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SHRI MAHATMA KAPILDEV HIGHER SECONDARY SCHOOL AND ANOTHER versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Shri Mahatma Kapildev Higher Secondary School And Another v. State Of U.P. And Others - WRIT - C No. 22597 of 2006 [2006] RD-AH 8356 (25 April 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 7

Civil Misc. Writ Petition No. 22597 of 2006

Sri Mahatma Kapildev Higher Scondary School, Arahera, Agra through its Manager/Mantri Shri Saheb Singh and another.  

                                                                                        Petitioners

                                          Versus

State of U.P. and others.                                                  Respondents

Hon. Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

This writ petition has been filed for quashing the impugned order dated 18.3.2006 passed by respondent no.2, the Deputy Registrar, Firms Societies & Chits, Agra. It has also been prayed that the respondents may be commanded not to interfere in the peaceful functioning of the petitioner as Manager of Shri Mahatma Kapildev Inter College, Arahera, Agra.

Brief facts of the case are that there is a society known as Shri Mahatma Kapildev Higher Secondary School, Arahera, Agra (hereinafter referred to as the Society) registered under the Societies Registration Act, 1860 which runs an Institution i.e. Shri Mahatama Kapildev Inter College, Arahera, Agra.  It was registered under the signatures of one Sri Maharaj Singh in the year 1974 who was the Manager/Mantri of the society.

It is alleged that right from the year 1974 till 1985 Shri Maharaj Singh remained continuously elected as Mantri/Manager of the society.  In 1985 Sri Tota Ram Singh was elected as Manager/Mantri of the institution in question who tendered his resignation on 11.10.90 on account of personal problems. The resignation of Sri Tota Ram was accepted on 2.12.90 and Sri Maharaj Singh, Deputy Manager of the Institution was nominated as Manager/Mantri of the society.

It is further alleged that on 13.5.1992  Sri Maharaj Singh found that the original certificate of registration of the society was missing from the record, hence  he wrote a letter dated 13.5.92  to the Assistant Registrar Societies Chits and Firms for issuing duplicate copy of the certificate.

It is stated that Sri Tota Ram Singh in connivance with the respondents got the renewal of the society for a period of five years behind the back of the petitioners and Sri Maharaj Singh. When Sri Mahraj Singh came to know about this fact he informed the authorities about this fact.

Thereafter elections were held in which Sri Vijai Singh was elected as President and Sri Mahraj Singh was elected as the Manager/Mantri.  Due to the deaths of Sri Vijai Singh and Sri Maharaj Singh, elections were again held on 16.5.2004 in which Sri Ganga Bhan Singh and the petitioner Saheb Singh are alleged to hae been as President and Manager of the Institution. Respondent no.3 Sri Omveer Singh also stated to have staked his claim alleging that he was elected as Manager of the Institution in the elections held on 6.6.2004.  The petitioner Saheb Singh raised a dispute before respondent no.2, Deputy Registrar Firms Societies and Chits requesting that the matter be referred to the Prescribed Authority under Section 25 of the Societies Registration Act, 1860.   However, by the impugned order dated 18.3.2006 respondent no.2 recorded a finding that the claim set up by the petitioner was misconceived and imaginary. It is further held by him in the impugned order that the claim set up by Om Veer Singh is legal and valid and granted registration in his favour.

