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2006 DIGILAW 1164 (ALL)

Shiksha Parishad Jaitpur through its Manager/Secretary and Shiv Bali Singh v. State of U. P.

2006-04-27

RAKESH TIWARI

body2006
RAKESH TIWARI, J. ( 1 ) HEARD learned Counsel for the parties and perused the record. ( 2 ) PETITIONER No. 1 is a registered society and runs Pt. Jawahar Lal Nehru Intermediate College, jaitpur which was initially established as a Junior High School. It was duly recognized as such and was on the grant-in-aid list of the State Government. In due course of time the School was upgraded and granted recognition as Intermediate College under Section 7-A of the Intermediate education Act and is governed by a duly approved Scheme of Administration. ( 3 ) IT is alleged that in the election of Committee of Management held on 22. 6. 1986 one Sri pardeshi was elected as Manager/secretary. One Sri Ram Narayan Singh raised a dispute claiming himself to be the Manager/secretary. By resolution of l/4th members of the General body the dispute was referred to the Prescribed Authority under Section 25 (1) of the Societies registration Act. During the pendency of the dispute in 1995, Sri Bhawani Prasad along with Sri jagdamba Prasad Tripathi, respondent No. 6, claiming himself to be the Manager/secretary filed an objection before the Prescribed Authority on the ground of no confidence motion passed against Sri Pardeshi on 29. 12. 1994. ( 4 ) THE Prescribed Authority rejected the reference made by Sri Ram Narayan Singh on 20. 7. 1996 and directed the Assistant Registrar to hold fresh election of the Society in the presence of an observer. Subsequently list of members was finalized on 6. 12. 1996 by the City Magistrate and the D. I. O. S. on the basis of alleged list of General Body annexed with the Scheme of administration. On the directions of the District Magistrate election of the committee of management was held by the City Magistrate and the D. I. O. S. on 29. 12. 1996 which was a sunday and signatures of respondent No. 6 was attested as the Manager/secretary of the Society on the same day. ( 5 ) IT is alleged that these so called members had never participated in any elections and the list did not include even the founder members. Since the Prescribed Authority had directed to hold fresh election the Assistant Registrar decided list of members on 25. 11. ( 5 ) IT is alleged that these so called members had never participated in any elections and the list did not include even the founder members. Since the Prescribed Authority had directed to hold fresh election the Assistant Registrar decided list of members on 25. 11. 199s and directed the additional Development Officer (A. D. O.) to hold election of the Society under Section 25 (2) of the Societies Registration Act. ( 6 ) THE order of the Assistant Registrar was challenged by respondent No. 6 by filing Writ petition No. 41937 of 1998 wherein vide order dated 11. 12. 1998 election was directed to be held without giving effect to the same. Accordingly the election was held by the A. D. O. as directed by the Assistant Registrar. Writ Petition No. 41937 of 1998 was ultimately disposed of with the consent of the parties vide judgment and order dated 5. 9. 2005 with the direction that the membership of General Body of the Society be decided afresh by the Committee within a period of two months and thereafter the election would be held within another one month. ( 7 ) IT is alleged that petitioner No. 2 Sri Bali Singh submitted all the relevant documents to establish that the list of members finalized by the Assistant Registrar vide his order dated 25. 11. 1998 was the valid list and not that which was submitted by respondent No. 6 as he was not even member of the General Body and further the list did not include the names of founder members also of the Society. However, the Committed constituted by the Court rejected both the lists submitted by the petitioners and respondent No. 6 and accepted the list finalized by the City magistrate and the D. I. O. S. , hence this writ petition. ( 8 ) ADMITTEDLY there is dispute of membership. A suit No. 1760 of 1996 has already been filed by pardeshi who has died. No substitution was made in place of Sri Pardeshi. Thus on the admitted facts and that twice the parties have come up in writ petition and are again disputing the list of membership which have been finalized by the Committee constituted by this Court consisting of the Joint Director of Education, the Additional District Magistrate (Finance) and the Additional district Magistrate (Administration) the list could not attain finality. Thus on the admitted facts and that twice the parties have come up in writ petition and are again disputing the list of membership which have been finalized by the Committee constituted by this Court consisting of the Joint Director of Education, the Additional District Magistrate (Finance) and the Additional district Magistrate (Administration) the list could not attain finality. ( 9 ) THE matter is covered by the judgment rendered in Writ Petition No. 20719 of 2006. Uttam nishad v. State of U. P. and Ors. , in which it has been held that if the parties approach the High court more than once disputing the electoral rolls of the election or the membership of the committee of management or the Society the dispute is to be finally settled by way of filing a suit. In the aforesaid Writ Petition No. 20719 of 2006 it has been held: After hearing the counsel for the parties and perusal of record as well as considering the law cited by the parties, I am of the view that in the old scheme of administration there is absence of procedure for holding fresh elections in the certain circumstances. It appears from the impugned order that though the joint Director has stated that since the old scheme of administration, which has been approved, has not been amended as such the amendment in the new scheme of administration would apply, is limited in should be read in its application as operative only in so far as the old scheme is new scheme in view of Committee of Management, Sahid Mangal pandey Inter College (supra) is consistent, the respondent No. 5 already in office and his elections have been approved by the Joint Director by the impugned order and his signature had been attested on 19. 3. 2006 as Manager of the institution and he is in effective control of the institution. Where there is a dispute of Committee of Management under Section 16-A (7) of the U. P. Intermediate Education Act No. 24 of 1971, the decision as to actual control has to be taken by the Regional Joint Director of Education. The only recourse open is to get the dispute adjudicated. By the Prashashnik Adhikari in the G. O. dated 19. 