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2012 DIGILAW 142 (ALL)

BHUPENDRA TYAGI v. STATE OF U. P.

2012-01-16

RAJES KUMAR

body2012
JUDGMENT Hon’ble Rajes Kumar, J.—The petitioners, 36 in number, who claims themselves to be the life members of the A.S. Degree College Association, Mawana, Meerut, are challenging the order dated 15.9.2011, passed by the Prescribed Authority upholding the election held on 15.11.2009 in which Dr. Naresh Chandra was elected as the Secretary/Manager. 2. There is a society, named as A.S. Degree College Association, Mawana, Meerut, registered under the Societies Registration Act since 1981. The term of the committee of management of society is three years. The election of the society held time to time in accordance to the scheme of administration. Dr. Naresh Chandra is the Secretary of the Association since 1997. The last election, prior to the disputed election, was held on 31.12.2006, which has been duly approved by the Prescribed Authority by its order dated 15.5.2007 and the election of 2006 has been held as genuine and correct. There is no dispute about this election. In this election, Dr. Naresh Candra was elected as the Secretary/Manager. The term of the committee of management was to expire on 31.12.2009. The committee of management of Dr. Naresh Chandra claimed that the election was held on 15.11.2009 in which he was elected as the Secretary. The list of the office bearers of the committee of management, constituted in the election held on 15.11.2009, has been registered by the Deputy Registrar, Firms, Chits and Societies, Meerut, under Section 4 of the Act on 23.11.2009. The petitioners, Bhupendra Tyagi and others filed a complaint before the Deputy Registrar on 22.12.2009 and 26.12.2009 on which the Deputy Registrar sought the reply from the Secretary of the committee of management. Reply was filed on 24.2.2010. Again Bhupendra Tyagi filed a complaint on 19.4.2010 on which again Deputy Registrar sought the reply from the Secretary of the committee of management. The reply was filed on 30.5.2010. It appears that the Vice-Chancellor, Chaudhary Charan Singh University, Meerut, vide letter dated 13.5.2010 has approved the committee of management formed in the election held on 15.11.2009, which has been kept in abeyance on the complaint of Bhupendra Tyagi, vide order dated 1.6.2010, against which Dr. Naresh Chandra filed Writ Petition No. 34019 of 2010. This Court, vide order dated 16.6.2010 has stayed operation of the order dated 1.6.2010 and directed the Deputy Registrar to decide the complaint within six weeks. Naresh Chandra filed Writ Petition No. 34019 of 2010. This Court, vide order dated 16.6.2010 has stayed operation of the order dated 1.6.2010 and directed the Deputy Registrar to decide the complaint within six weeks. In pursuance of the order of this Court, the Deputy Registrar, vide order dated 31.7.2010, rejected the complaint of Bhupendra Tyagi and has upheld the approval of the committee of management. Against the said order, Bhupendra Tyagi and others filed Writ Petition No. 48540 of 2010. This Court, vide order dated 13.8.2010, has referred the matter to the Prescribed Authority under Section 25(1) of the Act. However, till the order of the Prescribed Authority, the committee of management has been allowed to continue. In pursuance of the aforesaid order of the High Court, the Prescribed Authority passed the impugned order dated 15.9.2011 upholding the election held on 15.11.2009 as valid and the complaints have been rejected. 3. Being aggrieved by the impugned order dated 15.9.2011, the present writ petition has been filed. 5. Heard Sri Shailendra, learned counsel for the petitioner and Sri Ramesh Upadhyay, learned counsel appearing on behalf of respondent Nos. 3 and 4. Learned Standing Counsel appears on behalf of respondent Nos. 1 and 2. Counter and rejoinder affidavits have been exchanged and with the consent of the parties the writ petition is being disposed of finally. 5. The submissions of learned counsel for the petitioners, in brief, are as follows: The election of 15.11.2009 has never been held. As per the resolution dated 15.10.2009, the election was to be held in the college premises. During the period 26.10.2009 to 15.11.2009, the examination of back papers was going on and as per the letter of the Principal, Dr. Suresh Jain, the election was not possible during the said period. As per the resolution, dated 15.10.2009, the notice was to be sent by Registered Post to the members, while the notices were sent by UPC. The programme of the election was to be published in the news paper whereas the programme of the election was published in a news paper, ‘Keshar Khushbu Times’ on 22.10.2009 is not a widely circulated news paper. Several affidavits of members have been filed to show that members had no knowledge about the programme of election. In a contempt case, this Court, vide order dated 5.7.2006, has imposed fine of Rs. 2,000/- on Dr. Naresh Chnadra. Several affidavits of members have been filed to show that members had no knowledge about the programme of election. In a contempt case, this Court, vide order dated 5.7.2006, has imposed fine of Rs. 2,000/- on Dr. Naresh Chnadra. The imposition of fine falls within the purview of punishment, therefore, in view of the provision of the scheme of administration, the membership of Dr. Naresh Chandra ceased and he was not eligible to be elected as the Secretary. As per the proviso of Section 4, the list of the office bearers should be signed by the outgoing office bearers, which has not been done in the present case. At the time of election, no observer was present. 