The relevant portion of the impugned order dated 18.3.2006 is as under:-

        "^^iwoZ esa o"kZ 1993 esa Hkh Jh rksrkjke flag ,oa lkgc flag ds e/; lfefr esa fookn pyk Fkk] ftlls lkslkBVh jftLV~s'ku vf/kfu;e dh /kkjk &25 ¼1½ ds vUrxZr ijxukf/kdkjh fdjkoyh] vkxjk dks Hkh lanfHkZr fd;k x;k FkkA ijxukf/kdkjh ds }kjk lkslkbVh jftLV~s'ku vf/kfu;e dh /kkjk 25 ¼1½ dk fookn u crkrs gq, bl dk;kZy; dks okil dj fn;k x;kA bl dk;kZy; ds }kjk Jh rksrkjke flag dks ea=h ekU; djrs gq;s o"kZ 1995 esa mUgsa uohuhdj.k izek.k i= ns fn;k x;k] blls vxyk uohuhdj.k o"kZ 2000 esa Hkh mUgha ds }kjk djk;k x;kA ;fn Jh lkgc flag lfefr ds ea=h Fks rks mUgsa bl dk;kZy; ds }kjk vkMZj lhV ij ikfjr vkns'k fnukad 23&12&95 @ uohuhdj.k izek.k ds fo:) ekuuh; mPp U;k;ky; esa ;kfpdk ;ksftr dj vuqrks"k izkIr djuk pkfg;s Fkk] ijUrq ,slk ugha fd;k vkSj ;fn mUgsa fdlh U;k;ky; ls dksbZ vuqrks"k feykl gksrk rFkk os vxyk pquko djkus ds vf/dkjh gksrsA tgka rd Jh lkgc flag dh pquko dk;Zokgh fnukad 16-05-2004 dk iz'u gS og xaxkHkku flag dh v/;{krk esa n'kkZ;h xbZ gS tks ekU; v/;{k ugha FksA muds }kjk izLrqr ,ts.Mk jftLVj ds vuqlkj bl dk;Zokgh dk ,ts.Mk Hkh Jh xzxk Hkku flag ds }kjk gh fudkyk x;k gS] ftlds fy, os vf/kd`r ugha FksA Jh lkgc flag dh vksj ls izLrqr jlhn cfg;ksa esa vf/kdka'k jlhn :0&192@ & dh dVh gS] tcfd iathd`r fo/kku ds vuqlkj laj{kd lnL; dk lnL;k 'kqYd :0 1000@ & vkthou lnL; dk :0 5000@ & ,oa lk/kkj.k lnL; dk :0 1@ & ekfld vFkok 12@ & okf"kZd gSA jlhnksa ij Jh xaxk Hkku flag ds lHkkifr ds :i esa] Jh lkgc flag ds izcU/kd @ ea=h ds :i esa ,oa Jh ea'kh flag ds dks"kk/;{k ds :i esa gLrk{kj fo|eku gS tks lfefr ds ekU; inkf/kdkjh ugha FksA bl izdkj muds }kjk n'kkZ;s tk jgs lfefr ds lnL;ksa dks lnL;rk Hkh lafnX/k gks tkrk gS] vksj Jh lkgc flag }kjk izLrqr izi= QthZ ,oa eux<+Ur fla) gksrs gSaA

Jh vkse flag fnukad 20-10-2002 dks lfefr ds ea=h Lo0 Jh rksrkjke flag ds LFkku ij euksuhr gq;s bldh iqf"V i=koyh ij miyC/k Jh txr flag lHkkifr ds i= fnukad 28-10-2002 tks dk;kZy; esa fnukad 29-10-2002 dks tek fd;k x;k gS ls gksrk gSA Jh txr flag rksrkjke flag ds lkFk v/;{k Fks ,oa bldh iqf"V Jh vkseohj flag }kjk izLrqr pquko dk;Zokgh fnukad 06-06-2004 ftls fnukad 05-02-2005 dks la'kksf/kr dj lfefr ds fo/kkukuqlkj fd;k x;k gS] eSa vf/kdka'k mUgha inkf/kdkjh ,oa lnL;ksa ds }kjk fd;k x;k gS] eSa vf/kdka'k mUgha inkf/kdkjh ,oa lnL;ksa ds }kjk fd;k x;k gS tks lfefr esa iwoZ esa lnL; jgs gSa bl ckr dh iqf"V muds dk;Zokgh jftLVj ls gksrh gSA Jh vkseohj flag }kjk izek.k ds :i esa e.Myh; la;qDr f'k{kk funs'kd vkxjk dk vkns'k fnukad 25-05-99] ftyk fo|ky; fujh{kd vkxjk ds }kjk Jh egkRek dfiy nso b.Vj dkyst vjgsjk vkxjk ds izcU/kd ds :i esa vius izek.k gLrk{kj fnukad 04-06-99 ftyk fo|kky; fujh{kd dk i= fnukad 08-06-99 vkns'k fnukad 22-06-99 izekf.kr gLrk{kj fnukad 24-12-2000 ,oa i= fnukad 02-02-2001 rFkk Mk0 jkeifr 'kqDyk iz/kkukpk;Z }kjk iznRr izek.k i= fnukad 05-01`-2006 ftlesa mUgksaus tuojh 1997 ls Jh vkseohj flag dk izcU/kd ds :i esa fujUrj dk;Z djus dk mYys[k fd;k x;k gS ;fn vusdksa ,sls izek.k i=koyh ij izLrqr fd;s x;s gSA ftuls Jh vkseohj flag dk fo|ky; ij izHkkoh fu;U=.k Hkh fl) gksrk gSA

mijksDr of.kZdr foospuk ds vk/kkj ij eSa bl fu"d"kZ ij igqWaprk gWaw fd Jh lkgc flag }kjk izLrqr izi= QthZ ,oa eux<+Ur gS tks ek= laLFkk esa fookn iSnk djus dh uh;r ls izLrqr fd;s x;s gSA vr% mUgsa vLohdkj fd;k tkrk gSA ,oa Jh vkseohj flag }kjk izLrqr uohuhdj.k izi= lgh ,oa fu;ekuqlkj gS ftUgs iwoZ inkf/kdkfj;ksa ds }kjk ea=h Lohdkj fd;k x;k gS vr% mUgsa ekU; fd;k tkrk gSA Jh vkseohj flag ds izi=ksa ds vk/kkj ij lkslkbVh jftLVs~'ku vf/kfu;e dks /kkjk &3&, ds vUrxZr laLFkk dk uohuhdj.k djus ds vkns'k fn;s tkrs gSA

                                 mi fucU/kd

                                   vkxjkA**

Aggrieved by the aforesaid order dated 18.3.2006 the petitioner has filed this writ petition.

