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2007 DIGILAW 733 (ALL)

MEHANDI HASAN v. STATE OF UTTAR PRADESH

2007-03-23

ARUN TANDON

body2007
JUDGMENT Honble Arun Tandon, J.—Heard Counsel for the parties. 2. These 12 writ petitions, which have been filed by rival parties claiming a right to manage the Local Committee of All India Muslim Educational Conference, Bareilly, a society registered under the Societies Registration Act as well as Fazlur Rahman Islamia Inter College, Bareilly along with other educational institutions established and managed by the said society. 3. At the very outset the Court may record its unhappiness about the manner in which the parties have mis-utilized/rather abused the process of writ proceedings under Article 226 of the Constitution of India for perpetuating their continuance in the institution for years together without the actual dispute of right to manage the society and the institution as lawfully elected office bearers being finally adjudicated at any point of time by any of the authorities, as well as without getting any writ petition finally decided. By complicating facts and by concealing the real issue parties have been successful in obtaining interim orders after interim orders from this Court and as a result whereof at no point of time the basic issue of the right to be the lawful office bearers has been adjudicated finally. This practice must be brought to an end so that the Courts are not made an instrument for granting interim orders only. 4. According to the Court, a stage has come to adjudicate upon the rights of the parties finally and in this background, the Court instead of falling in the trap as suggested by the Counsel for the petitioner to grant interim order and to connect the last petition with the earlier pending writ petition, insisted that all the writ petitions themselves may be listed and may finally be adjudicated by this Court. Facts : 5. Local Committee of All India Muslim Educational Conference, Bareilly is a society duly registered under the Societies Registration Act. The society is run and managed in accordance with the registered bye-laws. The General Body of the Society is known as Board of Control, elections whereof have to take place in accordance with the registered bye-laws of the society. The bye-laws contemplate 5 office bearers, two Secretaries and an Assistant Secretary. The terms of the office bearers is provided as three years and they are to continue till fresh elections are held. The General Body of the Society is known as Board of Control, elections whereof have to take place in accordance with the registered bye-laws of the society. The bye-laws contemplate 5 office bearers, two Secretaries and an Assistant Secretary. The terms of the office bearers is provided as three years and they are to continue till fresh elections are held. The Board of Control has been conferred a power to induct new members in Sub-Committee, the total whereof cannot exceeding 30. The criteria for induction of new members has also been specified. 6. Fazlur Rahman Islamia Inter College, Bareilly is an institution recognized under the Intermediate Education Act, 1921, established by the said society. It has its own approved scheme of administration. The Committee of Management of the institution is to consist of not less than 9 and not more than 15 members, which includes 5 office bearers. The term of the office bearers and members, other than ex officio members, shall be three years. Provided further that the term of every office bearers shall be deemed to have continued till his successor is chosen. Procedure for convening the meeting of the committee has been provided under Clause-9 and the procedure for conducting the meeting has been provided under Clause-10. Reference be also had to Clause-10 (h), which provides that election should be held well in time so that the term of the office bearers and members is not extended beyond three years in any case. 7. Under the aforesaid provisions of the bye-laws of the society and the scheme of administration of the institution, the disputes raised in the present writ petition has to be examined. Group ‘A’ Writ Petition Nos. 37849 of 2000, 50066 of 2000 and 42121 of 2001 (dispute pertaining to the office bearers of the society): 8. Mohammad Abrar Ahmad, claiming himself to be the elected President, along with Aziz Ahmad alleged to be Senior Vice President, filed first writ petition, being Writ Petition No. 37849 of 2000. It is stated in the petition that the renewal of the registration of the society was claimed by F. Rahman Khan on the basis of the election proceedings dated 21.9.1995. While one Sri Shafeeq Husain, alleged Secretary, submitted independent papers for renewal of the registration of the society on 20.12.1995 