Allahabad High Court
Committee Of Management The Bansgaon ... vs State Of U.P. And 4 Others on 18 December, 2024
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:198183 Court No. - 32 Case :- WRIT - C No. - 42206 of 2024 Petitioner :- Committee Of Management The Bansgaon Anglo Vernacular Society And 2 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Prabhakar Awasthi,Satyawan Shahi Counsel for Respondent :- Awadh Behari Singh,C.S.C. Hon'ble Saral Srivastava,J.
1. Heard Sri Prabhakar Awasthi, learned counsel for the petitioners and Sri R.K.Ojha, learned Senior Counsel assisted by Sri A.B. Singh, learned counsel for the respondents.
2. The petitioners by means of the present writ petition have assailed the order dated 24.07.2024 passed by the Commissioner, Gorakhpur Region, Gorakhpur, respondent no.2.
3. Sri R.K. Ojha, learned Senior Counsel appearing on behalf of the respondents states that the respondents do not propose to file any counter affidavit and the writ petition may be decided at this stage.
4. Accordingly, with the consent of the learned counsel for the parties, the Court proceed to hear the matter finally.
5. A short contention has been advanced by the learned counsel for the petitioners that the Prescribed Authority while deciding the dispute under Section 25 (1) of the Societies Registration Act, 1860 (hereinafter referred to as the 'Act, 1860') which was referred to him by this Court by judgement dated 04.05.2017 in a bunch of Writ Petitions, leading of which was Writ-C No.27814 of 1998, recorded a categorical finding that Sanjay Singh, respondent no.5, is not a Patron Member of the Society, namely, Bansgaon Anglo Vernacular Society, District Gorakhpur, and accordingly, hedirected to hold the fresh election under Section 25 (2) of the Act, 1860.
6. It is submitted that the order of Prescribed Authority was assailed by the respondent no.5 in appeal under Section 25(1) (d) of the Societies Registration Act before the Commissioner in compliance of the judgement of this Court in Writ-C No.15917 of 2024. The Commissioner has erred in law in recording a finding that the Prescribed Authority had exceeded in its jurisdiction in deciding the membership while deciding the dispute under Section 25 (1) of the Act, 1860, to ascertain whether the Committee of Management has been elected by a valid Electoral College, inasmuch as the Prescribed Authority did have jurisdiction to find out whether the election has been conducted by valid Electoral College. Accordingly, it is submitted that the finding returned by the Commissioner that the Prescribed Authority did not have jurisdiction to enter into the validity of membership of Sanjay Singh is incorrect.
7. It is further submitted that the Commissioner has also erred in law in not recording any finding on the validity of membership of Sanjay Singh on the ground that the membership issue is not to be gone into in the said proceeding. In this respect, learned counsel for the petitioner has placed reliance upon the judgement of this Court in the case of 2012 (10) ADJ 708, Committee of Management, Gramya Vikas Uchattar Madhyamik Vidyalaya Samitee Khuthan, District Jaunpur & Another Vs. State of U.P. & Others & 2019 (1) UPLBEC 520 Committee of Management, Sri Vidur Sewa Ashram & Others Vs. State of U.P. & Others.
8. Per contra, Sri Ojha, learned Senior Counsel appearing for the respondents would contend that it is evident from Clause (7) of the bye-laws of the Society on which reliance has also been placed by the learned counsel for the petitioner that Sanjay Singh became the patron member of the Society by depositing Rs.25/-, and therefore, in view of Clause (7) of the bye-laws, even as per the bye-laws Sanjay Singh was the patron member of the Society, and in such view of the fact, the Commissioner has not erred in law in passing the impugned order.
9. He submits that the Prescribed Authority did not have any jurisdiction to enter into validity of membership.In this respect, he has placed reliance upon the judgement of this Court passed in Misc. Single No.2203 of 2015 dated 18.04.2016. He further submits that the finding returned by the Commissioner is a finding of fact and does not call for any interference by this Court under Article 226 of the Constitution of India.
10. I have considered the rival submissions advanced by the learned counsel for petitioners and learned counsel for the respondents.
11. The Prescribed Authority in its order dated 18.04.2024 returned a categorical finding that Sanjay Singh, respondent no.5, is not a member of the Society. The matter has been carried in Appeal under Section 25(1) (d) of the Act, 1860 by the respondent no.5 and the Commissioner records categorical finding that the Prescribed Authority has acted beyond its jurisdiction in returning the finding about the validity of membership of Sanjay Singh, respondent no.5.
12. It further records a finding that since the Prescribed Authority did not have jurisdiction to record a finding about the membership of Sanjay Singh, therefore, it would not be appropriate in the present case to assess the evidence led by the respective parties with respect to membership of Sanjay Singh. On this pretext, he did not record any finding on the validity of membership of Sanjay Singh.
