Allowed

C/M Madrasa Arbia Azizia Majahrool Uloom Nichlaul and 2 Others v. State of U.P. and 5 Others

Allahabad HC11 Nov 2022SPLAD/497/2022

Case brief

AI extract

What is this about?

The Division Bench granted leave to appeal against a single judge's order staying the direction for single account operation. The court resolved the underlying election signature dispute by allowing rival claimants to seek attestation from the District Minority Welfare Officer, keeping the single operation order in force pending the decision.

What did the court decide?

The impugned order directing single operation of account was set aside but directed to remain operational pending the District Minority Welfare Officer's decision on rival claims for signature attesta

C/M Madrasa Arbia Azizia Majahrool Uloom Nichlaul and 2… — Property and Title | Allahabad HC (2022)

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Court No. - 29

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Case :- SPECIAL APPEAL DEFECTIVE No. - 497 of 2022

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Appellant :- C/M Madrasa Arbia Azizia Majahrool Uloom Nichlaul And 2 Others Respondent :- State Of U.P. And 5 Others Counsel for Appellant :- Bhagwan Dutt Pandey,Sr. Advocate Counsel for Respondent :- C.S.C.,Narendra Kumar Chaturvedi

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Hon'ble Manoj Misra,J. Hon'ble Vikas Budhwar,J.

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In Re : C.M. Leave to Appeal Application No.02 of 2022.

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Heard Sri R.K. Ojha, learned senior counsel assisted by Sri B.D. Pandey for the appellants; learned Standing Counsel for respondents 1 to 4; and Sri N.K. Chaturvedi for respondents 5 and 6.

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The appellants were not impleaded as party in the writ proceedings therefore they have filed an application seeking leave to appeal against the judgment and order of learned single Judge dated 19.09.2022 in Writ C No.28365 of 2022.

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According to the appellants, Madarsa Arbia Azizia Majaharool Uloom Nichlaul Bazar, Mahrajganj has been set up by a society registered under the Societies Registration Act, 1860 (In short 1860 Act). With regard to the election of its office bearers a dispute arose. The appellants set up a claim that they are duly elected office bearers of the society and the other competing claim was set up by the

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respondents 5 and 6. The Assistant Registrar, Firms, Societies & Chits, Gorakhpur Region, Gorakhpur vide order dated 25.04.2022 discarded both the claims. Against the order of the Assistant Registrar dated 25.04.2022, Writ C No.14289 of 2022 was filed, which was allowed, vide order dated 31.05.2022, whereby the order dated 25.04.2022 was quashed and a direction was issued to the Assistant Registrar to make a reference to the Prescribed Authority, under Section 25(1) of the ‘1860 Act’, and transmit the records relating to the rival claims to the Sub-Divisional Magistrate/Prescribed Authority, who, in turn, was required to take a decision on the election dispute. This order dated 31.05.2022 in Writ A No.14289 of 2022 was challenged in Special Appeal No.483 of 2022, which was dismissed vide order dated 04.07.2022. As a result whereof, a reference has been made to the Prescribed Authority with regard to the election of the office bearers of the society that had established the Madarsa. In these circumstances, Sri R. K. Ojha urged that since the appellants have set up a rival claim in the affairs of the society which manages the Madarsa in question, it has an interest in the affairs of the society therefore, it be granted leave to appeal against the judgment and order of the learned single Judge which has potentiality to affect the interest of the appellants.

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Sri N.K. Chaturvedi, who appears for the respondents 5 and 6, though opposed the prayer for grant of leave to appeal but could not dispute that the appellants have set up a rival claim as elected office bearers of the society

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that has established the Madarsa in question and he also could not dispute that pursuant to the order of the writ court in Writ A No.14289 of 2022, the dispute has been referred to the Prescribed Authority.

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In the aforesaid background, we deem it appropriate to allow the application seeking leave to appeal by the appellants against the judgment and order dated 19.09.2022 passed in Writ C No.28365 of 2022.

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The leave application is allowed. The applicants are granted leave to appeal as above.

