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MAMAGEMENT AK COLLEGE versus STATE OF UP AND OTHERS

High Court of Judicature at Allahabad

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Mamagement AK College v. State of UP and others - WRIT - A No. 51047 of 1999 [2000] RD-AH 2 (10 January 2000)

 

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

?IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD

+Civil Misc Writ Petition no 51047 of 1999  

#Management AK College

...  Petitioner

Versus

$State of UP and others    

... Respondent

!Advocates for Petitioner

Pramod Jain

^Advocate for Respondent

PK Singhal

*Coram

Hon'ble Yatindra Singh, J.

%Date of Judgment 10.1.2000

:Judgment

1. When does the term of a committee of management of a society or of a degree college begin? Does a committee of management of a degree college become defunct after expiry of its term? Can a Vice-chancellor refuse to extend the recognition of a committee of management of a degree college on the ground that its term has expired? These are some of the questions, involved in this writ petition. In addition, it is recommended that statutory statement of the grounds on which judicial review may lie be enacted/ circulated (heading FEW REMARKS - RECOMMENDATIONS Paragraphs 48-51 of this Judgement). Here are the facts.

FACTS

2. There is a society known as Adarsh Krishna Mahavidyalaya Prabandh Samiti (the AK Society). It is a registered society and runs a postgraduate degree college by the name of AK College, Shikohabad, district Firozabad (the AK College). It is affiliated to the Bhimrao Ambedakar University, Agra (the Agra University). An undisputed election to its committee of management (Governing body) was held in the year 1980. A dispute arose when elections were held in 1984. The Vice-chancellor in 1986 directed that fresh election in supervision of the District Inspector of schools (DIOS) be held and in the meantime the principal of the AK College may look after its affairs. However no elections, as directed by the Vice chancellor, were held and the principal continued to manage the college. The general body of the society held fresh elections on 4.9.1994 in which one Sri Mahavir Singh and Sri RP Yadav were elected President and Secretary respectively.

3. The committee of management (the petitioner) took charge of the AK Society and filed an application on 6.1.1995 before the Vice-chancellor for recognition. The Vice-chancellor by his order dated 24.4.1995 (Annexure-3 to the writ petition) granted approval to the committee of management. It was approved till 6.8.1996 (Annexure-4 to the writ petition) presumably for the reason that the AK Society was registered till 6.8.1996 under the Societies Registration Act. The principal of the AK College handed over charge to the petitioner on 6.5.1995.

4. The registration of the AK Society was renewed for five years from 7.8.1996. It will expire on 6.8.2001. The petitioner filed an application dated 9.8.1996 before the Vice-chancellor (Annexure-7 to the writ petition) with following information:

The petitioner was elected on 4.9.1994 for five years. It was valid till 3.9.1999.

The AK Society was earlier registered till 6.8.1996 and so the petitioner was granted recognition till 6.8.1996.

The registration of the AK Society has been renewed till 6.8.2001.

It was requested that the Petitioner might be recognised for five years or till new committee of management is elected.

5. The Vice-chancellor by his letter dated 24.10.1996 granted approval till 3.9.1999 (Annexure-8 to the writ petition). No reasons were indicated in this letter but it was on the ground that according to the petitioner itself, it was valid till 3.9.1999. The petitioner's request was partly turned down. It did not do anything immediately and let it pass for time being.

6. The petitioner filed an application on 20.7.1999 (Annexure-9 to the writ petition) before the Vice Chancellor for extending its recognition on the ground that:

the charge was handed over to it on 6.5.1995;

it is entitled to manage the AK College for 5 years; and

it is entitled for recognition till 5.5.2000.

The Vice-chancellor did not agree. He by his order-dated 2.9.1999 suspended the committee of management of the AK College (the petitioner) on the grounds that:

the term of the petitioner is ending on 3.9.1999; and

the petitioner has not conducted elections within time.

He also appointed the District Magistrate as an administrator of the AK College to hold elections within three months.

