Allahabad High Court
C/M Raja Ram Sahab Lal Kishan A.J. High ... vs State Of U.P. And Others on 25 November, 2010
Author: Amreshwar Pratap Sahi
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 38 Civil Misc. Impleadment Application In Case :- WRIT - C No. - 66442 of 2010 Petitioner :- C/M Raja Ram Sahab Lal Kishan A.J. High School And Another Respondent :- State Of U.P. And Others Petitioner Counsel :- A.N. Pandey,Ashok Khare Respondent Counsel :- C.S.C.,Chandrajeet Yadav Hon'ble Amreshwar Pratap Sahi,J.
This impleadment application has been filed by Krishna Chandra Yadav claiming himself to be a member of the general body of Raja Ram Sahab Lal Kisan Adarsh Junior High School Society and the prayer made is that the writ petition be dismissed on the preliminary objections as narrated in the affidavit in support of this impleadment application.
Learned counsel for the proposed respondent had been heard on 18th November 2010 on which date he was called upon to file an affidavit indicating as to how the reference before the Prescribed Authority was maintainable when there was no reference by the Assistant Registrar and that 1/4th of the members had not approached the Assistant Registrar as required under Sub-Section (1) of Section 25 of the Societies Registration Act, 1880.
Sri Chandrajeet Yadav learned counsel for the proposed respondent has filed a supplementary counter affidavit and along with the said affidavit he has filed a question answer dated 16.11.2010 which indicates that an application had been preferred before the Prescribed Authority duly signed by 88 members.
This Court vide order dated 18.11.2010 had required the learned counsel to bring on record through an affidavit as to who are the alleged signatories of the said application and why was that application not referred to in the impugned notice dated 30th August, 2010. This was done in view of the fact that the allegations are that the application had been moved on 28.8.2010.
Sri Chandrajeet Yadav supplied a certified copy of the said application alleged to have been signed by the so-called 88 members but no affidavit has been filed as directed by this Court.
I have perused the affidavit in support of the impleadment application and there is no evidence worth noting that the name that these 88 members are amongst the members of the electoral college of the 337 members from whom the elections had been held and are proposed to be challenged before the Prescribed Authority. In the absence of any such proof the proposed respondent Krishna Chandra Yadav has prima facie failed to establish his bona fides so as to contest the matter at least before this Court.
Accordingly, the impleadment application is rejected.
Order Date :- 25.11.2010 Sahu Court No. - 38 Case :- WRIT - C No. - 66442 of 2010 Petitioner :- C/M Raja Ram Sahab Lal Kishan A.J. High School And Another Respondent :- State Of U.P. And Others Petitioner Counsel :- A.N. Pandey,Ashok Khare Respondent Counsel :- C.S.C.,Chandrajeet Yadav Hon'ble Amreshwar Pratap Sahi,J.
This writ petition has been preferred by Gayatri Devi who claims herself to be the validly elected Manager of the Society as also the committee of management of the Institution which is managed by the Society namely Raja Ram Sahab Lal, Kisan Adarsh Junior High School.
The undisputed facts are that the Prescribed Authority passed an order under Section 25(1) of the Societies Registration Act, 1860 on 30th May, 2007 holding that the general body comprised of 334 valid members and the election has to be held from amongst the said members. The said order of the Prescribed Authority was challenged by Smt. Sukhpati Devi respondent No. 5 herein in Writ Petition No. 27136 of 2007 which was dismissed on 13th June, 2007. Accordingly, the order of the Prescribed Authority dated 30th May, 2007 became final.
The Prescribed Authority thereafter proceed to forward the said decision and a letter dated 12th March, 2007 to get fresh elections held in terms of the aforesaid direction. The Electoral College was determined and the elections were sought to be held in compliance of a direction issued by this Court on 14th March, 2008 in Writ Petition No. 14112 of 2008. The respondent no. 5 Sukhpati Devi allegedly made certain representations in respect of Electoral College which was determined by the Tehsildar. The said Electoral College was determined on 28.4.2010. At this stage the respondent no. 5 approached this Court seeking a writ of mandamus that the order dated 30th May, 2007 should be complied with.
This Court declined to interfere at that stage and it was observed that in case the petitioner has any objections the same can be raised for determining the same through a reference under Section 25(1) of the Societies Registration Act, 1860.
The elections have been thereafter held in which the petitioner Gayatri Devi has been elected and consequent to the holding of the said elections the signatures of the Gayatri Devi as Manager of the Institution has also been attested by the Basic Education Officer on 30.9.2010.
It appears that after the said signatures were attested, a copy of the said order was dispatched by the Basic Education Officer to the Sub Divisional Magistrate, Machchalishahar, Jaunpur who on 10th November 2010 endorsed an order that the case should be registered and notices should be issued.
This document indicating the registration of the case which has been filed along with the supplementary counter affidavit of the respondent no. 5 dated 25.11.2010.
Sri Ashok Khare learned Senior Counsel for the petitioner has assailed the impugned notice dated 30th August, 2010 issued by the Sub Divisional Magistrate to the Assistant Registrar calling upon him to send the entire file relating to the alleged dispute as it is required to be adjudicated in view of the directions issued by this Court on 9th August, 2010.
Sri Khare submits that the issuance of the notice is per-se illegal and without jurisdiction, inasmuch as, the Prescribed Authority does not have any suo-motu powers and he can exercise his jurisdiction provided there is a valid reference by the Assistant Registrar, Firms, Societies and Chits in relation to the election of office bearers or by 1/4th of the members of the general body entitled to participate in the elections before the Prescribed Authority in terms of Sub Section (1) of Section 25 of the 1860 Act.
