Mohd Azharuddin vs Mr K Jhon Manoj
2021 Latest Caselaw 2787 Tel

        THE HONOURABLE THE ACTING CHIEF JUSTICE
               SRI M.S.RAMACHANDRA RAO
                                           AND
            HONOURABLE SRI JUSTICE K.LAKSHMAN

                        WRIT APPEAL No.476 of 2021

JUDGMENT:         (Per Hon'ble The Acting Chief Justice Sri Justice M.S.Ramachandra Rao)


        This Writ Appeal is filed challenging order of the learned

Single Judge dt.07-09-2021 in I.A.No.4 of 2021 in W.P.No.15310 of

2021.


2.      The said Writ Petition was filed by the 1st respondent, who is

the Vice President of the Hyderabad Cricket Association (the

2nd respondent), a Society governed by the Telangana Societies

Registration Act, 2001 (for short 'the Act'), challenging order

dt.04.07.2021 passed by the 3rd respondent, a former Judge of the

Supreme Court of India in his capacity as Ombudsman of the

2nd respondent.

The order dt.4.7.2001 of the 3rd respondent

3. The 3rd respondent, on the basis of two complaints filed, one by

the 2nd respondent against the Respondent No.s 1 and 4 to 7, and

another by the appellant, who is President of the

2nd respondent Association against a show cause notice issued to him

by Respondent No.s 1 and 4 to 7 passed orders on 04.07.2021

(a) temporarily disqualifying respondent Nos.1 and 4 to 7 from

performing their duties as Office Bearers of the Apex Council of the

2nd respondent till the time the complaints against them are finally

decided after conducting online hearing, and (b) setting aside the ::2::

resolution allegedly passed by respondent Nos.1 and 4 to 7

suspending the appellant, who is the duly elected President of the

2nd respondent, after issuing him a show cause notice, and directed

respondent Nos.1 and 4 to 7 to refrain from taking any subsequent

actions against him. He further held that the appellant shall continue

as President and all complaints against Office bearers shall only be

decided by the Ombudsman.

The contentions of the 1st respondent/Writ Petitioner

4. In the Writ Petition, it is alleged by the 1st respondent that there

is a dispute regarding the very appointment of the 3rd respondent as

Ombudsman under bye-law 40(1); that an Annual General

Meeting(AGM) was held on 28.03.2021 at Rajiv Gandhi International

Cricket Stadium, Uppal, Hyderabad in which one of the items (agenda

No.6) was regarding the appointment of Ombudsman and an Ethics

Officer under bye-law 39; that the majority of the members proposed

to appoint Justice Nisar Ahmed Kakru (Retired Chief Justice of the

Andhra Pradesh High Court) as Ombudsman and Smt.Justice B.

Meena Kumari, Retired Judge of the Andhra Pradesh High Court as

Ethics Officer; since this was opposed by the appellant, it was decided

that the election of the Ombudsman and Ethics Officer would take

place on 11.04.2021; and the meeting was adjourned to 11.04.2021.

5. It is his further contention that on 11.04.2021, 107 members out

of 180 members accepted the resolution for appointment of Justice

Nisar Ahmed Kakru (Retired Chief Justice of the Andhra Pradesh ::3::

High Court) as Ombudsman and Smt.Justice B. Meena Kumari,

Retired Judge of the Andhra Pradesh High Court as Ethics Officer;

that this was communicated to them, and they had also communicated

their acceptance for the same.

6. It is therefore contended that the 3rd respondent had no

subsisting authority as an Ombudsman after 11.04.2021 to pass the

impugned order. It is also contended that in the impugned order the

3rd respondent had referred to a decision of the AGM on 11.04.2021

appointing the 3rd respondent as their Ombudsman and Ethics Officer

of the 2nd respondent Association when factually there is no such

proceeding or appointment. The finding recorded by the 3rd

respondent in the impugned order that he was appointed and was

continuing as Ombudsman is also challenged in the Writ Petition and

certain allegations are leveled against him of disregarding the bye-

laws of the 2nd respondent.

The stand of the appellant

7. Counter-affidavit was filed by the appellant refuting these

contentions.

8. The appellant contended that the very Writ Petition is not

maintainable since there is an efficacious alternative remedy under

Section 23 of the Act providing for resolution of disputes relating to

the Management of the affairs of a Society under the Act; that the

3rd respondent was validly appointed as Ombudsman; and the order

dt.04.07.2021 passed by the 3rd respondent is valid in law and he had ::4::

passed the same after due application of mind and after considering

the material on record and the circumstances of the case.

