Heard learned Counsel for the petitioner, Sri Som Kartik, appearing for the contesting respondents and Sri M.B.Singh, Counsel for the Registrar Chits, Funds and Societies.
Undisputed facts are that Shiksha Prasad Samiti Dharai-mafi is a society registered in the year 1955 under the Societies Registration Act,1860 and per objects of the society, the same is running and managing an Intermediate College in the name and style of Mahatma Shiv Kumar Inter College, Sultanpur. The said educational institution is receiving grant-in-aid upto Junior High School level.
In Writ Petition no. 7 of 2011, the petitioner has questioned the validity of the order dated 10.12.2010 passed by the Deputy Registrar, Firms, Societies and Chits, Faizabad, whereby, the Deputy Registrar has held that there exists a dispute of Committee of Management of the Society, hence he has referred the matter to the Prescribed Authority. The contention of the petitioner's Counsel is that the impugned order dated 10.12.2010 has been passed without application of proper mind to the facts and circumstances of the matters and also without considering the reply of the petitioner no.2-Shiv Prasad Pathak. According to learned Counsel for the petitioner any claim of outsiders for the office-bearers of the Committee of Management cannot be entertained without deciding the objection regarding their membership. Moreover, only actual and real dispute is liable to be referred to the Prescribed Authority.
In Writ Petition no. 3511 (MS) of 2011 filed by the Committee of Management through its Manager Smt. Shanti Devi and others, the order dated 24.5.2011 passed by District Inspector of Schools, Chhatrapati Sahuji Maharaj Nagar has been assailed. It is said that before passing of the aforesaid order dated 10.12.2010, which is impugned in another writ petition, the renewal certificate of the society came to an end on 10.10.2010 and as such an application was presented on 24.11.2010 by the petitioner no.2-Shiv Prasad Pathak and requisite formalities were also completed. After necessary formalities, the certificate was renewed. Later on the District Inspector of Schools, Chhartrapati Sahuji Maharaj Nagar attested the signature of the petitioner vide order dated 20.5.2011. Subsequently, by an order dated 24.5.2011, the aforesaid order dated 20.5.2011 whereby signatures of one of the petitioners were attested, was abruptly cancelled. It has been contended on behalf of the petitioners that the said order dated 24.5.2011 is non est and bad in law as the same has been passed without issuing notice to the petitioners and further the same has been issued in view of political influence of one sitting MLA, namely, Mr Anup Sanda, who claims himself to be the President of the Society. An affidavit has been filed by Om Prakash Pathak claiming himself to be the Manager of Committee of Management. According to Sri Som Kartik, Counsel for the contesting respondent, the election to elect Committee of Management of the Society as well as the college were held on 17.7.2010 in the college, under the supervision of senior most member of the General body of the society i.e. Laxmi Narain Mishra, in which new Committee of Management of the Society as well as of the College was elected for the next term. Mr Anoop Sanda was elected as President of the Committee of Management and Om Prakash Pathak was elected as the Manager of the Committee of Management of the society as well as of the College. The elected President by his letter dated 31.7.2011 forwarded the proceedings of the election to the District Inspector of Schools. He also pointed out that after passing of the order dated 10.12.2010 by the Deputy Registrar, the District Inspector of Schools issued a letter dated 27.12.2010 to the Basic Shiksha Adhikari, Sultanpur indicating that there exists a dispute of Committee of Management of the College and there exists no approved Committee of Management in the college as the term of last Committee of Management of the college expired on 10.10.2010 hence single hand operation order may be passed for payment of salary to teachers and other employees.
Counsel for the contesting respondent also submitted that the order dated 20.5.2011 was cancelled by the D.I.O.S. vide order dated 24.5.2011 as the DIOS realized its mistake in issuing the order dated 20.5.2011 because he himself had earlier written a letter dated 27.12.2010 to the Basic Shiksha Adhikari regarding existence of dispute of Committee of Management of the college. Clarifying the position, he further submitted that no opportunity of hearing is required for rectification of error apparent on the face of record.
Writ Petition No. 2012(MS) of 2011 has been filed by the Committee of Management through its President Anoop Sanda for quashing the order dated 16.3.2011 passed by Deputy Registrar, Faizabad Division, Faizabad whereby renewal of the society has been done for next five years w.e.f. 10.10. 2010. According to learned Counsel for the petitioner, the petitioner vide his letter dated 14.1.2011 informed the authorities concerned that as the dispute has been referred to the Prescribed Authority and further writ petition no. 7(MS) of 2011 is pending before the High Court, therefore, he made a request that no party to the dispute may be given recognition and also renewal of society may not be made in favour of any of the parties. Inspite of the aforesaid information having brought to the notice of the authority concerned, the Deputy Registrar renewed the registration of the society for next five years w.e.f. 10.10.2010.
