JUDGMENT N.K. Mitra, C.J.
1. Special Appeal Nos. 450 and 451 of 1998 stem from the judgment and order dated 29.5.98 whereby the learned single Judge disposed of three connected writ petitions, namely. Writ Petition Nos. 39006 of 1997, 34336 of 1997 and 598 of 1998.
2. Challenge in Special Appeal No. 450 of 1998 is focussed on the Judgment in so far as it pertains to Civil Misc. Writ Petition No. 35336 of 1997, Committee of Management, Azamgarh Muslim Education Society. Azamgarh and another v. Asstt. Registrar, Firms. Societies and Chits. Azamgarh and others. While Special Appeal No. 451 of 1998 is directed against the self-same judgment of the learned single Judge in so far as it relates to Civil Misc. Writ Petition No. 39006 of 1997, Qamar Rashid Khan and others v. Vice-Chancellor Purvanchal University Jaunpur and others. Judgment rendered in Writ Petition No. 569 of 1998 has not been taken in challenge by means of any Special Appeal.
3. Stated briefly, the facts as bear upon the controversy involved in the two appeals [supra] are that the Azamgarh Muslim Educational Society, a Society registered under the provisions of the Societies Registration Act, 1860, is the progenitor of the two Institutions, namely, Shibli National Post Graduate College, Azamgarh, which ts affiliated to Purvanchal University and is governed by the U. P. State University Act, 1973, read with the First Statutes of the Gorakhpur University and Shibli National Inter College, Azamgarh, recognised as such under the provisions of the U. P. Intermediate Education Act, 1921. These institutions which have the status of minority institutions got mired in a dispute with respect to management but pursuant to the judgment of this Court dated 5.9.91, elections of the Committee of Management were conducted by the District Inspector of Schools, Azamgarh on the basis of the list of members appended to the said judgment which had been obtained by the Court from Asstt. Registrar. Firms. Societies and Chits during the pendency of the writ petition, decided bby judgment and order dated 5.9.1991. The Committee of Management so elected received recognition by the authorities concerned and it managed the affairs of the Institution through its three-year term. Before expiry of the term, the Vice-Chancellor, Purvanchal University passed order dated 19.9.1994 the text of which was that fresh election would be held under the supervision of District Inspector of Schools, Azamgarh, who could act as Election Officer. This order gave birth to Writ Petition Nos. 31760 of 1994 and 31763 of 1994 being filed by the Committee of Management thereby challenging the decision of the Vice-Chancellor, Purvanchal University. This Court, however, by its Judgment and order dated 28.4.1994, countenanced the aforestated directions given by the Vice-Chancellor. As a necessary sequel, fresh elections were held on 30.11.94 and the Committee of Management elected in the said election was granted recognition.
published In the newspaper 'Dainik Jagran' tn Its issue of 3.11.97 and 10.11.97. The Vice-Chancellor in his turn appointed a supervisor to supervise the election.
5. Four persons claiming themselves to be the members of the general body. Instituted Original Suit No. 227 of 1997 tn the civil court followed by a prayer for grant of temporary injunction restraining the authorities from proceeding with the election process. The civil Judge (Sr.
Division). Azamgarh by his order dated 15.11.97 rejected the application for temporary injunction but on the same day, the District Inspector of Schools. Azamgarh.
cancelled the election schedule which gave rise to Writ Petition No. 39006 of 1997 filed by Qamar Rashid Khan and four others challenging therein the order date 15.11.97 passed by the District Inspector of Schools. The learned single judge by his interim order dated 21.11.97 stayed operation of the order dated 15.11.97 passed by the District Inspector of Schools and directed that "the election may be held according to schedule but the result of the election will not be given effect until further orders in this writ petition." As a consequence of the aforestated order of the Court, the District Inspector of Schools issued fresh election schedule on 29.11.97 which was published in the newspaper 'Dainik Jagran' in its issue dated 14.12.97 in which both the rival factions, namely. Dr. Mohd. Anis Farooqt on one hand and Sheikh Masood Ibne Ahmad on the other, participated. The result of the election held under the supervision of Major Vishnu Bahadur Singh appointed as Supervisor by the Vice-
Chancellor, was declared on 14.12.97 in which Abu Saleh Ansari was elected as President and Qamar Rashid Khan as Secretary of the Management Committee.
