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Reserved
Civil Misc. Review Application No.15872 of 2008
On behalf of
Ganga Singh Chauhan ...... Applicant
IN
Civil Misc. Writ Petition No.15470 of 2006
Dr. Brij Mohan Lal Gupta
Versus
State of U.P. and others
Hon'ble V.K. Shukla, J.
Present review application has been filed against the judgment and
order dated 06.11.2007 passed by this Court, wherein this Court proceeded to
quash the order dated 21.10.2005 passed by the Joint Director of Education,
asking the Prabandh Sanchalak of the institution to get the list of the member
from Ganga Singh Chauhan as well as recognition accorded by the Regional
Level Committee on 17.2.2006 as well as attestation of signature and the Joint
Director of Education, Bareilly Region, Bareilly has been directed to appoint
Prabandh Sanchalak of the institution forthwith for holding election as per
provision as contained in Scheme of Administration, as tenure of erstwhile
Committee had already run out. Against the said judgment in question Special
Appeal No.1743 of 2007 had been filed and therein stand was taken that after
the judgment had been rendered in the aforesaid writ petition subsequent
development had taken place, as Sub-Divisional Magistrate in exercise of
authority vested under Section 25 (1) of the Societies Registration Act, 1860
accepted the election, and aggrieved against the same, writ petition No.53229
of 2007 had been filed and the writ petition was dismissed by this Court. The
Special Appeal Bench taking note of the fact that there were two orders holding
the field, which had left the order passed by the Sub-Divisional Magistrate
undisturbed, holding that there were 20 members of the society and there was
another judgment, which is under review and in such a situation Special Appeal
Bench was of the view that there should not be conflicting orders holding the
field, and for this purpose liberty was given for review of the order and further it
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was also mentioned that Sri Baghel had also objection that the order dated
17.02.2006 was not part of the writ petition, respondent No.6 may consider as
to whether the order should also be made part of the petition, and if so, may
amend the petition, so that same may be squarely challenged. After the said
liberty was reserved, the Special Appeal Bench proceeded not to express any
otherwise opinion on the findings and merits of the reasoning given by this
Court and disposed of the appeal with direction to apply for Review. Pursuant
to this liberty being accorded, present Review application has been filed.
Sri Prabhakar Awasthi, learned counsel for the applicant, contended with
vehemence that the order passed by the Sub-Divisional Magistrate as affirmed
by the Prescribed Authority resolves the controversy, as such order passed by
this Court is liable to be reviewed and further once the order dated 17.02.2006
had not at all been made part of the writ petition, by no stretch of imagination ,
same could have been quashed, as such review application is liable to be
allowed.
Countering the said submissions, Sri G.K. Singh, Advocate, on the other
hand, contended that in the present case original record had been summoned ,
parties were given full liberty to go through the said record and after respective
arguments had been advanced at length and whatever finding has been
returned the same is record based, and as far as order passed by the
Prescribed authority is concerned, it was merely based on will and nothing
beyond the same, and this Court has relegated the matter to be decided by
civil court, as such same cannot be treated to be conclusive, having any
bearing on the categorical finding recorded by this Court, as such review
application is liable to be dismissed. Coupled with this, entire record had been
summoned and by a writ of certiorari said record has been set right, and as
such no objection can be taken in respect of quashing of the order dated
17.02.2006, in such a situation review application deserves to be dismissed.
After respective arguments have been advanced, factual position which
has emerged in the present case on the basis of the record produced has been
as follows:
“The last valid election had been held on 26.11.2000 and tenure of the said
Committee of Management had been until 26.11.2003. In the said election,
which had been held, three life members and seventeen ordinary member
found enrolled participated Dr. Brij Mohan Gupta was elected as Manager,
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Ganga Singh Chauhan as President, J.K. Chandel Vice President, Nathhu
Singh as Assistant Manager and Mewa Singh as Treasurer. Seventeen
ordinary members who had participated in the said election, their tenure was
three years and thereafter their membership automatically came to an end as
per clause 4 (3) (b) of Scheme of administration. Ganga Singh Chauhan
claiming to be the President proceeded ahead by inviting application for
enrolment of member by means of advertisement in the news paper dated
18.9.2003. Said membership was not accepted and the election based on the
said proceeding, was also not approved as said membership had not been
ratified by General Body. This court in its earlier order dated 17.9.2005 inter se
parties has given various detailed reasons as to why such proceeding are of no
consequence, said order is final and binding inter se parties, and net effect of
the said proceedings are that there are only three life members of the society
left with no ordinary members. As far as Ganga Singh Chauhan is concerned,
admittedly his tenure had run out way back in the year 2003 and as such he
could not have been accepted as President of the Managing Committee of the
institution in question thereafter and he had no authority whatsoever to
proceed with enrolment of member. It is evident from the counter affidavit filed
on his behalf that he undertook proceeding for enrolment of the member on
21.1.2005. Ganga Singh Chauhan admittedly was elected as President of the
Managing Committee of the institution on 26.11.2000, said period had already
run out and next elections, which were set up by him dated 23.11.2003 was not
at all accorded approval by the authority concerned i.e. by Regional Level
Committee by order dated 7.5.2004, wherein categorical direction was made
for appointment of Prabandh Sanchalak and said order of Regional Level
Committee was approved by this Court on 7.9.2005. Once order dated
7.9.2005 was passed by Regional Level Committee, and same was affirmed by
this Court, then Ganga Singh Chauhan had no authority to enrol the member of
the society as his status was that he continued to be life member of the society
and nothing beyond it. Joint Director of Education in the present case clearly
erred in law in giving direction to treat Ganga Singh Chauhan as President and
take list from him of electoral college.
