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Allahabad High Court · body

2016 DIGILAW 1400 (ALL)

SHAH BASIT JAHID v. STATE OF U. P.

2016-04-18

DILIP GUPTA, RAVINDRA NATH KAKKAR

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JUDGMENT By the Court.—Special Appeal No. 825 of 2015 arises out of Writ-C No. 22124 of 2015. This petition was filed by the appellants to assail the order dated 21 January 2015 passed by the Election Officer to reject the claim of 239 members to be included in the voters list. It also sought to challenge the order dated 24 February 2015 passed by the District Inspector of Schools attesting the signatures of the Manager in regard to the elections of the Committee of Management of the Intermediate College as also the order dated 3 March 2015 passed by Vice-Chancellor of the Veer Bahadur Singh Purvanchal University (the University) approving the elections of the Committee of Management of the Shibli National Post Graduate College, Azamgarh (Post Graduate College). The learned Judge while dismissing the writ petition by judgment and order dated 15 September 2015 kept it open to the petitioners to get the dispute of membership adjudicated by a competent Court of civil jurisdiction. 2. Special Appeal No. 826 of 2015 arises out of the judgment and order dated 15 September 2015 passed by a learned Judge of this Court in Writ-C No. 22117 of 2015. This petition had been filed to assail the order dated 24 February 2015 passed by the District Inspector of Schools attesting the signatures of the Manager of the Committee of Management of the Intermediate College. It also sought the quashing of the order dated 3 March 2015 passed by the Vice-Chancellor of the University granting approval to the list of office bearers of the Committee of Management of the Post Graduate College. The learned Judge dismissed this petition for the reason that the orders impugned in this petition were also assailed in Writ Petition No. 22124 of 2015, which petition had been dismissed by order of date. 3. Azamgarh Muslim Education Society, Azamgarh is a Society registered under the provisions of the Societies Registration Act, 1860 (the Act). This Society established the Shibli National Post Graduate College and the Shibli National Intermediate College (Intermediate College). 4. The dispute in the petitions is about the finalization of the electoral college by the Election Officer. It is on the basis of this electoral college that elections had been held to constitute the Committee of Management of the Post Graduate College as also the Committee of the Management of the Intermediate College. 4. The dispute in the petitions is about the finalization of the electoral college by the Election Officer. It is on the basis of this electoral college that elections had been held to constitute the Committee of Management of the Post Graduate College as also the Committee of the Management of the Intermediate College. In so far as the Society is concerned, it is the Assistant Registrar who has to take a decision with regard to the election under the provisions of the Act. The election for constituting the Committee of Management of the Post Graduate College is required to be approved by the Vice-Chancellor of the University under Section 2 (13) of the Uttar Pradesh State Universities Act, 1973, while the election for constituting the Committee of Management of the Intermediate College is required to be examined by the District Inspector of Schools, who then attests the signatures of the Manager of the Committee of Management. 5. These two Special Appeals relate to the elections that were required to be held in 2013. Notices had been published in the newspapers on 3 December 2013 and 5 December 2013 for holding the elections. These notices were assailed in Writ -C No. 69973 of 2013. A further direction that was sought in that petition was that an independent person should be appointed to hold the elections for constituting the Committee of Management, as was earlier directed by the Court for the previous elections in the judgment and order dated 1 December 2010 rendered in Special Appeal No. 1736 of 2010 connected with Special Appeal (Defective) No. 954 of 2010. This writ petition was disposed of on 19 December 2013 as all the learned counsel for the parties agreed that the elections should be conducted by a Judicial Officer who would also be the Election Officer. The petition was, accordingly, disposed of with a direction that the elections for constituting the Committee of Management of the Society and the two Institutions should be conducted by a Judicial Officer of the rank of an Additional District Judge of Judgeship Azamgarh to be nominated by the District Judge Azamgarh. The petition was, accordingly, disposed of with a direction that the elections for constituting the Committee of Management of the Society and the two Institutions should be conducted by a Judicial Officer of the rank of an Additional District Judge of Judgeship Azamgarh to be nominated by the District Judge Azamgarh. The observations are reproduced below : “In this view of the matter when all the parties have agreed that the election should be held by the Judicial Officer, it is appropriate that election for constituting the Committee of Management of the Society and the Institutions should be held by an Additional District Judge of Judgeship Azamgarh to be nominated by the District Judge, Azamgarh. The Judicial Officer, who shall