Indisputably, the election was held on the basis of the list of members approved by the Asstt. Registrar vide order dated 7.10.97. It brooks no dispute that before the Asstt.
Registrar, one faction had submitted a list of 312 members while the other had submitted a list of 242 members over and above the 497 existing members but subsequently, an agreed list of 100 members was submitted before the Asstt. Registrar. Gorakhpur but the Asstt. Registrar said no to the addition of 100 additional members and approved only 497 members premised on the assumption that the 100 additional members were enrolled after the election schedule had been published. The learned single Judge quashed the order dated 7.10.97 holding that no time limit was prescribed for the purposes of enrolment of new members and hence enrolment of members even after the publication of election schedule would not be discounted and the election held by denying participation of 100 members "cannot be allowed to stand".
6. We have heard Sri Ashok Khare for the appellant and Sri V. K.
Shukla for the respondents. In the backdrop of the facts and circumstances of the case and upon regard being had to the submissions made across the bar. we feel pursuaded to the view that so far as Writ Petition No. 39006 of 97 and 569 of 98 are concerned, they have degenerated into being rendered otiose owing to efflux of time and the orders impugned therein, have had outrun their utility during the pendency of the writ petition, it is note-worthy that by order dated 15.11.97. the District Inspector of Schools had rescinded the election schedule notified by him vide order dated 29.10.97 the operation of which was stayed by the Court vide order dated 21.11.97 and as a sequel to the interim order passed by the Court, fresh election schedule was published pursuant to which election was held on 14.12.97. The order dated 15.11.97 has lost its efficacy qua the stay order dated 21.11.97 and also regard being had to the fact that the elections were subsequently held. The relief regarding quashing of the order dated 15.11.97 of the District Inspector of Schools prayed for in Civil Misc. Writ Petition No. 39006 of 1997 has been rendered infructuous with the order impugned therein having itself fallen into desuetude, Similarly. Writ Petition No. 598 of 98 filed by Sheikh Masood Ibne Ahmad challenging the order of the Vice-Chancellor dated 23.10.97 is also rendered otiose with the passage of time inasmuch as by order dated 23-10.97. the District Inspector of Schools had only been directed to proceed with the election. Since no interim order had been passed and election was subsequently held as stated hereinabove, the order dated 23.10.97 issued by the Vice Chancellor has outlived its utility and the writ petition challenging the said order too, has become infructuous.
7. The only controversy that survives consideration is whether the order dated 7.10.97 of the Asstt. Registrar thereby recognising 497 members of the general body in negation of the 100 additional members agreed to by both the factions, can be sustained and if not, what would be its repercussion upon the validity of election held on the basis of the list of members approved by the Asstt. Registrar by order dated 7.10.97. The learned single Judge has held as under :
"After considering the aforesaid contentions, I find that the Assistant Registrar, Firms. Chits and Societies has rejected the said membership on the sole ground that such enrolment was done after issuance of notice dated 21.8.1997 during the pendency of the dispute for the purpose of establishing monopoly on the verge of holding election. The law in this connection does not permit such consideration for the purpose of considering membership. There is no time bar prescribed for the purpose of enrolment of new members when election is scheduled. Moreover, in the earlier writ petitions relating to dispute of the present institution Court permitted enrolment immediately before the date of election. Factually also I find that the dispute relating to list of members was existing between the president and secretary of the committee and such dispute had been resolved at the stage the said membership dispute was considered. Therefore, at that stage on settlement of the dispute the Committee of Management took a resolution and there is no allegation of any illegality in the matter of enrolment. Therefore, ihe order of Asstt. Registrar cannot be upheld on the said presumed ground, particularly when there is no basis for imputing such a motive for the purpose of enrolment of new members and factually as I find that the dispute earlier existing in respect of membership was resolved by the Committee of Management, imputation of such a motive cannot be acceptable.
Such illegality can be challenged by the Committee of Management also and that the new members are not petitioners here is no ground for refusing relief.
As in the election held under the interim order passed in the connected writ petition, the said new members could not participate, the said election cannot be allowed to stand.
