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Punjab-Haryana High Court
Shambhu Dayal Modern School vs State Of Haryana & Others on 16 March, 2021CWP No. 28235 of 2017 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.28235 of 2017 (O&M)
Date of Decision:16.03.2021
Shambhu Dayal Modern School and another
……Petitioners
Versus
State of Haryana and others
…… Respondents
CORAM:- HON’BLE MRS.JUSTICE LISA GILL
Present: Mr. Shailender Jain, Sr. Advocate
with Mr. Sushil Jain, Advocate
for the petitioner.
Mr. Sumit Gupta, Addl.AG., Haryana
for respondents no.1 and 2.
Mr. Vikas Suri, Advocate
for respondent no.3.
Mr. Rajesh Hooda, Advocate
for respondent no.4.
Mr. Ram Pal Verma, advocate
for respondent.12.
Mr. Gaurav Kumar, Advocate
for Mr. Deepak Jindal, Advocate
for applicants (in CM-2015-CWP of 2019 and CM-904-CWP of
2021).
*****
LISA GILL, J(Oral).
This matter is being taken up for hearing through video
conferencing due to outbreak of the pandemic, COVID-19.
Petitioners, Shambhu Dayal Modern School, Gohana Road,
Sonepat and Shambhu Dayal Modern High School Society, have filed this
writ petition seeking a direction to respondent no.1 to initiate enquiry/action
against allegedly defaulting administrators who were appointed by
respondent no.7 i.e., District Registrar of Societies, Sonepat (Industries and
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Commerce Department), Sonepat, between the period 12.06.2014 to
15.09.2016 as it is alleged that the petitioner school suffered huge loss due to
failure on part of the administrators to perform their duties diligently. It is
further prayed that permission be granted to the petitioner to sell part of the
property belonging to the petitioner which stands attached in order to
discharge statutory and other liabilities. Petitioner also seeks a writ in the
nature of prohibition against respondents no.1 to 7 to restrain them from
taking any punitive action against the petitioner-School for recovery of the
outstanding amount towards its statutory liabilities till final adjudication of
this writ petition. Compensation for the loss incurred by the petitioner due
alleged non-fulfillment of statutory obligation/duties on the part of the
administrators, is also sought.
Brief facts necessary for adjudication of the case are that the
petitioner school is run by petitioner no.2-Shambhu Dayal Modern High
School Society, Sonepat, which was registered in the year 1974 under
Societies Registration Act, 1860 and is presently governed by the Haryana
Registration and Regulation of Societies Act, 2012 (for short ‘Societies
Act’) and the Rules framed there under. Dispute arose regarding election of
the governing body held in the year 2011-12. Respondent no.7-District
Registrar, while exercising power vested in him under the Societies Act,
appointed the Sub-Divisional Magistrate, Sonepat as Administrator of the
school on 12.06.2014, Annexure P-3. Following Administrators looked after
the administration of the school for the period as mentioned hereunder:-
1. Sh. Amit Khatri 12.06.2014 to 09.02.2015.
2. Ms. Amma Tasneem 10.02.2015 to 20.10.2015.
3. Sh. Shaleen Rohilla 21.10.2015 to 07.12.2015.
4. Sh. Nishant Yadav 08.12.2015 to 15.09.2016.
It is stated in the writ petition that earlier there were about 4000
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students being imparted education in the school, but the number decreased
abysmally due to improper functioning of the Administrators. Prior to
appointment of the administrator, the petitioners decided to retrench surplus
teaching as well as non-teaching staff by abolishing certain posts. About 38
writ petitions were filed in the year 2013 challenging action of the
management abolishing the said posts and consequential termination. The
said writ petitions were disposed of on 20.09.2017, Annexure P-2, by
relgating the petitioners therein to approach the Educational Tribunal and
avail the remedy available to them. A number of writ petitions had
admittedly been filed by the teaching and non-teaching staff.
Election of the managing committee was held and the elected
managing committee took over charge of the society as well as school from
the Administrator on 15.09.2016. It is averred in the writ petition that on
account of default on the part of Administrators, contribution under the ESI
Act was not deposited. Liability also arose under the EPF Act. Land
measuring 19 K, 13 Marla in killa No. 8/27/1, 27/2, belonging to the
petitioners, it is stated was attached by the Tehsildar, Sonepat on 13.10.2017
on account of recovery of Rs.1,52,32,287/- along with interest at the rate of
9% of the amount of gratuity to be paid to the employees of the school. A
proposal to sell 2850 sq. yards of land was set up in the writ petition while
submitting that the entire liability of the petitioners could be discharged, in
case permission is afforded to sell the said land, which admittedly stood
attached in the proceedings detailed in the writ petition.
