S.N.Srivastava - (1.) -Present petition has been filed assailing the order passed by the Vice Chancellor Deen Dayal Upadhya University, Gorakhpur dated 16.6.2006, whereby the Vice Chancellor gave 'recognition to Committee of Management consisting of 12 members of the society excluding Mohd. Abdullah in exercise of powers under Section 2 (13) of the U. P. States Universities Act, which was said to have been elected in the election held on 27.11.2005. By this order, Sri Aman Ullah Khan was recognized as President and Sri Akbar Ali Makrani was recognized as Secretary of the Committee of Management.
(2.) BEFORE dealing with the arguments of the learned counsel for the parties, it would be apt to set out a summary of facts bearing on the controversy involved in this petition. The controversy in the instant petition centres round Muslim Girls Degree College now christened as Jawwad Ali Shah Imambara Girls Post Graduate College (Hereinafter referred to as "Post Graduate College"). The society of the aforesaid college, needless to say, manages the affairs of the said Post Graduate College. A Committee of Management of which Mohd. Abdullah, petitioner No. 2 was the constituent came to be recognized by the Vice Chancellor vide his order dated 2.11.2002, the term of which was to enure upto 7.6.2005. Thereafter, a fresh election was held and the Vice Chancellor in exercise of power under Section 2 (13) of the U. P. State Universities Act, accorded recognition to the said Committee of Management vide order of the Vice Chancellor dated 26.9.2005. Subsequently by means of order dated 11.1.2006, the Vice Chancellor reviewed his own order and instead, gave recognition to Committee of Management headed by opposite parties of which Akbar Ali Makrani was claimed to have been elected as Secretary/Manager. In the wake of this order, the petitioners preferred a writ petition impugning the order dated 11.1.2006, which petition was numbered as Writ Petition No. 9808 of 2006, Jawwad Ali Shah Imambara Muslim Girls Degree College v. Vice Chancellor, Deen Dayal Upadhya University, Gorakhpur. This Court after hearing the learned counsel for the parties, quashed the order dated 11.1.2006, vide its order dated 10.3.2006 and directed the Vice Chancellor to pass fresh orders within eight weeks after affording opportunity of hearing to all concerned. It would appear that thereafter Vice Chancellor of the said University issued notices for hearing, fixing 19.5.2006. The hearing was adjourned to 29.5.2006, on which date, it would further appear, the Vice Chancellor was not present and therefore the matter was adjourned to 6.6.2006. On 5.6.2006, it would further appear, the petitioner No. 2 filed objection having complexion of preliminary objection. On 16.6.2006, the parties appeared and decision was pronounced leaning in favour of opposite parties. By means of order dated 16.6.2006, the Vice Chancellor gave recognition to the Committee of Management headed by Akbar Ali Makrani at the same time holding the Committee of Management which had earlier been recognized on the basis of election on 27.11.2005 to be invalid in exercise of power under Section 2 (13) of the U. P. State Universities Act. Learned counsel for the petitioner canvassed that by order dated 26.9.2005, the Vice Chancellor had held the Committee of Management of which petitioner No. 2 was the constituent, to be validly elected committee pursuant to election dated 5.6.2005 in exercise of power under Section 2 (13) of the Universities Act and by the impugned order he has recognized fresh Committee of Management relying upon certain documents produced by the contesting opposite party No. 5 sans any opportunity of hearing to the petitioner. It is further canvassed that inspite of petitioner's preliminary objection and demand of papers relied upon and submitted by the opposite parties no document was supplied and therefore, it is argued, impugned order was passed relying upon fresh materials relating to claims about fresh election of opposite parties. It is further canvassed that under the provisions of the U. P. State Universities Act, there is no power of review vested in the Vice Chancellor. It was further canvassed that review is a statutory remedy provided under the statute and this power cannot be exercised by any authority unless so empowered by the statute. It was further canvassed that by the impugned order, the earlier election which had been rightly recognized by the Vice-Chancellor, cannot be undone inasmuch as he has no right to review the earlier order and further he has no right to give recognition to new Committee of Management headed by Ali Akbar Makrani and it is further argued, in passing the impugned order whereby he recognized a new Committee of Management consisting of different sets of members of the society clearly amounts to review and is thus without jurisdiction. It was further canvassed that only exception to exercise the power of review in this regard is fraud and misrepresentation and there being no finding in the impugned order of any fraud and misrepresentation ascribable to the petitioners, the impugned order is open to question and therefore is unsustainable. He further submitted that in case, the Vice-Chancellor was at all inclined to rely upon certain fresh papers relating to fresh membership or of a new election as dated 27.1.2005, submitted by the contesting opposite parties, it was incumbent upon the opposite parties to supply copies of such papers to the petitioner. This having not been done, it is argued, the impugned order is one having been passed in flagrant violation of the principles of natural justice. The learned counsel also drew attention of the Court to the fact