1.Siddheshwar Nath Inter College, Kotawa, Narayanpur, Ballia, (hereinafter referred to as 'institution') is a recognized and aided institution imparting education upto intermediate level. The institution is being run by a society known as Sri Siddheshwar Nath Uchchatar Madhyamik Vidyalaya Samiti, Kuti, Kotwa, Narayanpur, Ballia, (hereinafter referred to as 'society').
2.The writ petition nos.58747 of 2011, 59012 of 2012 and 26320 of 1997 were listed as connected matters and have been heard together, and since they pertained to the same institution, therefore, with the consent of learned counsel for the parties, all the writ petitions are being disposed of by this common judgment.
3.The facts relevant for the purposes of adjudicating the dispute involved, are that Sri Siddheshwar Nath Uchchatar Madhyamik Vidyalaya Samiti, Kuti, Kotwa, Narayanpur, Ballia, is a society registered under the provisions of the Societies Registration Act, 1860, in the year 1964. The society stood renewed since 15.1.1986 upon the papers for renewal submitted by Sri Swami Onkaranand in his capacity as the manager of the society. The society is running an educational institution, which is governed by the provisions of its approved Scheme of Administration. The Deputy Director of Education (hereinafter referred to as 'Deputy Director') passed an order on 28.12.1986, superseding the committee of management of the institution and appointed an authorized controller for the purposes of managing the institution and holding of fresh elections. The authorized controller took charge on 1.1.1987. Thereafter, elections were claimed to have been held, wherein it is alleged that Sri Swami Onkaranand was elected as president and Sri Narayan Bharti was elected as manager. The elections were recognized by the District Inspector of Schools, Ballia, (hereinafter referred to as 'inspector') on 1.8.1991. The Assistant Registrar, Firms, Societies and Chits, (hereinafter referred to as 'Assistant Registrar') in respect of the society registered the list of office bearers led by Sri Swami Onkaranand and also granted renewal by his order dated 4.6.1990 and 11.9.1990. In respect of the rival claim of Sri Murli Rai, it was observed that in case he feels aggrieved, he may seek reference under section 25(1) of the Act.
4.The aforesaid proceedings were challenged by Sri Murli Rai by filing writ petitions nos.20494 of 1990 and 21429 of 1991. These writ petitions were decided by this Court on 27.9.1995, with the observation that the authorized controller may hold elections of the office bearers of the institution, within a period of three weeks and dispute, if any, with regard to membership of the society, be decided before such elections and with the aforesaid observations, the writ petitions were held to have been rendered infructuous. The authorized controller demanded list of members from the Assistant Registrar but no such list was provided, instead Sri Swami Onkaranand furnished a list of 15 members countersigned by the Assistant Registrar to the authorized controller. The inspector finalized the list of 15 members, on the basis of list furnished by Sri Swami Onkaranand and the election proceedings were initiated on 11.10.1996. The order dated 11.10.1996 of the inspector, who was the authorized controller, got challenged by Sri Murli Rai, by filing writ petition no.35024 of 1996, which was disposed of on 1.11.1996, permitting the Deputy Director to decide the issue. Pursuant to the order dated 11.10.1996, the elections under the orders of the inspector were held under the supervision of the Election Officer on 7.11.1996, which was recognized by the inspector and the signatures of Sri Swami Onkaranand as manager was attested on 24.12.1996. It appears that Sri Murli Rai made a representation against the aforesaid proceedings and the District Magistrate consequently passed an order directing the Additional District Magistrate (Finance and Revenue), Ballia, to ensure handing over of charge by the inspector to the elected office bearers. The Additional District Magistrate (F & R) appears to have passed an order on 7.2.1997, for handing over the charge to Sri Swami Onkaranand. This order of the Additional District Magistrate (F & R) has been challenged by Sri Murli Rai, by filing writ petition no.5915 of 1997, wherein an order was passed on 21.2.1997 directing the Deputy Director to resolve the dispute, within three weeks and to maintain status- quo, till then.
5.Pursuant to the orders passed in writ petition no.35024 of 1996 dated 1.11.1996 as well as in writ petition no.5915 of 1997 dated 21.2.1997, the Deputy Director proceeded to examine the issue. The issue of membership was pressed before the Deputy Director with regard to 14 members, who had been inducted by Sri Swami Onkaranand pursuant to order dated 15.6.1990 passed by the inspector. The Joint Director of Education (hereinafter referred to as 'Joint Director') disapproved such induction of 14 new members by Sri Swami Onkaranand and also the electoral college so determined on 10.10.1996. In view of the membership itself having been discarded of 14 new members, the Deputy Director proceeded to disapprove the consequential election dated 7.11.1996, electing Sri Swami Onkaranand, by his order dated 31.5.1997/2.6.1997. A further direction was issued that that the authorized controller would continue in the institution and he would enroll new members in accordance with clause 3 of the new Scheme of Administration (hereinafter referred to as 'scheme') after due publication, under intimation to Sri Swami Onkaranand and Sri Murli Rai and fresh elections thereafter be conducted. The order dated 31.5.1997/2.6.1997 as well as advertisement issued on 10.6.1997 for enrolling members came to be questioned by the committee through its manager Sri Swami Onkaranand by filing writ petition no.20568 of 1997, which was dismissed in default on 30.3.2009. An application for restoration along with an application for substitution was filed on the ground that Sri Swami Onkaranand had died on 3.2.2011, and therefore, Pramod Kumar Upadhyaya be substituted in his place. The restoration application was allowed on 6.1.2012 and the substitution application was rejected on 22.5.2012, on which date, the writ petition was also dismissed by the following order:-
"Heard learned counsel for parties and perused the record.
