JUDGMENT
Arun Tandon, J.
1. Heard Sri. Ten Singh, Advocate on behalf of the petitioner, Sri G.K. Singh Advocate on behalf of respondent No. 5 and Standing Counsel on behalf of the State respondents.
2. Basant Vidyalay Inter College is an institution recognized under the provisions of the Intermediate Education Act. The Committee of Management of the institution is constituted in accordance with an Scheme of Administration approved with reference to Section 16-A to 16-CCC of the Intermediate Education Act. A Copy of the Scheme of Administration, as enforced, has been brought on record as Annexure-2 to the writ petition.
3. Petitioner Kamla Kant Agrawal claims to be the life member of the general body of the society, which has established Basant Vidyalay Inter College, Mirzapur. It has been stated that the petitioner was Manager/Mantry of the college between the year 1963 to 1975. Petitioner seeks quashing of order dated 1.5.2007, whereby the Regional Joint Director of Education has communicated the decision of the Regional Level Committee (constituted under the Government Order dated 19th December, 2000) approving the elections of the Committee of Management dated 25.2.2007 held by the Prabandh Sanchalak, wherein Sri Arun Kumar Mishra has been elected as Manager. It has further been directed that his signature be attested accordingly.
4. On behalf of the petitioner it is contended that the District Inspector of Schools in his report dated 14th March, 2007, with respect to the elections dated 25.02.2007 had stated that the membership fee of 17 life members at the rate of Rs. 2000/- per member and membership fee of three ordinary members at the rate of Rs.300/- per member has not been deposited in any account of the institution, however, they were permitted to participate in the elections dated 25.2.2007, Petitioner himself has been excluded from the electoral college notified for the election.
5. The report so submitted by the District Inspector of Schools has been bye passed by the Regional Level Committee, only after-recording that the Principal of the institution was handed over the money for deposit of the same in the accounts of the institution and that the Principal had issued a receipt certifying that the money has been received by him. Therefore the enrollment of these 20 members has been held to be valid.
6. Counsel for the petitioner submits that unless the requisite fee towards membership is deposited in the accounts of the institution, it cannot be said that a person has been validly enrolled as a member. Therefore, he states that the order passed by the Regional Level Committee approving the elections is illegal, as unauthorized persons had participated in the elections and further that valid members like the petitioner have been excluded.
7. Sri G.K. Singh Advocate, has put in appearance on behalf of respondent No. 4 the elected Manager. He has raised a preliminary objection with regards to maintainability of the present writ petition. Sri G.K. Singh submits that petitioner at best is an individual member of the general body. Writ petition at his behest for questioning the approval of the elections of the Committee of Management of a recognized Intermediate College under the orders of the Joint Director of Education/ Regional Level Committee, is legally not maintainable in view of the judgments of this Court reported in 2006 (2) UPLBEC 1372 : 1999 (1) UPLBEC 170 : 1997 ESC (3) 1807 and 1997 (1) UPLBEC 415.
8. He submits that this Court has repeatedly held that under the Intermediate Education Act dispute with regards to right to manage the institution between two rival managements alone is contemplated. Such a dispute cannot be stretched or extended to confer a right upon each individual member to question the elections, which take place. It such liberty is granted, every education authority shall remain busy in deciding petitions filed questioning the elections of the Committee of Management, inasmuch as every defeated person will intend to somehow or other obstruct the elected management from taking over charge. Reliance in that regard has also been placed upon the language of Section 16-A(7) of the Intermediate Education Act.
9. Counsel for the respondent with reference to the judgment reported in 2002 (4) ESC 559 has further stated that if the statute does not provide any forum for redressal of a dispute pertaining to the elections, the proper remedy available is by way of civil suit and not by way of petition under Article 226 of the Constitution of India.
10. Sri G.K. Singh has also opposed the prayer made for grant of interim order and submits that on 25th May, 1986 an advertisement was made by the Committee of Management in effective control of the institution inviting applications for enrollment of new members. In pursuance to the said advertisement 20 application were received. The applications were processed and accepted in the meeting of the Committed of Management, which took place on 31st August, 1986. Out of 20 new members enrolled, 17 were life members and 3 were ordinary members. These members have been issued receipt certifying the deposit of requisite fee. The money collected from the fee was handed over to the Principal of the institution for deposit in the concerned account. The Principal in turn has issued a receipt certifying the receipt of the total money.