9. He also contended that the Minutes of the AGM Meeting

dt.11.04.2021 filed by the respondent No.1 cannot be taken into

consideration since under Section 20(5) of the Act, the Minutes have

to be signed only by the person who chaired the AGM; and since the

Minutes relied upon by respondent Nos.1 and 4 to 7 record in the very

second paragraph that the appellant presided over the Meeting, and

since they do not contain his signature, they cannot be looked into as a

valid record of events which occurred on 11.04.2021 in the said

AGM.

10. He produced Minutes of meeting of the AGM held on

11.04.2021 along with his counter-affidavit in the Writ Petition,which

Minutes are signed by him; and the said Minutes reflect that the

majority of the members of the AGM supported the appointment of

the 3rd respondent as Ombudsman-cum-Ethics Officer.

The order of the learned Single Judge in I.A.No.4 of 2021 in W.P.No.15310 of

11. The learned Single Judge in his order dt.07-09-2021 in I.A.No.4

of 2021 in W.P.No.15310 of 2021 referred to the contentions of the

parties and held as under:

"A serious allegation is leveled against the second respondent Ombudsman that he is favoring and protecting the third respondent since he took initiative for appointing the second respondent as Ombudsman and rest of the office bearers opposed and 107 out of 180 members ::5::

resolved in the AGM to appoint Sri Justice Nisar Ahmed Kakru as Ombudsman and Smt. Justice Meena Kumari as Ethics officer and thus the second respondent is acting in biased manner. In spite of informing him through two replies by office bearers, he proceeded in passing the impugned disqualification order without serving copies of complaints received against them by the 2econd respondent. The said complaints were not furnished and it is violative of principles of natural justice. Second respondent has no power to suspend the office bearers. No meeting is held to appoint the second respondent as Ombudsman. It is only a unilateral decision of the third respondent and the validity of said appointment is subjudice in the Supreme Court India. The second respondent held that the petitioner and other office bearers are acting with malafides. The second respondent, in the impugned order, has not dealt with the issue of malafide to come to a conclusion on malafides against the office bearers. The impugned order and the counter-affidavit do not disclose the details of compliance of principles of natural justice.

For the reasons stated above, I am of the view that the impugned order disqualifying lawfully appointed office bearers is not sustainable. Therefore I deem it appropriate to grant interim suspension of the impugned order.

Accordingly, there shall be interim suspension of the order dated 04.07.2021 passed by the second respondent pending disposal of the main Writ Petition."

The contentions of the Counselfor the Appellant in the Writ Appeal

12. It is the contention of Sri B.Adinarayana Rao, learned Senior

Counsel appearing for Sri G.K.Deshpande, learned counsel for

appellant that the learned Single Judge did not deal with the objection

that bye-laws of the 2nd respondent Society are in the nature of

contract between its members; that they cannot be enforced under ::6::

Article 226 of the Constitution of India and Writ Petition is not

maintainable; that the finding recorded by the learned Single Judge

that complaints were not furnished and that there was violation of

principles of natural justice is factually incorrect; that the Ombudsman

is an authority who is entitled to suspend respondent Nos.1 and 4 to 7

as such power inheres in him as an independent adjudicatory authority

as per bye-laws of the 2nd respondent. According to him, show cause

notice dt.01.06.2021 was issued to respondent Nos.1 and 4 to 7 by the

Ombudsman mentioning the contents of the complaints and they

replied to them and the allegation of violation of natural justice was

therefore not correct.

The contentions of the counsel for the 1st respondent

13. Sri S.Ravi, learned Senior Counsel appearing for Sri

D.Narendra Naik, learned counsel for 1st respondent supported the

orders passed by the learned Single Judge.

14. According to him, the Writ Petition is maintainable challenging

the order dt.04.07.2021 of the 3rd respondent; that as per bye-law 40,

the Ombudsman can only be appointed at the AGM; in the AGM held

on 11.04.2021, the appellant had stated that the 3rd respondent would

be the Ombudsman and that his appointment is approved in the AGM,

but several members opposed this, and so the appellant abruptly

declared the meeting as closed and asked everybody to leave and

himself left. According to him, thereafter the appointment of Justice

Nisar Ahmed Kakru (Retired Chief Justice of the Andhra Pradesh ::7::

High Court) as Ombudsman and Smt.Justice B. Meena Kumari,

Retired Judge of the Andhra Pradesh High Court as Ethics Officer

was approved by the AGM. He contended that Section 23 of the Act

cannot be invoked and so the 1st respondent had rightly invoked the

jurisdiction of this Court under Article 226 of the Constitution of

India.