7. This order of the Vice-chancellor was challenged by means of a writ petition No. 38847 of 1999 (the earlier writ petition). This court allowed it on 13.9.1999 (the earlier order of the High Court) as no opportunity was afforded to the petitioner; liberty was granted to the Vice-chancellor to proceed afresh after affording opportunity to the petitioner. The petitioner was asked to appear before the Vice-chancellor on 23.9.1999 and reply the grounds mentioned in the Vice-chancellor's earlier order. The Court further gave liberty to the Vice-chancellor to include any other charge or ground, if any, but a written notice was required to be given in that regard.1

8. The Vice-chancellor did not give notice of any fresh grounds. He considered the representation of the petitioner and made a recommendation to the State Government for appointment of an administrator (Annexure-14 to the writ petition) on the following findings.

The application of the petitioner dated 20.07.1999 for extension of recognition till 5.5.2000 was unreasonable and no further extension can be granted.

The term of the petitioner commenced from the date of the election and not from the date on which it was recognised or the management of the AK College was handed over to it.

The petitioner has failed to hold the elections within its term.

There is some dispute of membership in the parent body of the AK College namely the AK Society.

The vice-chancellor also offered his explanation for his earlier order that it was passed under section 13(6) of the Act. However, as it was set aside by the High Court, he recommended that an authorised Controller be appointed for conducting the elections.2

9. During pendency of the previously mentioned proceedings, the Director of Education passed an order for single operation of the accounts on 14th of October 1999 (Annexure SA-1) without affording any opportunity to the petitioner. It was on the ground that Vice-chancellor had dissolved the committee of management due to management dispute. He was unaware of the fact that the order of the Vice-chancellor had already been quashed. The DIOS by his letter dated 27.10.1999 communicated the order of the Director to the petitioner. The petitioner has filed this writ petition challenging

(i)the findings in the order/recommendation of the Vice-chancellor dated 16.11.1999;

(i)the Director's order dated 14.10.1999 for single operation3; and

(i)its communications by the DIOS dated 27.10.1999.

POINTS FOR DETERMINATION

10. I have heard Sri Ashok Khare counsel for the petitioner, standing counsel for the State, Sri Pankaj Mittal for the Agra University, and Sri PS Baghel for the private persons seeking impleadment4. Following points, arise for determination:

(i)The petitioner has challenged three orders. Is one writ petition maintainable? Should the petitioner be asked to approach the Chancellor under section 68 of the UP State University Act?

(i)The college is governed by a society. Is the governing body of the society different from the governing body of the college? Are their different office bearers and different elections for them? Is position prevailing among the degree colleges similar to the Intermediate Colleges under the UP Intermediate Education Act?

(i)What is the term of the committee of management? When did it begin? Is it continuing or has it ended?

(i)If the term of the committee of management has come to end, then has it become defunct?

(i)Was the Vice-chancellor right in not extending the recognition of the committee of management?

(i)Is the order for single operation of the accounts by the Director legal?

(i)If the term of the committee of management has come to end, then who should hold the elections? What should be done in the circumstances of the case?

IST POINT: ONE WRIT PETITION IS MAINTAINABLE. IT SHOULD BE DECIDED ON MERITS

11. The petitioner is not able to run his AK College. This is because of the following orders.

There is composite order of the vice-chancellor rejecting his application for extension of recognition and recommending to the State Government that authorised controller be appointed under section 58(2) of the UP State University Act.

The order of the Director for single operation of the Accounts, which is based on the order of the Vice-chancellor and its communication by the DIOS.

12. The previously mentioned orders, passed by different authorities, are inter-connected. It is proper that one writ petition is filed. Apart from it, the effect of these orders is that the petitioner is deprived of managing the AK College. Same questions of law based on the same facts are involved. One writ petition is competent and proper.  

13. There is no alternative remedy against the order of the single operation of the accounts. The order of the Vice-chancellor is composite. It rejected the application of the petitioner and recommended to the state government for appointment of an Administrator after recording certain findings. A representation under section 68 to the State University Act may be filed against the order rejecting the application, but no reference is maintainable against his recommendations recording findings against the petitioner. There is no alternative remedy for the entire grievance. Apart from it, no factual controversy is involved and facts are admitted: the contesting respondents have not chosen to file any counter affidavit. Same question of law on the basis of same facts are to be argued and when one writ petition is proper, then there is no justification to dismiss this writ petition on the ground of alternative remedy.