In view of the aforesaid, the impugned order dated 7.10.1997 is liable to be quashed to the extent it rejected enrolment of 100 new members and the list of members is modified including said 100 new members."
8. It has been, inter alia, urged by Sri Ashok Khare, learned counsel appearing for the appellant that even if the order dated 7.10.97 rejecting the enrolment of the agreed 100 additional members to the general body is held to be invalid, the election of the Committee of Management could not be quashed sans a finding that as a consequence of the order dated 7.10.97 of the Asstt. Registrar. the result of the election was materially affected ; that the learned single Judge was not justified in going into the validity of the election when it was the subject-matter of litigation in Civil Suit No. 227 of 97 ; and that the members of the General body who participated in the election could not turn round and challenge the validity of the election on the ground that 100 additional/new members to the General body duly enrolled, were illegally sheared off from the membership as a result of illegal order passed by the Asstt. Registrar. Firms. Societies and Chits. Sri V. K. Shukla learned counsel appearing for the respondents argued in similar vein stating the Asstt. Registrar. Firms. Societies and Chits was not justified in rejecting the consensual list of members and that the election held on the basis of the list of members approved by the Asstt. Registrar vide impugned order dated 7.10.1997 was tinged with illegality and invalidity. Upon a consideration of the submissions made across the Bar. we are of the considered view that in the absence of any time limit for enrolment of the members to General body, the Asstt. Registrar. Firms. Societies and Chits was not justified in rejecting the agreed list of 100 members merely on the premises that such members were enrolled after notification of the election schedule. It would have stood to reason if the Asstt. Registrar had rejected the list of 100 members on the ground that the members were enrolled after the last date of filing of the nomination papers. The learned single Judge was. therefore right in quashing the impugned order passed by the Asstt. Registrar dated 7.10.97 "to the extent it rejected enrolment of 100 new members" and was further justified in directing that "the list of members is modified Including said 100 new members."
9. However, we are of the view that every illegality and irregularity in the enrolment of members could not permeate the election of the Committee of Management with vitiation unless it is discovered that the result of the election was materially affected as a consequence of exclusion of 100 additional members from the list of members of the General body as a sequel to the order dated 7.10.97 of the Asstt. Registrar, Firms, Societies and Chits. The learned single Judge has not approached the matter with this angle in view. The validity of the election of the Committee of Management was not questioned by suitably amending the writ petition.
The result of the election was declared during the pendency of the writ petition and no steps seem to have been taken to seek amendment of the writ petition by adding a prayer for quashing the election and grounds in support thereof. The judgment and order of the learned single Judge in so far as it dwells upon the dispute in respect of the election of the Committee of Management is. therefore, unsustainable. The election of the Committee of Management was not liable to be quashed merely because "the said new members could not participate" in the election of the Committee of Management. In the absence of proper foundation being laid out in the writ petition as to whether the election was materially affected as a result of non-inclusion of the 100 new members in the list of members of the General body, the question, in our opinion, ought to have been left to be agitated in the civil suit instituted by some of the 100 new members who were denied membership as a result of the order dated 7.10.97 passed by the Asstt. Registrar although we are scarcely impressed and convinced by the submissions made by Sri Ashok Khare that the validity of the election due to non-inclusion of the 100 new members could be challenged only by persons who were illegally denied membership of the General body as a result of the order dated 7.10.97 passed by the Asstt. Registrar and not by those who participated in the election inasmuch as the election was held pursuant to the interim order passed by the Court subject of course to the final decision of the writ petition but the fact remains that the writ petitioner failed to suitably amend the writ petition so as to make out a case for interference by this Court with the election of the Committee of Management on the ground that it was materially affected due to non-participation of 100 new members. Consequently, the judgment of the learned single Judge in so far as it quashes the election, has to be set aside.
10. As a result of the foregoing discussions, the appeals succeed and are allowed in part. The Judgment of the learned single Judge is set aside in so far as it quashes the election of the Committee of Management, without prejudice to the rights of the affected parties to agitate the question regarding validity of the election of the Committee of Management as a result of non-Inclusion of 100 new members at appropriate forum including the Chancellor under Section 68 of the State University Act, 1973.