Sudhir Agarwal, J.
1. Both these writ petitions involve similar questions of fact and law and, therefore, as agreed and requested by learned counsel for the parties have been heard together and are being decided by this common judgment.
2. Respective parties are represented by Sri V.M. Zaidi, learned Senior Advocate, Sri S.M.G. Asghar, Sri Utpal Chatterjee and Sri N.L. Pandey, Advocates and learned Standing Counsel.
3. The dispute has a chequered history which is evident from the fact that between the parties there has been more than a dozen of writ petitions in the last more than a decade. To appreciate real bone of contention giving rise to the present writ petitions, it would be appropriate to have a bird eye view of the relevant facts.
4. There is a society named, Church City Junior High School Shiksha Samiti, Sadar, Andarkot Thatherwara, Meerut, District Meerut (hereinafter referred to as "the Society") which was formed in 1997. The initial office bearers of committee of management included Sri Jagat Bihari Saxena as President and Km. J. Jacob as Manager. It was registered with the Deputy Registrar under the provisions of "Societies Registration Act, 1860" (hereinafter referred to as "Act 1860") vide Registration No. 1766 of 1996-97 dated 26.02.1997. A copy of registration certificate is on record as Annexure l to Writ Petition No. 65739 of 2009 (hereinafter referred to as "the first petition"). List of first set of office bearers is also at page 55 (annexed as Annexure 2 to the first writ petition), showing names of the following:
S.N.
Name
Portfolio held
1.
Km. J. Jacob
Manager
2.
Sri J.M. Robinson
Vice President
3.
Sri Jagat Behari Lal Saxena
President
4.
Sri Nobel George
Member
5.
Sri Budh Prakash
Member
6.
Ashok Joshi
Deputy Secretary
7.
Smt. Sushila George
Treasurer
8.
Head Mistress, Church City, Junior High School, Sadar, Meerut
Member
9.
Head Mistress, Church City, Junior High School, Andarkot, Meerut
Member
10.
Head Mistress, Church City, Junior High School, Thatherwara, Meerut
Member
11.
Smt. J. Grey, Principal
Member
5. Copy of bye laws dated 5.7.1997 has also been placed on record as Annexure 3 to the first petition. It is said that Km. J. Jacob, the then Manager of the Society resigned on 10.3.1998. The said resignation was accepted vide management's resolution dated 20.5.1998 and in place of Km. J. Jacob, Smt. S.N. George was nominated as Manager for the remaining period, i.e., 21.5.1998 to 20.5.2002. Signatures of the newly appointed Manager Smt. S.N. George were also countersigned and approved by the District Basic Education Officer, Meerut (hereinafter referred to as "D.B.E.O.") vide order dated 22.5.1998.
6. The real dispute started in 1999 when Sri Jagat Behari Lal Saxena, President of Society allegedly indulged in certain impermissible activities against the interest of society. An emergent meeting was called. A resolution is said to have been passed under the Presidentship of Vice President J.H. Robinson, expelling Sri Jagat Behari Lal Saxena from the post of President of Society, vide a no confidence motion passed against him and authorising Vice President to discharge duties of President of the Society. Copy of resolution dated 22.2.1999 to this effect is annexure 6 to the first writ petition. Sri Jagat Behari Lal Saxena on the contrary, claimed to have called another meeting of Society on 26.2.1999 in which another resolution was allegedly passed expelling Sri J.H. Robinson from the office of Vice President and Smt. S.N. George from the post of Manager.
7. Both the aforesaid resolutions dated 22.2.1999 and 26.2.1999 came to be considered by Deputy Registrar. He vide order dated 29.6.1999 (Annexure 7 to the writ petition) believed resolution dated 22.2.1999 whereby Sri Saxena was removed from the office of President and disbelieved resolution dated 26.2.1999, and, directed to register the names of office bearers of Society under Section 4 of Act 1860 according to resolution dated 22.2.1999.
8. Sri Sri Jagat Behari Lal Saxena assailed order dated 29.6.1999 in writ petition no. 41784 of 1999. It was contended that a dispute relating to continuance in office could have been referred for adjudication by Prescribed Authority under Section 25(1) of Act 1860 and should not have been decided by Deputy Registrar. The Court while entertaining the writ petition granted an interim order on 29.9.1999 staying operation of the order dated 29.6.1999.
9. During pendency of the said matter, D.B.E.O. passed an order of single operation for maintaining accounts on 17.4.2000 (Annexure 9 to first writ petition). The D.B.E.O. also held that in view of Court's interim order dated 29.9.1999 signatures of Smt. Suman Das cannot be countersigned as Manager of Society. He further said, since there is some manipulations in the record also, therefore, for payment of salary, accounts shall be operated singly. Again Sri Saxena assailed D.B.E.O.'s order dated 27.4.2000 in writ petition no. 22104 of 2000. This Court while entertaining writ petition, vide its order dated 10.5.2000 directed parties to maintain status quo.