In the present case, Joint Director of Education, as well as Regional
Level Committee, at no point of time , have tried to find out as to whether
electoral college and members have been validly enrolled or not and merely
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proceeding on the presumption that Ganga Singh Chauhan is President of the
society, whatever list was supplied by him, same has been accepted as gospel
truth. This was wholly unjustifiable, unreasonable approach on the part of the
Joint Director of Education and the Regional Level Committee, while
proceeding to deal with the matter, ignoring the provisions of bye-laws of the
society and Scheme of Administration. Counter affidavit filed by Ganga Singh
Chauhan clearly proceeds on the presumption that he proceeded to enrol the
member by claiming himself to be the President of the society, ignoring the fact
that he had been elected as President, as per the provision of Scheme of
Administration, and said period had already run out, and as such he had no
authority under law to claim himself as President.”
Taking note of the aforesaid facts, this Court on 16.11.2007 passed
following order:
“In these circumstances and in this background, order
dated 21.10.2005 passed by the Joint Director of Education
asking the Prabandh Sanchalak of the institution to get list of the
member from Ganga Singh Chauhan is quashed as well as
recognition accorded by the Regional Level Committee on
17.2.2006 is quashed and consequential attestation of signature
is also quashed, Joint Director of Education, Bareilly Region,
Bareilly is directed to appoint Prabandh Sanchalak of the
institution forthwith for holding election as per provision as
contained in Scheme of Administration, as tenure of erstwhile
Committee had already run out and there are only three life
members of the society left and as such it would be expedient to
take into account provision of bye-law of society and proceed
accordingly.
In case, it is not feasible, to hold election, and there are
only three members of the general body, steps be undertaken for
dissolution of Society under Section 13-B of Societies
Registration Act, 1860 and State Government would be free to
take up the institution, in accordance with law.
With these observations, writ petition are allowed.”
In the meantime as per review application, the elections of the society of
Dr. Sudama Prasad Bal Vidya Mandir Kutchery Road, Shahjahanpur was held,
wherein Ganga Singh Chauhan claims to have been elected as President and
Sri Bal Krsihna Gupta as Manager. Entire papers in regard to the said elections
were transmitted to the Assistant Registrar, Firms Societies and Chits for the
purpose of registration of the list of office bearers under Section 4 of the
Societies Registration Act. To the said list so transmitted Dr. Brij Mohan Lal
Gupta filed objection and the matter was referred to the Prescribed Authority
under Section 25 of the Societies Registration Act for authenticity of the
elections held on 25.11.2005. Prescribed Authority in its turn decided the
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dispute based on the will dated 13.08.1965 and mentioned therein that Ganga
Singh Chauahan was the President and Bal Krishna Gupta Manager and had
proceeded to declare the validity of the election submitted by them qua the
society.
Entire dispute decided by the Prescribed Authority is based on the will
and nothing beyond the same. This Court on account of the decision being
based on registered will did not find any reason to interfere in the finding of fact
recorded by the Prescribed Authority. The fact that question of will was
involved, is fully reflected from the order passed by learned Single Judge in
writ petition No.53229 of 2007, and validity of will could not have been gone
into in exercise of authority of judicial review. Relevant extract of the said
judgment is being quoted below:
“By means of present writ petition petitioner has challenged
the order dated 10.08.2007 passed by respondent No.1 Prescribed
Authority/Sub-Divisional Magistrate, district Shahjahanpur, by which
the objection of the petitioner no. 2 has been rejected and the
objection of Ganga Singh Chauhan and Bal Krishna Gupta has
been accepted and Ganga Singh and Bal Krishna Gupta has been
declared President and Manager of the Committee of Management,
respectively.