The counsel for the petitioner has assailed the impugned order dated 18.2.3006 on the ground that the documents submitted by the respondents before the Deputy Registrar are forged and manufactured which have been filed only for the purpose of raising a dispute in the society for ulterior motive.  The counsel for the petitioner submits that from perusal of the proceedings of the elections submitted by respondent no.3 it is clearly established that only 7 members have been shown to have been elected which is also apparent from the letter dated 4.10.2005 pertaining to election dated 6.6.2005. It is urged that objection regarding fraud committed by respondent no.3 was also highlighted by the petitioner in para 15 of his objection which have not been considered by the authority and the impugned order dated 18.3.2006 is in the circumstances patently illegal, contrary to law and  is liable to be set aside.

The counsel for the respondents submits that there is neither any substance in the allegations made by the petitioner nor there is any illegality or infirmity in the impugned order dated 18.3.2006,hence no interference is required by this Court under Article 226 of the Constitution.  He further submits that as the petitioner has raised question of facts in the grounds, which require adjudication of facts by documentary and oral evidence. He states that such an exercise is not feasible in writ jurisdiction and that since no pure legal question of law is to be determined the writ petition is not maintainable in view of the decision of the Hon'ble Supreme Court in 2006 (109) FLR 223, Himmat Singh Vs. State of Haryana and others wherein it has been held that only question of law can be raised and not statement of fact. The Hon'ble Apex Court has further held that "whether statements of the appellants or the respondents were correct or not could not ordinarily be decided in a writ jurisdiction. It is well known that in writ petition ordinarily such a disputed question of fact could not be entertained."

Counsel for the respondents has relied upon paragraph 4 of the  (1993) 2 UPLBEC 1333, Basant Prasad Srivastava and others Vs. State of U.P. and others, in which it has been held that where in the educational institution the election/finalisation of election process of Committee of Management is challenged under Article 226, the writ petition under Article 226 would not be maintainable and the only remedy in such cases is by filing election petition or filing civil suit. Paragraph 4 of the aforesaid judgment is quoted as under:

"The learned Single Judge has observed that it was well settled proposition of law that in proceeding under Article 226 of the Constitution Courts should not interfere with election process and finalisation of list is not amenable to challenge in writ jurisdiction. It has also been observed that dispute regarding correctness of voters list is a highly disputed question of fact, which can be decided only by Civil Court. With these observations the learned Single Judge directed that the result of the be declared forthwith and further steps be taken in accordance with law."

       The aforesaid view has been followed by this Court in Civil Misc.Writ Petition No.20719 of 2006, Uttam Nishad Vs. State of U.P. and others, wherein it has been held that if the parties approach the High Court more than once, disputing election of Committee of Management or the college of the Society, it is a sure indication that litigation has deep roots in disputed facts and in the circumstances the matter should invariably be ordered to be decided in Civil Courts, which can give findings of facts on basis of oral and documentary evidence, which is not feasible in writ jurisdiction where courts are already burdened. If there is any grievance to either of the parties regarding election I am of the firm view that they have to approach the Civil Court and get the dispute settled by findings of facts there. It is not open to them to approach in the writ petition again and again under Article 226 of the Constitution without first getting the dispute settled finally through Civil Court.

In cases of questions of memberships of Committee of Management under Section 25 (1) of the Societies Registration Act, the only course open is by adjudication by Civil Court finally. Whenever there is a whisper of dispute regarding the electoral college, the Committee of Management elections or election process which requires findings of facts by oral and documentary evidence, Civil Court is the only remedy and writ petition is not maintainable under Article 226 of the Constitution as has been also held by the Division Benches of this court in the case of Basant Prasad Srivastava (supra).

The Court is also supported in its view by  recent judgment rendered by two Division Benches of this Court in Special Appeal No. 1078 of 2005, Munna Lal Singh and another Versus State of U.P. and others and Special Appeal No. 1394 of 2004, Committee of Management Vs. Regional Joint Director of Education and another.

The election of respondent no.3 is disputed on ground that it is only a paper transaction and no election has in fact been held. Per contra the fact is highly disputed as to whether the election of the petitioner is valid or not. The claim set up by the petitioner has been negatived by the Prescribed Authority by the impugned order dated 18.3.2006.

For the reasons stated above, without entering into disputed questions of facts, the petition is dismissed on the ground of alternative remedy available to the petitioner by way of suit/election petition in the Writ Court. In case the petitioner avails the alternate and efficacious remedy of suit available to him it is open to the petitioners to raise all the questions raised in the writ petition as well as their representation in the suit through Civil Court or by filing election petition.

No order as to cost.

Dated 25.4.2006

CPP/-


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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