Writ petition is directed against the order dated 31.5.1997 passed by Deputy Director of Education (Secondary), Azamgarh appointing Authorized Controller with the direction to hold fresh elections in accordance with the observations made therein. Learned counsel for petitioner submitted that pursuant to the said order, fresh elections were held wherein also petitioner was elected. He, however, submitted that Deputy Director of Education has entered into dispute of Membership which is without jurisdiction.
I do not find any reason to go into this question for the reason that even in the election impugned in this writ petition, petitioner's Committee of Management has been elected in new election pursuant to the said order. Therefore the issue sought to be raised is an academic one and need not to be adjudicated in this writ petition.
Dismissed. "
6.It further appears from the record that the Finance Officer in the office of inspector, Sri Ram Nyadhi Rai was appointed as authorized controller to proceed in the matter. The authorized controller proceeded in the matter and 328 new members were enrolled by the authorized controller in his capacity as manager on 28.6.1997. This exercise was questioned by Sri Swami Onkaranand, by filing objections/complaints before different state authorities, including the District Magistrate, Ballia. The Deputy Director examined the matter and after taking note of the views of the District Magistrate, proceeded to pass an order dated 7.7.1997, appointing the District Inspector of Schools, Ballia, as administrator in place of Ram Nyadhi Rai, Finance Officer, who was appointed as authorized controller on 19.5.1997, and all actions required vide order dated 2.6.1997 were to be undertaken by the inspector himself in his capacity as authorized controller. Sri Ram Nyadhi Rai, however, proceeded to pass an order dated 8.7.1997, initiating the process for holding of elections, fixing 20.7.1997 as the date of election itself. The inspector, in furtherance of the order dated 7.7.1997, in his capacity as authorized controller passed orders dated 11.7.1997 and 16.7.1997, cancelling all actions undertaken by the previous authorized controller under the order dated 2.6.1997, including the proposed holding of elections. The order dated 16.7.1997 was also published in the newspapers. It is this order dated 7.7.1997 of the Deputy Director and the order dated 16.7.1997, which has been challenged by Sri Prem Shankar Rai on the ground that he has been elected as manager on 20.7.1997 and therefore no order without hearing him could be passed, by filing writ petition no.26320 of 1997, which is the first writ petition to be adjudicated.
7.Since the order of the Deputy Director dated 7.7.1997 was not interfered with and no interim order was passed in writ petition no.26320 of 1997, as such, the alleged claim of election dated 20.7.1997, conducted by the authorized controller who stood removed, was not approved at that point of time and the inspector continued as the authorized controller. It appears that a government order was issued on 2.9.2008 directing that in cases, where authorized controller is continuing since long, steps be taken to ensure handing over of management to the elected committee of management. A consequential order was passed by the Joint Director to the authorized controller to ensure that the committee of management was constituted in the institution as well. The authorized controller wrote a letter to the Assistant Registrar on 16.1.2010, requiring the Assistant Registrar to furnish the list of members of the society. Sri Swami Onkaranand, thereafter, presented a list of 15 members for the year 1995-96, which was countersigned by the Assistant Registrar on 21.8.1996, to the authorized controller. The list was published on 1.6.2010 by the authorized controller, inviting objections against it, so as to determine the electoral college for holding of the elections. This was also published in daily newspaper 'Aaj' on 15.6.2010. An objection was filed by Sri Prem Shankar Rai on 7.6.2010 claiming that he has been elected on 20.7.1997, but his signatures have not been attested. The authorized controller proceeded to pass an order dated 16.6.2010, holding therein that there was no occasion to attest the signatures of Sri Prem Shankar Rai and as there was no objection with regard to the list of 15 members submitted by Sri Swami Onkaranand, therefore, he proceeded to determine the electoral college consisting of 15 members. An observer was also appointed by the inspector on 17.6.2010. The name of daily newspapers were also specified by the inspector, as Dainik Jagran, Hindustan and Anand Varta. It is claimed that elections thereafter were held on 27.6.2010, as per the directions issued by the inspector, wherein Sri Swami Onkaranand was elected as president and Sri Pramod Kumar Upadhyaya was elected as manager. Thereafter, elections were recognized and signatures of Sri Pramod Kumar Upadhyaya were also attested by the inspector on 29.6.2010. A writ petition no.37022 of 2010 was filed, challenging the recognition and attestation of signatures, which was disposed of on 23.7.2010, permitting the petitioner to approach the Regional Level Committee for redressal of his grievance.
8.The Regional Level Committee proceeded to examine the matter and after hearing both the parties, it disapproved the election dated 27.6.2010 and accepted the claim of election dated 20.7.1997 setup by Sri Prem Shankar Rai and directed the signatures of Sri Prem Shankar Rai to be attested. This order of the Regional Level Committee dated 5.9.2011, as well as the attestation of signatures of Sri Prem Shankar Rai on 6.9.2011, have been challenged by committee of management led through Sri Pramod Kumar Upadhyaya, by filing writ petition no.59012 of 2011, which is one of the other writ petitions being decided by this judgment. While entertaining the writ petition, following interim orders have been passed on 13.10.2011:-
"Learned standing counsel has accepted notice on behalf of respondent Nos. 1 to 5. Sri H.K. Singh, Advocate has entered appearance on behalf of respondent No.6.
