Allahabad High Court
Amar Nath Misra And Another vs The District Inspector Of Schools, ... on 17 April, 1997
Equivalent citations: AIR1997ALL358, AIR 1997 ALLAHABAD 358, 1997 ALL. L. J. 1844 1997 (3) ESC 1605, 1997 (3) ESC 1605
Author: D.K. Seth
Bench: D.K. Seth
ORDER R.A. Sharma, J.
1. There are three different groups in the Committee of Management of Shahee Mangal Pandey Inter College, Nagwan, Ballia (hereinafter referred to as the College), each claiming the exclusive right to manage the College on the basis of elections of the Managing Committee held by them on different dates. The Commitleeof Management of which Sri Manager Singh was the manager is said to have been elected on 28-6-1990. The Committee of Management of which Sri Amar Nath Misra was the Manager is slated to have been elected on 18-5-1991. The third faction of the Management of which Sri Nagendra Kumar Palhak, was the Manager claims to have been elected on 15-6-1992. There being dispute amongst the three diffferent groups regarding the right to manage theCollcgc.lhe matter was referred to the Deputy Director of Education under Section 16-A(7) of the U.P. Intermediate Education Act (hereinafter referred to as the Act)). The Deputy Director of Education vide order dated 19-6-1993 rejected the claim of all the three groups and appointed Prabandh Sanchalak to run and manage the College and to hold election of the Managing Committee. Sri Nagendra Kumar Pathak filed a writ petition No, 28544 of 1993 before this Court, challenging the said orderdated 19-6-1993 of the Deputy Director of Education. This writ petition was allowed on 17-1-1994 and the Deputy Director of Education was directed to decide the dispute afresh in accordance with law. On 7-3-1994 the Deputy Director of Education again rejected the claim of all the three claimants. The said order of the Deputy Director of Education was again challenged by Sri Nagendra Kumar Pathak by filing writ petition No. I 0659 of 1994. This writ petition wasdismissed by learned single Judge on 5-5-1994, against which Special Appeal No. 318 of 1995 was filed, which wasdecided on 16-5-1995 by a Division Bench, holding that there being serious disputes between the parlies, it is not possible to decide about the validity/ legality of the elections of the three sets of Committee of Management. It was further observed that as the period of the IwoCommittees had already expired and the period of the third is going to expire in June, 1995, no useful purpose would be served lo interfere with the order of the learned Judge. The Bench, however, directed the District Inspector of Schools, Ballia (hereinafter referred to as the D.I.O.S.) to hold the election of the Committeeof Management as far as possible within a period of two months from the date of production of certified copy of the order before him.
2. Thereafter the group of which Sri Nagendra Kumar Pathak is the Manager held theeleclion of the Managing Committee on 17-12-1995. The D.I.O.S. not having recognised the said election, writ petition No. 16507 of 1996 was filed by Sri Nagendra KumarPathak for appropriate direction to the D.I.O.S. This writ petition was dismissed on 10-5-1996 by a learned single Judge holding that only the D.I.O.S. could hold the election pursuant to the decisions of the Division Bench in special appeal No. 318 of 1995 and it was not open to the petitioners therein to hold the election. By a letter dated 10-5-1996 the D.I.O.S asked Sri Nagendra Kumar Pathak, the Manager of one of the three rival groups, to hold election of the Committee of Management. Sri Palhak claims to have held the election on 18-5-1996 pursuant to the said order dated 11-5-1996of the D.I.O.S. By letter dated 20-5-1996 the D.I.O.S. recognised the said election and attested the signature of Sri Nagendra Kumar Pathak as Manager of the College. The appellants, who are members of the society, which is said to have elected the Committee of Management on 18-5-1996, filed a writ petition No. 18654 of 1996, challenging the order of the D.I.O.S. dated 20-5-1996, recognising the election held by Nagendra Kumar Pathak on 18-5-1996 and attesting his signature as Manager of the College. This writ petition having been dismissed by the learned single Judge on 24-5-1996, the appellants have filed this appeal.
3. We have heard Sri. R.N. Singh and Sri Ashok Bhusan for appellants and Sri Ashbk Khare for respondents No. 3. We have also heard the learned Standing Counsel. Sri Ashok Khare, apart from contesting the appeal on merit, has also raised an objection to the effect that this appeal is liable to be dismissed on the ground of 'waiver' of their right to proceed with this appeal by the appellants.
