JUDGMENT R.K. Agrawal, J.
1. Both these writ petitions relate to the same society, namely, Dharam Samaj Society Inter College and Sanskrit Pathshala, Aligarh and, therefore, have been heard together and are being decided by a common judgment.
2. Civil Misc. Writ Petition No. 18254 of 2000 has been filed by the three petitioners claiming themselves to be the Committee of Management, Dharam Samaj Society Inter College and Sanskrit Pathshala, Secretary-cum-Manager and members of the General Body of the said society seeking a writ, order or direction in the nature of certiorari quashing the order dated 27th March, 2000, passed by the Assistant Registrar, Firms, Societies and Chits, Aligarh, respondent No. 2, filed as Annexure-32 to the writ petition and the order dated 25th March, 2000 passed by the Registrar, Firms. Societies and Chits, U.P., Lucknow, respondent No. 1, filed as Annexure-31 to the writ petition, as also the order dated 12th November, 1999, passed by the Assistant Registrar, respondent No. 2, filed as Annexure-26 to the writ petition and other consequential reliefs. By the order dated 12th November, 1999, the Assistant Registrar, respondent No. 2 had come to the conclusion that the order dated 24th November, 1997, passed by this Court is still in force and the committee with Dr. K. C. Singhal, is a valid committee and directing for renewal of the registration of the society. Vide order dated 25th March, 2000, the Registrar has directed the Assistant Registrar to re-decide the matter after taking into consideration the objections submitted by Dr. K. C. Singhal and till a decision is taken, the order dated 26th November, 1999 passed by him should be made ineffective and status quo as per the order dated 12th November, 1999, be maintained. Vide order dated 27th March, 2000, the Assistant Registrar had set aside his earlier order dated 26th November, 1999 and directed the parties to appear before him and submit documents in support of their claim so that a decision be taken.
3. Civil Misc. Writ Petition No. 29694 of 2001 has been filed by the Committee of Management of Dharam Samaj College, Aligarh, through its Manager Dau Dayal Jindal and also in his personal capacity seeking a writ, order or direction in the nature of certiorari quashing the order dated 25th July, 2001, passed by the Vice Chancellor, Dr. Bhimrao Ambedkar University, Agra, respondent No. 1, filed as Annexure-36 to the writ petition. Vide order dated 25th July, 2001, the Vice Chancellor had held that the Managing Committee elected on 16th December, 1999, headed by Dr. K. C. Singhal is valid and approved the said Managing Committee.
4. Briefly stated, the facts giving rise to both these writ petitions are as follows ;
"In the district of Aligarh, there is a society known as Dharam Samaj Society Inter College and Sanskrit Pathshala (hereinafter referred to as "the Society") which is duly registered under the Societies Registration Act, 1860 (hereinafter referred to as "the Act"). The Society has its own bye-laws. It is alleged that in the year 1991 the Assistant Registrar, Firms, Societies and Chits conducted an enquiry under Section 24 of the Act and found that the office bearers of the committee had become defunct and not entitled to function any further. The order dated 23rd March, 1991, was challenged by one Ram Prakash Agrawal by means of Civil Misc. Writ Petition No. 15029 of 1991 in which an interim order was passed on 27th June, 1991. After the interim order was passed, Ram Prakash Agrawal published an election programme on 3rd July, 1991, for holding the election, which was challenged before this Court by Suresh Chand Tayal by means of Civil Misc. Writ Petition No. 19652 of 1991 in which an order was passed on 31st October, 1991. A meeting of the General Body is said to have been convened on 20th September, 1992, in which a resolution was passed for constituting a Committee. K. C. Singhal and Ram Bharose Lal Agrawal were alleged to have been appointed as ad hoc President and Secretary on 27th July, 1993. It is alleged by the petitioners that as K. C. Singhal claimed to have held fresh elections on 13th July, 1994 in which the aforesaid two persons, namely, K. C. Singhal and Ram Bharose Lal Agrawal, were elected as President and Secretary-cum-Manager. A rival election was set up to have been held on 3rd July, 1994 in which Om Prakash Agrawal arid Hari Shanker Agrawal claim themselves to have been elected as President and Secretary-cum-Manager. Both the elections were not recognised and on a dispute being raised the Assistant Registrar referred the dispute to the prescribed authority under Section 25 of the Act. The objections were filed. However, the prescribed authority vide order dated 11th August, 1997, accepted the claim of Dr. K. C. Singhal as President and Ram Bharose Lal Agrawal as Secretary. The said order was stayed vide order dated 13th August, 1997, by the prescribed authority immediately on an application being made. The prescribed authority vide order dated 27th August, 1997 set aside his earlier order dated 11th August, 1997 and restored the case to its original number. The order dated 27th August, 1997, was challenged by Ram Bharose Lal Agrawal by means of Civil