Partly allowed

Thakur Biri Singh Educational Society and Another v. State of U.P. Thru Principal Sec. and 3 Others

Allahabad HC2 Feb 2018WRIC/54882/2013

Case brief

AI extract

What is this about?

An educational society's disputed elections were approved without resolving membership disputes despite subsisting directions under Section 25(2). The court set aside three approval orders and directed fresh elections after objections to the electoral roll were decided. Seven writ petitions were allowed and the rival management's petition was dismissed.

What did the court decide?

Three impugned orders set aside; fresh elections directed through an Election Officer after publication of the electoral roll and reasoned disposal of objections.

Thakur Biri Singh Educational Society and Another… — Education and Admissions | Allahabad HC (2018)

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Reserved on: 18.12.2017 Delivered on: 02.02.2018

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Court No. - 18

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Case :- WRIT - C No. - 54882 of 2013

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Petitioner :- Thakur Biri Singh Educational Society And Another Respondent :- State Of U.P. Thru Principal Sec. And 3 Others Counsel for Petitioner :- Anil Bhushan,Adarsh Bhushan,Ashok Khare

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Counsel for Respondent :- C.S.C.,Amit Saxena

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Connected with

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Case :- WRIT - C No. - 54860 of 2013 Petitioner :- Shodhan Singh Verma And 6 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- N.C. Tripathi,Rajesh Mishra Counsel for Respondent :- C.S.C.

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Case :- WRIT - C No. - 41630 of 2015 Petitioner :- Thakur Biri Singh Educational Society & Another Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Adarsh Bhushan,Amit Kumar Srivastava,Anil Bhushan

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Counsel for Respondent :- C.S.C.,Vineet Kumar Singh

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Case :- WRIT - C No. - 55419 of 2015 Petitioner :- Shodhan Singh Verma And 3 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rajesh Mishra,N.C. Tripathi Counsel for Respondent :- C.S.C.

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Case :- WRIT - C No. - 25839 of 2016 Petitioner :- C/M Thakur Biri Singh Educational Society And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Hemendra Kumar Counsel for Respondent :- C.S.C.,Vineet Kumar Singh

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Case :- WRIT - C No. - 32104 of 2016 Petitioner :- Mahendra Singh And 4 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rajesh Mishra,Arun K. Singh Deshwal Counsel for Respondent :- C.S.C.,Vineet Kumar Singh

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Case :- WRIT - C No. - 38093 of 2016 Petitioner :- C/M Thakur Biri Singh Educational Society And Another

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Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Adarsh Bhushan,Amit Kumar Srivastava

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Counsel for Respondent :- C.S.C.,H.N.Singh,Vineet Kumar Singh

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Case :- WRIT - C No. - 38804 of 2016 Petitioner :- C/M Thakur Biri Singh Educational Society And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Vineet Kumar Singh,H.N. Singh Counsel for Respondent :- C.S.C.,Vivek Verma

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Hon'ble Mahesh Chandra Tripathi,J.

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In all the abovemetioned Writ Petitions in question, as common question of law has been engaging the attention of this Court, with the consent of parties, the matters are being decided collectively and Writ Petition No. 54882 of 2013 is being treated to be leading case.

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Earlier on 28.01.2014, the present Writ Petition was disposed

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of by learned Single Judge with following observations:-

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“On 7.1.2014 the matter was adjourned and it was made clear that in the next date the matter shall be disposed of.

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On 20.1.2014 the learned counsel for the respondents Shri Amit Saxena was not present and as such the matter was placed in the additional cause list on 28.1.2014, and the learned counsel for the petitioners was directed to inform Shri Amit Saxena, learned counsel for the respondents in writing.

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Learned counsels for the petitioners Shri N.C. Tripathi and Shri Anil Bhushan have produced the notices intimating Shri Amit Saxena that the case shall be taken up today. The notice has been received by the clerk of Shri Amit Saxena. All the notices are taken on record.

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The dispute in the connected writ petition is that the Society in the name of Thakur Biri Singh Educational Society, Tundla, District Firozabad is registered under Societies Registration Act. The Society runs the educational Institutions.

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The dispute arose with regard to the office bearers of the Society. In the Society last election was held on 18.1.1987 and thereafter no fresh election could take place. The Assistant

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Registrar vide his order dated 17.5.1990 issued an order that in view of the fact that the term of office bearers had expired, the election was directed to be held in terms of Section 25 (2) of the Society Registration Act. The said order was challenged be means of writ petition no.12999 of 1990 wherein an interim order was granted initially. However, the said writ petition was dismissed on 24.9.1990 as infructuous. In the meantime, the elections were held periodically by the rival committee but several writ petitions were filed. The Assistant Registrar thereafter vide order dated 25.7.2002 again passed an order for holding the election in terms of Section 25(2) of the Societies Registration Act. The said order was challenged by means of writ petition no.32955 of 2002 by one Shri Sugriv Singh. The said writ petition was dismissed on 28.7.2003 for nonprosecution.

