Pankaj Lunia And 4 Others vs State Of U.P. And 3 Others
2017 Latest Caselaw 1753 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 

 
Case :- WRIT - C No. - 59398 of 2016
 
Petitioner :- Pankaj Lunia And 4 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shivam Yadav,Vashishtha Tiwari
 
Counsel for Respondent :- C.S.C.,Adarsh Bhushan,Mahesh Chandra Chaturvedi,Suresh C. Dwivedi
 
			And
 
Case :- WRIT - C No. - 6268 of 2017
 
Petitioner :- C/M Surya Nagar Educational Society And Another
 
Respondent :- State Of U.P. And 8 Others
 
Counsel for Petitioner :- Adarsh Bhushan,Shashi Nandan
 
Counsel for Respondent :- C.S.C.,Anadi Krishna Narayana,Sandeep Singh,Saurabh Yadav,Shivam Yadav
 

 
Hon'ble Manoj Kumar Gupta,J.

Both the petitions relate to the dispute of management of a registered society in the name of Surya Nagar Educational Society1. With consent of learned counsel for the parties, both the matters were heard together and are being decided by this common judgment. Writ-C No.59398 of 2016 would be treated as the leading petition. The petitioners therein claim themselves to be members of the Committee of Management2 of the said Society. They have assailed the order dated 13.12.2016 passed by the second respondent, Prescribed Authority/Sub Divisional Magistrate in purported exercise of power under Section 25 (1) of the Societies Registration Act, 18603. They have also prayed for issuance of a writ of mandamus restraining the State respondents from registering the list of members of the Society in pursuance of the impugned order. The companion writ petition is by the rival Committee whose election has been recognised by the second respondent by the order impugned in the leading petition. The relief claimed is for issuance of a mandamus commanding the fourth respondent, Bank of Baroda, to lift the restriction imposed upon it in operating the accounts of the Society.

The facts in brief are that last election of the Committee was held in the year 2013. Under the approved bye-laws of the Society, the term of the Committee is three years. Clause 7 (ga) (6) of the bye-laws contemplates holding of fresh elections before expiry of the term of the Committee. Indisputably, the last election was held in the year 2013 in which petitioner no.1 was elected as Working President and petitioner no.3 as a member of the Committee. Manish Jain, respondent no.4, was elected as President, one Akash Lunia as Secretary and one Km. Priyanka Lunia as treasurer. The dispute between the parties came into existence on account of holding of an alleged meeting on 20.11.2015 in which the fourth respondent, Manish Jain, the President, claims to have expelled 46 life members and inducted 2 patron members and 56 life members (total 58 members). As a counterblast, the petitioners claim that they held a separate extraordinary General Body meeting on 5.12.2015, which was attended by 155 members, wherein decision was taken to seize all powers of the President (the fourth respondent) and petitioner no.1, the Working President, was authorised to appoint a committee to conduct elections of the managing committee of the Society. This resulted in division of the Committee into two factions, one represented by petitioner no.1 (hereinafter referred to as 'Lunia brothers') and the other by the fourth respondent, Manish Jain.

Both the factions filed various complaints against each other before the administrative authorities. The Commissioner, Meerut Division, Meerut taking cognizance of one such complaint filed by Lalit Garg, belonging to the group represented by the fourth respondent, directed the Senior Superintendent of Police, Ghaziabad to get the matter investigated and to take appropriate action against Lunia brothers. It was followed by a communication dated 21.12.2015 by the Commissioner addressed to the District Magistrate, wherein petitioners 1 and 3 and other members belonging to their faction, were restrained from entering the school premises. By another communication issued by the Commissioner on the same date, the Deputy Registrar, Firms, Societies and Chits, Meerut was restrained from taking cognizance of any complaint made by Lunia brothers. The Additional District Magistrate (Administration) Ghaziabad acting on behalf of District Magistrate, Ghaziabad by communication dated 4.1.2016 directed Circle Officer, Ghaziabad to hold an enquiry into the complaint made by the fourth respondent, the President of the Society by application dated 1.01.2016 against Lunia brothers and to take necessary action.

