C/M The Dadar Ashram Trust, Ballia ... vs Dr. Chandrashekhar Pandey And 5 ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.          
 
Court No. - 10
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 628 of 2016
 

 
Appellant :- C/M The Dadar Ashram Trust, Ballia And Another
 
Respondent :- Dr. Chandrashekhar Pandey And 5 Others
 
Counsel for Appellant :- Indra Raj Singh,S.M. Mishra
 
Counsel for Respondent :- C.S.C.,Rajesh Chandra Dwivedi,Vivek Verma
 
with
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 589 of 2016
 

 
Appellant :- C/M,Dadar Ashram Trust Society And 2 Others
 
Respondent :- Mahatma Gandhi Kashi Vidyapeeth,Varanasi And 5 Others
 
Counsel for Appellant :- Shivendu Ojha,Adarsh Singh,Prateek Bansal,Sri Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.,C.B. Yadav,C.L. Pandey,Rajesh Chandra Dwivedi,Shashank Shekhar,Vivek Verma
 
Hon'ble Arun Tandon,J.

Hon'ble Mrs. Sangeeta Chandra,J.

Civil Misc. Delay Condonation Application No.320497 of 2016

Delay in filing the Special Appeal has been explained to the satisfaction of the Court.

Delay is condoned.

Delay Condonation Application is allowed.

Order on Memo of Appeal

Heard learned counsel for the parties.

Counsel for the petitioner submits that writ petition No.58418 of 2008 as well as present appeal may be disposed at this stage without calling for any further affidavit.

While hearing the present Special Appeal a Division Bench of this Court framed two issues for consideration by a larger Bench under the judgment and order dated 3.10.2016 which read as under:-

"(a) Whether there can be a mandamus to the Authorised Controller / District Magistrate to hold election of office-bearers of a registered society contrary to the provisions of Section 25(2) of the Societies Registration Act.

(b) In the facts of the case, in absence of the determination of the electoral college in terms of the directions dated 3.1.2007 issued in Writ Petition No.48538 of 2007, whether there can be a direction to the Authorized Controller/District Magistrate to hold elections, more so when the Second Appeal is pending"

The aforesaid issues have been answered by the Full Bench under its judgment dated 16th December, 2016. The counsel for the appellant would contend that the majority opinion of the Full Bench may not be strictly correct. Inasmuch as extraordinary powers of the High Court under Article 226 of the Constitution of India cannot extend to confer jurisdiction not vested in the authority or to issue a direction which may run contrary to the statutory provision.

The Court has no competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of statutory provisions. In State of Punjab Vs. Renuka Singla, AIR 1994 SC 595: 1994 AIR SCW 330: (1994) 1 SCC 175, dealing with a similar situation, Supreme Court observed as under:-

"We fail to appreciate as to how the High Court or Supreme Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations...."

We are of the opinion that since the reference has been answered on the issues framed in the present appeal itself, it will not be proper for this Court to entertain any challenge on the correctness or otherwise of the Full Bench opinion. We leave the issue to be examined in a appropriate case. We are not expressing any final opinion in that regard. We only record that the majority opinion of the Full Bench would be binding upon us. We, therefore hold that the direction issued to the District Magistrate in the facts of the case for conducting the fresh elections of the Committee of Management warrants no interference in the present appeal.

So far as the second issues is concerned, the majority opinion in the Full Bench has held that the same is a factual issue which can always be examined by Special Appeal Bench.

In light of the said opinion of the Full Bench, we proceed to examine the correctness or otherwise of the direction issued for holding of the fresh elections without determination of the electoral college as was directed under the earlier orders of the High Court dated 3.1.2007 in writ petition No.48538 of 2007.

Relevant facts for deciding this issues are as under:-

Dadar Ashram Trust Society is a society registered under the Societies Registration Act. The said society runs a degree college affiliated to Mahatma Gandhi Kashi Vidyapeeth, Varanasi. It is not in dispute that the elections for the Committee of Management for managing the degree college are held in accordance with the bye laws of the Society. It is further not in dispute that an Authorized Controller has been working in the institution for long.

