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2017 DIGILAW 973 (ALL)

LAXMAN YADAV v. STATE OF U. P.

2017-04-11

SANGEETA CHANDRA

body2017
JUDGMENT Hon’ble Mrs. Sangeeta Chandra, J.—This writ petition has been filed by the petitioners challenging the order dated 22.6.2015 passed by the Prescribed Authority/SDM, Sikandarpur, District Ballia whereby the Prescribed Authority has recognized the Respondent No. 4, Chandra Shekhar Upadhyay as manager of Committee of Management running Janta Seva Mandal Nava Nagar, District Ballia which in turn is also a Society which runs Swatantrata Senani Balika Vidyalay, Nauratanpur, Ballia. 2. The facts of the case as pleaded by petitioners’ counsel Shri ManishKumar Nigam and also evident from the writ petition are that the Society as mentioned herein-above runs a Junior High School. One Deo Nath Upadhyay happened to be founder manager of the aforesaid Society till his death on 20th of July, 1992. After the death of undisputed manager Deo Nath Upadhyay, one K.K. Upadhyay set up his claim as manager of the Committee of Management; who was the son of Deo Nath Upadhyay. A rival claim to the post of manager of the Committee of Management was also made by one B.K. Upadhyay. The Assistant Registrar, Firms, Societies and Chits referred the matter to the Prescribed Authority under Section 25 (1) of the Societies Registration Act on 19.1.1996 and since then, the dispute remained pending before the Sub Divisional Magistrate. Thereafter, on 25.5.1997 K.K. Upadhyay who had set up the rival claim for being manager of Janta Seva Mandal died. 3. In 1997 fresh elections were held and according to the petitioner he was elected as manager of the Committee of Management and thereafter, after every three years elections were held in 2000, 2003, 2006, 2009 and 2012 in which the petitioner was elected as manager of the Committee of Management of the School in question. However, neither the Assistant Registrar, Firms, Societies and Chits nor Education Authorities i.e. Basic Shiksha Adhikari recognizied the elections held by the Committee of Management. The dispute regarding the rival claim set up by B.K. Upadhyay and K.K. Upadhyay also remained pending with the Prescribed Authority. 4. However, neither the Assistant Registrar, Firms, Societies and Chits nor Education Authorities i.e. Basic Shiksha Adhikari recognizied the elections held by the Committee of Management. The dispute regarding the rival claim set up by B.K. Upadhyay and K.K. Upadhyay also remained pending with the Prescribed Authority. 4. In the meantime, one Iqbal Ahmed arrayed as Respondent No. 5 in this writ petition also raised dispute regarding his election as manager of the Committee of Management and the Assistant Registrar by his letter dated 26.2.2009 wrote to the Prescribed Authority that the reference made earlier by his office on 19.1.1996 remained pending and at the same time, Iqbal Ahmed has now claimed himself to be elected manager of the Committee of Management. A request was made for decision of the dispute at the earliest. 5. After the letter of Assistant Registrar dated 26.2.2009 referring the claim made by the Iqbal Ahmed, the proceedings before the Prescribed Authority were again taken up. Petitioner, Laxman Yadav filed impleadment application in March, 2009 in the said dispute, which was pending, alleging that he had been elected as manager in 1997 of the Committee of Management and he has continued as such till 2009 and his claim should also be considered. The application dated 3.3.2009 was allowed by the Prescribed Authority and the petitioner was also heard in the proceedings that followed before the Prescribed Authority. 6. It is the grievance of petitioner that although he had stepped into the shoes of K.K. Upadhyay after his death in 1997 and the dispute that was originally referred to the Prescribed Authority by order dated 19.1.1996 being a dispute between the claims of B.K. Upadhyay and K.K. Upadhyay, only the said dispute should have been decided. B.K. Upadhyay had appeared before the Prescribed Authority on 20.2.2010 and had filed objections through his Power of Attorney Holder Chandra Shekhar Upadhyay (arrayed as Respondent No. 4 in this writ petition), denying the claim of Iqbal Ahmed that B.K. Upadhyay has resigned from the post of manager and in his place, Iqbal Ahmed had been elected. After putting in appearance and also giving his oral evidence before the Prescribed Authority B.K. Upadhyay died in 2014 and thereafter, Chandra Shekhar Upadhyay, Respondent No. 4, claimed to have been elected as manager on 16.2.2014. 