Each one of the respondents is granted three weeks' time to file counter affidavit. Rejoinder affidavit may be filed within next one week.
List this writ petition after four weeks along with record of writ petition No.58747 of 2011, wherein notice on behalf of respondents Nos. 1 to 4 notices have been accepted by learned standing counsel and respondent No.5 is represented by Sri H.K. Singh, Advocate. Record of writ petition No.20568 of 1997 be also placed before the Court along with aforesaid writ petitions.
Since serious dispute has been raised as to whether the Prabandh Sanchalak has authority to enroll new members of the general body of the society or not, as such it is hereby directed that till such dispute is not decided by this Court, the Prabandh Sanchalak shall continue to manage the affairs of the institution as was being done by him in the past."
9.It appears that the orders dated 5.9.2011 and 6.9.2011 were challenged on the ground that it was actually passed in suspicious circumstances as the Joint Director himself was under an order of transfer. The new Joint Director, who took charge, consequently withdrew the order dated 5.9.2011 and fixed the matter for hearing on 30.10.2011 afresh vide his order dated 30.9.2011. Challenging this subsequent order dated 30.9.2011, the committee of management led by Sri Prem Shankar Rai had filed writ petition no.58747 of 2011, which is also being decided by this judgment.
10.I have heard Sri H.N. Singh, learned Senior Counsel, assisted by Sri Vinit Kumar Singh, appearing for the committee of management led by Sri Pramod Kumar Upadhyaya as manager and Sri Swami Onkaranand as its president, the petitioner in writ petition no.59012 of 2011, and Sri G.K. Singh, learned Senior Counsel, assisted by Sri V.K. Singh, appearing for the petitioner in writ petition no.58747 of 2011 and also for the petitioner in writ petition no.26320 of 1997. Learned counsel for the parties have also submitted their respective written arguments, which have been taken on record.
11.Learned counsel for the parties are not at issue that the term of the committee of management is three years and one month. The last election conducted by the authorized controller on 27.6.2010 also had its term only till June, 2013, and therefore, the term of committee of management has come to an end. The order passed by the Regional Level Committee dated 5.9.2011 and the order dated 30.9.2011 of the Joint Director are in the context of elections dated 27.6.2010, and therefore, at this stage, no effective relief can be granted to any of the parties and considering the fact that a serious dispute existed in respect of the elections dated 20.7.1997 and 27.6.2010, as would be apparent from the discussions held hereinafter, interest of justice would be served if a direction is issued to hold a fresh election by the authorized controller and to this context learned counsel for the parties are also not at issue. However, the writ petitions have been pressed, for resolving core contentions between the parties, so that the long standing dispute is resolved and the proposed elections do not loose sanctity on account of such disputes having not been resolved.
12.Sri H.N. Singh, learned Senior Counsel for the petitioner in writ petition no.59012 of 2011, submits that Sri Swami Onkaranand was the manager of the society and the institution, and the registration of the society was renewed from time to time on the basis of documents presented by him, which fact has been noticed in the order passed by the Assistant Registrar dated 4.6.1990 and 11.9.1990. The other faction led by Sri Murli Rai was directed to make a reference under section 25(1) of the Act but no reference was made by him. He submits that the Assistant Registrar has countersigned and thereby certified the list of members of the society on 21.8.1996, which document is Annexure 20-A in writ petition no.59012 of 2011. He also submits that the list of members of the society as certified by the Assistant Registrar has not been disputed or set aside. The elections dated 27.6.2010 has been held under the supervision of the educational authorities, on the basis of list of members certified by the Assistant Registrar and, therefore, the election proceedings dated 27.6.2010 was liable to have been recognized and the order dated 5.9.2011 has been assailed. He also submits that the order of the Regional Level Committee was passed after an order of transfer was passed against the Joint Director and that is why it was rightly recalled on 30.9.2011, which order does not require any interference.
13.On the other hand, Sri G.K. Singh, learned Senior Counsel, submits that the claim of committee of management having Pramod Kumar Upadhyaya as its manager is based on 14 members inducted pursuant to the order of inspector dated 15.6.1990, permitting enrollment of new members. It is alleged that the Deputy Director in his order dated 31.5.1997/2.6.1997 has clearly disapproved the enrollment of 14 new members, as well as the consequential election dated 2.11.1996. It is also contended that by the same order, direction was issued to the authorized controller to enroll new members after due publication of advertisement etc. It is further contended that the order dated 2.6.1997 has attained finality in view of the fact that the writ petition no.20568 of 1997 has already been dismissed on 22.5.2012, and therefore, the entire claim of election based on the enrollment of 14 members is liable to be rejected. It is further submitted that pursuant to the direction issued on 2.6.1997, the authorized controller proceeded to induct 328 new members and as the order dated 2.6.1997 has become final, therefore, enrollment of 328 members by the authorized controller has become final inter se between the parties. It is also stated that on account of dispute, the committee elected on 20.7.1997 was not put in control and has not yet completed its elected term. Sri G.K. Singh, learned Senior Counsel, therefore, contends that a fresh direction for holding of elections on the basis of list of members (consisting of 328 members enrolled by the authorized controller pursuant to the order dated 2.6.1997) be issued. He also states that since the claim for enrollment of 14 members has already been rejected by the Deputy Director by his order dated 2.6.1997, therefore, these 14 members have no right to participate in the election. It is also contended that the election proceedings of the year 2010 were since based upon the electoral college consisting of 15 members, 14 of whom are new and disapproved in the order dated 2.6.1997, therefore, the election proceedings dated 27.6.2010 cannot be sustained and the order dated 5.9.2011 was rightly passed.
