Allahabad High Court
C/M Saraswati Shiksha Parishad And ... vs The Registrar Firms Socieities And ... on 18 May, 2020
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgement reserved on 27.11.2019 Judgement delivered on 18.5.2020 (1) Case :- WRIT - C No. - 16120 of 2009 Petitioner:- C/M Saraswati Shiksha Parishad And Another Respondent:- The Registrar Firms Societies And Others Counsel for Petitioner:- Ashwani Kumar Mishra, R.K. Ojha, Suyash Pandey Counsel for Respondent:- C.S.C., Anil Bhushan, Miss R.Tripathi, P. N. Saxena, Rajeshwar Singh connected with (2) Case :- WRIT - C No. - 26354 of 2009 Petitioner:- C/M Saraswati Vidya Mandir Inter College And Another Respondent:- State of U.P. and Others Counsel for Petitioner:- Ashwani Kumar Mishra, A.K. Bajpai, R.K. Ojha, Suyash Pandey Counsel for Respondent:- C.S.C., Anil Bhushan, Miss R. Tripathi Hon'ble Saral Srivastava,J.
1. Heard Sri Ashwani Kumar Mishra, learned counsel for the petitioners, learned Standing Counsel for the State-respondent and Sri P.N. Saxena, learned Senior Counsel assisted by Sri Rajeshwar Singh, learned counsel for the respondent.
2. The issue involved in the two writ petitions are same, therefore, they are being decided by a common order.
3. The petitioners in Writ C No. 16120 of 2009 has assailed the order dated 12.3.2009 passed by Deputy Registrar, Firms, Societies and Chits, Kanpur Division, Kanpur (respondent No. 2) rejecting the objection of the petitioners against induction of ten members in the society namely Saraswati Shiksha Parishad, Fatehpur.
4. The petitioners in Writ C No. 26354 of 2009 has assailed the order dated 1.5.2009 passed by Assistant Registrar, Firms, Societies and Chits, Allahabad (respondent no.3) whereby he has finalised the list of members of the society.
5. For convenience, facts are taken from the record of Writ Petition No. 16120 of 2009. The case of the petitioner is that there is a society in the name of Saraswati Shiksha Parishad, Fatehpur registered under the provisions of Societies Registration Act, 1860 (hereinafter referred to as 'society'). The aforesaid society was registered in the year 1984 and at the time of registration of the society, only 11 members were shown to be members of the governing body of the society. The aforesaid society was renewed on 28.7.2006. At the time of renewal of the society, the list of 19 members of the general body of the society was submitted before the Assistant Registrar, Firms Societies and Chits, Allahabad Division, Allahabad. The aforesaid society runs two institutions one Junior High School in the name of Saraswati Vidya Mandir, Chowk, Fatehpur and the other intermediate college in the name of Saraswati Vidya Mandir Inter College, VIP Road, Fatehpur (hereinafter referred to as 'institution'). There is a scheme of administration of the institution duly approved by Deputy Director of Education, Region-IV, Allahabad on 19.3.1993 under the provisions of 16-A of the U.P. Intermediate Education Act, 1921.
6. The last election of the Committee of Management of the society as well as institution were held on 25.3.2006 in which Dr Tribhuwan Nath Bajpayee was elected as President, Sri Labh Singh was elected as Vice-President, Sri Anand Swarup Rastogi (respondent No. 5) was elected as Manager and Sri Bhola Nath Gupta was elected as Deputy Manager.
7. As per the case of the petitioners, respondent No. 5 without obtaining the concurrence of the Committee of Management of the society enrolled 10 members of the society by showing deposits of their membership fee. The induction of the aforesaid 10 members in the society was not as per procedure provided in the scheme of administration of the society for enrolling new members of the society.
8. The Committee of Management of the society by resolution dated 27.9.2007 unanimously disapproved the induction of 10 members by Sri Anand Swarup Rastogi. The petitioner No. 2 (Dr Tribhuwan Nath Bajpayee) by letter dated 30.10.2007 submitted a complaint to the respondent No. 3 for illegal induction of 10 members in the society by Sri Anand Swarup Rastogi without seeking approval from the general body of the society.