7. After putting in appearance and also giving his oral evidence before the Prescribed Authority B.K. Upadhyay died in 2014 and thereafter, Chandra Shekhar Upadhyay, Respondent No. 4, claimed to have been elected as manager on 16.2.2014. 7. It is the case of petitioner that instead of deciding the dispute between B.K. Upadhyay represented by Chandra Shekhar Upadhyay and K.K. Upadhyay represented by Laxman Yadav - the petitioner, the Prescribed Authority completely ignored the earlier dispute that was referred to it by the District Assistant Registrar on 19.1.1996 and instead proceeded to decide the dispute regarding the claim of Iqbal Ahmed referred to the Prescribed Authority by the Assistant Registrar on 26.2.2009. The Prescribed Authority erroneously went on to recognize Chandra Shekhar Upadhyay, claiming through B.K. Upadhyay to be validly elected member ignoring the claim of Laxman Yadav, petitioner, claiming through K.K. Upadhyay. 8. Shri Manish Kumar Nigam appearing for petitioners while challenging the order passed by the Prescribed Authority has relied upon the judgment rendered by Co-ordinate Bench of this Court in Committee of Management, Raja Tej Singh Vidyalay, Aurandh, District Mainpuri and another v. DIOS, Mainpuri and others, 2000 (2) UPLBEC 993 . According to the counsel for petitioners in this case, this Court had held that the District Basic Shiksha Adhikari has no power under any Act to decide any doubt or dispute regarding any election. The decision of Basic Shiksha Adhikari permitting one or the other Committee of Management to run the school is relevant only till the Prescribed Authority under the Societies Registration Act decides a dispute and once the Prescribed Authority upholds the election of one of the rival Committees of Management, even if Basic Shiksha Adhikari has recognized another Committee of Management for the purpose of payment of salary under the U.P. Junior High School Payment of Salaries of Teacher and other Employees Act, 1978, such an order has to be changed and fresh order needs to be passed in favour of the Committee of Management recognized by the Statutory Authority i.e. the Prescribed Authority under the Societies Registration Act. As such, the Prescribed Authority in this case while deciding the dispute between the rival claims of the Committee of Management had wrongly placed reliance upon the Basic Shiksha Adhikari’s decision through which B.K. Upadhyay had been recognized as manager and the salary account was operated under his signatures and after his death the Respondent No. 4 - Chandra Shekhar Upadhyay was so recognized by the Basic Shiksha Adhikari. 9. Shri H.N. Singh, learned Senior Advocate assisted by Shri I.K. Upadhyay appearing for the Respondent No. 4, Chandra Shekhar Upadhyay in this case had drawn attention of the Court to the counter-affidavit filed by the Respondent No. 4 in this writ petition. In the counter it has been brought on record that Iqbal Ahmed whose case was rejected by the Prescribed Authority by his order dated 22.6.2015, had filed Writ - C No. 41441 of 2015 and in the said writ petition an impleadment application was filed by the petitioner, Laxman Yadav, namely, Impleadment Application No. 296565 of 2015 and the said application was also allowed and the petitioner had been impleaded as the Respondent No. 5. This writ petition filed by Iqbal Ahmed was dismissed by this Court by an order dated 28th of August, 2015 and this fact having been concealed by the petitioner in filing the instant writ petition which amounted to a fraud being played upon the Court and the writ petition was liable to be dismissed on this ground alone. 10. This Court by an order dated 28.10.2015 had issued notices to 5th Respondent to be sent by registered post and in terms of the order dated 28.10.2015 and 21.12.2015 the office has submitted a report on 14.1.2016 that RPAD notice was issued to the Respondent No. 5 and neither acknowledgment nor undelivered cover has been returned after the service of notice. No Vakalatnama has been filed on behalf of the opposite party No. 5 also. This Court, therefore, deems service of notice on Respondent No. 5 as sufficient. In any case Iqbal Ahmed, the Respondent No. 5, had already challenged the same order dated 22.6.2016 passed by the Prescribed Authority in a separate writ petition namely Writ Petition No. 41441 of 2015 which was dismissed on 28.8.2015 by this Court by a detailed order. 