The Society through Secretary Akash Lunia challenged these orders passed by the administrative authorities by filing a writ petition4. The writ petition was entertained by this Court and learned standing counsel was granted time to obtain instructions from the Commissioner and the District Magistrate as regards the power under which such directions were issued. On 19.2.2016 learned standing counsel on instructions received from the administrative authorities, apprised the Court of the fact that earlier orders by which restriction was imposed on entry of Lunia brothers in the school premises had been lifted by order dated 15.1.2016 passed by the Additional Commissioner. This Court, taking notice of the said fact, disposed of the writ petition observing that no lis survived for adjudication, but with liberty to the parties to avail suitable remedies against subsequent acts or orders passed by the authorities, in case they felt aggrieved.

According to the faction represented by the fourth respondent, a meeting of the Committee was held on 4.2.2016 in which one Smt. Rekha Chaudhary was appointed as Election Officer for conducting the election of the Committee. She issued an election notification on the same date i.e. 4.2.2016. In pursuance of the said notification, only one nomination was received for each post, consequently, all the candidates were declared elected unopposed on 10.2.2016. In the said election, the fourth respondent claims to have been re-elected as President whereas one Dr. Alam Ali Sisodia as General Secretary. According to the petitioners, they could not participate in the said election in view of restraint order issued by the administrative authorities against them. They have held a parallel election on 12.2.2016 outside the school premises, in which the third petitioner claims to be elected as President. The third respondent, Deputy Registrar, Firms, Societies and Chits, Meerut by order dated 29.3.2016 recognised the election dated 10.2.2016 in which the fourth respondent was elected as President, whereas the election set up by the petitioners dated 12.2.2016 has been held to be invalid.

According to the petitioners, even before the third respondent passed the order dated 29.3.2016 recognising the election set up by the fourth respondent, the petitioners as well as various other members had filed a Reference before the second respondent under Section 25 (1) of the Act challenging the election dated 10.2.2016. The second respondent, taking cognizance of the same, had issued notice on 29.3.2016 and thereafter he proceeded to decide the Reference by order dated 6.7.2016. The second respondent also recognised the election dated 10.2.2016 set up by the fourth respondent, whereas the election dated 12.2.2016 set up by the petitioners was held to be invalid. Aggrieved thereby, the Committee of Management of the Society through its Secretary Anil Kumar Goyal and another filed Writ Petition No.39888 of 2016. This Court by judgment dated 21.9.2016 allowed the writ petition holding that the order passed by the second respondent is a cryptic and non speaking order, bereft of any discussion as regards the validity of the election set up by the fourth respondent and also without returning any finding as to the validity of the electoral college on basis of which election was held. Consequently, the order dated 6.7.2016 passed by the second respondent as well as the order dated 29.3.2016 passed by the third respondent were set aside and the matter was remitted to the second respondent for deciding the matter afresh by a reasoned and speaking order, after taking into consideration the rival contentions and objections of the parties. In pursuance thereof, the second respondent has passed a fresh order on 13.12.2016 which, as noted above, has been assailed in the leading petition. On 17.12.2016, this Court while entertaining the petition stayed the operation of the impugned order dated 13.12.2016. When the said order was communicated to the Bank of Baroda, the fourth respondent in the companion petition, it passed an order freezing operations of saving bank accounts of the Society at the instance of the Committee elected on 10.2.2016. Subsequently, the order was modified and a restraint was put only on the withdrawal of money from the accounts. The Committee elected on 10.2.2016 being aggrieved thereby has filed the companion writ petition.

The parties have exchanged their pleadings in the leading petition and they agreed for both the petitions being heard finally and accordingly, with consent, both the petitions were heard finally.

