Mohd. Taiyab, Secry., Azamgarh ... vs State Of U.P. And 13 Others
2014 Latest Caselaw 5372 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 37
 

 
Special Appeal No.  283 of 2014
 
Mohammad Tayyab              vs.        State of U.P. and others
 

 
with
 

 
Special Appeal No. 281 of 2014
 
Mohammad Tayyab       vs.         State of U.P. and others 
 

 
with 
 

 
Special Appeal No. 282 of 2014
 
Mohammad Tayyab        vs.         State of U.P. and others
 

 
Hon'ble Vineet Saran, J.

Hon'ble Mrs. Vijay Lakshmi, J.

This is a bunch of three special appeals directed against the judgement and order dated 24.2.2014 passed in separate writ petitions no. 7474 of 2014, 7634 of 2014 and 7727 of 2014, which were all filed against the order dated 29.1.2014 passed by the Election Officer.

The dispute in the present appeal is with regard to the election process for electing the members of the Managing Committee of the Azamgarh Muslim Education Society, Azamgarh (hereinafter referred to as the 'Society'), which runs two prestigious colleges, namely, Shibili National P.G. College, Azamgarh (hereinafter referred to as the 'PG College') and Shibli National Inter College, Azamgarh (hereafter referred to as to the 'Inter College').

The last elections of the managing committee of the society as well as of the two institutions were held on 30.1.2011, which were in terms of the directions issued by the Division Bench of this Court in Special Appeal No. 1736 of 2010. In the said elections held in the year 2011, there were 699 members of the general body of the society. It is not disputed that the general body of the society is the same as that of the two institutions. In terms of the said elections held on 30.1.2011, there were 18 members elected for the managing committee of the society and 18 separate members of the managing committee of the PG College, Azamgarh and 17 members of the managing committee of the Inter College, Azamgarh. The said elections were held by the Court appointed Additional District Judge as the Election Officer. No dispute with regard to the said elections was raised by any of the parties.

Then on 3.12.2013, the President of the then managing committee Sri Abu Saleh Ansari (respondent no. 12 herein) issued a notice for holding of fresh elections of the managing committee on 26.12.2013. Another notice dated 5.12.2013 was issued by the Secretary of the society Sri Mohd. Tayyab (appellant herein) fixing 29.12.2013 for elections of the managing committee. Five independent members of the general body then filed a writ petition no. 69973 of 2013 praying for a direction in the nature of mandamus to the Assistant Registrar to get the elections held through an independent authority. By detailed judgement and order dated 19.12.2013 passed in the said writ petition, the learned Single Judge passed an order for holding of elections of the managing committee as well as of two institutions of the society, which was in terms of the directions issued by the Division Bench of this Court in Special Appeal No. 1736 of 2010 with regard to the earlier elections. The said order was passed with consent of learned counsel for the parties. The operative portion of the said judgement dated 19.12.2013 passed in writ petition no. 69973 of 2013 is reproduced below:-

"In this view of the matter when all the parties have agreed that the election should be held by the Judicial Officer, it is appropriate that election for constituting the Committee of Management of the Society and the Institutions should be held by an Additional District Judge of Judgeship Azamgarh to be nominated by the District Judge, Azamgarh. The Judicial Officer, who shall act as the Election Officer, shall determine the members entitled to participate in the election after inviting objections and shall thereafter fix the election schedule on Saturday and Sunday in the month of January, 2014. The entire process should be completed by 31st January, 2014. Any person aggrieved with the list finalised by the learned Additional District Judge can file objections after the election is held and the result is declared before the appropriate authority. The Society shall also pay a sum of Rs.35,000/- as honorarium to the learned Additional District Judge nominated by the District Judge, Azamgarh. The parties shall file a certified copy of this order before the District Judge, Azamgarh who shall do the needful.

Needles to say that notices referred to above for holding the elections on 29.12.2013 and 26.12.2013 shall not be given effect to.

The writ petition is, accordingly, disposed of with the aforesaid observations."