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In Re : Appeal.

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Heard Sri R.K. Ojha, learned senior counsel assisted by Sri B.D. Pandey for the appellants; learned Standing Counsel for respondents 1 to 4; and Sri N.K. Chaturvedi for respondents 5 and 6.

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This intra court appeal is against the order of learned single Judge dated 19.09.2022 in Writ C No.28365 of 2022 whereby the order of the District Minority Welfare Officer, Mahrajganj directing single operation of the account of the Madarsa has been stayed.

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Leaned counsel for the respondents 5 and 6 raised a preliminary objection with regard to the maintainability of the appeal as the same is against an interim order.

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Sri R.K. Ojha, who appears for the appellants, submits that the order dated 19.09.2022 has been obtained without impleading the appellants even though they were rival claimants as also without disclosing the

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relevant provisions applicable in respect of the management of Madarsa and the effect of the interim order would be to affect the management with regard to which the appellants have set up a rival claim therefore, the order impugned affects the rights of the appellants and as such the appeal would be maintainable against the same.

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The case of the appellants is that there is a society registered under the Societies Registration Act, 1860. The said society runs a Madarsa by the name of Madarsa Arbia Azizia Majaharool Uloom Nichlaul Bazar, Mahrajganj which is recognised by the Board of Madarsa Education as per the provisions of U.P. Board of Madarsa Education Act, 2004 and the Regulations framed thereunder. It has been submitted that as per the bye-laws of the society which has set up the Madarsa, elections of the office bearers are to be held every three years. Clause 26 of bye-laws of the society provides that where, for some reason, the elections could not be held within three years, the Committee In-charge of the affairs of the society shall continue. It has been urged that there is no dispute between the parties that an election was held in the year 2021. The appellants claim that they were elected as office bearers of the society whereas the respondents 5 and 6 claim that they were duly elected as office bearers of the society. The rival claims were examined by the Assistant Registrar and the Assistant Registrar rejected both the claims by order dated 25.04.2022 against which Writ C

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No.14289 of 2022 was filed, which was allowed by order dated 31.05.2022 with a direction that the Assistant Registrar shall make a reference of the dispute to the Prescribed Authority under Section 25(1) of ‘1860 Act’. This order dated 31.05.2022 has been affirmed by Division Bench of this Court vide order dated 04.07.2022 in Special Appeal No.483 of 2022. Pursuant thereto, the dispute is pending consideration of the Prescribed Authority. It is urged that under Section 22 of the U.P. Board of Madarsa Education Act, 2004 notwithstanding anything contained in any law, document or decree or order of the court or other instrument, there has to be a Scheme of Administration for every institution, whether recognised before or after the commencement of the 2004 Act. The said section further provides that the Scheme of Administration shall amongst other matters provide for the constitution of a Committee of Management vested with authority to mange and conduct the affairs of the institution. Under Section 20 of the Uttar Pradesh Board of Madarsa Education Act, 2004 (U.P. Act No.29 of 2004), the Board of Madarsa Education, with previous approval of the State Government, has notified Regulations on July 22, 2016, which are known as ‘The Uttar Pradesh Non-Governmental Arbic and Persian Madarsa Recognition, Administration and Services Regulations, 2016. In Part-II of the said Regulations provisions in respect of the Scheme of Administration have been laid down. Clause 17 of Part-II of 2016 Regulations, provides as follows: “The specimen signature of the Manager of the institution, duly elected, shall be attested

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by the District Minority Welfare Officer within 14 days : provided that if there is any difficulty or dispute in attestation of the signature of the Manager as mentioned above the matter will be referred to the Inspector within said period. The Inspector shall decide the matter and pass appropriate order within 30 days. The decision of the Inspector shall be final”.

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By relying on the aforesaid clause 17 of Part-II of the 2016 Regulations, learned counsel for the appellants submitted that the specimen signature of the Manager of the institution, duly elected, has to be attested by the District Minority Welfare Officer within 14 days of the election and if there is no attestation of signature, the said person cannot act as Manager of the institution.

