Orissa High Court
Case Details
ORISSA HIGH COURT, CUTTACK W.P.(C) No.875 of 2013 In the matter of an application under Articles 226 & 227 of the Constitution of India. -------------------- The Managing Committee of Remunda Girls High School, represented through its Secretary …… Petitioner State of Orissa and others …... Opp. Parties -Versus- For Petitioner : M/s. Santosh Kumar Nanda, N.Maharana, S. Lall and D.Mahakud For Opp. Parties : Senior Standing Counsel (for opp. parties 1 to 3) M/s.P.K.Rath, R.N.Parija, A.K.Rout, S.K.Patnaik, A.Behera and A.K. Sahoo (for opp. party no.4) --------------------------------------------------------------------------------- Date of Judgment: 11.12.2013 --------------------------------------------------------------------------------- P R E S E N T: THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY AND THE HONOURABLE SHRI JUSTICE BISWAJIT MOHANTY 2 Biswajit Mohanty, J. The present case involves a litigation concerning two high schools carrying same name, i.e., Remunda Girls’ High School. So, it is literally Remunda Girls’ High School vrs. Remunda Girls’ High School. Much of the litigations over the years could have been avoided had the authorities not granted permission to two schools running in the same name. We hope the educational authorities should be careful in such matters in future. 2. Coming to the facts of the present case, as per the report submitted by the Inspector of Schools, Sambalpur Circle, Sambalpur under Annexure-1 and report under Annexure-5, Remunda Girls’ High School of which Balunkeswar Meher is the Secretary was established on 20.07.1993. However, as per Annexure-28, the said school was established on 20.07.1992. The Managing Committee of the above noted school is the petitioner in the present case. Remunda Girls’ High
Legal Reasoning
School, presently represented by Smt. Basanti Meher, which is the opp. party No.4 here, was established on 20.07.1992 as per Annexure-1 and on 27.07.1993 as per the report under Annexure-5. However, as per Annexure-28 the said school was established on 23.06.1992. Be that as it may, as per Annexure-A/4 filed by opp. party No.4, an application for permission to establish the said school (opp. party No.4) was submitted on 11.08.1992 in Form No.1 attached to the Orissa Education (Establishment Recognition and Management of Private Schools) Rules, 1991, in short, “1991 Rules” by the sponsorers. Serial No.8 of Form 3 No.1 requires sponsorers to indicate specific location of school. Against such requirement, the sponsorers of opp. party No.4-school indicated “Remunda”. At Para-11 (ii) of form No.1, the said sponsorers indicated the land area of the school in question to be three acres. But the documents under Annexure-16 series starting from the year 1999-2000 to 2007-08 containing forms of application for recognition of opp. party No.4-school addressed to Board of Secondary, Orissa show that the land of the opp. party No.4-school was situated at Jharapali Mouza pertaining to Khata No.593, Plot No.230 covering an area of three acres. Smt. Basanti Meher, present secretary of opp. party No.4 has signed application form under Annexure-16 series pertaining to session 2007- 08 on behalf of opp. party No.4-school. Earlier to that from 1999-2000 to 2005-2006, such applications for recognition have been signed by Dr. Manoranjan Meher who happens to be the husband of Smt. Basanti Meher. The applications under Annexure-16 series from 1999-2000 till 2007-2008 clearly show that the opp. party No.4-school was established in an area of 3 acres of land in mouza Jharapali covered by Khata No.593, plot No.230. For the first time, when the opp. party No.4-school applied for recognition to Board of Secondary Education in 2009-10, it was shown under Annexure-16 series that the school had land at Remunda covered by Plot Nos.2641, 2654 and 2382 covering an area of Ac 3.59 decimals under Khata Nos.1118/259 and 1118/184. 