IIND POINT: THERE IS ONLY ONE COMMITTEE OF MANAGEMNT

There is difference between governing body of an Intermediate College and a Degree College.

14. The Societies Registration Act governs the law relating to the societies. A society has to follow the provisions contained therein. Seven or more persons can form a society for any literary, scientific or charitable or any purpose described under section 20 of the Act. They have to subscribe their names to a memorandum of Association and file it with the Registrar (section 1 of the Society Registration Act). The memorandum of associations, among the other things, includes objects, and the rules of the society (section 2 of the Societies Registration Act). The rules of a society amongst the others provide for the office bearers, and its election etc.

15. A society can be registered for many purposes: education is one of them. A society can be registered for setting up an educational institution at the basic, intermediate or at higher education level. A society setting up an educational institution has to conform to the Societies Registration Act as well as different Acts governing different levels of education. The UP State Universities Act 1977 (the State University Act), the UP Intermediate Education Act 1921 (Intermediate Education Act), and the UP Basic Education Act 1972, deal with the three different levels of education. I will discuss in some detail about the State Universities Act and the Intermediate Education Act.5

16. The State University Act deals with the different universities of the State and provides for framing of statues, ordinances and bylaws. An undergraduate or a postgraduate degree college may be affiliated to a university. A society setting up such a college has to accord with the State University Act, and the Statutes framed there under. Similarly, a society running an Intermediate college has to accord not only with the Act but also with the Intermediate Education Act and the regulations framed there under. There is difference between the Intermediate Education Act and the State University Act. This has material bearing in the governing bodies (committees of management) at intermediate and degree level colleges.

17. The Intermediate Education Act provides that every college must have its own scheme of administration. This scheme of administration under the Intermediate Act

should be separate if a society wishes to run more than one college (Section 16-A);

has to be approved and no amendment is permitted unless the Director permits it (Section 16-B and 16-C);

must accord and provide for things mentioned in the third schedule of the Intermediate Education Act;

should also contain necessary information mentioned in part-II of chapter-I of the Regulations framed under the Intermediate Education Act.

18. The State Government had also circulated a model scheme of administration in 1984 and different societies were to broadly accept it; most of them have done so. This model scheme of administration amongst the other things provided.

the term of the committee of management;

committee to become defunct one month after its term; and

appointment of Prabandh Sanchalak (authorised controller) one month after expiry of the term for holding of elections.

detailed procedure for holding elections;

The new schemes of administration after 1984 are accepted only on this model. Almost all schemes of Administration for different Intermediate Colleges in the State under Intermediate Education Act are broadly in accordance with this model scheme.

19. The Intermediate Education Act, in short, provides detailed provisions for a scheme of administration. This scheme of administration is different than rules of a society. Governing body (committee of Management) of an Intermediate College is governed by the Intermediate Education Act and the scheme of administration: whereas governing body (committee of management) of a society running an Intermediate college is governed by the Societies Registration Act and the rules of that society. At the Intermediate level, there are often two different governing bodies (committees of management): one for the society, and the other for the Intermediate College. These two bodies are governed by different Acts, different provisions: They are different, having different elections. However, this is not so, as far as the degree colleges are concerned.

20. The State University Act or the Statutes or the Regulations framed there under do not contain as detailed procedure as in the Intermediate Education Act. There is no separate scheme of administration. Normally the college is governed by the rules of the society. The governing body (committee of management) of a society is also the governing body (committee of management) of the college. The Societies Registration Act or the rules of the society govern the elections to its governing body (Committee of management).