act as the Election Officer, shall determine the members entitled to participate in the election after inviting objections and shall thereafter fix the election schedule on Saturday and Sunday in the month of January, 2014. The entire process should be completed by 31st January, 2014. Any person aggrieved with the list finalised by the learned Additional District Judge can file objections after the election is held and the result is declared before the appropriate authority. The Society shall also pay a sum of Rs. 35,000/- as honorarium to the learned Additional District Judge nominated by the District Judge, Azamgarh. The parties shall file a certified copy of this order before the District Judge, Azamgarh who shall do the needful. Needles to say that notices referred to above for holding the elections on 29.12.2013 and 26.12.2013 shall not be given effect to. The writ petition is, accordingly, disposed of with the aforesaid observations.” 6. It is, therefore, clear that the Election Officer had been directed to determine the list of members entitled to participate in the elections after inviting objections. The Court also directed that the elections should be fixed for any Saturday and Sunday in the month of January 2014 and the entire election process should be completed by 31 January 2014. A direction was also issued that if any person was aggrieved by the list that was finalized by the Election Officer, objections could be filed before the appropriate authority after the elections were held and the results were declared. As noticed above, there were three different authorities who had to recognize the elections. A direction was also issued that if any person was aggrieved by the list that was finalized by the Election Officer, objections could be filed before the appropriate authority after the elections were held and the results were declared. As noticed above, there were three different authorities who had to recognize the elections. The elections of the Society were to be examined by the Assistant Registrar while that for Post Graduate College and the Intermediate College were to be approved by the Vice-Chancellor of the University and the District Inspector of Schools respectively. 7. It transpires from the records that the District Judge, Azamgarh nominated an Additional District Judge who, as the Election Officer, finalized the voters list on 29 January 2014. This list was, however, assailed in the Writ Petition No. 7474 of 2015 and three other petitions bearing Writ Petition No. 61996 of 2013, Writ Petition No. 7634 of 2014 and Writ Petition No. 7227 of 2014. All these petitions were ultimately allowed by judgment and order dated 24 February 2014 with the following observations: “After careful consideration of the facts and circumstances of the case I am of the view that the order of the Election Officer is unsustainable for the aforestated reasons. It is liable to be set aside and accordingly it is set aside. The learned district Judge, Azamgarh is requested to nominate any other Judicial Officer as an Election Officer who shall consider the material on record and pass a fresh order after hearing the concerned parties. The parties may appear before the learned District Judge within a week from the date of receipt of this order/judgment. The entire exercise of determination of Electoral Roll may be completed within six weeks from the date of nomination of an Election Officer by the learned District Judge, Azamgarh. The petitioners shall deposit a sum of Rs. 35,000/- as honorarium to the District Judge, Azamgarh. Other direction with regard to his leave etc. shall be applicable in terms of order of Special Appeal No. 1736 of 2010 dated 1.12.2010. Any observation made in this order shall be without prejudice to the contention and interest of either of the parties. The writ petition is allowed. No orders as to costs.” 8. Three Special Appeals bearing Nos. 283 of 2014, 281 of 2014 and 282 of 2014 were filed against the judgment and orders rendered in Writ Petition Nos. Any observation made in this order shall be without prejudice to the contention and interest of either of the parties. The writ petition is allowed. No orders as to costs.” 8. Three Special Appeals bearing Nos. 283 of 2014, 281 of 2014 and 282 of 2014 were filed against the judgment and orders rendered in Writ Petition Nos. 7474 of 2014, 7634 of 2014 and 7727 of 2014 to assail the aforesaid judgment and order dated 24 February 2014. All the Special Appeals were dismissed. 9. Pursuant to the order passed by the learned Judge in Writ Petition No. 7474 of 2014, the District Judge, Azamgarh authorized another Additional District Judge to hold the elections. The Additional District Judge, as the Election Officer, published a tentative list of voters on 22 October 2014 and invited objections. Objections were filed after which the Additional District Judge finalized the electoral list of 699 members by order dated 21 January 2015. Subsequently, the elections proceedings were notified on 4 February 2015. The date for submission of nomination papers was notified as 6 February 2015. The election was to be held on 15 February 2015 and the date for declaration of result was also notified as 15 February 2015. Three separate elections are said to have been held for the Society, the Post Graduate College and the Intermediate College. The Election Officer declared the result of 18 office bearers of the Committee of Management of the Society, 18 office bearers of the Committee of Management of the Post Graduate College and 17 office bearers of the Intermediate College. The election papers in regard to the Society were sent to the Assistant Registrar, Firms Societies and Chits, while that relating to the Post Graduate College and the Intermediate College were sent to the Vice-Chancellor of the University and the District Inspector of Schools respectively. The District Inspector of Schools attested the signatures of the Manager on 24 February 2015 and it is by a communication dated 3 March 2015 that the Registrar of the University intimated the grant of approval by the Vice-Chancellor of the University to the list of office bearers of the Committee of Management of the Post Graduate College. 