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By the impugned order, in writ petition no.54882 of 2013 the Assistant Registrar has registered the list of office bearers submitted by respondent no.3.

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Heard Shri N.C. Tripathi and Shri Anil Bhushan, learned counsel for the petitioners, Shri Hemendra Chaudhary and learned standing counsel appearing for respondents.

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The learned counsels for the petitioners have drawn attention of this Court to the order passed by this Court in writ petition no.27329 of 2010 wherein a direction has been issued that the Deputy Registrar shall finalize the electoral roll after giving the opportunity to all the three rival committees and hold the election, on the basis of the said electoral roll.

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The petitioners have also invited the attention of the Court to the order of prescribed authority dated 19.5.2012 wherein a direction has been issued to determine the electoral roll in reference to order passed by the Court on 13.5.2010. The prescribed authority with the above direction cleared the proceedings and sent back record to the office of Assistant Registrar. Undisputedly the election in terms of the order of Assistant Registrar dated 17.5.1990, the order dated 25.7.2002 and the order of the prescribed authority dated 19.5.2012 has not been held.

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It is a trite law that once the terms is over of the Society then the Assistant Registrar has got the power to hold the election under section 25(2) of the Act.

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After careful consideration of the matter, I am of the view that it is expedient in the interest of justice that the election may be held as early as possible, accordingly the following direction is issued with the consent of the parties.

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(a) The Assistant Registrar shall nominate an Officer as Election Officer to hold the election;

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(b) The Election Officer shall call list of the members from all the rival groups within two weeks from the date of the appointment as Election Officer;

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(c) On the basis of the list, supplied by the rival group, he will publish the tentative electoral roll and will call the objection to the tentative electoral roll;

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(d) After receiving the objections, the Election Officer shall decide the objection by the brief reasons and finalize the electoral roll within six weeks from the date of receiving the objections;

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(e) On the basis of the electoral roll the election shall be held within four weeks;

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(f) Any party aggrieved by the election will be at liberty to adopt the remedy available under law.

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With the aforesaid directions, all the writ petitions are disposed of.”

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The contesting respondent namely Surendra Singh Nauhar has assailed the validity of the said order in Special Appeal no.222/2014 and the same was allowed by setting aside the said order and the matter was remanded back to decide the same afresh on the ground that the writ petition was allowed without quashing the order dated 03.09.2013 passed by Deputy Registrar, Firms Societies and Chits Agra, which was impugned in Writ Petition no.54882/2013. Relevant paragraphs of the said judgement is being quoted below:-

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“Be that as it may, we find that there is neither any mention nor any discussion about the order of the Deputy Registrar dated 3.9.2013 in the judgement of learned Single Judge. The findings recorded by the Deputy Registrar, are contrary to the directions issued by learned Single Judge.

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We are also of the view that since Sri Amit Saxena is not present at the time of hearing, the order cannot be treated as a consent order for issuing any directions.

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For the aforesaid reasons, the special appeal is allowed. The order of learned Single Judge dated 28.1.2014 is set aside and the matter is remanded to the Single Judge to decide it afresh, taking into consideration the findings recorded by Deputy Registrar, Firm, Societies and Chits, District Agra in his order dated 3.9.2013.”

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Thereafter, the matter was once again placed before learned Single Judge on 29.09.2016, wherein, detailed order was passed connecting all other matters relating to the present Institution and consequently Hon'ble the Chief Justice by an order dated 11.01.2017 has nominated the matters to this Bench and even after the change of roster, again the matter was assigned to this Court by Hon'ble the Chief Justice vide order dated 31.07.2017.

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Heard Shri Anil Bhushan, Senior Advocate assisted by Shri Adarsh Bhushan, learned counsel for the petitioners; Shri N.C. Tripathi, Advocate; Shri Arun Kumar Singh Deshwal, Advocate and Shri Hemendra Pratap, Advocate, counsel for petitioners in the connected writ petitions as well as Shri H.N. Singh, Senior Advocate assisted by Shri Vineet Kumar Singh, learned counsel for the contesting respondent/petitioner of Writ Petition no.38804/2016)

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Brief matrix of the case is that there is a Society in the name of Thakur Biri Singh Education Society, Tundla, District Firozabad, which is registered Society having registration under Societies Registration Act, 1860 having its own registered bye laws. The Society runs two institutions, first in the name of Thakur Biri Singh Inter College, Tundla, District Firozabad, which is recognized under Intermediate Education Act 1921 and Payment of Salary Act 1972 is also applicable on the same, and second in the name of Thakur Biri Singh Mahavidyalaya Tundla District Firozabad affiliated with Dr. Bhim Rao University, Agra whereby the salary is being paid by the State Government.