9. It appears that Sri Anand Swarup Rastogi was expelled from the general body of the society. He was also removed from the post of Manager of the institution by the Committee of Management of the institution by resolution No. 2 dated 17.12.2007. The resolution dated 27.9.2007 disapproving the induction of 10 members and also the resolution No. 2 dated 17.12.2007 removing Sri Anand Swarup Rastogi from the post of Manager of the college was placed before the general body of the society who by resolution No. 2 dated 24.2.2008 unanimously resolved to approve the aforesaid resolution dated 27.9.2007 and 17.12.2007. Consequent upon removal of Sri Anand Swarup Rastogi, the Deputy Manager Sri Bhola Nath Gupta was appointed as Manager of the society who by letter dated 17.3.2008 communicated the resolution of the general body of the society dated 24.2.2008 to the respondent No. 3.
10. According to the petitioners, respondent No. 6 (Gyanendra Pratap Singh) submitted a letter dated 16.1.2008 before the respondent No. 3 annexing therewith a list of 43 members of the general body of the society for the year 2007-2008. The petitioner No. 1 after coming to know that a stranger has illegally submitted a list of members of the society submitted a complaint to the respondent No. 3 requesting him to investigate the matter. On the complaint of the petitioner No. 1, the respondent No. 3 issued notice dated 18.7.2008 to the respondent No. 5 calling upon him to submit an explanation about the induction of 10 members in the society illegally and for committing financial irregularities. The notice dated 18.7.2008 is extracted herein below:-
"सेवा में, श्री आनंद स्वरुप पूर्व प्रबंधक सरस्वती शिक्षा परिषद् द्वारा सरस्वती विद्या मंदिर चौक, फतेहपुर ।
महोदय, संस्था सरस्वती शिक्षा परिषद् चौक फतेहपुर की प्रबंध समिति से अनियमित कार्य करने के कारण तथा 10 सदस्य अनियमित रूप से बढ़ा लिए जाने के कारण प्रबंध समिति की बहुमत से आपको निकाला जा चुका है. आपको अपना पक्ष रखने हेतु दिनांक 31.7.08 तक का समय इस आशय से प्रदान किया जाता है कि आप अपने पक्ष से सम्बंधित आख्या/मूल अभिलेख उक्त तिथि तक प्रस्तुत कर दे ।
भवदीय अश्वनी कुमार सिंह, सहायक प्रबंधक फर्म्स सोसाइटीज तथा चिट्स उo प्रo इलाo.... "
11. The respondent No. 5 did not appear in response to the notice dated 18.7.2008, therefore, another notice dated 18.11.2008 was issued by respondent No. 3 fixing 11.12.2008. The petitioner No. 1 on the date fixed i.e. 11.12.2008 submitted written submission and 28 documents in support of his case. On 11.12.2008, respondent No. 3 framed two issues which are extracted herein below:-
".....संस्था में विवाद के मुख्य रूप से दो बिंदु उठाये गए-
(1) श्री आनंद कुमार रस्तोगी द्वारा 10 सदस्यो को बनाये जाने पर, (2) संस्था में प्राप्त धनराशि का दुरुपयोग करने हेतु......"
12. On 26.12.2008, one C.P. Singh representing respondent No. 5 appeared and submitted an affidavit of respondent No. 5 dated 10.12.2008 alongwith the number of enclosures before respondent no.3.
13. It seems that the petitioners had lost confidence upon respondent No. 3, consequently, they applied the respondent No. 1 (Registrar, Firms Societies and Chits U.P., Lucknow) requesting for transfer of proceedings pending before the respondent No. 3 to any other competent authority in the interest of justice. The respondent No. 1, thereafter, through order dated 7.1.2009 transferred the proceedings of File No. I-79448 pending before the respondent No. 3 to the respondent No. 2.
14. After transfer of proceeding to respondent No. 2, the petitioner No. 1 again submitted a detailed written submission before the respondent No. 2. The petitioners also submitted the affidavit of petitioner Nos. 1 and 2 in support of their case.
15. The respondent No. 2 by order dated 12.3.2009 rejected the objection of the petitioners which came to be challenged in Writ C No. 16120 of 2009.
