# C/M Sri Malviya Inter College & Anr v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 130
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-05
- **Case number:** Writ-C No. 15295 of 2022
- **Bench:** Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-sri-malviya-inter-college-anr-v-state-of-u-p-ors-47693
- **Pages:** 7

## Headnote

A. UP Intermediate Education Act, 1921 -
Committee of Management - Single
operation - Principle of natural justice -
No notice was given before order of
single operation - Validity challenged -
Opportunity of hearing, how far can be
claimed - Tenure of three years providing
under
un-amended
Scheme
of
Administration was expired - Effect -
Held, in addition to demonstrating breach
of natural justice, proof of prejudice is
also to be demonstrated - The petitioner
having no right to continue beyond the
period of three years, is no longer
entitled to continue as Manager of the
Committee of Management - Though
notice may not have been given to the
petitioners prior to issuance of the
impugned order of single operation of the
account, no prejudice has been caused to
them. (Para 18 and 22)
Writ petition dismissed. (E-1)
List of Cases cited:-

## Text

130 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2022) 10 ILRA 130
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.09.2022

BEFORE

THE HON'BLE JAYANT BANERJI, J.

Writ-C No. 15295 of 2022

C/M Sri Malviya Inter College & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Alok Dwivedi

Counsel for the Respondents:
C.S.C., Yogesh Kumar Saxena

A. UP Intermediate Education Act, 1921 -
Committee of Management - Single
operation - Principle of natural justice -
No notice was given before order of
single operation - Validity challenged -
Opportunity of hearing, how far can be
claimed - Tenure of three years providing
under
un-amended
Scheme
of
Administration was expired - Effect -
Held, in addition to demonstrating breach
of natural justice, proof of prejudice is
also to be demonstrated - The petitioner
having no right to continue beyond the
period of three years, is no longer
entitled to continue as Manager of the
Committee of Management - Though
notice may not have been given to the
petitioners prior to issuance of the
impugned order of single operation of the
account, no prejudice has been caused to
them. (Para 18 and 22)
Writ petition dismissed. (E-1)
List of Cases cited:-
1. Committee of Management Saltnat Bahadur
Post Graduate College, Badlapur, Jaunpur & anr.
V. St. of U.P. & ors.; 1 2013 (5) ADJ 326(FB)
2. Committee of Management, Janta Higher
Secondary School & anr. Vs St. of U.P. & ors.;
2013(1) ADJ 300
3. Committee of Management, Janta Inter
College, Jaitpur Kalan, District Agra & anr. Vs St.
of U.P. & ors.; 2021 (12) ADJ 235
4. Committee of Management, Janta Inter
College & anr. Vs St. of U.P. & ors.; 2014 (1)
ADJ 111
5. Aligarh Muslim University & ors. Vs Mansoor
Ali Khan;(2000) 7 SCC 529
(Delivered by Hon'ble Jayant Banerji, J.)

1. Heard Sri Alok Dwivedi, learned
counsel for the petitioner and the learned
Standing
Counsel
appearing
for
respondents.

2. Sri Yogish Kumar Saxena, learned
counsel states that he had filed a caveat
application on 17.5.2022 on behalf of the
President
of
the
Committee
of
Management.

3. Background of the case are that the
petitioner's institution is recognised under
the U.P. Intermediate Education Act, 1921
and the Rules and Regulation framed
thereunder. The institution is under grantin-aid list of the State Government and
payment of salary of its teachers and
employees is being made under the
provisions of the U. P. High School and
Intermediate Colleges (Payment of Salaries
of Teachers and other Employees) Act,
1971.