Misc. Writ Petition No. 28172 of 1997 in which an interim order was passed by this Court on 1st September, 1997, wherein the operation of the order dated 27th August, 1997, was stayed. However, the writ petition was allowed on 24th November, 1997, leaving it open to the prescribed authority to decide the matter afresh in accordance with law. It appears that some compromise was filed before the prescribed authority who vide order dated 9th December, 1998, accepted the compromise and decided the matter accordingly. An application was filed by Suresh Chand Mittal on 29th December, 1998, for setting aside the order dated 9th December, 1998 before the prescribed authority. Notices were issued fixing 21st January, 1999, for hearing in the matter. Necessary application was also filed by Suresh Chand Mittal before the Assistant Registrar urging him not to act upon the order dated 9th December, 1998, passed by the prescribed authority. However, in the meantime, the Assistant Registrar passed an order on 16th December, 1998, directing Ram Bharose Lal Agrawal and Hari Shanker Agrawal to get the proceedings completed for holding the election in terms of the order dated 9th December, 1998, passed by the prescribed authority. In the meantime the General Body of the Society passed a resolution on 20th December, 1998, to hold fresh election and authorised Suresh Chand Tayal to get fresh election held. According to the petitioners, fresh elections were held on 21st February, 1999, in which Suresh Chand Agrawal was elected as Secretary-cum-Manager and Misri Lal Garg as President. Another election schedule was published by the rival claimants proposing to hold the election on 21st February, 1999. On an objection being raised by Suresh Chand Tayal, the Sub-Divisional Magistrate, i.e., the prescribed authority, passed an order on 20th January, 1999, intimating the Assistant Registrar that any such action being taken forholding elections pursuant to theletter dated 16th December, 1998, are invalid and should remain stayed in view of the pendency of the dispute before the prescribed authority. The Assistant Registrar in pursuance of the aforesaid letter dated 20th January, 1999, restrained Ram Bharose Lal Agrawal and Hari Shanker Agrawal from holding any election. It is alleged by the petitioners that the rival faction filed Civil Misc. Writ Petition No. 22261 of 1999 through Ramesh Chand Agrawal claiming to be a member of the General Body for recognition by the Assistant Registrar of the elections held by them on 21st February, 1999. The writ petition was disposed of vide judgment and order dated 26th May, 1999, with a direction to the Assistant Registrar to decide the representation after hearing the parties concerned. Pursuant to the direction given by this Court on 26th May, 1999, the Assistant Registrar vide order dated 24th July, 1999, held that since the matter is pending before the prescribed authority under Section 25 (1) of the Act, it would not be proper for him to decide the matter. According to the petitioners, they also filed Civil Misc. Writ Petition No. 44184 of 1999 seeking a direction to the Assistant Registrar to consider the list of the office bearers elected on 21st February, 1999 arid to issue the renewal certificate. Vide order dated 2nd November, 1999, the aforesaid writ petition was disposed of with a direction to the Assistant Registrar to decide the application as early as possible. Another writ petition was filed by Ramesh Chand Agrawal, the rival faction, before this Court seeking a writ of mandamus declaring the proceedings pending before the prescribed authority to be infructuous. The aforesaid writ petition was disposed of vide judgment and order dated 16th September, 1999, with a direction to the Assistant Registrar to pass appropriate orders after looking into the representation in accordance with law. The Assistant Registrar vide order dated 12th November, 1999, recognised the committee of management headed by Dr. K. C. Singhal as President to be valid. The order dated 12th November, 1999, is under challenge in Civil Misc. Writ Petition No. 18254 of 2000 on the ground that the said order has been passed without giving any show cause notice or opportunity of hearing to the present petitioners. Notwithstanding the order dated 12th November, 1999, passed by the Assistant Registrar he granted renewal certificate to the petitioners on 17th November, 1999. According to the petitioners, the Assistant Registrar vide order dated 26th November, 1999, accepted the list of the office bearers of the Society. The rival faction headed by Dr. K. C. Singhal made an application before the Registrar, who vide order dated 25th March, 2000, directed the Assistant Registrar to consider the objections raised by Dr. Singhal and till the matter is decided, to make the order dated 26th November, 1999, ineffective. In compliance with the aforesaid order, the Assistant Registrar vide order dated 27th March, 2000, cancelled his earlier order dated 26th November, 1999 and issued notices to the rival faction fixing a date for considering their claims. The orders dated 25th March, 2000 and 27th March, 2000 are also under challenge in Civil Misc. Writ Petition No. 18254 of 2000."
