JUDGMENT Rakesh Tiwari, J.
1. This petition is directed against the order dated 13.1.2005 passed by the Assistant Registrar, Firms Societies and Chits, Azamgarh. It is prayed that the aforesaid order dated 13.1.2005 be quashed and respondent No. 2, Assistant Registrar, Firms Societies and Chits, Azamgarh be commanded not to recognize and attest the signature of the respondent No. 4, Shri Lav Kumar s/o Shri Raj Bahadur Rai as Manager of the Committee of the Management of the Society on the basis of alleged forged and manipulated election said to have been held on 26.12.2004 by him.
2. The case set up by the petitioner is that Imdadi Middle School Bibipur Kadeem, District Azamgarh is a Society registered under the Societies Registration Act, 1860, (hereinafter referred to as the Act). The registration of the Society has been renewed by certificate granted by the respondent No. 2 dated 3.1.2002. The Society is governed by its own byelaws, which has been appended as Annexure No. 1 to the writ petition.
3. A perusal of the byelaws shows that there is no term of Committee of Management and there is no provision regarding members of the Committee of Management of the Society.
4. There were initially 19 members of the general body of the members of the Society since inception. The Committee of Management vide its resolution dated 10.8.2002 enrolled 10 new members of the Society. The society has established Purva Madhyamik Vidyalaya Bibipur Kadeem, District Azamgarh, which is managed by the Committee of Management of the Society and its registration had been renewed under the signature of Sri Budhdhu Rai, the Manager of the Committee of Management of the Society whose signatures were also attested by the District Basic Education Officer. Sri Budhdhu Rai, the Manager died on 7.11.2004, as such the post of Manager in the Committee of Management of Society became vacant.
5. The Committee of Management then decided to appoint one Shri Keshari Narain Singh, r/o village and post Bibipur Kadeem, District Azamgarh as Returning Officer to hold election on 26.12.2004. It is urged that the letter dated 16.12.2004 was sent by the petitioner to the District Basic Education Officer, Azamgarh for appointment of Observer for the aforesaid election of Manager of Committee of Management of the Society. Shri Lav Kumar Rai, Respondent No. 4 was also one of the person, who had filed nominations for the elections on 12.12.2004 on the post of Manager. Two other persons, Shri Prakash Rai and Shri Ram Chander Rai also filed nominations for the aforesaid.
6. It is claimed by the petitioner that no observer was appointed by the District Basic, Education Officer as the election of Committee of Management to be held on 26.12.2004 was postponed and information was given by the Head Master of the Institution in this regard, who is Ex. Officio member of the Committee of Management of the Society. He further urged that the information regarding postponement of election was signed by the members and office bearer of the Society but eight persons including Shri Lav Kumar Kai, Respondent No. 4 did not sign the said information.
7. It is urged that respondent No. 4 manipulated a forged election said to have been held on 26.12.2004 in which he was elected as Manager of the Committee of Management and on the basis of the said forged elections, he wrote a letter dated 27.12.2004 to the District Basic Education Officer, Azamgarh informing him about the election. Two letters are said to have been written by him to the Assistant Registrar, Firms Societies and Chits, Azamgarh on 28.12.2004 and 4.1.2005.
8. It is stated that coming to know about the alleged forged and manipulated elections, the petitioner moved an application dated 27.12.2004 before the respondent No. 2, the Assistant Registrar, Firms Societies and Chits, Azamgarh as well as District Basic Education Officer, Azamgarh, yet despite the petitioner's representation, respondent No. 2 vide order dated 13.1.2005 accepted the nomination of respondent No. 4.
9. The contention of the counsel for the petitioner is that according to the alleged elections 12 members had participated in the election said to have been held on 26.12.2004 in which he was elected. It is claimed that intimation about the postponement of the election was given to Shri Keshari Narain Singh, who was returning officer to hold the election on 26.12.2004, who has received the intimation dated 24.12.2004 for postponement of election, but he did not acknowledge the information regarding the postponement as he was in collusion with Shri Lav Kumar Rai and has made false and manipulated report with regard to the alleged election on 26.12.2004,
10. The grievance of the petitioner is that the signatures of the respondent No. 4 has not been attested by the District Basic Education Officer, Azamgarh and respondent No. 4 has tried to attest his signature on the basis of forged and manipulated election and the respondent No. 2 may be restrained from attesting the signatures and recognizing respondent No. 4 as manager of the Institution.