Heard Sri R.C. Dwivedi, learned counsel for the petitioner,
Sri Indra Raj Singh and Sri Ratan Deep Mishra, learned counsel
appearing on behalf of the opposite party and perused the
impugned order.
Petitioner No.2 claimed to be the President of the society on
the basis of will dated 13.10.1969 of Dr. Sudama Prasad, which
was held to be unregistered will while the claim of the opposite
party has been accepted on the basis of registered will of Dr.
Sudama Prasad dated 13.08.1965.
I do not find any reason to inter with the finding of fact
recorded by the Prescribed Authority. In the present writ petition ,
petitioner has raised the disputed question of fact, which cannot be
gone into writ jurisdiction under Article 226 of the Constitution of
India.
The decision of this Court cited by the learned counsel for
the petitioner in case of Dr. Mehandi Hasan and another vs. State
of U.P. and others, reported in (2007) (3) ESC 2153 (All) and in the
case of Jagdish Chandra Shashtri vs. Prescribed Authority and
another, reported in (1007) 1 UPLBEC, 242 are not applicable to
the present case.
In the result, writ petition fails and is accordingly
dismissed .”
Once issue, which has been decided by this Court while passing
judgment which is under review, has not at all been raised before the
Prescribed Authority, neither any answer has been on the said issue, the order
passed by the Prescribed Authority is based on validity of the will and this
Court has refused to interfere in the disputed question of fact being raised, the
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order passed by this Court will not stand vitiated on any count, once the same
is based on relevant provisions and once it has been passed after going
through the record, which had been duly summoned and which clearly
demonstrated manipulations and manoeuvrings, which has been noted in great
detail in the order under review. The finding of fact returned by this court on
the basis of record produced cannot be diluted merely because there is order
passed by the Prescribed Authority based on will, and this Court has refused to
go into disputed questions of fact, whereas the validity of the will was not an
issue before this Court and on the issue raised answer has been given, based
on record and after opportunity of hearing to the parties.
Much emphasis has been laid on the fact that once order was not
forming part of the record of the case, same could not have been quashed by
the High Court in writ jurisdiction. For this purpose reliance has been placed on
two judgments; namely, Hindustan Petroleum Corporation Ltd. vs. Sunita
Mehra and others, (2001) 9 SCC 344 and Abhay Narain Singh vs. State
of U.P. and others, 2007 (2) ADJ 281 (DB). In the case of Hindustan
Petroleum Corporation (supra), the order had not even been challenged in writ
petition nor the same formed part of the record of the case, in such a situation
it was held that it could not be quashed by the High Court in writ jurisdiction. In
such circumstances the order was not approved of. In the case of Abhay
Narain Singh (supra), the view taken was that no relief can be granted to the
petitioner for quashing of the order, by which the private respondent was
authorized to raise construction, but the same was not part of the record. In
such a situation writ petition itself could not be entertained.. In the said writ
petition so filed for a direction to the respondent authorities, particularly,
Divisional Commissioner , District Collector, Sub-Divisional Magistrate and the
District Inspector of Schools to decide the representation filed by the petitioner
for restraining the private respondents from raising constructions of the school
in the village. It was reflected therein that the order which was passed in favour
of the private respondents to raise constructions was not forming part of the
record; in such a situation view taken was that no relief was accorded to the
petitioner.
Both the aforesaid judgments will not apply to the facts of the present
case, for the simple reason that herein specific prayer has been made for
quashing of the decision dated 17.02.2006, and specific mention had been
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made that copy of said order has not been supplied and entire record be
summoned. This is accepted position that writ of certiorari is issued for calling
of the record of case so that conscionable justice may be administered, and if
required by quashing of the order. In the present case copy of the order dated
17.02.2006 was not available on record, but it is accepted that writ of certiorari
had been prayed for, for its quashing and pursuant thereto original record had
been summoned; same had been perused by the parties and then writ of
certiorari had been issued by proceeding to quash the order impugned. Once
prayer was already there and entire record had been summoned pursuant to
order passed by this Court and same was also before the Court; the record
had been perused by the parties; thereafter arguments were advanced, and
then there remained no legal impediment in quashing the impugned order
dated 17.02.2006 by setting the record straight.
Consequently, the present review application is sans merits and is,
accordingly, dismissed.
03.07.2010
SRY