10. The basic issue that has been raised in these proceedings is against the non-inclusion of 239 members in the voters list. 10. The basic issue that has been raised in these proceedings is against the non-inclusion of 239 members in the voters list. It is stated that these members were subsequently enrolled after the last election that was held on the basis of the list of 699 members and it is this list of 699 members that was ultimately finalized by the Election Officer after inviting objections. 11. The learned Judge passed a detailed order in Writ-C No. 22124 of 2015 which, as noticed above, had been filed to challenge the order dated 21 January 2015 passed by the Election Officer finalizing the list of members as also the declaration of the result on 15 February 2015. This petition also sought the quashing of the order passed by the District Inspector of Schools attesting the signatures of the Manager of the Committee of Management of the Intermediate College and the Vice-Chancellor of the University granting approval to the office bearers of the Committee of Management of the Post Graduate College. The petitioners had raised objections after the declaration of the results against the voters list, which they could, in view of the directions that were issued by the Court on 19 December 2013 in Writ Petition No. 69973 of 2013 that any person aggrieved with the final list prepared by the Election Officer could file objections after the elections were held and the results were declared before the Appropriate Authority. The learned Judge observed that the representation had been filed raising a grievance against the exclusion of 239 members before the Assistant Registrar but not before the Election Officer, who in that event could have referred the same to the appropriate authority, namely the District Inspector of Schools or Vice-Chancellor of the University and that the representation to the Assistant Registrar cannot be said to be a representation to the Vice-Chancellor of the University or the District Inspector of Schools. The learned Judge also observed that the aforesaid officers were not required to act merely because a copy of the representation was sent to them. It is for this reason that the learned Judge held that the authorities committed no mistake in attesting the signatures of the respective Managers of the Committee of Management of the Post Graduate College and the Intermediate College. It is for this reason that the learned Judge held that the authorities committed no mistake in attesting the signatures of the respective Managers of the Committee of Management of the Post Graduate College and the Intermediate College. The learned Judge also observed that since the petitioners had not raised any objection before the Vice-Chancellor of the University or the District Inspector of Schools they could not raise this dispute directly in the Court, particularly when the Court had earlier directed that objections could be raised before the Appropriate Authority after the list was finalized and the result was declared. The learned Judge also held that any decision taken by the Vice-Chancellor of the University or the District Inspector of Schools is summary in nature and is subject to the decision of a Civil Court. In such circumstances, the appropriate remedy available to the petitioners was to get the dispute about membership, if any, adjudicated by a competent Court. 12. Sri Ashok Khare, learned Senior Counsel appearing for the petitioners submitted that the learned Judge was not justified in observing that objections had not been filed before the Vice-Chancellor of the University or the District Inspector of Schools regarding the finalization of the voters list prepared by the Election officer. His submission is that detailed objections were filed before the Assistant Registrar regarding the finalization of the voters list since he was the authority competent to take a decision in regard to the elections of the Society and since it was the same list that was considered for conducting the elections for constituting the Committee of Management of the Post Graduate College and the Intermediate College, copies of the aforesaid objections were submitted to the Vice-Chancellor of the University and the District Inspector of Schools. His submission, therefore, is that all the three authorities were required to decide the objections filed by the petitioners in terms of the directions issued by the Court before any decision was taken on the elections that were held on the basis of voters list finalized by the Election Officer. 