4 3. It is the contention of the petitioner that as per Annexure- 18, Khata No.593 only covers government land and the Education Department was shown as Praja/tenant/Rayat. Vide Annexure-21, one Ranjit Bhoi gifted 3 Acres of land out of Khata No.593 to opp. party No.4 committing fraud. In other words, the contention of the petitioner is that opp. party No.4-school had never three acres of land and the said three acres of land was gifted by Ranjit Bhoi under Annexure-21 belonging to government. In the background of Annexure-18, no private individual can gift the said land to the opp. party No.4-school. A perusal of Annexure-21 would show that the land gifted comes under mouza, Jharapalli and that is the reason from 1999 till 2008, opp. party No.4-school in its application to Board of Secondary Education has shown the land of the school is at Jharapalli pertaining to khata No.593 and plot No.230 covering an area of three acres. This khata number and plot number have also been reflected in Annexure-28 dated 9.1.2012. Thus, opp. party No.4, till 2008 relying on Annexure- 21 had shown land at Jharapalli in order to derive different benefits. In such background learned counsel for the petitioner contended that from very beginning the entire process of establishment of opp. party No.4-school is vitiated by fraud and this has been pointed out by Joint Director in his enquiry report under Annexure-5 wherein he made a recommendation that since opp. party No.4-school has availed all benefits on production of fraud documents it may be derecognized and 5 action may be taken in favour of the petitioner-school. Further relying on Annexure-1, learned counsel for the petitioner contended that the said report made it clear that they have got the original registration certificate whereas the opp. party No.4-school has got the certified copy of registration certificate. 4. Learned counsel for the petitioner further drew our attention to Annexure-23 and submitted that unlike the opp. party No.4-school, petitioner school purchased three acres of land from Kshiradhar Meher and accordingly from the very beginning they had the required land. So far as the land of the petitioner-school is concerned, the opp. party No.4 in its counter has relied on Records of Rights under Annexure-B/4 series and has disputed the status of most of the plots shown under Annexure-23 and pleaded that at least five (5) plots shown under Annexure-23 belong to government. Annexure-B/4 series documents have been disputed by the petitioner in his rejoinder. Further, the counsel for opp. party No.4 submitted that a perusal of Annexure-23, the sale deed, reveals that the said three acres of land is situated at mouza Talmenda. From this one thing is certain that initially the petitioner-school also did not have any land at village-Remunda. Thus there exists great dispute between the petitioner and the opp. party No.4 on the legal status of their respective lands and their location when both schools applied for permission to establish the schools. 6 5. Be that as it may when vide Annexure-2, opp. party No.2 refused to grant permission, both the petitioner-school and opp. party No.4-school preferred Appeal No.207/1995 and Appeal No.34 of 1996 respectively before the Hon’ble Minister, School and Mass Education Department. Pursuant to judgment rendered in Appeal No.34/1996 by the Hon’ble Minister, School and Mass Education Department vide Annexure-3, opp. party No.4 was granted permission for establishing the school with effect from 1996-97. Vide Annexure-4 petitioner-school was grated temporary recognition for the academic year 1996-97. Vide Annexure-24 series the petitioner-school purchased 3.05 decimals from one Ghanashyam Meher at Remunda on 1.11.1999. On 2.12.1999, enquiry report under Annexure-5 was prepared by Joint Director (Schools) who submitted that the opp. party No.4 being the beneficiary of forged document may be derecognized. He made it clear that the building of opp. party No.4-school stands on a government plot. On 4.1.2000 vide Annexure-6, the Hon’ble Minister School and Mass Education Department pronounced his judgment in Appeal No.207/95 filed by the petitioner-school and directed opp. party No.2 to accord permission for establishment of the school of the petitioner. Simultaneously, the Hon’ble Minister directed to derecognize opp. party No.4 as it has availed all benefits on production of forged documents. Opp. party No.4 filed O.J.C. No.3880 of 2000 challenging the order under Annexure-6. On 8.5.2000, this Court directed that any action 7 taken on the basis of Annexure-6 would be subject to result of the writ petition. Further, on 18.7.2000, this Court passed an interim order in O.J.C. No.3880 of 2000 restraining the authority from taking any steps for derecognizing opp. party No.4 pursuant to order under Annexure-6. However, it was also made clear that no grant-in-aid should be paid to the institution. All these orders have been filed as Annexure-7 series to the writ petition. However on 20.02.2004 (Annexure-9), the opp. party No.1 notified opp. party No.4 as a private educational institution eligible to receive grant-in-aid and also that it would become an aided educational institution with effect from 1.1.2004. But in reality grant- in-aid has been directed to be paid to opp. party No.4 vide Annexure-15 dated 15.12.2012, i.e., much after disposal of O.J.C. No.3880 of 2000 on 6.11.2007. It appears that sometime during 2005-2007 upon acquisition of some land, Record of Rights of plots covering an area of Ac 2.39 decimals have been issued in favour of opp. party No.4 under Annexure-I/4. 