A.P. Sahi, J.
1. Heard Sri Rahul Sripat learned Counsel for Ram Prakash Singh the petitioner and Sri Yatindra for Bhedjeet Singh respondent No. 3 as well as learned standing counsel for the respondent Nos. 1 and 2.
2. This writ petition questions the legality of the order dated 12.12.2008 passed by the Deputy Registrar, Firms, Societies and Chits, Agra whereby he has proceeded to hold that the petitioner has failed to establish that he is a valid member of the Society and consequently he did not have any authority to get the list of office bearers registered or get the amendments made in the bye-laws of the Society, and further proceedings consequential thereto have also been rejected keeping in view the background of the case.
3. The facts in brief, are that the dispute appears to have arisen in respect of the membership of the general body of the society as well as the consequential elections periodically. The matter came up before this Court and a direction was issued to the Prescribed Authority to take a decision into the matter. The Prescribed Authority vide order dated 10.3.2006 came to the conclusion that since the dispute between the parties had come to an end therefore he would not further proceed to decide the matter, leaving it open to the Deputy Registrar to take a decision at his end. It is to be noted that the respondent No. 3 was not a party to the said proceeding.
4. Thereafter it appears that since the membership of the general body of the Intermediate College managed by the petitioner's society and that of the society are alleged to be the same, the dispute was carried on before the educational authorities in respect of the elections of the Intermediate College. It was found therein that the term of the committee of management had expired and consequently an Authorised Controller was appointed under the Scheme of Administration to conduct the election of the Committee of Management of the Intermediate College established by the society. In the said proceedings, the Authorised Controller vide order dated 25.5.05 did not accept the petitioner as a member and on the strength of the list of 78 members elections were held. Learned Counsel for the petitioner alleges that the said order was modified on 14.6.2005 by which the Authorised Controller had held that the petitioner Ram Prakash Singh is a member which fact has been seriously disputed by Sri Yatindra . On the strength of the order of the Regional Level Committee it is urged that the membership of the petitioner has been rejected. A perusal of the bye-laws of the society indicates that bye-laws have been amended and the tenure of the Committee of Management of the Society is provided for as five years.
5. The Deputy Registrar, Firms, Societies and Chits issued a show cause notice dated 29.8.2008 on a complaint made by the respondent No. 3 which came to be challenged by the petitioner in Writ Petition No. 48807 of 2008. A perusal of the said notice indicates that the same was issued on 29.8.2008 calling upon the petitioner to give his explanation by 9th September, 2008.
6. From the pleadings of record, it appears that even before the issuance of the said notice the respondent No. 3 Bhedjeet Singh had filed Writ Petition No. 43777 of 2008 alleging that elections had been held on 12.9.2005 in which he had been elected as President and Hajari Lal as Secretary. It was urged that the Deputy Registrar had wrongly registered the list of office bearers of which Geetam Singh was claiming himself to be the President and Ram Prakash was shown to be the secretary. This list of office bearers was for the year 2008-09. This Court issued a direction calling upon the Deputy Registrar to decide the matter after giving an opportunity of hearing to the contesting parties and in the event the Deputy Registrar came to the conclusion that there is a dispute of two rival committees, he may refer the dispute under Section 25(1) of the Societies Registration Act to be decided accordingly. This order by the High Court was passed on 26.8.2008 and which according to the learned Counsel for the respondent No. 3 was served on the Deputy Registrar on 3.9.2008.
7. In between Writ Petition No. 48807 of 2008 against the notice dated 29.8.08 had already been filed by the petitioner in which the following interim order was passed on 17.9.2008:
Learned Standing Counsel has accepted notice on behalf of respondent Nos. 1 and 2.
Issue notice to respondent No. 3 returnable by the next date. Steps to be taken within a week.
All respondents may file their counter affidavits by the next date.
Meanwhile, the operation of the order dated 29.8.2008 shall remain stayed.
List in the week commencing 20.10.2008.
8. From a perusal of the notice itself issued by the Deputy Registrar, it is evident that the date fixed was 19.9.2008 . The aforesaid interim order in the above noted writ petition had already been passed by this Court. Upon the passing of the interim order it appears that the Deputy Registrar without discussing the impact of the order dated 17.9.2008 incorrect perspective, inspite of having notice, has proceeded to decide the claim between the parties on 12.12.2008. This according to the learned Counsel for the respondent No. 3 has been done in compliance of the order of this Court dated 26.8.08 in Writ Petition No. 43777 of 2008 referred to herein above.
9. The present writ petition has been filed assailing the order dated 12.12.2008 wherein initially no interim order was passed and the parties were allowed to file their affidavits. Thereafter the following orders were passed from time to time dated 13.1.2009, 21.1.2009 and 17.3.2009:
13.1.2009
Counsel for respondent No. 3 states that he has served a counter affidavit on Sri Rahul Sripat today in Court. He may file the counter affidavit in registry by 15.1.2009.
Sri Rahul Sripat for petitioner submits that respondent No. 2 Deputy Registrar, Firms, Societies & Chits, Agra is in a great hurry to hold elections knowing fully well that writ petition and application for interim order is pending consideration. While producing copy of a newspaper, he states that the Deputy Registrar has published a notice in the newspaper, he states that the Deputy Registrar has published a notice in the newspaper for holding meeting on 12.1.2009 and shall be conducting election on 15.1.2009.
The publication in the newspaper by the office of Deputy Registrar/Election Officer shows that list of members shall be finalised on 12.1.2009. Statement of the counsel for petitioner that elections would be held by the Deputy Registrar on 15.1.2009 appears to be an apprehension.
Sri Rahul Sripat for petitioner is granted a week's time for filing rejoinder affidavit.
List this matter peremptorily on 21.1.2009. It is made clear that writ petition shall be finally decided on 21.1.2009 as agreed by the counsel for parties.
