Hon'ble Dr. Vijay Laxmi,J.
These three appeals relate to the elections of the Committee of Management and affairs of a society registered under the Societies Registration Act, 1860 namely, the Khemraj Smarak Rashtriya Vidyapeeth Sangh, Khemapur Faizabad, district Ambedkar Nagar, the focus whereof is the challenge raised to the order of the Deputy Registrar, Firms, Societies and Chits, Faizabad dated 15.04.2011 whereby the contention raised on behalf of the appellants had been accepted and the Deputy Registrar had after declaring the tenure of the Committee of Management of the society to have come to an end, further issued directions for holding of fresh elections in exercise of powers under Section 25 (2) of the 1860 Act.
It may be put on record that all elections after 29.11.1967 were declared invalid on the ground that the membership of the society was highly disputed as it was based on amendment in the byelaws and Memorandum of Association that was illegal, and any consequential action or elections being claimed were all invalid.
The aforesaid order had been passed against the respondent petitioners No.9 and 10 holding that all the activities that were carried out under the amended byelaws of 24.11.1980 and the amendment in the Memorandum of Association dated 12.06.2001, were invalid as the amendment itself was impermissible and, therefore, the elections should now be held on the strength of the membership that existed as on 29.11.1967. Accordingly, a direction was issued by the Deputy Registrar to submit a list of members of the general body for holding elections.
The aforesaid society has established an Intermediate College namely, Kehmraj Smarak Rashtriya Vidyapith Sangh, Khemapur, Faizabad, district Ambedkar Nagar, which is duly recognized under the provisions of the U.P. Intermediate Education Act, 1921 and is governed by the provisions of a scheme of administration approved by the competent authority under the provisions of the said Act.
The appellants allege that the Principal of the institution Mr. Babban Singh had an evil eye over the institution as well as the society and he gradually tried to take over the affairs of the society as well as the institution as would be evident from the facts narrated and brought on record. On account of such nefarious activities and complaints being lodged, the Management of the college was superseded by the State Government invoking the provisions of Section 16-D of the 1921 Act, vide order dated 22.02.2011. One Sri Ashok Kumar Singh filed Writ Petition No.1288 (M/S) of 2011, assailing the said order of supersession on several grounds including the mala fides alleged against a local MLA Sri Bhagelu Ram who had influenced the Secretary, Secondary Education Sri Jitendra Kumar to pass the said order. The writ petition was entertained and the following order was passed on 10.03.2011:-
"Through the instant writ petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated 22.2.2011 passed by the opposite party No.1-Secretary, Secondary Education, Uttar Pradesh and issued by the opposite party No.2-the Special Secretary, Sanskrit Shiksha Anubhag, Lucknow, Uttar Pradesh, whereby the Principal of Government Inter College, Akbarpur has been appointed as Authorized Controller of the Committee of Management of the petitioner's institution in exercise of the powers under Section 16-D of the U.P. Intermediate Education Act, 1921.
The main grounds on which the impugned order has been challenged are that the Principal, who has been appointed as an Authorized Controller is a tainted person and closely associated to the M.L.A. of the ruling party, namely, Sri Bhagelu Ram. It has been alleged that at the behest of the said MLA, who is taking keen interest in the affairs, the State Government supersede and terminate the Committee of Management of the petitioner's institution illegally and arbitrarily and without application of mind.
In order to verify the averments made in the writ petition, this Court, vide order dated 4.3.2011, the Principal Secretary, Secondary Education, Lucknow, was directed to appear in person along with the relevant record to assist the Court.
In compliance thereof, Sri Jitendra Kumar, Secretary, Secondary Education, Lucknow, U.P., is present in person along with the entire records.
Sri Jitendra Kumar, Secretary, Secondary Education, Lucknow, U.P., on the basis of the records, submits that on the basis of the recommendation of the Director in exercise of power under Section 16 (D) (4) of the U.P. Intermediate Education Act, 1921 with regards to irregularities, which have been committed by the Committee of Management of the petitioner's institution, Authorized Controller has been appointed.
The petitioner in para 18 of the writ petition has specifically stated that action with regards to appointment of authorized controller in the petitioner's institution has only been initiated on the influence of the opposite party No.9-Sri Pawan Kumar, who is the Regional Co-ordinator and also local Member of Legislative Assembly of Uttar Pradesh of the ruling party.
On perusal of the records, which have been produced by Sri Jitendra Kumar, Secretary, it reflects that the irregularities, which has been pointed out by the Director in his recommendation for appointment of Authorized Controller was for the year 2003-2004 and thereafter, no specific irregularities has been either pointed out by the Secretary nor are reflected from perusal of the records. The Member of Legislative Assembly, namely, Sri Bhagelu Ram, wrote a letter, which has been received in the office of Chief Minister on 2.2.2011 and Sri Net Ram, Chief Secretary, Government of U.P., directed the Secretary, Secondary Education, Lucknow, to do necessary action, on 1.2.2011. Immediately thereafter, on 22.2.2011, Authorized Controller in the petitioner's institution has been appointed.
Considering the entire facts and circumstances of the case and also on perusal of the records, I am of the view that the officers of the State Government are acting under the influence of the elected Member of Legislative Assembly without applying their own independent minds in the instant case. Fairness and transparency is the essence of the State Act. The Government Officers are bound to pass order after applying their independent mind and strictly in accordance with law. The order cannot be the result of political influence.
For the reasons aforesaid, the Chief Secretary, State of U.P., shall call an explanation from Sri Jitendra Kumar, Secretary, Secondary Education, Government of U.P., within three days from today as to under what circumstances and how he proceeded to in utter breach of the provisions of law, specifically, under Section 16 (D) (5) of the U.P. Intermediate Education Act, 1921 insofar as without issuing any notice, he appointed authorized controller under the influence of the political leader.
List the matter on 16.3.2011, on which date, Sri Jitendra Kumar, Secretary, Secondary Education, U.P., who is present in person, shall also appear in person.