21. In the present case, we are dealing with the Agra University. The relevant provisions regarding committee of management are dealt in statute 12.056 of the Agra University. It provides that the principal of the college shall be ex-officio member of the committee of management, and twenty five per cent of members of management will be teachers of the college. It places restrictions that members of management will not be related to each other, and its constitution will not be changed without prior permission of the Vice-chancellor. Rules of every society including the present one conform to these provisions. The addition these ex-officio members, or placing restrictions, does not mean that there are two different governing bodies (committee of management): one for the society and another for the college, or there are separate elections. There is only one set of elections. The office bearers are one. The governing body (committee of management) of a society and the college (run by that society) is elected under the rules of the society. The effect of Statute 12.05 is only this that there are few other ex-officio members. This difference, between an Intermediate College and a Degree College has material bearing so far as the term and other consequences relating to their committees of management are concerned.

22. In the present case following facts are admitted.

(i)There is no separate scheme of administration for the AK College.

(i)The committee of management of the AK Society and the AK College is the same.

(i)The rules of the society conform to the Statute 12.05 of the Agra University.

The paragraph 1 of the writ petition asserts it and the contesting respondents have chosen not to file any counter affidavit. It is on this basis that, there is one committee of management for both of them, rest of the points in this writ petition may be considered.

IIIrd POINT: THE TERM BEGAN FROM THE DATE OF TAKING CHARGE OF THE SOCIETY (i.e. 4.9.1994)

23. Sri Ashok Khare, counsel for the petitioner cited few decisions7 to show that if a committee of management was not permitted to assume charge without its fault, then the term of the committee of management starts from the date of assumption of the charge and not from the date of elections. According to him this might happen because of a stay order of an authority, or a court, or there could be any other similar reason. He further submitted that in the present case because the Principal of the college (who was managing the college in pursuance of the order of the Vice-chancellor) handed over charge on 6.5.1999 the period should begin from this date.

24. Sri PS Baghel and Sri Pankaj Mittal, counsels for the contesting respondents cited few decisions8 to show the term of the committee of management started from the date of elections. According to them

(i)the date of attestation of signatures by the relevant authority; or

(i)the date of recognition; or

(i)the date of assuming charge;

is irrelevant. They further submitted that if a committee of management did not function for sometime, then it cannot be said that its term did not start. Let's consider on what date the term started. But first, few words about the rulings cited at the bar.  

25. Two decisions cited at the Bar (mentioned in the footnote 7) are under the provisions of the UP Co-operative Societies Act. They were decided on the wordings of the Co-operative Societies Act and the rules framed there under. The elections in rest of the decisions (mentioned in the footnote 7 and 8) were for the Intermediate Colleges that were under different provisions, than the elections of a governing body of a society or a degree college. The Intermediate Education Act and the Scheme of Administration governed the elections in these cases (IInd Point Paragraphs 14-21). These decisions cited at the Bar, turn upon the provisions of Intermediate Education Act and the Scheme of Administration framed therein. There is some difference in enunciation of law in these rulings as the scheme of administration was different in different decisions. However, let's us find out principle behind these decisions.

26. A common thread, in the decisions cited at the Bar (mentioned in the footnote 7 and 8), is that the term of committee of management is governed by the Act and the rules that are applicable for the elections. I am not referring to the rulings in detail in this judgement: they were relevant only to the extent of finding this thread. If we stitch the facts of this case with this thread then the provisions of the Societies Registration Act and the rules of the AK Societies should govern the term of its committee of management (the petitioner here). Let's consider when the term of the present committee of management started in accordance with the Societies Registration Act and the rules of the AK Society.

27. The rules of the AK Society (Annexure-1 to the writ petition) amongst the others provide the following:

(i)The categories of members.

(i)Meetings to be called by them.

(i)The general body of the AK Society to elect the committee of management.

(i)The period of the committee of management to be 5 years.

28. When does this period of five years start? Is it from the date of--

(i)elections, or

(i)taking charge of the society, or

(i)approval granted by the Vice chancellor, or

(i)getting charge of the college?