5. In Civil Misc. Writ Petition No. 29694 of 2001 the facts are that the Society runs the institution, known as Dharam Samaj College, which is affiliated to Dr. Bhimrao Ambedkar University, Agra. The election of the Society are directly concerned with the election of the Committee of Management of the college. According to the petitioners, pursuant to the order dated 27th March, 2000, passed by the Assistant Registrar wherein he had cancelled his earlier order dated 26th November, 1999, the Assistant Registrar passed an order on 18th April, 2000, approving the list of the office bearers submitted by K. C. Singhal and directing Sri Tayal to deliver the renewal certificate of the Society to K. C. Singhal. The order dated 27th March, 2000, passed by the Assistant Registrar was challenged by the petitioners by filing Civil Misc. Writ Petition No. 18254 of 2000 (the other writ petition which is being decided by this order) in which on 18th April, 2000 this Court had passed an interim order staying the operation of the order dated 27th March, 2000, in the meantime on an application being made by the petitioners the Vice Chancellor passed an order of single operation on 17th June, 2000. The order dated 17th June, 2000, was challenged by the rival faction by means of Civil Misc. Writ Petition No. 26167 of 2000 in which no interim order was passed. Subsequently, the Vice Chancellor recalled the order of single operation and on 13th November, 2000, recognised the Committee of Management headed by the petitioners as a validly elected committee. The rival faction challenged the order dated 13th November, 2000, by filing Civil Misc. Writ Petition No. 54207 of 2000. Vide order dated 5th January, 2001, this Court stayed the operation of the order dated 13th November, 2000. The Vice Chancellor passed an order on 6th February, 2001, directing that the Committee headed by Sri K. C. Singhal shall function as the Committee of Management till further orders. The order dated 6th February, 2001, was again challenged by means of Civil Misc. Writ Petition No. 10916 of 2001 in which this Court vide order dated 28th March, 2001, stayed the operation of the order dated 6th February, 2001. The order dated 28th March, 2001, passed by this Court was challenged in Special Appeal, No. 481 of 2001 before this Court in which vide order dated 26th April, 2001, the writ petition as well as the special appeal were disposed of by directing status quo as of that date to be maintained till the decision is taken by the Vice Chancellor. It may be mentioned here that the Assistant Registrar vide order dated 10th July, 2001, had clarified that in view of the interim order passed by this Court on 18th April, 2000 in Civil Misc. Writ Petition No. 18254 of 2000, there is no recognised office bearer and the matter is still pending before him and the order dated 18th April, 2000, passed by him had been recalled. The Vice-Chancellor vide order dated 25th July, 2001, had recognised the Committee of Management headed by Dr. K. C. Singhal as valid on the ground that the Assistant Registrar vide order dated 18th April, 2001, had cancelled the list for the year 1999-2000 which was recognised by him on 26th November, 1999 and had issued an order for registration of the list in respect of 2000-2001 submitted by Dr. K. C. Singhal. The order dated 25th July, 2001, is under challenge in Civil Misc. Writ Petition No. 29694 of 2001.
6. I have heard Sri A. P. Sahi, the learned counsel for the petitioners, and Sri Ashok Khare, senior advocate, assisted by Sri S. C. Dwivedi, on behalf of the contesting respondents in both the writ petitions.