along with the election proceedings dated 31.1.1993. It is stated in the petition that the renewal of the registration of the society was claimed by F. Rahman Khan on the basis of the election proceedings dated 21.9.1995. While one Sri Shafeeq Husain, alleged Secretary, submitted independent papers for renewal of the registration of the society on 20.12.1995 along with the election proceedings dated 31.1.1993. The dispute of rival office bearers was referred by the Assistant Registrar, Firms, Societies and Chits vide his order dated 6.4.1996 to the Prescribed Authority under Section 25(1) of the Societies Registration Act. 9. The Prescribed Authority, instead of deciding the dispute, as referred to him, on merits, proceeded to decide the same with reference to a compromise application said to have been submitted by Sri Safeeq Husain. The Prescribed Authority held that the persons mentioned in the affidavit filed by Safeeq Husain were valid members of the Board of Control of the Society and that the meeting dated 31.1.1993 was illegal. The said order was passed by the Prescribed Authority on 31.12.1998. Objections were raised on behalf of Mohd. Abrar and others against the order dated 31.12.1998 and a recall application was filed. The Prescribed Authority by means of the order dated 15th April, 1999 recalled the order and fixed the matter for hearing of the parties. Before the Prescribed Authority an application was filed by Sri F.R. Alam stating therein that the reference may be dismissed on the basis of compromise between the parties and it was further mentioned that 14 new persons mentioned in the application be treated as members of the general body of the society. The Prescribed Authority surprisingly, without deciding the dispute as referred, on 25th May, 2000, acting upon the said compromise, held that 16 persons, who were inducted as member in the meeting dated 31.1.1993, were invalid. 14 persons inducted as per the compromise application dated 15th May, 2000 were valid member of Board of Control and further directed that registration be done in terms of the compromise by the Assistant Registrar. 10. Again a recall application was filed by Mohd. Abrar Ahmad. The Prescribed Authority by means of an interim order dated 1st June, 2000 directed that the order dated 25th May, 2000 be kept in abeyance. However, by means of the order dated 11th August, 2000 he again affirmed the order dated 25th May, 2000, referred to above. 10. Again a recall application was filed by Mohd. Abrar Ahmad. The Prescribed Authority by means of an interim order dated 1st June, 2000 directed that the order dated 25th May, 2000 be kept in abeyance. However, by means of the order dated 11th August, 2000 he again affirmed the order dated 25th May, 2000, referred to above. These two orders were challenged in the said writ petition. In the writ petition no interim order was granted. 11. One Shakeel Husain along with six members of the Board of Control, claiming themselves to be the life members, said to have been enrolled in the meeting dated 31.1.1993, filed Writ Petition No. 50066 of 2000 (second) against the same order of the Prescribed Authority inasmuch as their membership stood negated. Both the writ petitions were clubbed together and opportunity was granted to respondent No. 3 to take such action as may be permissible under the law. 12. In order to keep the record it may be noticed that in the said writ petition petitioner No. 1 Shakeel Husain filed an application for writ petition being dismissed as not pressed. However, petitioner Nos. 2 to 7 moved another application that they are interested in pursuing the writ petition. 13. Third writ petition, being Writ Petition No. 42121 of 2001 has been filed by Mohd. Abrar Ahmad for a writ of mandamus commanding the respondents not to interfere in his functioning and control over the property of the society and the institution run and managed by the society. 14. From the facts, as noticed herein above, it may be seen that the basic controversy in all three writ petitions pertains to the legality of the order passed by the Prescribed Authority dated 25.5.2000 and 11.8.2000. Normally this Court would not have interfered with the order passed by the Prescribed Authority under Section 25(1) of the Societies Registration Act at this stage i.e. after expiry of nearly 6 years from the date of order inasmuch as dispute pertaining to the elected office bearers of the society would have been rendered infructuous by passage of such a long period. Such is not the case in hand inasmuch as under the impugned order merely on a compromise the Prescribed Authority has proceeded to hold that 16 persons, who were inducted as member in a meeting held on 31.1.1993, were invalid members, while 14 persons inducted some time in the year 2000 were valid member of Board of Control of the Society. 