6. During 2006, opp. party No.4 filed G.I.A. No.139 of 2006 before the Education Tribunal, Orissa, Bhubaneswar praying for approval and release of grant-in-aid. While the same was pending, O.J.C. No.3880 of 2000 filed by opp. party No.4 was disposed of vide Annexure-11 with an observation that order passed in Appeal No.207/1995 under Annexure-6 shall not affect current status of opp. party No.4. Against the order dated 6.11.2007 under Annexure-11, the 8 present petitioner has filed RVWPET No.13 of 2009 on 19.1.2009. However, till date, the same has not been moved. During 2007, the petitioner filed G.I.A.No.268 of 2007 challenging Annexure-9 issued in favour of opp. party No.4 and for notifying the petitioner as a grant-in- aid institution before the Education Tribunal, Orissa, Bhuabneswar. During pendency of the above noted G.I.A. No.268 of 2007, the petitioner filed W.P. (C) No.1467 of 2007 for antedating permission and recognition of its school for the year 1993-94. Vide order dated 20.3.2008 under Annexure-10 series this Court came to a finding that the application for permission was filed by the petitioner during 1993- 94 and the same having been rejected by the High Power Committee, the petitioner preferred Appeal No. 207/1995 before the appellate authority. The appellate authority allowed the appeal. Thus cause of action related back to the year of application and not the date of
Decision
disposal of the appeal. In view of such position, this Court disposed of W.P. (C) No.1467 of 2007 with direction to opp. parties therein to pass necessary orders in consonance with the aforesaid observation. Accordingly, the law department on 25.2.2011 under Annexure-10 series also opined that permission be granted from the academic session 1993-94 in favour of the petitioner. We are told at the bar that an order has been passed antedating permission to petitioner-school from 1993-94. 9 7. On 31.12.2009, G.I.A. No.139 of 2006 was dismissed by the Education Tribunal vide Annexure-12 dated 03.12.2009. However, the learned Tribunal made an observation that notification dated 20.2.2004 (now Annexure-9) is the final list and the officials committed illegality in not approving the appointment of a staff of opp. party No.4. But in view of dismissal of G.I.A. No.139 of 2006, all the observations made therein in favour of opp. party No.4 have no meaning. Sometime thereafter opp. party No.4 has filed W.P. (C) No.18636 of 2010 for antedating its permission and recognition to 1992-1993. This Case was disposed of by this Court on 10.11.2010 under Annexure-G/4 with a finding that the opp. party No.4 applied for permission during 1992-93, the same having been rejected, the opp. party No.4 preferred an Appeal and since the appellate authority allowed the appeal, the cause of action related back to the year of application and not the date of disposal of the appeal. In such background, this Court disposed of W.P. (C) No.18636 of 2010 vide Annexure-G/4 directing the opp. parties to pass necessary orders in consonance with the aforesaid observation. But till date no order has been passed by the authorities. In the meantime, vide order dated 29.9.2010 under Annexure-13, the Education Tribunal pronounced its judgment in G.I.A. No.268 of 2007 filed by the petitioner. There, the learned Tribunal did not set aside the order under Annexure-9. However, the learned Tribunal directed consideration of claim of the petitioner-institution for Grant-In-Aid. 10 Sometime thereafter, opp. party No.4 has filed W.P. (C) No.19630 of 2011, inter alia, praying for release of consequential benefits in terms of Annexure-9. The said writ petition was disposed of by this Court on 7.9.2011 directing the authorities to dispose of the representation only. On 14.12.2011, the Inspector of Schools, Sambalpur