The Chief Secretary, State of U.P., shall also ensure that an officer not below the rank of Joint Secretary, in his office, is present in the Court along with the show cause notice given to Sri Jitendra Kumar and the explanation so tendered by Sri Jitendra Kumar, Secretary, Government of U.P., on the date fixed.
The Bench Secretary shall seal the records, which have been produced by Sri Jitendra Kumar, Secretary, Government of U.P., and transmit the same to the Registrar of this Court. The Registrar shall keep the record in sealed envelop in a safe custody and ensure that the records in sealed cover are made available on the date fixed before this Court.
In the event, Sri Jitendra Kumar, Secretary, Secondary Education, Government of U.P., wants to inspect the records for tendering his explanation, he shall move an appropriate application before the Registrar of this Court. In case such an application is received, the Registrar shall open the seal cover and allow Sri Jitendra Kumar to inspect the file in his presence and shall also allow him to note down the points. This can be done in any working day. Immediately thereafter, the Registrar shall seal the records in his presence.
Order Date :- 10.3.2011 Ajit/-
Let a copy of this order be sent to the Chief Secretary, Government of U.P., Lucknow through FAX today."
The appellants, who are also contesting the continuance of Sri Babbann Singh and the contesting respondent No.9 and 10 in the society, are stated to have adopted the same method and through the influence of the then Secretary, Secondary Education Sri Jitendra Kumar to rake up the matter of the society by filing two applications: one dated 09.12.2009 said to have been moved by the respondent No.8 Dinesh Pratap Singh son of Hira Singh and the second application dated 08.02.2010 by the same person. The aforesaid facts are available from the narration made in the order of the Deputy Registrar dated 15.04.2011. The said order also narrates the availability of a complaint dated 03.12.1985 said to have been moved by Sri Hira Singh and five others, referring to an earlier complaint dated 06.11.1985. These complaints had been controverted by the then office bearers of the society. The respondent No.9 and 10 contend that this was again a mala fide exercise to somehow or the other disturb the functioning of the society at the instance of the same MLA and the same Secretary, Secondary Education under whose influence, the Deputy Registrar under the garb of looking to all the complaints, including the amendments in the byelaws and Memorandum of Association of the society, proceeded to annul all the elections of the society and its activities after 20.11.1967. This order came to be challenged by the contesting respondent No.9 and 10 in Writ Petition No.2816 (M/S) of 2011.
Thus, the order of supersession of the management of the College that was assailed in Writ Petition No.1288 (M/S) of 2011 and the above mentioned order of the Deputy Registrar dated 15.04.2011 in relation to the management and affairs of the appellant society challenged in Writ Petition No.2816 (M/S) of 2011, came to be heard together by a learned Single Judge of this Court who delivered two separate judgments in both the writ petitions. The judgment of the case of supersession of the management of the College in Writ Petition No.1288 (M/S) of 2011, dated 09.01.2012 is extracted hereinabove:-
"Heard learned Counsel for the parties.
The instant writ petition has been filed assailing the appointment of Authorized Controller superseding the duly elected Committee of Management inter alia on the ground that the order appointing Authorized Controller has been passed by the State Government at the instance of one Member of Legislative Assembly, namely, Baghelu Ram.
While entertaining the writ petition, vide order dated 4.3.2011, this Court directed the Principal Secretary (Madhyamik) to appear in person alongwith the relevant records on 10.3.2011. In compliance of the order dated 4.3.2011, the Principal Secretary (Madhyamik) appeared and produced the relevant record.
On perusal of the records, it was found that the material procedural irregularities were committed while appointing the Authorized Controller. Therefore, the records were directed to be sealed. Today, when the case was taken up, records were opened and on perusal, it further reflects that it is only on the basis of letter written by the MLA, action has been initiated by the State Government appointing the Authorized Controller. Neither any report was called for from the concerned educational authorities nor from the petitioner. Law is well settled that any action which entails civil consequences must be in consonance with the principles of natural justice. At this juncture, it would be useful to refer the law enunciated by the Apex Court.
In D.K. Yadav Vs. J.M.A. Industries; (1993) 3 SCC 259 the Apex Court while laying emphasis on affording opportunity by the authority which has the power to take punitive or damaging action held that orders affecting the civil rights or resulting civil consequences would have to answer the requirement of Article 14. The Hon'ble Apex Court concluded as under: -
"The procedure prescribed for depriving a person of livelihood would be liable to be tested on the anvil of Article 14. The procedure prescribed by a statute or statutory rule or rules or orders affecting the civil rights or result in civil consequences would have to answer the requirement of Article 14. Article 14 has a pervasive procedural potency and versatile quality, equalitarian in its soul and principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable, and not arbitrary, fanciful or oppressive.
In National Building Construction Corporation v. S. Raghunathan; (1998) 7 SCC 66, the Apex Court in unequivocal words that a person is entitled to judicial review, if he is able to show that the decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he is informed the reasons for withdrawal and the opportunity to comment on such reasons.
As the order appointing Authorized Controller has been passed in violation of provisions of Section 16 (D) (5) of the U.P. Intermediate Education Act, 1921, it is liable to be quashed. Furthermore, the Standing Counsel has failed to point out that any notice or opportunity of hearing was provided before passing the impugned order. Thus, it is clear that the order was passed in utter disregard of the principles of natural justice.
Accordingly, the writ petition is allowed and the impugned order dated 22.2.2011 is hereby quashed. The record, which is produced and kept in this Court, shall be returned to the Standing Counsel or the official concerned."
The writ petition was allowed and the appointment of the Authorized Controller in the institution was quashed.
The dispute now presently in question began with the dismissal of Writ Petition No.2816 (M/S) of 2011 that had raised the challenge to the order of the Deputy Registrar dated 15.04.2011. The judgment dismissing the said Writ Petition No.2816 (M/S) of 2011, dated 09.01.2012, is extracted hereinunder:-
"Heard Pt. S. Chandra, learned Counsel for the petitioner, Mr. Anil Tiwari, Senior Advocate assisted by Mr. Shailendra Kumar Singh, learned counsel appearing for the opposite partiesand Mr. M. B. Singh, learned counsel for the opposite party nos.2 and 3.
