Court No. - 39
Case :- SPECIAL APPEAL No. - 82 of 2018 Appellant :- Preetam Das And 6 Others Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Parmatma Nand Ojha,Ashok Khare Sr. Advocate Counsel for Respondent :- C.S.C.,Awadh Narain Rai
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
This Special Appeal arises out of judgment and order dated 21 November 2017 of a learned Judge of this Court by which Writ Petition No. 48133 of 2017 that was filed by the appellants for quashing the order dated dated 13 September 2017 passed by the Joint Director of Education, Saharanpur Region, Saharanpur1 pursuant to the directions issued by a learned Judge of this Court in Writ – C No. 13317 of 2017 filed by the petitioners, has been dismissed on the ground that for the factual disputes raised in the petition, the petitioners could institute a civil suit.
The dispute examined by the Joint Director of Education in the communication dated 13 September 2017 is with regard to 25 life members inducted on 1 June 2015 and 20 life members inducted on 9 August 2013. It has been stated in the impugned order that the amount towards the membership of these 45 members at the rate of Rs. 5100/- per member was deposited in the account of the Institution. Specific details have also been given and it has been stated that on 12 August 2013 the amount was deposited by Bank Drafts and between 4 July 2015 and 16 1 Joint Director of Education July 2015, the amount was deposited in cash. It has also been stated that in view of the amendments carried out in clause 4(iii) of the scheme of administration of the Institution, there is no provision for deposit of the amount in the maintenance account of the Institution.
Learned Senior Counsel appearing for the appellant has submitted that the Joint Director of Education has failed to consider the directions issued by the learned Judge of this Court in Writ – C No.13317 of 2017 on 8 May 2017 and in fact a perusal of clause (7) and clause 17(5) would indicate that the membership fee of life members has to be deposited by bank drafts and the amount has to be deposited in the maintenance account of the Institution.
Sri Awadh Narain Rai, learned counsel appearing for the Committee of Management of the Institution has, however, placed reliance upon the amendments made in the scheme of administration which was approved on 27 June 2002 and has submitted that membership fee amount of the life members could be deposited either by cash or Bank Drafts and there is no requirement at all to deposit the amount in the maintenance account of the Institution nor any such account is maintained by in the Institution.
We have considered the submissions advanced by the learned counsel for the parties.
The dispute sought to be raised is regarding the validity of the members who had been inducted as life members in 2013 and 2015. This issue was earlier decided by the Joint Director of Education by order dated 3 March 2017 and Writ – C No. 13317 of 2017 was filed to assail the said order. The Court in paragraph 6 of the judgment noted that in terms of the scheme of administration of the Institution, the membership fee has to be deposited through a Bank Draft to be collected by the Treasurer but no finding was recorded by the Joint Director of Education as to whether the membership fee had actually been deposited in the manner provided for in the scheme of administration. It is for this reason that the Court, after repelling the contention of learned counsel raised on behalf of the Committee of Management of the Institution that the petitioners had no locus to file the writ petition, disposed of the writ petition with the following observations :-
“11. This writ petition, admittedly, has been filed against the order passed by the Joint Director of Education after the direction issued by this Court in Writ Petition - C No. 388 of 2017. Against the order passed by the Joint Director of Education Petitioner Nos. 1 to 7 are aggrieved persons as they were also heard at the time of passing of the order and they were parties to the dispute before the Joint Director of Education. Hence, this writ petition is maintainable in so far as Petitioner Nos. 1 to 7 are concerned. They being aggrieved by the order passed by the Joint Director of Education have rightfully approached this Court against the same. The Petitioner No. 8 not being a party to the dispute before the Joint Director of Education may be deleted from the array of petitioners but this writ petition would still be maintainable on behalf of Petitioner Nos. 1 to 7.12. The counsel for the Respondent No. 4 although has tried but has been unable to demonstrate from the order impugned any finding recorded with regard to the deposit of membership fee through bank draft.
12. The counsel for the Respondent No. 4 although has tried but has been unable to demonstrate from the order impugned any finding recorded with regard to the deposit of membership fee through bank draft.
13. Admittedly, there is no finding in the order impugned regarding deposit of membership fee through a bank draft as required in the Scheme of Administration of the College concerned.
14. The order impugned having failed to consider the mandatory provisions of Scheme of Administration is, therefore, liable to be set aside on this ground alone and is set aside.
15. The matter is remanded to the Joint Director of Education, Saharanpur Region, Saharanpur to reconsider the submissions made on behalf of the petitioners with regard to the non deposit of membership fee through bank draft as is required for valid membership of the General Body of the Society concerned and return specific findings thereon.
16. The writ petition is allowed to this extent. Joint Director of Education, Saharanpur Region, Saharanpur shall decide the matter after giving proper opportunity of hearing to both the parties as expeditiously as possible say within two months from the date a certified copy of this order is produced before him.”
The Joint Director of Education in the impugned order has recorded a finding of fact based only on clause 4(3) of the scheme of administration of the Institution and has observed that the amount was validly deposited in the Punjab National Bank of the Institution. He has, however, also recorded a finding that in regard to the induction of 20 members in 2013, the amount was deposited by Bank Drafts on 12 August 2013 but with regard to induction of 25 members in 2015, the amount was deposited in cash in the account of the Institution between 4 July 2015 to 16 July 2015. The Joint Director of Education has also recorded a finding that the scheme of administration did not provide for deposit of this amount in the maintenance account of the Institution.
As noticed above, the Joint Director of Education was required to examine the relevant provisions of the scheme of administration including clauses 4, 7 and 17(5). Clause 4(3) deals with life members; clause 7 deals with the procedure for becoming members of the General Body; and Clause 17 (5) deals with the powers of the Treasurer.
The learned Judge, however, has dismissed the writ petition holding that it involved a factual dispute. The Joint Director of Education was required to decide the representation in the light of the directions contained in the judgment and order dated 8 May 2017 passed in Writ – C No. 13317 of 2017 but that has not been done. The matter is, therefore, was required to be remitted to the Joint Director of Education for passing a fresh order.
Thus, for all the reasons stated above, the judgment and order dated 21 November 2017 in Writ Petition No. 48133 of 2017 is set aside and the Joint Director of Education is directed to decide the matter strictly in accordance with the directions contained in the judgment dated 8 May 2017 in Writ – C No. 13317 of 2017 and the observations made in this Special Appeal. It is expected that the fresh order will be passed expeditiously and preferably within a period of two months after hearing the parties concerned.
The Special Appeal and the Writ Petition are, accordingly, allowed to the extent indicated above.
Order Date :- 28.2.2018 Akram (Dilip Gupta,J.) (Jayant Banerji,J.)