4. There is an approved scheme of
administration and thereunder, the election
of the Committee of Management of the
institution was duly held on 25.4.2018, in
which the petitioner no.2 was elected as
Manager of the institution. The Inspector,
Kanput Dehat had recognized this election
and attested the signatures of petitioner
10 All. C/M Sri Malviya Inter College & Anr. Vs. State of U.P. & Ors.
131
no.2 as Manager of the institution. It is
stated that model scheme of administration
was issued by the Education Department by
means
of
Government
Order
dated
25.8.2011
and
the
Committee
of
Management of the institution adopted the
new
amended
model
scheme
of
administration
by
a
resolution dated
11.9.2020, which amended scheme of
administration was approved by the Joint
Director of Education by means of his
order dated 18.12.2020. It is stated in the
writ petition, that in terms of clause X of
the
newly
adopted
scheme
of
administration, the term of the Committee
of Management of the institution would be
five years that is to say the term of the
Committee of Management elected on
25.4.2018 would be upto 24.4.2023. It is
stated that the salary of teachers and
employees of the institution was being duly
paid under the signature of petitioner no.2
and the Finance and Accounts Officer and
there was no default. Even for the month of
March 2022, the salary of teachers and
employees were paid under the signature of
petitioner no.2 as Manager and Finance and
Accounts Officer in the office of Inspector,
Kanput Dehat. However, the Inspector, by
means of the impugned order dated
11.4.2022 passed an order of single
operation of the salary distribution account
of the petitioner's institution on the ground
that after expiry of three years from the
date of election dated 25.4.2018, the
Committee of Management has become
time-barred.

5. Under challenge in the present writ
petition is an order dated 11.4.2022, passed
by the respondent no.3, District Inspector
of Schools, Kanpur Dehat bearing order
No.Ma-Derapur/345-49/2022-23, whereby
an order of single operation has been
passed and also directing the President of
the petitioner's institution to place a timetable/proposal, whereby the observer for
election can be appointed and the election
in
accordance
with
the
scheme
of
administration can be effected.

6. The contention of the learned
counsel for the petitioner is that the old
scheme of administration provided three
years
term
for
the
Committee
of
Management. Under the old scheme of
administration, the last admitted election
was held on 25.4.2018. It is contended that
during the sustenance of term of that
Committee of Management, an amendment
in the scheme of administration was
proposed for extending the period of the
Committee of Management from three
years to five years which came to be
approved by the order of the Joint Director
of Education dated 18.12.2020 that has
been enclosed as Annexure-3 to the writ
petition. Learned counsel has vehemently
argued that in view of the aforesaid
approval granted by the Joint Director of
Education, the previous approved scheme
of administration was rendered redundant
and, therefore, in view of the judgement of
a full Bench of this Court in Committee of
Management
Saltnat
Bahadur
Post
Graduate College, Badlapur, Jaunpur
and another V. State of U.P. and others,
the existing Committee of Management
would have its term extended with
immediate effect.

7. It is also contended by the learned
counsel for the petitioner that the petitioner
continued to function as Manager of the
Committee of Management and was
forwarding bills for payment of salary of
the teachers and other staffs of the
institution,
illustrative
of
which
are
documents that has been enclosed as
Annexure-5 to the writ petition. Learned
132 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel states that there is no situation
existing in the management that could
support the order of single operation. It is
further contended that no opportunity of
hearing was provided to the petitioner prior
to passing of the instant order of single
operation, hence the same is in violation of
principles of natural justice and is liable to
be set aside by this Court.

8. Learned counsel for the petitioner
in support of his contention has also relied
upon judgements of this Court in the matter
of Committee of Management, Janta
Higher Secondary School and another
Vs. State of U.P. and others, Committee
of Management, Janta Inter College,
Jaitpur
Kalan,
District
Agra
and
another Vs. State of U.P. and others.