14.Having heard learned counsel for the parties, and upon perusal of materials available on record, following questions arise for consideration of this court in the present bunch of writ petitions:-
(I) Whether 14 members enrolled by Sri Swami Onkaranand pursuant to order of the inspector dated 15.6.1990, as well as the claim for election set up on the strength thereof could survive after dismissal of writ petition no.20568 of 1997?
(II) Whether 328 persons, who have been enrolled by authorized controller pursuant to the order dated 2.6.1997, were valid members and election proceedings dated 20.7.1997 were rightly recognized by Regional Level Committee vide order dated 5.9.2011?
15.The core issue requiring determination by this Court, is with regard to membership of the general body of the institution, and the election of its office bearers. No issue on facts or law has been raised for adjudication by this Court relating to the society. The institution is governed by a scheme of administration. The amended scheme under clause 2(9) defines society as having its registration no.597 dated 8.10.1964, which is the registration number of the society running the institution. The scheme has been amended on 6.2.1985 and different category of members have been provided, including the procedure for their enrollment. The term of the committee of management is three years and the office bearers shall continue for a further period of one month, and after expiry of one month period, if the elected committee does not take charge, then the term of the committee shall be treated as having lapsed by time and the Divisional Deputy Director of Education would appoint an authorized controller for the purposes of functioning of the institution and also for holding of the elections.
16.Coming to the first issue with regard to enrollment of 14 members pursuant to order of the inspector is concerned, this Court finds that in the order dated 2.6.1997 the Deputy Director has held the enrollment of 14 members pursuant to order of the inspector dated 15.6.1990 as not being in accordance with the scheme. In his order dated 2.6.1990, the Deputy Director has held that these 14 new inducted members are not the valid members and the election held on the basis of list of 15 members (consisting of 14 new members) has also been disapproved. The order dated 2.6.1997 had been challenged by the petitioner in writ petition no.20568 of 1997, which has already been dismissed on 22.5.2012. This Court refused to go into the question of validity of the order dated 31.5.1997/2.6.1997, on the ground that fresh elections had been held and the petitioners' claim to have been elected therein, and the issue, therefore, remained academic. However, the findings returned in the order dated 31.5.1997/2.6.1997, holding the 14 newly enrolled persons not to be valid members, has not been set aside. Sri G.K. Singh, learned Senior Counsel, has placed reliance upon the decisions rendered in 1997 (Suppl.) AWC 592: Committee of Management, Sukhpura Inter Collge, Ballia & another V. Alleged Committee of Management, Sukhpura Inter College, Ballia & others, JT 1999 (3) SC 496: Vallapally Plantations Pvt. Ltd. V. State of Kerala, JT 1995 (8) SC 533: State of Kerala V. M.K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (dead) & others and 2011 (15) SCC 453: Ranbir Singh V. Executive Engineer, to contend that the order dated 2.6.1997 has attained finality inter se between the parties. The legal proposition advanced, in this regard, is not in dispute. It is settled proposition that even a wrong decision binds the parties to the dispute, unless it is set aside. However, in the facts of the present case, this Court finds that a challenge to the order was made and pressed, but this Court refused to adjudicate the issue on the ground that question involved, in the factual scenario, has become academic. The order of the Deputy Director, therefore, has not been interfered with.
17.Sri H.N. Singh, on the other hand, submits that the orders passed by the authorities, under the Societies Registration Act, are in respect of membership of society, which had attained finality, and it cannot be questioned. Since none of the orders or proceedings under the Societies Registration Act have been challenged in the present writ petitions, therefore, no adjudication is required to be made by this Court, in respect of membership finalized by the Assistant Registrar, and it shall be open for the authorities, while conducting the elections to examine this aspect of the matter and any independent claim of membership of the society if is raised, it shall be examined independently, without being influenced by the the order dated 2.6.1997. This observation is being made, as the authorities under the Intermediate Education Act and the Societies Registration Act operate in separate spheres and the orders passed by educational authorities will not have the effect of nullifying the claim of membership of the society. The first issue is answered accordingly.
