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1990 DIGILAW 496 (ALL)

Abdul Hasan Qureshi v. Additional Director of Education (Basic), VII Region, Gorakhpur

1990-05-07

OM PRAKASH

body1990
JUDGMENT Om Prakash, J. - The petitioners seek quashing of the impugned orders dated 28.11.1987 and 30.7.1988 passed by the respondents 2 and 1 respectively (Annexures 10 and 12 respectively to the petition) and further pray that the operation of the aforesaid orders be stayed and that the respondents Nos. 1,2 and 3 be restrained from interfering in any manner with the functioning of the petitioners in the entire affairs and management of the society and of its two institutions. 2. The facts, in brief, are that the society; "The Azamgarh Quraish Educational Society, Jalandhari, Azamgarh" is registered under the Societies Registration Act and has as its own by laws. It is averred that the society runs two institutions which being on the Grant-In-Aid List, receive grants from the State Government. The names of the two institutions run by the society are : (i) Quraish Junior High School, Jalandhari Azamgarh and (ii) Madarsa Islamia Jamitul-Quraish, Chak Moazzam, Majnupur, Kandharapur, Azamgarh. In para 5 of the petition, it is alleged that vide resolution dated 5.10.1986, a decision was taken to hold election of the general body of the society. In para 8 of the petition, it is averred that a meeting was called on 21.6.1987 in which it was decided that the election of the society shall be held on 26.7.1987. In para 13 of the petition, the petitioners contended that the election had been held on 26.7.1987 in accordance with the bye laws of the society. Annexure 9-A is said to be the election proceedings. According to the bye was, it is said by the petitioners that the President and Secretary were for whole life and the election was held only for the remaining office bearers of the committee of management of the society. In para 10 of the petition, it is contended that the respondent No. 3 set up a counter claim for having become the Secretary of the committee of management of the respondent Secretary of the committee of management of the society. The case of the petitioners is that the respondent No. 3 was not even a member of the society and his application for becoming a member had been rejected by the General Body of the society twice and that no valid election ever took place electing him as the Secretary of the society. The case of the petitioners is that the respondent No. 3 was not even a member of the society and his application for becoming a member had been rejected by the General Body of the society twice and that no valid election ever took place electing him as the Secretary of the society. In para 18 of the petition, the petitioners say that the Zila Basic Shiksha Adhikari, Azamgarh (respondents No. 2) acting upon forged election proceedings devised by the respondent No. 3 illegally recognised the latter as the Secretary of the society and Manager of both the aforesaid institutions by the order dated 28.11.1987, Annexure 10 to the petition. As per election proceedings dated 26.7.1987, Annexure 9-A to the petition, Abdul Hasan Qureshi and Dr. Fakhre Alain were elected as Joint Secretaries besides to her members of the committee of management and in addition to them Mohammad Usman and Hafiz Mohammad Husain Qureshi were life President and life Secretary respectively. 3. It is to be importantly noted that the para 25 of the petition, the petitioners contended that an appeal had been filed by them before the Additional Director of the Education (Basic) VII Region Gorakhpur on 6.1.1988 against the impugned order dated 28.11.1987, Annexure 10 to the petition, passed by the respondent No. 2. This contention is seriously disputed by the respondent No. 3, inasmuch as according to him no appeal was filed by the petitioners against the order dated 28.11.1987, Annexure 10, but by the respondent No. 4, whom the petitioners claim as life Secretary of the society. According to the petitioners when the appeal purportedly filed by them, was not decided by the respondent No. 1, they field a Writ Petition No. Nil of 1988, Abdul Hasan Qureshi v. State of U.P. and others, which was dismissed by a Division Bench of this Court by the order dated 9.3.1988, Annexure 10-A to the petition. By this order, the petition was dismissed but the Director of Education (Basic) before whom the petitioners allegedly filed their representation, was directed to dispose of the said representation within six weeks from the date of presentation of a certified copy of the Court's Order After hearing the concerned parties. By this order, the petition was dismissed but the Director of Education (Basic) before whom the petitioners allegedly filed their representation, was directed to dispose of the said representation within six weeks from the date of presentation of a certified copy of the Court's Order After hearing the concerned parties. Thereafter, the respondent No. 1 passed the impugned order dated 30.7.1988, Annexure 12 to the petition upholding the order of tire respondent No. 2 recognising the respondent No. 3 as the Secretary of the society. 4. The main grievance of the petitioners is that the order passed by a Division Bench of this Court on 9.3.1988, Annexure 10-A to the petition, was not complied with by the respondent No. 1, inasmuch as no opportunity of being heard was given to them by the respondent No. 1 and, therefore, the impugned order dated 30.7.1988, Annexure 12 to the petition is invalid and liable to be quashed. 