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RAM NARAIN SHARMA versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Ram Narain Sharma v. State Of U.P. And Others - WRIT - C No. 73549 of 2005 [2006] RD-AH 8810 (2 May 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

   Court No. 7

Civil Misc. Writ Petition No. 73549 of 2005

Ram Narain Sharma                                                           Petitioner

                                                versus

State of U.P. and others.                                                    Respondents

Hon. Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

This writ petition is filed for quashing the impugned order dated 25.10.2005 passed by respondent no.3.

Brief facts of the case are that the institution Indira Gandhi Uchchatar Madhyamik Vidyalaya, Nagla Ahiwasi, Aligarh  (hereinafter referred to as the Institution) is an institution registered under the Societies Registration Act, 1860. It was upgraded to High School in 2001 and is governed by the Approved Scheme of Administration.

It is submitted that the last election of the Committee of Management of the aforesaid institution was held on 4.7.2004 in which respondent no. 6, Brij Kishore Sharma was elected as Manager. He resigned from the post and in his place Sri Devendra Kumar Sharma was elected Manager.

It is alleged that respondent no.5, Ram Prakash Sharma moved an application before the Assistant Registrar alleging that he has been appointed as Manager vide resolution of society dated 18.9.2005 and submitted list of 195 said to be original undisputed members in existence and 99 new members who were not in existence on 20.6.2004 and were close relatives of respondent no.5. It is stated that the alleged election of respondent no.5 was illegally conducted excluding 15 life time members and in this regard they filed their affidavits interalia that their signatures were forged and fabricated.

It is also urged that respondent no.3 vide his order dated 25.10.2005 has illegally held the list of members submitted by respondent no.5 to be legal and valid and has also recognized the election of respondent no.5 on the post of Manager. When this fact came to the knowledge of the petitioner he made a representation before respondent no.3 in this regard but to no avail giving rise  cause in the present writ petition.

           The counsel for the petitioner submits that where there is dispute of membership the matter should either be referred to the Prescribed Authority under Section 25 of the Act or before Civil Court but the Assistant Registrar has no jurisdiction to decide any such dispute. He further submits that the Assistant Registrar has no authority to approve the list of membership submitted by respondent no.5 and recognize the election on the basis of aforesaid members. He has relied upon the case of All India Council and another Vs. Assistant Registrar, Firms, Societies and Chits, Va ranasi Region, Varanasi and another, AIR 1988 Allahabad 236 in which it has been held that-

         " If a dispute is raised with regard to the election or continuance in office of an office-bearer of a society registered in Uttar Pradesh, the same has to be decided only by the Prescribed Authority under Section 25(1) and not by the Registrar, save, of course, to the decision of the Prescribed Authority being subject to the result of a civil suit. If such a dispute is raised before or is brought to the notice of the Registrar, he should refer the same for adjudication to the Prescribed Authority and he cannot claim to decide that dispute himself.

        It cannot be said that in view of Section 4 of the Act, the Registrar derives jurisdiction to determine the aforesaid dispute. In the first place, the dispute has not arisen in the context of the submissions of the annual list of managing body, which is required to be filed under Section 4(1). Secondly, the power of the Registrar to decide objections filed under the proviso to Section 4(1) must be held to operate in a field not covered by Section 25 of the Act. Under the proviso to Section 4(1), the Registrar deals only such matters as may arise in the context of the submission of the annual list of the managing body. Further in the present case not the election of the managing body but the election of the office-bearers of the society was in dispute. In any case, in so far as the disputes relating to the election of the office-bearers of society registered in Uttar Pradesh is concerned, the same has also to be decided only in the manner prescribed under Section 25(1) of the principle that  "special excludes the general." This is the only way in which the proviso to Section 4 can be harmonized with Section 25. Consequently if a dispute of the nature covered by Section 25 is raised before the Registrar in connection with submission of the annual list under Section 4(1) of the Act the same must, in view of the Legislative mandate embodied in Section 25(1), be referred by him to the Prescribed Authority."

The counsel for the petitioner has further relied upon the case of Obaidur Rahman Vs. Assistant Registrar, Firms Societies and Chits, Gorakhpur and another, 2004(2) ESC (All)-832 in which it has been held that-

          " Registar has no power to decide election disputes and has to refer the same to Prescribed Authority under Section 25. Registrar either under Section 4-B or Section 12-D had no jurisdiction to set aside election after it had been registered. The impugned order of Assistant Registrar is liable to be set aside being without jurisdiction."

The counsel for the respondents submits that there is no illegality or infirmity in the impugned order dated 25.10.2005, hence no interference is required by this Court under Article 226 of the Constitution of India.

After giving my thoughts to the arguments of the parties and on perusal of record I am of the opinion that the dispute of membership of election involved in this case requires adjudication by oral and documentary evidence and it is not feasible for this Court under Article 226 of the Constitution to record evidence in every case requiring disputed questions of fact. It should be decided by reference before the Prescribed Authority, the petitioner also may approach the Civil Court by filing civil suit or election petition. The same view has been taken by the Court in 1993) 2 UPLBEC 1333, Basant Prasad Srivastava and others Vs. State of U.P. and others in which it has been held that in cases of educational institution where election/finalization of election process of Committee of Management is challenged by means of writ petition under Article 226 it would not be maintainable as 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."

           

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).

I am also supported in my view by a 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 aforesaid cases have 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 the Regional Level Committee cannot exercise judicial or quasi-judicial function until it is specifically directed by the High Court or Hon'ble Supreme Court in a given case. Even if any of the parties are not satisfied, then in that case remedy is not before the High Court in writ petition under Article 226 of the Constitution, but before the Civil Court by means of suit as disputed questions of facts can only be decided by the Civil Court after documentary and oral evidence is adduced.

Since questions of facts have been raised in the grounds in this writ petition, hence in view of para 11 of the judgment of the Hon'ble Supreme Court in 2006 (109) FLR 223, Himmat Singh Vs. State of Haryana and others, the writ petition is not maintainable. In paragraph 11 it has been held that only question of law can be raised and not statement of fact and it was 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. The High Court arrived at finding of fact on the basis of affidavit evidence."

In the circumstances 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.

For the reasons stated above, without entering into disputed questions of facts, the petition is dismissed on the ground of alternative remedy.

Dated 2.5.2006

CPP/-

 


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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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