Allahabad High Court
Shree Arya Mahila Hitakarini ... vs The State Of U.P. And 3 Others on 19 April, 2023
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 35
Case :- WRIT - C No. - 9252 of 2023
Petitioner :- Shree Arya Mahila Hitakarini Mahaparishad And Another
Respondent :- The State Of U.P. And 3 Others
Counsel for Petitioner :- Dr. Pradeep Kumar Mishra,Shivendu Ojha,Sr. Advocate
Counsel for Respondent :- C.S.C.,Vishakha Pande
Hon'ble Ajay Bhanot,J.
1. Heard Sri Radhakant Ojha, learned Senior Counsel assisted by Dr. Pradeep Kumar Mishra, learned counsel for the petitioners and Sri Rakesh Pande, learned Senior Counsel assisted by Ms. Vishakha Pande, and Sri Ashok Kumar Singh, learned counsel for the respondent no. 4.
2. By the impugned order dated 27.02.2023 passed by the Prescribed Authority/Joint Magistrate/Upziladhari, Sadar, Varanasi, under the Societies Registration Act, 1860, the election set up by the respondent no. 4 has been upheld while the election claim of the petitioners has been invalidated.
3. Brief facts are these. Election to society was called on 18.02.2022 by the Chief Secretary/General Secretary of the Samrakshak Sabha by notice dated 23.01.2022. The said notice fixed Arya Mahila PG College, Varanasi as the election venue. On 04.02.2022 meeting called by the Joint Secretary of the All India Council resolved to change the venue of the election to Bharat Dharam Mahamandal Building, Jagatganj, Banaras.
4. Two elections were conducted by the rival parties at their respective venues. The competing election claims were presented before the Assistant Registrar, Firms, Societies and Chits, Varanasi. The Assistant Registrar vide order dated 28.06.2022 recognized the election set up by the respondent no. 4 and invalidated the claim of the petitioner. Aggrieved the petitioners invoked the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India and instituted a writ petition which was registered as Writ C No. 20203 of 2022 (Shree Arya Mahila Hitakarini Mahaparishad and Another vs. State of U.P. and Others). The learned single Judge by judgment rendered on 20.10.2022 ruled as follows:
"Therefore, under such facts and circumstances as well as law laid down by this Court, the writ petition is allowed and impugned order dated 28.6.2022 passed by the Assistant Registrar-respondent no.2 is hereby quashed. Respondent no.2 is directed to refer the matter to Prescribed Authority within two weeks alongwith election proposals of both the rival groups. Prescribed Authority is further directed to take final decision in the matter maximum within six weeks thereafter after affording opportunity of hearing to petitioner, respondent no.3 and all other concerned, if any."
5. The order passed by the learned single Judge was carried in appeal by respondent no. 4 which came to be registered as Special Appeal No. 692 of 2022 (Dr. Shashi Kant Dixit vs. State of U.P. and 3 Others). The learned Division Bench affirmed the judgment of the learned Single Judge and dismissed the appeal by judgment dated 16.12.2022. However, various observations were made by the learned Division Bench which influence the controversy till date. The learned Division Bench in Special Appeal No. 692 of 2022 (supra) dealing with the argument relating to invalidity of the notice and change of the election venue observed thus:
"Dealing with the first argument that there is an inherent defect in the notice for convening the meeting on 29.01.2022, it would be apt to bear in mind that the election programme was notified by the appellant fixing 18.02.2022. It is not in dispute that convening a meeting is a step towards holding the elections. Clause 30 of the Rules of the Association provides for a three weeks notice for convening the meeting. Parties are in agreement that the election date so fixed by the appellant for holding the election remained unaltered. However, it is the venue which got changed. Now a question would arises whether holding a meeting on 04.02.2022 to change the venue would amount to materially and substantially altering the election program. The answer to the same finds place in Rule 35 of the Rules of the Association wherein, it is provided that in case election is held at Varanasi, then it should be at the Headquarters at Varanasi. Headquarters is specified in Clause 2 of the MOA, which is, at Bharat Dharam Mahamandal Building, Jagatganj, Benaras. Admittedly, the venue of the elections so notified by the appellant was at Arya Kanya P.G. College, Chetganj, Varanasi which was not a place specified in MOA for conducting elections. It is also not in dispute that allegations were levelled regarding the possibility of manipulation. Thus, in the opinion of the Court, mere change in the election venue would not partake the character of materially altering the election programme as to require issuance and publication of fresh election programme by giving three weeks notice."
6. Other observations were also in the judgment. However, most relevant observation on which the fate of the case before this Court turns has been extracted above.
7. Sri Radhakant Ojha, learned Senior Counsel assisted by Dr. Pradeep Kumar Mishra, learned counsel for the petitioners submits that the findings quoted above finally decided the issue of venue of the elections. The impugned order is in the teeth of the holding of the learned Division Bench.
