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Mohd. Tabib Khan v. State Of U.P. And Others - WRIT - C No. 18566 of 2006 [2006] RD-AH 7226 (4 April 2006)


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Court No.7

       Civil Misc. Writ No. 18566 of 2006

Mohd. Tabib Khan                  Versus     State of U.P. and others

Hon'ble Rakesh Tiwari, J

Heard counsel for the parties and perused the record.

The brief facts are that the society known as "Madarsa Jamya Ahley Sunnat Emdadul Ulum, Matehna Post Khandsari Bazar, District Siddarth Nagar (hereinafter referred to as the Institution), is registered under the Societies Registration Act, 1860.

It is alleged that last elections of the Committee of Management were held in the year 2000 and the eighth renewal was made vide order dated 20.12.2000 w.e.f. 10.10.2000 for a period of five years.

On dispute being raised the Assistant Registrar Firms, Societies and Chits, Gorakhpur Region, Gorakhpur vide order dated 27.7.2001 held the Committee of Management of the petitioner to be valid. Thereafter Misc. Case No. 17 of 2001 was filed before the Sub-Divisional Officer, Itwa, Siddarth Nagar which is still pending.

During the pendency of Misc.Case No. 17 of 2001 the term of the Committee of Management of five years expired on 9.10.2005. Therefore, the then existing Committee of Management is said to have held elections of the office bearers of the Committee of Management on 25.9.2005 in which the petitioner is alleged to have been elected as Manager. After the election dated 25.9.2005 the petitioner appears to have submitted an application on 6.10.2005 along with all requisite papers before the Registrar, Firms Societies and Chits Gorakhpur Region, Gorakhpur along with fee for renewal of the registration of the society.

It is further stated that a suit no. 17 of 2001 was filed before respondent no.2 Sub-Divisional Magistrate/Prescribed Authority under Section 25 of the Societies Registration Act, by the Institution Jamya Ahley Sunnat against the petitioner by the plaintiffs who in their applications supported by affidavits stated that even though the meeting of the society was scheduled to be convened on 8.6.2001 but the same was not convened due to lack of police force. It was stated that in the meeting held on 8.6.2001 there was no agenda regarding the elections and that they had not filed any suit rather the suit on their behalf has been filed fraudulently and that in so far as it relates to them is liable to be dismissed. It is further alleged that no material was brought in rebuttal of the said affidavits and the said affidavits had not been controverted and that the suit became infructuous after election dated 25.9.2005. However, respondent no.2 vide impugned order dated 17.3.2006 illegally and arbitrarily without considering the material on record allowed the suit in favour of the plaintiff.

Aggrieved by the impugned order dated 17.3.2006 the present writ petition has been filed.

It is submitted on behalf of the petitioner that the impugned order dated 17.3.2006 of the S.D.M. is a non-speaking order. It is stated that  since the term of the Committee of Management had already expired on 9.10.2005 and new elections were held on 25.9.2005, hence the impugned order dated 17.3.2006 passed by the S.D.M./Prescribed Authority after the election of the petitioner is liable to be quashed in view of the judgment rendered in Committee of Management Audyogik Vikas Uchchattar Madhyamik Vidyalaya Samiti, Bibara Bazar, Maharajganj, District Basti and another Vs. Prescribed Authority, Basti ( Under U.P. Societies Registration Act No. XI of 1984) Sub-Divisional Magistrate, Harriya, Basti and others, AWC Vol. XXIV 1992(2)-1225.

Sri R.K. Ojha, counsel for the respondents submits that this ground taken by the petitioner has already been considered in respect of the petitioner society in Civil Misc. Writ Petition No. 9756 of 2006 Mohd. Tabib Khan Versus State of U.P. and others and it has been directed that the petitioner may approach the Prescribed Authority.  It is in pursuance of the judgment of the Court dated 22.2.2006 impugned in aforesaid writ petition that the petitioner moved the Prescribed Authority who vide order dated 7.3.2006 has decided against the present petitioner.

It is apparent from the reading of Section 25 of the Societies Registration Act that proceedings before the Prescribed Authority under Section 25 of the Act are summary in nature. Disputed questions of facts are involved in this petition, which are vehemently contested by the parties. These disputed questions of facts cannot be decided in writ jurisdiction, as they require adjudication on the basis of oral and documentary evidence.  I am of the firm opinion that in cases where there is a dispute regarding election of membership of the Committee of Management or society it is to be decided by the Civil Court which is alternate and efficacious remedy. Disputed question of fact and law require decision on basis of oral and documentary evidence. It cannot be decided in summary proceedings by the Prescribed Authority under Section 25 of the Act.

It is settled law that the High Court under Article 226 of the Constitution of India should only decide the pure question of law in case of undisputed facts. For this Court it is not feasible under Article 226 of the Constitution to decide every such matter.  The power under Article 226 is to be exercised in rare of rarest cases and certainly not in cases involving lightly disputed questions of facts as stated above.

For the reasons stated above, the writ petition is dismissed on the ground of alternative remedy. The petitioner may approach the Civil Court for redressal of his grievance.

Dated 4.4.2006



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