Ashwapati & Ors. vs State Of U.P. & Others
2014 Latest Caselaw 545 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 38
 

 
Case :- WRIT - C No. - 62617 of 2009
 

 
Petitioner :- Ashwapati & Ors.
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Vinod Sinha,Mahesh Sharma
 
Counsel for Respondent :- C.S.C.,M.D.Singh Shekhar,R.D.Tewari,Rajiv Sharma
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

1. The petitioners are three in number, who claim themselves to be life member of the general body of the Society, which has established an educational Institution. They are aggrieved by the order of the District Inspector of Schools, Meerut (for short, "the DIOS") dated 07.10.2009 whereby he has recognized an alleged election of respondent no. 4.

2. A brief reference to the factual aspects would suffice.

3. There is a society, which is registered under the provisions of the Societies Registration Act, 1860 (Act 21 of 1860). The said Society has established an Intermediate Girls College known as Swami Kalyan Dev Kanya Inter College, Kharkhauda, Meerut (for short, "the Institution"). It is recognized by the Board of High School and Intermediate Education, U.P. and is governed by the provisions of U.P. Intermediate Education Act, 1921 (U.P. Act No. II of 1921). The College does not receive any financial aid from the State Government. The aforesaid Institution is governed by the approved Scheme of Administration, wherein the term of the office bearers of the Committee of Management is provided three years one month. It further provides that in the event no election is held within the said period, an Administrator/ Prabandh Sanchalak shall be appointed who will hold the election of the Committee of Management.

4. It is stated that the Committee of Management outlived its term, therefore, on 03.03.2003 a Prabandh Sanchalak was appointed in the Institution to hold the election of the Committee of Management. The order appointing Prabandh Sanchalak was challenged by a writ petition no. 19213 of 2003. The said writ petition was dismised on 08 July 2005.

5. The Prabandh Sanchalak continued to function without holding any fresh election. In the meantime, it appears, a fresh programme was issued on 07 August 2009 by one Sri Randheer Singh for holding the election.

6. The grievance of the petitioners is that 08 persons have been enrolled as members illegally when the Prabandh Sanchalak was continuing. The objections were filed by various members of the general body before the Election Officer. It is averred that unanimous election is said to have been taken place which was recognized by the DIOS vide impugned order dated 07.10.2009.

7. A counter affidavit was filed by the respondent no. 3-DIOS, wherein it has been admitted that the Prabandh Sanchalak was appointed. It is stated in the counter affidavit that in 2006 fresh elections were held and papers were sent for grant of approval to the Regional Level Committee, however the matter could not be decided. Thereafter a fresh election has been held on 25 August 2009, in which Sri Prabodh Chandra Tyagi was elected as Manager and it was given recognition on 07.10.2009.

In the counter affidavit, the statement that the Administrator had enrolled the member, has not been denied.

8. The respondent no. 4 has also filed a counter affidavit. The stand of the respondent no. 4 is that the last undisputed election was held in 2003, in which Sri Ram Kumar Sharma was elected as Manager and Sri Ved Prakash Sharma as President. The said election was challenged by Writ Petition No. 19213 of 2003. Initially an interim order was granted in the said writ petition, however the writ petition was dismissed on 08 July 2005 and the interim order was vacated. After dismissal of the writ petition, an Administrator was appointed on 30 August 2005 with a direction to hold the election of Committee of Management of the Institution within a period of three months. The Administrator in the year 2006 initiated election proceeding and the election was held on 20 August 2006, in which Sri Ram Kumar Sharma was elected as President and Sri Prabodh Chandra Tyagi was elected as Manager. The fresh election was held in 2009. It is averred in the counter affidavit that said election was held after publishing a notice in the newspaper on 07 August 2009 and the Election Officer invited the objections to the electoral college on 14 August 2009, accordingly the election was held on 25 August 2009, wherein Sri Ram Kumar Sharma was elected as President and Sri Prabodh Chandra Tyagi as Manager. In the said election, it is stated, total 339 members of the general body of the Society participated.

9. I have heard learned Counsel for the respective parties and perused the record.

10. From the record it transpires that undisputed election was held in 2003. The Committee of Management failed to hold the election within time, therefore, the Prabandh Sanchalak was appointed in the Institution. It is stated in the counter affidavit filed by respondent no. 3 that the election, which was held in 2006, could not be recognized by the Regional Level Committee as the term of the Management stood expired.

11. In the counter affidavit filed by the respondent no. 4 it has not been claimed that the election of 2006 was recognized. If the said election was not recognized then the respondent no. 4 had no right to convene the meeting of general body to hold fresh election. The election ought to have been held by the Prabandh Sanchalak and not by the office bearers of the Committee, which was not recognized by the educational authorities.

12. As mentioned by the DIOS in his counter affidavit the Regional Level Committed failed to take any decision in respect of the recognition of the Committee of Management, which claimed to be elected in the year 2006. The respondent no. 4 claimed to be elected in the year 2006 election as also in the election held in 2009. Although it is mentioned in detail about the procedure adopted by the respondent no. 4 in holding fresh election of 2009 but it has to be considered whether they were authorized to hold the election or not. After the elections were held the petitioners have filed objections before the DIOS, a copy of the said objection has been filed by the petitioners as annexure-9 to the writ petition.

13. One of the objections of the petitioners was that 68 fresh members have been enrolled on 21 July 2008 when there was no Committee of Management. This issue has not been adverted to by the DIOS.

