Allahabad High Court
Shri Arya Mahila Hitkarini Maha ... vs Asstt. Registrar Firms, Societies And ... on 23 November, 2004
Equivalent citations: 2005(1)AWC11, 2005(1)ESC15
JUDGMENT Arun Tandan, J.
1. Heard Shri Ashok Khare, senior advocate, assisted by Sri S.C. Shukla advocate, on behalf of petitioners, standing counsel on behalf of respondent Nos. 1 and 2 and Sri Gajendra Pratap advocate on behalf of respondent No. 3.
2. Shri Arya Mahila Hitkarini Maha Parishad, Lahurabir, Varanasi, is a duly registered society under the Societies Registration Act, 1860 (hereinafter referred to as the Act). The said society is run and managed in accordance with the registered byelaws of the society which also lay down the procedure for election of its office bearers. On the basis of rival elections held in the year 1992 two lists of office bearers were submitted before the Assistant Registrar for being registered under Section 4 of the Act ; one headed by Smt. Aarti Mukherjee as General Secretary and the other headed by Sri Shri Krishna Tiwari. The Assistant Registrar in exercise of powers under Section 25 (1) of the Act referred the said dispute of rival elections for adjudication to the prescribed authority vide order dated 20/21.12.1994. During the pendency of the aforesaid dispute fresh election proceedings were initiated by the petitioner. However, the prescribed authority issued an order dated 31.01.1995 he restrained the holding of fresh elections.
3. Feeling aggrieved by the aforesaid order the office bearers of the society through Sri Pandit Manaupal Lal Goswami filed Writ Petition No. 15105 of 1995 and this Court on 23.5.1995 granted interim order whereby the operation of the order dated 12.5.1995 passed by the prescribed authority referred to above was stayed. According to the petitioners as a consequence to the aforesaid interim order fresh proceedings for electing the office bearers of the society took place on 19.6.1995. On 19.6.1995 itself this Court passed an order in Writ Petition No. 16471 of 1995 filed by respondent No. 3, Sri Shri Krishna Tiwari, whereby parties were restrained from holding any fresh elections of the office bearers of the society. In paras 38 and 39 of the writ petition it has been admitted that because of the interim order referred to above the election proceedings initiated by the petitioners on 19.6.1995 could not be completed and the election of the office bearers of the society could not take place. As such according to the petitioners the office bearers elected in the year 1992 continued to function.
4. Writ Petition No. 16471 of 1995 was dismissed by this Court vide judgment and order dated 26.9.2001 with the remark that the same had become infructuous by eflux of time. Writ Petition No. 15105 of 1995 was dismissed as infructuous by this Court vide order dated 16.5.2002, the operative portion whereof is reproduced below :
"The dispute relates to the election dated 25.2.1992. The term of the committee of management is 3 years. No effective relief could be given to the petitioner after expiry of term of the committee of management.
The writ petition has become infructuous.
The writ petition is dismissed as infructuous.
No order as to cost.
Interim order passed by this Court on 26.5.1995 is vacated.
This order will not affect rights of the parties to raise any future dispute before the appropriate forum at appropriate stage."
5. According to the petitioners they moved an application on 3.4.2002 for recall of the order dated 26.9.2001. In the meantime the petitioners issued another agenda dated 16.2.2002 for holding fresh elections of the committee of management. According to the petitioners fresh elections for electing the office bearers of All India Sanrakshak Sabha and also members of All India Council took place on 11.3.2002 and on 25.3.2002, the office bearers of All India Council as also 2/3rd members of the Executive Committee of the Association were elected. Proceedings for co-option of the members took place on 26.3.2002. The entire proceedings of election were transmitted to the Assistant Registrar with the list of office bearers for registration under Section 4 of the Act.
