Hon'ble Attau Rahman Masoodi,J.
A learned Single Judge has granted an interim relief to the respondent petitioner, vide impugned order dated 22.1.2016 and aggrieved, the respondent appellant has approached this Court questioning the correctness thereof including the jurisdiction of the learned Single Judge to entertain the petition on behalf of the respondent petitioner who, according to the appellant, does not have any locus or cause of action to maintain the petition.
Sri Anupam Mehrotra has advanced his submissions on the merit of the claim to substantiate the stand of the appellant urging that the learned Single Judge was neither justified in entertaining the petition nor did there exist any prima facie case in favour of the respondent petitioner for grant of any interim relief.
A preliminary objection has been taken by Sri Sandeep Dixit who appears for the respondent petitioner, contending that the special appeal under Chapter VIII Rule 5 which is an intra-Court appeal, would not lie and for that, Sri Dixit has relied on the Division Bench Judgment in the case of Jai Prakash Agrawal Vs. Prescribed Authority (Sub-Divisional Magistrate), Sadar, District Deoria and others: [(1999) 1 UPLBEC 697]. He has also invited the attention of the Court to the Division Bench Judgment dated 28.3.2016 in Special Appeal Defective No.162 of 2016: Committee of Management Madarsa Azimul Ulcom and another. Vs. Prescribed Authority/Up Zila Adhikari and 4 others. The third decision is dated 22.2.2016, in Special Appeal No.92 of 2015:Committee of Management Baba Mangal Das Shiksha Samiti and 3 others. Vs. Prescribed Authority and 12 others.
On the strength of these decisions, Sri Dixit urges that the order impugned in the writ petition being that of the Prescribed Authority under Section 25 of the Societies Registration Act, 1860 which attracts the trappings of a Tribunal in relation to an election dispute of a society, and is therefore not amenable to further scrutiny in an intra-Court appeal under Chapter VIII Rule 5 in view of the ratio of the decisions referred to hereinabove.
To counter this preliminary objection, Sri Anupam Mehrotra has urged that if the proceedings before the learned Single Judge were not maintainable, then the exercise of power under Article 226 would be lacking in jurisdiction and consequently, a special appeal would be maintainable. For this, he contends that the respondent petitioner had no locus to maintain the petition on behalf of the Committee of Management of the society inasmuch as, Hari Pal Singh was neither the elected Manager nor was he duly authorized by the valid Committee of Management to file the writ petition.
He further submitted that the learned Single Judge committed a manifest error by allowing Hari Pal Singh to be impleaded through an oral order as the petitioner No.2 in the writ petition in spite of the fact that Hari Pal Singh had no individual cause of action nor did he fall within the parameters of an aggrieved person so as to question the impugned order in the writ petition. He thirdly contends that even otherwise, the petition could have been maintained in order to serve the cause of the society and protect its interest. The entire writ petition nowhere indicates as to what cause was to be served and how was the society being protected by filing of the writ petition. Sri Mehrotra submits that this issue has completely escaped the notice of the learned single Judge who, therefore, assumed the jurisdiction resulting in manifest error, and since it is a matter relating to the jurisdiction of the learned Single Judge to entertain the petition, therefore an intra-Court appeal would be maintainable.
The next limb of the argument of Sri Anupam Mehrotra is that even assuming though not admitting that the writ petition could have been filed by Hari Pal Singh claiming himself to be the Manager, then too, there were two reliefs claimed one against the order of Prescribed Authority which was in relation to the election of 2010, the dispute whereof had become irrelevant. The irrelevancy of the dispute was also admitted by the respondent petitioner and, therefore the order of the Prescribed Authority was not the main order under challenge. Sri Mehrotra contends that if the order of the Prescribed Authority was a decision in an infructuous dispute relating to a 2010 election and which is also irrelevant as admitted by the respondent petitioner himself, then in that event the writ petition only survived, if at all against the order of the Deputy Registrar that was subsequently passed for the purpose of holding elections of the society on the ground of the earlier committee having become defunct. He, therefore, contends that the writ petition questioning the correctness of the Deputy Registrar if is maintainable, then in that event the order of the learned Single Judge in relation thereto is also amenable to a special appeal under Chapter VIII Rule 5 as the order of the Deputy Registrar is not an order of the Prescribed Authority so as to attract the ratio of the decisions that have been cited by Sri Dixit on behalf of the respondent petitioner.