5. On the other hand, the contention of the respondent No. 3 is that the petitioners have no locus-standi to maintain the writ petition. The learned counsel for the respondent No. 3 argued that admittedly, the appeal was filed by the respondent No. 4 before the respondent No. 1 against the impugned order dated 28.11.1987, Annexure 10 to the petition and, therefore, he alone could have challenged the impugned order dated 30.7.1988, Annexure 12, passed on his appeal dated 5.1.1988. The main question for consideration, therefore, is dial whether the appeal was filed by the petitioners or by the respondent No. 4 before die respondent No. 1 and whether the petitioners have locus to challenge the order dated 30.7.1988 passed by the respondent No. 1. take up these questions seriatim. In para 4 of his supplementary affidavit dated 27.2.1990, die respondent No. 4 clearly states : "The Secretary on behalf of the Society had moved the appeal before the Additional Director of Education (Basic), ........" Upon perusal of the order dated 30.7.1988 Annexure 12 passed by the respondent No. 1, it is manifest that the said order was communicated to the respondent No. 4 clearly staling that order was passed on his appeal dated 6.1.1988. When the appeal was filed by the respondent No. 4 against the order dated 28.11.1987 of the respondent No. 2 before the respondent No. 1, the question is whether the respondent No. 4 alone has locus-standi to challenge the illegality, if any, arising from the order of the respondent No. 1 or the petitioners can also have the locus to challenge the said order, passed on the appeal of the respondent No. 4. The petitioner No. 1 is Sri Mohammad Ahmad who has been substituted in place of the original petitioner No. 1 namely; Abdul Hasan Qureshi as he died in a accident in February, 1989. Sri Mohammad Ahmad, petitioner No. 1 claims to have been elected on 25.3.1989 as Joint Secretary of the society. The respondent No. 3 wholly denied this fact in his supplementary affidavit dated 7.3.1990. Assuming but not admitting that the petitioner No. 1 was elected as Joint Secretary in place of the petitioner No. 1 on 25.3.1989, I am of the considered opinion that when the appeal was filed by the Secretary (respondent No. 4) before the respondent No. 1 who gave a decision against the respondent No. 4, the latter alone could challenge the order of the respondent No. 1 and not the petitioner No. 1. From the order dated 30.7.1988, Annexure 12 to the petition, passed by the respondent No. 1, neither the petitioner No.l nor can the petitioner No. 2 have any grievance and only respondent No. 4 can challenge the impugned order, Annexure 12. In his supplementary affidavit dated 27.2.1990, the respondent No. 4 has given no convincing reason for not having filed the writ petition challenging the impugned order, Annexure 12. He simply stated in para 5 of the said affidavit that he was taken seriously ill and, therefore, could riot file the writ petition himself and that was filed by the Joint Secretary of the society. He simply stated in para 5 of the said affidavit that he was taken seriously ill and, therefore, could riot file the writ petition himself and that was filed by the Joint Secretary of the society. The facts clearly show that the respondent No. 3 and respondent No. 4 each claimed to be the secretary of the society and, therefore, it is the right of the respondent No. 4 alone which can be said to have been infringed by the impugned order, Annexure 12 approving the name of the respondent No. 3 as Secretary of the Society and not the right of the petitioner No.1 who was not even elected on 26.7.1987 when the election of the society is claimed to have been half by the petitioners. No legal injury was caused to the petitioner No. 1 by the impugned order Annexure 12. Fight was between the respondent No. 3 and respondent No. 4 and, admittedly, the latter had filed a suit against the order dated 28.11.1987, Annexure 10 to the petition. The respondent No. 4 obtained an exparte injunction order but that was vacated by the trial Court and then he approached in appeal before the District Judge who too vacated his interim order latter. Such order of the District Judge was challenged by the petitioners by way of Writ Petition before this Court and not by the respondent No. 4 on which this Court passed the order dated 9.3.1988, Annexure 10-A to the petition. It shows that both the times, the petitioners filed writ petition and not the respondent No. 4. Simply because earlier writ petition which was disposed of by this Court by the order dated 9.3.1988 was filed by the petitioners, they could not claim to have possessed locus standi to come to this Court again under Article 226 of the Constitution. The petitioners suppressed a material fact while coming at the first instance before this Court that appeal was preferred by the respondent No. 4 before the respondent No. 1 and not by them. The petitioners suppressed a material fact while coming at the first instance before this Court that appeal was preferred by the respondent No. 4 before the respondent No. 1 and not by them. If the Bench passing the order dated 9.3.1988, Annexure 10-A were aware of the crucial fact that the appeal was filed by the respondent No. 4 and not by the petitioners themselves, then the earlier writ petition of the petitioners would have been dismissed for the simple reason that they had no locus standi to file the writ petition in connection with the proceedings initiated by the respondents No. 4 before the respondent No. 1. Because the petitioners simply started in their earlier writ petition that their representation was pending with the respondent No. 1, who failed to dispose of the same, therefore, a direction was given by a Bench of this Court vide order dated 9.3.1988, Annexure 10-A to the respondent No. 1 to dispose of the representation after hearing the parties within six weeks. Simply because, the question of locus was not gone into on the aforementioned peculiar circumstances by this Court in the first instance when the order dated 9.3.1988 was passed, the petitioners cannot challenge the impugned order, Annexure 12 simply because that allegedly violated the principles of natural justice and the direction of the High Court as contained in the order dated 9.3.1988, unless the petitioners satisfy this Court on the second round on the question of locus. 