JUDGMENT Arun Tandon, J.
1. Heard Sri Indra Raj Singh on behalf of the petitioner, learned standing counsel on behalf of respondent Nos. 1, 2 and 3 Sri L.K. Dwivedi on behalf of respondent No. 4.
2. Sri Lal Bahadur Shastri Junior High School, Milkipur, P.O. Mutkallipur, District Azamgarh is a society duly registered under the Societies Registration Act. The said society has established an Intermediate College in the name and style of Sri Lal Bahadur Shastri Intermediate College, Milkipur, P.O. Mutkallipur, District Azamgarh.
3. Last elections of the office bearers of the society are said to have taken place on 10th January, 1998. In the said elections one Sri Jagat Pal was elected as Manager and petitioner No. 2 namely Daya Ram Singh claims to have been elected as Deputy Manager. Sri Jagat Pal Singh expired on 3rd February, 1998 and according to petitioner in the resultant vacancy he was elected as Manager for the remaining term on 18th February, 1998. The respondent No. 4, on the contrary, set up independent elections dated 6th May, 1999 in which he claimed that Sri Raj Bahadur Singh was elected as the Manager.
4. The controversy with regards to the aforesaid case pleaded by the parties, was decided by the Assistant Registrar by means of order dated 25th January, 2000, wherein it was held that the election of the petitioner No. 2 as the Manager for the remaining term on 18.2.1998 was legal and valid and election set up by respondent No. 4 Raj Bahadur Singh, as such, are not sustainable. Against the aforesaid order of the Assistant Registrar, Writ Petition No. 7353 of 2000 was filed by Sri Raj Bahadur Singh, in which no interim order was granted. The writ petition is still said to be pending.
5. It is admitted between the parties that the term of the elected Committee of Management is three years. According to petitioner fresh elections took place on 8th January, 2001, in which the petitioner was again elected as the Manager. The respondent No. 4 filed Writ Petition No. 31070 of 2001 in the High Court of Judicature at Allahabad against the aforesaid elections set up by the petitioner. Writ petition was dismissed with the observation that the petitioner may approach the prescribed authority under Section 25 (1) of the Societies Registration Act vide order dated 30th August, 2001. In compliance of the order of this Court, a reference was made to the prescribed authority under Section 25 (1) of the Act in respect of the election dated 8th January, 2001. The prescribed authority by means of the order dated 28.10.2003 upheld the election dated 8th January, 2001, in which petitioner No. 2 was elected as Manager.
6. Feeling aggrieved by the aforesaid order of the Sub-Divisional Magistrate (Prescribed Authority) dated 28.10.2003, the respondent No. 4 filed Writ Petition No. 49459 of 2003. The writ petition was dismissed by this Court vide order dated 6th November, 2003. Feeling aggrieved by the order of the Hon'ble single Judge, respondent No. 4 Raj Bahadur Singh filed Special Appeal No. 1225 of 2003. The special appeal was disposed of with certain observations vide judgment and order dated 21st November, 2003. With reference to the order of this Court, passed in special appeal, the Assistant Registrar issued notice dated 26.12.2003 calling upon the petitioner as well as respondent No. 4 to produce relevant records for the purposes of finalizing the list of members, who are entitled to participate in the forthcoming election.
7. According to petitioner, before the issue could be adjudicated upon, fresh elections were conducted by the Committee of Management, which was in power, on 7th January, 2004. All the papers in that regard were transmitted to the office of the Assistant Registrar, Firms, Societies and Chits vide letter dated 16th January, 2004 with the request that the list of elected office bearers be registered. The Assistant Registrar issued two orders dated 7th May, 2004 and 29th May, 2004, wherein he has held that fresh elections of the Committee of Management shall be held under Section 25 (2) of the Societies Registration Act, as the earlier Committee of Management has become time barred and for the aforesaid elections he has finalized the list of members entitled to participate in the said election.
8. Feeling aggrieved by the aforesaid order, the Committee of Management with Daya Ram as Manager has filed present writ petition before this Court. The Hon'ble Court on 11th June, 2004 passed an interim order in the present writ petition, whereby it was directed that the election may take place but the result of the said election shall not be declared. It is now an admitted position that in compliance of the order of this Court fresh elections have been held by the Assistant Registrar, the result of the said elections have not been declared. The elections have been held on 19th June, 2004. Notice may also be taken of the fact that one Sri Shyama Charan Singh filed Writ Petition No. 35208 of 2004 in the Hon'ble High Court of Judicature at Allahabad challenging the order of the Assistant Registrar dated 29th May 2004, whereby he had finalized the list of members of the general body. The said writ petition was dismissed by the Court vide judgment and order dated 27.8.2004 on the ground that after finalization of the list of members under the order dated 29th May, 2004, the Assistant Registrar has already completed the election process and, therefore, remedy if any available to Sri Shyama Charan Singh was to initiate proceedings under Section 25 (1) of the Societies Registration Act or to file a, civil suit. The petitioner has, however, challenged the very competence of the Assistant Registrar to hold election of the office bearers of the society under the impugned order.