Evidently, primary prayer raised in the writ petition even at the
initial stage, was for permission to sell the attached property of the
petitioners, purportedly to discharge its statutory liabilities. Similar is the
prayer at the time of final arguments. It is relevant to note that at the initial
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stage, petitioner had set-forth a proposal for sale of 2850 sq. yards land as
depicted in the site plan, Annexure P-17.
Notice of motion was issued in this case on 19.01.2018 by a
Coordinate bench while noting contentions of the petitioner, which read as
under:-
“This petition is preferred by the Shambhu Dayal Modern
School, Gohana Road, Sonepat, in which it has been inter alia
prayed that in order to discharge its statutory liability, the
petitioner may be permitted to sell its property much-less the
vacant land shown in the site plan attached as Annexure P-17.
Learned Senior counsel has submitted that the financial
health of the school was good before appointment of the
Administrator repeatedly from 12.06.2014 to 15.09.2016 but
during their tenure(s), not only the strength of the co-
educational school has been drastically reduced but also the
society, which is running the school, has been saddled with the
statutory liabilities, may be of Employee State Insurance Fund,
Provident Fund, Income Tax and the award of the Labour Court
etc. only because of the reason that the Administrators did not
take much interest in the functioning of the school as the
governing body had been taking. To a pertinent question as to
why the petitioner requires permission of this Court to sell the
property mentioned in Annexure P-17, counsel for the
petitioner has submitted that the said property has been got
attached even by a person who has to recover a meager amount
of Rs.15,000/- in terms of the award of the Labour Court etc. It
is further submitted that if the said property is permitted to be
sold by the order of this Court, perhaps the entire statutory
liability may be discharged by the petitioners or the society of
the petitioner.
Notice of motion.
At this stage, Mr. Saurabh Mohunta, DAG, Haryana,
accepts notice on behalf of respondents no.1, 2, 5, 6 & 7 and
Mr. Vikas Suri, Advocate, accepts notice on behalf of
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respondent no.3 and pray for time to seek instructions and file
reply, if any.
Respondent no.3 be served for 12.02.2018 through dasti
summons.”
Petitioner was in-fact permitted to sell the said area of 2850 sq.
yards of vacant land vide order dated 08.03.2018 passed by a coordinate
Bench, while directing that said land be set free from attachment. Elected
office bearers of the governing body of the society were given liberty to fix
reserve price of the aforesaid land for the purpose of its open auction to be
supervised by the Deputy Commissioner, Sonepat. It is relevant to note that
CM-1794-CWP of 2018, was moved by seven members of the governing
body alleging that permission had been sought to sell part of the land
belonging to the institution without taking the entire governing body into
confidence.
Relevant part of order dated 08.03.2018 passed in this writ
petition, permitting sale of 2850 sq. yards of vacant land, reads as under:-
“In view of the aforesaid facts and circumstances, it is ordered
that the area of 2850 sq. yards i.e. 2383.83 sq. mtrs shown in
the site plan attached as Annexure P17, stated to be vacant land,
stands attached, vide order of the Tehsildar dated 13.10.2017,
shall be set free from attachment by this order and the elected
office bearers of the governing body of the Society shall fix the
reserve price of the aforesaid land for the purpose of its open
auction.
After the reserve price is fixed, the Deputy Commissioner,
Sonepat shall be intimated, who would supervise the
arrangements of the auction proceedings. It is made clear that in
case the bid is not received more than the reserve price then the
office bearers of the governing body would have a right to
cancel the same. Otherwise after the said land is sold in the
open auction, the amount of consideration received shall be
deposited in a separate account opened for that purpose by the
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petitioners. The Society shall thereafter file appropriate
application before this Court for the purpose of releasing
payment of the statutory dues.”
Accordingly, land measuring 2850 sq. yards was auctioned and
part of the statutory liability outstanding towards respondents no.3 and 4 was
deposited. Various applications were thereafter filed either by the petitioner
or by the respondents for deposit of the various amounts. Applications were
moved by the teaching as well as non-teaching staff to be impleaded as
parties. Apprehension was raised by the teaching as well as non-teaching
staff that the funds received by sale of the property may be misused by the
petitioners.
It is relevant to note that the petitioner opposed CM-17732-
CWP of 2018 moved on behalf of respondent no.4, seeking release of
Rs.3,45,08,053/- as dues payable under EPF Act claiming that calculation of
damages and liability which has been calculated by the said respondent is
incorrect and in contravention to para no.32 of the EPF Scheme. Petitioners
further claimed that no opportunity of hearing was granted before fixing this
liability.