11. The Deputy Director of Education on 15.10.1986 superseded the Committee of Management and a Prabandh Sanchalak was appointed, who continued to manage the institution for 21 years without making any effort to get the elections held. It was only on 02.01.2007 that he finalized the electoral college, which included amongst other 20 members who were enrolled on 31st August, 1986. This order of the Prabandh Sanchalak was challenged by the present petitioner by means of Writ Petition No. 1073 of 2007, wherein no interim order was granted and writ petition is pending.
12. It has further been stated that the petitioner had earlier filed another Writ Petition No. 56843 of 2006 seeking early elections. The Hon’ble High Court on 12.10.2006 required the Prabandh Sanchalak to hold fresh elections by the next date fixed. Now when the elections have been held, the petitioner wants to challenge the same. It has further been stated that the petitioner has not been found to be a valid member of the general body and therefore has not been Included in the electoral college notified on 02.01.2007.
13. In respect of the allegation that the petitioner was Manager of the institution from 1963 to 1975, it is pointed out that a new Scheme of Administration was adopted in the year 1985 and under the new adopted scheme of administration petitioner is neither the member of the general body nor he entitled to participate in the elections.
14. I have heard counsel for the parties and have gone though the records of the writ petition.
15. The Court may examine the preliminary objection with regard to maintainability of the writ petition first.
16. Article 19(1)(c) of the Constitution of India confers a fundamental right upon a citizen to form an Association, which includes the right to continue to be associated with only those whom they voluntarily admit in the Association. Any law, by which members are introduced in the voluntary Association without any option being given to the members to keep them out, or any law to exclude from membership, those who have voluntarily joined to form the association, would be violative of Article 19(1)(c) of the Constitution.
17. This is what has been declared by the Hon’ble Supreme Court in the famous case of The Hindi Sahitya Sammelan and Ors. v. Shri Jagdish Swarup and Ors. , It would be worthwhile to reproduce relevant portion of paragraph 6 of the said judgment, which reads as follows:
6. …The right to form an association, in our opinion, necessarily implies that the persons forming the Association also has the right to continue to be associated with only those whom they voluntarily admit in the Association. Any law, by which members are introduced in the Voluntary Association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association
18. Thus right to form an association enjoins with it a right to continue to be associated as well as to ensure that only those persons are admitted to the association whom they voluntarily admit.
19. The right to form an association and the right to be elected to an office of such association or to participate in elections has been held to be distinct rights. The member of an association which comes into existence under a scheme/constitution cannot clam any right which is not conferred upon him under the scheme/constitution of the association. Right to participate in the elections and right to be elected to an office is necessarily governed by the constitution of the association/scheme/rules applicable. There is no fundamental right in any person to claim to be elected as an office bearer or for participation in the elections. The participation in the election of the association is governed by the procedure prescribed for elections under the scheme/constitution/rules. Reference in that regard may be had to the judgment reported in 1993 UPLBEC 1663 Anand Pradhan and Ors. v. Vice Chancellor of the BHU and Ors.
20. In view of the aforesaid legal background what follows is that a person has a right to form an association and to ensure his continuance in the association as such. The right to participate in the elections has to be determined with reference to the scheme/constitution/rules applicable to the association and to that extent it has been held that this right to participate in elections is not part and partial of the fundamental right guaranteed by Article 19(1)(c).
21. The issue, which arise for consideration is that if an instrumentality of the State, in the facts of the present case the Deputy Director/Joint Director of Education appoints a Prabandh Sanchalak in a recognized institution for holding fresh electors of office bearers and such Prabandh Sanchalak illegally inducts certain persons as member in the association and further illegally excludes valid members from the association, can such actions of the Prabandh Sanchalak, which are finally approved by Statutory Authority by recognizing the elections so held, can be questioned by means of writ petition under Article 226 of the Constitution of India or not.
22. In the opinion of the Court exclusion of a member from the association by an instrumentality of the State or by a person appointed by an officer of the State would have the effect of depriving a person of his fundamental right to form an association under Article 19(1)(c). Similarly induction of members by an officer of the State or by a person appointed by the officer of the State in the association of persons, without their wish and without the option to refuse such induction, would be violative of Article 19(1)(c) of the Constitution of India and such violations of fundamental rights can always be questioned by way of a petition under Article 226 of the Constitution of India, more so when such violations are approved under orders of the statutory authority.