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The last undisputed election of the Society was held on 18.01.1987 in which Shri Ram Raksh Pal Singh was elected as Secretary and Shri Thakur Bhawar Singh was elected as President. The term of the Society was three years. As the election did not took place within three years period as such the Society became time barred and consequently on 17.05.1990, the Deputy Registrar, Firms Societies and Chits (in brevity the 'Deputy Registrar) had passed an order for holding election of Society as per the provisions enshrined under Section 25(2) of the Act, as term of existing committee has already expired. The said order has been assailed by the petitioner by preferring Writ Petition no.12999/1990 no interim order was passed. The same was finally dismissed as infructuous on 24.09.1998 and as such, it is claimed that the order dated

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17.05.1990 has attained finality. On 25.02.2002, the election of Society was held in which Sugriv Singh had been elected as Secretary of the Society. An objection was filed before the Deputy Registrar on the ground that since the Society became time barred as such, the election could only be held under Section 25(2) of the Act and, thereafter, the Deputy Registrar by an order dated 25.07.2002 passed an order for conducting election under Section 25(2) of the Act, as term of the existing committee has already expired way back on 17.01.1990. The petitioner had also assailed the said order by preferring another Writ Petition no.32955/2002 (Thakur Biri Singh Educational Society Tundla and another vs. Deputy Registrar Firms, Societies and Chits, Agra and others) in which an interim order was passed by this Court on 16.08.2002. Later, the aforementioned Writ Petition was dismissed in default on 28.07.2003 and admittedly at no point of time in spite of restoration application, the same has been restored till now. In this backdrop, again it has been claimed that the order dated 25.07.2002 as well as order dated 17.05.1990 passed by Deputy Registrar had been revived and the same became final. Meanwhile one Randhir Singh Sorat has submitted some election paper before Deputy Registrar and the claim set up by him was approved by Deputy Registrar by an order dated 23.01.2004. The said order has also been assailed by petitioner by preferring Writ Petition no.5468/2004 in which the interim order was accorded.

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During the pendency of the aforesaid writ petition, on 24.07.2004, the Deputy Registrar had approved election dated 25.02.2002 of Sugriv Singh and rejected election dated 04.01.2004 set up by Randhir Singh Sorat. The aforesaid order dated 24.07.2004 was set aside in Writ Petition no.31047/2004 filed by Randhir Singh Sorat and the matter was remitted back to the Deputy Registrar for fresh consideration. Eventually, the Writ Petition no.5468/2004 was

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dismissed as infructuous on the joint request of Randhir Singh Sorat and Sugriv Singh by an order dated 18.08.2004. On 25.09.2004, the Deputy Registrar had passed an order approving Election dated 25.02.2002 set up by Sugriv Singh. The order dated 25.09.2004 passed by Deputy Registrar was stayed by this Court in Writ Petition no.40230/2004 filed by Arjun Singh. In the aforesaid circumstances, keeping in view the chequered history of litigation, the Deputy Registrar had finally issued renewal certificate of society in favour of Randhir Singh Sorat on 09.03.2006 on the advice of DGC (Civil) in the interest of the society without resolving the dispute in question with condition that the registration would be returned if any order comes from the High Court subsequently. But the said order dated 09.03.2006 was subsequently stayed by this Court in Writ Petition no.21992/2006 filed by Arjun Singh vide order dated 21.04.2006. Eventually, Randhir Singh Sorat died on 04.08.2010 and finally the Writ Petition no.21992/2006 was dismissed in default on 30.03.2012. Record in question further reveal that by an order dated 03.09.2013, the Deputy Registrar had accepted the claim of the contesting respondent namely Surendra Singh Nauhar, on the basis of election dated 16.12.2012 and also affirmed the list of office bearers for the year 2013-14. Finally, the said order has been assailed in the present Writ Petition as well as in the connected Writ Petition no.54860/2013 filed by petitioners and Arjun Singh, whereby, the learned Single Judge has proceeded to ask the Deputy Registrar to conduct election of Society under Section 25(2) of the Act by an order dated 28.01.2014. Consequently, the said order has been assailed in Special Appeal and the same had been set aside on the ground that the aforesaid order has been passed without testing the validity of the order dated 03.09.2013 (impugned in both the aforementioned writ petitions) passed by Deputy Registrar. Subsequently, by the order impugned dated 13.05.2016 (order impugned in connected writ petition) passed by the Deputy Registrar by which the election

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dated 27.12.20015 of contesting respondent has allegedly been approved.

