ORISSA HIGH COURT : CUTTACK W. P. (C) No. 20248 OF 2009 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Sachidananda Mohanty and others …… Petitioners - Versus – - Sri Bhagaban Gantayat and others …… Opp. parties For Petitioners : M/s. B. Routray, Sr. Advocate, D.K. Mohapatra, P.K. Sahu, S. Das, S. Jena & S. Samal. For Opp. Parties : Addl. Govt. Advocate (For O.Ps. 3, 4 & 5) M/s. P.N. Mishra, Sr. Advocate J. Patnaik, Sr. Advocate P. Acharya, B. Bhadra, S. Rath, B.K. Jena, S. Rout, L. Samantaray, R. Pradhan, B. Pradhan, C. Meher and S. Swain. (For O.Ps . 1 & 2) M/s. R.K. Das, P.K. Tripathy & S. Pattnayak (For O.Ps. 7) M/s. Sanjit Mohanty, Sr. Advocate (For Intervenors) M/s. U.C. Panda (For Intervenor) ----------------------- Decided on 25 .10.211. ------------------------ P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ----------------------------------------------------------------------------------------------- M.M. DAS, J. The petitioners naming themselves to be the members of the Governing Body of a technical institution, namely, Sanjay Memorial Institute of Technology (in short ‘the SMIT’), have filed the present writ application challenging the action of the opposite parties, more particularly, opposite parties 1 to 6 in the matter of constitution of a Governing Body of the institution on the ground that such action is contrary to the All India Council for Technical Education Act (in short ‘the AICTE Act’) and the regulations framed thereunder as well as contrary to the resolution of the State Government in its Industries Department and the law laid down by the Hon’ble Supreme Court. 2. The relief sought for in the writ application is to quash Annexure – 4, which is an order passed by the Director of Higher Education, Orissa constituting the Governing Body of the SMIT, which shall function for a period of three years with effect from the said date. 3. It is revealed from the pleadings of the parties on affidavit that the SMIT consists of a group of technical educational institutions, such as, Degree Engineering College; Diploma Engineering & Technology; Post Graduate Centre for Management Studies (MBA); Post Graduate in Rural Management; College of Library & Information Science; M.A. in Mass Communication; 2 Residential + 2 Science College; Brundaban Nayak Memorial Industrial Training Centre, Hinjilicut, Berhampur; Industrial Training Centre at Hinjilicut and Brundaban Nayak English Medium School for Kids at Hinjilicut. 4. Out of the aforesaid institutions, the Degree Engineering College, Diploma Engineering and Post Graduate Centre for Management Studies are affiliated and approved by the All India Council for Technical Education. The State Council for Technical Education and Training, Orissa has approved the Governing Body of the Diploma Engineering College whereas, the Biju Patnaik University of Technology (in short ‘the BPUT’) is the affiliating University of the technical colleges and the Industrial Training Centres mentioned above, is affiliated and approved by the National Council for Vocational Training (in short ‘the NCVT’), New Delhi and the College of Library & Information Science, Post Graduate in Rural Management, Post Graduate in Mass Communication recognized by the Government of Orissa are affiliated to the Berhampur University. 5. The question raised by the petitioners is that the Director, Higher Education, Government of Orissa has no authority to reconstitute the Governing Body, as done at Annexure – 4. From the statements made in the writ application and the counter affidavit, it is evident that there are various disputes between different members 3 claiming themselves to be valid members of the Governing Body as well as the Society. 6. After hearing Mr. B. Rourtray, learned senior counsel for the petitioners as well as Mr. P.N. Mishra, learned senior counsel appearing for the opposite parties 1 and 2, I find that the questions to be determined in this writ application are as to whether the writ application at the instance of the petitioners is maintainable and as to whether the Director, Higher Education, Orissa had authority and sanction of law to issue the order under Annexure – 4 reconstituting the Governing Body. 7. Various documents have been annexed to the writ application and the counter affidavits filed by the opposite parties including the counter affidavit filed by one Chittaranjan Das, who intervened in the matter claiming himself to be the Founder Member of the Society known as the SMIT, which established various institutions imparting both technical and non-technical courses. 8. With regard to maintainability of the writ application, Mr. P.N. Mishra, learned senior counsel appearing for the opposite parties 1 and 2 drawing the attention of this Court to the law laid down by the Supreme Court in the case of K.D. Sharma v. Steel Authority of India Limited (2008) 12 SCC 481 submitted that a party seeking to invoke the extra-ordinary jurisdiction of the Court under Article 32 or under Article 226 of the Constitution of India, is 4 required to be truthful, frank and open. He is also required to disclose all material facts without any reservation, even if, such facts may lead to a decision against him, he is not entitled to pick and choose the facts, he likes to disclose and conceal other facts, which may go against him. 9. The apex Court in the case of K.D. Sharma (supra) laid down that the very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of the Writ Courts and exercise would become impossible. The petitioners must disclose all the facts having a bearing on the relief sought without any qualification. This is because “the Court knows law, but not facts”. 