9- I have heard counsel for the parties and have gone through the records of the writ petition.
10. In the notice issued by the Assistant Registrar dated 26.12.2003, it has been stated that this Court vide order dated 21.11.2003, has set aside the order passed by the Sub-Divisional Magistrate. Since rival elections have been pleaded by the parties, they were directed to produce all the relevant record by 30th January, 2004. The purpose of issuance of the aforesaid notice and the consequential action, which was proposed to be taken in pursuant thereof, has not been mentioned in the notice. However, in the impugned letter dated 7th May, 2004, the Assistant Registrar for the first time observed that the term of the Committee of Management has since expired and therefore he is proceeding to finalize the list of members of the general body for the purposes of getting fresh elections held under Section 25 (2) of the Societies Registration Act and in pursuance thereof he has passed order dated 29th May, 2004, whereby he has finalized the list of members of the general body.
11. On behalf of the petitioner it is submitted that Assistant Registrar could not have exercised powers under Section 25 (2) for the purposes of finalizing the list of members of the general body or for declaring that the Committee of Management has become time barred, unless and until the elections of the petitioner dated 7th January, 2004 were declared illegal by any competent authority. According to petitioner all the relevant papers pertaining to elections dated 7th January, 2004 were placed before the Assistant Registrar under letter dated 16th, January, 2004 but he conveniently ignored the aforesaid documents and proceeded to finalize the list of members of the general body entitled to participate in the forthcoming elections, which is totally uncalled for. It is further submitted that the order of the Assistant Registrar is based on misreading of the order passed by the Division Bench of this Court in Special Appeal No. 1225 of 2003 inasmuch as the order of the prescribed authority has not been set aside by this Court. On the contrary, it has been held that the Assistant Registrar instead of deciding the matter should have recorded a finding that the same has become infructuous, without recording any conclusions on merit.
12. For the purposes of appreciating the aforesaid contention of the petitioner, it would be relevant to reproduce the finding recorded by the Division Bench in its judgment and order dated 21st November, 2003 :
"We have considered the submissions and perused the record.
The learned Judge while dismissing the writ petition has observed in the impugned order that the proceedings had rightly been closed by the respondent No. 1. We have perused the order, the order does not show that the proceeding has become infructuous rather the prescribed authority recorded conclusion in favour of the respondent No. 3. In view of the fact that the tenure of the Committee of Management, which was subject-matter of dispute under Section 25 (1) of the Act, had already come to an end, the prescribed authority ought not to have recorded any conclusions on merit of the claim.
In above view of the matter, we dispose of the appeal holding that the application filed by the petitioner under Section 25 (1) of the Societies Registration Act before the prescribed authority, has become infructuous due to tenure of the Committee of Management have come to an end and any observation made on merits on claim of the parties by the prescribed authority in his order dated 28.10.2003 stands deleted."
13. From the aforesaid findings of the Division Bench, it is apparently clear that the Hon'ble High Court has not set aside the order of the prescribed authority in any manner, whereby he has refused to adjudicate upon the dispute as referred. The Hon'ble Court has only held that the observation made by the prescribed authority, on the merits of the claim set up by the parties, in his order dated 28th October, 2003 stands deleted.
14. In the opinion of the Court such an order cannot be read to mean that the elections set up by the petitioner of the year, 2001 have been declared illegal in any manner nor the Assistant Registrar was justified in assuming upon himself the jurisdiction to hold that the Committee of Management has become time barred because of the order of the Division Bench dated 21.11.2003. The order passed by the Division Bench declaring that the controversy as having become infructuous, only means as that the legality or otherwise of the elections of 2001 was left open and was not adjudicated upon either by the authority or by the Court. However, the order of this Court cannot be read to mean that the elections set up by the petitioner dated 8th January, 2001 had been declared illegal.
15. So far the impact of the order of the Division Bench, declaring the controversy to have become infructuous is concerned, reference may be had to the judgment of Hon'ble Supreme Court in Committee of Management, Sukhpura Inter College, Ballia and Anr. v. Alleged Committee of Management,. Sukhpura Inter College, Ballia and Ors., 1997 AWC (Supp) 592 : Dharam Dutt and Ors. v. Union of India and Ors., (2004) 1 SCC 712, wherein the Hon'ble Supreme Court has laid down the legal conclusions which follow on a writ petition, being declared as infructuous. Relevant portion of the judgment of the Hon'ble Supreme Court is being quoted herein below :
"69........ The issues determined by the learned single Judge were open for consideration before the Division Bench. However, the Division Bench was denied the opportunity of hearing and the aggrieved party could also not press for decision of the appeal on merits, as before the appeal could be heard it was rendered infructuous on account of the Ordinance itself having ceased to operate. The Union of India, howsoever, it may have felt aggrieved by the pronouncement of the learned single Judge, had no remedy left available to it to pursue. The judgment of the Division Bench refusing to dwell upon the correctness of the judgment of the single Judge had the effect of leaving the matter at large. Upon the lapsing of the earlier Ordinance pending an appeal before a Division Bench, the judgment of the single Judge about the- illegality of the earlier Ordinance, cannot any longer bar this Court from deciding about the validity of a fresh law on its own merits, even if the fresh law contains similar provisions."