7. Sri Sahi submitted that once the Assistant Registrar had recognised the list of the office bearers of the Society submitted by the petitioners and had also granted renewal of the registration of the Society to them, the Registrar had no jurisdiction to sit in appeal or review the said order as the Assistant Registrar was exercising the powers of the Registrar while passing the aforementioned order. He submitted that under Section 21 of the Act, the word "Registrar" includes "Assistant Registrar" and the State Government by a general order conferred all the powers of the Registrar under the Act upon the Assistant Registrar. Thus, the order dated 25th March, 2000, passed by the Registrar is wholly illegal and without jurisdiction. He relied upon a decision of the Hon'ble Supreme Court in the case of State of Orissa and Ors. v. Commissioner of Land Records and Settlement, Cuttack and Ors., (1998) 7 SCC 162, wherein the Hon'ble Supreme Court has held that the order of a delegate is to be treated as to be the order of the principal itself and, therefore, the principal cannot revise the order of the delegate. He also relied upon the decision of the Hon'ble Supreme Court in the case of O.C.L. India Limited v. State of Orissa and Ors., (2003) 2 SCC 101, wherein the Hon'ble Supreme Court has held that once the power has been delegated to a subordinate officer, i.e., the Assistant Commissioner, by the Commissioner of Sales Tax, the power of the Commissioner of Sales Tax, i.e., the delegate, stood exhausted by the Assistant Commissioner and the Commissioner cannot exercise the delegated power again.
8. He further submitted that even the ancillary power cannot be invoked by the Registrar in giving the direction to the Assistant Registrar to cancel the order dated 26th November, 1999 and to give a hearing to the parties. He relied upon a Division Bench decision in the case of Meerut Collegiate Association, Meerut and Ors. v. Sri Arvind Nath Seth and Ors., 1982 UPLBEC 82.
9. Sri Ashok Khare, the learned senior counsel, however, submitted that even though the Assistant Registrar is included in the term "Registrar" under the Act in view of the provisions of Section 21 of the Act, still the Registrar has the powers to call for information and investigate in the affairs of a Society. He referred to Sections 22 and 24 of the Act, According to him, under Section 22 of the Act, the Registrar has been entrusted with the power to require a Society to furnish in writing such information or document within such time as he may specify in the order in connection with the affairs of the Society or any document filed by the Society under this Act and upon such receipt of the order, it is incumbent upon the President and the Secretary to furnish such information or document. He also submitted that under Section 24 (1) of the Act, the Registrar can either himself or by any person appointed by him in that behalf investigate the affairs of the Society whereupon the Society is obliged to produce its books of account and other documents thus asked for. He, thus, submitted that the Registrar is not denuded of the power to issue direction to the Assistant Registrar. He relied upon the provision of Section 19A of the U. P. General Clauses Act and submitted that all ancillary powers are available to the Registrar for carrying out the purposes of the Act. He also placed reliance upon a decision of the Hon'ble Supreme Court in the case of Chintapalli Agency Taluk Arrack Sales Co-operative Society Limited and Ors. v. Secretary (Food and Agriculture) Government of Andhra Pradesh and Ors., (1977) 4 SCC 337, wherein the Hon'ble Supreme Court while interpreting Section 77 of the Andhra Pradesh Co-operative Societies Act, 1964, has held that the order of the Deputy Registrar is revisable by the Registrar even though the Deputy Registrar is exercising the power of the Registrar. He further submitted that the order dated 26th November, 1999, had been passed without issuance of any show cause notice or opportunity of hearing and, therefore, the said order is void and the Registrar had rightly cancelled/set aside that order. According to him, the order passed by the Registrar is perfectly just and valid and calls for no interference.
10. So far as the other writ petition is concerned, Sri Sahi submitted that the Vice Chancellor has proceeded to recognise the Committee of Management headed by Dr. K. C. Singhal on the ground that the Assistant Registrar has recognised the list of the office bearers submitted by Dr. Singhal, vide order dated 18th April, 2000, which order has been set aside by the Assistant Registrar subsequently vide order dated 10th July, 2001. Moreover, the order dated 27th March, 2000, was stayed by this Court in Civil Misc. Writ Petition No. 18254 of 2000 on 18th April, 2000, itself and, therefore, no advantage or benefit could have been derived by the rival faction.