15. So far as the first part of the order is concerned, it is apparent from the records that absolutely no opportunity of hearing was afforded to the members concerned before declaring that said persons were not members of the Board of Control. Even otherwise admittedly no facts have been noticed by the Prescribed Authority for holding that the meeting dated 31.1.1993 had not taken place or the procedure prescribed for convening the meeting and thereafter the procedure for inducting the members has not been followed. 16. So far as the induction of 14 new members, said to have been inducted in the year, 2000, are concerned, the aforesaid issue was wholly outside the reference made to the Prescribed Authority under referring order of the Assistant Registrar of the year, 1996. The issue being outside the scope of reference could not have been decided by the Prescribed Authority and to that extent his order is wholly without jurisdiction. 17. It is needless to emphasis that Prescribed Authority under Section 25(1) of the Societies Registration Act is an authority with limited jurisdiction bound within four corners of the dispute referred to under Section 25(1) of the Societies Registration Act. Independent of reference he has no jurisdiction to travel into a dispute not referred to him or to adjudicate upon him. 18. In view of the aforesaid, this Court has no hesitation to hold that the order dated 25.5.2000 and 11.8.2000 passed by the Prescribed Authority are patently illegal and without jurisdiction and therefore unsustainable in the eyes of law. The order cannot be permitted to stand inasmuch all subsequent elections of the Committee of Management are likely to be prejudiced adversely because of such illegal order of the Prescribed Authority. The order cannot be permitted to stand inasmuch all subsequent elections of the Committee of Management are likely to be prejudiced adversely because of such illegal order of the Prescribed Authority. It is, therefore, held that the persons claiming to be lawful members of the general body of the society may get their right adjudicated by initiating such independent proceedings, as they may be advised, before the competent Court of Law where evidence can be led and examined in detail inasmuch as such issues of enrollment of new members are more or less issue of fact. 19. In view of the aforesaid, these three writ petitions are disposed of accordingly. Group ‘B’ Writ Petition Nos. 27795 of 2001, 19594 of 2002, 43273 of 2003, 49104 of 2003, 47413 of 2004 and 49683 of 2004 (Dispute pertaining to the Committee of Management of the institution): 20. Sri Haji Mukhtar Waseem, who is admittedly one of the persons said to have been declared as validly enrolled member of the Board of Control of the Society in its meeting held on 20.8.2000, on the strength of the order of the Prescribed Authority dated 25.5.2000 claimed to have been elected Manager of the Committee of Management of the Inter College in the elections of the office bearers, said to have taken place on 27.8.2000. It is further claimed that his signatures as Manager of the institution were attested by the District Inspector of Schools on 18.9.2000. 21. One Sri Kamar Ali, who claimed to have been nominated as Manager in December, 1997, challenged the said order of the District Inspector of Schools dated 27.8.2000 by making a representation before the Collector, Bareilly. The representation was forwarded to Joint Director of Education, who in turn called for a report from the District Inspector of Schools qua recognition of Sri Hazi Mukhtar Wasim (hereinafter called as Wasim) as Manager and further recommended that till the dispute is resolved, attestation of signatures of Sri Wasim should remain stayed. 22. The District Inspector of Schools by means of the order dated 6.11.2000, acting on the said letter of the Joint Director of Education, stayed the attestation of signature of Sri Haji Mukhtar Wasim as Manager. These two orders dated 4.11.2000 and dated 6.11.2000 were challenged by Sri Wasim by means of Writ Petition No. 49683 of 2000. 22. The District Inspector of Schools by means of the order dated 6.11.2000, acting on the said letter of the Joint Director of Education, stayed the attestation of signature of Sri Haji Mukhtar Wasim as Manager. These two orders dated 4.11.2000 and dated 6.11.2000 were challenged by Sri Wasim by means of Writ Petition No. 49683 of 2000. This Court on 14.11.2000 passed an interim order whereby the order dated 6.11.2000, passed by the District Inspector of Schools, was stayed. On the strength of the said interim order, Sri Wasim alleges to have continued as Manager of the institution. 