During pendency of writ petition No.1288 (MS) of 2011, the Deputy Registrar, Firms, Societies and Chits has issued a notice to all the concerned parties requiring to convene a meeting of General Body. When a compliant has been filed on 19.12.2009 by Sri Dinesh Pratap Singh, it was investigated and it was found that last election of the Committee of Management was held on 1.4.2008 and thereafter, no election took place and as such, in exercise of powers conferred under Section 25 (2) of Societies Registration Act, elections were notified. Being aggrieved by the said action, the instant writ petition has been filed.
After hearing learned Counsel for the parties, I am of the opinion that no election took place after 1.4.2008 and the term of Committee of Management has also been expired and as such, I do not find any illegality or infirmity in the impugned orders. No interference is required under Article 226 of the Constitution of India.
Accordingly, the writ petition is dismissed. The Deputy Registrar is directed to hold elections within a maximum period of one month from the date of receipt of a certified copy of this order."
While dismissing the writ petition, the learned Single Judge in the second last paragraph concluded that since no election had taken place after 01.04.2008 and the tenure of the committee has already expired, the writ petition was dismissed as no interference was called for with a direction that the Deputy Registrar shall proceed to hold election within time period given therein.
It is this date of 01.04.2008 which raised the controversy afresh. The contesting respondent No.9 and 10 who are the petitioners in the writ petition, however, felt satisfied with the said date and at that point of time, they did not raise any objection to the aforesaid fact having been recorded by the learned Single Judge which was in complete variance with the last date of the tenure of the Committee of management of the society i.e., 29.11.1967 mentioned by the Deputy Registrar in the order impugned dated 15.04.2011. The Deputy Registrar had concluded that the tenure of the society as was then under the byelaws was two years, and the Committee of Management had been constituted in November, 1965 whereafter no valid elections have been held as such the committee had become defunct after 1967.
The learned Single Judge dismissed the writ petition but recorded the date as 01.04.2008. The appellants contend that the Deputy Registrar had rightly found that no elections were held after 1967 and the aforesaid date 01.04.2008 was got confused with the elections of the Committee of Management of the Intermediate College. According to the appellants since the mentioning of the said date was absolutely incorrect, a modification application was filed by the appellants herein, who were the respondents in the writ petition, on 16.01.2012 and the said modification application was taken up on 17.01.2012 by the learned Single Judge and the following order was passed on 17.01.2012:-
"Heard Mr. Shailendra Kumar Singh, learned Counsel for the applicant.
Learned Counsel for the applicant submits that in the judgment and order dated 9.1.2012, date of last election of the Committee of Management was held on 1.4.2008. In this context, learned Counsel for the applicant has drawn the attention of this Court towards the impugned order dated 15.4.2011 wherein it has been mentioned that on 29.11.1967, Committee of Management has expired.
Accordingly, the judgment and order dated 9.1.2012 is modified to the extent that the undisputed elections for the office bearers of the Committee of Management was held and the Committee of Management has expired on 29.11.1967.
The application is disposed of in above terms."
The learned Single Judge accepted the modification holding that the date of the expiry of the tenure of the last valid elections of the society was 29.11.1967 which was the date mentioned by the Deputy Registrar in the impugned order dated 15.04.2011.
The petitioners therein who are the respondent No.9 and 10 in the present appeal, filed a Review Application No.46 of 2012 along with a recall application for recall of the order dated 17.01.2012 contending that the said order dated 17.01.2012 was without jurisdiction as it amounted to review of the entire judgment changing the date without even serving a copy of the application on the counsel for the petitioners. The modification was, therefore, carried out in violation of principles of natural justice.
This application remained pending and in between in view of the modified order dated 17.01.2012, the Deputy Registrar, who was to proceed with the elections in terms of his order dated 15.04.2011, finalized the list of the members of the general body on 17.03.2012. This action of the Deputy Registrar became subject matter of challenge in Writ Petition No.1804 (M/S) of 2012. The elections were also held on 26.04.2012 pursuant to the said electoral list finalized by the Deputy Registrar and the said elections were also challenged by way of an amendment in the same writ petition.
During the pendency of the said writ petition, certain developments more took place in respect of the modification order and the review application filed by the respondent No.9 and 10 in Writ Petition No.2816 (M/S) of 2011. The Review Application No.46 of 2012 referred to hereinabove, was taken up by the learned Single Judge on 14.12.2012 and an order was passed recording that the review petition "was" allowed with certain modification for "the reasons to be recorded later on". The order passed on the review application is extracted hereinunder:-
"This review petition was allowed with certain modification for the reasons to be recorded later on. During the course of dictation of judgment, the record reveals that certain new developments had taken place, which were not brought to the notice of the Court during hearing. Therefore, it is necessary to get clarification from the parties' counsel.
Accordingly, list this case as and when I sit singly.
Registry shall issue counsel notice in this regard."
This order in several ways contradicts itself with regard to which we will delve later on, as it is this order which further complicated the issues giving rise to this appeal and the connected appeals. As directed by the learned Single Judge in the aforesaid order to list the matter after issuing notice with a view to seek clarification from the learned counsel, the same was taken up on 20.09.2013 and the following order was passed:-
"Vide judgment and order dated 17.1.2012 passed in C.M.Application No. 5633 of 2012 in re: Writ petition No. 2816 of 2011, this Court has passed the following order :
"Heard Mr. Shailendra Kumar Singh, learned Counsel for the applicant.
Learned Counsel for the applicant submits that in the judgment and order dated 9.1.2012, date of last election of the Committee of Management was held on 1.4.2008. In this context, learned Counsel for the applicant has drawn the attention of this Court towards the impugned order dated 15.4.2011 wherein it has been mentioned that on 29.11.1967, Committee of Management has expired.
Accordingly, the judgment and order dated 9.1.2012 is modified to the extent that the undisputed elections for the office bearers of the Committee of Management was held and the Committee of Management has expired on 29.11.1967.
The application is disposed of in above terms."