6. The list of office bearers so elected was registered under Section 4 of the Societies Registration Act, 1860 by the Registrar on 13.9.2002 dispute objection of respondent No. 3. Against the said order of the Assistant Registrar dated 13.9.2002 the respondent No. 3 filed Writ Petition No. 50188 of 2002. This Court by means of judgment and order dated 26.11.2002 allowed the writ petition and remanded the matter for fresh consideration to the Assistant Registrar. On remand the Assistant Registrar again rejected the objections filed by the respondent No. 3 vide order dated 20.2.2003. The respondent No. 3 filed another Writ Petition No. 14246 of 2003 against the order dated 20.2.2003. The said writ petition was finally allowed by this Court vide judgment and order dated 5.3.2004 and the matter was remanded to the Assistant Registrar for fresh consideration in the light of the observations made in the judgment of this Court. On remand the Assistant Registrar has passed the order dated 28.8.2004 wherein he has held that fresh elections of the committee of management are to be held under Section 25 (2) of the Societies Registration Act by the Registrar/Assistant Registrar. The order passed by the Assistant Registrar dated 28.8.2004 is under challenge in the present writ petition.
7. The Assistant Registrar in the impugned order has held that the earlier order passed by the prescribed authority dated 12.5.1995 has come in force in view of the dismissal of Writ Petition No. 15105 of 1995 as it has not been quashed by any court of law therefore the term of the committee of management has expired and fresh elections could only be held under Section 25 (2) of the Act by the Registrar/Assistant Registrar and appropriate directions have been issued accordingly.
8. On behalf of the petitioner it is contended that the finding recorded in the impugned order to the effect that the order dated 12.5.1995 has become operative even today is bad inasmuch as the writ petition filed against the said order, namely Writ Petition No. 15105 of 1995 has been dismissed having become infructuous by eflux of time and the Hon'ble Supreme Court in the judgment in the case of Dharam Dutt and Ors. v. UOI and Ors., (2004) 1 SCC 712 has held that when a writ petition is dismissed as having been rendered infructuous it is to be deemed to have been disposed of without any adjudication on merit and such an order has the effect of leaving the matter at large. Further the petitioner has prayed for quashing of the order dated 12.5.1995 again in the present writ petition also inasmuch as under the order dated 26.9.2001 of this Court the right of the parties to raise any future dispute before the appropriate forum was not affected. Therefore, even if the writ petition filed by the petitioner has been dismissed as infructuous this Court may again look into the legality and validity of the order passed by the prescribed authority, dated 12.5.1995.
9. On behalf of the respondents it is contended that admittedly the elections of the committee of management had not been held subsequent to the year 1992 till the year 2002 as admitted to the petitioners. In view of the law laid down by this Court in the judgment in Sewa Samiti Allahabad and Anr. v. Assistant Registrar Firms, Societies and Chits, Allahabad and Anr., 2002 (1) AWC 771 : 2002 (46) ALR 681 ; Committee of Management Adarsh Shiksha Niketan Renukoot and Anr. v. Assistant Registrar Firms, Societies and Chits, Varanasi and Ors., 2000 (2) ACJ 1083 and U. P. Olympic Association and Anr. v. Registrar Firms, Societies and Chits and Ors., 1983 UPLBEC 91 and also in view of the judgment in 2000 (2) ESC 870, the outgoing committee of management has no authority of law to hold elections, after the term of earlier committee of management has expired, and in such circumstances it is only the Assistant Registrar who can hold the elections under Section 25 (2) of the Act. It is further contended that once the Writ Petition No. 15105 of 1995 filed by the present petitioner against the order dated 12.5.1995 has been dismissed by this Court as infructuous, as a necessary corollary the order dated 12.5.1995 revives and in such circumstances it is only the Assistant Registrar who can hold fresh elections of the committee of management in view of the order of prescribed authority dated 12.5.1995. In support of the said contention the respondents have placed reliance upon the Division Bench judgment of this Court in Committee of Management Sukhpura Inter College, Ballia v. Alleged Committee of Management Sukhpura Inter College, Ballia and Ors., 1987 AWC (Supp) 592.