13. His submission, therefore, is that all the three authorities were required to decide the objections filed by the petitioners in terms of the directions issued by the Court before any decision was taken on the elections that were held on the basis of voters list finalized by the Election Officer. 13. Learned Senior Counsel for the petitioners also submitted that even if objections had not been filed then too it was obligatory on the part of the Vice-Chancellor of the University and the District Inspector of Schools to have prima facie satisfied themselves regarding the validity of the elections but the decision taken by them does not reveal that there was an application of mind on this issue. In support of his submission, learned Senior Counsel has placed reliance upon a judgment of a learned Judge of this Court in Writ Petition No. 69214 of 2006 (Raghu Nandan Prasad Mishra v. State of U.P. and others) decided on 17 May 2007 and another decision of a learned Judge of this Court in Writ Petition No. 50656 of 2011 (Committee of Management, Janta Uchchattar Madhyamik Vidyalaya Ahraula, District Azamgarh and another v. State of U.P. and others) decided on 1 November 2011. 14. In order to substantiate that objections had actually been filed before the Assistant Registrar, Vice-Chancellor of the University and the District Inspector of Schools, as a stand had been taken in the counter affidavit by the respondents that objections had not been filed before the authorities, learned Senior Counsel placed reliance upon the averments made in the rejoinder affidavit to establish that the objections had been served upon the Assistant Registrar, the University and the District Inspector of Schools on 19 February 2015. 15. Sri G.K. Singh, learned Senior Counsel, who has appeared for the Committee of Management of the Post Graduate College, however, submitted that the Election Officer committed no illegality in finalizing the list of 699 members, since 239 members had been illegally inducted by the earlier Manager of the Committee of Management. His submission is that out of the 15 petitioners, only three had filed objections before the Election Officer and these objections were rejected by the Election Officer at the time of finalization of list of members. His submission is that out of the 15 petitioners, only three had filed objections before the Election Officer and these objections were rejected by the Election Officer at the time of finalization of list of members. Learned Senior Counsel contended that the petitioners had filed objections only before the Assistant Registrar after the finalization of the voters list and merely because copies were sent to the Vice-Chancellor of the University and the District Inspector of Schools would not mean that these authorities were required to decide the objections. Learned Senior Counsel contends that once a discretion had been exercised by the learned Judge not to entertain the petition as the petitioners could file a suit in a competent Civil Court, an Appellate Court would not interfere with that discretion, as has been held by this Court in Babu Ram Ashok Kumar and another v. Antarim Zila Parishad, 1964 AIR (Alld) 534. 16. Sri Rakesh Bahadur, learned counsel appearing for the Committee of Management of the Society, has submitted that all the objections that had been raised had been adequately dealt with by the Election Officer and that even from a perusal of the prayer clause of the objections it is clear that they were required to be decided only by the Assistant Registrar and no decision was required to be taken by the Vice-Chancellor of the University or the District Inspector of Schools. 17. Sri Ajit Kumar Singh, learned counsel appearing for the University has contended that since the objections had not been filed before the Vice-Chancellor of the University, no decision was required to be taken by him while granting approval to the Committee of Management of the Post Graduate College. 18. Learned Standing Counsel appearing for the District Inspector of Schools has also submitted that since objections were not filed before the District Inspector of Schools, no illegality was committed in attesting the signatures of the Manager of the Committee of Management of the Intermediate College. 19. We have considered the submissions advanced by the learned counsel for the parties. 20. As noticed above, the elections were required to be held in accordance with that directions issued by the Court on 19 December 2013 in Writ-C No. 69973 of 2013. 19. We have considered the submissions advanced by the learned counsel for the parties. 20. As noticed above, the elections were required to be held in accordance with that directions issued by the Court on 19 December 2013 in Writ-C No. 69973 of 2013. Even in regard to holding of the election in 2010, directions had earlier been issued by the Court for appointment of an Additional District Judge as the election officer. It is after taking into consideration the orders passed in regard to the elections held in 2010, and as all the parties had also agreed that the elections may be held by a Judicial Officer, that the Court directed that the elections for constituting the Committee of Management of the Society and the two Institutions should be conducted by an Additional District Judge of Judgeship Azamgarh to be nominated by the District Judge, Azamgarh. A direction was also issued that the Judicial Officer so nominated shall act as the Election Officer and determine the members entitled to participate in the election after inviting objections. It was also provided that if any person felt aggrieved by the voters list finalized by the Election Officer, he could file objections before the Appropriate Authority after the declaration of the results. 