10. The Deputy Registrar filed counter affidavit in writ petition no. 41784 of 1999 on 16.11.2000 and thereafter by referring to Article 226(3) of Constitution observed that after two weeks of filing of counter affidavit alongwith stay vacation application, the ex parte interim order automatically vacated and therefore, his earlier order dated 29.6.1999 has come into operation and shall operate as such which would be subject to final decision of this Court. Consequently an order was passed by D.B.E.O. on 21.6.2001 (Annexure 12 to first writ petition) in reference to Deputy Registrar's order dated 21.12.2000 countersigning signatures of Smt. S.N. George as Manager.
11. Third writ petition no. 26333 of 2001 came to be considered before this Court wherein Sri Jagat Behari Lal Saxena challenged the order dated 21.12.2000 passed by Deputy Registrar and 21.6.2001 passed by D.B.E.O. Vide order dated 19.7.2001 this Court stayed both the orders.
12. It is not in dispute that the above three writ petitions namely, writ petitions no. 41784 of 1999, 22104 of 2000 and 26333 of 2001 have been dismissed on 27.07.2009 by Hon'ble Dilip Gupta, J. on the statement of learned counsel for the parties that the writ petitions have rendered infructuous by efflux of time.
13. Society's term of five years came to an end in 2002. Smt. S.N. George, acting as Manager of the Committee of Management of Society, and Mr. J.H. Robinson as President, held elections on 24.02.2002 in which both the above two persons were re-elected as President and Manager while other office bearers said to have been elected are:
1. Km. P. Patras Vice-President
2. Sri Neeval George Deputy Secretary
3. Sri Vinay Gill Treasurer
14. The aforesaid election was communicated to Deputy Registrar vide Smt. S.N. George, Manager's letter dated 27.02.2002. Some query was made by Deputy Registrar from D.B.E.O. pursuant whereto, he (D.B.E.O.), informed about some irregularities committed by Sri Jagat Bihari Lal Saxena and requested Deputy Registrar to take appropriate action in the matter. Sri Jagat Bihari Lal Saxena filed writ petition no. 48075 of 2004 claiming that he should be allowed to function as Manager of the Society which he was not allowed since in the meantime he also became accused of a criminal offence under Section 302 IPC and sent to jail. Writ petition, however, was dismissed vide judgement dated 16.12.2004.
15. Sri Saxena claimed that a meeting of Society was held on 25.07.2004 wherein the term of committee of management was resolved to be extended for a period of two years namely upto 26.02.2007 and to this effect, bye-laws were also resolved to be amended conferring power of extension of period of management after five years as per the exigency of circumstances. The Deputy Registrar issued a letter dated 18.02.2005, stating that Society's registration was valid for five years i.e. upto 25.02.2002, hence it has been renewed for a further period from 26.02.2002 vide Deputy Registrar's order dated 10.02.2002 but extension order has been kept in record and shall be released to concerned party after disposal of pending writ petitions.
16. Sri Jagat Bihari Lal Saxena thereafter approached Registrar, Firms Societies and Chits, U.P. Lucknow for issuance of renewal certificate to Society in which he was the President and one Sri Ved Prakash Sharma was elected as Manager in general body meeting held on 31.01.2005, whereupon Registrar passed order dated 31.05.2005 accepting claim of Sri Jagat Bihari Lal Saxena and recognising committee of management said to have been elected on 31.01.2005, directed for issuance of renewal certificate to the aforesaid management. Consequently the DBEO also attested signature of Sri Ved Prakash Sharma as Manager of committee of Management. The order dated 31.05.2005 resulted in Writ Petition No. 48816 of 2005 by Committee of Management through its Manager, Smt. S.N. George wherein no interim order initially was passed but subsequently a composite order was passed on 24.08.2007 alongwith connected Writ Petition No. 45540 of 2006. Suffice it to mention at this stage that Writ Petition No. 48816 of 2005 has now been dismissed as infructuous on 27.07.2009.
17. However, he (Registrar) stayed/deferred operation of his order dated 31.05.2005 vide order dated 03.10.2005. A writ petition no. 66456 of 2005 was filed by Sri Ved Prakash Sharma representing management of Society in his capacity as Manager and challenged order dated 03.10.2005 and consequential order dated 05.10.2005. The said writ petition was allowed vide judgment dated 21.10.2005 (Annexure 20 to the first petition), setting aside both the aforesaid orders and directing Registrar to pass a fresh order after giving opportunity of hearing to all concerned party.