Not being satisfied with the above judgment and order dated 17.1.2012, instant review petition has been preferred inter alia on the ground that the Deputy Registrar, Firms, Societies and Chits, Faizabad, by the impugned order dated 15.4.2011, illegally cancelled the election of the petitioners' society since 29.11.1967 though the record pertaining to election since the year 1967 (29.11.1967) is available in the office of Deputy Registrar.
During the course of arguments, learned Counsel for the review petitioners submits that the judgment and order dated 17.1.2012 be reviewed only to the extent that undisputed elections for the office bearers of Committee of Management was debarred on 29.11.1967.
It is not in dispute that Committee of Management was debarred on 29.11.1967.
Considering the peculiar facts and circumstances of the case, review petition is allowed in part and the above order dated 17.1.2012 is recalled and following order is being passed :
"The judgment and order dated 9.1.2012 is modified to the extent that undisputed elections for the office bearers of Committee of Management was debarred on 29.11.1967." "
A perusal of the aforesaid order would indicate that the Court reiterated that the undisputed elections that were held, had come to an end on 29.11.1967 by using the word, "debarred".
The aforesaid order, however, purports to allow the review petition in part but at the same time, the matter was again taken up on 08.05.2014 and a fresh order was passed holding that since the petitioners in the writ petition have brought on record the details of certain elections last of which were held on 01.04.2008, then the date of expiry of last elections from 29.11.1967 was again changed to 01.04.2008 as existed in the original order dated 09.01.2012.
It is against this order that the present Special Appeal No.265 of 2014 has been filed.
It appears that after filing of this appeal and the grounds taken herein, the respondent No.9 and 10 were advised to question the correctness of the original judgment dated 09.01.2012 whereby the writ petition had been dismissed and also prayed for quashing of the order of the Deputy Registrar dated 15.04.2011 by filing Special Appeal No.84 of 2015.
There is yet another development which deserves to be put on record namely, that the list that was finalized by the Deputy Registrar on 17.03.2012 and the elections which were held pursuant thereto on 26.04.2012, as per the modified order of the High Court dated 17.01.2012, was subject matter of challenge in Writ Petition No.1804 (M/S) of 2012 as noted above. The said writ petition was dismissed by a detailed judgment on 24.02.2015 by a learned Single Judge on the ground that it would not be possible to question the correctness of the elections already held pursuant to the order dated 15.04.2011 of the Deputy Registrar and the intervening judgment of the High Court dated 17.01.2012 as well as the subsequent orders dated 14.12.2012, 20.09.2013 and 08.05.2014 that are subject matter of Special Appeal No.265 of 2014 namely, the present appeal. Learned Single Judge thus, found that the said proceedings could not be adjudicated independently as everything was dependent now on the outcome of the Special Appeal No.265 of 2014 that was considering all the orders passed by the learned Single Judge in Writ Petition No.2816 (M/S) of 2011 referred to hereinabove.
The respondent No.9 and 10 aggrieved by the judgment dated 24.02.2015 of the learned Single Judge, have filed Special Appeal No.81 of 2015.
Thus, the subsequent two appeals namely, Special Appeal No.84 of 2015 and Special Appeal No.81 of 2015 were clubbed together and heard by a Division Bench that came to connect the present appeal along with the same and passed the following order dated 20.03.2015:-
"An application seeking impleadment has been moved today supported by affidavit of Sri Narendra Pratap Singh, copy thereof has been supplied to the learned counsel for the appellants as also to the learned standing counsel appearing for the respondent No.1.
The matter is essentially of election/management dispute of a society registered as The Khemraj Smarak Rashtriya Vidyapith Sangh Khemapur, Faizabad and this special appeal is by the same named appellant who had filed Writ Petition No.1804 (M/S) of 2012 wherein, the learned Single Judge of this Court has declined to exercise writ jurisdiction essentially for the reason of the pendency of Special Appeal No.265 of 2014, said to be having a direct bearing on the issues sought to be raised in Writ Petition No.1804 (M/S) of 2012.
It is also noticed that the contesting parties seek to take varying stands as regards purport, implication as also validity of the order dated 09.01.2012 as passed by the learned Single Judge of this Court in Writ Petition No.2816 (M/S) of 2011, which has been subjected to review and then, recall applications and is said to be now forming the subject matter of Special Appeal No.265 of 2014.
The present appellants have chosen to put a direct challenge to the aforesaid order dated 09.01.2012 also by way of another Special appeal No.84 of 2015, which is obviously time barred by about three years. Therein, an application seeking condonation of delay has been filed as also an application for impleadment has been moved after duly serving copies thereof to the learned counsel of other sides.
In the totality of the circumstances, it appears appropriate as also expedient that these two fresh matters, being Special Appeal No.81 of 2015 and 84 of 2015 as also pending appeal bearing Special Appeal No.265 of 2014 and applications moved therein, be heard together.
Therefore, this special appeal is ordered to be listed for admission along with Special Appeal No.84 of 2015 and Special Appeal No.265 of 2014 on 30.03.2015 as fresh."
Pt. S. Chandra, learned counsel for the appellants has urged that firstly, the delay in Special Appeal Defective No.84 of 2015 be condoned keeping in view the fact that a bona fide litigation was continuing and pending before the learned Single Judge in Writ Petition No.2816 (M/S) of 2011 while several orders passed are under consideration in connected Special Appeal No.265 of 2014. The contention is that in the aforesaid background coupled with the observations made in the judgment dated 24.02.2015 by a learned Single Judge and the observations made in the order dated 24.03.2015 in Special Appeal No.265 of 2014, delay deserves to be condoned.