23. In respect of certain transaction pertaining to the property of the institution, show cause notices dated 18.8.2001 and 27.8.2001 were issued by the District Inspector of Schools. A reply is said to have been submitted to the notice. However, the matter was referred to the Joint Director of Education. The Joint Director of Education on receipt of the documents, issued a show cause notice to the petitioner Committee of Management to explain as to why action may not be taken for decapitating the assets of the institution and as to why an authorized controller under Section 6(2) of the U.P. Act No. 24 of 1971 be not appointed. This notice was challenged by means of Writ Petition No. 36091 of 2001 by Sri Wasim in his capacity as Manager. 24. The Joint Director of Education proceeded to pass an order under Section 6(3) of the U.P. Act No. 24 of 1971 dated 26.11.2000, whereby Authorized Controller was appointed in the institution. Sri Wasim in his capacity as Manager initiated two parallel proceedings (a) he filed appeal under Section 7 of U.P. Act No. 24 of 1971 and (b) he filed Writ Petition No. 41586 of 2001 for quashing the order dated 26.11.2001. The aforesaid two writ petitions remain pending before this Court and no interim order was granted. 25. During the pendency of the appeal the appellate authority under a note to the letter, fixing a date for hearing in the appeal, provided that Authorized Controller shall only look after the payment of salary of the teacher and staff of the institution. The petitioner got the Writ Petition No. 41586 of 2001 dismissed as withdrawn under an order of the Court dated 11.1.2002. The petitioner got the Writ Petition No. 41586 of 2001 dismissed as withdrawn under an order of the Court dated 11.1.2002. It has further been stated that Writ Petition No. 36091 of 2001 was also dismissed as withdrawn under an order of the Court dated 29.1.2001. The appellate authority dismissed the appeal filed by the petitioner vide order dated 30.4.2002. 26. Against the appellate order of the Joint Director of Education dated 30.4.2002 Sri Wasim filed Writ Petition No. 19594 of 2002. This Court on 13.5.2002 stayed the operation of the order dated 26.11.2001 and dated 30.4.2002. The District Inspector of Schools, however, on 13.6.2002 issued a notice to the petitioner (Sri Wasim) stating therein that attestation of signatures of Sri Wasim was obtained by fraud and concealment of material facts, he may, therefore, show cause as to why appropriate action may not be taken. Sri Wasim challenged the show cause notice by means of Writ Petition No. 23985 of 2002. This Court by means of the order dated 13.6.2002 stayed the operation of the notice itself. However, it permitted the authorities to pass a fresh order in accordance with law. The District Inspector of Schools in compliance of the interim order of the Court vide order dated 3.8.2002 directed that salary bill be submitted under signature of Sri Wasim. 27. One Sri Syed Kamar Ali in his independent capacity as Manager filed Writ Petition No. 33210 of 2002 for quashing the order dated 3.8.2002 passed by the District Inspector of Schools, in so far as it directed that the salary bill of the teachers and staff of the institution may be submitted under the signatures of Sri Haji Mukhtar Wasim as Manager. In the said writ petition no interim order has been granted. 28. During the pendency of the matter before the District Inspector of Schools, as aforesaid, an order dated 31.7.2003 was issued restraining the bank concerned from permitting withdrawal of money by Sri Haji Mukhtar Wasim. This order was challenged by Sri Haji Mukhtar Wasim by means of Writ Petition No. 34880 of 2003. The said writ petition was directed to be listed before the Bench concerned. The same could not be heard nor any further orders have been passed. 29. This order was challenged by Sri Haji Mukhtar Wasim by means of Writ Petition No. 34880 of 2003. The said writ petition was directed to be listed before the Bench concerned. The same could not be heard nor any further orders have been passed. 29. The District Inspector of Schools, however, concluded the proceedings vide order dated 16.9.2003 and held that one Sri Syed Kamar Ali was lawful elected Manager of the institution. His signatures were accordingly attested on the basis of the election dated 12.5.2002. This order of the District Inspector of Schools has been challenged by means of Writ Petition No. 43273 of 2003, wherein on 24th September, 2003 an interim order has been granted and operation of the order dated 16.9.2003 passed by the District Inspector of Schools has been stayed. 