He submits that the none of the aforesaid ingredients are available and as a matter of fact it is the respondent no. 5 individually and alone who had filed the application before the Prescribed Authority. He further submits that the alleged application on behalf of 88 members which has also been appended along with the supplementary counter affidavit is through one Sri Krishn Chandra Yadav and the names of persons referred therein are of such persons who are not even members of the general body from which the electoral college has been formed for holding the election. He therefore submits that in the absence of any such proof before the Sub Divisional Magistrate when there were 1/4th valid members desirous of expressing their objections to the election, the Sub Divisional Magistrate could not have proceeded to issue a notice dated 30th August 2010 calling upon the Assistant Registrar on his own to send the file for adjudicating the dispute.
He further submits that as a matter of fact the Sub Divisional Magistrate has called upon the Basic Education Officer by the said letter to sent the records and it appears that after receipt of the attestation of signatures of the petitioner he has directed registration of the case on 20th November 2010. In such circumstances the proceedings adopted by the Sub Divisional Magistrate are without jurisdiction.
Sri Amit Kumar for the respondent no. 5 has raised an objection with regard to the maintainability of the writ petition on the ground that the writ petition has been filed only against a show cause notice and that the petitioner herself moved an application on 29th September 2010, copy whereof has been filed along with the supplementary counter affidavit, which has not yet been decided relating to the admissibility of the reference before the Sub Divisional Magistrate. He therefore submits that so long as the said application is not disposed of by the Sub Divisional Magistrate the present writ petition should not be entertained.
The submission of Sri Amit Kumar is that not only this there are 1/4th members available who have raised the dispute and in such circumstances the writ petition deserves to be dismissed at this stage. He has relied on two decisions, namely, the decision in the case of Allahabad High School Society, Allahabad & another Vs. State of U.P., reported in 2010 ADJ (5) Pg. 511 and the Supreme Court decision in the case of State of U.P. and another Vs. Om Prakash and others, reported in 2006 (6) SCC Pg. 474 urged that a writ petition should not ordinarily be entertained against a show cause notice. On the strength of the said judgment and also the decision in the case of Shiksha Samiti Tilaura, Gorakhpur & another Vs. State of U.P. & others, reported in 2005 (1) AWC Pg. 194 it is alleged that the Prescribed Authority should be allowed to decide this preliminary objection itself. His further submission is that the direction of this Court issued in Writ Petition No. 46769 of 2010 was being complied with and the petitioner not having preferred any intra-court appeal, it is not open to the petitioner to raise any such objection.
Having heard learned counsel for the parties, it would be appropriate to clarify the position with regard to the provisions of Sub Section (1) of Section 25 of the Societies Registration Act, 1860. It is undisputed between the parties that the Prescribed Authority can assume jurisdiction to decide the dispute only if there is a valid reference and if in the alternative the reference has been made through 1/4th members of the general body.
The aforesaid legal position therefore had to be taken notice of by the Prescribed Authority who has not issued a mere show cause notice but has issued a direction on 30th August, 2010 making it known to the Assistant Registrar, Firms, Societies and Chits that the order of the High Court obliges him to proceed to decide the dispute under Section 25(1) of the 1860 Act. This in my opinion, is a complete misreading of the judgment of this Court, inasmuch as, this Court had only made an observation that the forum to challenge the elections is available to an aggrieved person under Section 25(1) of the Act. The observation of the High Court therefore is to be read in the context of the statutory provision which has to be complied with by the authority who can assume jurisdiction as an Election Tribunal on a valid reference.
In the instant case, it is evident that the aforesaid direction issued to the Assistant Registrar on 30th August, 2010 has been made without the parties being put to notice and without even prima facie recording a satisfaction that the Sub Divisional Magistrate had the authority to proceed treating the reference to be valid under Section 25(1) of the Act. No such satisfaction has been recorded and the only reliance placed is the order of the High Court.
It is worth noting that the petitioner was not issued any notice when the directions were issued by this Court on 6th August, 2010 and it was an order ex-parte to the petitioner. In such a situation the assumption of jurisdiction without recording a satisfaction independent of the same by the Sub Divisional Magistrate amounts to exercise of powers without recording any satisfaction on the ingredients of Section 25(1) of the Act. In such a situation the Sub Divisional Magistrate has committed an error by calling upon the Assistant Registrar to proceed to comply with the direction without putting the petitioner to notice. The order dated 30th August, 2010, which in my opinion is not a mere notice, is therefore vitiated.
The question as to whether the issue of membership is relevant for proceeding with an election dispute is spelled out in the provisions of Section 25(1) itself. The question is as to whether 1/4th members have approached the Prescribed Authority or not.
Learned counsel for the respondent therefore submitted that even this issue, which has been raised by the petitioner before the Sub Divisional Magistrate deserves to be determined in terms of her own application dated 29th September 2010. This argument of the respondent no. 5 therefore can be entertained in view of the conclusions drawn hereinabove and the legal position as explained.
Accordingly, in my opinion, the Sub Divisional Magistrate/Prescribed Authority has proceeded in haste without adverting to the aforesaid issue as pointed out hereinabove. The order dated 30th August 2010 which is not a mere show cause notice is therefore quashed.
The Sub Divisional Magistrate shall now first advert to the application filed by the petitioner dated 29th September 2010 and after verifying the fact as to whether 1/4th members who are validly enrolled have approached the Prescribed Authority or not, then proceed to determine the claim if the same is required to be done in terms of Section 25(1) of the Act. The Sub Divisional Magistrate in essence has put the cart before the horse and therefore he is required to undertake the aforesaid exercise by deciding the application dated 29th September, 2010 first.
Accordingly, the writ petition is allowed subject to the observations made hereinabove.
Order Date :- 25.11.2010 Sahu