16. In view of the settled legal proposition, it cannot be said that the continuance of the petitioner's Committee of Management in pursuance of the elections dated 8th January, 2001 was declared illegal in any manner or the aforesaid elections dated 8th January, 2001 were liable to be ignored by the Assistant Registrar. In such circumstances, the issue as to whether the Committee of Management, which was elected on 8th January, 2001 had the competence to hold election on 7th January, 2004 is still to be adjudicated upon and, therefore, unless and until some competent authority adjudicates the validity of the elections dated 7th January, 2004, the question of proceedings under Section 25 (2) being taken by the Assistant Registrar does not arise.
17. The contention raised on behalf of the respondent to the effect that the aforesaid elections have been held by the petitioner subsequent to the issuance of the notice dated 26.12.2003 by the Assistant Registrar and therefore illegal, is not sustainable in the eyes of law inasmuch as under the Societies Registration Act, the Assistant Registrar get a right to decide the electoral college only when an order under Section 25 (2) has been issued. Reference in that regard may be had to Section 25 (2) and Section 25 (3) of the Societies Registration Act, which read as follows :
"25 (2) Where by an order made under Sub-section (1), an election is set aside or an officebearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of office-bearers of a society has not been held within the time specified in the rules of that society, he may call meeting of the general body of such society for electing such office-bearer or office-bearers, and such meeting shall be presided over and be conducted by the Registrar or by any officer authorized by him in this behalf, and the provisions in the rules of the society relating to meetings and elections shall apply to such meeting and election with necessary modifications.
25 (3) Where a meeting is called by the Registrar under subsection (2), no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office-bearer of the society."
18. Thus, the restriction placed upon the competence of the out going office bearers to hold election of the Committee of Management is with reference to an order of Assistant Registrar convening a meeting to hold election under Section 25 (3). Since, admittedly, on 7th January, 2004, the Assistant Registrar had neither passed any order under Section 25 (2) nor the Assistant Registrar had convened any meeting referable under Section 25 (3) for holding fresh elections of the Committee of Management, this Court has no hesitation to hold that the elections set up by the petitioner dated 7th January, 2004, were not hit by Section 25 (3). However, the legality or competence to hold the said elections dated 7.1.2004 is still to be adjudicated by the competent authority.
19. In such circumstances, so long as the elections set up by the petitioner dated 7th January, 2004 are not held to be illegal by the competent authority, the question of fresh election under Section 25 (2) does not arise. In the opinion of the Court, the legality or otherwise of the elections set up by the petitioner dated 7th January, 2004 shall be adjudicated upon by the prescribed authority under Section 25 (1) of the Act and therefore it is directed that the relevant papers be transmitted by the Assistant Registrar in respect of his elections dated 7th January, 2004 and those held by him on 19.1.2004 to the prescribed authority under Section 25 (1) of the Societies Registration Act within two ,weeks from the date a certified copy of this order is filed before him. The prescribed authority on receipt of the papers under Section 25 (1) shall decide the legality or otherwise of the elections held by the petitioner dated 7th January, 2004 after affording opportunity of hearing to the parties concerned and after permitting exchange of documents amongst them. It shall be open to the parties to raise all such legal and factual objections as are permissible under the law. If the prescribed authority comes to a conclusion that the election dated 7th January, 2004 are legal and valid, he shall pass appropriate orders, for consequential action to be taken by the authorities concerned and then the issue with regards to legality of the elections held on 19.1.2004 by the Assistant Registrar is not to be gone into. However, if the prescribed authority comes to a conclusion that the election dated 7th January, 2004 are not in accordance with law or that the petitioner has no competence to hold the election, he shall proceed to consider the legality or otherwise of the elections held on 19th January, 2004. If the prescribed authority comes to a conclusion that the said elections have been held in accordance with the scheme of administration, he shall issue order for all consequential action, including formal declaration of result.
20. With these observations writ petition stands disposed of.
21. It is made clear that the prescribed authority shall not be influenced in any manner with the observations made in this order.
22. Till the prescribed authority decides the controversy as directed aforesaid, status quo shall be maintained between the parties with regards to the office bearers of the society.