Research › Search › Judgment

Allahabad High Court · body

2008 DIGILAW 545 (ALL)

JANTA SHIKSHA PRASAR SAMITI v. STATE OF U P

2008-03-09

SANJAY MISRA

body2008
SANJAY MISRA, J. Heard learned Counsel for the petitioner as well as learned Standing Counsel for the opposite party Nos. 1 to 5 and Sri S. P. Shukla, for the opposite party Nos. 6 and 7. 2. The petitioner is aggrieved by the order dated 3. 4. 2002 (Annexure No. 23 to the writ petition) as also the order dated 27. 12. 2002 passed by the respondent No. 5, the Sub-Divisional Officer, Mankapur, District Gonda. 3. The submission of learned Counsel for the petitioner is that an Authorized Controller had been appointed for the institution and under his aegis the election dated 24. 8. 1997 was conducted. The said election was granted approval by the Sub-Divisional Officer by order dated 9. 8. 2001 while exercising his power under section 25 (1) of the Societies Registration Act. The contention of learned Counsel for the petitioner is that subsequent to the aforesaid order dated 9. 8. 2001, the respondent No. 5 has proceeded to pass the impugned order dated 3. 4. 2002 thereby recalling the earlier order dated 9. 8. 2001. As a consequence of the order dated 3. 4. 2002, the respondent No. 5 has proceeded to cancel the; election dated 24. 8. 1997 by the impugned order dated 27. 12. 2002. The contention is that the Sub-Divisional Officer while exercising his jurisdiction under section 25 (1) of the Act could not recall his earlier order, which would amount to exercising a power of review, which he was inherently lacking. The second submission is that the election dated 24. 8. 1997 was conducted under the Authorized Controller and was duly approved. Consequently, the dispute raised with respect to the election could be decided by the respondent No. 5, which he did on 9. 8. 2001 and the said election was found to have been validly held. The third submission of learned Counsel for the petitioner is that even in the application made by the respondent No. 6 and 7 they were claiming on the basis of their own election dated 24. 4. 2001 and the election of 1997 held by the Authorized Controller was not a subject matter of the objection filed under section 25 (1) of the Act. For the aforesaid contention, learned Counsel for the petitioner has referred to the findings recorded by the Sub-Divisional Officer in the impugned order dated 27. 12. 2002. 4. 2001 and the election of 1997 held by the Authorized Controller was not a subject matter of the objection filed under section 25 (1) of the Act. For the aforesaid contention, learned Counsel for the petitioner has referred to the findings recorded by the Sub-Divisional Officer in the impugned order dated 27. 12. 2002. He contends that in so far as the election of 1997 is concerned the respondent No. 5 has set it aside on the ground that the first election having been held in the year 1993, the next election was due only in the year 1998, hence the election of 1997 was invalid. The second ground taken in the impugned order is that there was no list of the general body of the Society, that there was no agenda nor it was circulated and that the principal was not present when the proceedings for the elections were held. The Sub-Divisional Officer also held that none of the original record was produced by the petitioner before him. For the aforesaid grounds on the basis of affidavits filed by various members in support and against the parties, the election of 1997 has been set aside. He-further contends that the election dated 24. 4. 2001 on the basis of which the respondent No. 6 and 7are claiming has also been set aside by the impugned order dated 27. 12. 2002 and in so far as the respondents election is concerned, the order of the Sub-Divisional Officer has attained finality because admittedly the same has not been challenged by the respondent till today. 4. Learned Counsel for the respondent Nos. 6 and 7 contends that the order dated 9. 8. 2001 was an ex parte order inasmuch as by referring to paragraph No. 34 of the counter affidavit, he submits that the date fixed before the Sub-Divisional Officer had been preponed by him and no notice of the same was available with the respondents, hence, the order dated 9. 8. 2001 was passed by the respondent No. 5 in a clandestine manner and in connivance with the petitioner. 8. 2001 was passed by the respondent No. 5 in a clandestine manner and in connivance with the petitioner. He further contends that the respondent No. 5 while exercising his jurisdiction under section 25 (1) of the Act has inherent power to recall the order on the ground that preponement of the date without notice to the respondents amounts to a fraud on the power being exercised by the respondent No. 5. He further contends that when the order dated 3. 4. 2002 had been passed, the petitioners did not challenge the same and have proceeded before the respondent No. 5 which has culminated in the passing of the impugned order dated 27. 12. 2002. For the aforesaid reasons he contends that the findings of fact recorded in the impugned order holding the election 24. 