Sri Mehrotra has invited the attention of the Court to the relevant clause of the bylaws to urge that the society can be sued and it can sue but for that an authohrization is necessary. The authorization has to be by the society as stated above inasmuch as, the Manager on his own cannot proceed to institute a writ petition in his individual capacity. All this has resulted in a wrong exercise of jurisdiction by the learned Single Judge and, therefore, the special appeal is very much maintainable. On such contention he contends that the ratio of the decision cited by the learned counsel for the respondent petitioner is neither a precedent nor is a ratio decidendi as involved herein. He relies on paragraph-8 of Mittal Engineering Works (P) Ltd. Vs. Collector of Central Excise, Meerut: (1997) 1 SCC 203 and the Constitution Bench judgment in the case of Bhikaji Narain Dhakras and others. Vs. State of Madhya Pradesh and another: AIR 1955 SC 781 to substantiate the said plea.
With regard to maintainability of the appeal, he has relied in the case of 2005 (23) LCD 865: Mohd. Raza Khan. Vs. Anit Ahmad Khan (para-16), which judgment was subjected to a special leave petition before the Apex Court that was dismissed on 13.2.2006.
On the issue of locus, he has cited the decision in the case of Umesh Chandra Vs. Mahila Vidyalaya Society:2006 (24) LCD 1373 and State of U.P. Vs. C.O.D. Chheoki Employees' Coop. Society Ltd.: (1997) 3 SCC 681 to contend that this preliminary objection ought to have been decided by the learned Single Judge and having not done so was erroneous. He has cited three decisions: AIR 1968 SC 687: K. Kamaraja Nadar. Vs. Kunju Thevar and others; (2000) 10 SCC 253 253: Manubhai J. Patel. Vs. Bank of Baroda and (2006) 11 SCC 696: Union of India Vs. Ranbir Singh Rathaur, to contend that the appeal is maintainable in so far as the order of Deputy Registrar is concerned.
He has further relied on certain decisions on the merits of the claim and he disputes the findings of the learned Single Judge which has been recorded prima facie in relation to the scope of Section 25 (1) of Societies Registration Act, 1860. For that also, he has relied on certain decisions which have been placed before the Court in a compilation submitted by him.
Sri Sandip Dixit for the respondent in response has then invited attention of the Court to the wordings of Section 25 of the Societies Registration Act, 1860 to urge that the respondent petitioner has every right to question the correctness of the order as he was the Manager of the Society and had held fresh elections, as such he represented the Committee of Management. He even otherwise has the authority to question the order of the Prescribed Authority as Section 25 requires the adjudication of any doubt or dispute with regard to election or continuance of office bearers of the Management of a society. The contention of Sri Dixit is that the continuance of Sri Hari Pal Singh as Manager was a doubt giving rise to a dispute that has been adjudicated by the Prescribed Authority erroneously and, therefore, it was an adjudication under Section 25 of the 1860 Act by which Hari Pal Singh is aggrieved in his individual capacity as well. He, therefore, contends that by arraying Sri Hari Pal Singh individually, the learned single Judge did not commit any error as Hari Pal Singh was a proper and necessary petitioner in his individual capacity as well apart from representing the Committee of Management. He, therefore, submits that the objection on the issue of locus of Hari Pal Singh by the learned counsel for the appellant is absolutely misplaced.
Having considered the aforesaid submissions, what we find is that the canvas of factual arguments as spread by the learned counsel for the appellant is reflected otherwise from the records relating to the locus of Hari Pal Singh and the existence of his Committee of Management. The dispute with regard to the 2010 elections witnessed several rounds of litigation that has been mentioned in the list of dates and events of the special appeal. To cut short the narration of the controversy on this factual aspect, suffice would be to mention the judgment dated 04.11.2015 in Writ Petition No.6526 (M/S) of 2015 i.e., Annexure-26 to the memo of special appeal. The same clearly records the reference of the dispute of election by the Deputy Registrar to the Prescribed Authority under Section 25 (1) of the Societies Registration Act, 1860. Instead of deciding the reference, an order was passed on 24.09.2015 indicating that the matter can be settled under Section 25 (2) of the 1860 Act. This was challenged by Hari Pal Singh in the aforesaid writ petition, which was allowed on 04.11.2015 and the order dated 24.09.2015 was quashed with a further direction that the Prescribed Authority shall proceed to decide the dispute in terms of the referring order dated 25.05.2015 after giving opportunity to all concerned within a period of six weeks.