18. Pursuant to judgement dated 21.10.2005 the Registrar, Firms and Societies issued notice to parties, namely, Sri Jagat Bihari Lal Saxena, Sri J.H. Robinson, Sri S.K. Sharma, Sri Ajay Gopal Mashih, Smt. S. Mohan and Smt. S.N. George directing them to appear before him on 22.11.2005 and adduce relevant evidence/ documents in support of their claims. However, even this letter of Registrar came to be challenged before this Court in Writ Petition No. 71919 of 2005 filed on behalf of Committee of Management through its Manager, Sri Ved Prakash Sharma claiming that he has been ignored though he is duly recognised Manager of the Committee of Management and Society and, therefore, action, approach and manner in which the Registrar is proceeding is wholly illegal. The writ petition was entertained by this Court and vide interim order dated 24.11.2005 the order dated 08.11.2005 was stayed. The interim order in aforesaid matter continued but ultimately this writ petition has been dismissed as rendered infructuous on 27.07.2009.
19. The Registrar, Societies however passed an order dated 22.11.2005 for single operation and requested DBEO, Meerut to pass appropriate order in accordance with law. Thereafter the Joint Director of Education, Meerut also issued a similar direction vide letter dated 09.12.2005 and the DBEO consequently passed an order on 12.12.2005 for single operation. These orders came to be challenged by Committee of Management through Sri Ved Prakash Sharma in Writ Petition No. 971 of 2006. This writ petition was disposed of vide judgement dated 24.01.2006 passed by Hon. Shishir Kumar, J. setting aside Registrar's order dated 22.11.2005 and subsequent orders passed in pursuance thereto. However, the Court observed that it would be open to Registrar, Firms and Societies to decide the dispute between petitioners and other interested persons after affording opportunity and personal hearing and by a reasoned order.
20. Due to the Managerial dispute, the School was facing problems and there appears to be some financial irregularities etc. which prompted the Joint Director of Education, Meerut to pass order dated 28.07.2006 appointing an Authorised Controller. This order came to be assailed in Writ Petition No. 42621 of 2006, filed by Committee of Management through Sri Jagat Behari Lal Saxena, President, and, Sri Umesh Chandra Saxena, Manager. This court by an interim order dated 08.08.2006 stayed the order dated 28.07.2006. This writ petition has ultimately been dismissed on 27.07.2009 as infructuous.
21. Another Writ Petition No. 45540 of 2006 simultaneously was filed in the name of Committee of Management represented through Sri Ved Prakash Sharma, Manager challenging order dated 28.07.2006 passed by Joint Director of Education appointing Authorised Controller. This writ petition was also connected with Writ Petition No. 42621 of 2006 vide order dated 23.08.2006 and a composite interim order was passed in both the writ petitions on 25.08.2006. It is worthy to mention here that Writ Petition No. 42621 of 2006 though has been dismissed as infructous by Hon. Dilip Gupta, J. vide order dated 27.07.2009 but probably the connected Writ Petition No. 45540 of 2006 having not been listed alongwith that the same is still pending though learned counsel for the parties at the Bar stated that this writ petition also, for all purposes, has rendered infructous.
22. Then came a recess for about three years so far as fresh litigation before this Court is concerned. It was resurrected in 2009 when this Court saw about half a dozen writ petitions between the parties in respect of Society in question.
23. The Deputy Registrar Societies issued a notice dated 23.04.2009 addressed to Sri Ved Prakash Sharma, Sri Jagat Behari Lal Saxena, Sri Umesh Chandra, Sri Ajay Gupta Mashih, Smt. S. Mohan, Smt. S.N. George, Sri Sanjeev Bhatnagar and Sri S.K. Sharma stating that Sri Ved Prakash Sharma claiming himself to be the Manager of Society has informed about constitution of a new Committee of Management and has submitted a list of office bearers, elected on 15.03.2009. He issued notice to aforesaid parties to present their case so that further action be taken. This notice caused Writ Petition No. 24086 of 2009 filed by Sri Jagat Behari Lal Saxena in his capacity as President of Society challenging the aforesaid notice. This Court held, since it is only a notice, the writ petition is pre-mature and accordingly dismissed the same vide judgment dated 26.05.2009. It, however, permitted the above petitioner to file his version, whereafter the Deputy Registrar was directed to pass speaking order.