So far as the second issue with regard to enrollment of 328 members is concerned, this Court finds that such members were enrolled pursuant to the order dated 31.5.1997/2.6.1997, by the then authorized controller Sri Ram Nyadhi Rai. The records further show that complaints have been received against the functioning of Sri Ram Nyadhi Rai, who had enrolled 328 members led by faction of Sri Prem Shankar Rai. Based on the various complaints and request in the matter conveyed to the Deputy Director, by the District Magistrate, that the order dated 7.7.1997 was passed removing Sri Ram Nyadhi Rai as authorized controller, and instead the inspector himself was appointed as the authorized controller. It is interesting to note that the election proceedings were initiated on 8.7.1997, by Sri Ram Nyadhi Rai, after the orders were passed by the Deputy Director for appointing inspector in his place. Sri Ram Nyadhi Rai was himself a Finance Officer in the office of the inspector and it can be safely assumed that he was aware of the orders passed by his senior officers of the same department. The contents of the order dated 7.7.1997 was also published in the prominent newspaper 'Dainik Jagran' vide order dated 16.7.1997 on 17.7.1997. The order dated 7.7.1997 also directs that all action required to be undertaken by the authorized controller pursuant to the order dated 2.6.1997 would be undertaken by the inspector. Once the higher educational authority has changed the authorized controller on 7.7.1997, there was no justification on part of Sri Ram Nyadhi Rai to have continued further by initiating the election programme on 8.7.1997. The entire claim of election by Sri Prem Shankar Rai dated 20.7.1997 is on the strength of proceedings conducted by the authorized controller, who had already been removed on 7.7.1997. The claim of Sri Prem Shankar Rai of having been elected on 20.7.1997, which has been accepted by the Regional Level Committee by its order dated 5.9.2011, therefore, is not liable to be sustained. This Court otherwise finds substance in the complaints made against Sri Ram Nyadhi Rai, as the list of 328 members inducted by him includes his three sons also at serial no.270, 271 & 273, which shows that he was having personal interest in the matter and was not impartial. Sri G.K. Singh, on the basis of instructions received, fairly admits that the members enrolled at serial no.270, 271 & 273 are in fact the sons of Sri Ram Nyadhi Rai. The matter has to be viewed from different perspective as well. Law is settled that an authorized controller has no right or jurisdiction to enroll new members and the entire exercise undertaken, for the purposes, is otherwise null and void. Hon'ble Single Judge of this court in Committee of Managemnet Rashtriya Madhyamik Vidyalaya V. Joint Director of Education: 2003 (3) UPLBEC 2175 has had an occasion to examine this aspect of the matter in para 6 & 7 of the aforesaid judgment, relying upon the Division Bench Judgements of this Court in Ranvir Singh V. DIOS Jalaun at Orai: 2000 (38) ALR 431 and Rajendra Pal V. DIOS: 1991 (1) UPLBEC 588 and various other judgments, to hold conclusively that an authorized controller has no jurisdiction to enroll new members. The only exception can be when electoral college itself cannot be constituted in the absence of members. Para 6 & 7 of the Committee of Management Rashtriya Madhyamik Vidyalaya (supra) are reproduced:-
"6. This question as to whether Prabandh Sanchalak has any right to enroll any member or not, had already been answered by Division Bench of this Court in the case of Ranvir Singh v. D.I.O.S., Jalaun at Oral, reported in 2000 (38) ALR 431, wherein it has been held that Authorised Controller can never be treated as a substitute to a Committee of Management or a General Body of a Society or an Institution and possess no power to induct new members. In the case of Rajendra Pal v. District Inspector of Schools, reported in (1991) 1 UPLBEC 588, it has been held that an inspiration has to be drawn from various decisions that the Authorised Controller is appointed to meet certain exigencies and infact it is beyond his power to enroll new member and it is merely in the nature of stop gap arrangement and membership of the' persons, who have been enrolled by Authorised Controller have to be ignored. They cannot take part to constitute new Committee of Management. Relevant Paragraphs No. 7, 8, 9, 10, 11 and 12 of the aforementioned judgment are quoted below:-
"7. The Committee of Management is constituted to run an institution. It has been made obligatory under the provision of Section 16- A of the Intermediate Education Act, which was inserted by U.P. Act No. 35 of 1958. It provides for a Scheme of Administration for every institution, whether recognised before or after the commencement of the said Act. The Scheme of Administration has to, inter alia, provide for Constitution of Committee of Management vested with the authority to manage and conduct the affairs of the institution. There are regularizations framed under the Intermediate Education Act, 1921, contained in Part-2A, Chapter I, dealing with the Scheme of Administrations. Power, duties and functions of the Committee of Management have been prescribed in Regulation 13. Approval to the Scheme of Administration is accorded under Regulation 14. Sub-section (6) of Section 16-A provides that every recognised institution shall be managed in accordance with the Scheme of Administration. Admittedly, there is a Scheme of Administration of the Society, which runs the institution. Clause 7 of the Scheme provides the procedure for the enrollment of the members of the General Body. Certain conditions have been laid down for acquiring the membership. If the Committee of Management does not approve the membership of a particular person, the matter is to be put up for consideration before the General Body. If the General Body confers the status of membership on a particular person, he will be treated as a member and if General Body turns down the proposal to accept a particular person as a member, the draft of membership fee furnished by him shall be returned. The decision of the General Body in the matter is final. Clause 9 of the Scheme provides for the term of the Committee of Management. After the expiry of the term of 3 years and one month, the Committee shall cease to function. If elections are not held within the prescribed time, the DDE concerned has been authorised to nominate a person of his choice as Authorised Controller who shall have full rights to manage the affairs of the institution. It shall be the duty of the Authorised Controller to ensure that the election to constitute the new Committee of Management is fully saddled with all expendition. The term of the Authorised Controller comes to an end no sooner the newly constituted Committee of Management takes over.
