{"id":138477,"date":"2010-07-03T00:00:00","date_gmt":"2010-07-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-brij-mohan-lal-gupta-vs-state-of-u-p-and-others-on-3-july-2010"},"modified":"2016-02-19T04:18:15","modified_gmt":"2016-02-18T22:48:15","slug":"dr-brij-mohan-lal-gupta-vs-state-of-u-p-and-others-on-3-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-brij-mohan-lal-gupta-vs-state-of-u-p-and-others-on-3-july-2010","title":{"rendered":"Dr. Brij Mohan Lal Gupta vs State Of U.P. And Others on 3 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
Dr. Brij Mohan Lal Gupta vs State Of U.P. And Others on 3 July, 2010<\/div>\n
                                                                                  1\n\n                                                                         Reserved\n\n\n\n\n                Civil Misc. Review Application No.15872 of 2008\n                                   On behalf of\n                Ganga Singh Chauhan           ......       Applicant\n                                        IN\n                   Civil Misc. Writ Petition No.15470 of 2006\n\n\n                            Dr. Brij Mohan Lal Gupta\n                                      Versus\n                            State of U.P. and others\n\n\n\nHon'ble V.K. Shukla, J.\n<\/pre>\n
      Present review application has been filed against the judgment and
\norder dated 06.11.2007 passed by this Court, wherein this Court proceeded to
\nquash the order dated 21.10.2005 passed by the Joint Director of Education,
\nasking the Prabandh Sanchalak of the institution to get the list of the member
\nfrom Ganga Singh Chauhan as well as recognition accorded by the Regional
\nLevel Committee on 17.2.2006 as well as attestation of signature and the Joint
\nDirector of Education, Bareilly Region, Bareilly has been directed to appoint
\nPrabandh Sanchalak of the institution forthwith for holding election as per
\nprovision as contained in Scheme of Administration, as tenure of erstwhile
\nCommittee had already run out. Against the said judgment in question Special
\nAppeal No.1743 of 2007 had been filed and therein stand was taken that after
\nthe judgment had been rendered in the aforesaid writ petition subsequent
\ndevelopment had taken place, as Sub-Divisional Magistrate in exercise of
\nauthority vested under Section 25 (1) of the Societies Registration Act, 1860
\naccepted the election, and aggrieved against the same, writ petition No.53229
\nof 2007 had been filed and the writ petition was dismissed by this Court. The
\nSpecial Appeal Bench taking note of the fact that there were two orders holding
\nthe field, which had left the order passed by the Sub-Divisional Magistrate
\nundisturbed, holding that there were 20 members of the society and there was
\nanother judgment, which is under review and in such a situation Special Appeal
\nBench was of the view that there should not be conflicting orders holding the
\nfield, and for this purpose liberty was given for review of the order and further it
\n                                                                                 2<\/span><\/p>\n
was also mentioned that Sri Baghel had also objection that the order dated
\n17.02.2006 was not part of the writ petition, respondent No.6 may consider as
\nto whether the order should also be made part of the petition, and if so, may
\namend the petition, so that same may be squarely challenged. After the said
\nliberty was reserved, the Special Appeal Bench proceeded not to express any
\notherwise opinion on the findings and merits of the reasoning given by this
\nCourt and disposed of the appeal with direction to apply for Review. Pursuant
\nto this liberty being accorded, present Review application has been filed.\n<\/p>\n
      Sri Prabhakar Awasthi, learned counsel for the applicant, contended with
\nvehemence that the order passed by the Sub-Divisional Magistrate as affirmed
\nby the Prescribed Authority resolves the controversy, as such order passed by
\nthis Court is liable to be reviewed and further once the order dated 17.02.2006
\nhad not at all been made part of the writ petition, by no stretch of imagination ,
\nsame could have been quashed, as such review application is liable to be
\nallowed.\n<\/p>\n
      Countering the said submissions, Sri G.K. Singh, Advocate, on the other
\nhand, contended that in the present case original record had been summoned ,
\nparties were given full liberty to go through the said record and after respective
\narguments had been advanced at length and whatever finding has been
\nreturned the same is record based, and as far as order passed by the
\nPrescribed authority is concerned, it was merely based on will and nothing
\nbeyond the same, and this Court has relegated the matter to be decided by
\ncivil court, as such same cannot be treated to be conclusive, having any
\nbearing on the categorical finding recorded by this Court, as such review
\napplication is liable to be dismissed. Coupled with this, entire record had been
\nsummoned and by a writ of certiorari said record has been set right, and as
\nsuch no objection can be taken in respect of quashing of the order dated
\n17.02.2006, in such a situation review application deserves to be dismissed.\n<\/p>\n
      After respective arguments have been advanced, factual position which
\nhas emerged in the present case on the basis of the record produced has been
\nas follows:\n<\/p>\n