12. The only recourse open is to get the dispute adjudicated. By the Prashashnik Adhikari in the G. O. dated 19. 12. 2000 only certain administrative work has been distributed by the State Government at Regional level between the d. I. O. S. and Deputy Director of Education for discharging administrative functions enumerated therein. The Regional Level Committee under the notification dated 19. 12. 2000 is only empowered to consider and deliberate the question. From the G. O. it is clear that the Regional level Committee has to prepare a report, which shall be forwarded to the authority, who has to take decision under the Act of 1921. The Regional level Committee cannot exercise judicial or quasi-judicial function until it is specifically directed by the High Court or Honble Supreme Court in a given case. Even if any of the parties are not satisfied, then in that case remedy is not before the High Court in writ petition under article 226 of the Constitution, but before the Civil Court by means of suit as disputed questions of facts can only be-" decided by the Civil Court after documentary and oral evidence is adduced. Though the basis of the G. O. has been upheld in Special Appeal No. 1394 of 2004 the constitution of Regional Level Committee is only that of a recommendatory body and it has no authority or jurisdiction to decide the disputes of Committee of Management under the government Order dated 19. 12. 2000, for a Government Order cannot override or replace the provision of law i. e. Section 16-A (7) of the U. P. Intermediate Education Act, 1971. Therefore it cannot exercise powers of Section 16-A (7) which arc-quasi judicial and are to be exercised only by the Authority specified. The matter also came up for consideration by Division Bench in Special Appeal No. 1078 of 2005, Munna Lal Singh and Anr. v. State of U. P. and Ors. , arising out of judgment dated 30. 8. 2005 in writ petition No, 38907 of 2004. Their Lordships in the aforesaid appeal opined: we are of the opinion that the Government Order cannot in any manner had to vary or alter the provisions of the statute which is the product of the State legislature or its predecessor. , arising out of judgment dated 30. 8. 2005 in writ petition No, 38907 of 2004. Their Lordships in the aforesaid appeal opined: we are of the opinion that the Government Order cannot in any manner had to vary or alter the provisions of the statute which is the product of the State legislature or its predecessor. However, the Government Order can, and indeed, does operate in anas which are silent in the act and operating in that area, does not in any manner touch the Act. It is noticed that within the Government Order itself the report the Committee is to be forwarded to the authority under the Act, which has jurisdiction to decide the matter. This finding of the government Order itself presuppose that it is not within the jurisdiction of the Committee itself to decide the matter but that the jurisdiction for decision is only ascertained from the provision of the 1921 Act itself. ( 10 ) I am also supported in my view by another judgment of Division Bench in Special Appeal no. 1394 of 2004, Committee of Management v. Regional Joint Director of Education and anr. , wherein it has been observed: A perusal of the Government Order 19. 12. 2000 clearly shows that the Regional Level committee has to merely send its recommendation to the officer authorized to pass the order under die provisions of the Act. It is, therefore, clear that the order has to be passed by the regional Joint Director of Education, Agra but on the basis of the recommendation made by the regional Level Committee. We are, therefore, unable to accept the contention advanced by the learned Senior counsel for the appellant that die provisions of the Government Order run contrary to the provisions of Section 16-A-7 of the Act. ( 11 ) SRI R. K. Ojha, learned Counsel appearing on behalf of the petitioners, has drawn the attention of the Court to the judgment dated 5. 9. 2005 passed in Writ Petition No. 41937 of 1998 wherein it has been held: during the pendency of this writ petition, it is alleged that fresh elections of the committee had been held twice and the next one is due in December 2005. 9. 2005 passed in Writ Petition No. 41937 of 1998 wherein it has been held: during the pendency of this writ petition, it is alleged that fresh elections of the committee had been held twice and the next one is due in December 2005. There is a dispute with regard to the membership of the society and the parties agree that the question of membership may be decided afresh by a committee consisting of any Additional District Magistrate to be nominated by the collector and the Regional Joint Director of Education. The Committee shall finalize the voters list within a period of two months from the date of submission of certified copy of this order and thereafter hold the elections within further period of one month. It is made clear thin both the parties shall file their respective list of members and also their objections inter se. The parties would be given a reasonable opportunity of hearing both the finalization of the voters list. The committee, so constituted, shall not take into account the observations passed in the present impugned order. ( 12 ) SRI P. N. Saxena, learned Counsel for the petitioners, in rebuttal has stated that in pursuance of order dated 5. 9. 2005 in Writ Petition No. 41937 of 1998 since the decision on the question of membership of the members of the General Body of the Society has not attained finality as it is disputed that the founder members have not been included in the list no election can be held. ( 13 ) SHRI R. K. Ojha in rebuttal has urged that the list has attained finality and even the founder members have been included in the list by the impugned order and therefore the order passed in writ Petition No, 41937 of 1998 is to be complied with. ( 14 ) SINCE even the Committee comprising the City Magistrate and the D. I. O. S. could not correctly decide the dispute of membership as directed by the High Court, in the circumstances the only remedy left open is to direct the parties to get it decided by the civil court. After the final determination of suit, elections shall be held according to the voters list so determined. ( 15 ) WITH the aforesaid directions and for the reasons stated above, the writ petition is dismissed on the ground of alternative remedy. . .