11. This Court, therefore, deems service of notice on Respondent No. 5 as sufficient. In any case Iqbal Ahmed, the Respondent No. 5, had already challenged the same order dated 22.6.2016 passed by the Prescribed Authority in a separate writ petition namely Writ Petition No. 41441 of 2015 which was dismissed on 28.8.2015 by this Court by a detailed order. 11. From a mere perusal of the order of dismissal of the Writ - C No. 41441 of 2015 it is evident that this Court was considering the same order passed by the Prescribed Authority dated 22.6.2015 which was challenged by Iqbal Ahmed on two grounds. Firstly, the Prescribed Authority had decided the correctness of the election of the petitioners therein dated 15.7.2006 for which no reference was made either by 1/4th members of the Society or by the Assistant Registrar to the Prescribed Authority under Section 25(1). Secondly, election of Iqbal Ahmed dated 15.7.2006 has been discarded without specifying as to why the election of Chandra Shekhar (Respondent No. 4 in the writ petition) had been accepted. This Court after hearing both the parties came to the conclusion that the arguments raised by Iqbal Ahmed that the Prescribed Authority had proceeded to decide an issue which was never referred to it and thereby assumed the jurisdiction where there was none, came to the conclusion that the reference made regarding the election of 1994 whereby two rival claims were set up by K.K. Upadhyay and B.K. Upadhyay remained undecided. After K.K. Upadhya’s death, B.K. Upadhyay was accepted as manager and B.K. Upadhyay in 2006, it was alleged, had appointed the petitioner Iqbal Ahmad as manager and thereafter, he had submitted his papers before the Assistant Registrar for registration. The Assistant Registrar found that the dispute regarding rival claims was already pending with the Prescribed Authority and since Iqbal Ahmed was claiming through B.K. Upadhyay his case was also referred to the Prescribed Authority and therefore, this Court held that the Prescribed Authority had not acted without jurisdiction in deciding validity or the correctness of the elections allegedly held by the petitioner Iqbal Ahmad on 15.7.2006. Regarding other issues raised by Iqbal Ahmad, this Court found that they were completely in the factual domain and this Court rarely interferes in disputed questions of fact. Regarding other issues raised by Iqbal Ahmad, this Court found that they were completely in the factual domain and this Court rarely interferes in disputed questions of fact. On facts, the Prescribed Authority had held the elections of petitioner therein to be bogus and there being no rival claim with regard to the election of 2014 of the respondents, Chandra Shekhar Upadhyay, the Prescribed Authority had accepted that election. 12. It is the case of Shri H.N. Singh, learned Senior Counsel that in the impleadment application filed by the petitioners in the aforesaid writ petition he had mentioned that there was no need for filing a separate writ petition by him as he was also aggrieved by the order impugned in the case of Iqbal Ahmed. After the dismissal of the writ petition on merits by this Court by a detailed order on 28.8.2015, the petitioner cannot now be allowed to turn around and challenge the same order passed by the Prescribed Authority and upheld by this Court, by alleging that his case should also have been considered by the Prescribed Authority as he had filed an impleadment application in dispute referred by the Assistant Registrar to the Prescribed Authority on 26.2.2009, as his application for impleadment dated 3.3.2009 had been allowed by the Prescribed Authority. 13. It has also been brought on record by means of the counter-affidavit filed by the Respondent No. 4 that after the death of K.K. Upadhyay in 1997, B.K. Upadhyay indisputably continued to act as manager till order of single operation was passed by the District Basic Shiksha Adhikari, Ballia on 6.10.2012 due to prolonged illness of B.K. Upadhyay. After the death of B.K. Upadhyay the Respondent No. 4, Chandra Shekhar Upadhyay, was elected as manager in 2014 and this election was recognized by the Basic Shiksha Adhikari. It has been contended that although Laxman Yadav was a member of the Society and also a member of the Executive Committee of the Society in 1991, he had set up K.K. Upadhyay, the son of Deo Nath Upadhyay, and had not set up his own claim ever thereafter, till suddenly in 2009, he filed the impleadment application before the Prescribed Authority claiming to have been elected as manager of the Committee of Management after the death of K.K. Upadhyay in 1997. 