    “The last valid election had been held on 26.11.2000 and tenure of the said
\nCommittee of Management had been until 26.11.2003. In the said election,
\nwhich had been held, three life members and seventeen ordinary member
\nfound enrolled participated Dr. Brij Mohan Gupta was elected as Manager,
\n                                                                                  3<\/span><\/p>\n
Ganga Singh Chauhan as President, J.K. Chandel Vice President, Nathhu
\nSingh as Assistant Manager and Mewa Singh as Treasurer. Seventeen
\nordinary members who had participated in the said election, their tenure was
\nthree years and thereafter their membership automatically came to an end as
\nper clause 4 (3) (b) of Scheme of administration. Ganga Singh Chauhan
\nclaiming to be the President proceeded ahead by inviting application for
\nenrolment of member by means of advertisement in the news paper dated
\n18.9.2003. Said membership was not accepted and the election based on the
\nsaid proceeding, was also not approved as said membership had not been
\nratified by General Body. This court in its earlier order dated 17.9.2005 inter se
\nparties has given various detailed reasons as to why such proceeding are of no
\nconsequence, said order is final and binding inter se parties, and net effect of
\nthe said proceedings are that there are only three life members of the society
\nleft with no ordinary members. As far as Ganga Singh Chauhan is concerned,
\nadmittedly his tenure had run out way back in the year 2003 and as such he
\ncould not have been accepted as President of the Managing Committee of the
\ninstitution in question thereafter and he had no authority whatsoever to
\nproceed with enrolment of member. It is evident from the counter affidavit filed
\non his behalf that he undertook proceeding for enrolment of the member on
\n21.1.2005. Ganga Singh Chauhan admittedly was elected as President of the
\nManaging Committee of the institution on 26.11.2000, said period had already
\nrun out and next elections, which were set up by him dated 23.11.2003 was not
\nat all accorded approval by the authority concerned i.e. by Regional Level
\nCommittee by order dated 7.5.2004, wherein categorical direction was made
\nfor appointment of Prabandh Sanchalak and said order of Regional Level
\nCommittee was approved by this Court on 7.9.2005. Once order dated
\n7.9.2005 was passed by Regional Level Committee, and same was affirmed by
\nthis Court, then Ganga Singh Chauhan had no authority to enrol the member of
\nthe society as his status was that he continued to be life member of the society
\nand nothing beyond it. Joint Director of Education in the present case clearly
\nerred in law in giving direction to treat Ganga Singh Chauhan as President and
\ntake list from him of electoral college.\n<\/p>\n
      In the present case, Joint Director of Education, as well as Regional
\nLevel Committee, at no point of time , have tried to find out as to whether
\nelectoral college and members have been validly enrolled or not and merely
\n                                                                                      4<\/span><\/p>\n
proceeding on the presumption that Ganga Singh Chauhan is President of the
\nsociety, whatever list was supplied by him, same has been accepted as gospel
\ntruth. This was wholly unjustifiable, unreasonable approach on the part of the
\nJoint Director of Education and the Regional Level Committee, while
\nproceeding to deal with the matter, ignoring the provisions of bye-laws of the
\nsociety and Scheme of Administration. Counter affidavit filed by Ganga Singh
\nChauhan clearly proceeds on the presumption that he proceeded to enrol the
\nmember by claiming himself to be the President of the society, ignoring the fact
\nthat he had been elected as President, as per the provision of Scheme of
\nAdministration, and said period had already run out, and as such he had no
\nauthority under law to claim himself as President.”\n<\/p>\n
      Taking note of the aforesaid facts, this Court on 16.11.2007 passed
\nfollowing order:\n<\/p>\n
                      “In these circumstances and in this background, order
\n             dated 21.10.2005 passed by the Joint Director of Education
\n             asking the Prabandh Sanchalak of the institution to get list of the
\n             member from Ganga Singh Chauhan is quashed as well as
\n             recognition accorded by the Regional Level Committee on
\n             17.2.2006 is quashed and consequential attestation of signature
\n             is also quashed, Joint Director of Education, Bareilly Region,
\n             Bareilly is directed to appoint Prabandh Sanchalak of the
\n             institution forthwith for holding election as per provision as
\n             contained in Scheme of Administration, as tenure of erstwhile
\n             Committee had already run out and there are only three life
\n             members of the society left and as such it would be expedient to
\n             take into account provision of bye-law of society and proceed
\n             accordingly.\n<\/p><\/blockquote>\n
                      In case, it is not feasible, to hold election, and there are
\n             only three members of the general body, steps be undertaken for
\n             dissolution of Society under Section 13-B of Societies
\n             Registration Act, 1860 and State Government would be free to
\n             take up the institution, in accordance with law.