Writ petition was filed before the High Court being No. 48538 of 2007 (The Committee of Management, Dadar Ashram Trust Society and others Vs. Assistant Registrar, Firms, Societies and Chits, Azamgarh Region, Azamgarh & others) for getting fresh elections held. In the said writ petition, an order dated 3.1.2007 was passed requiring the District Magistrate to determine as to who are the valid members of the general body of the society enrolled in terms of Section 15 of the Societies Registration Act, 1860 after issuance of public notice, and after affording opportunity to the persons concerned. It was also provided that the District Magistrate may obtain necessary assistance from the Sub-Divisional Magistrate and the Assistant Registrar of the Firms, Societies and Chits for coming to the rightful conclusion.

A Civil suit was filed in the matter of dispute pertaining to membership of the Society being Original Suit No. 35 of 2001 (Shri Thakur Triloki Jai Maharaj though Rahul Rai Vs. Dr. Chandra Shekhar Pandey and others) which came to be dismissed on 17.12.2014. Thereafter, the plaintiff preferred an appeal before the Additional District Judge (Court No.4), Ballia being appeal No. 3 of 2014, which was also dismissed vide order dated 13.8.2015. Being aggrieved by the appellate order, the plaintiff preferred Second Appeal No. 16 of 2015 before this Court which is pending consideration both for the purposes of interim order as well as admission.

In the meantime, it appears that the petitioner- Dr. Chandra Shekhar Pandey made an application before the District Magistrate to get the fresh elections to be held because of the dismissal of the suit. The District Magistrate in turn required the Sub-Divisional Magistrate to do the needful. The Sub-Divisional Magistrate published the election programme on 18.6.2015. The aggrieved party approached the Vice Chancellor of the University with the prayer to stop holding of elections till decision in civil suit. The Vice Chancellor passed an order on 1.7.2015 requiring the authority concerned to put the elections in abeyance.

Not being satisfied, the petitioner-Dr.Chandra Shekhar Pandey filed Writ Petition No. 31246 of 2016, Dr. Chandra Shekhar Pandey Vs. M.G.K.V. Varanasi.

The Writ Court after taking note of the aforesaid facts has proceeded to direct that the elections may be held, ignoring the order of the Vice Chancellor, as there was no legal impediment in holding of the elections.

In our opinion, the direction issued by the writ Court vide order dated 3.1.2007 in Petition No.48538 of 2007 for determination of the electoral college first after affording opportunity of hearing to the parties and after publication of public notice would bind the parties. Unless the District Magistrate determines the electoral college in terms of the direction issued by the writ Court under its order dated 3.1.2007 passed in writ petition No.48538 of 2007 no fresh election for constituting the Committee of Management of Dadar Ashram Trust Society can be held. The District Magistrate must determine the electoral college. We have been informed that the District Magistrate on 18.10.2008 had expressed his inability to decide the electoral college on the ground that the dispute pertain consideration of the trust deed, over which the parties have been litigating since long. According to the District Magistrate the disputed issues cannot be adjudicated by him.

We are of the considered opinion that the District Magistrate is not correct in refusing to determine the electoral college. If he finds that any issue requires consideration of evidence, he must examine the evidence and decide the issue in terms of the direction issued by this Court referred to above leaving it open to the parties to challenge such determination of the electoral college by filling a civil suit.

We are, therefore, of the opinion that the writ Court was not justified in interfering the order of the Vice-Chancellor whereby elections were directed to be kept in abeyance till the determination of the electoral college by the District Magistrate in the facts of  the case.

We, therefore modify the judgment and order of the learned Single Judge dated 13.10.2016 and direct that the District Magistrate shall first determine the electoral college in terms of the order dated 3.10.2007 passed in Writ Petition No.48538 of 2007. Keeping in mind, the provisions of the bye-laws of the Society and the Statutory Provisions applicable.  Elections for constituting the Committee of Management of the Trust shall be held only thereafter.

This Special Appeal stands disposed of subject to the observations madeabove.

Order Date :- 25.8.2017

Junaid