Thereafter, petitioners filed CM-994-CWP of 2020 seeking
permission to also sell 13627.50 sq. yards of land belonging to the
petitioners as well as a plot measuring 209 Sq. Meters in Sector-23,Sonepat
in order to clear further government dues/ statutory liabilities/ salary/
retrenchment compensation etc. It is stated that liability of about five (5)
Crores was outstanding as on 10.01.2020, therefore the society had again
considered the matter and passed a resolution to sell the abovesaid land for
clearing the outstanding dues.
Reply to the said application by way of affidavit of Hansraj
Singh Nain son of Chand Singh Nain, Assistant Provident Fund
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Commissioner/ Recovery Officer, EPFO, District Office, was filed giving
the details of the amount due. The figures regarding present liability
projected by the petitioners have been disputed by some of the stake holders
before this Court either arrayed as respondents or applicants seeking to be
impleaded as parties.
Mr. Ram Pal Verma, Advocate, earlier representing respondents
no.8 to 14, submitted that as of now one of these members i.e., respondent
12 had an objection to the sale of the property in question.
Learned counsel for the parties were accordingly directed to
address arguments in the main writ petition.
Learned counsel for the petitioner argued that permission
should again be granted to the petitioner to sell part of the property
belonging to the petitioner’s school for discharge of its statutory and other
liabilities towards the teachers, staff etc., in order to put an end to
multifarious litigation which is pending against the petitioner. It is submitted
that petitioners seek to discharge all the statutory liabilities which have been
incurred. However, the land in question stands attached in various
proceedings making it impossible for the petitioner to discharge the same.
Learned counsel states that there is no other possible way to resolve the
matter and make it viable to run the petitioner school. It is submitted that
permission as was granted on 08.03.2018 in respect to sale of land
measuring 2850 sq. yards be afforded again, in respect to land measuring
13627.50 sq. meters in Sector-23, Sonepat. Learned counsel urges that the
land in question be auctioned under direct supervision of a senior official of
the State and administration like the Deputy Commissioner of Sonepat, as
the same would put to rest any apprehensions of lack of bona fides on the
part of the petitioners. Petitioners, in this manner would thus be able to
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discharge its liabilities and put an end to multifarious litigation. It is
submitted that the Administrator was appointed on 12.06.2014 and the
school was run by the Administrator/Administrators till 15.09.2016. School
suffered huge loss as various administrators failed to perform their duties in
accordance with law. It is submitted that the present writ petition has been
filed as it would be the best solution to resolve the entire problem and in
case, such a course is permitted, the institution can be revived. It is informed
that litigation is pending with the teaching staff before the Education
Tribunal. Certain Labour Courts Awards have come against the petitioner
and others are still pending. EPF and ESI liability has also arisen. Learned
counsel for the petitioner informs that strength of the school was 4000 in the
year 2011 and as of now, the school has 87 students. It is thus prayed that
necessary permission to sell the land as mentioned above be afforded.
Learned counsel for respondent no.3 submits that liability as on
31.01.2021 under ESI is Rs.1,33,58,432/-. Learned counsel for respondent
no.4 submits that liability of about Rs.13,00,000/- is outstanding under the
EPF.
Learned counsel for respondents no.3 and 4 submit that there is
a complete mechanism which is provided in the Act regarding discharge of
statutory liabilities. The petitioner has not challenged various orders which
stood passed at the time of filing of the writ petition and those which have
been passed during the pendency of this writ petition. Though, it is not
disputed that some of the liability was discharged in the year 2019 after sale
of land as permitted vide order dated 08.03.2018, it is submitted that the
proper procedure as prescribed under specific provisions of law should be
followed.
Learned counsel for respondent no.12 opposes the sale of
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property as sought by the petitioners. Dismissal of the writ petition is prayed
for.
I have heard learned counsel for the parties at length and have
gone through the file with their assistance.
It is relevant to note that no serious argument has been raised
regarding alleged default on the part of the Administrators appointed from
12.06.2014 to 15.09.2016. Furthermore, learned counsel for the petitioners is
unable to deny that such adjudication on the alleged default and right of the
petitioners for damages or compensation necessarily involves disputed
questions of fact and cannot be the subject matter of adjudication in this writ
petition under Article 226 of the Constitution of India. Moreover to hold the
Administrators to be solely responsible for the decline of the school on the
basis of averments & documents attached with the filed would not be
justified for the reasons as delineated in the latter part of this decision.
Learned counsel for the petitioner has however vehemently
argued that in the given facts and circumstances, land of the petitioner,
which stands attached in various proceedings, should be ordered to be
released and the petitioners be permitted to discharge their statutory
liabilities in order to make running of the institution viable. Petitioners, it is
submitted should not subjected to multifarious litigation staring them in their
face and all matters should be settled before this Court itself.