13. This Court in the case of 2012 (10) ADJ 708, Committee of Management, Gramya Vikas Uchattar Madhyamik Vidyalaya Samitee Khuthan, District Jaunpur & Another Vs. State of U.P. & Others has categorically held in paragraph no.12 that the Prescribed Authority in order to ascertain as to whether Managing Committee is legally constituted, can examine the Electoral College of the Society. Paragraph no.12 of the said judgement is reproduced herein-below:-
"12. In order to appreciate this controversy, prescribed authority in exercise of power under Section 25(1) of the Act of 1860 adjudicating the dispute relating to validity of election has power to ascertain actual number of members to the general body entitled to participate in such election. What the act provides is that in order to find out which is legally constituted managing committee it is necessary to examine that the said committee has been constituted by the legally authorised electoral college. It will have to examine the manner in which voters have been admitted in accordance with the rules and regulation and have paid subscription. While determining the dispute actual strength of the electoral college has to be examined in the context of the rules and bye-laws. If there is no error in certifying the electoral college under the scheme of the Act Prescribed Authority cannot hold a view contrary to that by overlooking this aspect. It is the Assistant Registrar who while exercising power under Section 25 (2) of the Act of 1860 in allowing the election process has power to examine the correctness of the electoral college. This is so because he is required to conduct the election and by implication he has duty cast upon to certify the electoral college on the basis of which election has been held. Prescribed authority's power is only to examine the legality of election and continuance of office bearers which also requires as to whether they have been elected by legally constituted electoral college. If he finds that the said election has not been conducted by legally constituted electoral college he can set aside the election based on such electoral college. Prescribed Authority cannot affirm the electoral college which has not been legally constituted."
14. In the case reported in 2019 (1) UPLBEC 520 Committee of Management, Sri Vidur Sewa Ashram & Others Vs. State of U.P. & Others, in paragraph no.45 of the judgement, this Court held that the Prescribed Authority has jurisdiction to come to its conclusion as regards the strength of General Body of the Society. The paragraph no.45 of the judgement is reproduced herein-below:-
"45.In view of the reasons recorded above, it is held that the Prescribed Authority while dealing with a reference application has to first consider, as a collateral fact, whether the petition is by one-fourth of the members of the society or not. While dealing with such issue, it has jurisdiction to come to its own conclusion as regards the strength of the general body. But finding on such jurisdictional fact is not only subject to a civil suit but is also amenable to scrutiny in writ jurisdiction inasmuch as a tribunal of limited jurisdiction by a wrong decision on a collateral fact affecting its jurisdiction cannot confer on to itself jurisdiction to enter the merits of the dispute."
15. In view of the law laid down in the aforesaid judgements, the law is no more res-integra that the Prescribed Authority has jurisdiction to ascertain the validity of Electoral College to find out whether the Committee of Management is validly constituted or not.
16. So far as the judgement relied upon by the learned Senior Counsel appearing for the respondents in Msc. Single No.2203 of 2015 dated 18.04.2016 is concerned, the finding returned by this Court in the said judgement, reproduced herein-below, is returned in the facts of that case, and therefore, is not a binding precedent:-
"After going through the order of High Court, this Court is of the considered opinion that the prescribed authority did have the power to accept the petition on behalf of one Ram Awadh. So far cancellation of election is concerned the power definitely vests with the Prescribed Authority. But at the same time, the Prescribed Authority did not have any power to declare the list issued by Deputy Registrar dated 15.7.2011 as valid. Simultaneously he did not have the power to say that the list of 42 member is valid. It has also come to the knowledge of this Court that the society has become time barred. The elections are definitely due but there is a dispute of membership."
17. In view of the aforesaid facts, this Court is of the view that the Commissioner has committed manifest illegality in recording a finding that the Prescribed Authority did not have jurisdiction to enter into the validity of the membership of the Society, and further in recording a finding that he is not inclined to appreciate the evidence led by the parties with regard to membership of Sanjay Singh.
18. Since, the respondents have submitted that they do not propose to file any counter affidavit, therefore, the averments contained in the writ petition are treated to be true in the absence of any counter affidavit.
19. Thus, for the reasons given above, the impugned order dated 20.07.2024 passed by the Commissioner cannot be sustained in law and is accordingly set aside. The matter is remitted to the Commissioner to decide the dispute afresh including the membership of Sanjay Singh expeditiously preferably within a period of three months from the date of production of a certified copy of this order strictly in accordance with law.
20. Consequently, the writ petition stands allowed with no order as to costs.
Order Date :- 18.12.2024 NS