8. 1997 as invalid cannot be faulted and does not require any interference by this Court under Article 226 of the Constitution of India. 5. Having heard learned Counsel for the parties and perused the record, it appears that the election dated 24. 8. 1997 was held under the aegis of the Authorized Controller and a Writ Petition No. 2451 (M/s) of 1997 was filed wherein the orders dated 11. 4. 1997 and 31. 7. 1997 were under challenge whereby the election was scheduled by the Authorised Controller. This Court recorded that the earlier election prior to 1997 was in dispute and the matter was pending before the Deputy Director of Education under section 16-A (7) of the U. P. Intermediate Education Act. It found that the period of three years and one month had already expired and according to the scheme, the Authorised Controller had rightly pointed out and has directed to hold the election for the office bearers of the Committee of Management. This Court was of the opinion that no intervention at this stage was required and if the petitioners therein are entitled to participate in the election, they may approach the competent authority for ventilation of the grievance and if such an application is made it shall be decided. After passing of the aforesaid order dated 22. 8. 1997, the election appears to have been held on 24. 8. 1997. After passing of the aforesaid order dated 22. 8. 1997, the election appears to have been held on 24. 8. 1997. The fact that there were rival registration obtained by the parties has also been brought on record, it has been pointed out that the registration obtained in the name of the society by the respondent Nos. 6 and 7 was cancelled in proceedings held in the year 1993 and as such the registration, as brought forward by the petitioners still continues to be validly renewed. 6. In support of the first ground taken by learned Counsel for the petitioner he has placed reliance upon a decision of this Court in the case of Gaya Dutt Mishra v. District Inspector of Schools, Etawah and others 1995 (13) LCD 1148. His contention is that the Sub-Divisional Officer while exercising his jurisdiction under section 25 (1) of the Act could not have inherent power to recall and order passed by him earlier. Paragraph 10 of the aforesaid judgment is quoted herein: - " Sri S. M. Dayal Submitted that every Administrative and Executive authority has inherent power to look into the correctness of the order and recall the same passed by him, if he is satisfied that the order passed by him was under some misapprehension of facts. He relied on the decision of the Division Bench of this Court in Suraj Narain S/o Badri Prasad v. District Magistrate 1958 ALJ 283. The learned Counsel for the respondent submitted that the order passed by the respondent No. 3 was based on ignorance of correct and real facts. Since he was not aware that the signature of Sri Jagdish Narain Misra on the application for correction/modification in the rules was genuine, he had passed the order on the application and the objection filed by the respondent. He considered it his legal duty and also as per the observations made in the interim order passed by the High Court in the writ petition, referred to above, he embarked into the investigation and enquiry about the genuineness of the signature of the person concerned by even looking into the report of the Handwriting Expert. The submission of the learned Counsel for the respondent cannot be accepted, as submitted. The law on the point is settled. There is admittedly no provision in the Act permitting review. The submission of the learned Counsel for the respondent cannot be accepted, as submitted. The law on the point is settled. There is admittedly no provision in the Act permitting review. Once the respondent No. 3 himself had rejected the application and objection filed by the O. P. Then he again thought it necessary to enter into the controversy and question of fact to find out whether the signature on the application was of Sri Jagdish Narain Misra was genuine or not. The High Court had not directed that any duty was to cast on the respondent No. 3 to review or recall the order passed by him. The direction for consideration of the representation does not mean that High Court had directed to recall the said order. The respondent No. 3 committed a manifest error of law in recalling the order passed by him in the impugned order, which is quashed. " 7. The petitioner has further relied upon a decision of the Full Bench in the case-of Smt. Anar Kali and others v. Deputy Director of Consolidation and others 1997 (15) LCD 921, to contend that while exercising his revisional jurisdiction under section 48 of the U. P. Consolidation of Holdings Act, the Deputy Director of Consolidation is not competent to revive the revision disposed of by him on a review application filed by one of the parties. He contends that the principles laid down in the case of Smt. Anar Kali would be applicable when the power is exercised by the Sub-Divisional Officer under section 25 (1) of the Societies Registration Act. He has also