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2025 DIGILAW 1058 (ALL)

Committee of Management v. State of U. P.

2025-08-14

ARUN BHANSALI, KSHITIJ SHAILENDRA

body2025
JUDGMENT : 1. This appeal is directed against the order dated 08.04.2025 passed by learned Single Judge in Writ-C No. 8908 of 2025, whereby the learned Single Judge has stayed the operation of the order dated 22.01.2025 passed in Case No. 5419 of 2024 by the Prescribed Authority/Sub-divisional Magistrate under Section 25(1) of the Societies Registration Act, 1860 ('the Act'). 2. The subject matter of the writ petition pertains to the election of a Society, namely, Dr. Sudama Prasad Bal Vidya Mandir, Vigyan Kanan Kutir, Kutchery Road, Khirni Bagh Shahar, District Shahjahanpur, whose elections were held on 27.09.2020, in which respondents no. 4 and 5 were elected as Manager and President, respectively. The Committee of Management of the Society was recognized by the Assistant Registrar. Subsequently, the order was reviewed by the Assistant Registrar by order dated 27.01.2023, which came to be challenged before this Court, which allowed the writ petition referring the matter to the Prescribed Authority under Section 25(1) of the Act. Against the order passed, special appeal was filed wherein interim order was granted, however, the appeal came to be decided on 20.02.2024. 3. On reference being made, the Prescribed Authority passed the order dated 22.01.2025, whereby the appellants herein were recognized as President and Manager of the Society. Feeling aggrieved, the writ petition was filed. 4. Based on the contentions raised before learned Single Judge, as noticed in the order impugned, learned Single Judge found that the matter required consideration and granted four weeks time to the appellants and other respondents to file counter affidavit and four weeks' for filing rejoinder affidavit and passed the interim order staying the order dated 22.01.2025. Feeling aggrieved, the present special appeal has been filed. 5. Learned counsel for the respondents raised preliminary objection that the special appeal is barred under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 ('the Rules'), as the order passed under Section 25(1) of the Act is that of the Tribunal and as the orders passed under Article 226/227 against the orders passed by the Tribunal are not open to special appeal under the Rules, the appeal deserves dismissal. 6. Reliance was placed on Jai Prakash Agarwal Vs. Prescribed Authority : (1999) 1 UPLBEC 697 , Mohd Talib Khan Vs. State of U.P. and others : (2008) 1 UPLBEC 538 , Bhupendra Singh Vs. 6. Reliance was placed on Jai Prakash Agarwal Vs. Prescribed Authority : (1999) 1 UPLBEC 697 , Mohd Talib Khan Vs. State of U.P. and others : (2008) 1 UPLBEC 538 , Bhupendra Singh Vs. State of U.P. and others : (2010) 3 UPLBEC 2009 and Abul Kaish Khan and others Vs. Assistant Registrar, Firms Societies and Chits and others : Special Appeal No. 214 of 2009 , decided on 07.04.2011. 7. Learned counsel for the appellants made submissions that the plea raised pertaining to the maintainability of the appeal has no substance as the appeal has been filed against the interim order. Submissions have been made that the judgments in the case of Mohd Talib Khan (supra), Bhupendra Singh (supra) and Abul Kaish Khan (supra) arose out of the final orders passed in writ petitions regarding which it was held that special appeal is not maintainable, however, a Larger Bench in Ashutosh Shrotriya and others Vs. Vice-Chancellor, Dr. B.R. Ambedkar University and others : (2015) 4 UPLBEC 2673 has held that the appeal under Chapter VIII Rule 5 of the Rules would be maintainable against an interim order and, therefore, the plea raised in this regard has no substance. 8. Further submissions have been made that this Court in Smt. Surati Devi and 3 others Vs. Inderjeet and 3 others : Special Appeal No. 452 of 2016 , decided on 20.07.2016, relying on the order in the case of Ashutosh Shrotriya (supra) has laid down that as the power to grant a direction in the writ petition is referable to exercise of constitutional power under Article 226/227 of the Constitution of India by the Court, such interim order does not eminate from the order of the lower authority and, therefore, the appeal would be maintainable and, therefore, the plea raised in this regard has no substance. 9. We have considered the submissions made by counsel for the parties and have perused the material available on record. 10. Undisputed facts are that the respondents no. 3, 4 and 5 have questioned the validity of the order passed by the Prescribed Authority/Sub-divisional Magistrate under Section 25(1) of the Act. 11. 9. We have considered the submissions made by counsel for the parties and have perused the material available on record. 10. Undisputed facts are that the respondents no. 3, 4 and 5 have questioned the validity of the order passed by the Prescribed Authority/Sub-divisional Magistrate under Section 25(1) of the Act. 11. A Division Bench of this Court in the case of Jai Prakash Agarwal (supra) , which judgment arose out of an interim order, whereby learned Single Judge had stayed the operation of the order passed by the Prescribed Authority, elaborately dealt with the issue of maintainability of the special appeal against the order passed in a writ petition questioning the validity of the order passed by Prescribed Authority and, inter alia, came to the following conclusion: “(14) For the reasons stated above, our conclusion is that the Prescribed authority under Section 25 of the Societies Registration Act, 1860, as applicable in Uttar Pradesh, is a tribunal and if the orders passed by the Prescribed authority is challenged in a writ petition under Article 226 of the constitution, the special appeal under Rule 5 of Chapter VIII of the Rules of the Court will not lie against the order of the learned single Judge passed in such a writ petition. (15) The special appeal is, accordingly, dismissed as not maintainable. There will be no order as to costs.” 