24. The Deputy Registrar ultimately passed order dated 26.06.2009 giving recognition to Committee of Management, having been elected on 15.03.2009 in which Sri Ajay Tyagi was elected as President and Sri Ved Prakash Sharma as Manager, and also ordered to issue renewal of registration certificate of Society to the aforesaid Committee of Management. Consequently the DBEO countersigned the signatures of Sri Ved Prakash Sharma as Manager of Society by his letter dated 29/30.06.2009. These two orders were assailed in Writ Petition No. 36514 of 2009 filed on behalf of Committee of Management through Sri Sunil Dutt claiming himself to be the President of Society. Another Writ Petition No. 36543 of 2009 challenging order dated 26.06.2009 was filed by Sri Jagat Behari Lal Saxena in his capacity as President and Sri Umesh Saxena as Manager.
25. Both these writ petitions were heard together by Hon'ble Dilip Gupta, J. and vide judgment dated 04.08.2009 the Court set aside Deputy Registrar's order dated 26.06.2009 as also the consequential order of DBEO dated 29/30.06.2009. The Court directed Deputy Registrar to consider the matter and pass a fresh order in accordance with law.
26. The above facts would show a persistent litigation resulting in almost more than a dozen writ petitions and, therefore, for convenience in the form of a chart their position may be placed below which would help the Court in appreciating the dispute and for adjudication thereof.
Sl. No.
W.P. No.
Order impugned, if any/relief
Date of interim order, if any
Status/date of judgment
1
41784/99
29/06/99
29/09/99
Dismissed as infructuous on 27.07.2009
2
22104/00
27/04/00
10/05/00
Dismissed as infructuous on 27.07.2009
3
26333/01
21/12/00 and 21/06/01
19/07/01
Dismissed as infructuous on 27.07.2009
4
48075/04
To allow the petitioner to function as Manager
. . . . .
Dismissed on 16.12.2004
5
48816/05
31/05/05
24/08/07
Dismissed as infructuous on 27.07.2009
6
66456/05
03/10/05 and 05/10/05
. . . . . .
Allowed on 21.10.2005-orders set aside and Registrar was directed to pass fresh order.
7
71919/05
08/11/05
24/11/05
Dismissed as infructuous on 27.07.2009
8
971/06
22/11/05, 09/12/05 and 21/12/05
. . . . .
Disposed of on 24.01.06-orders were set aside and Registrar was directed to decide the dispute again.
9
42621/06
28/07/06
08/08/06
Dismissed as infructuous on 27.07.2009
10
45540/06
28/07/06
25/08/06
Pending
11
24086/09
23/04/09
. . . . . .
Dismissed on 26.05.2009
12
36514/09
26/06/09 and 29-30/06/09
. . . . .
Allowed on 04.08.2009-orders were quashed and Deputy Registrar is directed to pass fresh order.
13
36543/09
26/06/09
. . . . .
Allowed on 04.08.2009-orders were quashed and Deputy Registrar is directed to pass fresh order.
27. It is pursuant to the judgment dated 04.08.2009, the Deputy Registrar has now passed a detailed order on 01.10.2009 and has again recognised election said to have been held on 15.03.2009 in which Sri Ved Prakash Sharma was elected as Manager and Sri Ajay Tyagi as President. This order dated 01.10.2009 has been challenged in Writ Petition No. 59037 of 2009 (hereinafter referred to as the "second petition") which has been filed by Sri Umesh Saxena, Deputy Manager/Manager of Committee of Management and Sri Jagat Behari Lal Saxena as President.
28. The first writ petition, i.e., Writ Petition No. 65739 of 2009 has also been filed against the same order dated 01.10.2009 by Committee of Management through Sri Sunil Dutt as President of Society.
29. So far as learned counsel for petitioners are concerned, there is a concerted effort that both these writ petitions are liable to be allowed and the order dated 01.10.2009 deserve to be set aside.
30. On the contrary, Sri N.L. Pandey, learned counsel appearing on behalf of respondent no. 5 in second writ petition namely Committee of Management through Sri Ved Prakash Sharma has contended that writ petitions should be dismissed otherwise it is the institution ultimately which is liable to suffer under spate of litigation, caused by various parties, creating a huge confusion, complication, and ultimate obstruction in smooth functioning of institution. It is also giving advantage and opportunity to some of the parties to cause various irregularities, financial and otherwise, in the management of institution.
31. The basic contention advanced on behalf of petitioners in both the writ petitions is, that, the Deputy Registrar did not possess any power to recognise an election and whenever there is such a dispute, he is bound to refer the matter to Prescribed Authority under Section 25 of Act, 1860. The Deputy Registrar assuming onto himself power of recognition of an election, has acted wholly illegally and, therefore, the impugned order is in utter violation of principles of natural justice.
32. Sri Pandey, learned counsel appearing for Committee of Management through Sri Ved Prakash Sharma, on the contrary, submitted that Section 25 has no application in this case and, therefore, the order dated 01.10.2009, impugned in these writ petitions deserves no interference.