6. Let us have a hurried look on die precedents available on the question of the locus. In Fertilizer Corporation Kamgar Union (Regd) Sindri and others v. Union of India and others, AIR 1981 SC 344 , the majority view was : "The question whether a person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it any became necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution." 7. But, in an appropriate case, it any became necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Article 226 or under Article 32 of the Constitution." 7. Applying this authority an uninhibited view that can be taken in this case is that the dispute being between the respondent No. 3 and respondent No. 4 for the post of Secretary, the petitioner No. 1 possessed no locus to challenge the order dated 28.11.1987, Annexure 10 to the petition approving the name of the respondent No. 3 as the Secretary of the society. It is only the respondent No. 4 whose alleged legal right was infringed, could challenge the order Annexure 10 in the writ jurisdiction. Even if we take a broader viewing the matter as ruled by the Supreme Court, the petitioner No. 1 possessed no locus to challenge the impugned orders Annexures 10 and 12 to the writ petition which wholly relate to the respondent No. 4 and respondent No. 3. In Dr. Satya Narain Sinha v. S.L. and Company Private Ltd., AIR 1973 SC 2720 , the Supreme Court was of the same view that the right which is the foundation for exercising the jurisdiction under Article 32 or Article 226 is ordinarily the personal or individual right of the petitioner himself, though in the case of some of the writs like have as corpus or quowarranto, this rule may have to lie relaxed or modified. In The State of Orissa and others v. Raja Saheb Chandan Mal, Indra Kumar Private Ltd. and another, AIR 1972 SC 2112 , the Supreme Court on the point of locus said ; "Unless legal right is established, High Court exercising jurisdiction cannot grant him (petitioner) any relief." The Supreme Court reiterated in Calcutta Gas Company v. State of West Bengal and others, AIR 1962 SC 1044 , that it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. Existence of the right is the foundation of the exercise of jurisdiction of the High Court under Article 226 of the Constitution. Existence of the right is the foundation of the exercise of jurisdiction of the High Court under Article 226 of the Constitution. The legal right that can be enforced under Article 226 must ordinarily be the right of the petitioner himself who complains of infraction of such right and approaches the Court for relief. The right that can be enforced under. Article 226 also shall ordinarily be personal or individual right of the petitioner himself. The petitioner No. 1 has absolutely failed to show violation of his personal individual right by virtue of the impugned orders and hence he cannot invoke Article 226 on the facts of this case. 8. Then the question is whether the petitioner No. 2, society can challenge the impugned orders by way of writ petition. No doubt, a society duly registered enjoys the status of a legal entity apart from its members constituting the same and is capable of suing or being sued but in view of the aforesaid authorities only one whose personal or individual right is infringed, can invoke Article 226. In the instant case there is no dispute between the society and the respondent No. 3. So far as the order dated 28.11.1987, Annexure 10 to the petition is concerned, the dispute is confined between the respondent No. 3 and respondent No. 4 and even if a wider view is taken, the disputed question can B.A. to which is the legally elected managing body. In no case does the society come into picture. From the election in which the respondent No. 3 claims to have been elected, the right of the other committee of management can at the most be said to have been injured and from the impugned order, Annexure 10 to the petition, the legal right of the respondent No. 4 was affected and neither situation affected the right of the petitioner No. 2, allegedly represented by its president Sri Mohammad Usman, who himself filed an Original Suit No. 196 of 1988 challenging the election of the committee in which the respondent No. 3 was elected and that suit dismissed. 9. The submission of the learned counsel for the petitioner is that under the bye laws of the society, the term "Secretary" includes Joint Secretary and, therefore, he can equally sue one behalf of the society. 9. The submission of the learned counsel for the petitioner is that under the bye laws of the society, the term "Secretary" includes Joint Secretary and, therefore, he can equally sue one behalf of the society. As already pointed out, no clause of action has arisen to the society itself and, therefore, no action is necessitated on the part of the society. This being so, only the respondent No. 4 who did file the appeal before the respondent No. 1, could have challenged die impugned order passed by the respondent No. 1, (Annexure 12) by way of a writ petition and as no writ petition was ever filed by him, the instant writ petition deserves to be dismissed, inasmuch as the petitioners have no locus to challenge the impugned orders under Article 226 of the Constitution. 10. For the reasons, there is no need for me to go into merits of the case and the writ petition is dismissed for the aforesaid reasons. Stay order dated 4.10.1988 is, therefore, vacated. No order as to costs.