9. Learned Standing Counsel and Sri
Yogish Kumar Saxena, learned counsel
have vehemently opposed the writ petition
and stated that the term of the amended
scheme of administration as approved by
the Joint Director of Education regarding
extension of term of the present Committee
of Management for a period of five years
would not enure to the benefits of the
petitioner's Committee of Management.
Learned counsel has further stated that Full
Bench decision of this Court in Saltnat
Bahadur (supra) has been explained and
clarified by the Division Bench of this
Court in Committee of Management,
Janta Inter College and another Vs.
State of U.P. and others. It is further
contended that in view of the Division
Bench judgement of 2014 aforesaid, the
term of Committee of Management elected
on 25.4.2018 would not extend beyond the
period of three years, that is, uptill
24.4.2021 in terms of the unamended
scheme of administration. It is further
stated that under the circumstances, the
petitioner had no vested right to continue as
Manager of the institution beyond the
period of three years with effect from
25.4.2018 as specified in the previous
scheme of administration.

10. Having considered the rival
contentions of the learned counsel for the
parties, it would be appropriate to look into
the impugned order of single operation
passed by the Inspector that appears at page
50 of the writ petition which is as follows:-

"कायाालय, चजला चवद्यालय चनरीक्षक, कानपुर देहात
आदेश िं०:मा०-िेरापुर

/2022-23

चदिािंकः 11.04.2022
एकल सांिालन आदेश

श्री मालवीय इण्टर कालेज मुिंगी ापुर, कािपुर
देहार् हाईस्कूल स्तर की हायर्ा प्राप्त एविं मान्यर्ा प्राप्त
 िंस्था है, चवद्यालय में कायारर् चशक्षक एविं चशक्षणेत्तर
कमािाररयोिं की ेवायें माध्यचमक चशक्षा अचधचियम 1921
के अऩ्र्गार् व्यवहररर् होर्ी हैं र्था वेर्ि िुगर्ाि वेर्ि
चवर्रण अचधचियम 1971 के अन्तगार् चकया जार्ा है।
कायाालय में उपलब्ध पत्रावली के अिु ार चवद्यालय प्रबन्ध
 चमचर् का चवगर् िुिाव चदिािंक 25.04.2018 का म्पन्न
कराया गया था र्था चवद्यालय की प्रबन्ध चमचर् का िुिाव
प्रशा ि योजिा में चिचहर् व्यवस्था के अिुरूप चिधााररर्
र्ीि विा का कायाकाल पूणा हो िुका है र्था वर्ामाि में
प्रबन्ध चमचर् कालार्ीर् की श्रेणी में है।

अर्ः अध्यक्ष, श्री मालवीय चशक्षा प्र ार
 चमचर्, मुिंगी ापुर िन्दपुर, कािपुर देहार् को चिदेचशर्
चकया जार्ा है चक पत्र चिगामि े एक माह के अन्दर िवीि
िुिाव कराये जािे की कायायोजिा/प्रस्ताव र्ैयार कर इ
कायाालय को उपलब्ध करायें, चज े पयावेक्षक की
उपखस्थचर् में चवद्यालय प्रबन्ध र्िंत्र का िुिाव कराया जा के
 ाथ ही प्रबन्ध र्िंत्र के कालार्ीर् होिे के कारण चशक्षक एविं
चशक्षणेत्तर कमािाररयोिं के वेर्ि चवर्रण में कोई अवरोध
उत्पन्न ि हो, को दृचिगर् रिर्े हुये वेर्ि चवर्रण अचधचियम
1971 की धारा (यथा िंशोचधर्) की धारा 3(3) एविं 5 उप
धारा-2 के अधीि िंस्था श्री मालवीय इण्टर कालेज
मुिंगी ापुर, कािपुर देहार् के वेर्ि चवर्रण िार्ा, जो
अद्यर्ि चवत्त एविं लेिाचधकारी कायाालय चजला चवद्यालय
चिरीक्षक कािपुर देहार् एविं प्रबन्धक श्री मालवीय इण्टर
कालेज मुिंगी ापुर, कािपुर देहार् के िंयुक्त हस्ताक्षरोिं े
 िंिालि चकया जा रहा था, का एकल िंिालि चकया जार्ा
है जो इ आदेश के चिगामि के पश्चार् चवत्त एविं
लेिाचधकारी (मा० चशक्षा), कायाालय चजला चवद्यालय
10 All. C/M Sri Malviya Inter College & Anr. Vs. State of U.P. & Ors.
133
चिरीक्षक कािपुर देहार् के एकल हस्ताक्षर े िंिाचलर्
चकया जाएगा।