Pursuant to the said order, the District Judge appointed Sri Jai Prakash, Additional District Judge to function as Election Officer for conducting the elections of the managing committee of the society as well as of the two institutions. Then, on 13.1.2014 an order was passed by Sri Jai Prakash, Additional District Judge, Azamgarh (functioning as Election Officer) wherein it was noted that he had been appointed as Election Officer by the District Judge vide order dated 8.1.2014. It was also noted in the said order that Dr. Z. Alam (respondent no. 4 in this appeal), Mohd. Tayyab (appellant), Ashraf Gaznavi (respondent no. 13 in this appeal) had filed applications dated 24.12.2013, 6.1.2014 and 1.1.2014 respectively and had filed their list of members of the society. A direction was given to hand over the respective lists to each other within three days and if anybody was aggrieved with the said list, they may file an objection within a week. The applicants were also directed to supply the Bye-laws of the society, the Rules and Scheme of Administration within a week to the Election Officer, so as to enable him to determine the electoral college. Then on 20.1.2014, the Election Officer issued notice to Sri Ashraf Gaznavi as Vice President of the society to submit the list of members of previous elections of the society and also inform as to how many such members had died and how many new members had been substituted in place of the dead persons. Then on 23.1.2014, the said Sri Ashraf Gaznavi wrote to the Election Officer that beyond 699 members, 239 members had been inducted vide resolution dated 2.12.2013, who may be included in the electoral college.

Thereafter by order dated 29.1.2014, the Election Officer held that out of 699 undisputed members approved and finalized by the Additional District Judge, Mau (Election Officer) on 9.1.2011 for the previous elections, 68 members had died. The enrollment of 267 members as submitted by Mohd. Tayyab as Secretary of the outgoing managing committee was accepted and the list of 239 members submitted by the outgoing Vice President of the society, on behalf of the President of the society, was rejected. Thus, 699 members minus 68 members i.e. 631 old members plus 267 newly enrolled members i.e. 898 members were approved and besides this on 23.1.2014, the Election Officer included the names of Ahmad Samiuddin and Dr. Khurshid Alam as members. Accordingly, the electoral college of the society was thus held to be of 900 members. The date for holding the election of the society was fixed for 15.2.2014. Consequently on 31.1.2014, a public notice was published in the newspaper notifying that the election of the managing committee of the Azamgarh Muslim Education Society, Azamgarh would be held as per the programme given in the notice, which was to the effect that nomination and scrutiny would be held on 8.2.2014, withdrawal by 9.2.2014 and polling, if necessary, on 15.2.2014. The counting was to be held immediately after the polling and the result was to be declared immediately after counting. The election of the office bearers was also to be held just after declaration of the result of the election of the society.

Challenging the said election schedule announced by the Election Officer, the managing committee of the society, through its President, as well as Sri Abu Saleh Ansari as President, Sri Ashraf Gaznavi as Vice President and Sri Adil Rasheed Khan as member of the managing committee filed writ petition no. 7474 of 2014 with the prayer for quashing the order dated 29.1.2014 passed by the Election Officer and also quashing the notice dated 31.1.2014 published in the newspaper announcing the election schedule and also for a direction to the authorities to consider and decide the objections with regard to the newly registered members, before holding the fresh election of the society. A further prayer was also made for changing the Election Officer, which may be a Judicial Officer, to hold the election and also for a direction to hold separate elections of PG College and Inter College. Besides this, another writ petition no. 7634 of 2014 was filed by the managing committee of the society through its Joint Secretary Abu Shahad @ Shammi as well as Abu Shahad in person, as petitioners, with the prayer for quashing the order dated 29.1.2014 passed by the Election Officer and for holding the elections after deciding the electoral college afresh after considering the objections raised by the parties. Another writ petition no. 7727 of 2014 was filed by Mohd. Rashid Khan claiming himself to be one of the 239 members, who had been enrolled by outgoing President but such list had been rejected by the Election Officer. In the said writ petition also, the order dated 29.1.2014 passed by the Election Officer had been challenged. The said three writ petitions were heard together and by a common judgement dated 24.2.2014, the same were allowed and the order passed by the Election Officer was set aside, with the following directions:-

"The learned district Judge, Azamgarh is requested to nominate any other Judicial Officer as an Election Officer who shall consider the material on record and pass a fresh order after hearing the concerned parties. The parties may appear before the learned District Judge within a week from the date of receipt of this order/judgment. The entire exercise of determination of Electoral Roll may be completed within six weeks from the date of nomination of an Election Officer by the learned District Judge, Azamgarh. The petitioners shall deposit a sum of Rs. 35,000/- as honorarium to the District Judge, Azamgarh. Other direction with regard to his leave etc. shall be applicable in terms of order of Special Appeal No. 1736 of 2010 dated 1.12.2010.