14. 14. Shri H.N. Singh, learned Senior Counsel has referred to the very same judgment on which reliance was placed by the counsel for the petitioner i.e. Committee of Management, Raja Tej Singh Vidyalay (supra) and pointed out that under Section 25 (1) the Prescribed Authority shall decide a dispute not only about an election of an individual candidate but he is also empowered to decide if there are two competing Committees of Management which claimed two different elections to have been held. If two factions claim separate elections, they create a doubt and this doubt can also be referred by the Registrar to the Prescribed Authority. But at the same time the Prescribed Authority can neither entertain or dispute himself nor he can decide a dispute on reference by one member alone. he can only decide if it is referred by the Registrar or by 1/4th members of a Society. 15. In this case, the petitioner herein had set up a claim of having been elected as manager by the Committee of Management in the elections held in 1997 after the death of K.K. Upadhyay, by means of filing an impleadment application in March, 2009 in his individual capacity before the Prescribed Authority directly. No claim was made at any point of time by the petitioner before the Registrar for recognition of the alleged election in which the petitioner was allegedly elected as manager. This impleadment application even though was allowed by the Prescribed Authority, the petitioner was also heard, it does not mean that the Prescribed Authority should have or could have decided the claim set up by the petitioner as his claim was not referred to the Prescribed Authority either by the District Assistant Registrar or by 1/4th members of the alleged Committee of Management alleged to have been elected in 1997 after the death of K.K. Upadhyay. 16. It has been argued by Shri H.N. Singh, learned Senior Advocate, that the dispute which was referred to the Prescribed Authority in January, 1996 by the Assistant Registrar was with regard to the rival claims set up by two Committees of Management regarding the elections of either B.K. Upadhyay or K.K. Upadhyay as manager. This controversy related to the year 1994 and as per the registered by-laws of the Society the next elections were to be held in 1997. This controversy related to the year 1994 and as per the registered by-laws of the Society the next elections were to be held in 1997. In 1997 K.K. Upadhyay died and with his death the claim set up by K.K. Upadhyay remained pending before the Prescribed Authority. This claim however could not be said to have become infructuous claim, as argued by the counsel for the petitioner, because 1/4 members of the Committee of Management of the Society in question had set up the claim and this Committee of Management continued to exist. It was this claim which was pending when the other claim set up by Iqbal Ahmed was referred by the Assistant Registrar to the Prescribed Authority and the Prescribed Authority in his wisdom after examining the evidence on record came to the conclusion that Shri B.K. Upadhyay, admittedly, continued to manage the School and the Society till his death in 2014. The Respondent No. 4 being a Power of Attorney Holder of Shri B.K. Upadhyay had also been elected as Manager after the death of B.K. Upadhyay and he was already being represented before the Prescribed Authority. Therefore, his election held in 2014 was rightly recognized by the Prescribed Authority. 17. Shri H.N. Singh, learned Senior Counsel, has also argued that for a dispute or a doubt with regard to the elections or continuance of the members of the Committee of Management to be referred to the Prescribed Authority, the said dispute has to be a genuine and bona fide dispute. It cannot be said that just because the petitioner had filed an impleadment application and set up his claim of being elected continuously as manager since 1997 for the first time before the Prescribed Authority, it would be a dispute which was amenable to the jurisdiction of the Prescribed Authority under Section 25 (1) of the Act. The Prescribed Authority rightly ignored the claim of the petitioner as he was not duty bound under Section 25(1) of the Act to decide a dispute not referred to it as per the provisions of the Act. 18. The Prescribed Authority rightly ignored the claim of the petitioner as he was not duty bound under Section 25(1) of the Act to decide a dispute not referred to it as per the provisions of the Act. 18. Shri H.N. Singh has relied upon the judgment rendered