11. It is urged that there was a dispute about the election of the management of the committee, as such respondent No. 2 ought to have made an enquiry in the matter as to whether the election was held on 26.12.2004 but instead of making an enquiry, he accepted manipulated elections said to have been held on 26.12.2004 and has wrongly accepted the election by the impugned order challenged in the present writ petition. Counsel for the petitioner has also urged that the impugned order has been passed by respondent No. 2 is without given an opportunity of hearing whatsoever to the petitioner as such is liable to be set aside by this Court. It is submitted that according to the proviso of Sub-section I of Section 4 of the Byelaws it is necessary that the list of members and office bearers of the Committee of Management shall be countersigned by the members of the Society and if it is not signed then the Registrar is required to issue notice to the other members inviting objections, but in the present case the list submitted by the respondent No. 4 having not been countersigned by the petitioner or any of the other office bearers of the Committee of Management. The Registrar ought to have record the matter to the Prescribed Authority under Section 25 of the Societies Registration Act, but he committed manifest error of law in accepting the forged and manipulated election of the respondent No. 4.
12. The counsel for the respondents has relied upon the averments made in the counter affidavit filed by him and submits that there were twenty (20) members in the governing body of the Society including the Head Master, who is Ex. Officio member of the General Body at the time of registration of the society, which remained intact till the year 2004.
13. It is urged that there is no requirement for appointment of observer for the elections of the Management of the Society under the byelaws in case of emergency. It is stated that neither under the byelaws of the Society nor under the Societies Registration Act, any such provision requiring appointment of observer in such cases. It is vehemently urged that the election schedule was already notified by the petitioner in the capacity of the President of the Society and it had not been postponed at all even there is no justification to postpone of the election or appointment of the observer. It is also stated that the Head Master of the Institution, did not inform about the postponement of the elections to the petitioner or the observer and elections were held in which respondent No. 4 was the answering respondent No. 4 was elected as Manager of the Institution.
14. The counsel for the respondents also submits that when the petitioner's candidate lost the election, the notice was manipulated by the petitioner. A representation in this regard was sent to the Assistant Registrar as well as the District Basic Education Officer, Azamgarh. It is stated that even the contention of the petitioner that information was not signed by the members and office bearers of the Society is not correct, as Sarvashri Shri Satyadev Rai, Shri Dinesh Rai, Shri Yatindra Rai, Shri Ashok Kumar Rai, Shri Diwarkar Rai, Shri Anjani Nandan Rai, Shri Tarkeshwar Rai, Shri Achuta Nand Rai, Shri Budhdhu Rai and Shri Ripunjay Rai filed their affidavits before the Assistant Registrar to the effect on 26.12.2004. They had participated in the election and had casted their votes in favour of respondent No. 4. Similarly one Shri Ripunjay Rai also filed an affidavit before the Assistant Registrar that no notice was issued by Shri Hari Shankar Rai regarding the postponement of the election and the letter/notice produced by him containing his signatures are forged and is not signed the instant notice.
15. It is evident from the aforesaid notice that the petitioner is disputing the election scheduled to have been held on 26.12.2004 of which he had given notice. He disputes the election and has come out that the signatures of respondent No. 4 have wrongly been attested. It also appears from the record that Shri Ripunjay Rai does not support this case, whose signatures are said to be on the notice of postponement. The petitioner had himself appointed Election Officer and the letter/representation enclosed with Annexure-10 to the writ petition is undated and has been filed at subsequent point of time and it was not actually submitted on 27.12.2004. In the highly disputed facts it appears that the group led by the present petitioners had boycotted the elections and as a result remaining members had participated in the elections in which respondent No. 4 is said to have been elected as a Manager in the elections scheduled on 26.12.2004.
16. A perusal of annexure -5 of the counter affidavit shows that this is in reply to the paragraph 6 of the writ petition. Paragraph 6 of the writ petition as well as paragraph 5 of the counter affidavit are as under: -
Para 6 of W.P.- That there were initially 19 members of the general body of the Society. A list of those members of the Society is being filed herewith as Annexure-II to this writ petition.
Para 5 of C.A.- That the contents of paragraph No. 6 of the writ petition are not admitted in the form stated, hence denied. In reply it is stated that the Head Master is an Ex-Officio member and including the Head Master there were twenty members of the general body of the society.