Any observation made in this order shall be without prejudice to the contention and interest of either of the parties.

The writ petition is allowed. "

Challenging the said judgement, Mohd. Tayyab, who is the Secretary of the outgoing managing committee of the society, has filed these three separate appeals, bearing no. 281, 282 and 283 of 2014. The special appeal no. 283 of 2014 has been treated as the leading appeal.

It may be relevant to mention that in writ petition no. 7474 of 2014, an interim order was passed on 7.2.2014 permitting the elections to be held as per the schedule but declaration of results had been stayed. After the dismissal of the writ petition, these special appeals were filed, and by order dated 26.3.2014 passed in all these three appeals, the effect and operation of the order dated 24.2.2014 passed by the learned Single Judge had been stayed and it was provided that the election process will be concluded from the stage of finalization of electoral college by the Election Officer. Pursuant thereto, the result of the election held on 14.2.2014 to the extent of election of 18 members of the managing committee of the society had been declared.

We have heard Sri P.N. Saxena, learned Senior Counsel appearing with Sri C.B. Gupta, learned counsel for the appellant in all the three appeals. We have also heard Sri Ashok Khare, learned Senior Counsel appearing with Sri S.K.S. Paliwal, learned counsel for the respondents no. 11 to 14 in special appeal no. 283 of 2014, (who were the petitioners in writ petition no. 7474 of 2014) as well as Sri Rakesh Bahadur, learned counsel appearing on behalf of respondents no. 4 and 5; and Sri G.K. Singh, learned Senior Counsel appearing with Sri M. Ahmad, learned counsel for the respondents no. 6 to 10. Learned Standing Counsel appearing for the State respondents has also been heard.

Besides this, we have heard Sri R.K. Ojha, learned Senior Counsel appearing with Sri Vipin Kumar Singh, learned counsel for the respondents no. 4 and 5 in special appeal no. 282 of 2014 (who were petitioners in writ petition no. 7634 of 2014). We have also heard Sri J.A. Azmi, learned counsel for the respondent no. 4 in special appeal no. 281 of 2014 (who was petitioner in writ petition no. 7727 of 2014). Sri J.P. Singh, who had filed an impleadment application/intervenor application in special appeal no. 283 of 2014 has also been heard under the provisions of Chapter XXII Rule 5-A of the Allahabad High Court Rules, even though his application for impleadment has not been allowed.

The submission of Sri P.N. Saxena, learned Senior Counsel for the appellant is primarily with regard to the maintainability of the writ petition, which is on two grounds. Firstly, according to the appellant, the directions of the learned Single Judge by order dated 19.12.2013 passed in writ petition no. 69973 of 2014 were to the effect that any person aggrieved with the list finalized by the learned District Judge can file objection, after the election is held and the result is declared, before the appropriate authority. Secondly, it has been contended that the writ petitioners had statutory alternative remedy available with them by way of filing an application under Section 25(1) of the Societies Registration Act against the election of the society and under Section 16(A)(7) of the Intermediate Education Act, 1921 with regard to the elections of the managing committee of the institutions and as such, the writ petition ought not to have been entertained on merits.

It has been submitted by Sri Saxena that because of specific directions given by the learned Single Judge vide order dated 19.12.2013, the only option available to an aggrieved person regarding finalization of list of members, after the elections were held, was by way of filing of objections before the appropriate authority and since the order had been passed by the consent of learned counsel for the parties in that writ petition (which included the parties herein), hence they were bound by the same and were estopped from challenging the order dated 29.1.2014 passed by the Election Officer by filing writ petitions. Besides this, he has emphatically argued that when an alternative remedy is available to a party, then the writ petition can be entertained only in three conditions, that is, for enforcement of fundamental rights or in case of violation of principles of natural justice; or where the authority passing the order does not have jurisdiction to do so. According to Sri Saxena, none of the three conditions existed in the present case and as such, the writ petition should have been dismissed on the ground of maintainability itself. It is thus submitted that no opportunity of filing of counter affidavit was afforded to the petitioner and it was the duty of the writ court to have first decided the preliminary objection regarding the maintainability of the writ petition and then only could the matter have been heard on merits and by not doing so, the writ court has deprived the appellants from the opportunity of presenting its case on merits.