4. The Division Bench of this Court vide judgment dated 16-5-1995 in special appeal No. 318 of 1995, the relevant extract of which is reproduced below, has directed the D.I.O.S. to hold the election of the Committee of Management of the College :--
"After having heard learned counsel for the appellants and learned Standing Counsel we are of the view that since there are serious disputes between the parties, this court cannot adjudicate upon the legality or otherwise of the election of three sets of the Committee of Management. Moreover, the period of alleged two Committee has already expired and in third case, it is to expire on 15th June, 1995. In view of these facts we feel that would not be appropriate for us to interfere with the order of learned single Judge. However, seeing the facts and circumstances of the case, we direct that the District Inspector of Schools to hold fresh election for constituting Committee of Management of the Institution if possible within a period of two months from the date of certified copy of this order is served upon him.
5. From the perusal of the aforesaid judgment, it is clear that this Court directed the D.I.O.S. to hold the election of the Committee of Management. After the decision of this Court in Special Appeal No. 318 of 1995 (supra), Sri Nagendra Kumar Pathak instead of the D.I.O.S. held the election of the Managing Committee. The D.I.O.S. not having recognised the said election, Sri Nagendra KumarPathak filed a writ petition No. 16507 of 1996 for directing to the D.I.O.S. to recognise the said election. This writ petition was dismissed on 10-5-1996 by learned single Judge holding as under:
"The Division Bench in very clear words directed the District Inspector of Schools to hold the election. This direction could not be violated by the petitioners. If the District Inspector of Schools could not hold the election,the petitioners should have moved the application for modifying the order and for the permission of the Court to hold the election. The District Inspector of Schools could have been compelled to comply with the direction of the Court and to hold election; but in any case the petitioners could not hold election in contravention of the directions given by the Divisions Bench."
It was, therefore, the duty of the D.I.O.S. to hold the clecilion and it was not open to him to ask Sri Nagendra Kumar Pathak, who was the Manager of one of the three rival groups, to hold the election. Such a course was not open to the D.I.O.S. Apart from the specific directions issued by this court asking the D.I.O.S. lo hold the election, the D.I.O.S. should not have asked the Manager of one of the rival factions of the Management to hold the election in view of the serious disputes amongst them. Election is a process consisting of several stages and steps, which are required to be taken by the person holding the election. Ascertaining the names of the members of the society, who are to take part in the election and giving them requisite notice in accordance with the scheme of administration of the College are some of the important functions, which are to be discharged by the person, who holds the election. The appellants have raised serious dispute regarding the validity of the impugned election and have also stated that even the requisite notice was not given to the members before holding the election. Sequence of events, namely the, D.I.O.S.order dated 10-5-1996 asking Sri Nagendra Kumar Pathak to hold the election, holding of the election by Sri Pathak on 18-5- 1996 and the recognition of the said election by the D.I.O.S. on 20-5-1996 supports, atleast prima facie, claim/allegation of the appellants.
Suprisingly the D.I.O.S. by order dated 20-5- 1996 recognised the election held by Sri Pathak on 18-5-1996 and attesting his signature as Manager. But before doing so he neither made any inquiry nor did he find out from the other rival groups regarding the said election.
Everything was done within ten days in a great haste.