that the Committee of Management headed by the petitioner has been managing the affairs of the College since the very inception and further in view of the specific finding of the Vice-Chancellor in his earlier order leaning in favour of petitioner that Akbar Ali Makrani was not a member of the society, and therefore, he cannot be held to be a member merely on the ground that the writ petition filed against the order of the Authority under Societies Registration Act has been rendered infructuous by efflux of time. Finally, it was canvassed that the entire finding recorded by the Vice-Chancellor in the impugned order is vitiated in law and is liable to be quashed. Per contra, Sri C. L. Pandey learned counsel appearing for opposite parties contended that the petitioners had alternative efficacious statutory remedy under Section 68 of the Universities Act, 1973, before the Vice Chancellor. He further contended that ample opportunity was afforded to the petitioner and still not a single document was filed by the other side after the order dated 10.3.2006, had been passed in Writ Petition No. 9808 of 2006 and the application in the form of preliminary objection was rightly rejected on 5.6.2005. It is further contended that the copies of documents furnished by the opposite parties before the Vice Chancellor had already been supplied to the petitioner and further that the election dated 27.11.2005, was rightly recognized by the impugned order which was a speaking order and was informed with plausible reasons. He also contended that the impugned order passed by the Vice Chancellor does not amount to review but the same was passed stricto senso, in observance of the order of this Court in writ petition filed by the petitioner on earlier occasion. He also contended that the election dated 5.6.2005, electing the Committee of Management headed by petitioner was held without notice or information to the members of new body and that the Vice Chancellor rightly recognized the election in which management committee headed by opposite parties was elected. Ultimately, it has been urged that the writ petition deserves to be dismissed as findings recorded by the Vice Chancellor are based on materials on record. Facts being tangled and intertwined, the entire record was summoned by this Court, which was produced by Smt. Sunita Agarwal, learned counsel for the University. When a question was posed to Smt. Sunita Agarwal whether after receiving proceeding of election dated 27.11.2005, submitted by opposite party No. 4 copies of the proceeding of election and other papers relied upon by him were served to the petitioner when the earlier election dated 5.6.2005, electing Committee of Management headed by the petitioner having been duly recognized by the Vice Chancellor was set aside by the impugned order, Smt. Sunita Agarwal made a categorical statement that there is no indicium on record to show that any of the documents were supplied to the petitioner even for perusal. She further made a statement across the bar that after the recognition given in favour of the petitioner, a Writ Petition Bearing No. 6557 of 1991, Jawwad Ali Shah Imambara v. Asstt. Registrar, Chits funds and Societies, was dismissed for default and a letter was sent to the Vice Chancellor by the University counsel and therefore he suo motu recalled the earlier order and gave recognition to the Committee of Management headed by opposite parties. This was the cause of action for the earlier order which was quashed on the ground that it was passed without giving opportunity of hearing.
(3.) HAVING heard the learned counsel for the parties, the first question that crops up for consideration is whether the Vice Chancellor had power to review under the U. P. State Universities Act, 1973. Sri C. L. Pandey, learned counsel for the opposite parties did not have my attention called to any provision under the U. P. Universities Act, 1973, envisaging provision for review by the Vice Chancellor of his own order. In this connection, it bears no dispute that power of review is a power created by the statute and this could only be exercised by the authority vested with such power under the statute. As stated supra, no such power is envisaged in the statute of Deen Dayal Upadhya University, Gorakhpur, and therefore, impugned order commends itself for being quashed on this ground alone. Again reference be made to the argument of the learned counsel for the contesting opposite party the quintessence of which is that the order impugned herein was passed in compliance of the order of this Court and therefore the question whether power of review could be exercised by the Vice Chancellor under the Universities Act is not open to be raised by the learned counsel for the petitioner. In connection with this argument, it may be noticed that while setting aside the order as being violative of the principles of natural justice, this Court directed the Vice Chancellor to pass appropriate order after giving opportunity of hearing to the parties by a speaking order. This order of the Court cannot be construed to mean that the Vice Chancellor was given liberty to review its order. As stated supra, the power of review is not envisaged in the entire statute. From a perusal of the order, it crystallizes that the impugned order has all the indicia of having been passed by way of review. In case the Vice Chancellor had any inclination to review his earlier order, he should have noted such provision in his order and in case he was satisfied that the statute does not envisage any power of review, he should have decided the case on merits derecognizing the earlier Committee of Management and recognizing the new Committee of Management.;