Sri Ashok Khare, learned Senior Counsel appearing for the contesting respondents no. 11 to 14 (writ petitioner in writ petition no. 7474 of 2014) has however submitted that the observations made by the learned Single Judge in writ petition no. 69973 of 2013 vide order dated 19.12.2013 are only to the extent that the aggrieved person could file objections before the appropriate authority after the elections were over, but the same would not bar the filing of a writ petition where gross injustice has been done and the order has been passed by the Election Officer in complete violation of the directions of the writ court. He has however submitted that the said observations do not, in any way, prohibit the filing of a writ petition but only gives an option to the aggrieved party to approach the appropriate authority after the elections were held.

It was next contended by Sri Khare that the availability of alternative remedy is not an absolute bar but it is a self-imposed restriction by the High Court and in case where illegality has been committed by the authorities passing the order by way of either not complying with the directions given by the writ court or by way of passing an order without giving an opportunity to the parties concerned, there would be no bar in filing the writ petition. It is contended that on the facts of this case, where, according to Sri Khare, only the elections of the society were directed to be held by the Election Officer vide election notice/programme published on 31.1.2014, whereas the elections of the managing committee of the society as well as of two institutions were directed to be held by the writ court, would itself go to show that the Election Officer has not complied with the directions of the High Court. According to Sri Khare, the directions were specific that the Election Officer shall publish a tentative list of members and invite objections/suggestions and documentary evidence to establish their respective claims and then decide the objections, which was not done in the present case. According to him, only such objections, which had been filed by the three persons, were considered and no public notice inviting the objections had ever been issued. Even the objections of the three persons had never been decided, as no tentative list was published to which objections were invited by any notice to all concerned. It was only after the objections were called for and decided that a final list was to be published. By the order dated 29.1.2014, the Election Officer only decided the three objections, which were all filed prior to appointment of Election Officer on 8.1.2014 and by the same order the election schedule was also fixed, which, according to Sri Khare, is not permissible in law. It is also submitted that if objections filed by the party are rejected, without reason or on absurd reasons, the writ petition challenging such an order would always be maintainable.

According to Sri Khare, their list of 239 members was rejected solely on the ground that it was not presented by any office bearer, whereas, according to him, the objections were filed by the Vice President, who was also issued notice by the Election Officer on 20.1.2014 mentioning him as Vice President and requiring him to furnish the list of previous election of the society, meaning thereby that the Election Officer had himself acknowledged the objector as a responsible office bearer of the society. It is also contended that the objections had been filed by the Vice President, on his own behalf as well as on behalf of the President of the society and in no way the same could have been rejected solely on the ground that the same had not been filed by any office bearer. It is also submitted that the writ court is a Court of equity and maintainability of the writ petition would depend on the facts of each case and in the present case, the facts are such that it warranted interference by the writ court and as such, the order passed by the learned Single Judge is justified in law.

Sri Rakesh Bahadur, learned counsel appearing for the respondents no. 4 and 5 (who are members of the general body of the society) has supported the arguments of Sri Ashok Khare, learned Senior Counsel appearing for the respondents no. 11 to 14 (who were the writ petitioners in writ petition no. 7474). The submission of Sri Rakesh Bahadur is that the writ court had issued specific directions to the effect that list of members shall be determined only after inviting the objections, which was not done by the Election Officer as the only three objections, which were considered by the Election Officer, were the applications filed by the respondent no. 4, the appellant and respondent no. 13 in this appeal, which were dated 24.12.2013, 6.1.2014 and 1.1.2014 respectively. According to Sri Bahadur, since the Election Officer was appointed on 8.1.2014, the said applications could not be taken as objections invited by the Election Officer. It is submitted that even such objections were not decided in terms of the decision of the writ court, inasmuch as no tentative list of members was ever published by the Election Officer prior to inviting objections and thereafter no final list was published after deciding objections to the tentative list of members and prior to the fixation of the election schedule.