10. I have heard counsel for the parties and have gone through the records. For the purposes of appreciating the controversy raised by the parties it would be necessary to refer to the order of the prescribed authority passed under Section 25 (1) of the Act dated 12.5.1995, the operative portion whereof is being quoted herein below :
^^vkns'k vr% eSaa ts- ih- flag mi&ftykf/kdkjh okjk.klh n-@fu;r izkf/kdkjh bl fu"d"kZ ij igw¡pk gw¡ fd bl lanfHkZr izdj.k esa vc fdlh Hkh izdkj ds gLr{ksi dh vko';drk ugha gS A vc pw¡fd bl laLFkk ds dk;Zdkfj.kh dk dk;Zdky fnukad 25-2-1962 dks lEkkIr gks x;k gS blfy, lgk;d fucU/kd lkslk;Vh bl laLFkk ds LohÑr ckbykt ds vk/kkj ij l{ke izkf/kdkjh dh ns[kjs[k esa bl 'krZ ds lkFk pquko djkosa fd laLFkk LohÑr ckbykt dh /kkjk&7 dk mYya?ku u gks A rnuqlkj i=koyh fu.khZr le>h tk, A bldh izfr ds lkFk lgk;d fucU/kd dh i=koyh okil dj nh tk, A &&&&&&&&dks i=koyh vfHkys[kkxkj esa laxzghr gksos A** Reference may also be had to the final judgment dated 16.5.2002 which has been passed by this Court in Writ Petition No. 15105 of 1995 filed by the present petitioner against the aforesaid order of the prescribed authority:
"The dispute relates to the election dated 25.2.1992.
The, term of the committee of management is 3 years.
No effective relief could be given to the petitioner after expiry of term of the committee of management. The writ petition has become infructuous.
The writ petition is dismissed as infructuous. No order as to cost. Interim order passed by this Court on 26.5.1995 is vacated. This order will not affect rights of the parties to raise any future dispute before the appropriate forum at appropriate stage."
11. From the records it is apparently clear that earlier Writ Petition No. 15105 of 1995 was dismissed as infructuous on 25.9.2001 and the said order was recalled by this Court on 3.4.2002. During the period between 26.9.2001 to 3.4.2002 the Writ Petition No. 15105 of 1995 stood dismissed. Thus during this period the petitioner claims to have initiated the proceedings for holding elections of the office bearers of the society. To be precise between 11.3.2002 and 26.3.2002 (reference to paras 43 to 47 of the writ petition).
12. From the record it is apparent that Writ Petition No. 15105 of 1995 was again dismissed as infructuous by this Court on 16.5.2002. Thus, from the record it is established that the petitioner had not held any elections subsequent to the year 1992 and it is only during the period when the Writ Petition No. 15105 of 1995 stood dismissed that fresh elections of the year 2002 are said to, have been conducted by the petitioner.
13. In any view of the matter once Writ Petition No. 15105 of 1995 has been dismissed as infructuous as a necessary corollary it means that this Court had not interfered with the order of the prescribed authority dated 12.5.1995 and the said order stood revived and fresh elections for electing the office bearers of the society could be held by the Assistant Registrar in accordance with the said order of the prescribed authority dated 12.5.1995 only. Legal position in that regard has been explained by a Division Bench of this Court in the judgment in Committee of Management Sukhpura Inter College Ballia v. Alleged Committee of Management Sukhpura Inter College Ballia and Ors., 1987 AWC (Supp) 592, the relevant paragraphs 4 and 10 whereof are as follows :
"4. From the discussions made in the impugned judgment, it is clear that the reason, which weighed with the learned single Judge to hold that both the elections held on 8.2.1992 and 5.2.1995, were invalid, was that on the dismissal of Writ Petition No. 2375 of 1993 as infructuous on 15.11.1991, the order of the Joint Director of Education holding the election held on 22.8.1981 as invalid revived and in absence of any subsequent order of the competent authority or Court to the contrary, the committee of management elected on 22.8.1981 was invalid and, therefore, the said committee had no authority to hold a fresh election. It follows as a consequence that the election said to have been held on 8.2.1992 by the committee of management which was held to be invalid, was also invalid and applying the same principle the further election held on 5.2.1995 by the committee of management said to have been elected on 8.2.1992, was also invalid. The correctness of the judgment is under challenge in this appeal."
"10. Testing the case in hand on the touchstone of the well accepted principles laid down in the aforementioned decided cases, the position that emerges is that after the dismissal of Writ Petition No. 2375 of 1983 on 15.11.1991 as infructuous, the fresh election was to be held only by a Prabandh Sanchalak appointed by the Deputy Director of Education of the concerned region. The committee of management whose election had been declared to be illegal and invalid by the Joint Director of Education and whose term of office had come to an end, had no authority to hold such election."