23. In these circumstances it will be always open to any member of the general body to question such acts of violation and the orders approving the same by means of a wilt petition. A petition under Article 226, for enforcing the fundamental right, would be maintainable in view of the language of Article 226 of the Constitution of India, which reads as follows:
226. Power of High Courts to issue certain writs.- (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions/orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
24. Thus the constitution itself provides the remedy by way of writ proceedings under Article 226 for enforcement of any of the rights conferred by Part-III of the Constitution which includes the fundamental right guaranteed under Article 19(1)(c).
25. If there is an infringement of a right guaranteed under Part-III of the Constitution of India, an application under Article 226 of the Constitution of India is legally maintainable and the petitioner in such a case, is entitled to suitable orders for protection of his fundamental right. The Hon’ble Supreme Court of India in the case of Himmatlal Harilat Mehta v. State of Madhya Pradesh and Ors. has held as follows:
The contention that because a remedy under the impugned Act was available to the appellant it was dis-entitled to relief under Article 226 stands negatived by the decision of this Court in , above referred to. There it was held that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the court with an allegation that his fundamental right had been infringed and sought relief under Article 226.
26. A petition under Article 226 of the Constitution of India is a remedy provided under the Constitution of India. It is the power of judicial review. Maintainability of a petition and refusal to entertain the petition on certain self imposed restrictions, are two distinct: issues. A petition may be maintainable, but the Hon’ble High Court may refuse to exercise its discretion under Article 226 of the Constitution of India on certain self imposed limitations. The language of Article 226 of the Constitution of India provides for issuance of writs for enforcement of fundamental or for any other purpose. The words in Article 226 i.e. for any other purposes make the jurisdiction of the Hon’ble High Court to issue writs more extensive than that of the Hon’ble Supreme Court of India under Article 32 of the Constitution, inasmuch as similar words do not find mention in Article 32.
27. Any order of an authority covered by Article 12 of the Constitution of India, if arbitrary or violative of any other constitutional/statutory provision, is challenged before the Hon’ble High Court by way of petition under Article 226 of the Constitution of India having territorial jurisdiction over the cause, the writ petition would be maintainable. The High Court may, even in such circumstances, refuse to entertain the petition on settled principles like (a) efficacious statutory alternative remedy being available, (b) petition involves disputed question of fact, (c) alternative relief would result in perpetuating the illegality etc.
28. The Hon’ble High Court is bound to enforce the fundamental rights guaranteed by the Constitution. Reference Devilal Modi v. Sales Tax Officer, Ratlam and Ors. and Daryao and Ors. v. State of U.P. and Ors.
29. The issue qua maintainability of a petition questioning an order of Regional Level Committee (constituted under Government Order dated 19th December, 2000) approving the elections of Committee of Management of a recognized institution so as to confer a right of management under Intermediate Education Act/U.P. Act No. 24 of 1971 may be examined with reference to a given case where the Authorized Controller appointed under Section 16-D(4) read with Section 16DD1(a) of the Intermediate Education Act by the State Government inducts new members in the general body, for constituting the Committee of Management of the recognized Intermediate college and simultaneously excludes the earlier members, who had formed the association while establishing the institution. Whether a writ petition by an ordinary member, who has been ousted from the association under the order of the Authorized Controller so appointed, questioning the elections held from illegally inducted members as well as the approval granted to the same by Regional Level Committee would be maintainable or not.
30. In the opinion of the Court the answer has to be in affirmative. The ouster of persons who had formed the association as well as induction of new members contrary to their wish by an instrumentality/authority of the State would violate the fundamental right under Article 19(1)(c) and therefore it has to be held that writ petition would be maintainable, inasmuch as it is the fundamental right of a citizen which has been breached and therefore he alone can question the same. It cannot be said as uniform principle of law that an individual member in no case can challenge the elections held for constituting the Committee of Management of a recognized Intermediate institution.