33. The only question up for consideration is, whether in the facts and circumstances of the case, Section 25 of Act, 1860 is attracted in this matter, and, whether the Deputy Registrar possesses jurisdiction to pass the impugned order?
34. From the facts discussed above it is manifest that initially, management was presided by Sri Jagat Behari Lal Saxena and the Manager was Km. J. Jacob. This fact is admitted to all the parties.
35. Then the question arose, whether Km. J. Jacob resigned from the management and was replaced by Smt. S.N. George by Management's resolution dated 20.05.1998. I find that even this issue has never been raised or resisted by anyone before any authority. The Management's resolution dated 20.05.1998 has never been subject matter of challenge before any authority or a Court of Law. In this eventuality, the resolution is final and it would result in replacement of Km. J. Jacob by Smt. S.N. George for the balance period of tenure of initial Committee of Management which would have ended on 20.05.2002. It is also not in dispute that signature of Smt. S.N. George was countersigned by DBEO on 22.05.1998 and this order also attained finality. Throughout this period, i.e., upto 22.05.1998, when DBEO attested signature of Smt. S.N. George, Sri Jagat Behari Lal Sexena continued to be the President of Committee of Management of Society and he continued so at last upto 22.02.1999.
36. Now we come to the resolution dated 22.02.1999 whereby Sri Jagat Behari Lal Saxena was removed from the office of President through a no confidence motion and Sri J.H. Robinson, the then Vice President was nominated to take charge of the duties of President of Society. As a counterblast Sri Jagat Behari Lal Saxena claimed that there was another meeting of Society held on 26.02.1999 in which Sri J.H. Robinson was removed from the office of Vice President and Smt. S.N. George from the post of Manager. The dispute caused due to aforesaid two resolutions dated 22.02.1999 and 26.02.1999, came to be considered by Deputy Registrar. He passed an order dated 29.06.1999 upholding removal of Sri Sri Jagat Behari Lal Saxena from the office of President and believed resolution dated 22.02.1999 instead of subsequent resolution dated 26.02.1999 and proceeded to act accordingly.
37. It is no doubt true that this order dated 29.06.1999 passed by Deputy Registrar was stayed by this Court in Writ Petition No. 41784 of 1999 but as a result of dismissal of aforesaid writ petition as infructuous the legal consequence flown therefrom would be that the order dated 29.06.1999 retained its validity since inception. In law it would be deemed to have operated throughout its life having not been set aside by any competent authority or Court of Law.
38. It is well settled that effect of a stay order and the consequences flowing therefrom is that the order under stay may not operate for the time being but that would not result in making the order itself non-est. Whenever such stay order would disappear, the order under stay will move on, having never been made lifeless and dead unless the order disappears as a result of setting aside such order which is not the case herein. The effect of the order of stay is not to make the impugned order nonest but the effect is only that it would not operate till the stay order continues. This aspect has been considered by Apex Court in Shree Chamundi Mopeds Ltd, M/s. Vs. Church of South India Trust Association, Madras. (AIR 1992 SC 1439) wherein it has been held that the stay of operation of an order does not, however, lead to such result i.e., making it nonest but it would only mean that the order which has been stayed would not be operative from the date of the passing of the stay order. It does not mean that the said order has been wiped out from existence.
39. The Court finds that the Deputy Registrar has considered various proceedings, held or remained in animated suspension, due to various interim orders passed by this Court from time to time in different writ petitions but has completely ignored the fact that in none of the writ petitions mentioned above, this Court has adjudicated any issue at any point of time and throughout either only the interim orders were passed which ultimately disappeared with dismissal of writ petitions or final orders were passed by setting aside the orders on the ground of either non-affording of opportunity to person concerned or otherwise lacking jurisdiction, remanding the matter to Deputy Registrar or Registrar to decide the issues. Rights of parties have never been adjudicated by this Court at any point of time.
40. An interim order neither results in creating rights in favour of parties nor would amount to adjudicating the issues. Anything which has taken place pursuant to an interim order or as a result of an interim order, is always subject to final order passed in writ petition, and, where writ petition has been dismissed, its effect is that interim order disappears from its inception as if it was never passed.
