Allahabad High Court
Committee Of Management Maktab ... vs State Of U.P. And 3 Others on 31 March, 2023
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 35
Case :- WRIT - C No. - 4325 of 2023
Petitioner :- Committee Of Management Maktab Jamia Islamia Qadariya Jarudal Uloom And Another
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Brijesh Kumar,Prabhakar Awasthi
Counsel for Respondent :- C.S.C.,Manoj Kumar Maurya
Hon'ble Ajay Bhanot,J.
The prescribed authority in the impugned order dated 2.1.2023 has invalidated the reference on the footing that the reference was not supported by the requisite 1/4 strength of valid members approved by the Assistant Registrar.
Shri Prabhakar Awasthi, learned counsel assisted by Shri Saurabh Tripathi, learned counsel for the petitioners, submits that the finding is in the teeth of judgment of this Court rendered in Committee of Management, Shri Vidur Sewa Ashram and others vs. State of UP and others reported in 2019 (1) UPLBEC 520.
Shri Manoj Kumar Maurya, learned counsel for the private respondent, submits that the petitioners are not valid members.
Faced with the proposition on behalf of the petitioner, Shri Manoj Kumar Maurya, learned counsel for the private respondent and the learned Standing Counsel could not dispute the applicability of the law laid down by this Court in Shri Vidhur Seva Ashram (supra) to the facts of this case.
No useful purpose will be served by keeping the writ petition pending and granting an interim order.
The matter is being decided with consent of parties and in the interest of justice.
The reference is not supported by 1/4th of the list of members authenticated by the Assistant Registrar. The issue of validity of membership has to be adjudicated by the prescribed authority in light of the law laid down in Committee of Management, Shri Vidhur Seva Ashram (supra) :
"41.Section 25 of the Act, 1860, as inserted in the State of UP, creates a forum for settlement of disputes pertaining to election of office bearers of a society as also in respect of their continuance, in a summary manner. To effectively settle the dispute, clause (c) of the proviso to sub-section (1) of Section 25 of the Act, 1860, empowers the Prescribed Authority to assess whether the result of the election has been materially affected by the improper acceptance or rejection of any nomination or by the improper reception of any vote which is void, which implies that the prescribed authority has power to decide issue as regards membership of the society. Whether a reference is with the strength of one-fourth of the members or not becomes a jurisdictional fact, which has to be necessarily determined by the Prescribed Authority. While determining the existence of jurisdictional fact, the Prescribed Authority can arrive at its own conclusion in respect of membership of the society. Such conclusion can be arrived at on the basis of the evidence/material placed before it keeping in mind the relevant parameters including the bye-laws/rules of the society and the documents of the nature mentioned in Section 4B of the Act, 1860. As no finality has been provided to the incidental determination of membership by the Registrar in exercise of his power to hold an election meeting under Section 25 (2) of the Act, notwithstanding any such determination of the issue made by the Registrar, the Prescribed Authority, while exercising its power under Section 25 (1) of the Act, can determine the electoral college/general body of the society for the purpose of ascertaining whether the reference application is maintainable."
Admittedly, the prescribed authority abdicated its functions to determine the validity of the members who had moved the reference and indeed neglected to consider the whole issue of disputed membership. The impugned order is in the teeth of the law laid down in Shri Vidur Sewa Ashram (supra).
The impugned order dated 2.1.2023 passed by prescribed authority is liable to be set aside and is hereby set aside. The matter is remitted to the prescribed authority with the following directions:
1. The prescribed authority shall notice all the necessary parties to the lis including those before this Court.
2. Pleadings and documents shall be exchanged between the parties and the Regional Level Committee shall certify the same in the ordersheet.
3. The prescribed authority shall decide the issue of validity of members, who had moved the reference before the prescribed authority in the first instance.
4. The reference shall thereafter be decided as per law preferably within a period of three months from the date of production of a certified copy of this order.
The writ petition is allowed to the extent indicated above.
Order Date :- 31.3.2023
LNTripathi