Sri Rakesh Bahadur has also submitted that the notice dated 31.1.2014 issued by the Election Officer is itself invalid, inasmuch as the same only provides for election of the managing committee of the society, whereas the elections of the society as well as the two institutions were to be held simultaneously, because the managing committee of the society as well as the institutions are separate. He relies on the memorandum of the Association and Rules and Regulations of the society, which provides for at least 18 members of the managing committee who shall thereafter elect the office bearers by ballot from amongst themselves for a period of three years. The scheme of administration of PG college provides for at least 18 members of the managing committee and the scheme of administration of the Inter College provides for not less than 12 and not more than 17 members. It is submitted that though the society and the PG college were to have 18 members each but it would not mean that all the members of the society would automatically become members of the managing committee of the PG College as they would have to be elected separately.

The election notice dated 31.1.2014, though in the heading mentions to be a notification for election of managing committee of the society as well as the two institutions, but in the body of the notice, it only provides election of managing committee of the society and sets out the programme for the same, which, according to Sri Bahadur, would not be permissible as the elections of the managing committee of the society as well as the two institutions were to be held separately in terms of the writ court's order dated 19.12.2014. In support of his submission, the learned counsel relies on the three elections which were held in the year 2011 on 30.1.2011 under orders of the High Court in special appeal no. 1736 of 2010 dated 1.12.2010. All the three elections were held separately on 30.1.2011 by the Election Officer appointed by the District Judge and the list of members of the managing committee of the society has been filed as Annexure-6 to this appeal, from which it is evident that 18 members of society were elected besides separate 18 members of the PG College and 17 members of the Inter College. Since the same procedure has not been followed in the elections held on 15.2.2014 in which only the elections of the managing committee of the society has been held, the entire process would be vitiated. It is thus contended that the managing committee of the society cannot be the same as that of the PG College and the Inter College. Supporting the case of the writ petitioners, Sri Rakesh Bahadur has thus submitted that the judgement passed by the writ court is perfectly justified and does not call for any interference.

Sri G.K. Singh, learned Senior Counsel appearing for the respondents no. 6 to 10 (who were all members of the managing committee of the society) has neither supported the case of the appellant nor that of the writ petitioners (respondents no. 11 to 14). According to the said respondents, the claim of the appellant Mohd. Tayyab (then Secretary of the society) by including 267 members said to have been made on 15.10.2011 was not in accordance with the scheme of the administration nor was the list of 239 members submitted by the writ petitioners (including President and Vice President of the society) said to have been added on 2.12.2013 were justified in terms of the scheme of the administration. According to Sri G.K. Singh, no members of the general body were ever added in any meeting of the managing committee of the society, of which his clients (respondents no. 6 to 10) had been members since 2011. His stand further is that the determination of the electoral college by the Election Officer vide order dated 29.1.2014 was neither proper nor in accordance with the directions of the writ court, as no tentative list had ever been published nor any objections were invited by the Election Officer to the list of members and the applications of only three persons had been considered without there being any public notice inviting objections. According to Sri G.K. Singh, the applications of the three persons were also never decided and the final list was published along with the announcement of the election schedule. It is contended that if the respondents no. 6 to 10 had also been given opportunity of filing objections and hearing, they would have placed their case before the Election Officer before he had taken decision with regard to finalization of the electoral college. It has also been submitted that the judgment of the writ court passed on 19.12.2011 had not been followed by the Election Officer. It is thus submitted that the judgement of the learned Single Judge dated 24.2.2014 allowing the writ petition is justified in law and does not call for interference.

Sri R.K. Ojha, learned Senior Counsel appearing for the respondents no. 4 and 5 in special appeal no. 282 of 2014 (who were petitioners in writ petition no. 7634 of 2014) claiming that the writ petition had been filed by his client as Joint Secretary of the managing committee, has adopted the arguments of Sri Ashok Khare. According to Sri R.K. Ojha, the list of 267 members submitted by the appellant as Secretary ought to have been rejected and the list submitted by the then President of 239 members ought to have been included and by not doing so, the Election Officer has committed gross illegality and thus his order has rightly been set aside by the learned Single Judge. He has also supported the submission that the list of 239 members submitted by the President/Vice President could not have been rejected merely by saying that it was not filed by any office bearers. He has also supported the stand of the other respondents that the separate elections of the managing committee of the society, PG College and Inter college, ought to have been held, as held in the year 2011.