\n             With these observations, writ petition are allowed.”<\/p><\/blockquote>\n
      In the meantime as per review application, the elections of the society of
\nDr. Sudama Prasad Bal Vidya Mandir Kutchery Road, Shahjahanpur was held,
\nwherein Ganga Singh Chauhan claims to have been elected as President and
\nSri Bal Krsihna Gupta as Manager. Entire papers in regard to the said elections
\nwere transmitted to the Assistant Registrar, Firms Societies and Chits for the
\npurpose of registration of the list of office bearers under Section 4 of the
\nSocieties Registration Act. To the said list so transmitted Dr. Brij Mohan Lal
\nGupta filed objection and the matter was referred to the Prescribed Authority
\nunder Section 25 of the Societies Registration Act for authenticity of the
\nelections held on 25.11.2005. Prescribed Authority in its turn decided the
\n                                                                                      5<\/span><\/p>\n
dispute based on the will dated 13.08.1965 and mentioned therein that Ganga
\nSingh Chauahan was the President and Bal Krishna Gupta Manager and had
\nproceeded to declare the validity of the election submitted by them qua the
\nsociety.\n<\/p>\n
      Entire dispute decided by the Prescribed Authority is based on the will
\nand nothing beyond the same. This Court on account of the decision being
\nbased on registered will did not find any reason to interfere in the finding of fact
\nrecorded by the Prescribed Authority. The fact that question of will was
\ninvolved, is fully reflected from the order passed by learned Single Judge in
\nwrit petition No.53229 of 2007, and validity of will could not have been gone
\ninto in exercise of authority of judicial review. Relevant extract of the said
\njudgment is being quoted below:\n<\/p>\n
                     “By means of present writ petition petitioner has challenged
\n             the order dated 10.08.2007 passed by respondent No.1 Prescribed
\n             Authority\/Sub-Divisional Magistrate, district Shahjahanpur, by which
\n             the objection of the petitioner no. 2 has been rejected and the
\n             objection of Ganga Singh Chauhan and Bal Krishna Gupta has
\n             been accepted and Ganga Singh and Bal Krishna Gupta has been
\n             declared President and Manager of the Committee of Management,
\n             respectively.\n<\/p><\/blockquote>\n
                     Heard Sri R.C. Dwivedi, learned counsel for the petitioner,
\n             Sri Indra Raj Singh and Sri Ratan Deep Mishra, learned counsel
\n             appearing on behalf of the opposite party and perused the
\n             impugned order.\n<\/p><\/blockquote>\n
                     Petitioner No.2 claimed to be the President of the society on
\n             the basis of will dated 13.10.1969 of Dr. Sudama Prasad, which
\n             was held to be unregistered will while the claim of the opposite
\n             party has been accepted on the basis of registered will of Dr.