16. It seems that one Bharti Siksha Samiti, Poorvi U.P. (hereinafter referred to as 'Samiti'), claiming to be the parent body of the society, was supporting respondent No. 5. The Samiti constituted a five member committee by letter dated 23.12.2007 and appointed respondent No. 6 as Manager of the committee to run the institution. The District Inspector of Schools, Fatehpur by order dated 31.12.2007 attested the signature of respondent No. 6. The said order was challenged by the petitioner in Writ Petition No. 4981 of 2008 in which this Court passed an interim order. However, the aforesaid writ petition was dismissed by order dated 13.10.2008 on the ground that the order dated 31.12.2007 was for a particular period and life of the order has extinguished.
17. After the dismissal of the aforesaid writ petition, the petitioner preferred Writ Petition No. 16167 of 2008 praying for a direction that a validly constituted Committee of Management may run the institution. The aforesaid writ petition was dismissed by this Court by judgement and order dated 5.2.2009. The petitioner, thereafter, preferred Special Appeal No. 1630 of 2008 against the judgement and order dated 5.2.2009 in Writ Petition No. 16167 of 2008 which was also dismissed by this Court. The relevant portion of the judgment dated 8.12.2008 is extracted herein below:-
".....Be that as it may, since we find that the Joint Director of Education admittedly has no jurisdiction to entertain any application of the petitioners under Section 16-A (7) of the Act treating it to be a dispute of rival Committee of Management on its own, without there being any reference by the DIOS and, therefore, the Hon'ble Single Judge has not erred in law in dismissing the writ petition of the petitioners observing that the relief as sought for by the petitioners cannot be granted. However, since both the parties before this Court have agreed that a fresh election of Committee of Management must be allowed to be held expeditiously which would be in the interest of the institution, we direct the DIOS respondent No. 3 to hold election of Committee of Management of the institution in question after finalizing the voter list in accordance with the Scheme of Administration within two months from the date of production of a certified copy of this order."
18. In compliance with the order of this Court in aforesaid Special Appeal, the respondent No. 3 passed an order dated 1.5.2009 determining the electoral college of the society which came to be challenged in Writ C No. 26354 of 2009.
19. A counter affidavit in Writ C No. 16120 of 2009 has been filed by the respondent No. 5 contending inter-alia that the respondent No. 5 preferred Writ Petition No. 10637 of 2017 praying for a writ of mandamus to the authorities concerned to decide the representation of the petitioner-Committee of Management and further direction to the Registrar for holding the election of the office bearers of the society under Section 25 (2) of the Societies Registration Act, which was disposed of by this Court with a direction to the Assistant Registrar, Firms Societies and Chits, Fatehpur to consider and decide the representation of the petitioner. Pursuant to the direction of this Court, the respondent No. 3 passed an order dated 12.3.2018 finalizing the electoral college of the society. Thereafter, the Election officer notified the election programme.
20. The petitioner through Writ C No. 13004 of 2018 had challenged the notice dated 12.3.2018 issued to him by Assistant Registrar apprising him the election programme of the society. The said writ petition was disposed of by this Court, therefore, as the order dated 12.3.2018 of respondent No. 2 finalizing the electoral college of the society has not been assailed by the petitioner and has attained finality, the writ petition has become infructuous. The respondent No. 5 further stated in the counter affidavit that members of the society have been validly inducted after following due procedure.
21. Challenging the order dated 12.3.2009, the counsel for the petitioner has contended that the impugned order dated 12.3.2009 passed by respondent No. 2 is without application of mind and is a non-speaking order since the order impugned has not adverted to the written submissions as well as evidence on record filed by the petitioner. He submits that the respondent No. 2 has not adverted to the two affidavits i.e. the affidavits of Jai Gopal Dixit and Dr. Tribhuwan Nath Bajpayee (petitioner No. 2) in the impugned order perusal of which established that the agenda to induct 10 new members in the society had been fraudulently inserted. He further submits that detailed objection had been filed by the petitioner but the same was also not considered by the respondent No. 2 while passing the impugned order.
22. He further contends that necessary averments with respect to filing of the two affidavits before authorities have been made in paragraph Nos. 34, 47 and 48 of the writ petition which has not been denied by the respondents in the counter affidavit. Thus, the finding of respondent No. 2 that induction of 10 members in the society by resolution dated 17.5.2007 was as per the procedure prescribed is without application of mind and against the record.