Sri J.A. Azmi, learned counsel appearing for the respondent no. 4 in special appeal no. 281 of 2014 (who was one of the 239 members in the list submitted by the President) has adopted the arguments of Sri Ashok Khare and has contended that the list submitted by the President ought to have been accepted and the list of 267 members submitted by the then Secretary should have been rejected.

Sri J.P. Singh, Advocate has filed intervenor/impleadment application on behalf of one Mr. M.M. Veg, who was member of the managing committee and the Manager of the outgoing committee of the PG College. Though his impleadment application has not been allowed, yet under the provisions of Chapter XXII Rule 5-A of the Allahabad High Court Rules, he has been heard. Sri J.P. Singh has also adopted the submissions made by Sri Ashok Khare and Sri Rakesh Bahadur and has submitted that the directions given by the writ court vide order dated 19.12.2013 had not been complied with by the Election Officer, inasmuch as the elections of the managing committee of the society as well as the two institutions could not have been held together. However, according to him, both the list of new members, one submitted by the President and the other by the Secretary were bogus and ought to have been rejected by the Election Officer and the elections ought to be held with the electoral college consisting of 699 members minus those members who had expired.

We have heard learned counsel for the parties at length and have carefully perused the record.

The questions, which require determination by this Court, are:

(1) whether the writ petition challenging the order dated 29.1.2014 passed by the Election Officer whereby the list of members had been finalized by the Election Officer could be challenged in writ petition in the teeth of the observations made by the writ court vide order dated 19.12.2013 that after the elections and declaration of result, aggrieved party can file objection before the appropriate authority;

(2) when a party has statutory alternative remedy of challenging the election result of the society under Section 25 of the Societies Registration Act and election of the committee of management of the college under Section 16A(7) of the Intermediate Education Act, the writ petition ought not to have been entertained on the ground of availability of alternative remedy; and

(3) whether the Election Officer had complied with the directions of the judgement and order dated 19.12.2013 passed in writ petition no. 69973 of 2013 with regard to:

(a) holding of the elections of the managing committee of the society, PG College and Inter College, in accordance with the Rules framed by the society and the approved scheme of administration; and

(b) whether before finalizing the list of members, the objections were properly invited by the Election Officer and decided in terms of the said judgement.

As regards the first point, which is that the writ petition would not be maintainable as it was clearly provided by order dated 19.12.2013 (which was passed with consent of learned counsel for the parties) that 'any person aggrieved with the list finalized by the learned Additional District Judge can file objections after the election is held and the result is declared before the appropriate authority', we are of the view that such observations made by the writ court would not bar the challenge to the list finalized by the Election Officer and the declaration of the election schedule by filing a writ petition, which is a constitutional right. Such observations would only mean that the aggrieved party would have the opportunity to file objections before the appropriate authority if he was not satisfied with the finalization of the list or the declaration of the result, but the same does not, and probably cannot, bar filing of any writ petition in future challenging any action of the authorities or the Election Officer.

Sri P.N. Saxena, learned Senior Counsel appearing for the appellant has relied on the decision of the Division Bench of this Court dated 8.11.2013 passed in Special Appeal No. 1714 of 2013 (C/M Maharana Pratap Vidyalaya Prabandh Samiti vs. State of U.P.) wherein it has been declared that the principles of law laid down by the Apex court restraining the courts from interfering in the process of election after the elections are notified would be equally applicable to the elections of the office bearers of the committee of management of the society as well as committee of management to be elected in accordance with the provisions of the scheme of administration of the educational institutions. It has further been held in the said judgement that 'the Court has reason to believe that in future the Court will refuse to interfere in the process of elections until the elections are concluded and will refuse to entertain election disputes and relegate the parties to approach the Election Tribunals or to file civil suit to challenge the results of the elections.'

On the other hand, learned counsel for the respondents has placed reliance on the decision of the Division Bench of this Court rendered in the case of Rama Kant and others vs. Assistant Registrar, Firms, Societies and Chits, U.P. Varanasi, 2009 (4) ADJ 180 wherein in paragraph 6 it has been held that 'we are quite conscious of the fact that once the election process has started, the Court should not normally interfere but where it is found that certain persons cannot participate in the election on the basis of an earlier determination by the Competent Authority, there is no reason not to look into the same.'