8. Per contra, Sri Rakesh Pande, learned Senior Counsel assisted by Ms. Vishakha Pande, learned counsel for the respondent no. 4 contends as under:
9. The findings of the learned Division Bench in Special Appeal No. 692 of 2022 (supra) were made only in the context whether a triable case arose which merited reference to the prescribed authority. The said observations do not bind the authorities. Upon remand the prescribed authority was liable to exercise its independent judgment uninfluenced by observations made in the judgment of the learned Division Bench.
10. Heard learned counsel for the parties.
11. Two issues define the controversy. Firstly the legality of the meetings and resolutions dated 23.01.2022 and 04.02.2022 respectively called by the rival parties. Secondly the validity of the elections held by the parties respectively at separate venues.
12. The prescribed authority in the impugned order considered the interplay of relevant bye laws of the society namely Bye law No. 29 and Bye law no. 35 to determine the legality of the meeting called on 04.02.2022.
13. The provisions are extracted hereinunder for ease of reference.
"Bye Law no. 29- The meeting of the Samrakshak Sabha shall be held at least once in every five years or whenever considered necessary by the Chief Secretary, joint Chief Secretary or on the request of at least seven members of the Samrakshak Sabha in writing to the Chief Secretary to call the meeting.
Bye Law no. 35- The member of the All India Council other than the disciple of Bhagwan Maharashi Swami Gyananandji Maharaj, the representative of Sri Bharat Dharm Mahamandal, and Shree mahamaya Trust shall be elected every five years by the All India Samrakshak Sabha at its meeting specially called for the purpose either at Varanasi, the head quarter or at any other place in India considered suitable by the General president, Chief Secretary or General Secretary."
14. The bye laws delineate two categories of meetings. The first class of meetings are of a general nature which can be called within the prescribed time period and on other occasions by the authorities depicted in the Bye law No. 29. The other set of meetings which were contemplated in Bye Law No. 35 exclusively pertain to elections. An election as per Bye law No. 35 can be called only by the General President, Chief Secretary or General Secretary. The venues for the meeting were also provided in the said bye law.
15. The Bye law No 35 clearly is a special provision made for a specific purpose, while Bye law No. 29 is a general provision created for all other purposes.
16. Good authorities in law settle the cannon of interpretation that the special law prevails over the general law. Hence, an election meeting shall be governed and regulated only by Bye law No. 35.
17. The meeting called by respondent no. 4 on 23.01.2022 related to holding of the election. The office bearer calling for the said election was competent to do so as per the scheme of the bye laws. To the contrary, the Joint Chief Secretary was not authorised by the bye laws to call an election meeting on 04.02.2022. No exception can be taken in the findings in the impugned order insofar as it invalidates the meeting dated 04.02.2022 and consequent election for like reasons.
18. The learned Division Bench by using the word "prima facie" did not decide the issue but clearly left it open for the parties to canvass the same before the prescribed authority;
"In our opinion, once the Joint Chief Secretary was authorised to issue notice/agenda and convene the meeting, then, primafacie, there appears to be no inherent defect in the notice/agenda."
19. The next critical issue relates to the venue of the election. The election called by the respondent no. 4 on 23.01.2022 was held at Arya Mahila P.G. College, Varanasi. The venue of the meeting was in the teeth of the holding of the learned Division Bench. The learned Division Bench conclusively adjudicated the issue of election venue as seen in the findings extracted earlier.
20. It is contended on behalf of the private respondent that the venue of the election as a matter of precedent has for the past many decades been Arya Mahila P.G. College, Varanasi. However, this submission is contested by Sri Radhakant Ojha, learned Senior Counsel. In any case it is nor for this Court to decide the venue in view of the holding of the learned Division Bench.
21. While the arguments of Shri Rakesh Pande, learned Senior Counsel appear persuasive but not enough for a Single Judge to transgress the holdings of a learned Division Bench. The matter has to be settled on merits by a Division Bench of superior strength.
22. The impugned order insofar as it upholds the election dated 23.01.2022 held at Arya Mahila P.G. College, Varanasi is liable to be reversed and is reversed. The election claim set up by the respondent no. 4 on the footing of election held at Arya Mahila P.G. College, Varanasi is liable to set aside and is set aside.
23. The findings of the prescribed authority invalidating the meeting set up by the petitioner on 04.02.2022 and the elections held on 18.02.2022 at the Mahamandal Buildings, Lahurabir, Varanasi are not liable to interfered with.
24. There is no dispute about the electoral college.
25. The matter is remitted to the Assistant Registrar, Firms, Societies and Chits, Varanasi to conduct the election in a fair and transparent manner as per law within a period of six weeks from the date of receipt of a certified copy of this order.
26. The impugned order insofar as it upholds the election claim set up by the respondent no. 4 is liable to be set aside and is set aside.
27. The District Magistrate, Varanasi is directed to ensure that adequate security arrangements be made at the election venue.
28. The writ petition is allowed.
Order Date :- 19.4.2023
Pravin