The consideration by the Court

15. We have noted the contentions of both sides.

16. Admittedly the 2nd respondent Society is a member of the Board

of Control for Cricket in India.

17. We may point out that the Supreme Court in Board of Control

for Cricket Vs. Cricket Association of Bihar1 appointed a 7

Member Committee headed by Justice R.M.Lodha, former Chief

Justice of India to examine and make suitable recommendations on

several aspects such as making of amendments to Memorandum of

Association of the Board of Control for Cricket in India, Rules and

Regulations and to prevent frauds, conflict of interests and to

streamline its working.

18. On 18.12.2015, the said Committee recommended appointment

of an Ombudsman and an Ethics Officer.

(2015) 3 SCC 251 ::8::

19. Subsequently, the Supreme Court in Board of Control for

Cricket Vs. Cricket Association of Bihar2 accepted the

recommendations of the Committee and directions were given by the

Board of Control for Cricket in India to its various members including

the 2nd respondent, which is affiliated to it, to implement the

recommendations.

20. Subsequently, amendments were made to the Memorandum of

Association of the 2nd respondent, and the Rules and Regulations and

bye-laws and they were registered on 26.09.2018.

21. Chapter 8 of the Rules and Regulations deals with the Ethics

Officer and Chapter 9 of the Rules and Regulations deals with the

Ombudsman and their powers. Clauses 39 and 40 of the Rules and

Regulations specifically deal with the appointment of Ethics Officer

and Ombudsman. These are in the nature of byelaws of a private

association/society registered under the Act.

22. We may point out that there was an order passed by one of us

on 06.04.2021 (MSRJ) in C.R.P.No.117 of 2021 that the

4th respondent herein( the Secretary of the 2nd respondent) had agreed

to the appointment of the 3rd respondent as Ombudsman and Ethics

Officer in the meeting of the Apex Council held on 06.06.2020, which

was ratified in the subsequent meeting of the Apex Council held on

13.08.2020, but later tried to sabotage it by getting filed through the

1st respondent therein an O.P.No.17 of 2020 under the Act before the

(2016) 8 SCC 535 ::9::

XXV Additional Chief Judge, City Civil Court, Hyderabad giving

incorrect address of the Hyderabad Cricket Association (the 2nd

respondent herein), and then himself filing a counter agreeing with the

contentions of the 1st respondent on all aspects by suppressing his own

conduct in the Apex Council meetings held on 06.06.2020,

13.08.2020 and 06.11.2020; and by utilizing the services of the 1st

respondent, the 4th respondent herein had effectively sabotaged the

decision of the Supreme Court to have an Ombudsman and Ethics

Officer in place.

It was also held that he manipulated the contents of the

resolution dt.06.11.2020.

This Court held that the filing of the O.P. itself is an abuse of

process of Court, that there is clear collusion between the petitioner in

the said O.P. and the 4th respondent herein, that they did not come

with clean hands to the Court and suppressed true facts and they

wanted to delay the appointment of the Ombudsman and Ethics

Officer and embarrass the 3rd respondent herein, who is a former

Judge of the Supreme Court.

This Court dismissed the O.P. itself holding that its continuance

might lead to commission of further fraud and mischief by the

petitioner in the O.P. and the 4th respondent.

23. The said order dt.06.04.2021 is said to be under challenge in the

Supreme Court but it admitted that no orders have been obtained by ::10::

any party /appellant in the SLP suspending the order of the High

Court in the C.R.P.No.117 of 2021.

24. Though learned Single Judge noted this aspect, he stated that

the validity of appointment of the 3rd respondent was sub judice in the

Supreme Court but ignored the fact that the said order passed in

C.R.P.No.117 of 2021 is still holding the field.

25. It may be that after the said order was passed in the C.R.P.

No.117 of 2021 on 06.04.2021, the adjourned AGM was held on

11.4.2021.

26. As per the Regulation 40, it is the AGM which can appoint the

Ombudsman.