6. Sri Ramesh Upadhyay, learned counsel appearing on behalf of the respondent Nos. 3 and 4, submitted that Dr. Naresh Chandra is the Secretary since 1997 and the institution is running under his control and management properly. He submitted that the membership of Bhupendra Tyagi and others has been terminated on 2.8.2009 and the said termination order has become final inasmuch as the same has not been challenged. The Prescribed Authority has recorded categorical finding in this regard, which has not been challenged, therefore, Bhupendra Tyagi and two other members have no right to challenge the impugned order. He submitted that out of four office bearers, the membership of three office bearers has already been terminated. The list of membership of 2725 members has never been disputed and the issue relating to the proviso of Section 4 (1)(a) has not been raised before the Prescribed Authority and, therefore, the same cannot be entertained. It has been submitted that in the resolution dated 15.10.2009, it was resolved that the notices should be sent through UPC and the same has been recorded in the proceeding book. While sending the copy of the resolution to the Deputy Registrar, by typographical error, in place of UPC, Registered Post has been mentioned. The Prescribed Authority, while deciding the matter, has looked into the original proceeding book and has recorded a categorical finding that in the meeting held on 15.10.2009, it was resolved that the notices be sent by UPC and not by Registered Post. The finding of the Prescribed Authority is finding of fact. He submitted that the Prescribed Authority has recorded the finding that Keshar Khushbu Times news paper is a National News paper published from Meerut. The finding of the Prescribed Authority is finding of fact. He submitted that the Prescribed Authority has recorded the finding that Keshar Khushbu Times news paper is a National News paper published from Meerut. He further submitted that there were 2725 valid members of the society. The petitioners, Bhupendra Tyagi and others, furnished list of 732 members before the Deputy Registrar, disputing the election. The said list has been held as forged and manipulated. The Prescribed Authority has examined the list and held that in the said list, the name of 154 Firms were included and in front of 23 firms, no proper signatures have been made, but only the first word of the name of the firm has been mentioned and in some places only address has been mentioned in front of serial number. At serial No. 208, firm Everything Marketing has been mentioned and the signature has been made by writing Everything. In some places no proper addresses are mentioned and the name of some persons has been mentioned at two places. Only 32 persons have filed the earlier writ petition and the present writ petition. As per Section 25 of the Act, objection can be entertained, if it is filed, at least, by 1/4th members of the society and, therefore, the writ petition of the petitioners is not maintainable. He relied upon the decision of this Court in Writ Petition No. 30414 of 2010, Ilias Ahmad Khan and others v. State of U.P. and others, decided on 15.5.2010. He further submitted that in the contempt case, the Court has imposed the fine for non-compliance of the order. Such fine does not fall within the purview of punishment under the scheme of administration. The word ‘punishment’ used for the termination of the membership in the scheme of administration is to be read in the context that the punishment should be for violation of the scheme of administration. He submitted that in any view of the matter, the membership would not stand automatically terminated, unless there is a resolution passed by the committee of management and no such resolution has been passed. He submitted that the election has been held during the period when the examination was not held. The Prescribed Authority has recorded categorical finding in this regard. The findings of the Prescribed Authority are the findings of fact, which do not require any interference. He submitted that the election has been held during the period when the examination was not held. The Prescribed Authority has recorded categorical finding in this regard. The findings of the Prescribed Authority are the findings of fact, which do not require any interference. A serious dispute was going between the management and the Principal of the College. In Writ Petition No. 24231 of 2011, Bhupendra Tyagi sought mandamus to conclude the enquiry against the Secretary of the committee of management. This Court has dismissed the writ petition on the ground that writ petition is proxy petition and it appears that a serious dispute is going on between the management and the Principal of the College. 7. I have considered the rival submissions and perused the impugned order. 8. In the writ petition, the petitioners have raised factual dispute. The Prescribed Authority has considered each and every objection of the petitioners and recorded findings of fact on each issue, which cannot be said to be perverse. The findings of fact recorded by the Prescribed Authority cannot be examined in writ jurisdiction. Whether the election has been held on 15.11.2009 or not is a question of fact. The Prescribed Authority, on consideration of entire facts and circumstances, has held that the election was held on 15.11.2009 and since there was no other nomination, except the nomination of the elected office bearers, the committee of management was elected unanimously, uncontested. In the circumstances, I decline to interfere in this matter challenging the findings of fact recorded by the Prescribed Authority. It is open to the petitioners, if so advised, to file a civil suit. 9. It may be mentioned here that earlier also against the order of the Prescribed Authority, dated 15.5.2007, approving the election held on 31.12.2006, Writ Petition No. 26418 of 2007 has been filed in this Court. The said writ petition has been dismissed on 5.7.2007 on the ground that it raises factual dispute, which could not be agitated in the writ jurisdiction and the appropriate remedy is to file the civil suit. 10. In the result, the writ petition fails and is dismissed. ——————