41. In Kanoria Chemicals and Industries Ltd. v. U.P. State Electricity Board, AIR 1994 Allahabad 273 this Court has considered the effect of dismissal of writ petition and held:
"After the dismissal of the writ petitions wherein notification dated 21.4.1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of law and lost all its efficacy and the notification became effective from the beginning." (emphasis added)
42. This issue has also been considered by a Division Bench of this Court (in which I was also a member) in Smt. Vijay Rani Vs. Regional Inspectress of Girls Schools, Region-1, Meerut and others, 2007(2) ESC 987 and the Court held as under:
"An interim order passed by the Court merges with the final order and, therefore, the result brought by dismissal of the writ petition is that the interim order becomes non est. A Division Bench of this court in Shyam Lal Vs. State of U.P. AIR 1968 Allahabad 139, while considering the effect of dismissal of writ petition on interim order passed by the court has laid down as under:
"It is well settled that an interim order merges in the final order and does not exist by itself. So the result brought about by an interim order would be non est in the eye of law if the final order grants no relief. The grant of interim relief when the petition was ultimately dismissed could not have the effect to postponing implementation of the order of compulsory retirement. It must in the circumstances take effect as if there was no interim order."
The same principle has been reiterated in the following cases:
(A) AIR 1975 Allahabad 280 Sri Ram Charan Das V. Pyare Lal.
"In Shyam Lal Vs. State of U.P., AIR 1968 All 139 a Bench of this Court has held that orders of stay of injunction are interim orders that merge in final orders passed in the proceedings. The result brought about by the interim order becomes non est in the eye of law in final order grants no relief. In this view of the matter it seems to us that the interim stay became non est and lost all the efficacy, the commissioner having upheld the permission which became effective from the date it was passed."
(B) 1986 (4) LCD 196 Shyam Manohar Shukla V. State of U.P.
"It is settled law that an interim order passed in a case which is ultimately dismissed is to be treated as not having been passed at all (see Shyam Lal V. State of Uttar Pradesh) Lucknow, AIR 1968 Allahabad 139 and Sri Ram Charan Das v. Pyare Lal, AIR 1975 Allahabad 280 (DB)."
(C) AIR 1994 Allahabad 273 Kanoria Chemicals and Industries Ltd. v. U.P. State Electricity Board.
"After the dismissal of the writ petitions wherein notification dated 21.4.1990 was stayed, the result brought about by the interim orders staying the notification, became non est in the eye of law and lost all its efficacy and the notification became effective from the beginning."
43. It is wholly irrelevant that most of the writ petitions were dismissed on the statements made by parties that the same have rendered infructuous. The fact remains that the orders impugned therein were not set aside by this Court. Thus after dismissal of writ petition, without being influenced as to in what manner the writ petitions were dismissed, those order would gain activity and shall live with all consequences as they had on their own strength.
44. The Deputy Registrar has relied on subsequent proceedings relating to renewal of Society, but, the very question, as to who could have held valid election, unless decided, would not give a correct answer to the subsequent situation which has arisen. Such intermediary orders would not change the legal consequences flowing from earlier orders passed by authorities concerned which have remained intact, having not been quashed or set aside by this Court though challenged in writ petitions, but ultimately those writ petitions have been dismissed. This is one aspect which this Court finds has not been considered by Deputy Registrar at all and it vitiates the order in dispute.
45. Therefore, the order dated 29.06.1999 having not been set aside ultimately in law, it shall be deemed to have remained in force throughout for the period it intended to operate and would have its legal consequences. One of such legal consequence would be that Committee of Management would have Sri J.H. Robinson, the then Vice President having authority to discharge the duties of President and Smt. S.N. George as Manager. Sri Saxena ceased to hold office of President w.e.f. 22.02.1999.
46. Having said so the next step would be that fresh election of Committee of Management could have been held by convening a meeting by Manager of Society, i.e., Smt. S.N. George. Any other person claiming to have called a meeting of Society to hold election would be acting illegally and outside his authority.
47. It is said that five years tenure of Society was to expire in May, 2002 and before its expiry election was held by Society in the meeting convened by Smt. S.N. George, the Manager. The said election was held on 24.02.2002 wherein Sri J.H. Robinson was elected President and Smt. S.N. George as Manager. The election setup by Sri Saxena in 2004, therefore, apparently is illegal, unauthorised and without any authority of law.
48. The logical consequence, therefore, would be that the resolution claimed to have been passed by Society in a meeting convened treating Sri Jagat Behari Lal Saxena as President even after 24.02.2002 also would be of no consequence being illegal and unauthorised. Once Sri Saxena was already removed from the office and the said resolution attained finality, unless he is elected again as an office bearer of Society, he had no authority to convene a meeting. The resolution, therefore, relied by Sri Saxena claiming amendment in bye laws is also a nullity and has no legal consequence. The Deputy Registrar/Registrar was bound to look into the matter from this angle but unfortunately he has failed to do so.
