Hon'ble Vedpal, J.
(Delivered by Hon'ble Pradeep Kant, J.) These are two special appeals, which have been heard together. Though they arise out of two different orders passed by the learned Single Judge, but the order challenged in Special Appeal No. 918 of 2009 being dependent upon the order passed in Special Appeal No. 919 of 2009, both the appeals are being disposed of by a common order.
Special Appeal No.919 of 2009 challenges the order dated 1.12.2009, passed by the learned Single Judge in writ petition no. 4739 of 2008 (M/S), by means of which he has set aside the order passed by the prescribed authority (Sub Divisional Officer, Kunda, District Pratapgarh) dated 29.7.2008 recognizing 21 members of the general body of the society on the basis of a compromise, while in Special Appeal No. 918 of 2009, the order dated 1.12.2009, passed by the learned Single Judge is under challenge, by means of which he has allowed the writ petition bearing no. 3369 of 2009 (M/S) and has set aside the order verifying the signature of Satish Kumar Sharma as elected manager of the institution. In this writ petition, a further relief was claimed for getting the election held afresh.
A preliminary objection has been raised by the learned counsel for the respondents that special appeal no. 919 of 2009 against the order passed by the learned Single Judge in the writ petition preferred against the order passed by the prescribed authority under the Societies Registration Act is not maintainable under Chapter VIII Rule 5 of the Rules of the Court.
In response, learned counsel for the appellants has submitted that this is a case where the order passed by the prescribed authority shows that it decided a dispute regarding membership of the society, which the learned Single Judge has found that it was not within his competence and jurisdiction; therefore, the special appeals would lie against such an order passed by the learned Single Judge.
Further argument of the appellants' counsel is that since the present respondent Salil Kumar Srivastava was already recognized as valid member of the society by the prescribed authority, he had no occasion to challenge the order passed by the prescribed authority by filing a writ, as he was not an aggrieved person.
Learned counsel for the respondents, in reply, submitted that once the order passed by the prescribed authority recognizing 21 members as valid members was found to be bad in law and was quashed, the elections held on the basis of the said list would become a nullity and actions taken in pursuance of the said election could not be sustained; therefore, the learned Single Judge has rightly set aside the impugned orders.
Arguments have been advanced at great length. The appellants have urged that the view taken by the learned Single Judge that no compromise could have been entered into between the parties for deciding the dispute of membership, is per se incorrect and that if the facts revealed that these members were duly enrolled, then there was nothing wrong in entering into a compromise for getting 21 valid members declared as recognized members. The argument is that unless a finding was recorded that the enrolled members could not be included in the list, the compromise could not be said to be invalid.
Learned counsel for the appellants has also submitted that once the order dated 12.5.2009 passed by the Assistant Registrar was challenged by making an amendment application in writ petition no. 4739 of 2008 (M/B), the learned Single Judge ought to have decided the said plea and in any case, the special appeal would lie against the order so passed by the learned Single Judge even if he has not addressed on the aforesaid order of the Assistant Registrar.
It has also been argued that the Assistant Registrar after hearing the respondent Salil Kumar Srivastava and others, in his order dated 12.5.2009, referred to above, recorded a finding that the list of members which was given by Salil Kumar Srivastava in 1995 was fictitious, designed and fabricated. Relying upon the aforesaid observation, learned counsel for the appellants submitted that it is a clear case of fraud, therefore, the appeal would be maintainable. In support of his plea, the learned counsel has placed reliance upon the case of Ram Chandra Singh versus Savtri Devi and others, (2003) 8 SCC 319, where an application in a partition suit was filed by an affected third party challenging the preliminary decree on the ground of having been obtained by practising fraud.
Here, it would also be pertinent to mention that a writ petition bearing no. 1098 of 2009 (M/S) filed by Salil Kumar Srivastava as Manager of the Committee of management was dismissed and the D.I.O.S was directed to hold the election. The Assistant Registrar, by his order dated 12.5.2009, declared electoral college of 21 members. The said order of the Assistant Registrar was challenged in writ petition no. 4739 of 2009 (M/S) by way of amendment, moved by the petitioner respondent, praying that the order passed by the Assistant Registrar dated 12.5.2009 be quashed and, therefore, it has been urged by the appellants, that it was obligatory upon the learned Single Judge to address himself on the aforesaid order passed by the Assistant Registrar, against which order the special appeal would be maintainable.