27. There is a dispute as to what happened in the said AGM held on

11.4.2021 on the aspect of appointment of Ombudsman and Ethics

Officer.

28. While the appellant contends that he had filed Minutes of

meeting of the said AGM approving the appointment of 3rd respondent

as Ombudsman and Ethics Officer, the 1st respondent contends that he

had filed Minutes of meeting of the said AGM approving the

appointment of Justice Nisar Ahmed Kakru (Retired Chief Justice of

the Andhra Pradesh High Court) as Ombudsman and Smt.Justice B.

Meena Kumari, Retired Judge of the Andhra Pradesh High Court as

Ethics Officer.

::11::

29. While the Minutes of the meeting filed by the appellant are

signed by him, the Minutes of the meeting filed by 1st respondent are

not signed by him, though they too mention that it was the appellant

who presided over the meeting.

30. As per Section 20(5) of the Act, the Minutes a General Body

Meeting have to be signed by the person who chaired the said

meeting.

31. Once the statute specifies this requirement, only such Minutes

can be taken as authentic which bear the signature of the person who

chaired the Meeting i.e. the appellant in the instant case.

32. But the learned Single Judge believed the Minutes of the

meeting dt.11.04.2021 submitted by the 1st respondent which did not

contain the signature of the appellant, who admittedly chaired the

meeting.

33. We are of the opinion that when the statute prescribes a

particular requirement of procedure to lend authenticity to the Minutes

of a meeting, it has to be followed and cannot be ignored. It is settled

law that if the statute prescribes that a thing be done in a particular

way, it shall be done only in that way and in no other way. (Prabha

Shankar Dubey Vs. State of Madhya Pradesh3 and J.Jayalalithaa

Vs. State of Karnataka4).

(2004) 2 SCC 56

(2014) 2 SCC 401 ::12::

34. So prima facie as per the Minutes of Meeting of the AGM held

on 11.4.2021 filed by the appellant, the 3rd respondent has to be

treated as having been validly appointed as an Ombudsman. So he has

prima facie subsisting authority after 11.4.2021 to pass the order on

4.7.2021 impugned in the Writ Petition.

35. If the Minutes of meeting of the AGM held on 11.4.2021

produced by the 1st respondent are eschewed from consideration on

the ground that they are not signed by the appellant as required by

Section 20(5) of the Act, the 1st respondent/ Writ Petitioner cannot be

said to have made out any prima facie case warranting grant of any

interim order in the Writ Petition.

36. Also, we do not accept the contention of the learned Senior

Counsel for the 1st respondent that the 3rd respondent had no authority

to suspend the respondent Nos.1, 4 to 7 under the Regulation 39.

37. In T. Tirumala Reddy and Ors. vs. APSEB Engineers

Association, Hyd. and Ors5 it was held that a Court or a Tribunal

which has jurisdiction to try or enquire into a matter, has all incidental

and ancillary powers so as to effectuate the substantive powers

conferred on the Court or Tribunal. It was held that the power to

enquire into and dispose of the application filed under Section 11 of

the A.P. (Telangana) Public Societies Registration Act,1350F before

the Civil Court carries with it, the incidental or ancillary power to

grant an interim order to prevent miscarriage of justice. Such power

1998(2) APLJ 424 (DB) ::13::

was held to be an adjunct to the power of adjudication conferred on

the Court under Section 11 of the Act.

38. The learned Senior Counsel appearing for the appellant does

not dispute this legal proposition that a Tribunal having power to

adjudicate a dispute is deemed to have incidental powers to grant

appropriate interim orders in the interest of justice.

39. In our view, the Ombudsman appointed under Clause 40 of the

Rules and Regulations is intended to be an independent dispute

resolution mechanism. Therefore in exercise of the jurisdiction to

finally adjudicate the dispute, he has the incidental or ancillary power

to grant an interim order to prevent miscarriage of justice.

40. While it may be true that the remedy under Section 23 of the

Act may not be available to the 1st respondent against the order passed

by the Ombudsman, it cannot be said that the only other remedy

available to him is to file W.P.No.15310 of 2021 invoking Art.226 of

the Constitution of India. He can certainly approach the Civil Court

by way of a civil suit for appropriate relief.