Sri G.K. Singh, learned senior counsel appearing on behalf of the petitioners in the leading writ petition submitted that the election set up by the contesting private respondent dated 10.2.2016, while the restraint order against the Lunia Brothers was in force, is wholly illegal inasmuch as the petitioners and other members were prevented from participating in the said election in view of the restraint order. According to him, the order of the Additional Commissioner dated 15.1.2016 revoking his earlier order dated 21.12.2015 came to the knowledge of these members only on 19.2.2016 when a statement in that regard was made before the Court hearing Writ Petition No.2582 of 2016. According to him, the petitioners had no knowledge of the order dated 15.1.2016 prior to 19.2.2016. Consequently, the petitioners and large number of other members against whom restraint order was passed could not contest or participate in the elections held by the election officer Smt. Rekha Chaudhary. It is submitted that since the rival group represented by Lunia brothers and other members belonging to the said faction were restrained from entering the school premises, consequently, there was no contest and the fourth respondent was declared elected unopposed. He further submitted that the election programme was notified on 5.2.2016 and the election result was declared within a short period of less than one week on 10.2.2016, although under clause 7 (ga) (5) the election notification is required to be issued at least 15 days in advance. Apart from it, the other grave illegality in the election set up by the fourth respondent is that the election officer Smt. Rekha Chaudhary herself claims to have been elected as Secretary, which is sufficient proof of the fact that the election set up is a farce. He further submitted that the last election was held in June 2013 and thus fresh election could not have been held in February 2016, as thereby, the three years tenure of the Committee fixed under the bye-laws has been curtailed. He also challenged the validity of the meeting held on 20.11.2015 in which 46 life members were expelled and 58 new members were inducted by contending that there was no agenda in the said meeting for expulsion of any member and for enrollment of new members. The second respondent in the impugned order has recorded a perverse finding in regard to the validity of the meeting dated 20.11.2015 by misreading the agenda. He also submitted that the findings recorded in the impugned order on various other issues are illegal and perverse and various affidavits filed in support of the Reference petition had been ignored from consideration on wholly irrelevant and extraneous considerations.

On the other hand, Sri Ashok Khare, learned senior counsel appearing on behalf of the fourth respondent contended that the petitioners have no right to maintain the instant writ petition. He pointed out that only five persons have approached this Court, whereas the strength of the General Body was 339 when elections were held in the year 2013 and after expulsion of 46 members and induction of 58 new members, the strength of members was 351. He submitted that under Section 25 (1), a Reference could be entertained only if it is made by at least one-fourth of the members of the Society. According to him, when the Reference could only be entertained at the instance of at least one-fourth members of the Society, the same logic would be applicable to the writ proceedings. It is urged that since the instant petition is only by five members, which is far less than one-fourth of the total strength of the Society, consequently, it is not maintainable. He placed on record a certified copy of the Reference application and submitted that it was signed only by five persons namely (1) Pankaj Lunia (2) B.S. Lunia (3) Anil Kumar Goyal (4) Smt. Chanda Tripathi and (5) Bimal Pal Surana, whereas the instant petition has been filed by only three amongst them, namely, Pankaj Lunia, Anil Kumar Goyal and Bimal Pal Surana (petitioners 1, 2 and 5). He further submitted that although alongwith the Reference petition a list of members had been filed and some of whom had purportedly signed the list, but that would not mean that the Reference was at the instance of all the members who had signed the list accompanying the Reference petition. In other words, according to him, the Reference petition should have contained name of all the members in the cause title and should also have been signed by them or at least by the lawyer representing them. Thus, in his submission, the Reference sought itself was not entertainable, as it was not sought by at least one-fourth members of the Society. He further submitted that the members, who were expelled in the meeting dated 20.11.2015, have instituted Original Suit No.357 of 2015, which is still pending. Therein, the application for temporary injunction filed by them has already been rejected. Therefore, the issue relating to the validity of the meeting in which 46 members were expelled, is to be decided in the suit and the same cannot be agitated before this Court.

The contention raised by Sri Ashok Khare regarding maintainability of the writ petition at the instance of the petitioners is first taken up for consideration. In support of his contention, Sri Khare has placed reliance on judgment of a learned Single Judge of this Court dated 10.5.2010 in Mohd. Imran Vs. State of U.P. and others5. In the said writ petition, which was at the instance of one life member, the validity of the order of the Deputy Registrar by which he turned down the objections filed by him against the registration of the list of office bearers under Section 4 (1) was under challenge. The writ petition was opposed by contending that under Section 25 (1) the dispute of office bearers of the Society could be raised before the Prescribed Authority at the instance of at least one-fourth members. It was urged that in case a petition at the instance of one life member is entertained, the restriction imposed by the statute would be circumvented. The aforesaid objection was opposed by placing reliance on a Division Bench decision dated 7.5.2007 in Writ Petition No.43508 of 2006 (Yogendra Singh and another Vs. State of U.P. and others), wherein it was held as under:-