23. He further submits that finding of respondent no.2 that the respondent No. 5 has not committed financial irregularity is also illegal and against the record since the petitioners in detail have stated in their objection about the financial irregularities committed by the respondent No. 5 and in this regard necessary material and evidence was also filed before the respondent No. 2. But, respondent No. 2 without considering the material and evidence on record illegally held that the removal of respondent No. 5 from the society is illegal and not as per law.
24. He further submits that the respondent No. 2 has exceeded in his jurisdiction in deciding the validity of 14 members of the society alleged to have been inducted by resolution dated 10.8.2006 since the said issue was not before the respondent no.2 which is evident from the show cause notice dated 18.07.2008 and order dated 11.12.2008 of respondent no.3 framing the issues for consideration based on the complaint of petitioners. His further submission is that if the respondent no.2 wanted to consider the validity of induction of 14 members, he ought to have given due notice to the petitioners to submit their objections, hence, the finding on the validity of induction of 14 members is not sustainable.
25. Per contra, learned counsel for the respondents would submit that the electoral college of the society has been finalised by respondent No. 3 by order dated 12.3.2018. Consequent upon finalisation of the electoral college, the returning officer notified election programme of the society which was challenged by the petitioner in Writ C No. 13004 of 2018 without assailing the order dated 12.3.2018 finalising the electoral college of the society. Thus, the petitioner has acquiesced to order dated 12.3.2018, hence both the writ petitions have become infructuous because of the aforesaid subsequent development.
26. I have considered the rival submissions of learned counsel for the parties and perused the record.
27. It transpires from the record that there is no dispute about the fact that a meeting of the Committee of Management of the society was held on 17.5.2007. However, petitioners allege that there was no agenda to consider the induction of new members of society and the line "साथ ही दस नए सदस्य बनाने का प्रस्ताव किया, समिति ने अनुमोदन किया." have been inserted fraudulently in resolution no.5, therefore, induction of 10 members in the society by resolution dt. 17.05.2007 is not by following the procedure provided for making new members of the society, accordingly, they are not the valid members of the society.
28. The petitioner No. 2 immediately on coming to know about the illegal induction of 10 members of the society submitted a complaint to the respondent No. 3 on 30.10.2007.
29. The petitioner no.1 also submitted a complaint against the list of members submitted by respondent No. 6 on which the notices were issued to respondent No. 5 by respondent No. 3.
30. In response to the notice of respondent no.3, petitioners filed written submission dated 11.12.2008 alongwith entire material and documents on 11.12.2008 challenging the induction of 10 members of the society by the resolution dated 17.5.2007. The petitioner had also filed an affidavit of Jai Gopal Dixit, who was said to be the drafter of the resolution dated 17.05.2007. Jai Gopal Dixit in his affidavit has categorically stated that the addition of one and a half line in the resolution No. 5 regarding the proposal to induct 10 members of the society had been fraudulently inserted. Paragraph Nos. 5 to 7 of the affidavit of Jai Gopal Dixit is extracted herein below:
"दफा-5- यह कि श्री आनंद स्वरुप रस्तोगी उपरोक्त द्वारा प्रेषित उपरोक्त प्रबंध समिति की कार्यवाही दिनांकित 17.5.07 के प्रस्ताव सं 5-अन्य प्रस्ताव के अंतिम 1 ½ लाइनो में लिखित तथ्य "साथ ही दस नए सदस्य बनाने का प्रस्ताव किया, समिति ने अनुमोदन किया." को छोड़कर शेष तथ्य सही है.
दफा-6- यह कि श्री आनंद स्वरुप रस्तोगी उपरोक्त द्वारा प्रेषित उपरोक्त प्रबंध समिति की कार्यवाही दिनांकित 17.5.07 के प्रस्ताव सं 5-"अन्य प्रस्ताव के अंतिम 1 ½ लाइनो में लिखित तथ्य "साथ ही दस नए सदस्य बनाने का प्रस्ताव किया, " मैंने यह प्रस्ताव नहीं किया था, यह तथ्य पूर्णतया कूटरचित व फ़र्ज़ी है इसलिए पढ़ने योग्य नहीं है. यह बढ़ा लिया गया है.