10. Mr. Mishra submitted that Civil Suit no.254 of 2008 has been filed by the petitioner No.2 seeking the following reliefs:- “(a) Declaring that the proceedings of the Resolution held on 30.9.2008 and the office order bearing No.6141 dated 2.10.2008 indicating regarding cessation of post of Joint Secretary as void, in- operative, illegal and non est in the eyes of law besides being unenforceable in any manner of whatsoever nature. (b) Restraining the defendants not to create or cause any kind of obstructions or interference with the plaintiff in discharge of his functions, obligations and duties as Joint Secretary of SMIT and not to cause any obstructions or impediments as against plaintiff from attending the office SMIT and meetings and in performance of all his activities as the Joint Secretary 5 either by themselves or their agents or representatives or their employees etc. in any manner of whatsoever nature.” 11. It further appears from the facts disclosed that the opposite party No.2 filed a Civil Suit, being, Civil Suit No.42 of 2009 before the learned Civil Judge (Junior Division), Berhampur against the petitioners 1 & 2, who are defendants 2 and 3 therein, for a decree for permanent injunction in favour of the SMIT and against the defendants, restraining them from interfering with the affairs, managerial functions, administration and banking dealings of the plaintiff-opposite party no.2 herein, in any manner whatsoever. Allegations have been made in the said suit that the petitioners herein were removed from their primary membership after following proper procedure and formalities. The said suit is stated to be pending wherein, an interim application for injunction has been allowed against which, F.A.O. No.35 of 2009 is stated to be pending before the learned District Judge. Relying on the fact that two properly constituted civil suits are pending with regard to status of the petitioners in the society and the nature of dispute involved in connection with the same, Mr. Mishra, learned senior counsel for the opposite parties 1 and 2 submitted that all these facts having been suppressed in the writ application applying the ratio of the decisions in the case of K.D. Sharma (supra), the writ application is liable to be dismissed on that ground alone. He also urged that bare reading of 6 the writ application would go to show that misleading statements have been made therein and submitted that the petitioners, while challenging the approval of the Governing Body by the Director, Higher Education, as at Annexure – 4, have made a prayer to issue a mandamus restraining the opposite parties 7 to ……………… not to interfere in any manner with the day to day functioning of the institution by the present petitioners. Therefore, leaving blanks in the said prayer shows the casual approach of the petitioners inasmuch as, the opposite party no.7 against whom a prohibitory writ is sought for, is the Vice-Chancellor of Biju Patnaik University of Technology, who is totally unconnected with the impugned Annexure – 4. So far as the other prayer for issuance of a writ of mandamus directing the opposite parties 1 and 6 to allow the present petitioners to manage the day to day affairs of the SMIT till their term expires is concerned, he submitted that the same is based on the allegation that they are members of the Governing Body of a technical institution, namely, the SMIT, which is also misconceived, as the SMIT itself is not a technical institution, but a society, established under the Societies Registration Act and the internal management of the society is governed by its Bye-laws. The petitioners have also admitted in the writ application that the SMIT is a society and the Governing Body of the society is to be constituted as per its Bye-laws. Annexure – 4, which is the impugned order of the Director, Higher Education, 7 though states that by the said order, the Director, Higher Education by exercise of power vested in him under the Orissa Education (Establishment, Recognition and Management of Private Colleges) Rules, 1991, the Governing Body of the Sanjay Memorial Institute of Technology, Ankushpur, Berhampur is reconstituted for a period of three years, according to Mr. Mishra, the said order was passed in relation to the College of Library and Information Science and not for any technical institution approved by the All India Council for Technical Education. 12. Mr. B. Routray, learned Senior counsel appearing for the petitioners, on the contrary, submitted that the SMIT, though is a society, it runs various colleges both technical and non-technical. Since in Annexure – 4, the Director, Higher Education appears to have constituted the Governing Body of the SMIT, it is clear that the said Director was not authorized under law to constitute the Governing Body of the SMIT, which is a registered society and governed by its Bye-laws, as stated in the writ application. 13. Be that as it may, this Court finds that the erstwhile members of the Society, i.e., the SMIT, are at loggerheads, being involved in various disputes including properly constituted civil suits, as stated above, pending adjudication and involving various disputed questions of fact. This Court also finds that since the impugned Annexure – 4 by which, the Director, Higher Education constituted 8 the Governing Body mentioning that it is the Governing of the SMIT, Ankushpur, was for a period of three years from 07.02.2008 and the said period is already over, there is no reason or requirement to interfere with Annexure – 4 any further, as the same has lost its force. This Court also declines to enter into various contentious questions raised by the learned counsel for the respective parties including Mr. U.C. Panda, learned counsel appearing for the opposite party no.8, as the impugned Annexure – 4 has lost its force. 14. The facts involved as well as pressed into service by the petitioners for getting the other reliefs claimed in the writ application, are disputed questions of fact, which are also subjudice before the civil court in the aforesaid two civil suits. This Court, therefore, with the observation that all the factual disputes raised will be gone into in the civil suits pending, declines to interfere in the matter and accordingly, the writ application stands dismissed, but in the circumstances without cost. All the interim orders stand vacated and all the pending Misc. Cases also stand disposed of. ……………………. M. M. Das, J. Orissa High Court, Cuttack. October 25th,2011/Subha 9 10 11 12