"We do not have the slightest hesitation in accepting the broad submission of Mr. Tripathi that the provisions of Section 25 (1) of the Act cannot curtail the powers of this Court under Article 226 of the Constitution of India but the question in the present case is as to whether in the face of it, it was a fit case, for exercise of jurisdiction under Article 226 of the Constitution of India. Section 25 (1) of the Act, inter-alia provides for resolution of the dispute of office bearers of a society and it contemplates that the prescribed authority may, on a reference made to it by the Registrar or by at least one-fourth of the members of a Society, hear and decide any dispute in respect of the election or continuance in office of an office bearer of such society.

Admittedly, the petitioners do not present (sic represent) 1/4 members of the Society. In the face of it, we are of the opinion that the power of judicial review under Article 226 of the Constitution of India was not fit to be exercised at the instance of the petitioners.

We do not find any merit in the appeal and it is dismissed accordingly."

The learned Single Judge while accepting the broad proposition laid down in the said judgment that the restriction imposed by Section 25 (1) cannot curtail the powers of this Court under Article 226 of the Constitution did not consider it a fit case for invoking its power of judicial review under Article 226 of the Constitution having regard to the facts of that case and dismissed the writ petition.

The other judgment cited by Sri Ashok Khare is also a judgment by a learned Single Judge in Kalrav Agrawal and another Vs. State of U.P. and others6. In the said case, two members of the society challenged the order passed by the Deputy Registrar under Section 4 registering the list of office bearers. The Court held that under Section 25 of the Act, a Reference is maintainable only at the instance of at least one-fourth members of the society, consequently, writ petition at the instance of only two members could not be entertained. It has been observed that in case the said restriction imposed by the statute is relaxed in entertaining a writ petition, it would open a flood gate of litigation. It is pointed out that the said judgment has been upheld by a Division Bench in special appeal.

There cannot be any manner of doubt that a Reference could be sought under Section 25 (1) by at least one-fourth of the members of a society. The said restriction appears to have been placed by the statute in order to curb frivolous litigation at the instance of individual members or by a body consisting of less than one-fourth members. Thus, in a given case where an individual member of the society or some of them, whose number is less than one-fourth, directly invokes the jurisdiction of this Court under Article 226 of the Constitution raising a dispute which falls within ambit of the jurisdiction of the Prescribed Authority under Section 25 (1) of the Act, this Court has placed a self imposed restriction in not exercising its power under Article 226 of the Constitution. It has been held that in such circumstances, if a writ is entertained, notwithstanding the restriction imposed by statute, it would result in a spate of litigation. However, in the instant case, the Reference was supposedly at the instance of more than one-fourth members of the Society. Though there is a dispute between the parties in regard to the manner in which the Reference petition had been drafted and whether the members whose names are mentioned in the list accompanying the Reference petition could be said to be persons seeking reference and which dispute shall be dealt with at a later stage but what is relevant for deciding the preliminary objection in regard to the maintainability of the writ petition is the fact that as per the case of the petitioners, the Reference sought was by more than one-fourth members of the Society. Assuming the same to be correct, the Prescribed Authority would be well within its jurisdiction in proceeding to decide the Reference on merits. In such an eventuality, could it be said that after the Reference has been decided by the Prescribed Authority on merits, all those seeking Reference, whose number should be at least one-fourth of the total members, should approach this Court challenging the same. In the opinion of the Court, once the Prescribed Authority upon being satisfied that the Reference had been made by at least one-fourth members, decides the same on merits, it is not necessary that all of them should approach this Court for challenging the same. The jurisdiction of this Court under Article 226 of the Constitution could in such circumstances be invoked by only few members who may be less than one-fourth provided they had themselves sought the Reference alongwith the others before the Prescribed Authority. The restriction placed by the Statute is at the initial stage while setting law in motion raising a dispute covered by Section 25 (1). Even that restriction per se is not applicable to writ proceedings, albeit the Court ordinarily refrains from entertaining a dispute at the instance of individual members. However, once the law has been set in motion in the manner prescribed by the statute, the writ jurisdiction under Article 226 could be invoked by only few members and not necessarily by all those who had sought the Reference at the initial stage. The decision cited by Sri Khare would be applicable only where less than one-fourth members have directly invoked the jurisdiction of this Court in seeking to raise a dispute covered by Section 25 (1) of the Act and in which situation, this Court may decline to exercise its power having regard to the restriction placed by statute. However, as observed above, the said restriction would not be applicable when the power of judicial review is invoked to assail the validity of the order of the Prescribed Authority passed on a Reference sought at the instance of one-fourth members of the Society. Even in cases where the reference is sought purportedly by more than one-fourth members, but the Prescribed Authority rejects the Reference by returning a finding that the Reference was not sought by at least one-fourth members, the said finding could be challenged before this Court in writ proceedings by those members, notwithstanding the finding that their number is less than one-fourth. It is for the reason that the finding recorded by the Prescribed Authority that the reference was not by at least one-fourth members had not been accepted to be correct but has been subjected to challenge in the writ petition. In a given case, this Court may come to the conclusion that the finding recorded by the Prescribed Authority is perverse and may accept the contention that the Reference was by at least one-fourth members and thus maintainable. However, the position would be entirely different in a case where the jurisdiction of this Court is invoked without assailing the finding recorded by the Prescribed Authority that the Reference sought before it was not by at least one-fourth members. Undoubtedly, in such a situation, this Court would be justified in dismissing the petition as not maintainable having regard to the fact that the law was not set in motion at the threshold by at least one-fourth members of the Society.