At the out-set it may be mentioned that by catena of decisions, a principle has been enunciated that whenever a controversy involved is a disputed question of fact then ordinarily it should not be adjudicated under extraordinary remedy of Article 226 of the Constitution. In Sanjay Sitaram Khemka vs. State of Maharastra and others,JT 2006 (4) SC 373; the Hon'ble Supreme Court observed as under:-
"A writ petition, as has rightly been pointed out by the High Court, for grant of the said reliefs, was not the remedy. A matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. As the High Court or this Court cannot, in view of the nature of the controversy as also the disputed questions of fact, go into the merit of the matter; evidently no relief can be granted to the petitioner at this stage."
In the instant case, one party is claiming that they are the valid members of the society and their Committee of Management is validly elected body whereas the second party is strongly contesting that as a matter of fact their Committee of Management is elected body and the seven persons inducted later on by the rival group, are not the valid members and by fabricating the papers they are showing themselves to be the valid members. The disputed questions of fact cannot be decided in a writ jurisdiction under Article 226 of the Constitution of India.
During the course of arguments, Sri M.B.Singh Counsel for the Deputy Registrar informed that the last election of the society was held on 15.6.2005. In the record, which has been produced by the Standing Counsel, there are two affidavits of Smt. Shanti Devi, in which it has been clearly stated that the election was conducted on 15.6.2005 in which she was elected as Manager. The proceedings dated 15.6.2005 shows that Shiv Prasad Pathak and Smt. Shanti Devi were elected unopposed as President and Manager of the Committee of Management and their tenure was only for a period of two years. At this juncture, it would be relevant to clarify that right to convene a Meeting for the purpose of holding elections of the office bearers is with the outgoing Committee of Management and after expiry of the term of the office bearers, it is the Registrar, who can pass an order under Section 25 (2) of the Act for convening a meeting of the General Body of the Society for holding fresh election. It is at this stage only that outgoing office bearers are debarred from convening any meeting for the said purpose. The Committee of Management, which is represented by Dr L.P.Mishra is saying that the fresh election of Committee of Management of the Society as well as of the College took place on 9.5.2010 and again the same old Committee of Management was elected. The other Committee of Management represented by Sri Som Kartik, Advocate is saying that the election to elect Committee of Management of the society were held on 17.7.2010 in the college in which Anoop Sanda was elected as President of the committee of Management and Om Prakash Pathak was elected as the Manager of the Committee of Management of the society. Thus one thing is crystal clear that after the last election held on 15.6.2005, the next elections were conducted in 2010 i.e. after a lapse of the term of the elected office bearer of the Committee of Management ie. after more than three years.
In the Case of Committee of Management and another Vs Assistant Registrar Firms Societies and Chits and Others [2000 (3) A.W.C. 1802 a Division Bench of this court has held that after expiry of tenure of Committee of Management, erstwhile members of the Committee of Management can not hold the election and only the Deputy Registrar may proceed to hold the election in pursuance to the power conferred by sub section 2 of Section 25 of the Act. Relevant portion from the Judgment of Committee of Management and another Vs Assistant Registrar, Firms Societies and Chits and Others (Supra) is reproduced as under :-
"3.....In these circumstances, we are of the opinion that the Assistant Registrar was justified in exercising powers under sub section (2) of Section 25 of the Societies Registration Act in directing that a fresh meting of the general body be held for electing office bearers of the Society. Sri Srivastava lastly urged that it is a case where there was a dispute in respect of election or continuance of office bearers of the society and, therefore, the matter ought to have been referred to the Prescribed Authority for decision under sub section (1) of Section 25 of the Act. We are unable to accept the contention raised by the learned counsel for the appellants. The dispute referred to under this provision could arise only if the election had been held within the period of three years and two rival groups claimed to have been elected as office bearers of the Society. The claim made by both the parties was based upon the elections, which were admittedly held after more than five years. In these circumstances, the Assistant Registrar was perfectly justified in issuing direction to hold a fresh election under sub section (2) of Section 25 of the Act. We, therefore, find no illegality in the impugned judgment and order of the learned single Judge."