31. The legal principle can be tested with reference to the elections of the office bearers of a registered society also. Section 25(2) of the Societies Registration Act provides that if elections of office bearers are not held within the time provided for under the bye-laws of the society or the elections held have been declared to be illegal under Section 25(1) of the Societies Registration Act by the Prescribed Authority, fresh elections shall be held by the Assistant Registrar, Firms Societies and Chits himself. If in exercise of power under Section 25(2) of the Societies Registration Act, the Assistant Registrar, Firms Societies and Chits decides to induct new members to the general body as well as/or to exclude the valid existing members, who had formed the society for the purpose of finalizing the electoral college. Challenge to the elections so held by the Assistant Registrar, Firms Societies and Chits can be made by an ordinary member only, inasmuch as there would be no valid office bearers/ Committee of Management available to question the said elections and further since fundamental rights of such individual citizen has been breached.
32. There is another aspect of the matter. Article 19(1)(c) of the Constitution guarantees a right in favour of citizens of India only. Such fundamental right is not available to any legal person like firm, corporate body etc. Distinctions between fundamental rights guaranteed in favour of citizens of India, vis-a-vis a legal person has been specifically dealt with by the Hon’ble Supreme Court of India. Suffice is to reproduce the relevant portion of the judgment in the case of Dr. Naresh Agarwal v. Union of India Civil Misc. Writ Petition No. 15504 of 2005 and other connected writ petitions decided on 4th October, 2005 wherein it has been held as follows:
It is clear on a consideration of the provisions of Part-III of the Constitution that the maker of the Constitution deliberately and advisorily made the clear distinction between fundamental rights available to “an/ person” and those guaranteed to “all citizens”. In other words “all citizens” are persons but all persons are not citizens under the Constitution. The legal significance of “all citizens” has been explained by the Hon’ble Supreme Court of India in its judgment reported in A.I.R. 1963 SC 1811 State Trading Corporation of India, Ltd. v. The Commercial Tax Officer and Ors. with reference to the provisions of Article 5 to Article 11 of the Constitution of India read with the Citizenship Act, 1955, a distinction between nationality and citizenship and between natural persons, in contradistinction to legal juristic persons, covered by the definition of ‘Citizens’ entitled to the benefit of the fundamental rights made available to citizens only has been considered in detail. The said legal proposition has been reiterated in the case of Tata Engineering and Locomotive Co. Ltd. v. The State of Bihar and Ors. as well as in the latest judgment of the Hon’ble Supreme Court in the case of Dharam Dutt and Ors. v. Union of India and Ors. (Reference para 30).
In the aforesaid legal background, the Hon’ble Supreme Court of India has reiterated time and again that an incorporated company or corporation formed by a group of citizens has a distinct legal entity vis-a-vis the citizens who have formed the same, the Corporation or Company may claim rights which are available to persons only but they are not entitled to claim fundamental rights, which are available to citizens of the country. Suffice is to reproduce relevant portion of para 30 of the judgment of the Hon’ble Supreme Court in the case of Dharam Dutt (supra), which reads as follows:
As soon as citizens form a company, the right guaranteed to them by Article 19(1)(c) has been exercised and no restraint has been placed on that right and no infringement of that right is made. Once a company or a corporation is formed, the business which is carried on by the said company or corporation is not the business of the citizens who get the company or corporation formed or incorporated, and the rights of the incorporated body must be judged on that footing alone and cannot be judged on the assumption that they are the rights attributable to the business of individual citizens. In our opinion, the same principle as has been applied to companies and corporations would apply to a society registered under the Societies Registration Act.
It is thus settled that incorporated legal juristic entity cannot claim fundamental rights, which are guaranteed by the Constitution in favour of citizens only.
33. Thus breach of fundamental right under Article 19(1)(c) can be complained of by a citizen of India only and not by a juristic legal person like the Committee of Management/office bearers. In this background a petition under Article 226 of the Constitution of India challenging the breach of fundamental rights guaranteed under Article 19(1)(c) will be maintainable at the behest of a citizen only and not on behalf of any juristic legal person like the Committee of Management/ office bearers. These two aspect of the matters have not at all been examined in any of the judgments relied upon by the counsel for respondents.
34. The principle, as broadly stated on behalf of the respondent, cannot be accepted by the Court. This Court holds that in the given set of fact a writ petition by an individual member, challenging the elections held for constituting the Committee of Management, would be maintainable provided he is able to establish violation of Article 19(1)(c) of the Constitution of India or that the order impugned has been passed by a State authority amenable to writ jurisdiction.
