IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA & THE STATE OF ANDHRA PRADESH (Special Original Jurisdiction) MONDAY, THE FIFTEENTH DAY OF DECEMBER TWO THOUSAND AND FOURTEEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION Nos.28654 and 35018 of 2014, 15800, 20763, 23604 and 23806 of 2011 and 13688 and 30239 of 2012 BETWEEN Nutan Vidya Samithi and others.
AND ... PETITIONER Government of Telangana, Rep. by its Principal Secretary, School Education, Secretariat, Hyderabad and others.
...RESPONDENTS Counsel for the Petitioner: MR. C. RAGHU Counsel for the Respondents: GP FOR EDUCATION (TG) MR. M. NARENDRA REDDY For MR. M. SRIKANTH REDDY The Court made the following:
COMMON ORDER:
This batch of writ petitions are filed by two groups and for the sake of convenience the groups are described as ‘owners’ and ‘managing society’ of Lalgiriji Maheshgiriji Goswamy Vidyalaya (LMG High School), Shah-i-nayathgunj, Begum Bazar. Since both the groups have filed various writ petitions, which are dealt with hereunder, in order to appreciate the controversy, the background facts are necessary to be kept in mind. In this order, the background facts are narrated based on the affidavits of both the groups as well as upon the detailed report of the Commissioner and Director of School Education, Andhra Pradesh dated 26.02.2013 addressed to the Principal Secretary, School Education Department.
2. The background facts are as under:
(a) LMG High School is located at premises No.14-4-242 and 244/2 at Shahinayatganj. The aforesaid property was owned by late Sri Lalgiriji, who is the common ancestor of the owners, who belong to royal family of Gosai community. After the death of Lalgiriji, his chela Maheshgiriji succeeded to the property, he was a philanthropist, who established LMG high School in 1946 in the memory of his guru. The school was established for promoting Hindi, which was their mother tongue, as a medium of instruction.
After Maheshgiriji, the chain of succession, ultimately, devolved on Sri Chandrabhan Giriji, Sri Mukund Giriji and Sri Ghanshyam Giriji.
All the three brothers are now no more and are succeeded by the present owners.
(b) Towards end of December 1957, the management of the school, as agreed by the owners, was transferred to another educational society viz. Nutan Viday Samithi (hereinafter referred to as ‘Managing Society’) and an agreement dated 01.12.1957 was, accordingly, executed by the owners in favour of the managing society and it was further provided in the agreement that if the school is successfully managed for one year, the building of the school will also be transferred to the managing society by a gift deed and the managing society will have to maintain the building. The managing society was also authorized to form a governing council of which the Chairman would be one of the owners and the school managing society will effectively administer the school. In pursuance of the said agreement, the school is being managed by the managing society.
(c) In the year 1959, the Government had sanctioned a grant of Rs.42,900/- for construction of school building of LMG High School vide G.O.Ms.No.835 dated 18.03.1959 but the requirement for availing the said grant was that the school should be the owner of the building. In view of that, the owners executed a registered gift deed, being document No.614/1965 dated 05.03.1965, in favour of LMG Vidyalaya and the aforesaid school premises admeasuring 1230 sq. yards stood transferred to the said school and based on that, the Government grant was availed by the school.
(d) While the managing society continued to manage the school, the owners, ultimately, came to be represented by one Sri Veerendra Giriji. In May 2011, the owners noticed that a new RCC building was being constructed in the place of earlier structure and a hoarding was displayed on the school premises that Gowtham Model School was proposed to be opened in the said new building and the construction was undertaken by the managing society through correspondent of LMG High School. The said incident resulted in serious differences between the managing society and the owners and the later were of the view that the managing society only had a right to manage the school but had no right to enjoy the immovable property of the school and further have no right to convert part of the school premises into English medium school and thereby, their object of establishing LMG High School was likely to be defeated. On the complaint of the owners, GHMC confirmed that no permission was accorded by it for construction of a new building and appropriate notices were issued to the LMG High School for taking up unauthorized constructions and they were asked to stop the construction immediately by issuing show cause notice under Section 452(1) of the HMC Act and further notice under Section 461 of the HMC Act.
(e) The owners, therefore, felt that the correspondent of the managing society was acting detrimental to the interest of the LMG High School. Hence, they instituted a suit, O.S.No.1381 of 2011, before the XX Junior Civil Judge, City Civil Court, Hyderabad for perpetual injunction and obtained temporary injunction dated 07.07.2011 restraining the managing society from executing or registering any document and another order of temporary injunction was also obtained restraining the Gowtham Model School from opening their branch within the petition schedule premises. Ultimately, the said suit was decreed on 23.01.2014. In view of the said development, the Gowtham Model School was closed down and as on today, the LMG High School is in possession and control of all its properties.