6. The learned single Judge, however, I dismissed the writ petition of the appellants, holding that there is substantial compliance of Ihe order of the Division Bench dated 16-5-1996 inasmuch as Sri Bhola Singh, an Instructor in the office of the D.I.O.S. was present at the time of the voting. As regards the grievances raised by the appellants regarding want of notice and various other illegalities in the election, the learned Judge observed that it will be open to them to make representation before the Deputy Director of Education, who will decide the same expeditiously. We are of the view that when the Division Bench of this Court directed the D.I.O.S. to hold the election, holding of the election by Sri Nagendra Kumar Pathak, the leader of one of the three rival groups, is not substantial compliance of this Court's order even if such election has been held in the presence of the observer nominated by the D.I.O.S. This court issued direction to the D.I.O.S. to hold the election, because of the fact that there were three rival groups, each claiming exclusive right to manage the college on the basis of conflicting claim laid;
by them. If this Court wanted Manager of one of the three rival groups to hold theelection, itcould have issued direction to that effect. But in order to have fair election uninfluenced by the conduct of any rival group, this Courtdirected the D.I.O.S. to hold the election. The D.I.O.S. thus, not only' failed to comply with the order of this Court, but even flouted it by issuing direction to one of the rival groups to hold the election. A Division Bench of this Court in Satyendra Pal v. The Regional Transport Authority, Agra (1982 All LJ 310), while considering the effect of an act/ order in violation of the Court's order laid down as under (at p. 314 of All LJ):
"In fact, there is another principle of Law still more puissant and not less irrevocable, viz. that he who chooses to defy the order of a Court must fact the Nemesis, the wages of disobedience is. penalty. It follows as a corollary that if a person is able to secure any advantage by flouting an order of the Court, he must be made to disgorge, such gain. Likewise, proceedings taken by an authority in flagrant disregard of the order of the a court are nullity and the Court should have no compunction in putting the hand of the clock back and restoring the status quo ante. Where an order of a Court is disobeyed, a writ must be issued to redress the injury suffered by a person on account of the disobedience of such order. To borrow the words of Chinnappa Reddy, J. in Capt. Dushyant Sotnal v. Stnt. Sushma Somal, (1981) 2 SCC 277 : AIR 1981 SC 1026 at p 1029:--
"Where what is complained of is an impudent disregard of an order of a Court, the faclcertainly cries out that a prerogative writ shall issue.
It is precisely this principle which looms large in the present case and all other aspects ultimately converge to this single point."
The same view was reiterated by a Division Bench in Prof.P.K.Rai v. Vice Chancellor (1993) 2 UPLBEC 1412.
7. As the D.I.O.S. did not hold the election as required by this Court's order dated 16-5-1996, the election held by Sri Nagendra Kumar Pathak on 18-5-1996 could not have been recognised by the D.I.O.S. and his order dated 20-5-1996 recognising the said election and attesting the signature of Sri Naagendra Kumar Pathak as Manager of the College cannot be sustained.
8. As regards the objection of Sri Ashok Khare to the effect that it is not open to the appellants to proceed with this appeal in view of the doctrine of waiver, reliance has been placed on Prasun Roy v. Calcutta Metropolitan Development Authority, AIR 1988 SC 205, Rukmin Amma v. Kalyani Sulochana, AIR 1993 SC 1616 and B.W. Von Maltazan v. Collector of Customs, AIR 1958 Andh Pra 122. The contention is that pursuant to the judgment of the learned single Judge dated 24-5-1996, which has been impugned in this appeal, Ihe appellants have made a representation before the Deputy Director of Education, who has decided the same and against the said decision a writ petition has been filed in this Court and, therefore, it is not open to the appellants toproceed with this appeal, because they have taken advantage of the impugned judgment of the learned Judge. The contention of Sri Khare cannot be accepted. Helsbury's Law of England (IV Edition Vol. 16 at page 992 has defined the "waiver" as under:--
"Waiver is the abandonment of a right in such a way that the other party is entitled to plead the abandonment by way of confession and avoidance if the right is thereafter asserted, and is either express or implied from conduct. It may sometimes resemble a form of election, and sometimes be based on ordinary principles qf. estoppel, although, unlike estoppel, waiver must always be an intentional act with knowledge."
In Associated Hotels of India v. Ranjeet Singh, AIR 1968 SC 933 it has been held, "A waiver is an intentional relinquishment of a known right'. This is not the position in the instant case. Here the appellants have challenged the judgment of the learned sinlge Judge dated 24-5-1996 within four days by filing this appeal along with stay applicationon 28-5-1996. This appeal along with stay application was put up before the Division Bench on 30-5-1996 on which date an order was passed for listing the appeal in July, 1996 showing the name of the counsel for respondents. Thereafter, it appears that the appeal along with stay application was listed; but could not be taken up and the same remained pending. The appellants, therefore, cannot he said to have submitted to the judgment of the learned Judge. If the appeal could not be taken up earlier, the appellants cannot be blamed for it. It is not a case where the party has not taken appropriate steps challenging the order. The appellants are also not I guilty of negligence and acquiscence on their part. An intentional act to abandon the right can be said to be a waiver. When a party is pursuing his remedy against the impugned judgment but hiscase could not be taken up by Ihe Court for no fault on his part, it cannot be held that such party had intentionally abandoned its right against the judgment.