दफा-7- यह कि श्री आनंद स्वरुप रस्तोगी उपरोक्त द्वारा प्रेषित उपरोक्त प्रबंध समिति की कार्यवाही दिनांकित 17.5.07 के प्रस्ताव सं 5- "अन्य प्रस्ताव के अंतिम लाइन में लिखित तथ्य "समिति ने अनुमोदन किया " भी पूर्णतया कूटरचित व फ़र्ज़ी तौर पर बाद में बढ़ा लिया गया है क्योकि मैंने प्रश्नगत पंक्तियों का प्रस्ताव ही नहीं किया तो समिति द्वारा अनुमोदन करने का प्रश्न ही नहीं उठता. अतः पढ़ने योग्य नहीं है. "
31. The petitioners in paragraph No. 42 of the writ petition have averred the fact about the filing of aforesaid said affidavit before the authorities, which fact has not been denied by respondent no.5 in paragraph No. 36 of the counter affidavit which contains the reply of paragraph 42 of the writ petition. Thus, it is evident that the aforesaid affidavit of Jai Gopal Dixit was on record before the respondent No. 2.
32. The petitioners, after transmission of the record to the respondent no.2, filed another affidavit before him enclosing therewith affidavit of Dr. Tribhuwan Nath Bajpayee wherein he has made a categorical statement denying the fact that there was any agenda to induct new members in the society. The averments in this regard have been made by the petitioner in paragraph Nos. 47 and 48 of the writ petition. Reply to aforesaid paragraph has been given by respondent No. 5 in paragraph No. 37 of the counter affidavit wherein he has not denied the fact of filing of the affidavit of Dr. Tribhuwan Nath Bajpayee before the respondent No. 2. The relevant paragraph no. 4 to 6 of the affidavit of Dr. Tribhuwan Nath Bajpayee are also extracted hereinbelow:-
".....दफा -4 यह कि श्री आनंद स्वरुप रस्तोगी उपरोक्त द्वारा प्रेषित सपथ पत्र दिनांकित 10.12.08 के साथ संलग्नक - 1 के पेज 1 व 2 प्रबंध समिति की कार्यवाही दिनांकित 17.05.07 के प्रस्ताव संo 5 में - 'अन्य प्रस्ताव'- के अंतिम 1 ½ लाइनों में लिखित तथ्य "साथ ही दस नए सदस्य बनाने का प्रस्ताव किया, समिति ने अनुमोदन किया ।" को छोड़कर शेष तथ्य सही व सत्य है ।
दफा -5 यह कि श्री आनंद स्वरुप रस्तोगी उपरोक्त द्वारा प्रेषित शपथ पत्र दिनांकित 10.12.08 के साथ संलग्नक - 1 के पेज 1 व 2 प्रबंध समिति की कार्यवाही दिनांकित 17.5.07 के प्रस्ताव सं 5 में -अन्य प्रस्ताव के अंतिम 1 ½ लाइनों में लिखित तथ्य "साथ ही दस नए सदस्य बनाने का प्रस्ताव किया, समिति ने अनुमोदन किया ।" पूर्णतः बाद में बढ़ाया गया है इसलिए फ़र्ज़ी है । श्री जयगोपाल दीक्षित ने ऐसा कोई प्रस्ताव नहीं किया था तथा इस लिए मेरे द्वारा स्वीकृत करने का प्रश्न ही नहीं उठता । उक्त 1 ½ लाइन का फ़र्ज़ी प्रस्ताव न करने के समर्थन में श्री जयगोपाल दीक्षित ने शपथ पत्र दिनांकित 5.1.09 संस्था उपरोक्त की पत्रावली में भोलानाथ गुप्ता द्वारा अपनी आख्या दिनांकित 5.1.09 द्वारा शामिल कर चुके है । साथ ही यह प्रस्ताव पूर्णतया कूट रचना करके फ़र्ज़ी तौर से बाद में बढ़ा लिया गया है साथ ही नियमानुसार प्रस्ताव प्रस्तुत करने व सर्वसम्मति से पारित करने की शर्तो को पूरा नहीं करता है इसलिए पढ़ने योग्य नहीं है । इसलिए विधि विरुद्ध है तथा स्वतः शुन्य व निष्प्रभावी है ।
दफा - 6 यह कि उक्त तरीके श्री आनंद स्वरुप रस्तोगी उपरोक्त द्वारा प्रेषित शपथ पत्र दिनांकित 10.12.08 के संलग्न -2 के पेज संख्या 58 से 62 में, के पेज संख्या - 62 में प्रस्ताव संख्या 9 अन्य प्रस्ताव " (ख) सत्र- 2005 की अंकेक्षण रिपोर्ट पर विचार किया गया तथा सर्वसम्मति से उसकी पुस्टि की गयी ।" इसमें तो प्रस्तावक का नाम ही नहीं है इसलिए यह प्रस्ताव पूर्णतया कूट रचना करके फ़र्ज़ी तौर से बाद में बढ़ा लिया गया है । उक्त प्रस्ताव की स्वीकृति मैंने नहीं दी है साथ ही नियमानुसार प्रस्ताव प्रस्तुत करने व सर्वसम्मति से पारित करने की शर्तो को पूरा नहीं करता है इसलिए पढ़ने योग्य नहीं है । इसलिए विधि विरुद्ध है तथा स्वतः शुन्य व निष्प्रभावी है ।....."