49. In the matter of Society governed by bye laws and the matter in which the committee shall function, it is guided by bye laws except the matter which are governed by statute. There is no other way to judge the validity of action of Society except to see whether it is in accordance with bye laws and if specific provisions are provided in the statute to be tested on the anvil thereof. It is not the mere factum that a subsequent election claimed to have been conducted in respect of office bearers of Society by anyone would confer a legal cloth thereon but unless and until the election is shown to have been conducted after convening the meeting of Society by the person(s) competent to do so in accordance with bye laws of Society, such claim of subsequent election cannot be said to possess a legal colour so as to deprive those who otherwise are competent to proceed in the matter. A person incompetent to convene a meeting cannot setup a claim rival to the person who is competent to hold the meeting unless there is a change in the authority of such person in accordance with the procedure prescribed in bye laws or the provisions of statute, if they so provided. It is in this context this Court in Committee of Management, Gramya Vikas Uchattar Madhyamik Vidyalaya Samittee and Anr Vs. State Of U.P. Thru Secy. And Others, Writ Petition No. 19670 of 2012, decided on 24.08.2012 with reference to power of Prescribed Authority under Section 25(1) of Act, 1860 has said:
"In order to appreciate this controversy, prescribed authority in exercise of power under Section 25(1) of the Act of 1860 adjudicating the dispute relating to validity of election has power to ascertain actual number of members to the general body entitled to participate in such election. What the act provides is that in order to find out which is legally constituted managing committee it is necessary to examine that the said committee has been constituted by the legally authorised electoral college. It will have to examine the manner in which voters have been admitted in accordance with the rules and regulation and have paid subscription. While determining the dispute actual strength of the electoral college has to be examined in the context of the rules and bye-laws. If there is no error in certifying the electoral college under the scheme of the Act Prescribed Authority cannot hold a view contrary to that by overlooking this aspect. It is the Assistant Registrar who while exercising power under Section 25 (2) of the Act of 1860 in allowing the election process has power to examine the correctness of the electoral college. This is so because he is required to conduct the election and by implication he has duty cast upon to certify the electoral college on the basis of which election has been held. Prescribed authority's power is only to examine the legality of election and continuance of office bearers which also requires as to whether they have been elected by legally constituted electoral college. If he finds that the said election has not been conducted by legally constituted electoral college he can set aside the election based on such electoral college. Prescribed Authority cannot affirm the electoral college which has not been legally constituted."
". . . . the Prescribed Authority's power to adjudicate on issue is only restricted to the question as to whether the electoral college has been validly constituted or not. It can not certify the electoral college which was not affirmed by the competent authority while examining the validity of the electoral college. It in itself does not give power to certify the electoral college on the basis of his own opinion."
50. The second question is regarding Section 25 of Act, 1860.
51. Though an attempt has been made that there was no rival claim but the Court finds that different parties setup their claim to function as the office bearers of Society. Section 25(1) clearly contemplates a dispute regarding election or continuance in the office of an office bearer of Society is liable to be referred to the Prescribed Authority and it is he alone who has to decide the same. Section 25(1) reads as under:
"25. Dispute regarding election of office-bearers.--(1) 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-bearers 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 corrupt 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 in so far as 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."
52. In Committee of Management, Raja Tej Singh Vidyalaya, Aurandh, District Mainpuri and another Vs. District Inspector of Schools, Mainpur and others, 2000(18) LCD 833 this Court (Hon. Yatindra Singh, J.) considering the scope of Sections 4 and 25 of Act, 1860 said:
" . . . . the word 'doubt' in section 25(1) shows that the prescribed authority has jurisdiction to decide, not only about an the election of an individual candidate, but is also empowered to decide if there are two competing committees of management. If there are two different elections and two different sets of office bearers, even then the prescribed authority can consider their claim. He can look into a dispute in respect of entire elections. If the two factions claim separate elections, they create doubt in the decision of each the other. Such dispute, namely between two competing governing bodies is within the jurisdiction of the Prescribed authority. He has jurisdiction to decide such disputes also under section 25(1) of the Societies Registration Act."
"12. Every society has a governing body (committee of management) entrusted with management of the affairs of the society. This governing body is known by different names in different societies. Section 4 of the Societies Registration Act contemplates that a society has to submit a list of its governing body (committee of management) with the Registrar. Section 4(2) of the Societies Registration Act contemplates that the memorandum of a society including alteration, extension or abridgement of purpose should also be filed along with the list of governing body; it has to be certified by three members. The proviso to section 4(1) of the Societies Registration Act states that in case any member in the list of governing body is different from the last submission of the list (which can happen only if a new election has been held), then old office bearers should also countersign the list. The purpose of section 4 is that the correct list of governing body (committee of management) of a society should be maintained and it may not be disputed. Its Proviso contemplates that in case old office bearers do not countersign the list then the registrar may issue public notice inviting objections and decide the same. What is the purpose of such decision? What is the scope of his jurisdiction?
