. P. Lucknow or by any Additional Director of Education nominated by him within a period of six weeks from the date of presentation of the certified copy of the order dated 23.11.1988. After stating the facts of the case, it was observed that both the parties, seeing the futility of litigation have happily agreed to end the litigation by a compromise formula. It was further observed that it is admitted to the parties that the term of the office-bearers of the Committee of Management shall be one year from the date of their election and so on. Bye laws governing the constitution of the Committees of Managements of the two colleges were filed in the aforesaid writ petition as Annexure-2 with regard to J.L.N. College and Annexure-3 in respect of L.B.S. College. The term of the Committee of Management of J.L.N. College was one year while that of L.B.S. college it was three years. It was apparent from a bare perusal of the two sets of Bye-laws that the term of the Committees of Management of the two colleges was quite distinct and different. It was pointed out on behalf of the contesting respondents that Dr. Balram Bhatt had filed a review application which was allowed by order dated 16.1.1989, a copy of which is Annexure 10 to the writ petition and that this fact was not pointed out in the recall application that the term of the Committee of Management of L.B.S. college is 3 years and not 1 year. It was also urged on behalf of the contesting respondents that Dr. Balram Bhatt has himself admitted the position, as stated in the decision dated 23.11.1988 by holding annual elections which took place on 26.2.1992, 29.6.1993, 30.6.1994 and 21.7.1996.
15. I have given thoughtful consideration to the matter and find that the observation made in the decision dated 23.11.1988 in Civil Misc. Writ Petition No. 843 of 1988 that the term of the Committee of Management of L.B.S. college is one year is clearly against the provisions of its bye laws. From a bare perusal of the bye laws, governing the Committee of Management of L.B.S. College as well as that of J.L.N. College, it would be apparent that the term of the Committee of Management of L.B.S. college was three years while it was one year in respect of J.L.N. College. In the recall application, which was decided on 16.1.1989, some alleged undertaking given by a Senior Counsel for Dr. Balram Bhatt was sought to be nullified. It appears that the observations in question came to be made on account of misconception of fact which occurred as in the bye-laws of J.L.N. College, the term of the Committee of Management was only one year. Parties in that petition were in fact, not in issue as to what is the term of the committees of management of the two colleges. They had simply agreed for holding of the elections to constitute fresh committees of management of the two colleges. The above conclusion is further fortified by the subsequent events which had taken place. In pursuance of the orders passed in Civil Misc. Writ Petition No. 843 of 1988, fresh elections were notified and conducted by the Director of Education (Higher Education). A writ petition was filed to challenge the election proceedings held on 16.2.1991 in which by order dated 26.2.1991 passed by this Court, directions were issued for holding of fresh elections by Director of Education (Higher Education) after determination of the list of members of the general body by the Registrar, Firms, Societies and Chits. Consequently, the Assistant Registrar decided the question of membership of the general body of the two colleges by order dated 4.5.1991. The result of the election of the office bearers of the Committees of Management of the two colleges was declared on 6.7.1991. Dr. Balram Bhatt who was declared elected as President and Manager of the Committees of Management of both the colleges received approval of the Vice-Chancellor, Gorakhpur University. The said election was challenged by Dr. Amar Nath Misra and Nar Singh Narain Pandey claiming themselves to be the Manager and President respectively by filing Civil Misc. Writ Petition No. 22808 of 1991 which was allowed by learned single Judge on 22.12.1992, Against the said order, Dr. Balram Bhatt filed a Special Appeal No. 73 of 1993, which was allowed by a Division Bench of this Court on 2.8.1994. Aggrieved, Amar Nath Misra and Nar Singh Narain Pandey filed a Special Leave Petition No. 21863 of '1994 before the Apex Court. It was dismissed on 2.8.1994. A review petition filed by Amar Nath Misra and others was also dismissed by the Apex Court on 18.7.1995. It would be pertinent to note that in Civil Misc. Writ Petition No. 22808 of 1991, filed by Amar Nath Misra and others, it was pleaded in paragraph 14, pertaining to certain averments made in regard to L.B.S. College, that the term of the nominated members of the managing committee shall be only 3 years though they may be re-nominated (para 10 of Articles of Association). In the same paragraph 14 of the writ petition, para 15 of the Articles of Association was quoted which runs as follows :
"15. The term of members.--Term of office-bearers and members shall be three years from the date they are elected provided that the term of every office bearer shall be deemed to have ended or to have continued till his successor is elected....."