8. Sri Ajit Kumar learned Counsel for Rajendra Pal Singh, Ex-manager, urged that bare reading of these two clauses of the Scheme makes it clear that the Authorised Controller has no authority to exercise power of enrolling the members as his duty simply is to manage the affairs of the institution till such period a new Committee of Management conies into being Sri Arun Tandon repelled the above submission and maintained that the Authorised Controller steps into the shoes of the Committee of Management and all the powers, which are vested in the Committee of Management, are exercisable by the Authorised Controller. According to him, powers of various office bearers and the members of the Committee of Management are to be concentrated for being exercised in one man, who is termed as Authorised Controller. I find it difficult to agree with Sri Arun Tandon on the point. Democracy is the signature tune of our Constitution. It is life and blood of all our institution. The concept of democracy is the Central idea in constituting the elected Committees of Management of the various recognised educational institutions. The Authorised Controller is appointed in certain specified circumstances, such as, where the elected body is working against the interest of the institution, it is squandering and eating away the resources of the Society, it is guilty of misfeasance and non-feasance in running the institution or where a void has come into being on account of expiry of the term of the elected Committee of Management. There are certain situations when the term of the elected body has come to an end and the new body has not come into being. To fill up this yawning gap, some arrangement has to be made so that the smooth functioning of the institution may not be hampered. It is to fill up this void or vacuum that the appoint of an Authorised Controller has been contemplated. The position of the Authorised Controller, therefore, is that of a caretaker who has to remain in office as a stood gap arrangement. The primary duty of the Authorised Controller is to ensure that the new Committee of Management, after due elections is saddled. During this interregnum the Authorised Controller has to perform the ordinary duties with a view to ensure smooth running of the affairs of the institution and to person the various day-to-day functions. Certainly an Authorised Controller cannot be treated as an alter ego of the Committee of Management. It is also not synonymous to the Committee of Management. The Authorised Controller cannot subrogate himself to the position of a Committee of Management. He is merely a substitute of the Committee of Management to perform a specific and limited role and to remain in the office till the duly elected Committee of Management comes into being. At best, it can said that he possesses a reflected glory of the Committee of Management. A reflection cannot take place of the original object. An Authorised Controller though is a substitute or alternative to fill up the gap, cannot take such steps as would alter the composition of the Society itself. The basic structure of the Society cannot be changed by him by enrolling the new members who may not be acceptable to the original founder and life members of the Society. It is not expected that an Authorised Controller by virtue of his being in office for all short period and that too, to meet certain contingency, shall thrust or impose upon the original members the newly enrolled members, who may or may not be acceptable to the Society, Enrollment of members is a sensitive task and may some times alter the basic structure and complexion of the Society. The act of the Authorised Controller may run counter to the original aims and objects and the wishes of the original members of the Society.
9. The Society, as a matter of fact is a compendious name of group of person who have voluntarily agreed to join for furtherance of their certain objects. This right to form a Society as envisaged in Article 19 of necessarily implies that the persons form the Association have also the right to continue to be associated with only those whom they voluntarily admitted in the Association. This aspect of the matter came to be considered by the Apex Court in the case of Smt. Damyanti Naranga v. Union of India and Ors., AIR 1971 SC 966, in which the provisions of Hindi Sahitya Sammelan Act, 1962, came to be considered, vis-a-vis, right of the members of registered Society known as Hindi Sahitya Sammelan, which was constituted for the development of Hindi and its propagation throughout the country. It was held that any law, which takes away the membership of those who have voluntarily joined it will be a law violating the right to form an association. The Hindi Sahitya Sammelan Act, it was observed does not merely regulate the administration of the affairs of the original Society; what it does is to alter the composition of the Society itself. The result of this change in composition is that the members who voluntarily formed the association arc now compelled to act in that association with other members who have been imposed as members by the Act and in whose admission to membership they had no say. Such alteration in the composition of association itself clearly interferes with the right to function as members of the association, which was voluntarily formed by the original founders. The Act it was held, violates the rights of the original members of the Society to form an association guaranteed under Article 19(l)(c) of the Constitution of India. Reliance was placed on the earlier decision reported in G.K. Ghosh v. EX. Joseph, AIR 1963 SC 812, in which the Apex Court accepted the principle that the Government servant who may have formed an association could not be compelled to resin from it by imposition of a condition of recognition of the association by the Government and that if the Government servants are required to cease to be members that would be a violation of the right under Article 19(l)(c), G.K. Ghose's case, thus, supports the view that the right to form an association includes the right to its continuance and any law altering the composition of the association compulsorily will be breach of the right to form an association. In State of Madras v. G.K. Rao, AIR 1952 SC 196, it was observed that the work 'form', therefore, must refer not only to the initial commencement of the association but also to the continuance of the association as such.
10. An inspiration may be drawn from the aforesaid decision of the Apex Court to come to the conclusion that the act of the Authorised Controller who is appointed to meet certain exigencies, to enroll new member, clearly violates the rights of the original and life members of the Society, inasmuch as, the new members, imposed upon the Society by the Authorised Controller may not be acceptable to them. The fundamental right of the original members to form an association or Society, which takes within its swoop, to continue the association is undoubtedly infracted by the unwarranted act of the Authorised Controller and therefore, has to be termed as bad in law.