In my considered opinion, such a course to be adopted is neither
justified nor viable. It is a matter of record that the petitioners were
permitted to sell 2850 sq. yards of land vide order dated 08.03.2018, passed
in this writ petition. It had been specifically stated at that time that
petitioners would be able to discharge their entire liability. It cannot be
denied by learned counsel for the petitioners that demand raised by the
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statutory authorities has been disputed by the petitioners. Demand was
alleged to be unjustified and even a plea of no hearing being provided to the
petitioners, was raised. The liability as projected in the miscellaneous
application is under dispute. Thereafter, another application has been filed
seeking permission to further sell 13627.50 sq. yards of land as depicted in
the site plan attached as Annexure A-6.
As per the written statement filed on behalf of respondent no.3
to which there is no replication, petitioner school came within the ambit of
provisions of ESI Act w.e.f., 30.01.2009. Petitioner never started compliance
under the ESI Act. Petitioner school was allotted the employer code number
vide letter dated 31.03.2010, but it failed to deposit the statutory dues as per
provisions of ESI Act. Show cause notice was issued to the petitioner school
for the period September 2009 to May 2012, Annexure R-3/5. Assessment
order under Section 45-A of the ESI Act was passed on 30.04.2014.
Management of the school was admittedly taken over by the Administrator
on 12.06.2014 and management of the school was again taken over by the
governing body in September 2016. Therefore, to say that the entire
statutory liability has arisen due to the alleged default on the part of the
Administrators, at this stage, is not justified and that too without any specific
evidence.
Another fact to be noted is that though it was vociferously
argued that strength of the school in the year 2009-10 was about 4000 and
the same has drastically reduced due to malfunctioning of Administrators
appointed from 2014 to 2016, the same is not borne out from the file. As per
the chart in para no.26 of the writ petition, number of students in the school
had reduced from 3134 in 2009 to 1481 by 2013-14, when the Administrator
was first appointed. Strength of students was 799 in 2016 when management
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of school was taken over by petitioner no.2 and it was informed by learned
counsel for the petitioners at the time of arguments that strength of the
school as of now, is of merely 87 students. Thus, argument that petitioners
should be permitted to sell their land as aforementioned by way of
preemptive and sweeping order of this Court, while overriding all/ and any
other orders which may or may not be even before this Court, in my
considered opinion, is not justified in the given factual matrix. It is not open
to the petitioners to try and lay the entire blame of malfunctioning of the
administration of the school at another door and try to use it as a method of
bypassing the specific procedure and applicable provisions of law in the
multifarious litigation being faced by the petitioners. There is nothing on
record to suggest earnest efforts being undertaken to revive the institution.
To the contrary, strength of the school has further declined since 2016 from
799 to 87 students.
It is further relevant to note, at this stage, that during the course
of hearing, the site plan attached as Annexure P-17 and site plan attached as
Annexure A-6, were perused and compared. A perusal thereof raised a doubt
regarding location of the school building as depicted in Annexure P-17.
Learned counsel for the petitioners on a pointed query submitted that there is
a mistake in the site plan, Annexure P-17, as it is a college which is being
run at the said premises and the petitioner school is about 1 ½ kms further
away from the area. Location of the petitioner school is admittedly not even
depicted in any of the two site plans. The college stated to be run in the
building reflected in the site plan, Annexure P-17, is informed to be run by
the petitioner society.
In my considered opinion, there is no justification for
consideration of the various disputes/ litigation pending against the
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petitioners in various forums & enter adjudication thereon, as is the evident
prayer of the petitioners. There is no ground whatsoever to interfere in the
exercise of jurisdiction under Article 226 of the Constitution of India, to
direct release of land of the petitioners which stands attached under various
orders of the competent authorities or to undertake the exercise of
determination of the exact extent of statutory and other liabilities of the
petitioners. It is a matter of record that specific alternate remedies are
available with the petitioners. There is no justification for clubbing all the
matters in the present writ petition for a consolidated adjudication thereon.
Needless to say, the petitioners are at liberty to bring forth necessary facts
before the respective authorities which have attached the property of the
petitioners. If at all, auction of the land can easily be conducted in
accordance with law and entire statutory and other liabilities of the
petitioners easily discharged under the said process/es in case the petitioners
so want. Needless to say petitioners are also at liberty to take recourse to
remedy/remedies as may be available to them in accordance with law for
proving any damage suffered by them due to alleged malfunctioning of the
Administrators appointed from 2014 till 2016.
No other argument had been addressed.
Writ petition is accordingly disposed of. It is made clear that the
observations in this order are confined for the purpose of this writ petition
and would have no bearing on any pending litigation/s.
[LISA GILL]
16.03.2021 Judge
s.khan
Whether speaking/reasoned : Yes/No.
Whether reportable : Yes/No.
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