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In this backdrop, Shri Anil Bhushan, Senior Advocate assisted by Shri Adarsh Bhushan, learned counsel for the petitioners has vehemently contended that in the present matter the last undisputed election of the Society took place on 18.01.1987 and once the subsequent election could not be ensured within three years period, the Deputy Registrar has proceeded to pass an order on 17.05.1990 for conducting the election under Section 25(2) of the Act. Even the same view has also been reiterated after a decade on 25.07.2002. No doubt, both the orders have been assailed in separate writ petition but still both the orders hold the field and admittedly at no point of time, the order dated 17.05.1990 as well as order dated 25.07.2002 had ever been complied with and at no point of time, the election took place as per the provisions under Section 25(2) of the Act. He further submits that the Deputy Registrar has erred in law by validating the election set up by Shri Surendra Singh Nauhar on 16.12.2012 by order impugned dated 03.09.2013 as while passing the said order, the Deputy Registrar has placed much reliance on the interim order accorded in Writ Petition no.12999/1990 as well as in Writ Petition no.32995/2002 whereas at the said point of time, the aforesaid interim orders were not subsisting and as such, no reliance could be placed on the same. He further made submission that even at the time of passing of impugned order, the Deputy Registrar has also placed much reliance on the order dated 09.03.2006 but the fact of the matter is that the said order has been passed in moreover the interest of Society for extending the registration of the Society purely on the advice of DGC (Civil) in the backdrop that Randhir Singh Sorat has applied for renewal of the Society but at no point of time, the controversy of membership had ever been resolved before passing such an order. Contention, on behalf of

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petitioners has also been made, that entire claim has been set up by the contesting respondent that he had been made Member in the year 2006 by Randhir Singh Sorat, who was working as Secretary though it is fully established that at no point of time Randhir Singh Sorat was Secretary of the Society in the year 2006 as at no point of time any election was held in pursuance to Section 25(2) of the Act. In this backdrop, he submits that the very inception of recognizing the contesting respondent as Member itself is illegal and as such subsequent orders i.e. 24.06.2015, 13.05.2016 (as has been assailed in the subsequent writ petitions) are unsustainable, illegal and liable to be set aside as the same were in contravention of the orders dated 17.05.1990 as well as 25.07.2002. It has also been submitted that the order dated 13.05.2016 passed by Deputy Registrar could not be passed on the pretext that the dispute regarding the election as well as continuance of the office bearer were there and rival claims had been set up for different elections and, therefore, in such circumstances, the dispute could be sent to the Prescribed Authority under Section 25(1) of the Societies Registration Act. Lastly he has contended that the contesting respondent has tried to usurp the whole society even though at no point of time he had been inducted as valid member of the Society by any validly constituted Committee of Management or its manager and once these issues have not been dealt with and the order dated 17.05.1990 as well as 25.07.2002 are still holding the field and had not been upset by any Competent Court, then in such a situation, for all practical purposes, the election has to be ensured as per the provision contained under Section 25(2) of the Societies Registration Act and as such, this Court should come to the rescue and reprieve of the petitioner.

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In support of his submission, he has placed reliance on the judgement passed by Division Bench of this Court in Mahila Vidya Prachar Samiti vs. Sate of U.P. And others 2015 (6) ADJ 159 .

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Relevant paragraphs of the said judgement is being extracted below:-

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“On the said allegations the petitioner filed the writ petition giving rise to this appeal with a prayer for a writ of mandamus being issued commanding the respondents-authorities specifically Registered Firms, Societies and Chits, U.P Lucknow to get fresh elections of the office bearers of the society held.

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The Hon'ble Single Judge under the order impugned dated 26.05.2015 has dismissed the writ petition after recording that since the petitioner claims to represent the society as secretary, the society can hold its own election and, therefore, the prayer as made, can not be granted.

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In our opinion, the Hon'ble Single Judge has failed to take note of Section 25(2) of the Societies Registration Act which provides that once the terms of the Committee of office bearers has expired and fresh elections have not been notified, then it is the Registrar alone who can get fresh elections held.

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We are not expressing any final opinion on the aforesaid aspects of the matter but we are definitely of the view that in the facts of the case a response from the respondents was called for and the writ petition could not have been dismissed at the admission stage ex-parte.

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In the totality of the facts and circumstances of the case, we hold that the judgment and order of the single Judge which is legally not sustainable. The order dated 26.05.2014 is hereby quashed. The appeal is allowed. The writ petition is restored to its original number.

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Let the writ petition be listed before the concerned Court in the first week of July, 2015 for consideration afresh.”

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Shri N.C. Tripathi, Advocate; Shri Arun Kumar Singh Deshwal, Advocate and Shri Hemendra Pratap, Advocate; who appear for petitioners in the connected writ petition have advanced their arguments on the same line and moreover reiterated the arguments advanced by Shri Anil Bhushan, Advocate.