Thus, the office bearers who were elected have no right to usurp the office and run the society for any reason whatsoever after completion of their term. They have no right to hold the office for such a long period, i.e. for more than the period for which they were elected. In case they are permitted to do so, it shall amount to give set back to the democratic process in the society. In such situations, it shall be the duty of the Registrar to take initiative under Section 25 (2) of the Societies Registration Act. Further, as the elections were not held within the specified time as such after expiry of the term the out going committee cannot hold the election and it is only the Registrar or the Deputy Registrar to hold the election. Filling of vacancy due to death or otherwise would not mean that elections of the entire committee of management took place. It may be noted that from the perusal of record it clearly comes out that last election took place on 15.6.2005. Further the two members of the committee of management, namely, Dr Ram Sagar Tripathi and Som Prakash Pathak died on 17.1.2007 and 12.6.2009 respectively. Therefore, the vacancies were filled by the resolutions dated 21.1.1007 and 12.7.2009 inducting Ram Sunder Kori as member and Sri Sharad Pathak as Dy Manager of the Committee of Management. It is further to be noted that from the proceedings filed with regard to election of the office bearers of the committee of management, it is evident that the office bearers were elected for a period of two years only. Therefore, there was no occasion and law also does not permit the outgoing committee of management to hold the election. Simirlarly, the rival group cannot hold the election and it is only the Deputy Registrar, who is vested with the power to convene the general body and hold the elections as provided under Section 25(2) of the Act. Therefore, both the Committee of Management cannot be said to be validly elected body.
In view of the above, the writ petition is allowed and the order dated 10.12.2010 passed by Deputy Registrar, Faizabad Region, is hereby set-aside. The Deputy Registrar, Chit, Funds and Societies, Faizabad Region, Faizabad shall conduct the election, within three months, under his supervision at the earliest in accordance with law after deciding the membership issue and preparing the electoral roll.
As regard the writ petition no. 3511(MS) of 2011, it may be mentioned that the District Inspector of Schools, Chhatrapati Sahuji Maharaj Nagar attested the signature of the petitioner vide order dated 20.5.2011. Subsequently, by an order dated 24.5.2011, the aforesaid order dated 20.5.2011 whereby signatures of one of the petitioners were attested, was cancelled. The contention of the petitioners' counsel is that the authority has exceeded its jurisdiction and has cancelled and reviewed its earlier order dated 20.5.2011. The argument of the other side is that the order dated 20.5.2011 was cancelled by the D.I.O.S. vide order dated 24.5.2011 as the DIOS realized its mistake in issuing the order dated 20.5.2011 because he himself had earlier written a letter dated 27.12.2010 to the Basic Shiksha Adhikari regarding existence of dispute of Committee of Management of the college.
If any mistake is brought to the notice of the authority concerned, which he has committed either inadvertently or by slip of eyes, then the order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter. It may be added that a judicial or quasi-judicial authority has inherent power to correct its own proceeding when it is satisfied that in passing a particular order, it was misled by one of the parties or there is an inadvertent error. It is also settled position of law that there is a clear distinction between a statutory review and a review under the inherent powers of the Court or Tribunal to rectify the wrong that has been committed by itself. Thus the contention of the petitioners' counsel that the authority had reviewed its order is not correct for the reasons enumerated hereinabove.
For the reasons aforesaid, the writ petition no. 3511(MS) of 2011 is hereby dismissed.
As regard the third writ petition i.e. Writ Petition No. 2021(MS) of 2011, it has been filed by the Committee of Management through its President Anoop Sanda for quashing the order dated 16.3.2011 passed by Deputy Registrar, Faizabad Division, Faizabad whereby renewal has been done of the society for next five years w.e.f. 10.1-0.2010 under Section 4 of the Societies Registration Act and the same can be assailed by them by filing an appeal under Section 12-D(2) of the said Act and writ is not the approprite remedy. It may be added that renewal of the society does not create any right for being the office bearers of the Committee of Management. During the course of arguments, Sri M.B.Singh, Counsel for the Societies, Chits and Funds, suggested that the renewal certificate of the society may be permitted to be remain intact but it shall not be treated to be in favour of any one of the parties. Both the contesting parties consented that renewal certificate may remain intact and they will not claim any rights to be in their favour.
Under these circumstances, the aforesaid writ petition no. 2021 (MS) of 2011 stands disposed of in above terms.