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Madhya Pradesh High Court · body

2016 DIGILAW 596 (MP)

Indore Press Club v. Rakesh Dwivedi

2016-07-22

VANDANA KASREKAR

body2016
ORDER 1. With the consent of all the counsel for the parties, the petition is heard finally in motion hearing stage. 2. The petitioner has filed the present petition challenging the order dated 5.5.2016 (Annexure P-1) passed by the respondent No.5/the Registrar, Firms and Society, D-Wing, Vindhyachal Bhawan, Bhopal thereby allowing the appeal preferred by respondents No.1, 2 and 3. 3. The respondents No.1 to 3 have filed a caveat and appeared on caveat. Notices were also issued to the respondents by this Court vide order dated 30.5.2016. In response to the notices issued by this Court the respondents have filed the reply and in the reply they have taken preliminary objections to this effect that the present petition is not maintainable as the petitioners have an alternative efficacious remedy of filing an appeal under section 40 of sub-section (1) clause (a) of the Society Registrikaran Adhiniyam, 1973 (herein after referred to the Adhiniyam). They have further submitted that the petitioner has suppressed the fact about availability of the alternative remedy in paragraph 3 of their petition and therefore, the present petition deserves to be dismissed on the ground of suppression of material fact. They have further taken an objection that the present petition is filed on behalf of Indore Press Club, which is a registered Society represented through its General Secretary. However, a Registered Society is also represented through its Board of Directors and not by the General Secretary in his individual capacity. It has further been submitted no resolution has been filed by the petitioner/Society by which the General Secretary empowers to file the present petition. Counsel further submits that the petition is filed by an incompetent person and therefore, the same is not maintainable. 4. The petitioner has filed reply to this preliminary objection and reply to the application filed by the proposed intervenor and also to the I.A.No.3768/2016 for bringing the subsequent and additional fact on record. Along with the said application the petitioner has filed a copy of the appeal memo which is filed by the petitioner against the order passed by the respondent No.5/the Registrar. The petitioner submits that due to abundant precaution and to avoid the bar of limitation, the petitioner has filed an appeal before the State Government under section 40 of the Adhiniyam. The petitioner submits that due to abundant precaution and to avoid the bar of limitation, the petitioner has filed an appeal before the State Government under section 40 of the Adhiniyam. They have further contended that the order passed by the Registrar is without any jurisdiction and therefore, the alternative remedy is no bar to file the present petitioner. 5. The respondents No.1 to 3 thereafter filed the reply to the application bringing the subsequent events to additional facts on record and since now the petitioner/the Society have exhausted the alternative remedy by filing an appeal and therefore, the present petition is not maintainable. 6. The learned counsel appearing for the respondents No.1 to 3 argued that in the present case the preliminary objection has filed on 13.5.2016 by which the respondents have raised an objection that the present petition is not maintainable as the petitioner has an alternative remedy of filing an appeal before the State Government as per clause (a) of sub-section (1) of section 40 of the Adhinyam. As per the said Section, it is clear that against the order passed by the Registrar, an appeal would lie to the State Government. After raising the preliminary objection and to avoid the legal objection raised by the respondents, the petitioners have filed an appeal to the State Government on 9.6.2016 i.e. after raising the preliminary objection by the respondents No.1 to 3. It has further been argued by the learned counsel appearing for the respondents No.1 to 3 that the petitioner has suppressed the fact about availability of the alternative remedy in para 3 of the petition. In para 3 of the petition the petitioner has mentioned that there is no alternative remedy available to the present petitioner except filing of the present petition. Thus, there is material suppression of the fact on behalf of the petitioner regarding availability of the alternative remedy. It has further been argued that the present petition has been filed on behalf of the General Secretary. However, as per bylaws only the Board of Directors is empowered to file the petition. It is further argued that no resolution has been filed which shows that the General Secretary has been authorized to file the petition on behalf of the petitioner/Society. Thus, the present petition is liable to be dismissed on the ground of preliminary objection. 7. However, as per bylaws only the Board of Directors is empowered to file the petition. It is further argued that no resolution has been filed which shows that the General Secretary has been authorized to file the petition on behalf of the petitioner/Society. Thus, the present petition is liable to be dismissed on the ground of preliminary objection. 