Circle, Sambalpur visited both the High Schools and submitted his report vide Annexure-28/Annexure-M/4. It may however be noted here that a comparison of Annexure-28/Annexure-M/4 with Annexure-5 would show that the report of Inspector of Schools is a superficial one inasmuch as it only gives the present staff positions. This gives an impression that as if prior to 2000, the petitioner-school had no staff despite being established much earlier. A perusal of report of Joint Director of Schools under Annexure-5 would show that prior to 2000 about 13 teaching and non-teaching staff were working in the petitioner-school. So far as the staff position with regard to the petitioner-school under Anneures-5 and 28 is concerned, the name of one Mohini Acharya is common. However, when under Annexure-5, the qualification of Mohini Acharya has been shown to be M.A. in Hindi; under Annexure-28 the qualification has been shown to be B.A. in Hindi. Further, the very fact that the name of Mohini Acharya appeared under Annexure-5 dated 2.12.1999, the same would show that she was working prior to 16.6.2000 in the school. Thus, the report of Inspector of Schools under Annexure-28 cannot be accepted as presenting true 11 picture. Further, he relies on lands covered under Annexure-21 for opp. party No.4-school when status of those lands are disputed and described as belonging to government. In any case, sometime after, vide Annexure-15 dated 15.12.2012, the government has directed for release of grant-in-aid in favour of opp. party No.4 and rejected the prayer of the petitioner for grant-in-aid as being devoid of merit and that Grant- In-Aid to petitioner-institution would be considered when the school would become otherwise eligible. 8. Challenging the notification under Annexure-9 and government order under Annexure-15, the present writ petition has been filed by the petitioner. In the present writ petition, the petitioner has prayed that the orders under Annexures-9 and 15 being based on forged documents as highlighted under Annxures-5 and 6 be quashed and accordingly opp. party No.4-school should be derecognized. The petitioner has also prayed for a declaration that his school is the first girls’ high school in Remunda Grama Panchayat. The petitioner has also prayed that it should be declared as eligible to receive grant-in-aid with effect from 2004 as per Grant-In-Aid Order 2004 and accordingly opp. parties 1 to 3 be directed to sanction grant-in-aid to petitioner- school. Lastly, petitioner has prayed for an investigation/enquiry by a competent authority. 9. Heard Mr. Santosh Kumar Nanda, learned counsel for the petitioner, learned Senior Standing Counsel for opp. parties 1 to 3 and 12 Mr. P.K.Rath, learned counsel for opp. party No.4. Gone through the written submissions filed by the petitioner and opp. party No.4. 10. In course of argument, Mr. Nanda, learned counsel for the petitioner mainly pointed out that a conjoint reading of Annexures-18 and 21 would show that opp. party No.4-school (while applying for permission to open the said school), had no legally recorded land in it’s name. Rather it had relied on the land as conveyed to it under Annexure-21 and since the land covered under Annexure-21 are government lands, it has committed fraud upon the authorities. The said fact has been clearly indicated in the enquiry report under Annexure-5 to the writ petition, and accordingly, vide Annexure-6 direction was issued to derecognize the opp. party No.4-school. Further, Mr. Nanda submitted that even as per Annexure-21, the land was situated at Jharapalli and not at Remunda and therefore, till 2007-08 in all applications for recognition under Annexure-16 series, land at Jharapalli was shown. Only with effect from 2009-10, opp. party No.4 showed land at Remunda. Thus, initially the opp. party No.4 had no land at Remunda, but playing fraud got permission to establish the school. Mr. Nanda also contended that even unilateral change of scheduled land from Jharapalli to Remunda is an act of fraud and the same is impermissible. So far as order passed under Annexure-11 to the effect that Annexure-6 would not affect the current status of opp. party No.4-school, he has submitted that he has filed Review Petition 13 styled as RVWPET No.13 of 2009 to review the order under Annexure-11. On Annexure-9 he submitted that he has challenged the same in G.I.A. No.268 of 2007 and vide Annexure-13 dated 29.9.2010, the learned Tribunal