Sri Anil Tewari, learned Senior Counsel for the contesting respondents and the learned standing counsel have, however, opposed the delay but they could not contradict the peculiar situation of the case on account of the orders passed from time to time in Writ Petition No.2816 (M/S) of 2011 where both the parties were advancing arguments and still continue to contest the dispute in Special Appeal No.265 of 2014. It was on account of the intervening orders passed in Writ Petition No.2816 (M/S) of 2011 that Special Appeal No.84 of 2015 had to be filed challenging the order dated 09.01.2912. We find that the challenge raised to the judgment dated 09.01.2012 was, therefore, essential but had not been raised earlier on account of the orders passed in the same writ petition on the review application. This ultimately has been made subject matter of Special Appeal No.265 of 2014 and the outcome thereof, will have a direct bearing on Special Appeal Defective No.84 of 2015. In the above background, we find that the delay in Special Appeal Defective No.84 of 2015 deserves to be condoned as the cause shown is sufficient and the entire dispute deserves to be addressed simultaneously.
Pt. S. Chandra advancing his arguments has rightly relied on the observations made in the ratio of two Supreme Court decisions reported in [2010 (28) LCD 1531]: Improvement Trust, Ludhiyana. Vs. Ujagar Singh & others, and [2015 (33) LCD 602]: Executive Officer, Antiyur Town Panchayat. Vs. G. Arumugam (D) by Lrs.
We accordingly, condone the delay and treat Special Appeal Defective No.84 of 2015 to be within time for being heard along with Special Appeal No.265 of 2014 and Special Appeal No.81 of 2015.
Pt. S. Chandra then advancing his arguments on merits submits that the learned Single Judge has rightly restored the correct position while passing the order dated 08.05.2014 in review petition arising out of Writ Petition No.2816 (M/S) of 2011. As such, there was no cause with the appellants of Special Appeal No.265 of 2014 to file the said appeal. It is urged that all the intervening orders passed by the learned Single Judge in the said writ petition, were therefore, of no consequence and this Court may not interfere with the order of the learned Single Judge dated 08.05.2014. He submits that the learned Single Judge rightly appreciated the holding of the last elections on 01.04.2008, and if fresh elections of the society are to be held then the same deserves to be held from amongst such members of the general body who were existing on the said date i.e., 01.04.2008. He therefore, submits that putting the clock back to 1967 and reducing the membership as existing on that date was a totally illegal exercise undertaken by the Deputy Registrar who has decided a dispute that had already become infructuous. He further submits that the elections and its status in 1967 could not have been subject matter of consideration by the Deputy Registrar while passing the order dated 15.04.2011 inasmuch as, the provisions of sub-section (2) of Section 25 were incorporated in the statute namely, the 1860 Act with effect from 06.10.1975. In this view of the matter any elections held prior to that could not have been made subject matter of adjudication by the Deputy Registrar who otherwise also cannot decide any doubt or dispute of such elections. The Deputy Registrar committed a manifest error by travelling into the election of 1967 even prior to the availability of the powers under Section 25 (2) which obviously was available only after 1975. Thus, any election or its correctness in 1967 could not have been made a matter of inquiry or subject matter of adjudication by the Deputy Registrar. His next contention is that all future elections would not be invalid even if the earlier elections had not been held in time inasmuch as, the society continued to function and the Deputy Registrar or any other authority had not passed any order about the previous elections the term thereof, was only two years. It is only after the amendment in the byelaws that the tenure of the Committee came to be fixed as five years. Thus, the Deputy Registrar according to Pt. S. Chandra, committed a manifest error by delving into the validity of future elections on the strength of the past elections being not within time.
The next contention raised by him is that the Deputy Registrar while passing the order dated 15.04.2011 could not have decided the issue of the membership of the general body on the strength of the observations made with regard to the amendment in the byelaws and the Memorandum of Association. The power of the Registrar to cancel an amendment or its registration is subject to an appeal before the Commissioner under Section 12 (D) of the 1860 Act but such annulment could not have been made by the Deputy Registrar in respect of the amendments that had already allowed and given effect to inasmuch as the Deputy Registrar has no power to review the earlier approval of the amendment of the byelaws. If any person is aggrieved, he could have taken steps further but the Deputy Registrar had no authority to annul or review the amendment which were already carried out and were in force.
He then submits that the matter was contested before the Deputy Registrar by Sri Dinesh Pratap Singh who was the son of Hira Singh, the erstwhile Manager of the institution. Dinesh Pratap Singh had, therefore, no locus to move the applications dated 09.12.2009 and 08.02.2010 for reopening the status of the elections held in the past after the amendment had been carried out. He further submits that Hira Singh himself had moved a complaint in 1985 that is stated to have been lying in the file. The said complaint also and the complaint dated 03.12.1985 could not have been taken up for any adjudication in 2011 after 16 years. All these applications were made the basis for creating the dispute which had been mala fidely prompted by the local MLA Sri Bhagelu Ram who wanted to usurp the institution with the help of the then Secretary, Secondary Education Sri Jitendra Kumar.
Pt. S. Chandra then urged that the Deputy Registrar did not even frame the issue of the validity of the elections and the three issues which were framed for being contested as are narrated in the order dated 15.04.2011 are not with regard to the validity of elections. He further submits that the validity of elections could not have been questioned by him as the Deputy Registrar has no authority to assume that the Committee of Management had become defunct on account of not holding of elections. Even otherwise if it was a matter of validity of elections, then the issue could have been framed and then sent to Prescribed Authority for decision in order to ascertain about the status of any elections that were being claimed by the respondent No.9 and 10. He, therefore, submits that for all the aforesaid reasons, Special Appeal No.265 of 2014 should be dismissed and Special Appeal No.81 of 2015 and Special Appeal Defective No.84 of 2015 both should be allowed and the order of the Deputy Registrar dated 15.04.2011 should be quashed. The elections of the society can be held only through the valid members of the general body which cannot be extended to the year 1967 as has been done by the Deputy Registrar or what had been done earlier by the learned single Judge as per the facts narrated above. The elections even if not held within time, can now be held only under the existing list of members of general body and not on the strength of the electoral college of 1967.