Rule of alternative remedy is not an absolute bar and it depends on the facts of each case, as to whether the party may be relegated to approach the alternative forum available or to entertain writ petition.

The case at hand is on such facts where the directions had been given by the writ court (vide order dated 19.12.2013) to finalize the electoral college after publishing a tentative list inviting objections, yet when the same had not been done and the list finalized without complying with the directions of the writ court and the final list was published, with simultaneous announcement of the election schedule, we are of the opinion that entertaining a writ petition challenging the said action would not be barred. The directions by the writ court were in pursuance of the order dated 2.12.2010 passed in special appeal no. 1736 of 2010, which were quoted in the said order and the relevant portion of which is reproduced below:-

"........to hold the election of the Committee of Management of the society, the Post Graduate College and the Inter College in accordance with the Rules framed by the Society and the approved Scheme of Administration.........The Election Officer shall publish a list of tentative members and invite objections/suggestions with documentary evidence to establish their claim within seven days and decide the objections within seven days thereafter...."

Such directions given by the Division Bench were quoted in the judgement of the writ court dated 19.12.2013 whereafter it was directed that 'it is appropriate that election for constituting the Committee of Management of the Society and the Institutions should be held by an Additional District Judge.........The Judicial Officer, who shall act as the Election officer, shall determine the members entitled to participate in the election after inviting objections and shall thereafter fix the election schedule on Saturday and Sunday.......'. If there is total non-compliance of such directions, this Court can always, and should, interfere with the order of finalization of list of members by the Election Officer. As such, on the facts of the present case, the writ court was perfectly justified in entertaining the writ petition.

As regards the other question as to whether the objections were at all invited by the Election Officer or not and whether the same were properly decided or not, is concerned, we may only notice that after the appointment of the Election Officer by the District Judge on 8.1.2014, the Election Officer did not invite any objection whatsoever. All that the Election Officer had done was to issue an order dated 13.1.2014 in which it was noticed that Dr. Z. Alam (member of the society), appellant-Mohd. Tayyab (Secretary of the society) and Asharaf Gaznavi (respondent no. 13 in this appeal) had filed their respective applications on 24.12.2013, 6.1.2014 and 1.1.2014 with regard to the list of members of the society. All that was directed was that the three of them may exchange their list and aggrieved person may file their objections, which were to be decided within a week.

At no stage, was the tentative list of members ever published by the Election Officer or objections invited by him. The said applications, which have been decided, were of dates prior to the appointment of the Election officer, which was 8.1.2014. Merely deciding the said applications would not amount to inviting objections, and deciding the same, as objections ought to have been invited after publication of tentative list of members.

The submission of the learned counsel for the appellant that since objection had been raised with regard to the maintainability of the writ petition, hence he did not have opportunity to file counter affidavit and that the writ court should have invited counter affidavit and then proceeded to decide the matter on merits, does not have much force. The opening paragraph of the judgement of the writ court mentions that 'with consent of learned counsel for the parties, the writ petition and connected petitions are disposed of in terms of the Rule of the Court'. Besides this, the original record had been produced and perused by the writ court and as such, in the second paragraph it has been observed that 'original records were produced hence there is no need to call counter affidavit. Moreover no one has sought time to file counter affidavit'.

Besides this, in appeal also there is no denial of the fact that objections were never invited by the Election Officer or that any tentative list was published by him as directed to be done by the writ court vide order dated 19.12.2013. All that has been stated by Sri P.N. Saxena, learned counsel for the appellant is that since the writ petition itself was not maintainable and the preliminary objection regarding maintainability of the writ petition had been raised before the writ court, he did not have occasion to file documents in support of his case before the writ court. His challenge to the said order is only on the ground of maintainability of the writ petition. Such submission is wholly misconceived, inasmuch as when an order has been passed by the writ court on merits and no ground with regard to the merits of the decision of the writ court has been taken in the appeal, the only conclusion which can be drawn by us, is that the appellant has nothing to say on merits and is only questioning the maintainability of the writ petition on the ground of availability of alternative remedy.