In view of the foregoing discussion, this Court is of the opinion that the instant petition though at the instance of only few members is perfectly maintainable, having regard to the fact that the Reference was supposedly at the instance of more than one-fourth of the total members.

I now proceed to consider the other limb of argument of Sri Ashok Khare that the Reference petition itself was not maintainable. According to him, the Reference should be treated to be at the instance of only five persons, whose names were mentioned in the cause title and not at the instance of those who had merely signed the accompanying list of members. In support of the said contention, he has placed reliance on a judgment of this Court in Committee of Management Gramya Vikas Uchattar Madhyamik Vidyalaya Samiti and another Vs. State of U.P. and others7 wherein it has been held as under:-

"Next question that calls for consideration is as to whether the reference has been made in accordance with Section 25(1) of the Act of 1860. It is admitted case of the respondents that reference was filed by respondent nos. 6 & 7 which was accompanied by the signatures of 71 members whom they claims to be members of the general body. The question that calls for consideration is as to whether petition/reference can be maintained by two persons accompanied by the signatures of other persons was valid reference or not. Expression used is that one forth of members must initiate proceedings under sub Section (1) of Section 25 of the Act in case no reference is made by the Assistant Registrar. The word 'reference' has been defined as 'an act of referring the case to a referee and find facts and submit report to the courts. The statute provides that one fourth members of society can make reference and the said reference has to be petitioned by such members. They cannot only endorse their signatures which is appended with the petition/reference made by two members as in the present case. The reference has to be moved by all the one fourth members of the society, which is not done in the present case. The petition/reference has not been signed by all the one fourth members of the society. Reference made by two members, is prima facie not maintainable."

A photo copy of the Reference petition has been filed alongwith the writ petition. Sri Ashok Khare, learned senior counsel appearing on behalf of the contesting private respondent has placed on record a certified copy of the Reference petition while making his submissions. A perusal thereof reveals that cause title of the Reference petition contains name of five persons as applicants namely (1) Pankaj Lunia (2) B.S. Lunia (3) Anil Kumar Goyal (4) Smt. Chanda Tripathi and (5) Vimal Pal Surana. The petition is signed by these persons as well as by their advocate Yogendra Pawar. The title of the petition specifically states that a Reference is being sought by one-fourth members of the Society under Section 25 (1) challenging the election dated 10.2.2016. Para 1 states that Reference petition is being presented before the Prescribed Authority by more than one-fourth members. At the foot of the Reference petition it is stated that the list of members is contained in the following pages. Thereafter two lists of members are enclosed. List no.1 is the list of members of the Society containing 116 names against which some of the members had duly signed while those not seeking Reference had not signed. List no.2 contains name of 46 members who were expelled in the meeting dated 20.11.2015. The expelled members on whose behalf Reference had been sought have signed against their names. It is not in dispute that all the persons who had purportedly put their signatures on the Reference petition as well as both the lists would add up to much more than one-fourth of the total members.