Sri Anil Tewari, learned Senior Counsel for the appellant in Special Appeal No.265 of 2014 has extensively taken the Court through the order dated 15.04.2011 passed by the Deputy Registrar to contend that the Deputy Registrar found serious irregularities and that no evidence of any elections having been held being available in his records, he had no option but to declare the committee to have become defunct since 1967 and the only option left under the provisions of the 1860 Act was to hold fresh elections. He further submits that since the date 01.04.2008 as mentioned by the learned Single Judge was not obviously in relation to the elections of the society, the same had been rightly corrected by the learned Single Judge dating it back to 1967 on the modification record. It is only the members who were existing then who were entitled to participate. Sri Babban Singh the Principal of the College in order to usurp the society and perpetuate his existence carried out the amendments reposing sole arbitrary powers in himself about membership including the power to receive the contribution for membership that was to be accepted by him only. The provisions of his becoming a life member of the society and inducting his son and wife as office bearers as a consequence of the illegal amendments can be of no avail and therefore, the Deputy Registrar was justified in exercising his power for annulling the said amendment. He, therefore, submits that if the respondent No.9 and 10 of Special Appeal No.265 of 2014 are aggrieved by any such orders on the amendment, they had a right of appeal under Section 12 (D) of the Societies Registration Act, 1860 which has not been availed of. The order of the Deputy Registrar therefore, cannot be questioned in view of what has been stated above.
Sri Anil Tewari, then submits that if the transactions were fraudulent and against all the norms prescribed in the byelaws as well as the provisions of 1860 Act, the Deputy Registrar was justified in coming to the conclusion of treating the committee to have become defunct and holding of fresh elections.
He further submits that even if the learned Single Judge had been passing orders in between, the ultimate order dated 08.05.2014 restores back the judgment dated 09.01.2012 which is an incorrect order and against record and, therefore, Special Appeal No.265 of 2014 deserves to be allowed. Once the special appeal is allowed, then the earlier order dated 10.09.2013 would stand and the elections held pursuant to the judgment dated 17.01.2012, would be valid. He has ultimately submitted that even if the intervening orders passed by the learned Single Judge dated 04.12.2012 and 10.09.2013 are kept aside, then too also, no interference is called for as elections have been held.
Learned standing counsel has also urged that since the elections have already been held pursuant to the directions of the High Court and the order of the Deputy Registrar dated 15.04.2011 has been given effect to, there is no reason to interfere in the appeals at this stage. The submission of the learned standing counsel, therefore, is that if anybody wants to dispute the status of the management or the membership of the general body, then the aggrieved person can approach the appropriate forum for redressal of the grievances by filing a civil suit.
We have heard Sri Anil Tewari, learned Senior Counsel for the appellants in Special Appeal No.265 of 2014 and Pt. S. Chandra for the respondent No.9 and 10 in the said special appeal. Pt. S. Chandra has advanced submissions on behalf of the appellants in Special Appeal No.81 of 2015 and Special Appeal Defective No.84 of 2015 where the respondents are represented by Sri Anil Tewari, Senior Advocate for the private parties and the learned standing counsel for the State and have been heard on the merits of the appeals.
Pt. S. Chandra has relied on the judgment of the Apex Court in the case of Kalabharti Advertising. Vs. Hemant VimalNath NariChania and others.: (2010) 9 SCC 437 to contend that the Deputy Registrar had no power to review the orders allowing the amendment in the byelaws and Memorandum of Association being an administrative exercise of power. On the issue of entering into the question of future elections in the absence of any orders passed by the Deputy Registrar, Pt. S. Chandra relied on the judgment in the case of Committee of Management, Vidyawati Higher Secondary School, Azamgarh and another. Vs. Assistant Registrar, Firms Societies and Chits, Azamgarh and others.: [2005 (2) ESC (All) 847] to substantiate his argument that the validity of the earlier elections could not have been gone into.
Sri Anil Tewari learned Senior Counsel for the appellants in Special Appeal No.265 of 2014 has relied on the Division bench judgment in the case of Shiksha Samiti Degree College, Garua Maksudpur and others. Vs. Registrar, Firms, Societies and Chits, U.P. Lucknow. : AIR 1990 Allahabad 110 and the judgment in the case of Sri Krishna Educational Society, Deoria and another. Vs. State of U.P. And others.: [(1995) 2 UPLBEC 732] to urge that the Registrar has powers to cancel the amendment in the registered byelaws and, therefore, the conclusion drawn on the strength thereof that no valid elections had been held, cannot be said to suffer from any infirmity. He further submits that once such a decision has been taken by the Deputy Registrar on 15.04.2011, then the respondents had a remedy of filing an appeal against the order dated 15.04.2011 or a civil suit as has been rightly held in the case of Committee of Management, Hari Shyam Khadi Gram Udyog Sewa Sabha, Allahabad and others. Vs. State of U.P. And others.: [2006 (3) ESC 1570 (All)].
In order to resolve the controversy, we have to first advert to the orders passed by the learned Single Judge in Writ Petition No.2816 (M/S) of 2011 including the order dated 08.05.2014 that is impugned in Special Appeal No.265 of 2014. This is necessary as the decision in this appeal will have a direct impact on the other two appeals.
Writ Petition No.2816 (M/S) of 2011 had been filed challenging the order of the Deputy Registrar dated 15.04.2011. The writ petition was dismissed on 09.01.2012 recording that no election of the Society Management took place after 01.04.2008. This position has again been reiterated in the impugned order dated 08.05.2014 giving rise to Special Appeal No.265 of 2014. What we find is that there is a serious dispute about the recording of the correct date of last elections in the said order between the parties. The appellants of Special Appeal No.265 of 2014 contend that no elections were held after 1967 and the committee had become defunct whereas, the learned Single Judge held that no election took place after 01.04.2008 and as such, the term of Committee of management has expired. For this, the learned Single Judge in the impugned order dated 08.05.2014 refers to certain documents relating to the elections upto 2008 alleged to have been set up by the respondent No.9 and 10 of Special Appeal No.265 of 2014. The appellants dispute the said elections contending that they are the dates of elections of managements of the Intermediate College and not of the society if at all they have been held. The appellants specifically contend that no elections of the society were held after 1967. The Deputy Registrar while passing the order dated 15.04.2011 framed only three issues for deciding the matter namely, the status of the amendment in the original byelaws of 1965, whether the Principal of the institution established by the society can also be the founder member of the parent society and thirdly, the status of members and membership is according to the original byelaws as against the amended byelaws of the society. However, while proceeding to consider this aspect of membership and the issue of amendment, the Deputy Registrar proceeded to hold that any elections or proceedings conducted on the strength of the such amendment and membership were invalid and, therefore, all elections after 29.11.1967 were invalid. Consequently, in the absence of any valid elections after 1967 the committee has become defunct and, therefore, it was necessary to invoke the provisions of sub-section 92) of Section 25 of the Societies Registration Act, 1860.
