Court No. - 18
Case :- WRIT - C No. - 8813 of 2021 Petitioner :- Shipra Krishna Vista Residents Welfare Association Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sanjay Kumar Mishra Counsel for Respondent :- C.S.C.,Vineet Vikram
Hon'ble Ajay Bhanot,J.
Shri Arvind Kumar Shukla, learned counsel assisted by Shri Sanjay Kumar Mishra, learned counsel for the petitioner; Shri Vineet Vikram, learned counsel for the respondent no. 4 and the learned Standing Counsel for the State.
Shri Arvind Kumar Shukla, learned counsel assisted by Shri Sanjay Kumar Mishra, learned counsel for the petitioner contends that the elections were held in strict compliance of orders rendered by this Court in Writ C No. 6797 of 2020, Anita Mahapatra Vs. State of U.P. and others, on 27.02.2020. The operative portion of the order dated 27.02.2020 is extracted hereinunder:
"The argument advanced on behalf of the respondents is noticed only to be rejected outrightly. Once the elections are to be conducted to elect the office-bearers of the society, such elections will have to adhere to the democratic principles as holding of free and fair election is the bedrock of any valid election. The office of the government officials cannot be the place for holding of such elections. The holding of elections will, therefore, have to be at the premises of the society itself, and it is always open for the authorities to ask for necessary police/security protection, if it is so required.
The election programme since has already been issued, this Court would not like to interfere in the matter any further except to observe that the elections would be conducted in the office of the society itself. The Senior Superintendent of Police, Ghaziabad, shall depute an officer of the rank of SHO to remain present at the time of election so as to rule out any possibility of misadventure on part of anyone.
This order would be communicated by learned Standing to the SSP concerned today itself since the elections are scheduled to be held tomorrow. The Court is informed that petitioner has also filed her nomination and it would be open for her to contest the elections as per law. Any person aggrieved by the outcome of the election will have the remedy as would be available in law against it. Subject to the directions aforesaid, this petition is disposed off."
Evidently the elections which conducted on 28.02.2020 were in adherence to an election programme which was much prior to 27.02.2020. The prescribed authority was misdirected itself in law and erred in fact by finding that the election were held on 28.02.2020, one day after the judgement was rendered by this Court and without noticing the electoral college. The finding reflects non application of mind. No material particulars of outstanding dues of members found against the society are disclosed in the impugned order. Further the authority has violated principles of natural justice by not noticing individual members who had allegedly not paid their dues to the society.
It is informed that the office bearers could not function during part of their elected term after the impugned order was passed.
It is admitted that the elected committee had assumed office after election held on 28.02.2020. Thereafter they had continued to function without any impediments till 05.01.2021. The term of the elected committee of management is one year as per the bye laws.
With consent of Shri Arvind Kumar Shukla, learned counsel assisted by Shri Sanjay Kumar Mishra, learned counsel for the petitioner and Shri Vineet Vikram, learned counsel for the respondent no. 4, the following order is being passed:
I. The order dated 05.01.2021 passed by the Sub Divisional Magistrate/prescribed authority, Ghaziabad and the order dated 23.01.2021 passed by the Deputy Registrar, Firms, Societies and Chits, Meerut Division, Meerut, is set aside.
II. The committee shall only function for the remainder of the elected term.
III. The current committee of management shall hold the elections as per the bye laws and before its term expires.
IV. The committee of management shall hold a fresh election as per the bye laws.
The writ petition is allowed to the extent indicated above.
Order Date :- 27.9.2021 Dhananjai