by a Division Bench of this Court in the case of Saharanpur Cinema Exhibitors Association v. State of U.P. and two others, decided on 19.9.2016 wherein a Division Bench of this Court has relied upon the law as settled in the case of Nazir Ahmad v. King-Emperor, AIR 1936 PC 253 , that where a power is given to do a certain thing in a certain manner, the thing must be done in that manner or not at all. The settled principle of law has been reiterated, time and again, by the Supreme Court in the case of Dhananjaya Reddy v. State of Karnataka, 2001 (4) SCC 9 and in Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala, 2002 (1) SCC 633 and in Captain Sube Singh and others v. Lt. Governor of Delhi and others, 2004 (6) SCC 440 , Competent Authority v. Barangore Jute Factory and others, 2005 (13) SCC 447 ; State of Jharkhand and others v. Ambay Cement and another, 2005 (1) SCC 368 . 19. Since the claim set up by the petitioner was not a bona fide dispute referred in the manner prescribed under Section 25 (1) to the Prescribed Authority either by the Registrar or by 1/4th members of the Committee of Management alleged to have been elected in 1997, 2000, 2003 and 2006. The Prescribed Authority rightly ignored the claim of the petitioner altogether. 20. Shri H.N. Singh has also relied upon the judgment rendered in the case of Dalip Singh v. State of U.P. and others, (2010) 2 SCC 114 , specially paragraphs No. 1, 2 and 20 thereof wherein the Supreme Court has held that any person who did not state correct facts before Court and did not approach it with clean hands or made a misleading statement or concealed the true facts should not be heard as it is now well-settled that “A litigant who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.” 21. Having considered the rival submissions and the documentary evidence available on record by both the parties, this Court is of the considered opinion that the issues before this Court to be decided are two-folds. Firstly, whether the writ petition should at all be entertained as the petitioner has, admittedly, resorted to the concealment of fact and misrepresentation in not disclosing to this Court that Iqbal Ahmed had filed Writ -C No. 41441of 2015 which was dismissed on 28.8.2015 in which the petitioner was also heard as his impleadment application was allowed by this Court. Secondly, this Court has to consider whether the Prescribed Authority was duty bound to entertain the claim set up by the petitioners herein by filing an impleadment application only, in the dispute referred by the Assistant Registrar in between B.K. Upadhyay and Iqbal Ahmed to the Prescribed Authority by his letter dated 26.2.2009? 22. This Court is of the considered opinion that the Prescribed Authority rightly took into account the earlier dispute referred to him on 19.1.1996 alongwith the dispute referred to him on 26.2.2009 and after considering all evidence on record came to the conclusion that B.K. Upadhyay had been recognized after the death of K.K. Upadhyay as the manager of the Committee of Management since 1997 and continued to work as manager till his death in 2014. It cannot be said that Iqbal Ahmed had any genuine claim. The claim of Iqbal Ahmed has been decided by this Court also while rejecting his writ petition as aforesaid. The petitioner having set up the claim of his own by filing an Impleadment Application dated 3.3.2009 before the Prescribed Authority when the said claim was not referred in the manner as prescribed under the Act, could not insist that his claim be decided by the Prescribed Authority. The Prescribed Authority could decide only such claim as was referred to it in law. As has been held by this Hon’ble Court in 2007 (3) AWC 3066 , para 17 which is quoted herein below : “It is needless to emphasize that the Prescribed Authority under Section 25 (1) of the Societies Registration Act is an authority with limited jurisdiction bound within the four corners of the dispute referred under Section 25 of the Societies Registration Act. Independent of reference, it has no jurisdiction to travel into a dispute not referred to him or to adjudicate upon it.” 23. The petitioner admittedly has resorted to concealment of material facts while filing this writ petition and the doors of this Court shall remain closed for such an unscrupulous litigant. This Court, therefore, feels that the extraordinary jurisdiction conferred upon it under Article 226 of the Constitution should not be exercised in this case. 24. The writ petition is dismissed. 25. No order as to costs.