12. The said view was followed by another Division Bench in the case of Mohd Talib Khan (supra) in the following manner: “26. We are in full agreement with the judgment and order of the Division Bench of this Court in the case of Jai Prakash Agarwal (supra) and that the Full Bench of this Court has not laid down any law to the controversy in the case of Sri Kashi Raj Mahavidyalay, Aurai (supra) and therefore, hold that the present special appeal which has been filed under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 against the judgment and order of the learned Single Judge arising out of an order of the Prescribed Authority under Section 25(1) of the Societies Registration Act is legally not maintainable.” 13. In the case of Bhupendra Singh (supra) , another Division Bench following the order in the case of Mohd Talib Khan (supra), came to the following conclusion: “10. In the case of Bhupendra Singh (supra) , another Division Bench following the order in the case of Mohd Talib Khan (supra), came to the following conclusion: “10. In the instant case the order of the Prescribed Authority has been challenged by way of writ petition which has been disposed of by the learned Single Judge, therefore, the judgment and order passed by the learned Single Judge cannot be challenged by way of special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952. 11. Keeping in view the law laid down by this Court in Mohd. Tabib Khan's case (supra), we are of the view that this special appeal is not maintainable. 12. Therefore, the special appeal is dismissed as not maintainable, however, without imposing any cost.” 14. Yet another Division Bench, in the case of Abul Kaish Khan (supra) reiterated non maintainability of the appeal and observed as under: “We find that in the case of Mohd. Talib Khan (supra) this Court has considered the question in detail and has come to the conclusion that the Prescribed Authority while deciding the reference under Section 25(1) acts as a Tribunal, therefore, the special appeal under Chapter VIII, Rule 5 of the Rules of the Court is not maintainable. We are in respectful agreement with the view taken by the Division Bench of this Court in Mohd. Talib Khan (supra) and hold that the present special appeal is not maintainable. We may mention here that Sri M.A.Khan, learned counsel for the appellant has also argued the matter on merit. We have not gone into the merit of the case as we have come to the conclusion that the appeal is not maintainable. The special appeal fails and is dismissed as not maintainable.” 15. From the above judgments, it is more than apparent that against the order passed by the writ court in a challenge laid to the order passed under Section 25(1) of the Act passed by the Prescribed Authority, special appeal is not maintainable. 16. The relevant provisions under Rule 5 of Chapter VIII of the Rules, inter alia, read as under: “ 5. Special appeal. 16. The relevant provisions under Rule 5 of Chapter VIII of the Rules, inter alia, read as under: “ 5. Special appeal. – An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award--(a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.” 17. A perusal of the said Rule reveals that restriction on maintainability of special appeal inter alia has been provided with regard to the order passed 'in the exercise of the jurisdiction conferred by Article 226 or Article 227 of the Constitution' in respect of any judgment, order or award of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution. 18. It would be seen that the statutory provision prescribes a bar qua the orders passed 'in exercise of jurisdiction under Article 226 and 227 of the Constitution of India'. No distinction can be made with regard to the nature of the order passed, i.e., interim or final, for the purpose of examining the maintainability of the appeal under Rule 5 of Chapter VIII of the Rules. No distinction can be made with regard to the nature of the order passed, i.e., interim or final, for the purpose of examining the maintainability of the appeal under Rule 5 of Chapter VIII of the Rules. The submissions made, in case accepted, would lead to contradiction in terms that though qua the final order passed in the writ petition, special appeal would not be maintainable, qua the interim order passed in such writ petition, special appeal can be maintained. Though specific time was granted to the counsel for the appellants to make submissions on the said aspect, he has failed to produce anything in support. 19. Besides the above, as noticed hereinbefore, the first judgment on the subject matter in the case of Jai Prakash Agarwal (supra) arose out of grant of an interim order of identical nature, as in the present case and, therefore, the plea sought to be raised seeking a distinction between the 'order interim in nature' and 'final order' cannot be countenanced. 20. So far as judgment in the case of Ashutosh Shrotriya (supra) is concerned, the reference before the Larger Bench pertained to maintainability of the appeal, wherein counter and rejoinder affidavits are called, but no order is passed on the stay application, either granting or refusing to grant a stay order, which was dealt with by the Full Bench, which aspect has no relevance to the issue raised in the present special appeal. 21. In the case of Smt. Surati Devi (supra) , the contention raised was noticed and without discussing any provision and/or implication thereof, the special appeal was entertained, which judgment does not lay down any law of general application so as to make the present appeal maintainable, despite the consistent unanimous opinion pertaining to the maintainability of the appeal qua the order of present nature, as notice hereinbefore. 22. In view of the above discussion, we are firmly of the opinion that the present special appeal under Rule 5 of Chapter VIII of the Rules is not maintainable. The same is, therefore, dismissed.