Prem Shankar Mishra vs State Of U.P. & 5 Others
2017 Latest Caselaw 4174 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

? A.F.R.   
 
Court No. - 10
 

 
Case :- SPECIAL APPEAL No. - 477 of 2017
 

 
Appellant :- Prem Shankar Mishra
 
Respondent :- State Of U.P. & 5 Others
 
Counsel for Appellant :- Vijay Kumar Singh,Prakash Chandra Pathak
 
Counsel for Respondent :- C.S.C.
 
with
 
Case :- WRIT - C No. - 17951 of 2017
 

 
Petitioner :- The C/M Sri Narain Sinha Inter College And Another
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ratnakar Upadhyay,Radha Kant Ojha
 
Counsel for Respondent :- C.S.C.,Prakash Chandra Pathak
 
with
 
Case :- WRIT - C No. - 45445 of 2014
 

 
Petitioner :- Prem Shankar Mishra & 2 Others
 
Respondent :- State Of U.P. & 3 Others
 
Counsel for Petitioner :- P.C. Pathak,V.K. Singh
 
Counsel for Respondent :- C.S.C.,Ratnakar Upadhyay,Sudhakar Upadhyay
 
with
 
Case :- WRIT - C No. - 5756 of 2015
 

 
Petitioner :- C/M Shri Narain Sinha Inter College & Another
 
Respondent :- State Of U.P. & 4 Others
 
Counsel for Petitioner :- P.C. Pathak
 
Counsel for Respondent :- C.S.C.,Ratnakar Upadhyay,Sudhakar Upadhyay
 

 
Hon'ble Arun Tandon,J.

Hon'ble Ritu Raj Awasthi,J.

Heard Sri V.K. Singh, Senior Advocate assisted by Sri P.C. Pathak, Advocate on behalf of Prem Shanker Mishra who has filed writ petition No.45445 of 2014 as well as Special Appeal No. 477 of 2017. We have also heard Sri R.K. Ojha, Senior Advocate assisted by Ratnakar Upadhyay, Advocate on behalf of Sri Gopi Chand Mishra who has filed writ petition No.17951 of 2017 and is respondent in Special Appeal referred to above as well as writ petition No.5756 of 2015.

We may at the very outset record that the controversy raised by means of writ petition No.5756 of 2015 has become infructuous and it is dismissed, accordingly.

With the consent of the parties, all these matters had been tagged together and have been nominated to this Bench under the orders of Hon'ble The Chief Justice

Facts relevant for deciding the present writ petition as well as Special Appeal are as under:-

Public Vidyalaya Sabha Sarai, Harkhoo, Jaunpur is a society duly registered under the Societies Registration Act. The elections of the office bearers of the Society are held in accordance with the bye-laws. The term whereof is prescribed as 3 years. The said society also runs and manages the institution in the name and style of Sri Narain Sinha Inter College, Sarai Harkhoo, Jaunpur a recognized and aided institution under the U.P. Intermediate Education Act, 1921. The office bearers of the Committee of Management of the said institution are elected in accordance with the scheme of administration applicable to the said institution.

Counsel for the parties agreed that the general body of the Society which is electoral college for the election of the office bearers of the Society, ipso facto becomes the general body/electoral college for holding the elections of the Committee of Management of the Intermediate College.

It is therefore agreed between the parties that the dispute pertaining to the membership of the general body of the Society would also reflect upon the general body which will hold the election for Committee of Management of the Intermediate College.

According to the faction led by Sri Prem Shanker Mishra, the issue pertaining to the holding of fresh election of the office bearers of the Society, after determination of the electoral college was pending consideration before the Deputy Registrar Firms Societies and Chits, Varanasi. However, under an order dated 9.9.2013 the records pertaining to the said dispute were transmitted to the office of Deputy Registrar, Lucknow.

It is not in dispute that the parties participated in the proceedings before the Deputy Registrar, Lucknow without protest till passing of the order dated 4.7.2014. Under the order dated 4.7.2014, the Deputy Registrar, Lucknow held that the valid list of 60 members of the Society as submitted by Gopi Chandra Mishra was valid. The list of 109 members as submitted by Prem Shanker Mishra was not accepted on the grounds mentioned in the order dated 4.7.2014.

The faction led by Sri Prem Shanker Mishra not being satisfied filed Writ Petition No.45445 of 2014. In the said writ petition, no interim order was granted. However, a counter affidavit was called for vide  order dated 28.8.2014. In the said writ petition challenge was also made to the order dated 9.9.2013 passed by the Deputy Registrar, Lucknow whereby the proceedings were transferred from the Deputy Registrar, Varanasi to  the Deputy Registrar, Lucknow while the writ petition was still pending.

The elections for constituting the Committee of Management of the Institution are stated to have taken place on 10.6.2015. These elections were held from the list as approved under the order dated 4.7.2014. The Deputy Registrar, Varanasi registered the list of office bearers under Section 4 of the Societies Registration Act, with reference to the said election. The papers pertaining to the elections of the Committee of Management of the Institution held from amongst the same electoral college of the 60 members (excluding those who had expired in the meantime) were forwarded to the Regional Level Committee headed by the Joint Director of Education for necessary approval.

