Kumar Gaurav Singh vs State Of U.P. And 13 Others
2018 Latest Caselaw 919 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 19
 

 
Case :- WRIT - C No. - 18490 of 2018
 

 
Petitioner :- Kumar Gaurav Singh
 
Respondent :- State Of U.P. And 13 Others
 
Counsel for Petitioner :- Shyam Krishna Gupta,Manish Kumar Nigam
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Kumar Gupta,J.

Heard Sri Manish Kumar Nigam, learned counsel for the petitioner, learned standing counsel for respondent Nos. 1 & 2 and Sri G.K. Singh, learned senior counsel assisted by Sri Bhavesh Pratap Singh for respondent No. 3. Sri G.K. Singh states that he does not wish to file any counter affidavit. He also states that respondent No. 3 is the main contesting party, and being already represented, the matter could be decided finally.

By impugned order dated 2.5.2018, the Prescribed Authority has rejected the reference made by the petitioner under Section 25(1) of the Societies Registration Act, 1860 raising a dispute regarding right of person entitled to be Manager of the Managing Committee of Amar Saheed Heera Singh Uchattar Madhyamic Vidyalaya, Chandauli, a registered Society under the Societies Registration Act, 1860. The undisputed fact is that the recognised Manager, Shyam Behari Singh died on 10.6.2016 resulting in a casual vacancy on the post of Manager. Respondent No. 3 Vinod Kumar Singh, claimed that in the meeting dated 13.6.2016, he was elected as Manager. On the other hand, the petitioner claimed that he was elected as Manager in proceedings dated 17.6.2016. The Assistant Registrar by order dated 5.11.2016 recognised respondent No. 3 as Manager of the Managing Committee of the Society, and rejected the claim set-up by the petitioner. Aggrieved by the said order, the petitioner filed Writ C No. 55308 of 2016 before this Court. The writ petition was dismissed by this Court by holding that substantial justice has been done by the Assistant Registrar by allowing Deputy Manager to act as Manager upon the death of Manager. However, while dismissing the writ petition, this Court left it open to the petitioner to seek reference under Section 25(1) of the Act, in case, he is not satisfied with the adjudication made by Deputy Manager. It was further directed that in case, any reference is sought by the petitioner in accordance with the provisions of the Act within three weeks from the date of judgment, the same shall be examined in accordance with law and appropriate action would be taken. The operative part of the judgment dated 24.11.2016, reads as under : -

"From the materials brought on record, this Court finds that substantial justice has been done by the Assistant Registrar, inasmuch as if the Deputy Manager has been allowed to continue as Manager upon the death of the outgoing Manager, no illegality can be said to have been caused. From the materials placed, it further transpires that petitioner has sought to raise dispute, and in case he is not satisfied with the adjudication so made, it is always open for petitioner to invoke the remedy under Section 25(1) of the Societies Registration Act, 1860. In case a reference is made, in accordance with the provisions contemplated under Section 25(1) of the Act, within three weeks from today, the same shall be examined, in accordance with law, and appropriate action would be taken, without further loss of time.

In the facts and circumstances, noticed above, this Court is of the opinion that no case for interference under Article 226 of the Constitution of India is called for in the facts of the present case. Writ petition is dismissed."

The petitioner, in pursuance of the liberty granted by this Court, sought reference of the dispute regarding entitlement of person to hold the office of Manager, to the Prescribed Authority. By the impugned order, the Prescribed Authority has rejected the reference.

Learned counsel for the petitioner submitted that the reference has been rejected by placing reliance on the order of the writ Court by which order of the Assistant Registrar dated 5.11.2016 was up-held. It is urged that once this Court had granted liberty to the petitioner to seek reference under Section 25(1) of the Act, the same should have been decided on merits instead of placing reliance on the findings recorded in the order of this Court. It is submitted that the findings recorded in the order of this Court were only prima facie findings to find out as to whether order of the Assistant Registrar should be interfered with or not, in exercise of writ jurisdiction. It was not a final adjudication and it was for the said reason that this Court permitted the petitioner to seek reference, if he was not satisfied by the order of the Assistant Registrar.

On the other hand, Sri G.K. Singh, learned senior counsel appearing on behalf of respondent No. 3 submitted that the findings recorded by this Court in the judgment dated 24.11.2016 were final and conclusive, and the Prescribed Authority was bound by those findings. He submitted that the Prescribed Authority was fully justified in placing reliance on the order of the Assistant Registrar, which has been up-held by this Court, in rejecting the claim of the petitioner.

Under Section 25(1) of the Act, it is the Prescribed Authority which is invested with the power to decide a dispute in respect of an election or continuance in office of an office bearer of a registered Society. The Assistant Registrar does not have power to decide a dispute of such nature, albeit he could prima facie adjudge whether the dispute is bona fide or sham, to find out whether it needs to be referred to the Prescribed Authority or not. When this Court was considering challenge to the order of the Assistant Registrar dated 5.11.2016, it was conscious of the aforesaid legal position. This Court, after considering the facts of the case, was of the opinion that prima facie, the order of the Assistant Registrar permitting respondent No. 3, the Deputy Manager, to act as Manager, does substantial justice between the parties. Such an arrangement did not require interference in exercise of power under Article 226 of the Constitution. However, while refusing to interfere with the said order, this Court being conscious of the legal position that for decision on such issue, the Act prescribes the forum under Section 25(1), it permitted the petitioner to raise the dispute before Prescribed Authority, if he is not satisfied by the adjudication made by the Assistant Registrar. This Court permitted the petitioner not only to approach Prescribed Authority by seeking a reference, but a further direction was issued that in case, a reference is made in accordance with the provisions of Section 25(1), the same would be examined in accordance with law, followed by appropriate action. Thus, this Court is unable to accept the submission advanced by learned counsel for the third respondent that the findings recorded by this Court in its judgment dated 24.11.2016 were final and conclusive, qua the rival claims regarding entitlement to hold the post of Manager and the Prescribed Authority while deciding the reference was bound by those findings.

Sri G.K. Singh, learned counsel for respondent No. 3 also tried to contend that even on the admitted facts the claim of the petitioner is not sustainable in law. However, this Court is not inclined to go into the said aspect, once this Court had granted liberty to the petitioner to invoke the remedy under Section 25(1) of the Act. Consequently, it is the Prescribed Authority, before whom reference was filed, to have first applied its mind independently without being influenced by the findings recorded by this Court while dismissing the earlier writ petition.

Consequently and in view of the discussion made above, the impugned order dated 2.5.2018 is quashed. The matter is remitted back to the Prescribed Authority for deciding the reference afresh, in accordance with law, having regard to the observations made above.

The writ petition stands disposed of accordingly.

It is clarified that merely because the matter has been remitted back to the Prescribed Authority, will not entitle the petitioner to interfere in the working of respondent No. 3, unless the reference is answered in his favour.

(Manoj Kumar Gupta, J.)

Order Date :- 25.5.2018

AM/-