(f) Meanwhile, the owners formed their own society in the name of ‘Lalgiriji Maheshgijiri Goswamy Samithi’ and one Smt. Niraja Giriji was appointed as the Secretary/Correspondent of the society.
The owners made a representation dated 22.07.2011 before the District Collector requesting him to recognize Smt. Niraja Giriji as Secretary/Correspondent of LMG High School. The intervention by the District Collector was called for, as the owners alleged that the MPLADS fund was misutilized for the construction of the building and thereby, the Governmental interest to that extent was involved. Based on that, the District Collector directed a detailed enquiry to be conducted and the Greater Hyderabad Municipal Corporation has also taken appropriate steps by issuing notices, referred to above.
(g) The owners also approached this Court in WP.No.15800 of 2011 complaining inaction on the part of GHMC against illegal constructions taken up by the managing society. The managing society also approached this Court in WP.No.20763 of 2011 seeking a mandamus to the Government not to recognize any third party as Correspondent of the LMG High School.
(h) While so, the District Educational Officer under his proceedings dated 17.08.2011 appointed Special Officers for routine administration of the school. Alleging that the said orders are passed without conducting any enquiry, the owners questioned the same in WP.No.23806 of 2011. The managing society also questioned the said orders by filing WP.No.20763 and 23604 of 2011 against the Special Officers’ appointment. The owners also filed WP.No.30239 of 2012 seeking direction to pay salaries to the teaching and non-teaching staff.
(i) At this stage, the District Educational Officer, who was the competent authority, was of the opinion that the managing society has a right to manage and administer the school subject to finalization of Court cases. The District Educational Officer under his proceedings dated 01.05.2012 cancelled the appointment of Special Officers and restored the correspondentship in favour of the managing society subject to finalization of the Court cases. Questioning the said order dated 01.05.2012, the owners filed a revision before the Government and pending the said revision, the order dated 01.05.2012 was stayed by the Government. Ultimately, the revision before the Government came to be dismissed by order of the Government dated 06.01.2014, thereby, the proceedings of the District Collector dated 01.05.2012 stood revived. Questioning the dismissal of the revision, the owners filed an application for review, which has been considered and allowed by the Government under order dated 09.09.2014. Challenging the same, the managing society has filed WP.No.28654 of 2014.
3. During the hearing of the last of the said writ petitions, it was noticed that as many as 8 writ petitions between the parties are pending before this Court. Hence, on the request of the learned counsel appearing for both parties, all the matters were clubbed and heard together and in order to give a quietus to this litigation, to the extent possible, all these writ petitions are disposed of by this order.
WP.No.28654 of 2014:
4. Looking at the last of the orders impugned, passed by the Government dated 09.09.2014, it is apparent that the said order is passed on the application for review filed by the owners and by the said order, the Government had not only allowed the review but thereby the earlier order of the Government dated 06.01.2014 dismissing the revision of the owners was reversed and the revision came to be allowed.
5. The power of revision and review exercised by the Government is regulated by Sections 90 and 91 of the A.P. Education Act, which are extracted hereunder:
“90. Power of revision by the Government: -
(1) The Government may, either suo motu or on an application from any person interested, call for and examine the record of an educational institution or of any authority, officer or person in respect of any administrative or quasi-judicial decision or order, not being a proceeding in respect of which a reference to an arbitrator or an appeal to the High Court is provided, to satisfy themselves as to the regularity, correctness, legality or propriety of any decision or order passed therein; and if, in any case it appears tot the Government that any such decision or order should be modified, annulled or reversed or remitted for reconsideration, they may pass order accordingly:
Provided that the Government shall not pass any order adversely affecting any party unless such party has had an opportunity of making a representation.
(2) The Government may stay the execution of any such decision or order pending the exercise of powers under sub-section (1) in respect thereof.
(3) Every application preferred under sub-section (1) shall be made within such time, and in such manner and accompanied by such fees as may be prescribed.
91. Review. –
(1) The Government or the Director may suo motu at any time or on an application received from any person interested within ninety days of the passing of any order under the provisions of this Act, review any such order, if it was passed by them or him under any mistake, whether of fact or of law, or in ignorance of any material fact.
(2) The provisions contained in the proviso to sub-section (1) and in sub-sections (2) and (3) of Section 90 shall, so far as may be, apply in respect of any proceeding under this section as they apply to a proceeding under sub-section (1) of that section.”