13. The jurisdiction of the Registrar under the proviso to section 4 of the Societies Registration Act is to see if there is any dispute; whether the dispute is a bonafide dispute or not; whether it is a dispute for the sake of it. But, if there is a dispute, then his jurisdiction ends; the matter has to be referred to the prescribed authority under section 25 of the Societies Registration Act. He cannot in garb of deciding objections decide dispute within the jurisdiction of the Prescribed Authority under section 25 of the Societies Registration Act."
53. In Sri Ram Laxmi Narain Marvadi Hindu Hospital and another Vs. Assistant Registrar, Firm's Societies Chits Varanasi and others, 2000 ACJ 1277 the Court after referring to catena of earlier decisions of this Court, very categorically held, if there is a dispute covered by Section 25 of Act, 1860 the same has to be referred to Prescribed Authority and it is he alone who can decide such a dispute. In para 10 of the judgment this Court said:
"10. . . . . . if a bona fide dispute or doubt with regard to the election of the rival committees of management or the office bearers is raised, in that event the Registrar would keep his hands off and relieve himself by performing statutory duty of making a reference under Section 25 of the Act. Should the Registrar fail to make reference on account of his callousness, obstinacy or on account of his being imbued with a feeling to usurp the jurisdiction of another authority, in that event the legislature has, with a view to guard against such arbitrary action, made a provision that the dispute, apart from the power of reference by the Registrar, may be taken by rival claimants before the Prescribed Authority for decision provided that aggrieved persons are in a position to muster the strength of one fourth of the members of the registered society. If the dispute raised by the petitioners is really bona fide, in that event, there is nothing to prevent them from approaching the Prescribed Authority to decide the dispute between the rival parties."
54. This view has been reiterated in all subsequent authorities and instead of burdening this judgment I may give only reference of such authorities, namely, Padmakar Tripathi Vs. Deputy Director of Education, Vth Region, Varanasi, 2004(56) ALR 659; Committee of Management Adarsh Mahabir Junior High School Samiti, Rampur and another Vs. Assistant Registrar, Firms Societies and Chits, Varanasi Region and others, 2004(2) AWC 1658; Dr. Mohdm Usman Khan and others Vs. The Registrar, Firms, Societies and Chits, U.P., Lucknow and others, 2005(2) UPLBEC 1358; Surendra Kumar Sharma and another Vs. State of U.P. and others, 2005(60) ALR 559; Committee of Management, Dr. Lohiya Madhyamik Vidyalaya, Paraut District Farrukhabad/Kannauj and another Vs. State of U.P. and others, 2008(1) AWC 949; Mehdi-Ul-Hasan Abadi and others Vs. State of U.P. through the Registrar, Firms, Societies and Chits, U.P., Lucknow and others, 2011(88) ALR 400; Laxman Singh and another Vs. State of U.P., through Secretary Secondary Education and others, 2012(2) UPLBEC 1030; and, Akhil Bhartiya Kshatriya Mahasabha, Singramau, Jaunpur and another Vs. Prescribed Authority/Sub-Divisional Magistrate, Badalpur, Jaunpur and others, 2012(90) ALR 815.
55. In the present case from a bare reading of impugned order there is no manner of doubt that the kind of dispute which has been endeavored to be decided by Deputy Registrar could not have been decided by him since it is the Prescribed Authority alone who is empowered in such matters by the statute and it is he alone who could have decided these issues, one or the other way. The order impugned in both these writ petitions, therefore, cannot sustain.
56. In view of above, both the writ petitions are allowed. The impugned orders dated 01.10.2009 and 13.10.2009 are hereby set aside. The Deputy Registrar/Registrar is directed to make an appropriate reference to Prescribed Authority for its decision under Section 25 of Act, 1860 in respect to disputes in question.
57. It is, however, provided that smooth functioning of institution is of utmost importance and individual claim of management cannot override the interest of institution. Therefore, so long as the matter is not decided by Prescribed Authority, the Deputy Registrar shall appoint an Authorised Controller who shall manage the functioning of institution and his appointment shall be subject to final order passed by Prescribed Authority in the matter. The Registrar shall make reference to Prescribed Authority within one month from the date of production of a certified copy of this order and thereafter the Prescribed Authority shall decide the matter within three months from the date of receipt of reference. The parties represented in the matter are directed to cooperate for expeditious disposal of the matter so that almost one and half decades old matter causing spate of litigation may rest in peace for all times to come. It would be in the ultimate interest of Society as also the educational institution in question.
58. There shall be no order as to costs.