11. Sri Khare submitted that apart from relying upon the order dated 18th April, 2000, the Vice Chancellor had taken into consideration other materials and, therefore, the order passed by the Vice Chancellor should not be interfered.
12. Having heard the learned counsel for the parties I find that while passing the order dated 26th November, 1999, the Assistant Registrar had exercised the powers of the Registrar and had registered the list of the office bearers submitted by the petitioners. He had exercised the powers of the Registrar conferred under the Act. Under the Act, there is no provision of revision by the Registrar in respect of the order passed by the Assistant Registrar in exercise of the power of the Registrar himself. The Hon'ble Supreme Court in the case of Roop Chand v. State of Punjab, AIR 1963 SC 1503, has held as follows ;
"Where the State Government has, under Section 41 (1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, delegated its power given under Section 21 (4) to hear appeals to an officer, an order passed by such officer is an order passed by the State Government itself and not an "order passed by any officer under this Act" within the meaning of Section 42, The order contemplated by Section 42 is an order passed by an officer in its own right and not as a delegate. The State Government, therefore, is not entitled under Section 42 to call for and examine the record of the case disposed of by the officer acting as delegate. An order passed by the State Government under Section 42 in such a case is a nullity."
13. In the case of State of Orissa (supra), the Apex Court has followed the earlier decision in the case of Roop Chand (supra), and has held that the order of the delegate is to be treated for all intents and purposes as an order of the principal itself, here the Board of Revenue, and hence the Board cannot revise an order passed by the delegate, the Commissioner.
14. In the case of O.C.L. India Limited (supra), the Hon'ble Supreme Court following its earlier decision in the case of State of Orissa (supra) has held that the Commissioner did not have the power to revise the order after the Assistant Commissioner has in exercise of the delegated power exercised the jurisdiction in respect of an order of the Sales Tax Officer. In paragraph 14 of the judgment, the Hon'ble Supreme Court has held as follows :
"14. It is no doubt true that the Commissioner is not denuded of the statutory power of revision after delegation, but that, in view of the said notification, only means that he can resume that power or cancel the delegation of revisional power to the Assistant Commissioner. That, by no stretch of imagination, can be construed to mean that once the orders have been examined under the revisional power by the Assistant Commissioner (the delegate), the same orders can. again be subjected to the revisional jurisdiction by the Commissioner."
15. In the case of Chintapalli Agency (supra), Section 3 (2) of the Andhra Pradesh Co-operative Societies Act, 1964, provided for exercise of such powers of the Registrar under that Act by any other person appointed under Sub-section (1) as Government may confer upon him under the general superintendence of the Registrar. The Hon'ble Supreme Court in paragraph 20 of the Judgment has held as follows :
"20. In the present case, it is true that the power under Section 16 is that of the Registrar but the Deputy Registrar exercises that power as empowered by the Government but always "under the general superintendence of the Registrar". Again, under Section 76 (2) any order passed in pursuance of the power so exercised under Section 16 is appealable to the Registrar as an order passed by "any other officer" appointed under Section 3 (1). The scheme of the Consolidation Act which this Court had to deal with in Roop Chand's case (supra), is different from that of the Co-operative Act. The submission of counsel that the Registrar's order in revision is a nullity is devoid of substance."
16. The aforesaid decision would not be applicable in the present case inasmuch as the Assistant Registrar is not exercising the powers of the Registrar under the general superintendence of the Registrar.
17. So far as the question of ancillary powers are concerned, reliance placed on Section 19A of the U. P. General Clauses Act is misplaced. Section 19A of the U. P. General Clauses Act provides for ancillary powers. Such powers can be spelt out only in a case where the power expressly conferred under a statute necessarily implies, for the proper execution of that power. The nature of proceedings and the powers expressly conferred are to constitute the backgrounds for spelling out ancillary or inherent powers. In the present case, the Act does not give overriding powers to the Registrar. Even a revision of an order passed by the Assistant Registrar has not been provided. Thus, as held by this Court in the case of Meerut Collegiate Association (supra), the ancillary power would not be available to the Registrar while passing the order dated 25th March, 2000. In this view of the matter, the Registrar had no jurisdiction to sit in review or revision over the order passed by the Assistant Registrar on 26th November, 1999. The order dated 25th March, 2000, passed by the Registrar cannot be sustained in law.