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It has been urged by the appellants that there has been no attestation of signature of the respondent no.6 as Manager of the institution after they had claimed that elections were held in the year 2021. In these circumstances, it has been urged on behalf of the appellants that the respondent no.6 (i.e. writ petitioner in Writ C No.28365 of 2022) could not act as Manager of the institution. Consequently, the District Minority Welfare Officer was justified in directing single operation of the account vide order dated 15.06.2022 impugned in Writ C No.28365 of 2022. It has thus been urged that since the learned single Judge was not apprised of the correct position and the appellants were not made party in the

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writ proceedings, the order impugned in this appeal would adversely affect their interest.

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Sri N.K. Chaturvedi, who appears for the respondents 5 and 6, submitted that under clause 26 of the bye-laws of the society the erstwhile Manager can continue to manage and control the affairs of the Madarsa even after expiry of three years till a fresh election takes place therefore, if there is a dispute with regard to the fresh elections, by virtue of clause 26 of the bye-laws, the writ petitioner (respondent no.6 herein) had a right to continue as Manager because his signature had been attested earlier. He also contended that there can be single operation of the account only if there is difficulty in payment of salary therefore, the learned single judge was justified in passing the interim order.

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On the above submission of Sri Chaturvedi, we requested him to disclose the order by which the signature was attested earlier. In response, Sri Chaturvedi pointed out that the attestation order is of the year 2010. He, however, could not demonstrate that there was any attestation of respondent no.6’s signature after the notification of 2016 Regulations.

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Having heard the rival submissions and having noticed that there exists no attestation of signature of the sixth respondent or of anybody else as required by 2016 Regulations and that the fresh elections set up have not been accorded recognition by any competent authority, we are of the view that ends of justice would be served if the

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appellants and the respondents 5 and 6 are both given liberty to apply to the District Minority Welfare Officer, Maharajganj under clause 17 of Part-II of 2016 Regulations, to seek attestation of their signatures. Upon submission of such claim, the District Minority Welfare Officer shall examine the papers submitted by the rival claimants and take appropriate decision thereon. If he finds that there is difficulty or dispute in attestation of signature of the Manager, he shall refer the matter to the Inspector who shall thereafter decide the matter and pass appropriate order as per the proviso to clause 17 of Part-II of 2016 Regulations. Needless to observe that while taking a decision on the rival claims, the concerned authority shall keep in mind the bye-laws of the society. Till appropriate decision is taken by the concerned authority as directed above, the order directing single operation of the account dated 15.06.2022 shall remain in operation.

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To facilitate the above exercise, we deem it appropriate to grant liberty to the parties including the respondents to submit their relevant papers in respect of their rival claims before the District Minority Welfare Officer within four weeks from today. Upon submission of the papers, as permitted above, the District Minority Welfare Officer shall take appropriate decision, preferably, within a period of next four weeks after giving opportunity of hearing to the parties concerned. In case District Minority Welfare Officer comes to the conclusion that the matter is to be referred to the Inspector, he shall do so

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within the same period whereafter the Inspector shall take appropriate decision in the matter within next six weeks.

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In light of the direction above the order impugned in this appeal is set aside. The appeal as well as the writ petition (i.e. Writ C No.28365 of 2022) stands disposed off in terms above.

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The office is directed to place a copy of this order on the record of Writ C No.28365 of 2022 which shall be marked as disposed off in terms of this order.

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Order Date :- 11.11.2022. Rks.

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Digitally signed by RAJESH KUMAR SINGH Date: 2022.11.28 11:25:45 IST Reason: Location: High Court of Judicature at Allahabad

C/M Madrasa Arbia Azizia Majahrool Uloom Nichlaul and 2 Others v. State of U.P. and 5 Others

Case brief

What is this about?

What did the court decide?

C/M Madrasa Arbia Azizia Majahrool Uloom Nichlaul and 2 Others v. State of U.P. and 5 Others

Case brief

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What did the court decide?

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