The learned Single Judge completely omitted to consider the aforesaid three issues and on the strength of the conclusion of the Deputy Registrar about the defunct status of the Committee of management, proceeded to uphold the order of the Deputy Registrar and issued directions for holding fresh elections but while doing so, the learned Single Judge mentioned the date 1st of April, 2008. This date nowhere is in the entire order of the Deputy Registrar pertaining to the election of the society while treating it to be defunct whereas, the contesting respondents 9 and 10 are alleging that they held elections periodically on 30.11.1969, 30.11.1971, 30.11.1973, 30.11.1975, 30.11.1977, 30.11.1979, 30.11.1983, 04.04.1988, 3.04.1993, 01.03.2003 and 01.04.2008. Sri Anil Tewari for the appellants urges that all these dates are fake and there is no document or any proceeding worth the name to support the holding of any such elections. According to him, the Deputy Registrar has categorically recorded that such documents are not available on his file. On a perusal of the order dated 15.04.2011 we find that before the Deputy Registrar, the one election of the Committee had been intimated through a registered letter dated 11.12.1985. At another place, it has been mentioned that while granting renewal on 06.11.1982 with effect from 10.10.1981, the list of office bearers and the elections proceedings dated 29.11.1981 has been submitted along with the election papers whereafter the renewal was granted. Thus, there is a reference of the stand taken by the respondent No.9 and 10 about the submission of documents relating to some elections held in between. However, neither the Deputy Registrar nor the learned Single Judge have examined this issue to find out abut the status of such elections and therefore, we find that there was no basis for the learned single Judge to have arrived at the conclusion that no elections were held after 01.04.2008 or that they have been held periodically prior to that date. The order of the Deputy Registrar of no elections having been held after 1967 is, therefore, clearly at variance with the conclusion drawn by the learned Single Judge that no elections were held after 01.04.2008 for which we do not find any basis having been discussed or determined either by the Deputy Registrar or by the learned Single Judge. The Deputy Registrar had not even framed the issue to that effect which was necessary inasmuch as, unless that is done, no conclusion can be drawn about the defunct status of the Committee of Management so as to invoke the powers under Section 25 (2) of the Societies Registration Act, 1860.
In order to achieve their ends, the appellants initially filed a modification application and the date was changed by the learned Single Judge referring the tenure of the committee to have come to an end in 1967 vide order dated 17.01.2012. In our opinion, neither a modification application was maintainable as it was not a mere correction of date but it clearly amounted to decide the date whereafter no elections were held. Once the learned Single Judge mentioned the date 01.04.2008, then to convert it to 1967, clearly amounted to review of the decision dated 09.01.2012 on a modification application. The order was passed ex parte to the respondent No.9 and 10 therefore, was not in conformity with law.
Surprisingly enough, on coming to know of the said order having been passed, the respondent No.9 and 10 filed Review Application NO.46 of 2012 even though they had not challenged the initial dismissal of the writ petition, vide judgment dated 09.01.2012 which they have now done through Special Appeal Defective No.84 of 2015. Their review application is alleged to have been allowed with certain modifications for reasons to be recorded later on as is evident from the order dated 14.12.2012. We are unable to comprehend this order inasmuch as, no previous order had admittedly been passed allowing the Review Application No.46 of 2012. To us, it appears that the very same order intended to allow the review petition for reasons to be recorded later on but at the same time, the Court simultaneously called upon the learned counsel for seeking clarification from them. To our mind, such an order cannot be said to be in conformity with law inasmuch as, a review cannot be allowed for reasons to be recorded later on, on the one hand and on the other, simultaneously calling upon the parties counsel to seek clarification. The order is incomprehendible and lawfully impermissible and to our mind, the said order dated 14.12.2012 is also not in conformity with law.
The third order of the learned Single Judge in the same review application dated 20.09.2013 is equally bewildering inasmuch as, it records that the counsel for the review petitioners have sought review only to the extent of any undisputed elections having been held after 1967. The Court recorded two contrary findings holding that there is no dispute about the tenure of the committee. Elections of the committee were not held after 1967 and the committee was debarred. This is contrary to record as the parties were clearly disputing the date on which the Committee is stated to have become defunct. This part of the order, therefore, has been incorrectly recorded by the learned Single Judge. The learned Single Judge apparently allowed the review application and recalled the order dated 17.01.2012 and substituted it by a fresh clarification of the judgment dated 09.01.2012. In our opinion, this course was completely impermissible by altering the judgment one after the other in the manner aforesaid.
The last order dated 08.05.2014 is again an order taking a complete U turn and restoring the status of the elections of the society as per the judgment dated 09.01.2012 and recording that no elections were held after 01.04.2008. No reasoning has been given by the Hon'ble Single Judge in having passed these contrary orders one after the other after the final judgment dated 09.01.2012 in a review application which appears to have been dealt with at different stages by the orders referred to hereinabove.
The orders passed right from 09.01.2012 to 08.05.2014 are all incongruous, incoherent and uncompatible in law. Deliverance of justice should foster stability and not uncertainty. The random choice of a date to treat the tenure of the Committee to have come to an end is almost abrupt and out of the hat without recording any satisfaction as to why the choice of the date is logically correct. The allegations of one side were accepted as correct and at the same time reversed suddenly in favour of the other side. The word "debarred" has been used to describe the defunct status of the Committee without adverting to the facts of renewal of the Society and the list of office bearers submitted from time to time. The end of the tenure has to be gathered on the assessment of the allegations on record and the evidence in support thereof. The learned Single Judge does not appear to have delved into such an exercise and consequently no effective adjudication has been attempted.