17. It is also apparent from paragraph 7 of the writ petition that the Assistant Registrar has not denied that elections were held on 26.12.2004 as has been averred therein, that committee of Management by its resolution dated 10.8.02 had enrolled 10 new members of the Society. In the counter affidavit filed by the respondents, aforesaid paragraph 7 of the writ petition has been replied stating that proceedings of the said resolution were not forwarded to his office i.e. the reply specifically in respect of non forwarding of the papers in regard to the elections held on 26.12.2004, but the no denial of the elections held on the said date.
18. Section 25 of the Societies Registration Act provides as under:-
The prescribed authority may, on a reference made to it by the Registrar or by at least one-fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an officebearer of such society, and may pass such orders in respect thereof as it deems fit;
Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied-
(a) that any corruption practice has been committed by such office-bearer; or
(b) that the nomination of any candidate has been improperly rejected; or
(c) that the result of the election insofar it concerns such office-bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with the provisions of any rules of the society.
19. The elections are said to be false, forged and based on manipulated documents which require findings of facts on basis of documentary and oral evidence which may be led by the parties. If petitioner has any grievance in this regard, he has a remedy of filing the election petition or a civil suit before the Civil Courts, as disputed questions of facts requiring oral and documentary evidence for adjudication which is not feasible in writ jurisdiction under Article 226 of the Constitution.
20. This view has been firmly intrenched by Division Bench of this Court in (1993) 2 UPLBEC 1333, Basant Prasad Srivastava and Ors. v. State of U.P. and Ors., in which it has been held that where in the educational institution the election/finalisation of election process of Committee of Management is challenged under Article 226, the writ petition under Article 226 would not be maintainable and the only remedy in such cases is by filing election petition or filing civil suit. Paragraph 4 of the aforesaid judgment is quoted as under:
The learned Single Judge has observed that it was well settled proposition of law that in proceeding under Article 226 of the Constitution Courts should not interfere with election process and penalisation of list is not amenable to challenge in writ jurisdiction. It has also been observed that dispute regarding correctness of voters list is a highly disputed question of fact which can be decided only by Civil Court, with these observations the learned Single Judge directed that the result of the be declared forthwith and further steps be taken in accordance with law.
21. The matter also came up for consideration by Division Bench in Special Appeal No. 1078 of 2005, Munna Lal Singh and Anr. v. State of U.P. and Ors., arising out of judgment dated 30.8.2005 in writ petition No. 38907 of 2004. Their Lordships in the aforesaid appeal opined:-
We are of the opinion that the Government Order cannot in any manner had to vary or alter the provisions of the statute which is the product of the State Legislature or its predecessor. However, the Government Order can, and indeed, does operate in areas which are silent in the Act and operating in that area, does not in any manner touch the Act.
It is noticed that within the Government Order itself the report the Committee is to be forwarded to the authority under the Act, which has jurisdiction to decide the matter. This finding of the Government Order itself presupposes that it is not within the jurisdiction of the Committee itself to decide the matter but that the jurisdiction for decision is only ascertained from the provision of the 1921 Act itself.
22. I am also supported in my view by another judgment of Division Bench in Special Appeal No. 1394 of 2004, Committee of Management v. Regional Joint Director of Education and Anr., wherein it has been observed:-
A perusal of the Government Order 19.12.2000 clearly shows that the Regional Level Committee has to merely send its recommendation to the officer authorized to pass the order under the provisions of the Act. It is, therefore, clear that the order has to be passed by the Regional Joint Director of Education, Agra but on the basis of the recommendation made by the Regional Level Committee. We are, therefore, unable to accept the contention advanced by the learned Senior counsel for the appellant that the provisions of the Government Order run contrary to the provisions of Section 16A of the Act.
23. It is evident from the facts stated above that there is no dispute about the membership of the society infact the petitioner is disputing the election of the respondent No. 4 said to have been elected in election dated 26.12.2004 as manager of the Society which he claims to be false, forged and based on manipulated documents. Per contra the case of the respondents is that they have been elected in the validly held elections and that the petitioners had boycotted the elections as his candidate list his elections and as such he had manipulated the notice and as such the petitioner is putting hurdles. The elections were already over and the signatures of respondent No. 4 have been attested
24. For the reasons stated above, the writ petition is dismissed on the ground of alternative remedy.