30. Since the order of the District Inspector of Schools recognizing Sri Syed Kamar Ali as Manager had been stayed by this Court, the District Inspector of Schools, Bareilly by means of an order dated 29.10.2003 directed single operation of accounts in the institution. This order of the District Inspector of Schools has been challenged by means of Writ Petition No. 49104 of 2003. On 5.11.2003, the order dated 29.10.2003 passed by the District Inspector of Schools has been stayed by the Court. 31. Sri Syed Kamar Ali claimed fresh elections of the Board of Control dated 12.5.2002. However, the District Inspector of Schools did not recognize the said election and by means of order dated 9th August, 2002 directed that fresh election may be held by the Committee of Management, and also attested the signatures of Sri Haji Mukhtar Wasim in that regard. 32. On record of these writ petitions is a copy of the plaint of original suit No. 453 of 2003, said to have been filed on 15.8.2003 by the Committee of Management of the Intermediate College through its Manager Sri Wasim with the relief that the defendant may be restrained from interfering in the management of the institution. No injunction is said to have been granted in the said suit. 33. On 18.8.2003 again elections are claimed to be held by Sri Syed Kamar Ali. The said elections were also recognized by the District Inspector of Schools vide order dated 16.9.2003. No injunction is said to have been granted in the said suit. 33. On 18.8.2003 again elections are claimed to be held by Sri Syed Kamar Ali. The said elections were also recognized by the District Inspector of Schools vide order dated 16.9.2003. The order so passed by the District Inspector of Schools has been challenged by Sri Wasim by means of Writ Petition No. 43273 of 2003, wherein under an interim order of the Court dated 24.9.2003 the operation of the order dated 16.9.2003 has been stayed. 34. Simultaneously Sri Haji Mukhtar Wasim also claimed independent election dated 22.7.2003, wherein he claims to be elected as Manager. 35. Thereafter another Writ Petition No. 51706 of 2003 was filed by Syed Kamar Ali. The petition was disposed of with a direction that Syed Kamar Ali may make a representation in respect of the elections before the Joint Director of Education, who in turn was required to decide the same in a time bound manner. In alleged compliance of the order of this Court, referred to above, parties represented their matter before the Joint Director of Education. 36. The Joint Director of Education by means of the order dated 5.3.2004 held that the elections set up by Sri Wasim dated 22.7.2003 as well as those set up by Syed Kamar Ali dated 18.8.2003 were illegal. Both the elections cannot be recognized. Against this order of the Joint Director of Education, Committee of Management with Sri Syed Kamar Ali filed Writ Petition No. 11311 of 2004, while the Committee of Management with Sri Wasim as Manager has filed Writ Petition No. 47713 of 2004. 37. Under the provisions of the Scheme of Administration applicable to the institution the electoral college, for holding the elections of the office bearers of the Committee of Management as per Clause 10-H of the Scheme of Administration, is the same as the electoral college in respect of the office bearers of the registered society, which has established the said institution. Therefore, any election of the office bearers of the Committee of Management of the institution would necessarily depend upon the validity of the electoral college, from which the elections are held, which in turn in the facts of these petitions would be dependent upon the electoral college of the parent body i.e. Society. Therefore, any election of the office bearers of the Committee of Management of the institution would necessarily depend upon the validity of the electoral college, from which the elections are held, which in turn in the facts of these petitions would be dependent upon the electoral college of the parent body i.e. Society. This Court has already held that the order passed by the Prescribed Authority dated 25.5.2000 and dated 11.8.2000 determining the general body of the society is illegal for the reasons recorded herein above in respect of bunch of writ petitions categorized as Group ‘A’. 38. Consequently, elections pleaded by the parties in respect of the Committee of Management of the institution cannot be accepted as the electoral college itself is in cloud. The Joint Director of Education has rightly held that the elections set up by Sri Haji Mukhtar Wasim as well as those set up by Sri Syed Kamar Ali dated 22.7.2003 and dated 18.8.2003 respectively are illegal and therefore cannot be accepted. There is no error in the order of the Regional Joint Director of Education dated 5.3.2004. Consequently, the order so passed is affirmed. Group ‘C Writ Petition Nos. 27795 of 2001 and 42385 of 2005 (Dispute pertaining to the appointments made by the Committee of Management headed by Sri Haji Mukhtar Wasim): 39. During the period of dispute of the rival Committee of Management of the institution Writ Petition No. 27795 of 2001 has been filed against an order passed by the District Inspector of Schools rejecting the permission asked for, for making appointment on vacant posts in the institution on the ground that a dispute pertaining to the management of the institution is pending consideration before this Court. In the said writ petition no interim order was granted. From the writ petition it is apparent that permission was applied for in respect of the posts of Lecturer Chemistry, Lecturer Physics, Lecturer Commerce and three posts of L.T. Grade Teachers. 