29. The term of a Governing body (committee of management) of a society starts from the date when it gets charge of that society. In a society, if elections take place before expiry of period, then its committee of management may get charge of the society after the term of the earlier one is over or on the same day and in any other case on the same day. It varies form case to case.  The Societies Registration Act governs the AK Society. The term of the petitioner is of five years. It should start from the day the petitioner took charge of the AK society. Let's see on what date the petitioner got charge of the AK Society.

30. There were admitted elections in the year 1980. Fresh elections were held in 1984 but were disputed and the committee of management was de-recognised by the Vice-chancellor. It appears that some other elections were held but were disputed. The last approved elections were held on 4.9.1994 and the petitioner took charge of the AK Society on that date. There was no prohibition for the petitioner for not taking charge of the AK Society. The petitioner moved an application on 6.1.1995 for its recognition. It was recognised by the Vice chancellor on 24.4.1995. If the petitioner was given charge of the AK College on 6.5.1995, then it does not mean that the petitioner did not take charge of the AK Society on 4.9.1994. It took charge of the AK Society on the date of the election and its term under the Societies Registration Act and rules of the society is five years. It expired on 3.9.1999.

31. The aforementioned fact is also admitted to the petitioner. This is clear from the letter of the petitioner-dated 9.8.1996 (Annexure-7 to the writ petition) where the petitioner had mentioned that the elections were held on 4.9.1995 for five years and were valid till 3.9.1999. If the committee of management of the AK Society is the same as the committee of management of the AK College, then the term of the committee of management of the AK College cannot be different than the term of the committee of management of the AK Society. It has to be the same for both of them. The term of the committee of management expired on 3.9.1999 for the AK Society: it also expired for the AK College on that day. Nevertheless, does it mean that the petitioner has become defunct after 3.9.1999?

IVTH POINT: COMMITTEE OF MANAGEMENT OF A SOCIETY CONTINUES AFTER ITS TERM  

32. The term of the petitioner was 5 years. It began from 4.9.1994 and expired on 3.9.1999. This does not mean that after 3.9.1999 the petitioner has become defunct. The decisions cited by the contesting respondents (in footnote 8) to show that a committee of management cannot function after expiry of its period, are under the Intermediate Education Act. They turn upon the peculiar wordings of the scheme of administration that normally so provides. The scheme of administration under the Intermediate Education Act also provides for appointment of an administrator (Prabandh Sanchalak), one month after completion of the term of a committee of management. This does not mean that the committee of management governing a society or a degree college under different provisions will also become defunct or an administrator can be appointed.

Vice Chancellor - No Power to Appoint an Authorised Controller

33. There is no provision in the Societies Registration Act or the rules of the AK Society under which an administrator (authorised controller or Prabandh Sanchalak) can be appointed. A full bench9 of our court has held that:

A vice-chancellor has no power to supersede the management under section 13(6) of the State University Act.

Only the State Government can appoint an Authorised controller under section 58(2) of the State University Act.

The authorised controller can be appointed on the grounds mentioned in section 57 of the State University Act.

The reasons offered by the Vice Chancellor to justify his earlier order are incorrect. He had no power to appoint an authorised controller.

Section 57 - No Authorised Controller If Only Term Has Expired

34. Section 5710 of the State Universities Act provides grounds for appointment of an authorised controller by the State Government. There are five conditions when an authorised controller may be appointed, but the fact that the term of the committee of management has expired is not one of them. The counsels for the contesting respondents pointed out section 57(iii) of the State Universities Act, but it applies if there is any dispute regarding office bearers of its management, affecting the smooth and orderly administration of a college. It does not apply if the term of a committee of management has expired. There is nothing on record to show that there is any dispute regarding office bearers in the committee of management of the AK College. The Vice Chancellor has mentioned that there is some dispute regarding membership in the parent body. Nevertheless, it was without any notice to the petitioner although the Vice-chancellor was required to give notice of this fact in writing by the earlier order of this Court and it is not for him, but for the State Government, to consider.