\n             Sudama Prasad dated 13.08.1965.\n<\/p><\/blockquote>\n
                     I do not find any reason to inter with the finding of fact
\n             recorded by the Prescribed Authority. In the present writ petition ,
\n             petitioner has raised the disputed question of fact, which cannot be
\n             gone into writ jurisdiction under Article 226 of the Constitution of
\n             India.\n<\/p><\/blockquote>\n
                     The decision of this Court cited by the learned counsel for
\n             the petitioner in case of Dr. Mehandi Hasan and another vs. State
\n             of U.P. and others, reported in (2007) (3) ESC 2153 (All) and in the
\n             case of Jagdish Chandra Shashtri vs. Prescribed Authority and<\/a>
\n             another, reported in (1007) 1 UPLBEC, 242 are not applicable to
\n             the present case.\n<\/p><\/blockquote>\n
                     In the result, writ petition fails and is accordingly
\n             dismissed .”<\/p><\/blockquote>\n
      Once issue, which has been decided by this Court while passing
\njudgment which is under review, has not at all been raised before the
\nPrescribed Authority, neither any answer has been on the said issue, the order
\npassed by the Prescribed Authority is based on validity of the will and this
\nCourt has refused to interfere in the disputed question of fact being raised, the
\n                                                                                  6<\/span><\/p>\n
order passed by this Court will not stand vitiated on any count, once the same
\nis based on relevant provisions and once it has been passed after going
\nthrough the record, which had been duly summoned and which clearly
\ndemonstrated manipulations and manoeuvrings, which has been noted in great
\ndetail in the order under review. The finding of fact returned by this court on
\nthe basis of record produced cannot be diluted merely because there is order
\npassed by the Prescribed Authority based on will, and this Court has refused to
\ngo into disputed questions of fact, whereas the validity of the will was not an
\nissue before this Court and on the issue raised answer has been given, based
\non record and after opportunity of hearing to the parties.\n<\/p>\n
       Much emphasis has been laid on the fact that once order was not
\nforming part of the record of the case, same could not have been quashed by
\nthe High Court in writ jurisdiction. For this purpose reliance has been placed on
\ntwo judgments; namely, Hindustan Petroleum Corporation Ltd. vs. Sunita
\nMehra and others, (2001) 9 SCC 344 and Abhay Narain Singh vs. State
\nof U.P. and    others,    2007 (2) ADJ 281 (DB). In the case of Hindustan
\nPetroleum Corporation (supra), the order had not even been challenged in writ
\npetition nor the same formed part of the record of the case, in such a situation
\nit was held that it could not be quashed by the High Court in writ jurisdiction. In
\nsuch circumstances the order was not approved of. In the case of Abhay
\nNarain Singh (supra), the view taken was that no relief can be granted to the
\npetitioner for quashing of the order, by which the private respondent was
\nauthorized to raise construction, but the same was not part of the record. In
\nsuch a situation writ petition itself could not be entertained.. In the said writ
\npetition so filed for a direction to the respondent authorities, particularly,
\nDivisional Commissioner , District Collector, Sub-Divisional Magistrate and the
\nDistrict Inspector of Schools to decide the representation filed by the petitioner
\nfor restraining the private respondents from raising constructions of the school
\nin the village. It was reflected therein that the order which was passed in favour
\nof the private respondents to raise constructions was not forming part of the
\nrecord; in such a situation view taken was that no relief was accorded to the
\npetitioner.\n<\/p>\n
       Both the aforesaid judgments will not apply to the facts of the present
\ncase, for the simple reason that herein specific prayer has been made for
\nquashing of the decision dated 17.02.2006, and specific mention had been
\n                                                                                 7<\/span><\/p>\n
made that copy of said order has not been supplied and entire record be
\nsummoned. This is accepted position that writ of certiorari is issued for calling
\nof the record of case so that conscionable justice may be administered, and if
\nrequired by quashing of the order. In the present case copy of the order dated
\n17.02.2006 was not available on record, but it is accepted that writ of certiorari
\nhad been prayed for, for its quashing and pursuant thereto original record had
\nbeen summoned; same had been perused by the parties and then writ of
\ncertiorari had been issued by proceeding to quash the order impugned. Once
\nprayer was already there and entire record had been summoned pursuant to
\norder passed by this Court and same was also before the Court; the record
\nhad been perused by the parties; thereafter arguments were advanced, and
\nthen there remained no legal impediment in quashing the impugned order
\ndated 17.02.2006 by setting the record straight.\n<\/p>\n
      Consequently, the present review application is sans merits and is,
\naccordingly, dismissed.\n<\/p>\n
03.07.2010
\nSRY\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court Dr. Brij Mohan Lal Gupta vs State Of U.P. And Others on 3 July, 2010 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-138477","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nDr. Brij Mohan Lal Gupta vs State Of U.P. 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