11. The view, which I am taking in the present case, docs not stand in isolation. It is fortified by an earlier decision of this Court reported in B.S.M. Samiti, Roorkee and Anr. v. District Magistrate, Haridwar and Anr., 1995 (2) HVD 169, in which the question was whether the State Government or the District Magistrate or for that matter, the D.I.O.S. have the legal right to pass orders and issue directions for enrolling persons of their choice on the persons who themselves want to become the members of the General Body of the Maha Sabha to be enrolled as members in spite of the fact that the Society/Maha Sabha docs not accept them nor accept their proposal to become members. The answer was given in negative and it was observed, that unless there was any such provision, which compels the Society and its members to accept the persons as members by statutory law, no such enrollment is legally possible and if it is made by any statute, that would be in violation of Article 19 of the Constitution. Somewhat more precise and direct Authority is to be found in another decision of this Court reported in S.K. Misra and Anr. v. District Inspector of Schools and Anr., (1996) 2 UPLBEC 896, Paragraph 5 and 6 of the report read as follows :-
"5. It is an established principle that when there is not validly elected Managing Committee or when there is doubt or dispute with regard to the eligibility or entitlement of a particular group of body to manage a Society particularly when it relates to run and educational institution in order to obviate impulses or void created thereby Authorised Controller is appointed or sometimes the District Inspector of Schools is allowed to carry on the Management of the Institution as a stop gap measure with a view to hold the election and hand over the charge. It is also an accepted proposition that such Authorised Controller or the District Inspector of Schools has to hold the election according to the Scheme of Administration governing the association or the institution.
6. There is no doubt, that the Authorised Controller can never be treated ask substitute for the Management Committee of the General Body of an Association. The Authorised Controller is not appointed within the scheme of Administration of the Institution. He is appointed by reason of statutory provision only to fill up the void and restore the Management of the Institution according to the scheme of administration by directing him to hold the election. The Authorised Controller is not given power by reason where of he can induct members in an association of persons or being about changes in the structure of the association much to the charge in and prejudice of the members."
12. In view of the above discussion, my firm view is that the Authorised Controller is not competent or authorised to enroll or induct new members of the Society. It is beyond his powers to enroll the new members. As a matter of fact such a course is not warranted by the very nature of the stop gap arrangement to run the affairs of the institution by the Authorised Controller in the absence of the elected Committee of Management. In the instant case, the Authorised Controller has usurped the powers of the Committee of Management or of the General Body of the Society by enrolling new members. The enrollment of the members by the Authorised Controller being against the provisions of law, is of no consequences. He cannot tilt the balance of the Society one-way or the other by enrolling the new members. Therefore, membership of the persons, newly enrolled by the Authorised Controller, has to be ignored. They could not have taken part in the elections to constitute the new Committee of Management."
7. On behalf of the respondent No. 3 reliance has been placed on a judgment given in Civil Misc. Writ Petition No. 3277 of 1997, decided on 14th December, 2000 (Committee of Management Islamia Inter College, Firozabad and Ors. v. RSDE), wherein this proposition of law has been accepted that the Prabandh Sanchalak has got no right or authority to enroll member but therein enrollment of the members of General Body by Prabandh Sanchalak has been upheld by the learned Single Judge in the peculiar fact and circumstances of the aforementioned case, as there did not exist any member to be associated with the process of the election. Here in the present case, even from own showing of the Prabandh Sanchalak and Educational Authorities, there were four life members of the General Body of the Society, who were in existence and thus, judgment which has been cited on behalf of respondents is clearly distinguishable from the facts of the present case. The precise averments of the petitioners is that, at no point of time, any exercise or endeavour was made by Prabandh Sanchalak to verify the members of the General Body and illegally presuming that four members were alive and it was not possible to hold election, he proceeded with the enrollment of members. The Prabandh Sanchalak has totally erred and overstepped his authority in proceeding with the process of enrollment of the members. The Prabandh Sanchalak ought to have first notified this fact in well-known news papers that any one, who claims to be the life members of the Society member in any category, may come forward and stake his claim and after this exercise was over and in case it was found that there were members of General Body of the Society, then the duty of enrolling members should have been cast upon the aforementioned members. In the facts and circumstances of the present case, from the own showing of the Prabandh Sanchalak, there existed four life members of the General Body of the Society, then Prabandh Sanchalak had no authority or jurisdiction to proceed with the process of enrollment of members and thus, entire exercise which has been undertaken by the Prabandh Sanchalak for enrollment of members is void and nullity and no credibility whatsoever could be attached to the same."
In the peculiar facts of the present case, this Court finds that the appointment of Sri Ram Nyadi Rai was otherwise a subject matter of dispute and the Deputy Director had clearly passed an order stating therein that instead of him, the inspector be appointed as authorized controller and the action required to be taken pursuant to the order dated 2.6.1997 was required to be undertaken by the inspector himself.