7. In reply to the preliminary objection, learned counsel for the petitioner submits that the order against which the appeal has been filed by respondents No.1 to 3 is against the Resolution, which itself is not maintainable, in view of the provisions of the Adhiniyam the order Annexure P-1 is without jurisdiction and therefore, the availability of alternative remedy is no bar in filing the present petition. And therefore, for the same proposition, learned counsel for the petitioner relied on the judgment passed in the case of State of M.P. v. Smt. Prem Bai, reported in 2001(3) MPLJ 166 ; M.P. Cricket Association v. B.S. Solanki and others, reported in 2013(4) MPLJ 663 ; Tarnado Enterprises, Richhai and another v. Union Bank of India and others, reported in 2015(3) MPLJ 709; Executive Engineer, Southern Electricity Supply Company of Orissa Ltd. (SOUTHCO) and another v. Sri Seetaram Rice Mill, reported in 2012(2) MPLJ 628; Smt. Hirakali v. Dr. Ram Asrey Awasthi, reported in AIR 1971 Allahabad 201; and Arvind Berry v. Rear Admiral A.P.S. Bindra, reported in AIR 1985 Delhi 248; and submits that in all these cases this Court as well as the apex Court observed that if the order is without jurisdiction then the alternative remedy is no bar. Regarding subsequent filing of the appeal, learned counsel appearing for the petitioner submits that due to abundant precaution and to avoid the bar of limitation the petitioner has filed an appeal before the State Government under section 40 of the Adhiniyam. And the counsel further submits that as per section 22 of the Adhiniyam, every Society may sue or be sued in the name of the President or Chairman or Principal Secretary or the Trustees as shall be determined by the regulation of the Society. Thus, as per the said section, the Secretary is empowered to file suit by or against the Society. Therefore, the present petition filed on behalf of the petitioner/Secretary of Society is maintainable. 8. I have heard the learned counsel for the parties and also perused the record. Thus, as per the said section, the Secretary is empowered to file suit by or against the Society. Therefore, the present petition filed on behalf of the petitioner/Secretary of Society is maintainable. 8. I have heard the learned counsel for the parties and also perused the record. Section 40(1(a) of the Adhiniyam reads as under :”- “40(1)(a): if the order is made by the Registrar appointed under sub-section (1) of section 4 either in original case or in appeal under clause (b) to the State Government.” As per the said clause (1)(b), if the order is made by the sub ordinate officers appointed under sub-section (2) of section 4 or any other person to the Registrar appointed under sub-section (1) of section 4. 9. From order Annexure P/1 it is clear that the order has been passed by the Registrar in an appeal and therefore, certainly an appeal would lie against the said order to the State Government. In the present case it is pertinent that the petitioner has exhausted the alternative remedy by filing an appeal to the State Government raising all the objections which has been taken in the present Writ petition. 10. From perusal of the record it appears that the petitioner has suppressed the fact about availability of the alternative remedy and how the same is not efficacious has been omitted by them in the para 3 of the writ petition. The petitioner should have apprise the fact about availability of the writ petition in para 3 of the writ petition. However, this fact has not been mentioned by the petitioners in the writ petition which amounts to suppression of the fact from this Court. 11. Regarding the third objection about filing of the petition is considered. Section 22 of the Adhiniyam empowers the Chairman of the Society or the persons to file petition on behalf of the petitioner Society as per the regulation of the Society and in the present petition, as per the regulation of this society only the Board of Directors is empowered to file a petition on behalf of the Society and the petitioner has not filed any Resolution by which General Secretary is authorized to file this petition on behalf of the petitioner Society. So far as the judgments relied on the petitioners are considered, there is no dispute regarding the settled legal position that the alternative remedy is no bar to file this petition, but in all those case the petitioners have not exhausted the alternative remedy. However, in the present case since the petitioners have already exhausted the alternative remedy. Therefore, two parallel proceedings cannot allow to be proceeded. 12. In view of the aforesaid, the petition filed by the present petitioner has no force and deserves to be dismissed on the ground of availability of the alternative remedy. However, looking to the fact that the elections are scheduled to be held on 9.8.2016 the appellate authority is directed to decide the matter on or before 1st of August, 2016. 13. With the aforesaid observations and directions, the present petition stands dismissed.