33. A bare perusal of the two affidavits referred above clearly demonstrates that the petitioners have produced materials to prove that the induction of 10 members in the society by respondent No. 5 was illegal. The respondent No. 2 while adjudicating the issue regarding the validity of the induction of 10 members of the society was obliged to consider the aforesaid two affidavits and other evidence on record and return a finding on them, which the respondent No. 2 has utterly failed to do which is evident from the order dated 12.3.2009.
34. So far as the finding of the respondent No. 2 concerning the removal of respondent No. 5 from the membership of the society is concerned, it is evident from the averments made in the objections filed by the petitioner (annexure No. 30 to the writ petition) that they have alleged that the respondent no.5 had committed misconduct and financial irregularity. However, it is manifest from the impugned order that the respondent no.2 has not adverted to allegations of petitioners regarding financial irregularities and misconduct of respondent no.5, therefore, the finding of the respondent No. 2 that the petitioner has not seriously pressed the issue against the respondent No. 5 is also not sustainable.
35. As regards the finding of the respondent No. 2 with respect to the resolution dated 10.8.2006 by which 14 members including the respondent No. 6 have been inducted, it is worth to notice that the respondent No. 2 was not called upon to consider the validity of the resolution dated 10.8.2006. This is evident from the notice dated 18.7.2008 contents whereof have been extracted above and issues framed for adjudication by the respondent No. 3 on 11.12.2008. Further, petitioners have made specific averment in paragraph Nos. 56-E to 56-G of the writ petition that the petitioners were not afforded an opportunity of hearing to rebut or bring on record evidence against the alleged resolution dated 10.8.2006. The averments made in aforesaid paragraphs have been replied in paragraph No. 40 of the counter affidavit of respondent No. 5, a perusal of which reveals that the averments made by the petitioner in paragraph Nos. 56-E to 56-G have not been denied. Thus, in this view of the fact, the finding of respondent No. 2 in respect of resolution dated 10.8.2006 is also illegal and not sustainable in law.
36. Accordingly, given the discussions in the foregoing paragraphs, this court holds that order dated 12.03.2009 is a non-speaking order and has been passed without application of mind, and as such is not sustainable in law.
37. Since the order dated 12.3.2009 has been held to be illegal, therefore, the order dated 1.5.2009 impugned in writ petition no. 26354 of 2009 which had been passed relying on the order dated 12.03.2009 is also not sustainable.
38. Now coming to the submission of counsel for the respondents that the writ petitions have become infructuous because of subsequent development, at this point, it is pertinent to extract hereunder the relevant portion of the order dated 18.03.2018:-
"......उल्लेखित बिन्दुओ से स्पष्ट है कि कार्यालय में जो भी नवीन सदस्य बनाकर कार्यालय में सुचिया प्रस्तुत की गयी है, वे कालातीत पदाधिकारियों अथवा ऐसे व्यक्तियो द्वारा प्रस्तुत की गयी है, जिन्हे संस्था में नवीन सदस्य बनाये जाने के अधिकार निहित नहीं थे । अतः ऐसी स्थिति में वर्ष 2009 में घोषित साधारण सभा के सदस्यो को ही संस्था के प्रबन्धसमिति के निर्वाचन हेतु अर्ह मानना विधिक एवं नियमनुसार है । तदनुसार तत्कालीन सहायक निबंधक द्वारा आदेश सं 422 दिनांक 01.05.09 के द्वारा घोषित 42 सदस्यो में से जीवित 25 सदस्यो को संस्था की प्रबन्धसमिति के निर्वाचन हेतु अर्ह घोषित किया जाता है । संस्था के निर्वाचन हेतु संस्था की पंजीकृत नियमावली की धारा 8 (ख) (3) के अनुसार निर्वाचन कार्यक्रम की घोषणा की जाती है ।....."