21. The petitioners are aggrieved by the exclusion of the names of 239 members from the list finalized by the Election Officer. According to the petitioners, these 239 members had been validly inducted and there was no justification for the Election Officer to exclude their names. The petitioners claim to have filed objections to the tentative list and also before the Assistant Registrar, the Vice-Chancellor of the University and the District Inspector of Schools after the elections were held and the result was declared. The grievance is that Vice-Chancellor of the University and the District Inspector of Schools completely ignored the objections filed against the finalization of the voters list while granting approval to the Committee of Management of the Post Graduate College and the Intermediate College. 22. Before examining as to whether the objections were required to be considered, it will be appropriate to first ascertain whether the objections had at all been filed before the Vice-Chancellor of the University or the District Inspector of Schools because an objection has been raised by the respondents to this effect. 22. Before examining as to whether the objections were required to be considered, it will be appropriate to first ascertain whether the objections had at all been filed before the Vice-Chancellor of the University or the District Inspector of Schools because an objection has been raised by the respondents to this effect. A perusal of the objections indicates that they were addressed to the Assistant Registrar for setting aside the elections held on 15 February 2015. Copy of the representation was sent to both the Vice-Chancellor of the University as also the District Inspector of Schools for information and necessary action at their end. This objection was received in the office of the Vice-Chancellor and the District Inspector of Schools as the endorsements indicate. They were also sent by the registered post. It cannot, therefore, be said that the objections had not been served. 23. The dispute, therefore, is not as to whether the objections were actually received in the office of the Vice-Chancellor and the District Inspector of Schools but whether they were required to be considered before a decision was taken on the validity of the elections held for the Post Graduate College and the Intermediate College. 24. It needs to be noted that three elections were held in regard to the Society, the Post Graduate College and the Intermediate College. The Assistant Registrar could take a decision only with regard to the Society. The Vice-Chancellor of the University and the District Inspector of Schools were required to take a decision with regard to the elections held for the Post Graduate College and the Intermediate College. What also needs to be noted is that objections had to be examined in view of the directions issued by the Court on 19 December 2013 in Writ-C No. 69973 of 2013. Since the main issue that was raised by the petitioners before the Assistant Registrar was with regard to the finalization of the list of members and the same objection was to be taken before the two authorities, a copy of the same could have served the purpose, if the same objection was required to be taken before the two authorities for taking a decision. The endorsement on the copy meant for the Vice-Chancellor of the University and the District Inspector of Schools also specifically stated that necessary action should be taken at their end. 25. The endorsement on the copy meant for the Vice-Chancellor of the University and the District Inspector of Schools also specifically stated that necessary action should be taken at their end. 25. The learned Judge found that separate objections were not filed before the Vice-Chancellor of the University and the District Inspector of Schools and it is for this reason that the learned Judge observed that the Vice-Chancellor of the University and the District Inspector of Schools were not required to decide the representations. In fact, the learned Judge drew a fine distinction between the representations raising a grievance about the exclusion of 239 members and an objection regarding finalization of the voters list. The exclusion of 239 members is directly linked to the finalization of the voters list as it seeks to exclude these 239 members. It cannot, therefore, be said that the petitioners had not raised any objections against the finalization of the voters list because they had specifically raised objections regarding the exclusion of 239 members. 