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In support of his submission, Shri N.C. Tripathi, Advocate has filed compilation of judgements, the details of the same are given below:-

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Rashtriya Madhyamik Vidylaya Rampur Sayed Raza Chandauli and another vs. Joint Director of Education and others 2003 (3) UPLBEC 2175

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C/M Adarsh Shiksha Niketan vs. The Assistant Registrar, Firms and

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others 2000 (2) UPLBEC 1600

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Gangadin Ram Kumar Inter College vs. Deputy Director of Education and others 2006 (3) UPLBEC 2862

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Mahila Vidya Prachar Samiti vs. Sate of U.P. And others 2015 (6) ADJ 159

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Committee of Management vs. Deputy Director of Education and others 2004 (4) ESC 2257

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Jai Prakash Agarwal vs. Prescribed Authority and others 1999 (1) UPLBEC 697

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C/M Adarsh Vidyalaya Samiti vs. Prescribed Authority and others 2001 (1) UPLBEC 854

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Gyanodaya Association Sansaripur and another vs. State of U.P. and others 2016 (1) ESC 126

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C/M Brig Hoshiyar Singh Memorial and another vs. Deputy Director of Education and others 1995 (1) UPLBEC 149

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Ram Kripal Singh and another vs. C/M Uchchttar Madyamik and others 1993 (1) UPLBEC 344

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C/M Jagdamba Shiksha Evam Vikas Sansthan and another vs. State of U.P. and others 2016(2) ADJ 623

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Shri H.N. Singh, Senior Advocate assisted by Shri Vineet Kumar Singh, learned counsel for the contesting respondent has vehemently opposed the writ petition and submits that at present there is no dispute that the management of intermediate college has been run by the Society and contesting respondent namely Surendra Singh Nauhar has been elected as Manager and operating its account and so far as the Mahavidyalaya is concerned, there is authorized controller. He has urged before this Court that initially the Deputy Registrar on 23.01.2004 had approved the list of Committee

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of Management with Randhir Singh Sorat as its Secretary for the year 2003-04 and only on his application, in compliance of the directives issued by this Court dated 18.01.2006 in Writ Petition no.2947/2006, the Deputy Registrar by an order dated 09.03.2006 had accorded renewal certificate of society in favour of Randhir Singh Sorat. No doubt, initially, the order dated 09.03.2006 had been stayed by this Court in Writ Petition no.21992/2006 filed by Arjun Singh by an order dated 21.04.2006 but the same was discharged on 16.08.2007 and consequently, the aforesaid writ petition was dismissed on 30.03.2012. He has precisely submitted that successive election had been held by Committee of Management of the Society and Shri Randhir Singh Sorat was elected as Secretary in the year 2007 as well as in 2009, on account of untimely demise of Randhir Singh Sorat on 04.08.2010, a resolution was passed electing Surender Singh Nauhar as Secretary for remaining period on 16.08.2010 and as such it is sought to be urged before this Court that it is absolutely incorrect to claim that the contesting respondent was a stranger. It has also been submitted that while passing the order impugned dated 03.09.2013, the Deputy Registrar had considered each and every aspect of the matter and had also considered the claim set up by Arjun Singh, Sugriv Singh as well as three other incumbents, who had filed the earlier writ petition no.27329/2010 and recorded a categorical finding that Committee of Management was regularly being elected and was being approved and as such, the Committee of Management had every right to conduct the election. He further submits that even fresh election of the Society was also held on 27.12.2015, in which the contesting respondent Surendra Singh Nauhar was again elected as Secretary and the same was duly approved by Deputy Registrar vide order dated 13.05.2016. On the basis of aforesaid facts, he has urged that after demise of Randhir Singh Sorat, valid resolution was passed in favour of contesting

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respondent, who was co-opted as Secretary for all remaining period and as such, it has been sought to be contended that there is no reason or occasion for any direction to hold the election under Section 25(2) of the Act and as such, the Writ Petition no. 38804/2016 is liable to be allowed and all other connected Writ Petitions are liable to be dismissed.

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Heard rival submission and perused the record.

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This Court has the occasion to peruse the record in question and finds that vide order dated 29.04.2010 passed by Deputy Registrar, the list of 26 members were sought to be finalized so that the election could be ensured. Admittedly, at the said point of time, all the three parties had submitted their relevant papers before the Deputy Registrar with regard to the 2009-10 office bearers list and also submitted a compromise before the Deputy Registrar that they have agreed on the list of 26 members. But later as it has been claimed that three incumbents have not been included in the said list, the petitioners being aggrieved with the order dated 29.04.2010 by which the parties have been asked to submit list of members by 08.05.2010, on the basis of compromise before the Deputy Registrar, after excluding such members from the list of 26 members submitted by them, who have died in the meantime alongwith their death certificates, filed Writ Petition no.27329/2010, which was finally disposed of by an order dated 13.05.2010 with following observations:-

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“The petitioners are aggrieved by the order dated 29th April, 2010 passed by the Deputy Registrar, Firms, Societies and Chits, Agra (hereinafter referred to as the 'Deputy Registrar') by which he has, on the basis of the compromise filed before him, asked the parties to submit the final list of members by 8th May, 2010 after excluding such members from the list of 26 members submitted by them who have died in the meantime along with their death certificates.

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It is the contention of Sri Anil Bhushan, learned counsel for the petitioners that petitioner Nos. 2, 3 and 4 are also members of the General Body of the Society, but their names have not been included in the list of 26 members submitted before the Deputy

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Registrar. It is also his contention that the Deputy Registrar does not have the jurisdiction to determine list of members of the General Body.

