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2023 DIGILAW 1222 (ALL)

C/M Kranti Vidya Mandir v. State of U. P.

2023-05-02

DEVENDRA KUMAR UPADHYAYA, OM PRAKASH SHUKLA

body2023
JUDGMENT Heard Ms. Bulbul Godiyal, learned Senior Advocate assisted by Sri Ram Raj Ojha and Ms. Pallavi Vatsala for the appellants, learned State Counsel representing the State Authorities and Sri M. B. Singh, learned Counsel representing respondent No.4. 2. This intra-Court Appeal under Chapter VIII Rule 5 of the Rules of the Court assails an order dated 11.04.2023 passed by the learned Single Judge whereby Writ-C No. 16057 of 2021 filed by the appellants-petitioners has been dismissed on the ground that number of persons, who had made the Reference before the Sub-Divisional Magistrate under section 25 (1) of the Societies Registration Act, 1860, were not impleaded as party-respondents, hence, the writ petition suffered from vice of non-joinder of necessary parties. 3. At the outset, Sri M. B. Singh, learned Counsel representing respondent No.4 has questioned the maintainability of this Special Appeal stating that in this case, the learned Single Judge has exercised his jurisdiction under Article 226 of the Constitution of India in respect of an order passed by a Statutory Authority, namely Sub-Divisional Magistrate under section 25 (1) of the Societies Registration Act, 1860, as such in terms of provisions contained in Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952, this Special Appeal would not be maintainable. To fortify his submissions, he has cited the judgements in the cases of (i) Jai Prakash Agarwal v. Prescribed Authority (Sub-Divisional Magistrate), Sadar, District Deoria and others [ 1999 (1) UPLBEC 697 ], (ii) Mohd. Tabib Khan v. State of U.P. and others [ 2007 (10) ADJ 578 ], (iii) Sri Arya Mahila Hitkarini Mahaparishad, Lahurabir, Varanasi & Ors. v. State of U.P. & Ors, Special Appeal no. 938 of 2008, decided on 08.08.2008, (iv) C/M Madras Azimul Uloom and another v. Prescribed Authority/Up Zila Adhikari and four others, Special Appeal Defective No.162 of 2016, decided on 28.03.2016, (v) Amit Kumar Singh v. Baha Bariyar Shah Memorial Association & Others [ 2016 (8) ADJ 143 ] and (vi) C/M Veer Eklavya Uchahatar Madhyamik Vidyalaya and another v. Sub- Divisional Magistrate and two others, Special Appeal Defective No. 462 of 2020, decided on 27.08.2020. 4. 4. Learned Senior Advocate appearing for the appellants-petitioners, in reply, submits that since the order passed by the learned Single Judge does not touch upon the merits of the matter, hence the judgements cited by the learned Counsel representing respondent No.4 are not attracted in this case. 5. When we peruse the order passed by the learned Single Judge dated 11.04.2023 which is under appeal, what we find is that the petition filed by the appellants-petitioners was dismissed solely on the ground of non-joinder of necessary parties in the sense that though the Reference under Section 25 (1) before the Sub-Divisional Magistrate was made by 71 persons, however, only one of them was impleaded as party-respondent. It is true that in case any Reference is made to the Sub-Divisional Magistrate under section 25 (1) of the Societies Registration Act, 1860 and the Sub-Divisional Magistrate proceeds to adjudicate the issue(s) raised by such persons making the Reference, each and every person is likely to be affected by the order which may be passed or by adjudication which may be made by the Sub-Divisional Magistrate under section 25 (1) of the Societies Registration Act, 1860. Thus all 71 persons, who had made the Reference before the Sub-Divisional Magistrate, were necessary parties before the learned Single Judge. 6. However, having observed as above, we also find that the defect on the basis of which the writ petition has been dismissed is a curable one and learned Counsel for the appellants-petitioners, at this juncture, prays that she may be permitted to implead all persons as party-respondents in the Writ Petition, at whose behest the Reference was presented before the Sub-Divisional Magistrate under section 25 (1) of the Societies Registration Act, 1860 and Writ Petition may be ordered to be adjudicated on merits. 7. We have considered the rival submissions made by the learned Counsel for the parties. 8. So far as the objection regarding maintainability of the Special Appeal is concerned, it is true that a Special Appeal would not be maintainable in respect of an order which may be passed by the learned Single Judge in exercise of his jurisdiction under Article 226 of the Constitution of India or on merits by the learned Single Judge in respect of an order passed by a statutory authority or Body or Tribunal created under State enactment or Central enactment. 9. 9. In this case, however, the order under Appeal does not touch the merit of the case, inasmuch as it does not record any finding so far as the order passed by the learned Sub-Divisional Magistrate under section 25 (1) of the Societies Registration Act, 1860 is concerned, which was under challenge before the learned Single Judge. In this view, the case laws cited by the learned Counsel representing respondent No.4 are distinguishable. We thus hold that the Special Appeal is maintainable. 10. However, in view of the statement made by the learned Senior Advocate representing appellants-petitioners, we dispose of this Special Appeal with liberty to the appellants-petitioners to move an appropriate application seeking impleadment of all 71 persons, at whose insistence the Reference under section 25 (1) of the Societies Registration Act, 1860 was made before the Sub-Divisional Magistrate. If any such application is made, the same shall be considered and decided by the learned Single Judge and in case the application for impleadment is allowed, the learned Single Judge shall proceed to decide the writ petition on merits. We thus set aside the order dated 11.04.2023 passed by the learned Single Judge and restore the writ petition on the board of the learned Single Judge with a request to expedite the proceedings of Writ-C No. 16057 of 2021. 11. Costs made easy.