did not accede to his payer to quash Annexure-9. Challenging the same he has filed W.P. (C) No.3242 of 2013. Shri Nanda submitted that against Annexure-9, there was no scope for him to file an appeal. He further submitted that both the Review Petition, i.e., RVWPET No.13 of 2009 and W.P. (C) No.3242 of 2013 are sub-judice before this Court. In order to check the status of RVWPET No.13 of 2009 and W.P. (C) No.3242 of 2013, we called for both the files and found that though the Review Petition and W.P. (C) No.3242 of 2013 were filed on 19.01.2009 and 8.2.2013, the same have not yet been moved for the reasons best known to the petitioner. Under such circumstances, these petitions/matters cannot be described as sub- judice. On Anneuxre-9, learned counsel for the petitioner further submitted that the same should not have been issued in view of the order passed by this Court on 18.7.2000 in O.J.C. No.3880 of 2000 under Annexure-7 series. Further, he relied on the decision of this Court as reported in AIR 1969 Orissa 80 (Abodha Kumar Mohapatra and others v. State of Orissa and others), 2010 (1) OLR 712 (Antaryami Nanda v. Board of Management, Paradeep Port Trust 14 and others), AIR 1972 SC 2157 (Bachan and another v. Kankar and others) and 2007 AIR SCW 2212 (A.V.Papayya Sastry and others v. Government of A.P. & others). The first two decisions relate to laws relating to consequence in absence of specific denial and law of pleadings and proof of facts. Last two decisions of the Hon’ble Supreme Court relate to fictitious entry and use of forged and fraud documents and their impact. Additionally, he contends that when a judgment or order has been obtained by fraud, such judgment/order is nullity in the eyes of law. 11. On the other hand, learned senior Standing Counsel for School and Mass Education Department has strongly objected to the prayer of the petitioner and has vehemently argued that in the facts and circumstances, no illegality has been committed in issuing Annexures-9 and 15. 12. Counsel for the opp. party No.4 raised the question of maintainability of the writ petition. First, he pointed out that so far as Annexure-9 is concerned; after disposal of G.I.A. No.268 of 2007 filed by the petitioner challenging Annexure-9 on 29.9.2010 (Annexure-13) in which Anneuxure-9 was not quashed, the petitioner cannot again challenge the same now in the present writ petition. With regard to W.P. (C) No.3242 of 2013 challenging Annexure-13, Mr. Rath, learned counsel for opp. party No.4 pointed out that the said writ petition is not maintainable as appeal lies under Section 24-C of the Orissa Education 15 Act. Since Section 24-C provides a period of 60 days for preferring appeal and since the petitioner has not preferred an appeal against Annexure-13 in 2010 itself; in order to overcome that difficulty he has deliberately filed W.P. (C) No.3242 of 2013. With regard to Annexure- 15, Mr. Rath, learned counsel for the petitioner submitted that the petitioner can challenge the same before the Education Tribunal in accordance with the law as provided under Section 24-B of the Orissa Education Act, 1969. With regard to the prayer for de-recognition of opp. party No.4-school, Mr. Rath submitted that his school has got adequate quantity of land in the name of opp. party No.4 in Remunda Grama Panchayat and the petitioner if aggrieved has got remedy under Section 6-B (2) of Orissa Education Act, 1969. Since the petitioner has not raised any of his grievance before the prescribed authority, the present writ petition filed with such a prayer for de-recognition of opp. party No.4, is not maintainable. He also submits that in view of documents under Annexure-B/4 series, legal status of the land under Annexure-23 is highly questionable and petitioner himself is guilty of fraud and manipulation. He further submits that most of the lands shown under Annexure-23 belong to government. So far as school of opp. party No.4 is concerned, Mr. Rath, stated that under Anneaxure- I/4 series, the R.O.R. shows that opp. party No.4-school has enough land in its name. With regard to prayer of the petitioner that his school should be declared as first girls’ high school, Mr. Rath, submits that 16 since his school was established on 23.06.1992, petitioner’s school cannot be described as 1st school. With regard to the prayer of the petitioner that he should be declared eligible to receive grant-in-aid, Mr. Rath, submits that he has no objection if the petitioner’s school is allowed grant-in-aid. However, he objected to the petitioner’s prayer for an investigation/enquiry by the competent authority. Further, Shri Rath reiterated that as per Annexure-11, current status of his (opp. party No.4) school cannot be affected. 