35. No provision has been brought to my notice for appointment of an authorised controller or Prabandh Sanchalak or for suspending a committee of managementin a society or a degree collegemerely for the reason that the term of the committee of management has expired and no fresh elections are held. Still, should this interpretation be accepted that a committee of management becomes defunct after expiry of its term? Such an interpretation will lead to a vacuum. A society works through its committee of management. It will not be able to function and will become rudderless. Such interpretation will not only be impractical but unreasonable. A committee of management does not become defunct merely for the reason that its term has expired. The petitioner has not become defunct on 3.9.1999. It will continue till new committee of management takes charge of the AK society. However, this does not mean that office bearers can continue indefinitely. I will come back to this aspect again (paragraphs 40, 45 to 47).

VTH POINT: THE APPLICATION TO EXTENT THE RECOGNITION WAS WRONGLY REJECTED.

36. The counsels for the contesting respondents referred to section 2(13)11 of the State Universities Act and submitted that:

(I)The management means the one recognised by the University.

(II)The University has discretion to recognise a committee of management.

(III)The Vice Chancellor has exercised his discretion by refusing to recognise the petitioner after 3.9.1999 and dismissed the application to extend recognition.

(IV)The exercise of discretion by the Vice Chancellor cannot be questioned.

Is exercise of discretion by the Vice chancellor immune from attack? Is it final?

37. It is true that section 2(13) of the State University Act confers discretion to the University. The Vice-chancellor has discretion in the matter but not the finality. The exercise of his discretion is neither arbitrary, nor fanciful. It is relevant to the scope, content and purpose of the subject matternamely recognition under the State Universities Act. A hundred years ago, Lord Hallsbury12 said,

When something is required to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice and not according to private opinion … according to law and not humour.

Fifty years later, Justice Douglas13 added,

Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler, some official, some bureaucrat. Absolute discretion is ruthless master. It is more destructive of man's freedom than any of man's other invention.

How can I stop the lawfrom reaching its finer moments, finding her pedestal. After all I am only a Judge, an arbiterin her fold, a speck in her great strides.

38. A decision-maker, while exercising discretion, has to take into account relevant factors and shun irrelevant ones. An Act may itself state what are relevant factors and irrelevant factors. If they are not indicated, they must be determined by implication from the subject matter, scope, and purpose of that Act. In the present case the relevant factors are:

Whether the society is registered or not.

Whether a society is capable of providing necessary facilities for higher education.

Whether there is any one to manage the society.

Whether there is any dispute in the committee of management.

These factors are not exhaustive but are indicative. There may be other factors.

39. The Agra University had initially granted recognition to the petitioner on 6.8.1996. This was extended till 3.9.1999 on 24.10.1996. It is true that the petitioner did not immediately do anything against the same. However, the petitioner filed an application for extension of the approval on 20.7.1999 before the end of expiry of its recognition. The Vice-chancellor rejected it on the ground that the term of the petitioner has expired. This was irrelevant.

40. The Vice-chancellor was unduly worried about holding of fresh elections. This is within the domain of the AK Society or the Societies Registration Act. This Act takes into account such exigencies and provides solutions for the same. If the elections are not held in time, then the Registrar may

(I)call a meeting for elections (Section 25(2));

(II)investigate the affairs of a society and give directions to a society for removing the defects;

(III)proceed for de-registration or dissolution on society's failure to remove the defects., (Section 24).

There is no material to assume that the Registrar will not perform its statutory duties.

41.  The AK Society is still a registered society; its registration is valid till 6.8.2001. The petitioner has not become defunct: it is entitled to function till new committee is elected or it is suspended under the law. The Vice-chancellor did say that there was some dispute about the membership of the parent body, but no notice was given to the petitioner, despite such permission being granted in the earlier order of the High Court. There was no justification to reject the application of the petitioners for extension of its recognition. In the facts and circumstances of the case, the Vice-chancellor ought to have extended its approval. This may be time bound but the rejection of the application was wrong.

VITH POINT: THE ORDER OF SINGLE OPERATION IS ILLEGAL.

42. The Director had passed an order for single operation of the accounts on 14.10.1999 on the ground that the management of the AK College was suspended by the Vice chancellor on the ground that there was dispute in the management. This was in reference to the order of the Vice-chancellor dated 2.9.1999, which was set aside by this Court on 13.9.1999. Neither this order was in existence, nor there was anything on the record to show that there was any dispute between two rivals of committee of management.

