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2018 DIGILAW 1675 (ALL)

Naveen Chandra Tiwari v. State of U. P.

2018-07-30

RAJESH SINGH CHAUHAN, VIKRAM NATH

body2018
JUDGMENT : 1. Objection filed by the respondents, are taken on record. 2. Heard Sri. Gajendra Pratap, learned Senior Advocate assisted by Sri. Salil Kumar Srivastava, learned counsel for the appellant, Dr. L.P. Mishra along with Sri. Prafulla Tiwari, Advocate appearing for the respondent Nos. 6 to 93 and Sri. Shailendra Singh Chauhan, learned Additional Chief Standing Counsel representing the State-respondents. 3. This intra Court appeal under Chapter-VIII Rule 5 of the Allahabad High Court Rules, 1952 has been preferred by the respondent Nos. 6 & 7 in Writ Petition No. 14847 (M/S) of 2018; Sri. Brijesh Kumar Srivastava and 87 others v. State of U.P. and others assailing the correctness of the interim order dated 22.05.2018, whereby the learned single Judge after recording the respective arguments advanced by the learned counsel for the parties and by a reasoned order, stayed the effect and operation of order impugned in the writ petition dated 02.05.2018 passed by the Regional Level Committee, District Lucknow recognizing the election held on 05.11.2017 of the Committee of Management of the Institution in question in which the present appellants have been elected as the President and Manager of the Institution, respectively. 4. The first preliminary objection raised by the learned counsel for the respondents, which is also reflected from the office report dated 09.07.2018, is with regard to maintainability of this intra Court appeal against the interlocutory order not deciding any issue nor having any trappings of finality, referable to the issue raised in the writ petition. 5. In response to the aforesaid objection Sri. Gajendra Pratap, learned Senior Advocate has submitted that there is no denial of the facts that the order of learned single Judge is an interim order but at the same time reading of order reflects that the learned single Judge while passing the order has made certain observations and even, prima-facie the findings recorded may have bearing on the final outcome of the writ petition on merits. 6. Sri. Gajendra Pratap further submitted that writ petition itself being not maintainable at the instance of 88 petitioners, who are not members of the General Body of the Society, the learned single Judge erred not only in entertaining the writ petition but also passing an interim order. 6. Sri. Gajendra Pratap further submitted that writ petition itself being not maintainable at the instance of 88 petitioners, who are not members of the General Body of the Society, the learned single Judge erred not only in entertaining the writ petition but also passing an interim order. He further submits that where the petitioners do not have locus to maintain the writ petition, any order which adversely affects the right of the appellants, can be assailed in intra Court appeal. 7. His Further submission is that as the election of the office bearers of the Committee of Management of the Institution in question duly recognized by the Regional Level Committee was under challenge in the writ petition, non-joinder of the Committee of Management by the petitioners was an error which could prove fatal and, therefore, the writ petition was liable to be dismissed and the learned single Judge erred in entertaining the same and passing the interim order. 8. Sri. Gajendra Pratap, learned Senior Advocate has placed reliance on the following judgments of Hon'ble Apex Court on both the above arguments advanced by him. 1. Avtar Singh Hit v. Delhi Sikh Gurdwara Management Committee and others, reported in (2006) 8 SCC 487 . The relevant para-31 reads as under:- "31. In our view no relief could have been granted to the writ petitioner on account of the fact that the newly elected office bearers of the Executive Board, who would have been affected by the decision of the writ petitions, were not impleaded as party to the writ petitions. In Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar, AIR 1963 SC 786 , it was observed that where in a petition for a writ of certiorari made to the High Court, only the tribunal whose order was sought to be quashed was made a party but the persons who were parties before the lower tribunal and in whose favour the impugned order was passed were not joined as parties; the writ petition was incompetent and had been rightly rejected by the High Court. In Prabodh Verma v. State of Uttar Pradesh, AIR 1985 SC 167 , it was held:- 'A High Court ought not to hear and dispose of a writ petition under Article 226 without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join them, the High Court ought to dismiss the petition for non-joinder of necessary parties'." 2. Charan Lal Sahu v. Giani Zail Singh and another, reported in (1984) 1 SCC 390 : AIR 1984 SC 309 ). The relevant para-15 reads as under:- "15. The challenge of the petitioners to the provision contained in Section 5-B (1) (a) of the Act on the ground of its alleged unreasonableness has no substance in it. The validity of that provision was upheld by this Court in Charan Lal Sahu v. Neelam Sanjeeva Reddy ( AIR 1978 SC 499 ). Besides, if the petitioners have no locus to file the election petition, they cannot be heard on any of their contentions in these petitions." 