39. The perusal of the aforesaid order reveals that the basis of declaring 25 members of the society as the valid member is the order no.422 dated 01.05.2009 of Assistant Registrar. It is explicit from the order dated 01.05.2009 (impugned in writ petition no. 26354 of 2009) that this order is based upon the order dated 12.3.2009. The aforesaid fact implies that the authority by the order dated 12.03.2108 has accepted the list of members of the society declared by order dated 12.3.2009 since the order dated 1.05.2009, which is the basis of order dated 12.03.2018, had accepted the list of members of the society declared by order dated 12.03.2019.
40. Now, the question which crops up for consideration is whether non-challenge to order dated12.03.2018 would render the writ petitions infructuous, even though the order dated. 12.3.2009 is illegal. To, answer this question, it would be apposite to refer the judgment of this Court in the case of Committee of Management, Sri Raghubar Dayal Pathak Inter College, Jakhan, District Etawah through its Manager Krishna Murari Pathak versus Committee of Management, Sri Raghubar Dayal Pathak Inter College, Jakhan, District Etawah through its alleged Manager Brij Bihari Lal Pathak, reported in 2006 (7) ADJ 427 (DB) wherein this Court has held that if an election is found to be invalid, all subsequent actions or orders are also illegal and nonest. Paragraph Nos. 4 and 5 of the aforesaid judgment is extracted herein below:-
"4. We are of the view that in the facts of the case and also in view of the fact that the elections held in the year 1999 and 2002 were found to be invalid, the Hon'ble Single Judge is right in directing to hold fresh election by an independent agency. Even during the course of submission in spite of repeated request, learned counsel for the appellant could not show any evidence or material nor has brought any thing on record to show that the elections held in the year 1999 and 2002 were validly held.
5. The contention that since the orders dated 21.6.2005 and 22.6.2005 were not set aside, the judgment of the Hon'ble Single Judge is wrong, has also no substance for the reason that the elections of the year 1999 and 2002 having been found to be invalid, all subsequent action or orders are also illegal and nonest in the eyes of law. Thus, we do not find any fault in the order of the Hon'ble Single Judge."
41. It would also be pertinent to refer paragraph No. 26 of the judgement of the Apex Court in the case of Ritesh Tiwari and another Vs. State of U.P. and another 2010 (10) SCC 677 which is extracted herein below:-
"26. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits. (Vide Upen Chandra Gogoi Vs. State of Assam & Ors., (1998) 3 SCC 381; Satchidananda Misra Vs. State of Orissa & Ors., (2004) 8 SCC 599; and Regional Manager, SBI Vs. Rakesh Kumar Tewari, (2006) 1 SCC 530)."
42. In the light of law laid down in the judgements referred above, this Court is of the opinion that even if the petitioner has not challenged the order dated 12.03.2018, that would not render the writ petition infructuous since order dated 12.03.2009 and 01.05.2019 are illegal. Accordingly, this court does not find merit in the submission of the counsel for the respondent that the writ petitions have become infructuous as the petitioners have not challenged the subsequent order date 12.03.2018.
43. Thus, for the reasons given above, the order dated 12.3.2009 impugner in Writ C No. 16120 of 2009 by Deputy Registrar, Firms, Societies and Chits, Kanpur Division, Kanpur (respondent No. 2) and the order dated 1.5.2009 impugned in Writ C No. 26354 of 2009 by Assistant Registrar, Allahabad are hereby quashed with the liberty to the respondent No. 3 to pass a fresh order expeditiously after giving notice and due opportunity of hearing to all the concerned parties.
44. Consequently, both the writ petitions are allowed subject to the observations made above with no order as to costs.
Order Date :- 18.5.2020 Jaswant