ह० अप०

(अरचबन्द कुमार चद्ववेदी)

चजला चवद्यालय, चिरीक्षक,

कािपुर देहार्।"

11. It is admitted to the parties that
the previous election that was held on
25.4.2018 was under the unamended
scheme of administration in which the
period of Committee of Management was
three years, that is uptill 24.4.2022. It is
also admitted that by the order dated
18.12.2020, the approval to the amended
scheme of administration was granted by
the Joint Director of Education rendering
the previous scheme of administration
ineffective. At this stage, it would be
pertinent to refer to the two questions
referred to the Full Bench of this Court in
the case of Saltnat Bahadur (supra)
which were as follows:

"(1) Whether the amendment will
become effective from the date of the
amendment?

(2) Whether the amendment,
extending the term of the Committee of
Management, will apply to the existing
Committee of Management, which has
made the amendment or it applies to the
Committee of Management which will be
formed after the election being held after
the amendment?"

12. While answering the second
question referred, the Full Bench observed
as follows:

"12. Following the same, the
second question is answered by holding
that the amendment, extending or curtailing
the term of the Committee of Management,
will become effective immediately and as a
result, then existing Committee shall have
its
term
extended
or
modified
in
accordance with the amendment. We may
add here by way of precaution that if the
authority
competent
to
make
the
amendment itself chooses to specify that
the amendment shall be effective from a
future date then the amendment shall apply
from such later date as may be specified.
Similarly, if the approving authority has the
necessary powers to lay down similar
stipulation, then the amendment may apply
as per conditions or stipulations laid down
by the approving authority. In absence of
such special feature or stipulation, the
amendment shall apply to the Committee of
Management
existing
on
the
date
amendment comes into force."

13. In the case of Committee of
Management, reported in 2014(1) ADJ
111(supra), this Court had the occasion to
consider the judgement of the Full Bench in
Saltnat Bahadur (supra). The Court
referred to the circular of Director dated
4.8.2003 and held as under:-

"13.............

Since the Director is vested with
a statutory power to grant or refuse his
prior approval, incidental to the exercise of
power, it is open to the Director to stipulate
that the approval shall not enure to the
body which has proposed by a resolution,
the enhancement of the term. Secondly, the
Director has, by his circular of 4 August
2003, clarified the matter beyond doubt by
stipulating that when the term of a
Committee of Management is enhanced
from three years to five years by an
amendment
in
the
scheme
of
administration,
the
benefit
of
the
amendment
will
enure
only
to
the
Committee of Management that would be
elected after fresh elections are held."
134 INDIAN LAW REPORTS ALLAHABAD SERIES

14. The Full Bench, inter alia, held
that for want of a special feature or
stipulation by the authority competent to
make the amendment to the Scheme of
Administration to make the amendment
effective from a future date, the amendment
shall
apply
to
the
Committee
of
Management existing on the date the
amendment comes into force. Given the
mandate of the Division Bench clarifying
the answer to question no. 2 of the Full
Bench, in view of the circular dated
4.8.2003, and given the fact situation of the
present case, it is evident that the term of
the Committee of Management, which was
elected on 25.4.2018 under the unamended
scheme of administration, came to an end
on expiry of three years on 24.4.2021. It is
pertinent to mention here that the existence,
currency and validity of the aforesaid
circular of 4.8.2003 is not disputed.