41. This is because in Zee Telefilms Ltd. v. Union of India6, the

Supreme Court held that though the Board of Control for Cricket

selects a team to represent India in international matches, and it makes

rules that govern the activities of the cricket players, umpires and

other persons involved in the activities of cricket, the State/Union has

not chosen the Board to perform these duties nor has it legally

(2005) 4 SCC 649 ::14::

authorised the Board to carry out these functions under any law or

agreement. It has chosen to leave the activities of cricket to be

controlled by private bodies out of such bodies' own volition (self-

arrogated). In such circumstances when the actions of the Board are

not actions as an authorised representative of the State, it cannot be

said that the Board is discharging State functions. It held:

"9. It was then argued that the Board discharges public duties which are in the nature of State functions. Elaborating on this argument it was pointed out that the Board selects a team to represent India in international matches. The Board makes rules that govern the activities of the cricket players, umpires and other persons involved in the activities of cricket. These, according to the petitioner, are all in the nature of State functions and an entity which discharges such functions can only be an instrumentality of State, therefore, the Board falls within the definition of State for the purpose of Article 12. Assuming that the abovementioned functions of the Board do amount to public duties or State functions, the question for our consideration is: would this be sufficient to hold the Board to be a State for the purpose of Article 12? While considering this aspect of the argument of the petitioner, it should be borne in mind that the State/Union has not chosen the Board to perform these duties nor has it legally authorised the Board to carry out these functions under any law or agreement. It has chosen to leave the activities of cricket to be controlled by private bodies out of such bodies' own volition (self-arrogated). In such circumstances when the actions of the Board are not actions as an authorised representative of the State, can it be said that the Board is discharging State functions? The answer should be no. In the absence of any authorisation, if a private body chooses to discharge any such function which is not prohibited by law then it would be incorrect to hold that such action of the body would make it an instrumentality of the State. The Union of India has tried to make out a case that the Board discharges these functions because of the de facto recognition granted by it to the ::15::

Board under the guidelines framed by it, but the Board has denied the same. In this regard we must hold that the Union of India has failed to prove that there is any recognition by the Union of India under the guidelines framed by it, and that the Board is discharging these functions on its own as an autonomous body.

10. However, it is true that the Union of India has been exercising certain control over the activities of the Board in regard to organising cricket matches and travel of the Indian team abroad as also granting of permission to allow the foreign teams to come to India. But this control over the activities of the Board cannot be construed as an administrative control. At best this is purely regulatory in nature and the same according to this Court in Pradeep Kumar Biswas Vs. Indian Institute of Chemical Biology and others7case is not a factor indicating a pervasive State control of the Board.

11. Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution, which is much wider than Article 32."

42. So when the circumstances for entertaining a Writ Petition

against the Board of Control for Cricket for India are very limited

since it is not a 'State' under Art.12 of the Constitution, it is a moot

question whether a Writ Petition can be maintained against the 2nd

(2002) 5 SCC 111 ::16::

respondent, a Society which is a private body, or against the decision

( final or interim) of an Ombudsman of the said Society appointed

under Rules/Bye-laws which have no statutory force.

43. The Byelaws of a Society, being in the nature of a contract

among the members of the Society, which is a private body, cannot be

normally enforced under Art.226 of the Constitution of India

primafacie.

44. A Full Bench of the Andhra Pradesh High Court held in Sri

Konaseema Co-operative Central Bank Ltd., Amalapuram and

Ors. vs. N. Seetharama Raju8 as under:

"(i) If a particular co-operative society can be characterised as a 'State' within the meaning of Article 12 of the Constitution (applying the tests evolved by the Supreme Court in that behalf), it would also be an 'authority' within the meaning, and for the purpose, of Art. 226 of the Constitution. In such a situation, an order passed by a Society against its employee in violation of the bye-laws, can be corrected by way of a writ petition. This is not because the bye-laws have the force of law, but on the ground that having framed the bye-laws prescribing the service conditions of its employees, the Society must follow them, in the interest of fairness. If it is left to the sweet will and pleasure of the Society either to follow or not to follow the bye-laws, it would be inherently arbitrary, and may very likely give rise to discriminatory treatment. A society, which is a 'State', has to act in conformity with Art. 14 and, for that reason, it will be made to follow the bye-laws.

(ii) Even if a Society cannot be characterised as a 'State' within the meaning of Art. 12, even so a writ would lie against it to enforce a statutory public duty which an employee is entitled to enforce against the Society. In such a case, it is unnecessary to go into the question whether the Society is being treated as a 'person', or an 'authority', within the meaning of Art. 226 of the Constitution. What is material is

AIR 1990 AP 171 (FB) ::17::

the nature of the statutory duty placed upon it, and the Court will enforce such, statutory public duty.