13. In such background, let us examine whether the prayer of the petitioner made in the writ petition merits acceptance. As indicated earlier, the writ petition involves highly disputed question of facts and this Court may not be the proper forum to resolve all these disputes. Be that as it may, so far as prayer to quash the order under Annexure-9 is concerned, it may be noted here that the same was issued on 20.2.2004 during pendency of O.J.C. No.3880 of 2000. In the said O.J.C. as indicated earlier, on 18.7.2000, a direction was there that no Grant-In-Aid shall be paid to opp.party No.4 but the same nowhere prohibited for issuance of a notification under Annexure-9 showing eligibility of opp. party No.4. Therefore, much cannot be read into the submission of Mr. Nanda, learned counsel for the petitioner that Annexure-9 should not have been issued during pendency of O.J.C. No.3880 of 2000. Petitioner himself was a party to that O.J.C. and 17 should have protested about Annexure-9 then and there. Rather he filed G.I.A. No.268 of 2007 challenging Annexure-9 dated 20.2.2004, belatedly during 2007 only. While disposing of G.I.A.No.268 of 2007 filed by the petitioner vide Annexure-13, the learned Tribunal did not quash Annexure-9. Nothing prevented the petitioner from challenging Annexure-13 immediately by filing an appeal under Section 24-C of Orissa Education Act, 1969. In fact till date, no such appeal has been filed. Rather W.P. (C) No.3242 of 2013 has been filed by the petitioner challenging Annexure-13 and the same is yet to be moved. For all these reasons, at this stage, the prayer of the petitioner to quash Annexure-9 cannot be granted. So far as prayer to quash Annexure-15 is concerned, the petitioner can challenge Annexure-15 before the Education Tribunal under Section 24-B of the Orissa Education Act, 1969 or any available legal forum. It may be noted here that W.P. (C) No.19630 of 2011 was disposed of only with a direction to dispose of the representation. Thus, there was no adjudication while disposing of the said writ petition. Needless to say that before Education Tribunal the petitioner can also challenge the findings against him under Annexure-15 and can make a prayer for declaring itself to be eligible to receive Grant-In-Aid with effect from 2004. If such motion is made before the learned Education Tribunal, the same may be decided by the learned Tribunal strictly in accordance with law. 18 14. So far as the prayer for de-recognition of opp. party No.4 is concerned, it may be noted here that the same prayer is made mainly on the basis of documents under Annexures-5 and 6 and the status of land procured for the school. It may be noted here that Annexure-6 was/is based on enquiry report under Annexure-5. Annexure-6 was challenged by opp. party No.4 in O.J.C. No.3880 of 2000. The said writ petition was disposed of vide Annexure-11 with an observation that order passed in Annexure-6 shall not affect current status of opp. party No.4. As indicated earlier, RVWPET No.13 of 2009 has been filed by the petitioner seeking review of order under Annexure-11. In such background, prayer to derecognize opp. party No.4-school cannot be granted at this stage. Needless to say that additionally an aggrieved party has also got remedy under Section 6-B of the Orissa Education Act, 1969 to move for withdrawal of reorganization given to any education institution. 15. So far as the prayer of the petitioner to declare his school as first girls’ high school is concerned, we think that a decision on the same would depend on consequential orders to be passed pursuant to direction of this Court in W.P. (C) No.18636 of 2010. Under such circumstances, we express no opinion on the same. In the background of above noted findings and observations, we do not think it necessary to discuss the impact of decisions cited by learned counsel for the petitioner at this stage. 19 16. With the above observations, the writ petition is disposed of. Interim order granted earlier stands vacated. No costs. .………………………….. Biswajit Mohanty, J. Pradip Mohanty J. I agree Pradip Mohanty, J. …..………………………….. High Court of Orissa, Cuttack Dated 11th December, 2013/bns