The same provisions of the Articles of Association were repeated in paragraph 2 (xi) of the Special Leave Petition No. 21863 of 1994 filed by Amar Nath Misra and others. It is, thus clear that even after the decision dated 23.11.1988 in Civil Misc. Writ Petition No. 843 of 1988, Amar Nath Misra and others have been acknowledging, accepting and asserting in unequivocal terms that the tenure of the Committee of Management of L.B.S. college and its members bearers is 3 years. This acknowledgment and acceptance is obviously in keeping with the provisions made in the bye-laws governing the Committee Management of L.B.S. College.
16. Much emphasis has been laid on behalf of the respondents that the observation in question came to be made on the strength of the admission made by the parties, and, therefore, the petitioners cannot be allowed to wriggle out of the admission made before the Court. There is no denying the fact that the alleged admission was clearly contrary to the provisions made in the bye-laws about the term of the Committee of Management of L.B.S. College. In clause 8 y of the bye-laws, a copy of which is Annexure-1 to the writ petition, it is clearly mentioned that the term of the Committee of Management is three years. On behalf of the respondents, it is stated that Annexure-1 to the writ petition is a forged, fictitious and manufactured document. This sweeping and bald allegation which remains unsupported by any concrete and tangible evidence, cannot be accepted. If the bye-laws. Annexure-1 to the writ petition are forged and fictitious, there was nothing to prevent Amar Nath Misra, the contesting respondent, to bring on record the genuine bye-laws which according to him were in existence, contrary to the bye-laws filed by the petitioners in the form of Annexure I. The bye-laws of L.B.S. College were filed in Civil Misc. Writ Petition No. 843 of 1988, as Annexure-3. Howsoever unequivocal, conscious and clear an admission may be, it cannot override or do away with the provisions made in the bye-laws which undoubtedly have a statutory force. An admission made against statutory provisions is inoperative and inconsequential. In any case, the admission was not only against the bye-laws but against the pleadings of the parties as well.
17. The observations made in the decision dated 23.11.1988 in Civil Misc. Writ Petition No. 843 of 1988 are not sacrosanct so that they cannot be explained. In order to understand and appreciate the binding force of a decision, it is always necessary to see what are the facts of the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as full exposition of law or the fact. Only essence of the decision and its ratio is binding and not every observation found therein. It is not everything said by a Judge while giving judgment that constitutes a precedent. A decision is only an authority for which it actually decides. Therefore, what is the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in that judgment. The above observation finds support from the decision of the Apex Court in Union of India v. Dhanwanti Devi, (1996) 6 SCC 44, as well as decision of this Court in the case of Surendra Singh Negi v. Union of India, (1998) 3 UPLBEC 2347. In the wake of the above legal position. It may be observed that the observations in question made in the decision dated 23.11.1988 in Civil Misc. Writ Petition No. 843 of 1988 were not germane to the controversy in that writ petition. In any case, the observations were in serious discord with the provisions made in the bye-laws of L.B.S. College. The fact that the parties have admitted that the term of the Committee of Management of the two colleges was one year is of no consequence as the alleged admission, if at all, was against the statutory provision. If a statute or for that matter, a bye-law makes a specific provision that the term of the Committee of Management is three years, no amount of admission, submission or argument discordant to the statute/ bye laws shall be admissible or workable. No party, by making admission, can be permitted to nullify the provisions of law. To avoid prolixity, suffice it to say that on lifting the veil and looking at the conspectus of the factors governing the term of the Committee of Management of L.B.S. College, the naked truth though draped by misconception of facts, is easily discernible and the real fact that the term of the Committee of Management of L.B.S. College is three years becomes apparent and admits of no doubt. The Court must be acute to avoid the mischief and achieve the purpose of law. The myth of legal appearance should not mislead it.