In response, it has been submitted by the respondents that the finding of fraud is not correct. The said judgment is of no relevance, for the reason that the order passed by the prescribed authority itself says that the order passed in the said matter shall be subject to the final orders passed in Writ Petition No. 4739 of 2008 (M/S) (wrongly mentioned as Writ Petition No. 8589 of 2008 (M/S). It has further been submitted that this order recognizes only those 21 members who were recognized under compromise by the prescribed authority, therefore, also this order cannot be taken to be in force any more.
Learned counsel for the respondents also submitted that though the amendment was made in Writ Petition No. 4739 of 2008 (M/S), but the learned Single Judge did not address himself on the aforesaid issue in view of the fact that the determination of membership made by the prescribed authority was without jurisdiction. The said order of the Assistant Registrar, which only recognizes the same very 21 members as duly enrolled members of electoral college, can neither be sustained nor was of any significance, particularly when the aforesaid order itself says that the decision rendered shall be subject to final orders passed in Writ Petition No. 4739 of 2008 (M/S). The submission is that the said writ petition having been allowed by the learned Single Judge and the order of the prescribed authority having been quashed, the aforesaid order passed by the Assistant Registrar on 12.5.2009 automatically falls to the ground as it was dependent upon the outcome of the writ petition no. 4739 of 2008 (M/S).
Learned respondents' counsel has justified the order passed by the learned Single Judge. His submission is that the order passed by the learned Single Judge is not amenable to jurisdiction of special appeal under Chapter VIII Rule 5 of the Rules of the Court, for the reason that it arises out of an order passed by the prescribed authority appointed under Section 25(1) of the Societies Registration Act, 1860.
Learned counsel for the appellants has relied upon the case of Smt. Sabuna Devi versus Jhinkan and others, 2008 (26) LCD 1038, where a Division Bench of this Court held that special appeal against ex parte order of injunction passed by Single Judge while finally disposing of writ petition, without issuing notice to the respondents, was maintainable. In the said case, the grievance of the appellant was that though the relief was asked for against her in the writ petition in a matter where a suit for permanent injunction was filed by the respondents no. 1 to 3 in which they had moved an application for temporary injunction, wherein temporary injunction was not granted and further date was fixed but the learned Single Judge even without issuing any notice to the appellant and without affording opportunity of hearing, not only finally disposed of the writ petition but also granted interim injunction which otherwise was not granted to the respondents by the trial court. The Division Bench found that the nature of construction was not the subject-matter of consideration in the special appeal. It had to be looked into by the trial court, if any such plea was raised. The Division Bench was of the view that in case order is to be passed, restraining the appellant from raising construction or for that matter any adverse order is to be passed in a writ petition or in any proceeding in the High Court, the writ petition cannot be disposed of finally without issuing notice to the affected party. In such a situation, it is always open to the Court to issue notice to the concerned party and pass ex parte interim order, if satisfied and if such a case is made out and if the parties are served and petition is ripe for hearing, the petition can be disposed of, but without issuing notice to the affected private party, the petition cannot be disposed of finally giving direction against the interest of such party.
Instant is not a case wherein the order has been passed ex parte by the learned Single Judge. The committee of management was impleaded as one of the respondents (in Writ Petition No.4739 of 2008(M/S), therefore, the aforesaid judgment is not of any assistance to the appellants.
Learned counsel for the appellants has next relied upon the case of Mohd. Raza Khan versus Anis Ahmad Khan and another, 2005 (23) LCD 865. Again it was a case where special appeal was found to be maintainable against the order passed by the learned Single Judge granting interim relief in writ petition challenging the order passed in miscellaneous civil appeal arising out of a civil suit, after holding that the impugned order was passed without jurisdiction. In the instant case, it cannot be said that the impugned order was passed by the learned Single Judge without notice to the party before him or that it was a frivolous litigation, or the order impugned is without jurisdiction.