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The petitioners have placed on record the order dated 25th July, 2002 passed by the Deputy Registrar which shows that the election of the office bearers of the Committee of Management of the Society were directed to be held under Section 25(2) of the Act. The order dated 29th April, 2010 passed by the Deputy Registrar also shows that the list of members was being finalised so that the election can be held. In such circumstances, when all the three parties who had submitted papers before the Deputy Registrar with regard to the 2009-10 list submitted a compromise before the Deputy Registrar that they have agreed on the list of 26 members, no interference is called for under Article 226 of the Constitution at the instance of the three petitioners except providing that if petitioner Nos. 2, 3 and 4 find that their names are not included in the said list of 26 members of the General Body, then it will be open to them to represent before the Deputy Registrar who shall take into consideration the objections filed by them before finalising the list.

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The writ petition is, accordingly, disposed of subject to the observations made above.”

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Admittedly, in pursuance to the aforesaid order, a notice had been given to the parties on 19.05.2010 fixing the date 08.06.2010 for deciding the issue of membership. Since there was serious dispute with regard to the membership of the society as well as office bearer of the society, therefore, an application was given to the Prescribed Authority for staying the proceeding before the Deputy Registrar, who in his turn, had passed an order dated 04.09.2010 staying the proceedings pending before the Deputy Registrar. Subsequently, the Prescribed Authority on 19.05.2012 had forwarded the entire papers to the Deputy Registrar for deciding the membership of the Society.

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Record in question also reveals that while passing the order impugned dated 03.09.2013, much reliance has been placed on the interim orders passed in Writ Petition no.12999/1990 and Writ Petition no.32995/2002, whereas the fact of the matter is that before passing of the said order, the writ petitions in question were already dismissed. This much is also reflected that the Deputy Registrar has also taken shelter of order dated 09.03.2006 but the fact of the matter is that the said order was passed in the interest of

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society on the advice of DGC (Civil) without resolving any dispute of membership between the parties.

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In this backdrop, the Court has proceeded to have a glance of order dated 17.05.1990 and 25.07.2002 passed by the Deputy Registrar as well as order dated 19.05.2012 passed by Prescribed Authority by which it is clearly reflected that at the relevant point of time the society in question was time barred since as per the bye laws, the election ought to have been held within three years period as admittedly the last valid election was held on 18.01.1987 and as such, directives have been issued to conduct the election in terms of Section 25(2) of the Act. Perusal of the order dated 19.05.2012 would also reflect that a clear cut finding has been recorded by the Prescribed Authority that the dispute with regard to the membership was very much there and the same was required to be decided by Deputy Registrar before holding the election of Committee of Management of Society.

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Record in question clearly reflects that it was the consistent case of petitioners that at no point of time any such exercise had been carried out and it appears that at the relevant point of time, while passing the order dated 13.05.2016, in absence of the said exercise, the Deputy Registrar had erroneously accepted the claim of Surendra Singh Nauhar and as such, the same cannot be accepted.

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It is a trite law that once the term of the Society is over, then the Assistant Registrar has got the power to hold the election under section 25 (2) of the Act and in the present case also, vide order dated 17.05.1990 and 25.07.2002 passed by the Deputy Registrar as well as order dated 19.05.2012 passed by Prescribed Authority, the election was sought to be conducted in terms of Section 25(2) of the Act after finalizing the issue with regard to the electoral roll. Even it has also been argued before this Court that the contesting respondent namely Surendra Singh Nauhar is ceased to have been

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member of the Society since he has been convicted by Trial Court vide order dated 08.06.2012 in Case no.787/1997 (State vs. Surendra Singh and another) under Sections 147, 323, 353, 322 IPC, P.S. Tundla, District Firozabad and as such, the election set up by him is unsustainable as per the bye laws.

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In Rashtriya Madhyamik Vidylaya Rampur Sayed Raza Chandauli and another vs. Joint Director of Education and others 2003 (3) UPLBEC 2175 , this Court has proceeded to hold that valid Electoral College is the essence of valid election and the Prabandh Sanchalak has no authority or jurisdiction to proceed with the process of enrollment of members and thus, the entire exercise undertaken for enrollment of members is void and nullity. Relevant paragraphs are being extracted below:-

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“Valid Electoral College is the essence of valid election. Here in the present case Prabandh Sanchalak who had no authority to enroll member illegally inducted members and held elections. The elections dated 31.8.1998 was held by Prabandh Sanchalak including members enrolled by him and thus, Office-Bearers and Members themselves were not elected in accordance with law. The own origin of Managing Committee elected on 31.8.1998 was illegal and void and thus subsequent election held by them on 31.8.2001 is also illegal and void and they could not constitute and elect valid and legal Committee of Management and infact they are rank trespassers and usurpers of office.