Once we have held that in the facts of the present case, alternative remedy would not be a bar for entertaining the writ petition, the matter has to be considered on merits. We have considered hereinabove that on merits, the writ court was satisfied on perusal of the record that the objection/application of the Vice President (which was also filed on behalf of the President) was wrongly rejected merely by saying that the same was not filed by any office bearer, and that the same cannot be justified in law and facts as brought on record. The Election Officer had himself accepted Ashraf Gaznavi as Vice President of the society as in the communication dated 20.1.2014 he had not only been addressed as Vice President but also considered as a responsible office bearer of the society since he was asked by the Election Officer to furnish information regarding the list of members of the previous elections of the society and as to how many persons/members had died and how many new members had been substituted in place of the dead persons. Such information could only be called from a responsible officer. Since the said application/objection was filed by Ashraf Gaznavi as Vice President, and also on behalf of the President, the same could not have been rejected on a frivolous ground that it was not filed by any office bearer. The Election Officer ought to have looked into the merits of such application and considered and same.

As we have already pointed out above, it was only the applications filed by three parties, all dated prior to the appointment of the Election Officer, which were considered by the Election Officer. There was no publication of any tentative list of members and no objections were ever invited by the Election Officer as had been directed by order of the writ court dated 19.12.2014. As such, the order of the Election Officer, even if it is presumed that the applications had been correctly decided, would not be in terms of the order of the writ court as admittedly, neither any objections were invited nor any tentative list was published by the Election Officer.

For the foregoing reasons, we are of the firm opinion that the writ petition was rightly entertained by the writ court and the decision of the writ court is perfectly justified in law as well as on facts, and does not call for any interference.

This appeal is accordingly dismissed.

The writ court, vide its order dated 24.2.2014 had directed that 'the learned district Judge, Azamgarh is requested to nominate any other Judicial Officer as an Election Officer who shall consider the material on record and pass a fresh order after hearing the concerned parties. The parties may appear before the learned District Judge within a week from the date of receipt of this order/judgment. The entire exercise of determination of Electoral Roll may be completed within six weeks from the date of nomination of an Election Officer by the learned District Judge, Azamgarh. The petitioners shall deposit a sum of Rs. 35,000/- as honorarium to the District Judge, Azamgarh. Other direction with regard to his leave etc. shall be applicable in terms of order of Special Appeal No. 1736 of 2010 dated 1.12.2010'. Since there was an interim order passed in this appeal, the said directions could not be complied with. As this appeal has been dismissed, it is directed that such directions of the writ court be complied with in letter and spirit. The only modification, which is being made, is to the effect that the amount of Rs. 35,000/- to be deposited with the District Judge shall be paid by him to the Judicial Officer so nominated by him to function as Election Officer.

It is further directed that since notification dated 31.1.2014 issued by the Election Officer deserves to be quashed and has been quashed, fresh notification shall be issued after finalizing the electoral college of the society in terms of the judgement dated 19.12.2013 passed in writ petition no. 69973 of 2014 and the judgement dated 24.2.2014 passed in writ petition no. 7474 of 2014 and also as per the bye-laws of the society and the scheme of administration of the institutions. As already directed by the learned Single Judge, learned District Judge, Azamgarh shall nominate some other Judicial officer to function as Election Officer, who shall consider the material on record and pass fresh orders after publishing a tentative list of the members of the society and after inviting the objections, decide the same, if necessary, after hearing the parties concerned.

Any of the parties in these appeals may appear before the District Judge within a week from the date of receipt of this judgement and file the certified copy of this judgement whereafter the entire process may be completed expeditiously, preferably within six weeks from the date of nomination of the Election Officer by the District Judge, Azamgarh and the election may be held within three weeks after the finalization of the electoral roll.

The society shall deposit Rs. 35,000/- with the District Judge, Azamgarh which shall be paid as honorarium to the Judicial Officer so nominated by the District Judge to function as Election Officer. Besides the directions issued in the aforesaid two judgements, the directions issued vide order dated 1.12.2010 passed in special appeal no. 1736 of 2010 shall also be complied with.

There shall be no order as to costs.

 
Dt/29.8.2014
 
abhishek
 

 
(Vijay Lakshmi , J.)           (Vineet Saran, J.)