placed reliance upon a decision of the Honble Supreme Court in the case of Kuntesh Gupta v. Hindu Kanya Mahavidyalaya (1987) 4 SCC 525 , and contends that when the Vice Chancellor of a University is exercising his quasi-judicial function under the statute of the University he would not be competent to review an order passed by him and in case such a review is made, the said order would be a nullity. Paragraph 11 of the aforesaid judgment is quoted herein: - " It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. Paragraph 11 of the aforesaid judgment is quoted herein: - " It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi judicial authority. It is not disputed that the provisions of the U. P. State Universities Act, 1973 or of the Statutes of the Universities do not confer any power of review on the Vice-Chancellor. In the circumstances, it must be held that on the Vice-Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987. The said order of the Vice-Chancellor dated March 7, 1987 was a nullity. " 8. From the aforesaid decision cited by learned Counsel for the petitioner, it appears that the inherent power which an authority can possess is with relation to either a specific provision for the same or application of the principles as are available under section 151 of the Code of Civil Procedure. In the absence of such a provision an order could be recalled by the authority only upon a proved ground of fraud or misrepresentation. It cannot be disputed that in case an order has been obtained by fraud or misrepresentation, the authority concerned would be within its power to recall such order. However, in case no such ground exists an order cannot be recalled by reviewing it by the authority in the absence of a specific power under a statute. Admittedly, the Societies Registration Act does not provide for any such inherent power in the Sub-Divisional Officer while exercising his jurisdiction under section 25 (1) of the Act. Such inherent power has not been given by any express provision either in the Act or in the Rules. Therefore, in the absence of any provision under the statute permitting exercise of inherent power it cannot be assumed by the Sub-Divisional Officer. 9. Learned Counsel for the respondents contends that preponement of the date without intimation to the respondents is a fraud on the exercise of power under section 25 (1) of the Act. And therefore, the impugned order dated 3. 4. 2002 was rightly passed by the respondent No. 5 recalling his earlier order dated 9. 8. 2001. 9. Learned Counsel for the respondents contends that preponement of the date without intimation to the respondents is a fraud on the exercise of power under section 25 (1) of the Act. And therefore, the impugned order dated 3. 4. 2002 was rightly passed by the respondent No. 5 recalling his earlier order dated 9. 8. 2001. In so far as this contention is concerned, it will be seen from the record that the order dated 3. 4. 2002 has been passed on the ground mentioned therein. The relevant portion of the impugned order is quoted hereunder: - @hindi 10. From a reading of the aforesaid portion, it will be seen that the order dated 3. 4. 2002 has been passed on the ground that the respondents were not given an opportunity to led their evidence and hence it amounted to the order dated 9. 8. 2001 being an ex parte order. From a perusal of the entire order dated 3. 4. 2002, there is no ground that the preponement of date was the reason for recall. Consequently, the order dated 3. 4. 2002 is not based upon an allegation of fraud or misrepresentation and as such the contention of learned Counsel for the respondents Nos. 6 and 7 of such effect is not borne out from the impugned order dated 3. 4. 2002. The respondents have in the counter affidavit made averment with respect to the preponement of the date. However, the validity of the order dated 3. 4. 2002 has to be seen from the reason given therein for reviewing the earlier order. The reason given therein is that the proceedings were ex parte against the respondent Nos. 6 and 7. Admittedly, as per the law laid down such a ground cannot be a ground for exercising a jurisdiction not vested in the authority. Section 25 (1) of the Act has given the power to the respondent No. 5 to adjudicate upon disputes with respect to the election of the Committee of Management it does not give any power to recall or review its own order. Such an inherent power cannot be assumed by the respondent No. 5, in view of the law laid down as has been referred to above. 11. For the aforesaid reason, the proceeding drawn up by the impugned order dated 3. 4. Such an inherent power cannot be assumed by the respondent No. 5, in view of the law laid down as has been referred to above. 11. For the aforesaid reason, the proceeding drawn up by the impugned order dated 3. 4. 2002 cannot be held to be legal or valid and as such the impugned order dated 3. 4. 2002 deserves to be quashed and is hereby quashed. Consequently, the order dated 27. 12. 2002 is also set aside. The writ petition is allowed. No order is passed as to costs. Petition Allowed. .