Union of India and others versus Ashish Kumar Bala, 2007 (25) LCD 1729 is again a judgment of a Division Bench of this Court, wherein it has been held that the judgment of the Single Judge rendered with respect to matter enumerated in the Union List would be amenable to Special Appeal.
In the case of Ashok K. Jha and others versus Garden Silk Mills Limited and another, (2009) 10 SCC 584, the Apex Court held that if the judgment falls squarely within four corners of Article 227, intra-court appeal from such judgment would not be maintainable. On the other hand, if the petitioner has invoked the jurisdiction of the High Court for issuance of certain writ under Article 226, although Article 227 is also mentioned, and principally the judgment appealed against falls under Article 226, the appeal would be maintainable. What is important to be ascertained is the true nature of the order passed by the Single Judge and not what provision he mentions while exercising such powers. A statement by a Single Judge that he has exercised power under Article 227, cannot take away right of appeal against such judgment if the power is otherwise found to have been exercised under Article 226. The vital factor for determination of maintainability of intra-court appeal is the nature of jurisdiction invoked by the party and the true nature of the principal order passed by the Single Judge.
The above judgment is based on the proposition regarding the nature of the order passed by the learned Single Judge and consequently to find out whether the special appeal would be maintainable or not, whereas in the instant case, there is no dispute that the order was passed by the learned Single Judge in supervisory jurisdiction in a matter arising out of the order passed by the prescribed authority. Therefore, the special appeal would not be maintainable.
On the other hand, the respondents have relied upon the case of Jai Prakash Agarwal versus Prescribed Authority (Sub-Divisional Magistrate), Sadar, District Deoria and others, (1999) 1 UPLBEC 697, wherein a Division Bench of this Court held that special appeal against the order passed by the prescribed authority would not be maintainable. The Division Bench in that case held that if the order has been passed by the learned Single Judge in a writ petition under Article 226 filed against any judgment, order or award of tribunal, Court or statutory arbitrator, Special Appeal shall not be filed. Thus, for deciding the preliminary objection raised on behalf of respondents, it is necessary to determine whether the Prescribed Authority is tribunal, Court or statutory arbitrator. The Court further held that the Prescribed Authority under Section 25 of the Act as applicable in Uttar Pradesh, is a tribunal and if the order passed by the Prescribed Authority is challenged in a writ petition under Article 226 of the Constitution, the Special Appeal under Rule 5 of Chapter VIII of the Rules of the Court will not lie against the order of the learned Single Judge passed in such a writ petition.
In yet another case of Committee of Management of National Integrated Medical Association and others versus State of U.P and others, 2009 (2) ALJ 164, a Division Bench of this Court found that against such an order, by which no issue was decided nor the valuable rights of parties were adversely affected, appeal under Chapter VIII Rule 5 of the Rules of the Court would not be maintainable. In that case, order passed by Single Judge in the writ petition was an order in which only notices were issued and case was directed to be listed after six weeks. In para 5 of the aforesaid judgment, after taking note of the case of Mohd. Tabib Khan versus State of U.P and others, 2008 (1) ALJ 455 held that "In the present case, the writ petition filed by the petitioners-appellants was against an order of the Prescribed Authority. The special appeal arising out of such a writ petition is clearly barred under Chapter VIII Rule 5 of the Rules of the Court." The second ground was that against the order issuing notices, the special appeal would not lie.
Learned counsel for the appellants, in support of his contention, also urged that the writ petition itself was not maintainable on behalf of one of the members, as it was only the committee of management who, if aggrieved, could come to the Court against the order passed by the prescribed authority, and for which he relied upon the case of Dr. P.P.Rastogi and others versus Meerut University, Meerut and another, (1997) 1 UPLBEC 415. The aforesaid case was a review petition filed by a member of the committee of management, which was dismissed on the ground that he has no locus standi to come to the Court. The aforesaid judgment, therefore, would not be of any assistance to the appellants for holding the special appeal as maintainable, more so when the learned Single Judge has not decided any issue in favour of the private respondent but has only given an opportunity of hearing to him when the matter is to be reconsidered by the concerned authority as per the directives issued by the learned Single Judge.