It is thus clear that the dispute which arose out of the 2010 elections, was directed to be decided in which Hari Pal Singh was claiming himself to be the Manager and also the persons entitled to represent the Committee of management. The locus of Hari Pal Singh was, therefore, clear in relation to the said pending dispute. His locus to contest the litigation was therefore not doubted by the learned Single Judge in the above mentioned petition.
The second fact which deserves notice, is that Hari Pal Singh claimed fresh elections having been held on 06.12.2015 during the pendency of the said dispute. Sri Mehrotra submits that Hari Pal Singh never set up this claim before the Prescribed Authority who proceeded to decide the dispute declaring the election of 2010 as null and void and the other findings that were recorded with regard to validity of members. This order was passed on 02.01.2016.
On 05.01.2016, Hari Pal Singh filed his proceedings of the elections dated 06.12.2015 before the Deputy Registrar..
It is to be noted that according to Sri Anupam Mehrotra, Hari Pal Singh insisted that the earlier dispute had become irrelevant and had also his sworn affidavit to that effect and, therefore, the respondent petitioner himself treated the earlier proceedings culminating in the order of the Prescribed Authority dated 02.01.2016 to be inconsequential.
Here, we may put on record that the Prescribed Authority did not dismiss the dispute as infructuous and in compliance of the judgment dated 04.11.2015, decided the dispute of the election 2010 holding it to be null and void and also took a decision with regard to the membership that was followed by the Deputy Registrar when he passed the order on 21.01.2016 who scheduled the holding fresh elections from 19.02.2016 to 21.02.2016. Before the elections could be held by the Deputy Registrar, Hari Pal Singh filed the writ petition giving rise to the present appeal where the operation of the order of the Prescribed Authority dated 02.01.2016 was stayed. Consequently, on account of the interim order which is impugned herein, the Deputy Registrar also recalled the election in schedule, vide order dated 01.02.2016.
This entire gamut of facts clearly indicates that the right of Hari Pal Singh to claim himself to be the Manager or representing a Committee of Management is clearly dependent on the outcome of the writ petition which assails the order of the Prescribed Authority dated 02.01.2016. The argument of Sri Mehrotra is not correct that the said order is inconsequential. Even if Hari Pal Singh was treating the proceedings to be irrelevant, yet the Prescribed Authority instead of declaring the proceedings to be infructuous, decided the matter on merits. This clearly affects the right of Hari Pal Singh and his committee to hold future elections as alleged on 06.12.2015. Consequently, the argument of Sri Mehrotra that the same if irrelevant, the order of the Prescribed Authority was not the real subject matter of challenge before the learned Single Judge, is a fallacious argument. The order of the Prescribed Authority has a direct bearing on the right of Hari Pal Singh with regard to his future election on 06.12.2015. Merely because the fresh elections were not mentioned before the Prescribed Authority, the same would not take away the impact of the order of the Prescribed Authority that may have on the claim of the respondent petitioner.
Consequently, Hari Pal Singh both has locus and he can represent the alleged committee which is asserting its right to claim management over the society. In view of this, the argument on behalf of the learned counsel for the appellant that the learned Single Judge wrongly assumed the jurisdiction of an irrelevant dispute, is without any basis.
Secondly, the order of the Deputy Registrar which has proceeded to hold fresh elections was obviously founded on the strength of the order of the Prescribed Authority dated 02.01.2016. The two orders are not severable and rather, the subsequent order of the Deputy Registrar is clearly dependent upon the outcome of the writ petition which raises a challenge to the order of the Prescribed Authority dated 02.01.2016.
Thirdly, the argument of Sri Sandeep Dixit is correct that Section 25 (1) of the 1860 Act requires the adjudication of any doubt or dispute of the election or continuance of office bearers. The dispute is clearly relating to the election or continuance of Hari Pal Singh and his right to hold any future elections. Thus, the order of the Prescribed Authority had to be challenged by Hari Pal Singh and it has to be adjudicated for any future course of action.
The Prescribed Authority has decided a dispute pertaining to the election of the office bearer of a society, vide order dated 02.01.2016 and in doing this, it clearly acts as a Tribunal as already held in the judgments relied upon by the learned counsel for the respondent petitioner. We clearly find them to be applicable on the facts of the present case as indicated hereinabove.
The special appeal, therefore, would not be maintainable and is accordingly rejected.
Order Date :- 2.5.2016 Rajneesh) [Attau Rahman Masoodi,J.] [Amreshwar Pratap Sahi,J.]