6. A bare reading of these two provisions would show that while considering the review petition, the provision with reference to revision petition are to be followed, which includes that no adverse order shall be passed without hearing the respondents. It is evident from the order of the Government dated 09.09.2014 itself that while allowing the review of the owners, no notice appears to have been issued to the managing society and only based upon certain developments, which were brought to the notice of the Government by the owners, the review was straightaway allowed.
7. Neither the learned Government Pleader for Education nor the learned senior counsel for the owners seriously contested the said factual and legal position and evidently, the said order dated 09.09.2014 cannot be sustained even assuming that there exists any valid ground for review of the earlier order of the Government dated 06.01.2014. The said order, which is impugned in WP.No.28654 of 2014, therefore, is liable to be set aside and is accordingly set aside.
8. The consequence of setting aside the said order dated 09.09.2014 would, in normal course, be remitting the matter back to the Government for reconsideration of review petition, after notice and opportunity hearing to the owners as well as the managing society. However, looking at the facts of the case, which are briefly narrated above and the pendency of large number of writ petitions and dispute between the two groups, in my view, the said consequential course is not warranted from the facts and in circumstances of these cases.
As is evident from the narration above, the dispute between the two groups centers round the correspondentship of LMG High School and the connected claims of the managing society as well as the owners are required to be considered with a view to resolve the said issue.
9. Various writ petitions, filed and pending, as listed above, are mostly arising out of the dispute relating to correspondentship and keeping that in mind, learned senior counsel for the owners and learned counsel for the managing society also readily agreed that all these writ petitions be disposed of by giving appropriate directions so as to minimize the dispute with a view to find a resolution.
10. At this stage, it is also required to be kept in mind that earlier all these writ petitions were heard by this Court and in due consideration of the controversy one of my learned Brothers had passed an order dated 29.10.2013, which is extracted hereunder:
“Until further orders are passed, the interim arrangement worked out by the Collector and District Management, Hyderabad in appointing a Deputy Educational Officer and Deputy Inspector of Schools to be in- charge of the management of the school, in question shall continue. So that the salary and allowances of all employees can be drawn and disbursed without any hindrance or hiccup and further the management of the school can be attended to.
Sri Raghu, learned counsel appearing on behalf of respondent Nos.8 and 9, would submit that the petitioners have already preferred a revision before the Government against the orders approving the appointment of the 9th respondent as correspondent of the school and the Government, without in any manner being influenced by the fact of pendency of these writ petitions or any other proceeding, shall taken up the same and decide as expeditiously as possible. Therefore, it shall be open to the Government to deal with the revision preferred by the petitioners in accordance with the law.”
The aforesaid order was passed by this Court prior to hearing and disposal of the revision before the Government.
However, thereafter, there have been subsequent developments where the revision was dismissed and thereafter, the review petition of the owners was allowed giving rise to filing of WP.No.28654 of 2014 by the managing society.
11. The correspondentship of an educational institution is subject to approval and recognition by the competent authority and Section 24 of the A.P. Education Act provides the mechanism therefore. Section 24 of the Act is extracted hereunder:
“24. Appointment and removal of manager of private institution: -
(1) The management of every private institution shall be constituted in such manner and shall consist of such number of members as may be prescribed:
Provided that the Board of Trustees, or Governing Body or Wakf Board, by whatever name called, constituted or appointed under any other law for the time being in force relating to the charitable and religious institutions and endowments and wakfs, shall be deemed to be a management constituted under this sub-section.
[Provided further that the constitution of the management under this sub-section shall apply to a minority educational institution, in so far as it is not repugnant to Clause (1) of Article 30 of the Constitution of India].
(2) The management shall, for the purposes of this Act, nominate a person to manage the affairs of the institution, whether called by the name of secretary, correspondent or by any other name, and intimate such nomination within thirty days thereof to the competent authority.
(3) (a) Where the competent authority is satisfied that the management is responsible for the lapses or irregularities of the institution, the competent authority may, after giving to such management an opportunity to make representation and for reasons to be recorded in writing suspend the management and appoint a special officer till the reconstitution of the management:
Provided that in relation to a private institution, under the management of a charitable or religious institution, charitable or religious endowment and a wakf, the competent authority shall be the Government or an authority or officer authorized by the Government in this behalf.
[Provided further that no management of minority educational institution shall be suspended under this sub-section save for mis- management].
(b) Where the competent authority is satisfied that the manager alone is responsible for the lapses or irregularities of the institution, action shall be taken against him by the management, as recommended by the competent authority.
(4) The competent authority may, for reasons to be recorded in writing, declare a person to be unfit to be the manager of a private institution after giving to such person an opportunity of making his representation against such declaration and under intimation to the management and on such declaration, the person aforesaid shall cease to be the manager of the private institution and the management of such institution shall nominate another person as a manager in his place in accordance with the provisions of sub-section (2).