18. A short and swift reference may be made to the submission of the learned contesting respondent that the observations, in question, were not only based on admission of the parties but had in fact been acted upon by Dr. Balram Bhatt himself by taking resource to annual election which have taken place on 26.2.1992, 29.6.93, 30.6.94 and 21.7.96. This submission cannot be sifted in isolation but has to be read in conjunction with the various representations made by Dr. Balram Bhatt to the Vice-Chancellor. In paragraph 43 of the writ petition, it has been asserted by Dr. Balram Bhatt that he represented before the University from time to time that the term of the Committee of Management of L.B.S. College was three years as specified in the bye-laws and fresh elections were not required to be held on annual basis. At least two representations dated 1.3.1993 and 2.3.1993. Annexures-6 and 7 to the writ petition have been brought on record. It is not for the first time that the petitioners have sprang a surprise after the issue of the impugned letter dated 9.9.1998 by asserting that the term of the Committee of Management is three years and not one year. Way back from the year 1993, the petitioners have been asserting that the term was three years. As said above, this fact was also accepted by the contesting respondent Amar Nath Misra in Civil Misc. Writ Petition No. 22808 of 1991. Again the submission made on behalf of the contesting respondent Amar Nath Misra is wide off the mark in view of the bye-law which provides three years term of the Committee of Management of L.B.S. College. This term cannot be curtailed or enhanced unless the bye law is amended in accordance with the procedure prescribed. There is no dispute about the fact that the bye-law which makes a provision for amendment has not been invoked to curtail the term of the Committee of Management. The provision of clause 8 y of the bye-law remains unamended and unaffected. From the capsulated presentation of the conspectus of facts and without doing violence to the provisions of the bye-laws, Annexure-1 to the writ petition, there is no scope for hesitation or doubt about the fact that the term of the Committee of Management of L.B.S. College is three years and this term cannot be curtailed or choked off by any machination or interpretation. The observations made in the order dated 23.11.1988 in Civil Misc. Writ Petition No. 843 of 1988 cannot be made a basis for curtailing the term of the Committee of Management from 3 years to 1 year. The correct legal position, is reflected in the order of the Vice-chancellor dated 10/12.9.1996, a copy of which is Annexure-2 to the writ petition. Subsequently, there was no occasion or reason for issuing the impugned letter dated 9.9.1998. Annexure-4 to the writ petition, which in effect has curtailed the term of the Committee of Management elected on 21.7.1996 duly recognised under Section 2 (13) of the Act of 1973. The term of the Committee of Management elected on 21.7.1996 is to expire on 20.7.1999.
19. There is another aspect of the matter. The impugned letter dated 9.9.1998 is further bad in law for the reason that it has been passed in flagrant violation of the principles of natural justice. It is accepted at all hands that the University has issued the impugned letter without affording an opportunity of hearing to the petitioners. The said letter has the effect of curtailing the term of the Committee of Management from three years to one year. In the earlier letter dated 10/12.9.1996. Annexure 2 to the petition, by which Vice-Chancellor has granted recognition to the Committee of Management elected on 21.7.1996, it was specifically mentioned that the term of the committee shall be three years. Subsequent letter dated 9.9.1998. Annexure-4 to the petition, has come as a bolt from the blue as it springs a surprise on the petitioners that the term of the Committee of Management instead of being three years, is to be treated as one year. The University has failed to observe even an empty ritual of issuing a notice before issuing the said letter. The rights of the petitioner's committee to continue for the full term of three years could not be throttled in the manner it was done by the Vice-Chancellor. At least on this point, there was an agreement between the learned counsel for the parties that since the Vice-Chancellor has failed to observe the principles of natural justice, the matter may be referred back to him for consideration afresh after notice to the parties so that their respective points of view may be considered and decided. Now that I have myself recorded the finding on the issue after hearing learned counsel for the parties and taken into consideration the material brought on record, it is no longer necessary to refer the matter for decision afresh by the Vice-Chancellor.
20. In view of the foregoing discussions, the writ petition succeeds and is allowed. The order dated 9.9.1998, Annexure-4 to the writ petition issued by respondent No. 1--Gorakhpur University is hereby quashed. Since the term of the Committee of Management of L.B.S. College is three years, the Committee elected on 21.7.1996 shall continue to function till 20.7.1999. Parties shall bear their own costs.