43. The impugned order for single operation of the accounts was passed under section 16-D of the State Universities Act, 1973. The counsels admit that no order for single operation can be passed without affording any opportunity to the committee of management, and no opportunity was given to the petitioner before passing this order. The order of the Director dated 14.10.1999 and the consequential order of the DIOS dated 27.10.1999 are illegal.

44. The counsel for the contesting respondents has cited a decision reported in SBM Vs Vice chancellor14 to show that no opportunity need be given if there is no valid committee of management. This case is not applicable to the facts of the present case. In the present case, I have held that:

(I)The AK Society is still a registered society.

(II)The petitioner has not become defunct. It is still governing the AK College.

(III)The order of the Director is based upon the order of the Vice chancellor dated 2.9.1999 that was set-aside on 13.9.1999 before the Director passed his order.

There was a committee of management and it was necessary for the Director to afford reasonable opportunity to the petitioner.

VIITH POINT: REGISTRAR SHOULD HOLD ELECTIONS

45. The Society Registration Act governs a registered society. Sub-Section (2) of section 2515 of the Societies Registration Act provides that the Registrar may hold elections if they are not held within the time specified in the rules of that society. Sub Section (3) of the section 25 provides that when the Registrar calls for a meeting to hold election then no other persons claiming to be officer bearers can call a meeting to hold election. These sub-sections were enacted in order to prevent the misuse by the office bearers of a society: they may not prolong their life. As pointed out in paragraph 40 of this judgement, the Registrar may also issue directions for removing defects and in appropriate case proceed for de-registration and dissolution. There is no reason to assume that the Registrar will not perform its duties under the Societies Registration Act once he comes to know or is apprised of the facts.

46. It is admitted case here that the last elections were held on 4.9.1994. The term of the committee of management is five years. It should have held Fresh elections by 3.9.1999. Fresh elections have not been held so far. The facts that entitle a Registrar to call for election meeting are present. It is a fit case, where the Registrar or any other officer to whom the powers under section 25(2) are delegated should call for a meeting to hold elections in accordance with law.

47. I am aware that neither the Registrar is a party in the writ petition, nor any such relief is asked for. The Registrar is an officer of the State and I have heard the standing counsel for the State of Uttar Pradesh, a party in the writ petition. This lapse has come to my knowledge and I would be failing in my duty if I do not bring it to the notice of the Registrar, who should proceed in accordance with law.

FEW REMARKS - RECOMMENDATIONS

48. In this case, vice-chancellor had refused to exercise his discretion to extend the recognition of the petitioner on irrelevant considerations. I have set aside his order (5th point paragraphs 35 to 40 of the judgement) but wish to say few words on the generality of the administrative jurisprudence.  

49. Most of the litigation is due to mal-administration.  It is a problem faced by the world over. Different countries, to some extent, have solved these problems by training their executive and statutorily defining administrative procedures.   The US Congress has enacted the Administrative Procedure Act 1946.  Most of the states in USA have enacted laws in the light of the Revised Model State Administrative Procedure Act formulated by the National Conference of Commissioners on the Uniform State laws. The Australian Parliament has enacted a number of Statutes, the most important being the Australian Administrative Decisions (Judicial Review) Act, 1977 (The Australian Act): so is the Barbados Administrative Justice Act, 1980 (the Barbados Act). Similarly, French and Israel Parliament have enacted similar laws.