18.The order dated 7.7.1997, contents whereof also got published in the newspapers on 17.7.1997, has been challenged by Sri Prem Shankar Rai, who claims to have been elected on 20.7.1997. Since the authorized controller was changed on 7.7.1997, he had no jurisdiction to direct holding of election and consequential election of Sri Prem Shankar Rai dated 20.7.1997, therefore, could not have been sustained. The committee of management through Sri Prem Shankar Rai got elected in election dated 20.7.1997, which was held by an unauthorised person i.e. Sri Ram Nyadhi Rai. The holding of the elections on 20.7.1997 was in teeth of the orders dated 7.7.1997 and 16.7.1997. The committee of management through Sri Prem Shankar Rai, who has filed the writ petition no.26320 of 1997, was not even in existence when the order dated 7.7.1997 was passed, as it came into being subsequently. The committee of management through Sri Prem Shankar Rai, therefore, has no locus to challenge the order dated 7.7.1997 and as no individual member has come forward to file any writ petition, questioning the order dated 7.7.1997, 11.7.1997 and 16.7.1997, therefore, such orders have attained finality. This Court otherwise also finds substance in the order dated 7.7.1997, inasmuch as the manner in which the election programme was announced by Sri Ram Nyadhi Rai after he stood removed as authorized controller, lends credence to the apprehension and doubts expressed against the impartiality of Sri Ram Nyadhi Rai, particularly when he had enrolled his own sons as members of the society, therefore, the decision taken to have the proceedings conducted in light of the order dated 2.6.1997 by the inspector cannot be faulted.
19.The argument that order dated 7.7.1997 was passed under the influence of local administration and was not an independent decision also does not appeal in the peculiar facts of the present case, inasmuch as no exception can be taken to conveying of request, by District Magistrate, vide his letter dated 17.5.1997, that some competent authority be appointed as authorized controller, in public interest and for a clean administration, in place of Sri Ram Nyadhi Rai. In view of the aforesaid discussions, this Court finds that the order dated 7.7.1997 passed by the Deputy Director and the order dated 16.7.1997 passed by the inspector, which is the subject matter of challenge in writ petition no.26320 of 1997, does not require any interference. Consequently, the exercise to enroll fresh members, was required to have been undertaken afresh, pursuant to the order dated 2.6.1997, by the inspector, and those 328 members, who were enrolled by Sri Ram Nyadhi Rai, were not validly enrolled, and the claim of election dated 20.7.1997 was wholly in teeth of the orders issued and thus was illegal.
20.In view of the findings returned on the second issue that 328 members enrolled by Sri Ram Nyadhi Rai were in teeth of the order dated 7.7.1997 & 16.7.1997, thus the direction issued by the Regional Level Committee to attest the signatures of Sri Prem Shankar Rai cannot be sustained. The alleged election dated 20.7.1997 was on the basis of election proceedings initiated by Sri Ram Nyadhi Rai vide his order dated 8.7.1997, whereas Sri Ram Nyadhi Rai had already been removed as authorized controller on 7.7.1997 and the entire proceedings culminating in the elections dated 20.7.1997 is not sustainable. In view of the discussions aforesaid, this Court is of the opinion that the steps required to be taken under the order dated 2.6.1997 were infact required to have been initiated afresh, by the inspector, as was clearly contemplated in the order dated 16.7.1997 and the steps to enroll new members also could be undertaken only by the inspector.
21.The Regional Level Committee while deciding the validity of the election proceedings conducted in the year 2010 grossly erred in the eyes of law in directing the attestation of signatures of Sri Prem Shankar Rai, clearly ignoring the order dated 7.7.1997 & 16.7.1997, which had not been stayed by this Court, though the writ petition was pending and in such circumstances, after the authorized controller Sri Ram Nyadhi Rai removed on 7.7.1997, the election programme could not have been published by him on 8.7.1997 and holding of the elections by him on 20.7.1997 was clearly illegal. It is, therefore, held that the direction issued in the order of the Regional Level Committee for attesting the signatures of Sri Prem Shankar Rai is absolutely arbitrary, suffers from non consideration of relevant orders passed by the Deputy Director dated 7.7.1997 and stands vitiated.
22.In view of the discussions and findings made above, the writ petition no.26320 of 1997 fails and is dismissed. The order dated 7.7.1997 & 16.7.1997, as published in the newspaper Dainik Jagran dated 17.7.1997, is sustained. The writ petition no.59012 of 2011 to the extent it challenges the order of the Regional Level Committee dated 5.9.2011 and attestation of signatures of Sri Prem Shankar Rai dated 6.9.2011 is liable to be allowed and the order to the extent it approves the election dated 20.7.1997 is also liable to be set aside but no useful purpose would be served in remitting back the matter, in view of the fact that the term of the committee had already expired and fresh elections are being directed to be held. As such, the writ petition no.59012 of 2011 is allowed.
23.The other writ petition no.58747 of 2011, wherein the recall of the order dated 5.9.2011 is under challenge, is rendered infructuous and is consequently dismissed. A direction is issued to the authorized controller to formalize the electoral college, in light of the observations made above, afresh, within a period of two months from the date of production of certified copy of this order. It will be open for the authorized controller to summon the records relating to membership of the society and those valid members of the society, who have continued without any challenge to their membership, can be associated. In case, it is found that no valid member is available, it shall be open for the inspector to proceed for enrollment of new members, as per the provisions of the scheme and in light of the order dated 2.6.1997, after giving wide publication in newspapers and to the litigating parties, and fresh elections thereafter would be conducted as per the scheme, within a further period of six weeks thereafter.
24.No order is, however, passed as to costs.
Order Date:- 1.12.2014 Ashok Kr.