The recital contained in the title of the petition to the effect that the petition is at the instance of more than one-fourth members, that in paragraph 1 of the petition and at the foot of the Reference petition, when read together, leads to an irresistible conclusion that the Reference petition purports to be on behalf of not only five members whose names are mentioned in the cause title but also those persons who had signed the list of members which has been made part and parcel of the Reference petition. The proceedings before the Prescribed Authority are summary proceedings. The provisions of the Code of Civil Procedure or the rules of pleadings are not applicable. A hyper technical approach is therefore to be eschewed. Having regard to the same, this Court is of the opinion that the petition as framed would be deemed to be a Reference not only by five persons whose name is mentioned in the cause title, but also those who had singed the list of members accompanying the reference petition.

In Committee of Management Gramya Vikas Uchattar Madhyamik Vidyalaya Samiti (supra), the Reference petition was filed by only two members and it was accompanied by signatures of 71 members. The facts narrated in the judgment does not indicate that in the Reference petition there was any reference to the accompanying list containing signatures of 71 members. It seems that for the said reason it was held that mere endorsement of signatures by certain members to a petition filed by only two members would not tentamount to a petition by all of them. However, in the instant case, as noted above, the Reference petition time and again makes a specific reference to the fact that the Reference petition is by more than one-fourth members. At the foot of the Reference petition, it is stated that the list of members is enclosed. Thus, the list of members has been made part and parcel of the Reference petition and it seems that for sake of convenience, instead of all names being mentioned in the cause title, a separate list has been drawn up and made part of the Reference petition.

It is noteworthy that the contesting respondents had filed objections to the Reference but wherein they did not object to the Reference petition being not maintainable at the instance of those members who had purportedly filed the petition by putting their signatures on the two lists accompanying the Reference petition. In fact, the Reference petition was not opposed on this ground, but on the ground that the signatures of various persons purportedly signing the Reference petition and the lists appended thereto had been forged. It was contended that if the name of the persons whose signatures had been forged are excluded, the petition would be by less than one-fourth members. Having regard to these facts, this Court at this stage is not ready to accept the contention of Sri Khare that the members who had put their signatures on the lists accompanying the Reference petition could not be treated to have sought the Reference and thus the Reference petition was not maintainable.

Yet another limb of the argument of Sri Khare is that the Reference petition was not maintainable as it was not at the instance of atleast one-fourth of the total members. It is urged that the contesting respondent had taken a specific plea that signatures of various persons on the reference petition and the accompanying lists had been forged, but the Prescribed Authority failed to decide the same. It was urged that in fact the Prescribed Authority was not required to enter findings on merit as the petition was liable to be dismissed at the very threshold.

Sri G.K. Singh, learned senior counsel appearing on behalf of the petitioners contended that the private respondents had not raised the said issue when earlier Writ Petition No.39888 of 2016 was filed by the Society challenging the order passed by the Prescribed Authority dated 6.7.2016. The submission is that the contesting respondents having not raised such objection while opposing the earlier writ petition, they are estopped from raising the said issue. It is submitted that this Court had directed the Prescribed Authority to return a specific finding on the validity of the election set up by the fourth respondent and thus, it was not open to the Prescribed Authority to go into the issue as to whether the Reference was at the instance of at least one-fourth members or not.