The plea of the appellants that the issue regarding fabrication of list of members by Salil Kumar Srivastava and declaring 21 members as valid members has not been considered by the learned Single Judge, would also not make the appeal maintainable for the reason that the said order of the prescribed authority itself provided that the same would abide by the final orders passed in Writ Petition No. 4739 of 2008 (M/S).
It is true that fraud vitiates all solemn proceedings but in the instant case, the question regarding fraud has not been considered and what has been considered is that the prescribed authority's order dated 29.8.2008 was per se illegal as he was having no authority to adjudicate upon the issue of membership of society.
Since the said writ petition has been allowed, the list of 21 members as determined by the prescribed authority has been set aside, there was no necessity to adjudge the merit of the order passed by the Assistant Registrar dated 12.5.2009, by means of which he had again recognized the same very 21 members, though apparently by giving his own reasons, but finally mentioning that the order will abide the result of Writ Petition No. 4739 of 2008 (M/S).
Another argument has been raised that after the order passed by the prescribed authority, the elections were held and, therefore, the only remedy was to challenge the election. In support of this plea, the appellants relied upon the case of Rajesh Sharma versus State of U.P and others, (2006) 2 UPLBEC 1872. This plea could have been raised before the learned Single Judge, if at all it was available to the appellants. But in any case whether it was raised or not, that would not make the appeal maintainable as the order passed by the prescribed authority has been set aside by the learned Single Judge, holding that the dispute regarding validity of the membership of the society concerned can be adjudicated by the Registrar/Assistant Register, but not by the prescribed authority.
In view of discussion held above and the various judgments pronounced by this Court, some of which have been referred to above, we come to the definite conclusion that special appeal against the order passed by the learned Single Judge in Writ Petition No. 4739 of 2008 (M/S) would not be maintainable.
We thus hold that the special appeal no. 919 of 2009 is not maintainable and is hereby dismissed.
As against the objection raised by the respondents with regard to the maintainability of Special Appeal No. 918 of 2009, the counsel for the appellants has argued that it is not a case where the order was passed by the Tribunal referring the matter to the prescribed authority, but signatures of Salil Kumar Srivastava were attested and verified as manager of the institution by the educational authority, therefore, special appeal would be maintainable. He further submits that a perusal of the order passed by the learned Single Judge shows that he has not entered into the validity of election nor on the merits of the order of verification of the signatures of Salil Kumar Srivastava, but merely because list of members which was found to be valid by the prescribed authority, has been set aside, therefore, the order impugned in the writ petition has also been quashed, which per se is illegal.
In regard to the maintainability of special appeal no. 918 of 2009, suffice would be to mention that this special appeal would be maintainable for the reason that it was the order passed by the D.I.O.S. Pratapgarh verifying the signatures of Salil Kumar Srivastava, which was the subject-matter of challenge in writ jurisdiction. But even if we accept the plea of the appellants that once the elections have been held, the appropriate remedy was to challenge the elections where the validity of members/office bearers could have been seen and that the learned Single Judge ought to have considered the said plea in the writ petition, still the appellants will not be entitled to maintain the special appeal for the reason that the learned Single Judge, vide his order dated 1.12.2009 passed in Writ Petition No. 4739 of 2008 (M/S), has set aside the order passed by the prescribed authority, consequence of which is that the list of members finalised by the prescribed authority stands set aside, therefore, this Court cannot issue any direction for continuation of the elected committee of management, the validity of whose members/office-bearers is yet to be decided.
Since the learned Single Judge has found that the membership dispute was wrongly/illegally decided by the prescribed authority and the matter has been remitted to the concerned authority for deciding the said issue in accordance with law, there in fact was no valid electoral college, who could have held the elections. Since the election could not be held on the basis of said list of members, which could not stand the test of judicial review, any election held or order passed on the basis of said election by the D.I.O.S was per se illegal and has rightly been set aside.
For the reasons aforesaid, special appeal no. 918 of 2009 also lacks merit and is hereby dismissed.
June 22, 2011 LN/- Judgment is pronounced under Chapter VII Rule 1(2) of the Allahabad High Court Rules, 1952.
June 22, 2011