Writ petition is restored to its original number.
Dated :02.03.2012 VR/34103/11 Hon'ble Arun Tandon, J.
Heard learned counsel for the parties.
Order dated 10.06.2011 is recalled.
Writ petition is restored to its original number.
Recall Application is allowed.
Dated :02.03.2012 VR/34103/11 Hon'ble Arun Tandon, J.
This is an application filed by respondent no. 4 to the present petition for recall of the judgment and order dated 10.06.2011 on the ground that the order has been obtained by concealment of material fact, therefore, a fraud. In support of the said contention, the applicant respondent no. 4 refers to following facts :
Election of the office bearers of the institution as well as of the Society were held on 24.02.2008. Respondent no. 4 was elected as the Manager. The elections were approved by the Regional Level Committee vide order dated 27.07.2008 and as a consequence thereto the signatures of respondent no. 4 as Mayor were attested on 12.09.2008.
After more than two years of such recognition of the elections, writ petition no. 25965 of 2010 was filed by Santosh Shukla and others challenging the recognition of the elections vide order dated 07.07.2007 as well as attestation of signatures of respondent no. 4 vide order dated 12.09.2008. On 07.05.2010, the writ Court granted time to the said petitioners to file an affidavit disclosing as to how they claim to be members of the general body so as to have the locus to file the petition. In the said writ petition there was a specific prayer that the fresh elections should be held from the list of 36 members. The writ petition is pending till date and no interim order has been granted. What logically follows is that respondent no. 4 continued to be the recognized and lawful manager of the College and the Society.
A second writ petition was filed by the same persons except one being Civil Misc. Writ Petition No. 59094 of 2010 with identical prayer. This writ petition was got disposed of at the admission stage itself without notice to respondent no. 4 on 27.09.2010. Respondent no. 4, the Committee of Management through its Manager filed Special Appeal No. 1650 of 2010 and stated that by concealing the pendency of writ petition, an order has been obtained from the writ Court on 27.09.2010 for objections being decided. The Division Bench found substance in the contention of respondent no. 4 and held that the orders have been obtained from the writ Court by concealing material facts. The judgment of the writ Court was set aside and a cost of Rs.5000/- was imposed on Santosh Shukla and others.
Thereafter Sri Ram Pandey filed two Public Interest Litigations being P.I.L. No. 13792 of 2011 and P.I.L. No. 20279 of 2011. In the said petitions, a prayer for restraining the respondent no. 4 from functioning as the Manager was made. The first P.I.L. was dismissed on 09.03.2011 and the second on 13.04.2011. Such dismissal according to the present petitioners was on technical ground.
Another writ petition was filed being Civil Misc. Writ Petition No. 1070 of 2011 raising objections to the attestation of signatures of respondent no. 4 as the Manager which was dismissed on 04.01.2011 on the ground that it was in the nature of P.I.L. Thereafter another writ petition was filed being Civil Misc. Writ Petition No. 13792 of 2011 by Sri Ram Pandey challenging the order of his removal from the membership of the Society and for restraining the working of respondent no. 4 as the Manager and for recovery of the amount in terms of the order dated 30.07.1998. This writ petition was dismissed on 09.03.2011 as pre mature.
It may be recorded that in the aforesaid two writ petitions which were filed by Sri Ram Pandey there was no averment of any fresh elections having been held in the year 2011. It may be recorded that writ petition no. 13792 of 2011 was supported by an affidavit dated 10.02.2011 and was filed an 05.03.2011 and writ petition no. 20279 of 2011 was filed on 05.04.2011 and was dismissed on 11.04.2011. In none of the writ petitions there was any averment of any elections having been held by the Committee of Management in which Sri Ram Pandey was elected as the Deputy Manager.
It was now the turn of the petitioner to play another inning and during summer vacations the present writ petition was filed with the allegation that fresh elections of the Committee of Management had taken place on 20.02.2011 in which Dr. Chandra Shekhar Pandey (petitioner) was elected as the Manager and Sri Ram Pandey as the Deputy Manager. Papers in that regard were forwarded to the District Inspector of Schools but the Regional Level Committee while approving the elections set up by respondent no. 4, the applicant, has not even noticed the elections pleaded by the present petitioner.