Consequently, the order dated 08.05.2014 impugned in this appeal and all the previous orders after 09.01.2012 are nowhere in conformity with law and are hereby declared to be a nullity.
The appeal is allowed. The order dated 08.05.2014 impugned herein is set aside and the previous orders after 09.01.2012 are held to be a nullity that can be termed as a judicial straightening of the proceedings.
We now advert to Special Appeal Defective No.84 of 2015 which questions the correctness of the original judgment of the learned Single Judge dated 09.01.2012 in Writ Petition No.2816(M/S)of 2011. The judgment which gives rise to this appeal is in a petition filed by the appellant challenging the order of the Deputy Registrar dated 15.04.2011. As noticed above, we find that the order dated 15.04.2011 cannot be sustained for the reason that it did not frame any issue pertaining to the holding of periodical elections so as to arrive at the conclusion that the committee had become defunct. Secondly, the validity of the elections if held, the term whereof expired long ago could not have been gone into by the Deputy Registrar as otherwise it was within the jurisdiction of the prescribed authority in view of Section 25 of the Societies Registration Act 1860. Thirdly, the elections or its status prior to 06.10.1975 could not have been gone into as the provisions of Section 25 came into effect only after 1975 and, therefore, the proceedings of 1967 could not have been made subject matter of decision by the Deputy Registrar.
Sri Anil Tewari has, however, contended that the Deputy Registrar was within his jurisdiction and it had the authority to decide the issue of validity of the amendments and its consequences to that extent. Sri Tewari may be right but while entering into the question of amendment having been carried out, the Deputy Registrar has not adverted to the issue as to whether he did have the power to review earlier orders passed by his predecessors allowing the amendment. Secondly, there is no finding as to whether the said amendment was obtained by fraud or misrepresentation so as to invoke the power of review. If the amendments were invalid or renewal granted, then a person had a right to question the same by raising an appropriate challenge. In the instant case, there were applications pending filed by Sri Hira Singh and others since 1985 but it is not understood as to why they kept quiet for sixteen years and it was ultimately Dinesh Pratap Singh son of the erstwhile Manager Sri Hira Singh who moved the two applications in 2009 and 2010. The question of locus of Dinesh Pratap Singh was also, therefore, required to be examined as to whether he had any authority to move such applications on the basis whereof the decision has been taken by the Deputy Registrar on 15.04.2011. Apart from this, if the Deputy Registrar was of the opinion that there were no documents pertaining to the holding of any such elections after 1967, he should have framed such an issue calling upon the parties to submit their documents to establish as to whether valid periodical elections have been held or not and duly intimated to the authorities. This approach was not adopted by the Deputy Registrar and, therefore, we find that the order dated 15.04.2011 cannot be sustained. The learned Single Judge, therefore, committed a manifest error in dismissing the writ petition. The order of the Deputy Registrar dated 15.04.2011 being invalid for the aforesaid reasons, therefore, had to be set aside and the writ petition deserves to be allowed. Instead, the learned Single Judge entered into the exercise of changing of the dates and passed orders on the review application and on a modification application in a manner which is unsupported in law about which we have already indicated hereinabove. The Deputy Registrar had acted in a way that did not conform to the correct procedure under the provisions of the Societies Registration Act, 1860. He has also not taken notice of the fact as to whether he did have the authority to enter into an infructuous dispute of the Committee of Management the tenure whereof had long come to an end. All these issues, therefore, require being addressed to that was not done by the Deputy Registrar. The writ petition therefore, deserves to be allowed for which we have also to set aside the impugned judgment herein.
Accordingly, the judgment dated 09.01.2012 arising out of Writ Petition No.2816 (M/S) of 2011 is hereby set aside. The order of the Deputy Registrar dated 15.04.2011 is quashed. The Deputy Registrar shall proceed to pass a fresh order in the light of the observations made hereinabove after giving an opportunity of hearing to the parties and after noticing their contentions and framing issues arising out of the dispute raised before him.
We now advert to Special Appeal No.81 of 2015. The learned Single Judge while dismissing Writ Petition No.1804 (M/S) of 2012 has simply expressed his inability to interfere in the matter on account of the passing of the orders dated 09.01.2012, 17.01.2012, 20.09.2013 and 08.05.2014 in Writ Petition No.2816 (M/S) of 2011. We have by this judgment today set aside the judgment dated 09.01.2012 and have also declared the orders dated 17.01.2012, 20.09.2013, 04.12.2012 to be a nullity and have quashed the order dated 08.05.2014.
Writ Petition No.1804 (M/S) of 2012 has been filed basically challenging the consequential decision of the Deputy Registrar finalizing the list of the members and then holding of the elections of the society pursuant to the judgment of the learned Single Judge in Writ Petition No.2816 (M/S) of 2011. Since the judgment in relation thereto, as noted above has been set aside and the order of the Deputy Registrar dated 15.04.2011 has been quashed, then all consequential actions also fall through and, therefore, this appeal also deserves to be allowed and the challenge raised in the writ petition also deserves to be accepted.
We accordingly allow this appeal setting aside the judgment dated 24.02.2015. We also set aside all the actions taken pursuant to the order of the Deputy Registrar dated 15.04.2011 as the order dated 15.04.2011 itself has been quashed by us today. Consequential finalization of membership, and holding of elections vide orders dated 17.03.2012 and 26.04.2012 are also set aside.
The Deputy Registrar shall accordingly, in case he finds that the tenure of the committee has come to an end, proceed to finalize the membership in accordance with law and then proceed to hold elections if necessary.
Consequently, all the three appeals are allowed subject to the directions hereinabove.
The Deputy Registrar shall decide the matter expeditiously preferably, within a period of three months from the date of presentation of a certified copy of this order before him.
Order Date :- 31.8.2016 Rajneesh) [Dr. Vijay Laxmi,J.] [Amreshwar Pratap Sahi,J.]