9. That apart, the learned single Judge in the impugned judgment has held that there was substantial compliance of this Court's orderdated 16-5-1996 regarding holding of the election of Ihe Committee of Management of the College. This is a finding recorded by this Court and Ihe same cannol be challenged before the Deputy Director of Education. Therefore, this appeal has to be heard atlcast on the said point and the same cannol be thrown out on the ground that the appellants have taken proceedings before the Deputy Director of Education pursuant to the judgment of the learned single Judge. The learned single Judge after record ing the finding about the substantial compliance of this Court's order gave liberty to the appellants to make representation regarding to their other griveances. Therefore, making of representation regarding other grievances before the Deputy Director of Education cannot preclude the appellants from pursuing this appeal against the judgment of the learned single Judge, so far as ihe main point aboul non-compliance of this Court's order is concerned.
10. The controversy involved in the three cases, cited by Sri Ashok Khare is different from what is involved in the present case. In Prasun Roy v. Calcutta Melroplitan Development Authority, AIR 1988 SC 205 (supra) the order appointing the arbitrator was not challenged by the parties and they participated in the arbitration proceedings. The Supreme Court accordingly held as under (Paras 3 and 5):
"If the respondents were not satisfied they could have moved an appeal against the order instead respondents participated in the arbitration proceedings and acquiesced in such appointment ..... ...... ...... ...... ..... .....
Long participation and acquiescence in the proceeding preclude such a party from contending that the proceedings were without jurisdiction."
In Rukmini Amma Saradamma v. Kaljyani Sulochana, AIR 1993SC 1616 (supra) also the order passed by the High Court in revisional jurisdiction was not challenged and the parties participated in the eviction proceedings pursuant to the said order. The Supreme Court, therefore, held as follows :
"It is too late in the day to urge on behalf of the appellant that the earlier exercise of second revisional jurisdiction by the High Court was wrong.........................
We need to pause to consider this because this point ought to have been urged by ihe appellant immediately after the order of remit was made.
Pursuant to the order of remit the appellant took achance by participation in the proceeding before the Rent Controller, taking up the matter in appeal. Thus, having acquiesced in these proceedings she cannot question the first remit order.
In Baroness Wilhelmine von Maltazan v. Collector of Customs, AIR 1958 Andh Pra-122 (supra) provisional assessment was made by the concerned authority under the Sea Customs Act at the instance and on the request of the husband of the petitioner therein. The High Court did not permit the petitioner therein to challenge the provisional assessment by holding as under :--
"The provisional assessment, we may point out, Was made at the instance of the petitioner's husband. Though such a provisional assessment was not permitted by the provisions of the Sea Customs Act, yet when the petitioner's husband has taken advantage of the same, the petitioners cannot in our opinion, not turn round and challenge it. We, therefore, repel this contention also."
In the instant case the appellants have challenged the judgment of the learned single Judge by filing special appeal within four days. For the reasons given earlier the appellants cannot be held guilty of acquisence and it cannot be said that they have waived their right to challenge the judgment of the learned single Judge. In fact that law laid down by the Hon 'bte Supreme Court and Andhra Pradesh High Court supports the case of the appellants.
11. This appeal is accordingly allowed with costs. The impugned judgment of the learned single Judge is set aside. Writ Petition No. 18654 of 1996 (Amar Nath Misra v. District Inspector of Schools, Ballia) is allowed and the order dated 20-5-1996 of the District Inspector of Schools, Ballia, recognising the election held by 'Sri Nagendra Kumar Pathak on 18-5-1996 and attesting his signature as Manager is quashed.
The District Inspector of Schools, Ballia is directed to hold the election of the Committee of Management in accordance with law within two months of production of certified copy of this judgment before him. Till the next election is held the College shall be run and managed either by the District Inspector of Schools or by any other responsible officer who may be nominated by him.
12. Appeal allowed.