9. Sri. Gajendra Pratap, learned Senior Advocate has also placed reliance upon the Division Bench judgments of this Court rendered in (1) Special Appeal No. 1954 of 2013; C/M Sri. Khadeshwari Baba Laghu Madhyamik Vidyalaya and 2 others v. State of U.P. and 3 others. The relevant paras-3 & 4 read as under:- "3. The submission of the appellants is that since they have not been allowed to participate and vote in the election on the ground that they were not shown in the record as being the members of the Society, they would have no locus to file an election dispute under Section 25 (1) of the Act. The learned single Judge while directing the Prescribed Authority to decide the election dispute, has qualified the observations by observing that if a proper reference is filed under Section 25 (1) of the Act, the Prescribed Authority may decide the dispute expeditiously. The grievance of the appellants is in respect of the exclusion of their names from the electoral college. The learned single Judge while directing the Prescribed Authority to decide the election dispute, has qualified the observations by observing that if a proper reference is filed under Section 25 (1) of the Act, the Prescribed Authority may decide the dispute expeditiously. The grievance of the appellants is in respect of the exclusion of their names from the electoral college. Unless the appellants obtain a declaration in regard to their membership and in respect of their entitlement to participate and vote in the election, obviously, they would not be entitled to question the result of the election. In the exercise of writ jurisdiction, the learned single Judge was justified in declining to entertain a disputed question of fact in regard to, whether they are truly and genuinely members of the Society. The appellants would, therefore, have to take recourse to their ordinary civil remedy in that regard. 4. In that view of the matter, we in special appeal do not consider it fit to enquire into disputed questions of fact. Hence, on that ground alone, we decline to entertain the special appeal, which shall accordingly, stand dismissed. However, we clarify by way of abundant caution that in the event the appellants take recourse to the remedy available in law, the present order shall not be regarded as any expression of opinion in regard to the merits of the grievance since neither the learned Single Judge nor this Court in appeal have had occasion to do so." 2. Writ -C No. 1994 of 2018; Smt. Shashi Yadav v. State of U.P. and others. The relevant para-49 reads as under:- "49. Further, there is another infirmity in the said argument of the learned counsel for the petitioner. The members, who allegedly have not subscribed to the oath of office or made an affirmation prescribed by law, will be adversely affected in case the said argument is accepted. However, neither names of such members have been disclosed, nor have they been impleaded as parties in the writ petition. The writ petition is liable to be dismissed on the ground of non joinder of necessary parties. In any case no adverse orders can be passed, without affording them an opportunity of hearing." 10. On the other hand, Dr. However, neither names of such members have been disclosed, nor have they been impleaded as parties in the writ petition. The writ petition is liable to be dismissed on the ground of non joinder of necessary parties. In any case no adverse orders can be passed, without affording them an opportunity of hearing." 10. On the other hand, Dr. L.P. Mishra, learned counsel representing the private respondents submitted that the question as to whether the writ petitioners had locus to maintain the writ petition or not is very well mentioned in the order of learned single Judge itself inasmuch as the Manager of the Institution Dr. Pushpawati Tiwari had submitted the list of 193 members on 17.04.2017 before the Deputy Registrar, Firms, Societies and Chits, Lucknow Region, Lucknow for registration but in the absence of any order being passed by the Deputy Registrar, the list could not be finally registered but that would not completely wipe out the locus of the petitioners to maintain the writ petition. He further submitted that petitioners have an interest in raising the dispute as they have already been registered by the Society and the then Manager has forwarded the papers to the Deputy Registrar. 11. It is further submitted that insofar as non-impleadment of the Committee of Management is concerned, since the petitioners in their opinion deemed that the Committee of Management has not been validly elected and the President and the Manager, who are the main office bearers of the Committee of Management, have been impleaded by their names and there were allegations of fraud and misrepresentation before the Regional Level Committee and they duly represented the Committee of Management, as such, the arguments raised by the learned counsel for the appellants do not have any merits. It was next submitted by Dr. Mishra that the writ petition is still pending before the learned single Judge and all these objections can be adequately raised and addressed before the learned single Judge at the time of hearing of the writ petition and if so raised the learned single Judge would be obliged to deal with them. 12. In response to the arguments raised on behalf of the respondents, Sri. 12. In response to the arguments raised on behalf of the respondents, Sri. Gajendra Pratap, learned Senior Advocate has submitted that the alleged list dated 17.04.2017 said to have been submitted by earlier Manager, who is presently no more, does not bear her signature and is completely forged and fabricated document and it is for this reason that the Deputy Registrar has not granted any recognition to the said list of 17.04.2017. His further submission is that until and unless the writ petitioners are duly found valid members, they have no locus to maintain the writ petition and, as such, he reiterates his submission that the petition having been filed by the petitioners has no locus, deserves outright dismissal. 13. We have heard not only the arguments of learned counsel for the parties at length but we have also been taken through the relevant material on record. Since the writ petition is pending before the learned single Judge and any observation and remarks made by us in this order may have affect on the issues which are still to be finally decided by the learned single Judge, we refrain ourself from dealing with any such material although, prima facie, we may record that something can be said from both the sides to their detriment if the documents are to be dealt with. We leave it open for the learned single Judge to deal with all these issues. It would be open for the learned single Judge that in case it is not feasible to decide the writ petition early, learned Single Judge may consider for appointment of an Authorized Controller for managing the affairs of the Institution. 14. Without interfering with the order of learned single Judge, the special appeal is disposed of with expectation that the learned single Judge shall make an endeavour to decide the writ petition at the earliest.