Allahabad High Court
Managing Committee, Shiksha Parishad ... vs Assistant Registrar Firms, Chits And ... on 8 December, 2004
Equivalent citations: 2005(2)AWC1951, 2005(1)ESC335, (2005)2UPLBEC1299
Author: V.C. Misra
Bench: V.C. Misra
JUDGMENT V.C. Misra, J.
1. Shri S.N. Srivastava, learned Counsel for the petitioners, Shri N.L. Srivastava, learned Counsel for the Respondent Nos. 3 and 4 and the learned Standing Counsel are present.
2. This writ petition has been filed seeking relief by way of a writ, order or direction in the nature of certiorari for quashing the impugned order dated 13.10.1997 (Annexure 17 to the writ petition) passed by Respondent No. 1, with further relief in the nature of mandamus commanding the respondents not to interfere in the peaceful functioning of the Managing Committee of Shiskha Parishad, Nagwa, district Ballia on the basis of the impugned order dated 13.10.1997.
3. The facts of the case in brief are that the petitioner had filed Writ Petition No. 25273 of 1994 for a direction to the Assistant Registrar, Firms, Chits and Societies-Respondent No. 4 to decide the matter relating to renewal of registration of Shiksha Parishad, Nagwa, district Ballia. Since it had not complied with the directions dated 21.7.1993 issued by this Court earlier in Writ Petition No. 32640 of 1992 this Court disposed off the Writ Petition No. 25273 of 1994 with the direction that the authority concerned will decide the dispute finally and expeditiously as possible and also pass final orders on the renewal application in accordance with law. In pursuance of the said order, the Registrar moved an application before this Court seeking permission to delegate his authority, which was allowed and the Deputy Registrar concerned was delegated the work to decide the same vide its order dated 4.4.1995 in favour of the petitioner. The Respondent No. 4 being aggrieved by the said order filed an appeal before the Commissioner, which was allowed by it. Being aggrieved, the petitioner and Respondent No. 4 both challenged the same. Writ Petition No. 26515 of 1995 filed by the petitioner was allowed and Writ Petition No. 29192 of 1995 filed by Respondent No. 4 was dismissed vide composite order dated 7.12.1995 (Annexure-13 to the writ petition) passed by this Court. A special appeal was filed challenging the order dated 7.12.1995, which was dismissed by order dated 28.10.1997 of this Court. However, a Writ Petition No. 27754 of 1997 was again filed by Respondent Nos. 3 and 4 in which the petitioner was not impleaded as a party and the writ petition was disposed of with the directions to the Registrar to consider the matter afresh and decide the question of validity of the office bearers to manage and supervise the society in question. The Assistant Registrar- Respondent No. 1 passed an order dated 23.10.1997 against the petitioner.
4. The petitioner being aggrieved by the impugned order dated 23.10.1997 (Annexure 17 to the writ petition) passed by Assistant Registrar-Respondent No. 1 holding therein that the petitioner was not a valid member of the society on the basis of Photostat copy of the alleged application moved by one late Guru Prasad Dubey, once a Vice-President of the society. Learned Counsel for the petitioner has submitted that the impugned order was in the teeth of the earlier orders passed by this Court, wherein the validity of the membership would be looked into, in case the dispute extended, and the matter was raised under the provisions of Section 25 of the Societies Registration Act before the Prescribed Authority, though no such complaint or dispute had been raised in this respect before the prescribed authority. The Respondent No. 1 wrongly and illegally accepted the list of 15 members submitted by Respondent No. 3 and did not consider the list submitted by the petitioner on the ground that since there is no clear indication of members who could be appointed as per the bylaws, and the principles of natural justice had been contravened, since at no point of time the opportunity of personal hearing which was specifically prayed for by means of an application dated 6.9.1997 was provided, nor the documents sought for the purposes of inspection were made available to the petitioner and the impugned order has been passed on the basis of surmises and conjectures without their being any lawful foundation and basis. Moreso, since the renewal had been granted on the application moved by the petitioner, there was no occasion for giving such a finding. Thus, the conclusions arrived at by the Respondent No. 1 while passing its impugned order dated 13.10.1997 was not sustainable in the eye of law being without jurisdiction, inasmuch as no provision under the Societies Registration Act empowered the Respondent No. 1 to review his own order passed on earlier occasions and affirmed by this Court. Also, because by the said impugned order absolutely unauthorised persons had been declared as members of the society whereas the rightful members of the society had been excluded, infringing their fundamental right guaranteed under Articles 9 and 10-C of the Constitution of India.
5. Learned Standing Counsel has submitted that in absence of any counter-affidavit on record, he is unable to place the facts before this Court and argue the case on behalf of the respondents.
6. The respondents till date have not filed their counter-affidavit in rebuttal to the averments made in the writ petition, inspite of time being granted to them on several dates on the request of their learned Counsel. It is settled law that if no affidavit, in rebuttal, is filed and the averments made in the affidavit are not controverted, then the said averments must be accepted as true and correct and the presumption is in favour of the petitioner in terms of Section 114, Illustration (g) of the Indian Evidence Act, 1872 as laid down in catena of decisions including AIR 1966 All. 156, AIR 1962 All. 407, AIR 1987 SC 479 and 1999 (82) FLR 709. In the absence of counter-affidavit, this Court is left with no option, but to accept the averments made in the writ petition to be correct and true. I find that the impugned order deserves to be quashed having not been passed in accordance with law.
7. I have looked into the record of the case and heard learned Counsel for the parties at length and find that there being no dispute raised before the Prescribed Authority challenging the membership of the petitioner under the provisions of Section 25 (1) of the Societies Registration Act and the earlier findings and directions issued by this Court from time to time in the writ petitions mentioned hereinbefore and without affording any opportunity of hearing to the petitioner, its membership had been wrongly not accepted. In view of the same, the order impugned, dated 13.10.1997 (Annexure-17 to the writ petition) passed by Respondent No. 1 is hereby quashed. The relief No. (ii) cannot be granted to the petitioner in view of the fact that during the pendency of this writ petition subsequent elections have taken place, and new Managing Committee is functioning and running the institution. The subsequent elections are not the subject-matter of the dispute in the present writ petition.
8. Under the above said facts and circumstances and observations made hereinabove, the writ petition is allowed accordingly. No order as to costs.