In the opinion of the Court, the issue with regard to the merits of the order of the Regional Level Committee has become secondary inasmuch as it has to be seen as to whether the non-disclosure of the facts pertaining to filing of of writ petitions no. 25965 of 2010, no. 59094 of 2010, P.I.L. No. 13792 of 2011 and P.I.L. No. 1070 of 2011 and Special Appeal No. 1650 of 2010 and the orders passed by the High Court thereon have any bearing on the claim set up by the petitioner in this petition or not. If the Court comes to the conclusion that the aforesaid petitions and the order passed thereon did have bearing on the merits of the claim set up by the petitioner then this writ petition is liable to be dismissed with special cost for concealment of material facts only.
Prima facie from the record as are available to this Court following facts emerge :
(a) Respondent no. 4 was the elected and recognized Manager of the institution in terms of the elections held on 24.02.2008. His signatures after approval of the Regional Level Committee were attested on 12.09.2008. Thus it is the said Committee of Management alone which could held fresh elections and nobody else in terms of the provisions applicable i.e. Scheme of Administration/ bye laws of the Society.
It may be recorded that elections set up by the petitioner dated 20.02.2011 includes all the 12 members who had filed writ petition no. 25965 of 2010. Similar is the situation with regard to writ petition no. 59094 of 2010. This Court may further record that the person who filed P.I.L. No. 1070 of 2011 and P.I.L. No. 13792 of 2011 is none other that the Deputy Manager, Sri Ram Pandey said to have been elected as such in the elections held on 20.02.2011 wherein the petitioner claims to be have elected as the President.
This Court made a pointed query to the counsel for the petitioner that once the Committee of Management with Respondent No. 4 as Mayor was recognized as the lawful Committee in the year 2008, how could any independent elections be set up by the petitioner, the answer given is that the meeting was held on the same date and the petitioner was elected by other persons.
This Court may record that in writ petition no. 25965 of 2010 the third prayer made was to the following effect :
?a writ, order or direction in the nature of mandamus commanding the respondents to held the fresh election according to the list of 36 members.?
Similarly in writ petition no. 59094 of 2010 the third prayer was also for a mandamus directing the respondents to held fresh elections. The third prayer is quoted herein below :
?issue a writ, order or direction in the nature of mandamus commanding the respondents to hold the fresh election according to the list of 36 members.?
It may be stated that in both the writ petitions, it was the claim of the said petitioners that they were life members and were elected. This Court finds that in Writ Petition No. 13792 of 2011 one of the prayers made by Sri Ram Pandey was for restraining the respondent no. 4 from functioning as Manager of the institution. Similar was the prayer no. b in Writ Petition No. 20279 of 2011. Photocopies of writ petition along with the order passed thereon have been supplied to the Court today, which are kept on record. It may also be recorded that from the minutes of the meeting held on 20.02.2011, it is established beyond doubt that the elections set up by the petitioner are stated to have held in the presence of Arun Kumar Singh, Advocate, High Court, Allahabad. Arun Kumar Singh is none other than the counsel for the petitioner in Civil Misc. Writ Petition No. 25965 of 2010.
In these set of circumstances this Court is prima facie satisfy that the petitioner no. 2 Dr. Chandra Shekhar Pandey was well aware of not only that respondent no. 4 was the elected and recognized Manager, he was also aware of pendency of all the aforesaid writ petitions before this Court and the order passed therein. For the reasons best known to him these relevant facts were not disclosed in the present petition while obtaining an order on 16.06.2011. The petitions and the orders passed therein are relevant for the present controversy inasmuch as it is only the out going Committee of Management which can hold fresh elections.
In view of the aforesaid, the order dated 10.06.2011 having been obtained on concealment of material facts is hereby recalled.
Let notice be issued to the petitioner to show cause, as to why this Court may not proceed to initiate contempt proceedings for deliberate concealing of material facts as noticed herein above. For the purpose, he may appear and file his personal affidavit before this Court on 04.04.2012.
Put up for further orders on 04.04.2012.
Dated :02.03.2012 VR/34103/11