The Regional Level Committee vide order dated 13.4.2017 refused to recognize the elections on the ground that the dispute with regard to the membership of the general body (electoral college) was engaging the attention of the High Court in Writ Petition No.45445 of 2014 as such, it would be appropriate to await the outcome of the writ proceedings.

This led to the filing of writ petition No.17951 of 2017 by the faction led by Gopi Chandra Mishra. In the said writ petition, the learned Single Judge was pleased to grant an interim order whereunder the effect and operation of the order of the Regional Level Committee dated 13.04.2017 has been kept in abeyance.

Not being satisfied, the faction led by Prem Shanker Mishra filed Special Appeal No.477 of 2017.

Sri V.K. Singh counsel for the appellant would contend before us that grant of interim order, keeping the order of the Regional Level Committee refusing to recognize the election in abeyance would carry no meaning and, therefore, the writ Court was not justified in granting such an interim order. He would further contend that the determination of the electoral college which is subject matter of Writ Petition No.45445 of 2014 would settle the issue between the parties and therefore, the Writ Court while considering writ petition No.17951 of 2017 should have clubbed the same with writ petition No.45445 of 2014 and should have finally decided both the petitions, so that the controversy could have been laid to rest.

Sri R.K. Ojha, Senior Advocate on the contrary would submit that mere pendency of writ petition No.45445 of 2014 will not operate as stay of the order of the Deputy Registrar, Lucknow dated 4.7.2014 whereunder, he determined the list of valid members of the general body. He would, therefore, submit that in the facts of the case, no error has been committed by the learned Single Judge while granting the interim order.

We have heard learned counsel for the parties and examined the records of the present proceedings.

It is no doubt that mere pendency of the writ petition will not operate as an interim stay of the order under challenge therein, but, at the same time, we are also of the opinion that if an earlier writ petition is pending in respect of a dispute which goes to the root of the legality of the election of the Committee of Management of an Intermediate College then the writ Court while considering the subsequent writ petition must endeavour to decide the two writ proceedings together, so that the controversy is brought to an end instead of granting interim order, which only lead to more petitions and more special appeals.

We are of the considered opinion that if the issue pertaining to the membership of the general body had resolved in the pending petition of 2014 probably before the election, the filing of writ petition No.17951 of 2017 and Special Appeal No.477 of 2017 could have easily being avoided.

Be that it may, since now all the proceedings are before us, we have carefully gone through the challenge which has been made to the electoral college as determination under the order dated 4.7.2017. The Deputy Registrar has not recorded any reasons as to why the list as submitted by Gopi Chandra Mishra of 60 members were correct. While disapproving the list submitted by Prem Shanker Mishra of 109 members on the ground that no material evidence has been brought in support thereof in our opinion, cannot be legally sustained.

The minimum expected from the Deputy Registrar was to apply the same standard in the matter of determination of the legality of the list submitted by the contesting parties. If the list submitted by Prem Shanker Mishra was not to be accepted for want of material supporting document than the same principle should have also been applied to the list submitted by Gauri Shanker Mishra and the Deputy Registrar should have insisted upon to Sri Gauri Shanker Mishra to produce the relevant records on the basis whereof, it was being claimed that 60 members were valid members of the Society.

After the documents are filed, the minimum required is to consider the document by means of reasoned order and then to record the finding with regard to the legality of the membership or otherwise.

Since such a course has not been adopted and in the meantime elections of the Committee of Management have already taken place and the Committee of Management so elected is in effective control of the Institution as on date and further since the list of elected office bearers has been registered under Section 4 of the Societies Registration Act, we deem it fit and proper to dispose of the writ petitions as well as Special Appeal by issuing following directions.

Faction led by Prem Shanker Mishra may make a reference application before the Prescribed Authority supported by such document as may be advised both in respect of membership of the general body of the Society as well as in respect of the election which are said to have been held on 10.6.2015 within two weeks along with a certified copy of this order.

The Prescribed Authority shall on the receipt of the representation forwarded a copy of the same to the faction led by Sri Gopihand Mishra who may respond to the same supported by such document as may be advised within two weeks thereafter.

The Prescribed Authority shall also call for records from the Office of the DIOS as well as Assistant Registrar concerned after affording opportunity of hearing to the parties concerned and decide the issues with regard to the legality of the electoral college  as well as in respect of this procedure adopted in respect of the elections held on 2015.

The said exercise shall be completed within 8 weeks of the receipt of the papers as indicated above. The Prescribed Authority shall pass a reasoned order. All consequential action under the Societies Registration Act shall be taken accordingly.

A copy of the order of the Prescribed Authority shall also be transmitted to the Regional Level Committee which shall take an appropriate decision in terms thereof within a further period of 4 weeks.

We may record that if the Prescribed Authority comes to the conclusion that the electoral college of 60 members which has held the election is not legal. The Regional Level Committee would be obliged to disapprove the elections automatically and get the fresh elections held in accordance with law. If the answer is otherwise the regional Level Committee shall proceed to examine the issue with regard to the procedure adopted in the elections and shall pass a reasoned order. 

Till the matter is decided by the Prescribed Authority/Regional Level Committee as indicated above status quo as on date both with regard to the office bearers of the Society as well as with regard to the Committee of Management of the Institution shall be maintained.

This Special Appeal is disposed of.

Order Date :- 11.9.2017 /Junaid