[Provided that no manger of a minority educational institution shall be declared to be so unfit under this sub-section save for mis- management].
(5) xxx
(6) For the removal of doubts it is hereby declared that any failure or willful negligence on the part of a management to take action against the manager as required under Clause (b) of sub-section (3) or to nominate another person as manager under sub-section (4) shall constitute an act of mismanagement and action shall be taken against the private institution under this Act accordingly.”
12. As already recorded by me, hardly any purpose would be served remitting the review petition before the Government for fresh disposal inasmuch as the Government is not the competent authority for the purpose of Section 24 of the Act and the Rules framed under the Act prescribe the competent authority for different categories of schools such as primary schools, high schools etc. Since undisputedly, the District Educational Officer is the competent authority for the LMG High School, in my view, the interest of justice would be appropriately served if appropriate direction is given to the District Educational Officer to examine the claims of the managing society as well as the owners with respect to correspondentship of the school and after conducting due enquiry, take an appropriate decision in the matter. Further, in the meanwhile, the direction issued by this Court in this batch of writ petitions earlier, which is extracted above, is required to be made operative pending appropriate adjudication by the District Educational Officer, as above.
WP.No.28654 of 2014 is accordingly allowed and the impugned order of the Government dated 09.09.20124 is set aside. There shall also be a Mandamus to the District Educational Officer, Hyderabad to examine the claims of the managing society as well as the owners with respect to correspondentship of the school and after conducting due enquiry, take an appropriate decision in the matter. Pending consideration of the matter and orders to be passed by the District Educational Officer, the Deputy Educational Officer and the Deputy Inspector of Schools shall continue to be in-charge of the management of the LMG High School and they shall relinquish their charge in favour of the correspondent, who will be appointed by the District Educational Officer in terms of the directions hereinabove.
WP.No.15800 of 2011:
13. This writ petition relates to the complaint file by the owners against the construction made by the managing society. Since the GHMC has already taken appropriate action by issuing notices, in my view, no further direction are called for in the writ petition.
The writ petition is accordingly dismissed.
WP.No.20763 of 2011:
14. The managing society filed the present writ petition challenging the order of the District Educational Officer in recommending third party as correspondent of LMG H igh School. In view of the directions issued hereinabove in WP.No.28654 of 2014, the relief sought for does not survive.
The writ petition is accordingly dismissed.
WP.Nos.23604 and 23806 of 2011:
15. The managing society and the owners filed the respective writ petitions questioning the order of the District Educational Officer dated 17.08.2011 appointing the person-in-charge to the LMG High School. That relief also does not survive in view of the directions issued hereinabove in WP.No.28654 of 2014.
The writ petitions are accordingly dismissed.
WP.No.13688 of 2012:
16. This writ petition is filed by the owners challenging the proceedings of the District Educational Officer dated 01.05.2012.
The said order was already subject matter of revision before the Government and the revision having been dismissed, the said challenge cannot be reexamined in the writ petition simultaneously with the revision. In any case, in view of the directions issued hereinabove in WP.No.28654 of 2014, the relief sought for does not survive.
The writ petition is accordingly dismissed.
WP.No.30239 of 2012:
17. This writ petition is filed by the owners seeking relief against the Collector to ensure payment of salaries to the teachers. Since that aspect is already taken care of by the earlier orders of this Court, extracted above as well as the directions issued in WP.No.28654 of 2014, no further orders are necessary in this writ petition.
The writ petition is accordingly dismissed.
WP.No.35018 of 2014:
18. This writ petition is filed by the managing society questioning the proceedings of the Collector and the District Magistrate dated 30.09.2014 wherein he approved the appointment of Smt. Niraja Giriji as correspondent. Since the Collector has no authority to pass any order under the A.P. Education Act and as noted in WP.No.28654 of 2014 that it is only the competent authority, which can exercise power under Section 24 of the A.P. Education Act viz. the District Educational Officer in this case, the order of the Collector cannot be sustained and is accordingly set aside.
The writ petition is accordingly allowed, however, subject to the directions as issued in WP.No.28654 of 2014.
In the result, WP.Nos.28654 and 35018 of 2014 are allowed and WP.Nos.15800, 20763, 23604 and 23806 of 2011 and WP.Nos.13688 and 30239 of 2012 are dismissed. As a sequel, the miscellaneous applications, if any, shall stand closed. There shall be no order as to costs.
VILAS V. AFZULPURKAR, J December 15, 2014 DSK