15. Though a photocopy of salary bill
for the month of March 2022 signed by the
Manager of the institution and the Finance
& Accounts Officer is on record, in view of
the legal position regarding the term of the
Committee of Management as discussed
above, no benefit of that can accrue to the
petitioner. Merely for the reason that no
default regarding payment of salary has
occurred, the order of single operation
cannot
be
struck
down
unless
the
petitioners establish and demonstrate that
the Committee of Management could
legally continue beyond the term of three
years on the strength of the amended
Scheme of Administration, which they
have failed to do.

16. In view of the aforesaid position,
it needs to be examined whether the
petitioner was entitled to an opportunity of
hearing under the facts and circumstances
of the case.

17. In the present case, it is iterated
that in view of the aforesaid Division
Bench judgement of this Court clarifying
the answer of the question by the Full
Bench in Saltnat Bahadur(supra), the
petitioner has no vested right to continue as
Manager of the institution beyond the
stipulated period of three years as provided
in the previous scheme of administration.

18. It has been repeatedly held by this
Court as well as by the Apex Court that in
addition to demonstrating breach of natural
justice, proof of prejudice is also to be
demonstrated. The petitioner having no
right to continue beyond the period of three
years, is no longer entitled to continue as
Manager
of
the
Committee
of
Management. At this stage, it is pertinent to
refer to the judgment of the Supreme Court
in Aligarh Muslim University and others
Vs. Mansoor Ali Khan;(2000) 7 SCC
529, in which it has been held as under:

"23. Chinnappa Reddy, J, in S.L.
Kapoor case laid down two exceptions ( at
SCC p. 395) namely, if upon admitted or
indisputable facts only one conclusion was
possible, then in such a case, the principle
that breach of natural justice was in itself
prejudice, would not apply. In other words
if no other conclusion was possible on
admitted or indisputable facts, it is not
necessary to quash the order which was
passed in violation of natural justice. Of
course, this being an exception, great care
must be taken in applying this exception.

24. The principle that in addition
to breach of natural justice, prejudice must
also be proved has been developed in
several cases. In K.L. Tripathi V. State
Bank of India Sabyasachi Mukharji, J ( as
he then was) also laid down the principle
that not mere violation of natural justice but
de facto prejudice (other than non-issue of
10 All. C/M Sri Malviya Inter College & Anr. Vs. State of U.P. & Ors.
135
notice) had to be proved. It was observed,
quoting Wade's Administrative Law (5th
Edn., pp. 472-75), as follows: (SCC p. 58,
para 31).

"It is not possible to lay down
rigid rules as to when the principles of
natural justice are to apply, nor as to their
scope and extent.... There must also have
been
some
real
prejudice
to
the
complainant; there is no such thing as a
merely technical infringement of natural
justice. The requirements of natural justice
must depend on the facts and circumstances
of the case, the nature of the inquiry, the
rules under which the tribunal is acting, the
subject-matter to be dealt with, and so
forth."

Since
then,
this
Court
has
consistently
applied
the
principle
of
prejudice in several cases. The above ruling
and various other rulings taking the same
view have been exhaustively referred to in
State Bank of Patiala V S.K. Sharma. In
that case, the principle of "prejudice" has
been further elaborated. The same principle
has been reiterated again in Rajendra
Singh V. State of M.P.

............

26. It will be sufficient, for the
purpose of the case of Mr. Mansoor Ali
Khan to show that his case will fall within
the exceptions stated by Chinnappa Reddy,
J. in S.L. Kapoor V. Jagmohan, namely,
that on the admitted or indisputable facts,
only one view is possible. In that event no
prejudice can be said to have been caused
to Mr. Mansoor Ali Khan though notice has
not been issued."