(iii) The bye-laws made by a co-operative society registered under the A. P. Co-operative Societies Act do not have the force of law. They are in the nature of contract, terms of contract, between the Society and its employees, or between the Society and its members, as the case may be. Hence, where a Society cannot be characterised as a 'State', the service conditions of its employees, governed by bye-laws, cannot be enforced through a writ petition. However, in the matter of termination of service of the employees of a co-operative society, S. 47 of the A. P. Shops and Establishments Act provides a certain protection, and since the said protection is based upon public policy, it will be enforced, in an appropriate case, by this Court under Art. 226 of the Constitution. Ordinarily, of course, an employee has to follow the remedies provided by the A. P. Shops and Establishments Act; but, in an appropriate case, this Court will interfere under Art. 226, if the violation of a statutory public duty is established. It is immaterial which Act or Rule casts such a statutory public duty.

(iv) Mandamus, certiorari, and prohibition are public law remedies. They are not available to enforce private law rights. Every act' of a society which may be a 'State' within the meaning of Art. 12, does not necessarily belong to public, law field. A society, which is a 'State', may have its private law rights just like a Government. A contractual obligations, which is not statutory, cannot be enforced by way of a writ petition under Art. 226 of the Constitution. Prior to entering into contract, however, Art. 14 operates, as explained by the Supreme Court in E.E. & C. Ltd. v. State of West Bengal, MANU/SC/0061/1974MANU/SC/0061/1974 : [1975]2SCR674 , and Rarnana Dayaram Shetty, MANU/SC/0048/1979MANU/SC/0048/1979 : (1979) II LLJ 217 (SC)"

(emphasis supplied)

45. Though this decision deals with a Cooperative Society

incorporated under the A.P.Co-operative Societies Act,1964 and not

to Societies under the Societies Registration Act,1860 ( whose

successor is the Telangana Societies Registration Act,2001), one ::18::

cannot lose sight of the said principles laid down in the above

decision.

46. In our opinion, prima facie the disputes considered by the

Ombudsman are in the nature of disputes among the Committee or

members of a Society or disputes in relation to the affairs of the

Society; the position of the Ombudsman of the 3rd respondent is akin

to that of an arbitrator appointed under a contract between private

parties; and so his orders may not be amenable to jurisdiction under

Art.226 of the Constitution of India.

47. Though the learned Senior Counsel sought to rely on the

decision of a Division Bench of High Court at Hyderabad for the

States of Telangana and Andhra Pradesh in Mohammad Azharuddin

Vs. Dr.G.Vivekanand9 to contend that a Writ Petition challenging

the order of an Ombudsman of the 2nd respondent Association is

maintainable, there is no such finding recorded in the said order.

The Division Bench held that the learned Single Judge, who

decided the Writ Petition and whose order was challenged before the

Division Bench, had not examined the question of maintainability of

the Writ Petition, and so such an exercise will not be undertaken by

the Division Bench for the first time in proceedings under Clause 15

of Letters Patent. The Division Bench set aside the order of the

learned Single Judge and remitted the matter back to the learned

Single Judge.

2018(5) ALD 51 (DB) ::19::

48. In our considered opinion, when the appellant had specifically

raised the issue about maintainability of a Writ Petition at the

threshold, the learned Single Judge ought to have adverted to the same

and taken a view on the said aspect before proceeding to look into the

merits of the matter including prima facie case etc.

49. Also as to what actually happened in the AGM held on

11.4.2021 is in serious dispute and it would have to be adjudicated

after leading evidence before an appropriate forum like a Civil Court

and the remedy under Art.226 of the Constitution of India is not the

proper remedy.

50. For all the aforesaid reasons, the order of the learned single

Judge cannot be sustained.

51. Accordingly, the Writ Appeal is allowed; the order

dt.07.09.2021 in I.A.No.4 of 2021 in W.P.No.15310 of 2021 is set

aside; and the said I.A.No.4 of 2021 is dismissed. No costs.

52. Pending miscellaneous petitions, if any, in this Appeal shall

stand closed.

_______________________________ M.S.RAMACHANDRA RAO, ACJ

_______________________ K.LAKSHMAN, J

Date : 27.09.2021 Vsv