50. The reason for enacting such law is best stated in the Report of the committee of the JUSTICE - All souls review of Administrative law in the United Kingdom while recommending enactment of similar law in the United Kingdom. The report on page 157 of the book Administrative Justice: Some Necessary Reforms says:

6.33 The lawyer who is expert in administrative law is well aware of the various grounds on which it is possible to challenge the validity of administrative action. But many, perhaps most, lawyers do not deal with administrative law cases in the course of their day-to-day practice and there are many litigants or potential litigants who would be assisted by a clear statement of the grounds of challenge. We believe that it is very important to make the law as clear as possible and to make it accessible and intelligible to ordinary people. Reference is made to two statutes, which have endeavoured to state in simple terms the ground of review. They are the Australian Administrative Decisions (Judicial Review) Act, 1977 (as amended) section 5,16 and the Barbados Administrative Justice Act, 1980, section 4.17 The objection that such a codification measure would freeze the law in a mould and prevent further growth is answered by paragraph (j) of section ''that the decision was otherwise contrary to law'. Moreover, the other grounds are no more than the convenient shorthand labels for established grounds of challenge and the law can continue to develop under such heading. For example, paragraph (a) in the subsection, referring to ''a breach of the rules of natural justice', leaves the court free to develop these rules in accordance with the common law doctrine of precedent. We would, however, deem it prudent in any English version of this statute to add after the quoted words the phrase ''or of the duty to act fairly'. This would eliminate barren discussion as to whether the duty to act fairly is part and parcel of natural justice or a distinct concept. …

6.34 In our view an enactment along the lines of the Australian legislation … would be beneficial and we recommend its adoption.

51. The Courts have defined the limits to judicial review of administrative actions in their various decisions. The Australian High Court, in Minister for Aboriginal affairs Vs Peko-Wallsentt Ltd., while invalidating the decision of a Minister18 said:

The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in section 5(2) (b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant consideration, it has been discussed in a number of decided cases, which have established the following prepositions. (Italics mine)

The Australian High court in this case stated different propositions after summarising the case law. I have omitted these, as it is not necessary. But section 5 of the Australian Act or section 4 of the Barbados Act lay down in clear terms the grounds on which the courts have been invalidating administrative decisions. Clearly defined statutory provisions are better: they simplify problems, save time, and benefit all. Perhaps we could do the same. Even restatement of the law, as is done by the American law Institute19 is a good idea. This will benefit all.

CONCLUSIONS

52. The term of a committee of management of a society starts from the date that it takes charge of the society. It does not become defunct after its term expires. It continues until the new committee of management takes over. In the present case, the Committee of management (the petitioner) had taken charge of the AK Society on 4.9.94. Its term came to end on 3.9.1999 but it continues until new elections are held.

53. The Vice Chancellor had wrongly rejected the application of the committee of management (the petitioner) for extension of recognition. The order of the Vice chancellor dated 16.11.1999 is quashed. He should reconsider it in accordance with law. The petitioner will be entitled to manage the college until the matter is reconsidered by the Vice Chancellor. However, it will be open to State Government to proceed for appointment of an authorised controller in accordance with law.

54. The order of the Director dated 16.11.1999 and that of the DIOS dated 27.10.1999 for single operation of the accounts is illegal and is quashed. The respondents will be at liberty to proceed for single operations of the accounts in accordance with law.

55. The term of the committee of management (the petitioner) of the AK Society has expired. It is a fit case, where the Registrar under the Society Registration Act or the officer to whom the powers under section 25(2) are delegated should take suitable action for holding fresh election in accordance with law.

The writ petition is allowed with the previously mentioned observations. The parties will bear their costs.

Date: 10.1.2000

SKS

1.Let a copy of this judgement be sent to following five persons for considering the matter mentioned in the heading ''FEW REMARKS - RECOMMENDATIONS' (paragraphs 48 to 51 of this judgement.

(i)The Chairman, Law Commission of India ''A' wing Shastry Bhawan, New Delhi.

(i)The Chairman, State Law Commission Gomti Nagar, Lucknow.

(i)The Secretary Ministry of Law Justice and Company Affairs, Government of India, New Delhi

(i)The Secretary (Legislation) Government of Uttar Pradesh, Lucknow.

(i)The Legal Remembrancer Government of Uttar Pradesh Lucknow

2.Let a copy of this judgement may be sent to the Registrar, Societies Chit and Funds, UP, Lucknow for information and necessary action (VIIth Point: REGISTRAR SHOULD HOLD ELECTIONS Paragraphs 45 to 47 of this judgement).


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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