19. In the judgement cited by the
learned counsel for the petitioner, which is
reported in 2013 (1) ADJ 300 (supra),
there was a dispute with regard to the
Committee of Management which was
pending before the Joint Director of
Education and an order of single operation
was passed. The argument advanced was
that the same cannot be a ground to invoke
the provisions of U.P. Act No. 24 of 1971,
unless default is established. In this view,
the Court observed as follows:-

"5. Having heard learned counsel
for the parties, this is not a case where the
Court should await any filing of further
Affidavits as the impugned order on the
face of it is in teeth of the provisions of
U.P.
Act
No.
24
of
1971,
which
mandatorily requires the issuance of a
notice prior to passing of an order of single
operation. Admittedly, no notice was issued
to
the
petitioner-Committee
of
Management. Apart from this, the mere
pendency of a dispute cannot be the reason
for passing of an order of single operation
inasmuch as there is nothing in the order to
indicate that the payment of salary was ever
obstructed. In such a situation, the passing
of the order is absolutely unjustified."

In such a situation, the order
impugned was held to be unjustified.
However, the fact scenario of the present
case are different.

20. In the other matter cited by the
learned counsel for the petitioner, reported
in 2021 (12) ADJ 235 (supra), it appears
that during the sustenance of term of the
Committee
of
Management, 16
new
members were enrolled, out of which,
petitioner no.2 therein was also enrolled as
a member. The Manager of the Committee
of Management died, as a result, a casual
vacancy came into existence and the
petitioner no.2 being a valid member was
elected as manager for the residue period
under a resolution which was duly
approved by the Inspector. It was only on
the complaint made by the Principal of the
institution,
the
proceeding
of
single
136 INDIAN LAW REPORTS ALLAHABAD SERIES
operation was initiated without providing
an opportunity of hearing. It was, therefore,
in view of the facts of that case, the order
of single operation was set aside.

21. Therefore, the aforesaid two
judgements are of no help to the petitioner.

22. In view of the aforesaid facts and
circumstances of this case, though notice
may not have been given to the petitioners
prior to issuance of the impugned order of
single operation of the account, no
prejudice has been caused to them. In the
aforesaid judgement in Aligarh Muslim
University, the Supreme Court held that not
mere violation of natural justice but de
facto prejudice (other than non-issue of
notice) has to be proved. In view of the
indisputable facts of the present case, only
one view is possible, and that is, that the
petitioner Committee of Management had
no right to continue beyond 24.4.2021. The
benefit of the extended term of the
Committee of Management, brought about
by the amendment in the Scheme of
Administration, would not inure to the
petitioner
Committee
of
Management
which was existing on the dates of adoption
and approval of the amended Scheme of
Administration.

23. In view of the aforesaid facts and
circumstances of the case, in the opinion of
the Court, the petition has no legs to stand
and it is, accordingly, dismissed.
----------
(2022) 10 ILRA 136
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2022

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.
Writ-C No. 19361 of 2020

Allure Developers Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Samarath Singh, Sri Hritudhwaj Pratap
Sahi, Sri Sankalp Narain, Sri Siddharth
Singhal, Sri Ravi Nanda, Sri Amit Saxena
(Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Kaushalendra Nath Singh, Sri
Sarthak

A.
Local
authority
-
Zero
period
benefit - Lease deed executed, but
the possession of land could not be
handed over due to dispute with
farmer,
resulting
into
non
commencement
of
project
-
Encroachment was removed only on
21.08.2020, however claim of zero
period benefit was granted only upto
30.09.2016 - Lease rent also charged
- Legality challenged - Held, the
petitioner was liable to get zero
period benefit from 19.12.2014 up to
21.8.2020
when the encroachment
was admittedly cleared from the plot
allotted
-
Held
further,
the
respondent No. 2 is not justified to
charge the lease rent @ 2.5% of the
total premium from 19.12.2014 up to
21.8.2020. (Para 14)
Writ petition allowed. (E-1)
(Delivered by Hon'ble Pritinker Diwaker, J.
&
Hon'ble Ashutosh Srivastava, J.)

1. Shri Amit Saxena, learned Senior
Advocate assisted by Shri Siddharth
Singhal & Shri Ravi Nanda, learned
counsel for the petitioner and Shri Sarthak
under the authority of Shri Kaushalendra
Nath Singh, learned counsel for the
respondent No. 2.