40. Writ Petition No. 42385 of 2005 has been filed by two teachers, said to have been appointed in the institution by the Committee of Management headed by Sri Wasim. This writ petition was nominated to this Court under order of the Hon’ble The Chief Justice dated 23.9.2005. These two teachers claim appointment as Lecturer Economics and Lecturer Civics respectively in pursuance to an advertisement dated 19th October, 2002. This writ petition was nominated to this Court under order of the Hon’ble The Chief Justice dated 23.9.2005. These two teachers claim appointment as Lecturer Economics and Lecturer Civics respectively in pursuance to an advertisement dated 19th October, 2002. Petitioners claim to have joined their duties on 16.3.2003 and claim payment of salary accordingly. 41. The petitioners of the aforesaid writ petitions claim to have been appointed by a Committee of Management in effective control of the institution at the relevant time. However, it is not in dispute that at the relevant time a serious dispute with regard to office bearers to manage the institution was pending before this Court and there were certain interim orders in favour of the committee said to have made appointments. 42. As already recorded above, the institution in question is recognized as minority institution. Right to make appointments on the post of Teachers in a recognized minority institution is part and partial of the fundamental right guaranteed under Article 30 of the Constitution of India. The Hon’ble Supreme Court in the case of T.M.A. Pai Foundation v. State of Karnataka, 2002(8) SCC 481 (Paragraph 50), has held that the right to administer broadly includes the following rights : (a) Admit students, (b) Set up a reasonable fee structure, (c) Constitute a governing body, and (d) Appoint staff and to take disciplinary action. 43. This Court may, therefore, hold that mere continuance of a committee under an interim order passed in a pending writ petition cannot confer a legal right upon the said committee to make appointments in a minority institution specifically when the writ petition is finally dismissed and the committee which had obtained the interim order is found not to be validly constituted Committee of Management. The Hon’ble Supreme Court of India in the case of M/s Shree Chamundi Mopeds Ltd. v. Church of South Indian Trusts Assn. CSI Cinod Secretariat, Madras, JT 1992(3) SC 98 has clarified that any interim order passed during the pendency of the proceedings would merge in the final order and in case petition is dismissed, it is to be presumed that such interim order was never passed. 44. In view of the said settled position, the right to hold elections and to offer appointment by the Committee of Management, which was functioning under an interim order in a minority institution has necessarily to be turned down. 44. In view of the said settled position, the right to hold elections and to offer appointment by the Committee of Management, which was functioning under an interim order in a minority institution has necessarily to be turned down. The Committee of Management working under the interim order in respect of a minority institution cannot be permitted to create a situation where teachers are appointed contrary to the wish of the members of the minority community, which has established the institution, inasmuch as lawful Committee of Management alone has a right to make such appointments. The Committee of Management, whose continuance itself is in cloud and is being disputed by a series of the writ petition, should have restrained itself from making any selection on the post of Teacher in a recognized institution. Consequently, the relief prayed for by the petitioners in this Group ‘C’ of writ petition cannot be granted. Writ petitions are dismissed. 45. However, this Court may clarify that in case after fresh elections are held and the lawful committee is constituted, it shall have a right to offer fresh appointment in accordance with law and at the relevant time the claim of the petitioner of Group C may also be considered sympathetically. All these writ petitions are decided accordingly. ———