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Achin Jain And Others v. Assistant Registrar Firms Socieities & Chits U.P. Moradabad - WRIT - C No. 22682 of 2006 [2006] RD-AH 8380 (26 April 2006)


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Court No. 7

Civil Misc. Writ Petition No. 22682 of 2006

Achin Jain and others


Assistant Registrar Firms Societies and Chits, U.P. Moradabad and others

Hon. Rakesh Tiwari, J.

The case of the petitioner is that Dhampur Mahila Shiksha Sabha Dhampur Bijnor was registered as Society, which has been renewed from time to time and the petitioners are life members having deposited their membership fee in the year December 2001 and December 2002.

According to the petitioner the list of the members of the General Body of 363 members was approved by Assistant Registrar Firms Societies and Chits, U.P. Moradabad, but it did not contain the names of 37 members including the 4 petitioners.

It is also alleged that the name of 111 members has been illegally included in the name who were neither members nor their membership fee was deposited. The inclusion of the names of 111 members is already challenged by one Shri Kanta Prasad in Civil Misc. Writ Petition No. 75062 of 2005, which is pending.

Admittedly an election programme was published by B.D.O., respondent No. 2 fixing 28.2.2006 for receiving nomination papers and 1.3.2006 for deposit of nomination, for scrutiny and withdrawal. The election was scheduled to be held on 4.3.2006.

The petitioners have come up in the writ petition on the ground that an election was fictitiously shown to have been held on 1.3.2006, which has been challenged by one Sunil Kumar before the Prescribed Authority/Sub Divisional Officer, Dhampur, District Bijnor, respondent No.4. The Prescribed Authority has granted interim order in proceeding under Section 25 of the Societies Registration Act.

The grievance of the petitioners is that they came to know that the respondents are going to hold fresh election of Saubhagayawati Bai Dani Mahavidhalaya, which is another Society in which the members are common as the parental body of the aforesaid society is Mahila Shiksha Sabha, Dhampur, Bijnor, hence, the petitioners moved representation before the respondent No. 1 for including their name in the list of members, which has not been decided. It is also the grievance of the petitioners is that the election dated 1.3.2006 has been cancelled and now the election are scheduled to have been held on 1.5.2006.

Admittedly the facts and circumstances of the case is that election process has already started. The Court is not inclined to interfere in the matter. The petitioners may get their grievance settled by way of a suit through Civil Court or by filing election petition, in case he is aggrieved by the election.

Section 25 of the Societies Registration Act provides as under:-

"The prescribed authority may, on a reference made to it by the Registrar or by at least one-fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office-bearer of such society, and may pass such orders in respect thereof as it deems fit;

Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied-

(a) that any corruption practice has been committed by such office-bearer; or

(b) that the nomination of any candidate has been improperly rejected; or

(c) that the result of the election insofar it concerns such office-bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with the provisions of any rules of the society."

I am supported in my view by judgment of this 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 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."

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. Though the basis of the G.O. has been upheld in Special Appeal No. 1394 of 2004 the constitution of Regional Level Committee is only that of a recommendatory body and it has no authority or jurisdiction to decide the disputes of Committee of Management under the Government Order dated 19.12.2000, for a Government Order cannot override or replace the provision of law i.e. Section 16-A (7) of the U.P. Intermediate Education Act, 1971. Therefore it cannot exercise powers of Section 16-A (7) which are quasi judicial and are to be exercised only by the Authority specified.

The Hon'ble Supreme Court in 2006 (109) FLR 223, Himmat Singh Vs. State of Haryana and others in paragraph 11 has 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."

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. It is also not maintainable, as life members cannot file writ petition.

For the reasons stated above, the writ petition is dismissed on the ground of alternative remedy.

Dated: 26.4.2006/T. Sinha.


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