A perusal of the judgment of this Court dated 21.9.2016 reveals that although it notices various contentions raised by the petitioners while challenging the order dated 6.7.2016 passed by the Prescribed Authority but without examining those contentions on merits, the writ petition was allowed on the sole ground that the order passed by the Prescribed Authority was a cryptic and a non-speaking one. This Court while remitting the matter to the Prescribed Authority left open all rival contentions and objections to be decided by the Prescribed Authority. Having regard to the same, this Court is of the opinion that all the issues were open for consideration by the Prescribed Authority including the plea relating to the maintainability of the Reference petition on the ground that it was not signed by at least one-fourth members. This Court is, therefore, unable to accept the submission advanced by learned counsel for the petitioners that such plea was not open for consideration by the Prescribed Authority.

Concededly, the Reference before the Prescribed Authority is maintainable only if it had been filed by at least one-fourth members. Since there was a dispute between the parties as to whether the Reference petition and the accompanying lists contain genuine signatures of the members or not and thus, it was incumbent upon the second respondent to have returned a specific finding in that regard. It was a jurisdictional fact on basis of which the exercise of power under Section 25 (1) was dependent upon. The Prescribed Authority has framed as many as six issues, but none of which deals with the said issue. A perusal of the order of the Prescribed Authority reveals that a specific plea was raised before it in that regard. The Prescribed Authority without dealing with the said issue has proceeded to record findings on merits. In the opinion of the Court, such an approach adopted by the second respondent is manifestly illegal. In case the petition was not at the instance of at least one-fourth members, there was no occasion for the Prescribed Authority to have entered upon the merits of the issues, as had been done.

Irrespective of what has been held above, the Court is of the opinion that interference on this ground alone is not warranted, unless the findings recorded in the impugned order on merits are found to be illegal. The Court, therefore, proceeds to examine the contentions advanced on merits by learned counsel for the petitioners.

The finding returned by the Prescribed Authority on validity of the meeting dated 20.11.2015 has been challenged on the ground that it is based on misreading of the agenda dated 12.11.2015. The Prescribed Authority has observed that item no.10 of agenda dated 12.11.2015 for the meeting convened on 20.11.2015 deals with termination of membership of existing members and for induction of new members. The agenda has been brought on record as Annexure-23 and item no.10 therein relates to "discussion on pending membership dues." The Prescribed Authority has thus clearly misread item no.10 of the agenda. The issue for consideration before the Prescribed Authority was whether item no.10 as mentioned in the agenda would include a discussion on termination of the membership of life members and induction of new members. It is noteworthy that the dispute relating to termination of the membership of 46 life members and induction of 58 new members had also not been decided by the Deputy Registrar while passing the order dated 29.3.2016. The Deputy Registrar had merely observed that the power to accept or not to accept a particular person as member is vested in the Society and he has no power to interfere with the same. Even these observations do not hold the field as the order of the Deputy Registrar dated 29.3.2016 has already been quashed by this Court while deciding the earlier writ petition. In this view of the matter, it was all the more necessary for the Prescribed Authority to have properly decided the issue relating to the validity of the meeting dated 20.11.2015. However, the Prescribed Authority only dealt with the submission as to whether bye-laws envisages termination of the membership of the life members or not and after noticing that a civil suit is pending at the instance of certain members whose memberships had been terminated, it failed to record any finding on the validity of the meeting dated 20.11.2015. The Prescribed Authority failed to notice that a large number of persons whose membership was terminated in the meeting dated 20.11.2015, had also sought Reference and the decision on the validity of the meeting dated 20.11.2015 would also be necessary for ascertaining the strength of the General Body. The issue as to whether the Reference was by at least one-fourth members could be decided only after the strength of the General Body is determined. Thus, the issue relating to the validity of the meeting held on 20.11.2015 is interlinked with the determination of the issue as to whether the Reference was by at least one-fourth members or not. Undoubtedly, the adjudication that would be made by the Prescribed Authority would be of a summary nature and would abide by the decision which would ultimately be taken by the civil court in the suit which is stated to have been filed by the life members whose membership had been terminated in the meeting dated 20.11.2015.