35. As already noticed above, Article 19(1)(c) includes a right to continue as member of the association as well as the right to ensure that persons contrary to the wish of the persons forming the association are not inducted in the association. The right can be effectively ensured provided an individual member has an opportunity to assert that the induction of new members into the association is contrary to the wish of the persons, who had framed the association, which in turn may depend upon the provisions of the scheme/constitution/rules applicable.
36. Similarly, it is always open to an individual member to contend that he is a member of association and has been illegally excluded by an instrumentality of the State, from the association. Such exclusion from the association by an instrumentality would be violative of Article 19(1)(c) of the Constitution of India. The result of such exclusion may ultimately result in questioning the elections held for constituting the Committee of Management of the institution.
37. In the facts of the present case, the order impugned has been passed by an Educational Authority of the State. The order impugned has the effect of conferring legal status of Management resulting in statutory rights and obligations under the U.P. Intermediate Education Act, 1921, U.P. Act No. 24/1971 and U.P. Secondary Education Services Selection Board Act, 1982. Such orders of the Education Authority will always be amenable to writ jurisdiction.
38. This Court may now consider the judgments relied upon by the counsel for the petitioner.
39. So far as the judgment reported in 1997 (3) ESC 1807 Smt. Vimla Devi v. The Deputy Director of Education, Agra Region, Agra and Ors. is concerned, it may be recorded that the Hon’ble Court had held that petitioner was not a member and therefore directly not affected. The writ petition at her behest was not maintainable. It was not the case where the petitioner was excluded from the association or from participation in the elections of the Committee of Management by any officer of the State or by any person appointed by him for holding fresh elections. Therefore, the said judgment is clearly distinguishable. In paragraph 18 of the said judgment it has been held as follows:
18. In the case, therefore, ex-facie, it appears that the office-bearers of a rival Committee of Management could not be treated to be validly inducted members or could not be deemed to have any right to participate in any election or hold any office in the Committee of Management or the facts brought on record indicate that their claim has an origin in fraud or misrepresentation and their possession or control of the affairs of the institution if any cannot be taken to be in accordance with the law indicating their status to be that of rank tres-passers such claim is liable to be ignored altogether. It must be emphasised that any delay either on the part of the Deputy Director of Education in the matter or bringing into existence a machinery to run and manage the institution whether it be the newly elected Committee of Management or a Prabandh Sanchalak has got to be avoided in public interest or even the institutional interest.
40. Thus this Court has held that claim of person, who has no origin or is based on fraud or misrepresentation, is liable to be ignored. The Court has not laid down as uniform principle of law that a writ petition by individual member, questioning the legality of the elections of the Committee of Management of a recognized Intermediate College along with the order of the Educational Authority recognizing the elections, would not be maintainable.
41. The order impugned has been passed by an officer of the Education Department. The order of the State-authorities are amenable to writ jurisdiction. It is further important to note that the orders recognizing the Committee of Management of a recognised Intermediate College result in conferring a legal status upon the elected office bearers with a right to perform certain functions under the U.P. Intermediate Education Act, 1921, U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971, U.P. Secondary Education Services Selection Board Act, 1982. Similarly, statutory obligations are also caused upon the said elected office bearers, under legal principle of law, could be referred to by the learned Counsel for the respondents, in support of the contention that the writ petition for challenging the said order of officers of the State would be legally not maintainable. The contention has, therefore, to be rejected.
42. The Hon’ble Single Judge in the case of Shri Bhagwan Kaushik v. State of U.P. and Ors. (Supra), has relied upon en earlier judgment of this Court in the case of Committee of Management, Janta Inter College and Anr. v. Joint Director of Education and Ors. reported in 1999 (1) A.W.C. 879. In the said case the dispute qua effective control of the rival Committee of Management was subject mater of consideration in proceedings under Section 16A(7) of the U.P. Intermediate Education Act, 1921. The Regional Joint Director of Education hold one of the Committee of Management to be entitled to manage the institution in preference to the other. This order of the Regional Joint Director of Education was challenged by a life member before the Hon’ble High Court. With reference to the provisions of Section 16A(7) of the Act, this Court held that the dispute of effective control pleaded by rival committees of management can be spoused by the Committee which had lost before the Joint Director of Education end not by an individual life member on behalf of the Committee which had so lost. The reason so assigned flows from the language of Section 16A(7) of the Act itself. The Section 16A(7) reads as follows:
Section 16- A. Scheme of Administration.-
(7) Whenever there is dispute with respect tot he management of an institution, persons found by the Regional Deputy Director of Education, upon such enquiry as is deemed fit, to be in actual control of its affairs may, for purposes of this Act, be recognized to constitute the Committee of Management of such institution until a court of competent jurisdiction directs otherwise:
Provided that the Regional deputy Director of Education shall, before making an order under this sub-section, afford reasonable opportunity to the rival claimants to make representation in writing.