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On behalf of the contesting respondents, it has been submitted that election dated 31.8.1998 were accepted and it cannot be permitted to be challenged colatcrally. From the pleading of the parties, it is apparent that right from beginning, the aforementioned elections were disputed by the petitioners. A precise objection has been filed by the petitioners before Assistant Registrar, Finns, Society and Chits on 15.12.1998 (Anncxure-11 to the writ petition) wherein the conduct of Prabandh Sanchalak in way and manner in which elections have been highlighted in detail. Similar objections were filed before the District Basic Education Officer, Chandauli, District Inspector of Schools, Chandauli, Joint Director of Education and Assistant Registrar, Firms, Society and Chits on 16.12.1998 as well as on 24.3.1999. Information was sought for from Prabandh Sanchalak as well as from Prescribed Authority, Chandauli, as is evident from Annexures No. 4 and 5 to the writ petition. The Assistant Registrar, Firms, Society and Chits also sought legal opinion from District Government Counsel in regard to objection raised on behalf of the petitioners. All these facts clearly demonstrate that, at no point of time, petitioners had ever accepted the electiondated 31.8.1998 and rather to the contrary, it is established that petitioners had been objecting in regard to genuinely of the aforementioned election. Now coming to the impugned order,

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which has been passed by the Joint Director of Education, it is reflected that Joint Director of Education has totally failed to discharge duties vested upon him, while passing this very impugned order dated 28.6.2002. On the question of the membership, the Joint Director of Education has mentioned that objection appears to be justifiable, but same should be raised before the Competent Authority, The Joint Director of Education was Competent Authority to decide the question of membership, But, here in the present case, the Joint Director of Education has clearly failed to discharge this part of obligation cast upon him, while decide the dispute. One precise question of membership has been raised before him then he was bound to answer the same. In the case of Committee of Management, Pi. Jawahar lal Krishak Inter College, Mahuwa Bari, Lar Road, Deoria v. Deputy Director of Education and Ors., reported in (1996) 2 UPLBEC 1245, it has been categorically held that once issue of membership has been raised, then the Joint Director of Education is obliged to go into this question and decide the question of membership. The reasons given in the aforementioned judgment is that for any election to be declared valid determination of Electoral College is must. Here in the present case though, the Electoral College was disputed, the Joint Director of Education did not go into this question and in this view of the fact, the order passed by the Joint Director of Education is erroneous order and is liable to be setaside.

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The Joint Director of Education in the present case has not at all adverted himself on this important aspect of the matter as to whether earlier elections are valid or not and whether the present election were valid or not. The only ground on which the claim of the contesting respondents has been accepted i.e., on earlier occasion this very Managing Committee was in functioning as such entire situation is tilting in favour of the aforementioned Managing Committee. The view taken by the Joint Director of Education is patently illegal view, inasmuch, as the Joint Director of Education was duty bound to go into this question as to whether office-bearers and members, who had held the elections were validity elected in accordance with law or not and whether Managing Committee whose origin itself in dispute had any authority to hold the election. The Joint Director of Education has, thus, failed to exercise jurisdiction vested to him for deciding the dispute. The Joint Director of Education has also failed to consider that control of tresspassers is of no use and the aforementioned effective control has no legal effect and infact, the Joint Director of Education ought to have remedied this situation instead of permitting the illegality to perpetuate. In this context reference may be taken to the judgment of this Court wherein the control of tresspassers has no legal effect, has been adverted to in the case of Committee of Management, Swami Paramhansh Uchchattar Madhyamik Vidyalaya, Gorakhpur and Anr. v. Director of Education, VII Region, Gorakhpur, 1996 (27) ALR 678 and in the case of Committee of Management, Adarsh Shiv Kanya High School, Syana v. D.D.E. and Ors., (1996) 4 UPLBEC 2656. Thus, in the present case, the order passed by the Joint Director of Education is clearly vitiated on each and every scope.”

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In Gyanodaya Association Sansaripur and another vs. State of U.P. and others 2016 (1) ESC 126 this Court has proceeded to observe that with regard to genuine dispute relating to

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management, the matter shall be referred to prescribed authority and the Deputy Registrar cannot be permitted to dwelve upon the validity of election as the same is beyond his jurisdiction. Relevant paragraphs are as follows:-

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“The legal position on the issue involved is if next elections are not held before expiry of term of the outgoing Committee-ofManagement, elections will have to be held as per direction of the Deputy Registrar under Section 25(2) and it is not open for any body else to hold such election. If they are held other than under Section 25(2), they cannot be taken into consideration for making a reference under Section 25 (1) as such a case would not be referable under the said provision. Disputes relating to elections held before expiry of term of outgoing Committee-of-Management alone are referable under Section 25(1).