The Prescribed Authority while deciding issues no.3 and 4 has repelled the contention of the petitioners that there was restraint order operating against them from entering the school premises during the period election was held. The second respondent has however failed to notice that there is no evidence on record to demonstrate that the petitioners or other members against whom there was a restraint order were apprised by the Additional Commissioner that he had revoked the ban by passing order on 15.1.2016. On the other hand, the specific case of the petitioners is that they came to know of the order passed by the Additional Commissioner dated 15.1.2016 revoking the earlier order dated 21.12.2015 only when such fact was brought before this Court by the standing counsel on 19.2.2016 during the course of hearing of the previous writ petition. The Prescribed Authority has also utterly failed to consider the said aspect of the matter. The aforesaid issue was of great importance as in case the order imposing ban on the entry of the petitioners and other members was not duly intimated to them before the election notification was issued, there would be considerable force in the contention of the petitioners that the elections held on 10.2.2016 could not be said to be valid. The specific case of the petitioners is that they constitute the rival faction and they could not participate in the election in view of the ban imposed by the administrative authorities. It is for the said reason that there was no contest and the fourth respondent was declared elected unopposed. These aspects had not at all been adverted to by the second respondent while deciding issues no.3 and 4.

The other aspect which has also been ignored from consideration by the second respondent is whether the requirements of clause 7 (ga) (5) has been complied with or not. It stipulates that election programme has to be notified 15 days in advance. In the instant case, concededly, the election programme was notified on 5.2.2016. The election was scheduled on 20.2.2016, but on 10.2.2016 itself, the fourth respondent and others were declared elected unopposed. According to the petitioners, the restriction of 15 days imposed under the bye-laws is on initiation of proceedings of any nature. The actual election commences with the filing of nomination. These aspects have again not been considered by the second respondent while upholding the election set up by the contesting respondent. This also amounts to violation of the remand order of this Court in the previous writ petition wherein there was a specific direction to decide the validity of the election set up by the fourth respondent.

The last issue dealt with by the Prescribed Authority is regarding admissibility of affidavits of certain persons filed by the rival factions. It has been observed that since some of these persons had filed affidavits from both sides, but have not appeared for personal verification, therefore, no reliance can be placed on their affidavits. This Court however notices that the findings recorded in this regard are vague. The number of persons who had given affidavits from both sides has not been specified. It has also not been disclosed as to why the affidavits of other persons have not been relied upon. In the opinion of the Court, the said issue also deserves to be decided afresh.

As a consequence and in view of foregoing discussion, the impugned order passed by the second respondent dated 13.12.2016 cannot be sustained and is hereby quashed. The matter is remitted back to the second respondent to decide the Reference afresh in the light of observations made above. All rights and contentions are left open for being decided by the second respondent. The Prescribed Authority shall first decide the jurisdictional fact relating to maintainability of the reference, before entering upon merits of the other issues.

Coming to the companion writ petition filed by the Management elected on 10.2.2016, there does not seem any dispute between the parties regarding the said Management being in control of the affairs of the Society. The Society is running an educational institution which is affiliated to Central Board of Secondary Education. The salary of the teachers and other employees was being paid by withdrawal of money from the accounts of the Society, apart from other expenses, until the bank passed an order freezing account operations by the Committee elected on 10.2.2016, having regard to the stay order passed in the leading petition. Keeping in mind the interest of the educational institution, the faculty, the employees, as well as the students, this Court is of the opinion that the Committee represented by the fourth respondent, which is in control of the affairs of the Society and the institution should be permitted to draw the salary of teaching staff and other employees and also a sum of Rs.10,000/- towards other expenses, until the matter is decided afresh by the Prescribed Authority. It is directed accordingly. The Bank i.e. the fourth respondent in the companion petition shall act accordingly. The Committee represented by the fourth respondent in the leading petition shall not withdraw any sum beyond what has been stipulated above without the leave of the Court. It shall also maintain proper accounts in regard to the money withdrawn in pursuance of this order and shall file the same on monthly basis before the Deputy Registrar, the third respondent. The Prescribed Authority is directed to decide the matter within a period of three months from the date of production of a certified copy of this order before it. The petitioner in the companion writ petition shall file a certified copy of this order before the second respondent within two weeks from today, failing which the permission granted to it to withdraw money from the accounts shall be rendered inoperative.

Both the petitions stand disposed of accordingly.

Order Date :- 03.07.2017

SL

(Manoj Kumar Gupta, J)