26. The learned Judge also observed that if every authority, to whom copies of the representations are sent, takes a decision, it may result in contradictory orders in connection with the same list and, therefore, it is only the authority to whom the representation is presented that should take a decision. In the present case, three different authorities were required to take a decision in regard to three separate elections and merely because there can be a contrary view taken by the authorities, it cannot be said that the authority to whom the representation is addressed alone and not the other authorities should take a decision as it may result in conflicting decisions. A decision can always be challenged but it cannot be said that for this reason only one authority should take a decision on the representation. In our considered opinion it was incumbent on the Vice-Chancellor of the University and the District Inspector of Schools when the elections were being held pursuant to the directions issued on 19 December 2013 wherein the Court had specifically directed that objections regarding the finalization of the voters could be filed before the appropriate authority after the result was declared, to have considered these objections, more particularly when it was specifically stated that the copy was being sent for necessary action. However, what we find is that neither the Vice-Chancellor of the University nor the District Inspector of Schools have examined these objections and in a casual manner have granted approval to the Committee of Management so elected. 27. This apart, even if the Vice-Chancellor of the University and the District Inspector of Schools were not inclined to examine the objections merely for the reason that they were not addressed to them and only copies of the representations submitted to the Assistant Registrar had been sent to them, nothing prevented them from asking the petitioners to file independent objections so that they could be decided. 28. In the present case, what is important to examine is whether the directions issued by the Court that the appropriate authority shall consider the objections to be filed by the parties feeling aggrieved by the finalization of the list after the result was declared had been followed or not. The Court is not required to examine the nature of the objections that had been raised as that would be a factual dispute to be examined by the appropriate authority. What has been found is that the objections have neither been considered by the Vice-Chancellor of the University nor the District Inspector of Schools for the reason that copies of the objections filed before the Assistant Registrar were marked to them and objections had not been specifically addressed to them. 29. It will not be, in such circumstances, necessary to examine the contention of learned Senior Counsel for the petitioners that even if objections had not been filed, then too Vice-Chancellor of the University and the District Inspector of Schools were prima facie required to examine the validity of the elections in view of the judgments rendered in Raghu Nandan Prasad Mishra (supra) and the Committee of Management Uchchatar Madhyamik Vidyalaya (supra). 30. The learned Judge also declined to examine the objections raised against the finalization of list for the reason that the objections had not been filed before the Authority and so they could not be raised for the first time in a writ petition, more so when they could be raised in a civil suit. 30. The learned Judge also declined to examine the objections raised against the finalization of list for the reason that the objections had not been filed before the Authority and so they could not be raised for the first time in a writ petition, more so when they could be raised in a civil suit. The learned Judge also refused to interfere with the order as the list was finalized by a Judicial Officer after hearing all the parties and the list so finalized was in consonance with the list on the basis of which the earlier elections were held. We have found as a fact that objections had been filed before the Vice-Chancellor of the University and the District Inspector of Schools and they were required to be decided in view of the earlier judgment but have not been decided. In such circumstances, the petitions should not have been dismissed on the ground that a remedy of a civil suit was available to the petitioners. It is for this reason that the decision in the case of Babu Ram Ashok Kumar (supra) will not help the respondents. 31. The objections filed by the petitioners before the Vice-Chancellor of the University and the District Inspector of Schools were required to be decided and that not having been done, the matter requires to be remitted to the Vice-Chancellor of the University and the District Inspector of Schools for taking a fresh decision after taking into consideration the objections filed by the petitioners. 32. Thus, for all the reasons stated above, we are unable to sustain the judgment dated 15 September 2015 and, accordingly, set it aside. The order dated 24 February 2015 passed by the District Inspector of Schools attesting the signatures of the Manager of the Committee of Management of the Intermediate Institution as also the order dated 3 March 2015 passed by the Vice-Chancellor of the University granting approval to the Committee of Management of the Post Graduate College are set aside. The Vice-Chancellor of the University and the District Inspector of Schools shall now take a fresh decision expeditiously and preferably within a period of two months from the date a certified copy of this order is filed by any of the parties before the Vice-Chancellor of the University and the District Inspector of Schools. The Vice-Chancellor of the University and the District Inspector of Schools shall now take a fresh decision expeditiously and preferably within a period of two months from the date a certified copy of this order is filed by any of the parties before the Vice-Chancellor of the University and the District Inspector of Schools. The Writ Petitions and the Special Appeals are allowed to the extent indicated above.