Explanation-In determining the question as to who is in actual control of the affairs of the institution, the Regional Deputy Director of Education shall have regard to the control over the funds of the institution and over the administration, the receipt of income from its properties, the scheme of Administration approved under Sub-section (5) and other relevant circumstances.
43. The Section itself clarifies the factors which are to be taken into consideration while deciding the effective control.
44. The law laid down in the said judgment would be applicable only in respect of disputes pertaining to effective control claimed by two rival Committee of Managements and covered by Section 16-A(7) only.
45. It is apparent from the language of Section 16-A(7) of the Act that effective control can be claimed by a Committee of Management only and not by an individual. The Court has not laid down any uniform principle of law to the effect that an individual member of the general body cannot challenge an order of a State Authority recognizing the elections held by a rank outsider or wherein rank outsiders have participated/have been elected as office bearers.
46. So far as the judgment reported in 2002 (4) E.S.C. Page 599 is concerned, the same is in respect of the Union elections, wherein no issue pertaining to violation of Article 19(1)(c) was involved nor has been considered. The judgment is clearly distinguishable.
47. The Court may also notice the last contention raised on behalf of learned Counsel for respondents, with regard to the floodgates of litigation being thrown open, if individual members are permitted to question the election because of their exclusion etc. as well as chaos being created. The issue may not detain the Court for long, inasmuch as the contention based on the plea of opening of floodgate and chaos being created because of interference by the Court against illegal orders, has been considered by the Hon’ble Supreme Court on India in the recent case of Zee Telefilms Ltd. and Anr. v. Union of India and Ors. , and in paragraph 269 to 271 it has been held as follows:
269. The “in terrorem” submission of Mr. Venugopal that a floodgate of litigation would open up if the Board is held to be State within the meaning of Article 12 of the Constitution also cannot be accepted. Floodgate arguments about the claimed devastating effect of being declared a State must be taken with a grain of salt. The courts, firstly, while determining a constitutional question considers such a question to be more or less irrelevant. See Guruvayoor Devaswom Managing Committee v. C.K. Ranjan, SCC para 69. Secondly, as would be noticed hereinafter that this Court has evolved principles of judicial restraint as regards interfering with the activities of a body in policy matters. It would further appear from the discussions made herein before that all actions of the Board would not be subject to judicial review. A writ would not lie where the lis involves only private law character.
270. We are not oblivious of the fact that one of the grounds why the English courts refused to broaden the judicial review concept so far as sporting associations are concerned, was that the same would open floodgates. (See P.P. Craig’s Administrative Law.)
271. Unlike England, India has a written Constitution, and thus, this Court cannot refuse to answer a question only because there may be some repercussions thereto. As indicated hereinbefore, even the decisions of this Court would take care of such apprehension.
271. It is interesting to note that Lord Denning, M.R. In Brodbury v. Enfield London Borough Council held: (All ER p.441 F-1)
It has been suggested by the Chief Education Officer that, if an injunction is granted, chaos will supervene. All the arrangements have been made for the next term, the teachers appointed to the new comprehensive schools, the pupils allotted their places, and so forth. It would be next to impossible, he says, to reverse all these arrangements without complete chaos and damage to teachers, pupils and public. I must say this: if a local authority does not fulfill the requirements of the law, this Court will see that it does fulfill them. It will not listen readily to suggestions of ‘chaos’. The department of education and the council are subject to the rule of law and must comply with it just like everyone else. Even if chaos should result still the law must be obeyed; but I do not think that chaos will result. The evidence convinces me that the ‘chaos’ is much overstated…. I see no reason why the position should not be restored, so that the eight schools retain their previous character until the statutory requirements are fulfilled. I can well see that there may be a considerable upset for a number of people, but I think it far more important to uphold the rule of law. Parliament has laid down these requirements so as to ensure that the electors can make their objections and have them properly considered. We must see that their rights are upheld.