14. It is a trite law that the Prabandh Sanchalak does not have right to enroll any member. His appointment is always a stopgap arrangement. The object of the appointment of Prabandh Sanchalak is only to ensure that the election of the office bearers of Committee of Management can be held expeditiously. The Prabandh Sanchalak cannot be a substitute of the Committee of Management. It's role is limited to perform day to day administrative function till the duly elected Committee of Management takes over the affairs of the Institution again. If the Prabandh Sanchalak is permitted to enroll members, he can change the entire constitution of the general body, which may run counter to the very object of the Society and the Institution. This issue fell for consideration before the Supreme Court in the case case of Smt. Damyanti Naranga v. The Union of India and others, AIR 1971 SC 966. The Supreme Court while considering the said issue observed as under;

"6........Those cases are, however, inapplicable to the present case. The Act does not merely regulate the administration of the affairs of the Society. What it does is to alter the composition of the Society itself as we have indicated above. The result of this change in composition is that the members, who voluntarily formed the Association, are now compelled to act in that Association with other members who have been imposed as members by the Act and in whose admission to membership they had no say. Such alteration in the composition of the Association itself clearly interferes with the right to continue to function as members of the Association which was voluntarily formed by the original founders. The right to form an association, in our opinion, necessarily implies that the persons forming the Association have also the right to continue to be associated with only those whom they voluntarily admit in the Association. Any law, by which members are introduced in the voluntary Association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association. If we were to accept the submission that the right guaranteed by Art. 19(1)(c) is confined to the initial stage of forming an Association and does not protect the right to continue the Association with the membership either chosen by the founders or regulated by rules made by the Association itself, the right would be meaningless because, as soon as an Association is formed, a law may be passed interfering with its composition, so that the Association formed may not be able to function at all. The right can be effective only if it is held to include within it the right to continue the Association with its composition as voluntarily agreed upon by the persons forming the Association........"

15. The same issue was considered by this Court in Ranbir Singh v. District Inspector of Schools, Jalaun at Orai, 2000(38) ALR 431. Similar view has also been considered by this Court in Committee of Management, Rashtriya Madhyamik Vidyalaya, Rampur Sayed Raza, Chandauli, through its Manager Sri Ram Chandra Singh and another v. Joint Director of Education (Madhyamik), Vth Region, Varanasi and others, (2003) 3 UPLBEC 2175. This Court held thus;

"10. An inspiration may be drawn from the aforesaid decision of the Apex Court to come to the conclusion that the act of the Authorised Controller who is appointed to meet certain exigencies, to enroll new member, clearly violates the rights of the original and life members of the Society, inasmuch as, the new members, imposed upon the Society by the Authorised Controller may not be acceptable to them. The fundamental right of the original members to form an association or Society, which takes within its swoop, to continue the association is undoubtedly infracted by the unwarranted act of the Authorised Controller and therefore, has to be termed as bad in law."

16. What emerges from the aforesaid judgements is that the authorised controller has no authority to enroll the members of general body. If such members, enrolled by the authorized controller, are permitted to participate in the election, such election is vitiated.

17. In the case in hand the DIOS in his counter affidavit has clearly stated that the election of 2006 could not be recognized and the fresh election has been held in 2009 then the issue with regard to the enrollment of 68 members was a relevant point, which needed attention of the DIOS while recognizing the Committee of Management-respondent no. 4.

18. Pertinently, at the time of moving of this writ petition, this Court has stayed the impugned order thus the Committee of Management was not entitled to continue in view of the interim order. It is a well settled law that any action contrary to the orders of the Court is a nullity. The reference may be made to the judgment of Delhi Development Authority Authority v. Skipper Construction Co. (P) Ltd. and another, (1996) 4 SCC 622.

"18. The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke v. Chadburn1 Sir Robert Megarry V-C observed:

"I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Willful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they ere liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."

19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Limited v. S.Suppiah2 and Sujit Pal v. Prabir Kumar Sun3. In Century Flour Mills Ltd. it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the Court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognize that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.

20. In Sujit Pal a Division Bench of the Calcutta High Court has taken the same view. There, the defendant forcibly dispossessed the plaintiff in violation of the order of injunction and took possession of the property. The Court directed the restoration of possession to the plaintiff with the aid of police. The Court observed that no technicality can prevent the court from doing justice in exercise of its inherent powers. It held that the object of Rule 2-A of Order 39 will be fulfilled only where such mandatory direction is given for restoration of possession to the aggrieved party. This was necessary, it observed, to prevent the abuse of process of law."

19. It can be seen from the law laid down in the aforementioned case that any act in violation of the interim order of the Court has to be undone. In the present case in spite of the interim order granted by this Court on 19 November 2009, staying the operation of the order dated 07 October 2009, whereby the respondent no. 4's Committee of Management was recognized, the said Committee continued to function, thus the continuance of the said Committee was illegal as it was in the teeth of the order passed by this Court. Accordingly, the order dated 07.10.2009 (Annexure-11 to the writ petition), whereby the election held on 28 August 2009 was recognized, is set aside. The Joint Director of Education is directed to place the objections of the petitioners before the Regional Level Committee. The petitioners are at liberty to file a fresh representation with certain documents within a period of three weeks from the date of receipt of certified copy of this order before the Joint Director, who shall place the same and other materials before the Regional Level Committee. The Regional Level Committee shall pass the appropriate order after hearing the parties concerned. The said exercise shall be completed by the Regional Level Committee within two months from the date of communication of this order. Till the fresh decision is taken by the Regional Level Committee the DIOS shall appoint an Administrator / Prabandh Sanchalak to look after day to day affairs of the Institution and the salary shall be paid by single operation till the fresh decision is taken by the Regional Level Committee.

20. Thus the writ petition is allowed.

21. No order as to costs.

Order Date :- 4.4.2014

DS/-

Hon'ble Pradeep Kumar Singh Baghel,J.

Writ petition is allowed.

For order, see my order of the date passed on separate sheets (seven pages).

Order Date :- 4.4.2014

DS/-