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In the present case it is not in dispute that an election to the Committee-of-Management of the Society was held on 28.07.2008. As per bye-laws of the Society the term of the elected Committeeof-Management is three years. It being so the term of the said Committee-of-Management elected on 28.07.2008 expired on 27.07.2011. No elections to the Committee-of-Management were held by the outgoing Committee-of-Management prior to 27.07.2011. Both the rival parties claim to have held the elections in the month of November, 2011. Be that as it may, the fact of the matter is that the list of office-bearers submitted by Surendra Kumar Gupta based on the elections held by him in November, 2011 was accepted by the Deputy Registrar and the said elections were not challenged by the rival party by way of reference under Section 25(1) nor by way of a civil suit. As per Surendra Kumar Gupta's claim the outgoing Committee-of-Management held the elections on 02.11.2014 whereas rival party alleged to have held the elections on 09.11.2014. Meaning thereby both the elections were held before the expiry of the term of the outgoing Committee-of-Management which was to expire in November, 2014. It being so now it is not open for the Deputy Registrar to reopen the elections held in the year 2011 or any earlier election as the same have remained undisputed uptil now. If the Committee of Management of the Society was to be declared as time barred it had to be done under Section 25(2) in the year 2011, not in 2014 after another election had already been held in November, 2014 before the expiry of the term of outgoing Committee of Management. True, no dispute based on elections of 2011 could have been referred under Section 25(1) but no such reference is being sought based on elections of 2011. The dispute is regarding subsequent elections held in 2014. As the elections of 2014 by rival parties have been held before expiry of the term of outgoing Committee of Management there is no impediment in making a reference under Section 25(1) if a genuine dispute, as referred in the earlier part of this judgment, exists. Moreover, if the Deputy Registrar is permitted to dwelve upon the validity of the elections held in 2011 and those prior to it on the ground that the said elections were held by a Committee-of-Management which had become time barred, it would amount to empowering him with the power to decide the validity of the elections with retrospective effect which is clearly beyond his jurisdiction. In the facts of the present case it is now not open for the Deputy Registrar to reopen stale matters. In a given case in exceptional circumstances

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this Court may permit such action but the facts of the case do not allow the same.

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Moreover, this Court vide its earlier judgment dated 07.04.2015 quashed the earlier order of Deputy Registrar dated 23.03.2015 which was passed on the same lines, therefore, it was not open for him to declare the Committee-of-Management as time barred, that too with effect from 02.07.2001 as had been done by him in the earlier order dated 23.03.2015 though with effect from 27.07.2011.

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In view of the above the impugned order dated 27.07.2015 passed by the Deputy Registrar declaring the members of the general body as existing on 02.07.2001 on the aforesaid factual premise, which is the bone of contention herein, cannot be sustained and the same is hereby quashed.

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Accordingly, the writ petition is allowed with a direction to the Deputy Registrar to take a fresh decision on the list submitted by the rival factions under Section 4 and in the said process he shall do the needful, as stated hereinabove and shall act accordingly as per law.”

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In view of the above, once the Society was time barred and there were rival claims as well as membership dispute, then before holding the election, the membership was required to be decided by the Deputy Registrar and as such, the said view of the Deputy Registrar cannot sustain in the eyes of law in the light of order dated 17.05.1990 as well as order dated 25.07.2002 and as such, the order impugned in the present Writ Petition dated 03.09.2013 as well orders impugned in connected writ petitions dated 24.06.2015, 13.05.2016 cannot sustain and the same are set aside.

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At this stage, without adverting such issue of membership as the same would be dealt with by the competent authority at the appropriate time and after careful consideration of the facts and circumstances of the present Writ Petition as well as in the connected writ petitions, this Court is of the considered opinion that the election may be held as early as possible and the same are to be ensured as per the directives issued by this Court vide order dated 28.01.2014, which provides as under:-

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(a) The Assistant Registrar shall nominate an Officer as Election Officer to hold the election;

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(b) The Election Officer shall call list of the members from all the rival groups within two weeks from the date of the appointment as Election Officer;

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(c) On the basis of the list, supplied by the rival group, he will publish the tentative electoral roll and will call the objection to the tentative electoral roll;

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(d) After receiving the objections, the Election Officer shall decide the objection by the brief reasons and finalize the electoral roll within six weeks from the date of receiving the objections;

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(e) On the basis of the electoral roll the election shall be held within four weeks;

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(f) Any party aggrieved by the election will be at liberty to adopt the remedy available under law.

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Accordingly, the Writ Petition no. 54882 of 2013, Writ Petition no. 54860 of 2013, Writ Petition no. 41630 of 2015, Writ Petition no. 55419 of 2015, Writ Petition no. 25839 of 2016, Writ Petition no. 32104 of 2016, Writ Petition no. 38093 of 2016, are allowed and Writ Petition no. 38804 of 2016 is dismissed.

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Order Date :- 02.02.2018 A. Pandey

Thakur Biri Singh Educational Society and Another v. State of U.P. Thru Principal Sec. and 3 Others

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Thakur Biri Singh Educational Society and Another v. State of U.P. Thru Principal Sec. and 3 Others

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