18. The question is as to whether this Court in exercise of the powers under Article 226 of the Constitution of India should, as suggested by Shri Khare, decline to exercise its jurisdiction and set aside that order.
19. It is well-settled that issuance of a writ of certiorari is a discretionary remedy. The High Court while exercising its extraordinary Jurisdiction under Article 226 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court may refuse to extend the benefit of a discretionary relief to the applicant. [See Champalal Binani v. C.I.T., West Bengal, AIR 1970 SC 645).
20. The Hon'ble Supreme Court in Chandra Singh v. State of Rajasthan and Anr., 2003 (3) SCCD 1078 ; JT 2003 (6) SC 20, in paragraph 42, observed as under :
"42. Issuance of a writ of certiorari is a discretionary remedy. [See Champalal Binani v. C.I.T., West Bengal AIR 1970 SC 645]. The High Court and consequently this Court while exercising its extraordinary jurisdiction under Articles 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant. Furthermore, this Court exercised its discretionary jurisdiction under Article 136 of the Constitution of India which need not be exercised in a case where the impugned judgment is found to be erroneous if by reason thereof substantial Justice is being done. [See S. D. S. Shipping Pvt. Ltd. v. Jay Container Services Co. Pvt. Ltd. and Ors., 2003 (4) Supreme 44]. Such a relief can be denied, inter alia, when it would be opposed to public policy or in a case where quashing of an illegal order would revive another illegal one. This Court also in exercise of its jurisdiction under Article 142 of the Constitution of India is entitled to pass such order which will be complete Justice to the parties."
21. From a perusal of the order dated 26th November, 1999, it appears that the Assistant Registrar had not taken into consideration the earlier order dated 12th November, 1999, wherein he had recognised the Committee of Management headed by Dr. K. C. Singhal. The order dated 26th November, 1999 was passed without giving any show cause notice or any opportunity of hearing to the rival faction headed by the group of Dr. K. C. Singhal. From the record, it also appears that the Assistant Registrar had not given any notice or any opportunity of hearing to the petitioners while passing the order dated 12th November, 1999. In this view of the matter, the order dated 12th November, 1999, as also the order dated 26th November, 1999, cannot be sustained. Thus, the order dated 25th March, 2000, passed by the Registrar calls for no interference as the Registrar had only directed the Assistant Registrar to give an opportunity of hearing to the parties and re-decide the matter which does substantial justice to the parties. In this special background of the matter, the Court declines to interfere with the order dated 25th March, 2000. However, it sets aside the order dated 12lh November, 1999, filed as Annexure-26 to the writ petition. Since the order dated 18th April, 2000, was passed by the Assistant Registrar when this Court in Civil Misc. Writ Petition No. 18254 of 2000, had stayed the operation of the order dated 27th March, 2000 and the said order had been passed without giving any opportunity of hearing to the parties, the order dated 18th April, 2000, is also set aside.
22. Now, the question remains as to whether the order dated 25th July, 2001, passed by the Vice Chancellor can be said to be justified or not. He has relied upon the order dated 18th April, 2000, passed by the Assistant Registrar which order had already been stayed by the Assistant Registrar himself vide order dated 10th July, 2001. Even otherwise, the said order dated 18th April, 2000, had been set aside by this Court by this judgment. In this view of the matter, the order dated 25th July, 2001, passed by the Vice Chancellor cannot be sustained and is hereby set aside.
23. In view of the foregoing discussion, Civil Misc. Writ Petition No. 18254 of 2000 succeeds in part and Civil Misc. Writ Petition No. 29694 of 2001 is allowed. The orders dated 12th November, 1999, filed as Annexure-26 to the Civil Misc. Writ Petition No. 18254 of 2000 and the order dated 25th July, 2001, filed as Annexure-36 to the Civil Misc. Writ Petition No. 29694 of 2001 are set aside. The Assistant Registrar is directed to give an opportunity of hearing to the parties and to decide the matter afresh in accordance with law within six weeks from the date a certified copy of this order is filed before him. After the matter is decided by the Assistant Registrar, the Vice Chancellor shall take a final decision in the light of the decision of the Assistant Registrar.