14. So far as the judgment of the Hon'ble Supreme Court relied upon by the petitioner in the case of Dharam Dutt (supra) is concerned the law laid down by the Supreme Court with regard to the consequences that follow on the dismissal of the writ petition as having become infructuous, have been mentioned in paragraph 69 of the said judgment, which reads as follows :
"69. That decision of the learned single Judge was not left unchallenged. In fact, the correctness of the judgment of the learned single Judge was put in issue by the Union of India by filing an intra-court appeal. Filing of an appeal destroys the finality of the judgment under appeal. The issues determined by the learned single Judge were open for consideration before the Division Bench. However, the Division Bench was denied the opportunity of hearing and the aggrieved party could also not press for decision of the appeal on merits, as before the appeal could be heard it was rendered infructuous on account of the Ordinance itself having ceased to operate. The Union of India, howsoever it may have felt aggrieved by the pronouncement of the learned single Judge, had no remedy left available to it to pursue. The judgment of the Division Bench refusing to dwell upon the correctness of the judgment of the single Judge had the effect of leaving the matter at large. Upon the lapsing of the earlier Ordinance pending an appeal before a Division Bench, the judgment of the single Judge about the illegality of the earlier Ordinance cannot any longer bar this Court from deciding about the validity of a fresh law on its own merits, even if the fresh law contains similar provisions."
15. From the law laid down by the Hon'ble Supreme Court referred to above it will be seen that the Hon'ble Supreme Court has only held that the correctness of the judgment of the single Judge could not bar the Hon'ble Supreme Court from deciding the validity of fresh law on its merit even if the fresh law contains the similar provisions. Meaning thereby that the dismissal of the writ petition by an Hon'ble single Judge of the High Court will not debar the higher court from looking into the legality or validity of fresh law on its own merits even if the fresh law contains similar provisions, i.e., to be precise the power of the Supreme Court is not taken away by the decisions of the High Court in dismissing the intra-court appeal as infructuous. The said judgment cannot be read as a proposition for recording a finding that the order dated 12.5.1995 has been washed out or that it loses its enforceability on the writ petition being dismissed as infructuous by this Court because of eflux of time.
16. In any view of the matter it was always open to the petitioner to challenge the order of the Hon'ble single Judge dismissing the writ petition as infructuous by means of a special appeal under Chapter VIII, Rule 5 of the Rules of the Court which has not been done and the petitioner has permitted the order dismissing his earlier Writ Petition No. 15105 of 1995 as infructuous to be final. In such circumstances this Court has no hesitation to hold that the Assistant Registrar is justified in recording a finding that in view of the dismissal of Writ Petition No. 15105 of 1995 as infructuous the order passed by the prescribed authority dated 12.5.1995 revived and fresh elections for electing the office bearers of the society can be held in accordance with the order dated 12.5.1995 passed by the Assistant Registrar only and no one else.
17. The relief prayed for by the petitioner for quashing the order dated 12.5.1995 in the present writ petition can also not be entertained in view of the fact that a Court exercising the concurrent jurisdiction has already dismissed the writ petition of the petitioner against the said order and this Court exercising the parallel jurisdiction cannot sit in appeal nor can pass conflicting judgment. Therefore, the legality or validity of the order dated 12.5.1995 cannot be reopened and cannot be re-adjudicated by this Court in the present writ petition.
18. The liberty granted under the order dated 16.5.1995 passed by the Hon'ble single Judge to the parties to challenge any future dispute before appropriate forum, cannot be extended to mean that a subsequent writ petition challenging the order dated 12.5.1995 which was subject-matter of challenge in the earlier writ petition could be filed. The legal position in that regard is well-settled by the Hon'ble Supreme Court in the judgment in Sarguja Transport Service v. State Transport Appellate Tribunal, AIR 1987 SC 88, wherein it has specifically been held that no second writ petition for the same cause of action is maintainable.
19. In view of the facts and circumstances of the case the writ petition as filed by the petitioner is devoid of merit and is accordingly dismissed.