48. This Court, therefore, holds that a writ petition by an individual member questioning legality of the electoral college where under valid existing members have been excluded and/or outsiders have been included/elections held in pursuance there to and the order of the State Officer recognizing/approving the elections so as to confer Iegal status on the elected office bearers cannot be said to be barred under any principle of law. However, a caution may be added that in a given set of facts this Court may refuse to exercise the jurisdiction and may require the petitioner him to challenge his exclusion as well as the election proceedings by way of civil suit, e.g. if disputed questions of fact are involved or for such other self imposed restriction qua the entertainment of a writ petition. Accordingly the preliminary objection raised by the counsel for the petitioner is rejected.
49. So far as the consideration of the interim application is concerned, this Court may record that under the amended Scheme of Administration a new member can be enrolled only in accordance with Clause 2 of the approved Scheme of Administration. Relevant portion whereof reads as follows:
2& —izR;sd dksfV ds lnL;rk xzg.k djus ds fy, fu/kkZfjr ‘kqYd ,d eq’r laLFkk dks ns; gksxh A ‘kqYd dh jlhn izcU/kd ds gLrk{kj ls fuxZr dh tk;sxh A izcU/kd lnL;rk dk izdj.k izcU/k lfefr es fopkj gsrq j[ksxs A ;fn izcU/k lfefr fdlh dks lnL; cuuk Lohdkj ugh djrh rks ;g izdj.k lk/kkj.k lHkk dks lUnfHkZr fd;k tk;sxk rFkk mldk fu.kZ; vfUre gksxk A lnL;rk Lohdkj djus ij og O;fDr lnL;rk ‘kqYd tek djus dh frfFk ls gh lnL; ekuk tk;sxk A vU;Fkk lnL;rk ‘kqYd okil dj fn;k tk;sxk A
50. The District Inspector of Schools in his report dated 14.03.2007 has specifically reported that the membership fee in respect of 20 new members enrolled has not been deposited in any account of the institution. The aforesaid objection qua the membership fee of 20 new members has been side steps by the Regional Level Committee only after recording that the money was handed over to the Principal of the institution, who in turn has issued a receipt certifying the acceptance of the money by him.
51. Prima facie in the opinion of the Court the aforesaid finding is not sufficient to hold that 20 members have been validly inducted as member of the general body, inasmuch as the Regional Level Committee was bound to enquire as to whether the money was deposited in the accounts of the institution and was properly accounted for. Mere issuance of the receipt by the Principal, to the effect that he has received the money towards the membership fee, cannot be termed as valid deposit of fee until and unless it is accounted for in the accounts of the institution. Moreover, these 20 new members are alleged to have been enrolled on 31st August, 1986, while on 15th October, 1986 i.e. hardly after one month and 15 days, the Director of Education had appointed a Prabandh Sanchalak in the institution. Absolutely no evidence has been produced which could establish that the aforesaid 20 members ever participated in any meeting of the general body subsequent to their induction in 1986. This Court may further record that three members out of these 20 had been enrolled as ordinary members. Under Clause 2 of the Scheme of Administration, the term of an ordinary member is three years only. Accordingly, their membership would expire in the year 1989 and therefore they could not have been included in the electoral college nor they could have participated in the elections, which has been held by the Authorized Controller on 24.02.2007.
52. Normally this Court would have proceeded to grant an interim order in favour of the petitioner in view of the findings recorded above, however, such a course is not being adopted in the facts of the present case, inasmuch as against the finalization of the electoral college including aforesaid 20 members and ignoring the petitioner has already been challenged before this Court by the petitioner in Writ Petition No. 1073 of 2007 wherein no interim order has been granted. It would be appropriate that the writ petition itself may be heard and finally decided along with Writ Petition No. 1073 of 2007 at the earliest possible.
53. All the respondents are, therefore, directed to file their counter affidavit on or before 14th August, 2007. Rejoinder affidavit may be filed by 21st August, 2007. The writ petition may be listed for final disposal on 24th August, 2007 before appropriate Bench along with Writ Petition No. 1073 of 2007.