In the interest of justice, respondent No. 2 Deputy Registrar, Firms, Societies Chits, Agra/Election Officer, is requested to fix a date for further proceedings in the matter on 23.1.2009.
21.1.2009
Counsel for respondent submits that he has filed counter affidavit in the registry on 15.1.2009 which is not on record.
Office is directed to trace it out and place on record by the next date of listing.
List in the next cause list. Interim order is extended till next date of listing.
17.3.2009
Sri Rahul Sripat submits that the Deputy Registrar respondent No. 2 has not complied with the order of this Court even though he has been served with the same. He further submits that inspite of the interim order injuncting the Deputy Registrar has proceeded in the garb of the order passed in writ petition.
It may also be mentioned that the proceeding before the Deputy Registrar for holding the election is also stayed.
No counter affidavit has been filed by respondent Nos. 1 and 2 as to why the Deputy Registrar proceeded with the matter once the matter has been stayed by order dated 13.1.2009.
In the circumstances, learned standing counsel is granted four weeks' and no more time for filing counter affidavit.
In case the counter affidavit is not filed by the respondent No. 2 within the aforesaid period, he shall be personally present to explain his conduct as to why he has proceeded with holding of elections in the teeth of the aforesaid order.
List on 24.4.2009.
Till then interim order shall continue.
10. The Deputy Registrar thereafter appears to have proceeded to hold elections pursuant to the order dated 12.12.2008 on 30.1.2009 which has been assailed by means of an amendment application to which a counter affidavit has already been filed by the respondent No. 3
11. Sri Rahul Sripat learned Counsel for the petitioner contends that the entire proceedings before the Assistant Registrar are without jurisdiction inasmuch as once there was a dispute pertaining to the office bearers which in turn depended upon a decision of membership of the petitioner, then it was incumbent upon the Deputy Registrar to have referred the dispute under Section 25(1) of the Societies Registration Act before the Prescribed Authority. He contends that this had been made clear even in the order of the High Court obtained by the contesting respondent No. 2 dated 26.8.2008. He submits that Section 25(1) contemplates a decision of such disputes relating to elections which may depend on the validity of the membership as well. He submits even if the arguments of the other side are accepted then the order of the Prescribed Authority passed earlier on 10.6.2006 does not decide the claim on merits which is on the basis of a compromise to which the respondent was not a party. Accordingly , it was all the more necessary that the dispute was referred to the Prescribed Authority.
12. He further submits that the respondent No. 3 appeared on the scene later on and therefore the claim of the respondent No. 3 as set up had to be decided by the Prescribed Authority and not by the Deputy registrar. Apart from the submissions advanced in support of the writ petition on the point of jurisdiction it is urged that the Deputy Registrar has acted in violation of the interim order dated 17.9.2008 passed in Writ Petition No. 48807 of 2008 . It is contended that anything done in violation of the interim order is a nullity.
13. Sri Yatindra learned Counsel for the respondent No. 3 submits that the dispute of membership of Ram Prakash Singh had already been concluded earlier and it was found that he was not enrolled as a valid member and for this reason he was unable to participate in the election of the Committee of Management of the College managed by the society. He submits that the dispute relating to the membership has been dealt with by the Authorised Controller as well as by the Regional Level Committee in the dispute relating to the Committee of Management of the Institution. In such a situation he contends that the petitioner Ram Prakash Singh is estopped from raising any such dispute which has arisen out the validity of his membership, before the Deputy Registrar, Firms , Societies and Chits. The Deputy Registrar has found that the proceedings set up by Ram Prakash Singh before the Authorised Controller were forged and fictitious and, therefore has rightly rejected his claim.
14. The submission is that the mandamus issued by this Court on 26.8.2008 was a final mandamus and, therefore, the Deputy Registrar did not commit any error in proceeding to decide the matter inspite of the interim order dated 17.9.2008 in Writ Petition No. 48807 of 2008.
15. Sri Yatindra learned Counsel for the respondent No. 3 has invited the attention of the Court to the findings recorded by the Deputy Registrar to contend that as a matter of fact, the claim of the petitioner viewed from any angle, it is evident that he has nothing to establish his membership as such there was no occasion for the Deputy Registrar to have referred the dispute to the Prescribed Authority under Section 25(1) of the Societies Registration Act.
16. Learned Standing Counsel has adopted the arguments of Sri Yatindra and contends that the first writ petition namely Writ Petition No. 43777 of 2008 has lost his efficacy as the final order dated 12.12.2008 has been challenged in subsequent writ petition No. 65955 of 2008 .
17. The issue is as to whether any interim order was operating in Writ Petition No. 48807 of 2008 or not. It is undisputed that the interim order dated 17.9.2008 was operating as on the date when the order dated 12.12.2008 was passed. The knowledge of the said order is accepted by the Deputy Registrar and a recital to that effect is contained in the order itself. The question therefore is, should the Deputy Registrar Firms , Societies and Chits have proceeded to pass an order on the strength of the final mandamus that had been issued on 26.8.2008. It goes without saying that the order dated 26.8.2008 had been passed without putting the petitioner to notice. The petitioner Ram Prakash Singh had neither been heard nor any notice had been issued in the writ petition in which the final mandamus was issued on 26.8.2008. The Prescribed Authority , therefore could not have ignored the interim order passed later on i.e. 17.9.2008 and which had been passed prior to the date fixed in the notice issued by him. No only this, on the day when the impugned order was passed i.e. on 12.12.2008, the interim order was operating and it had not been vacated. In such a situation the Deputy Registrar ought to have waited or sent it for a clarification before having proceeded to pass the order. The question of propriety to be observed by authorities in pending judicial matters has been dealt with by the Apex Court in the decision of Kihota Hollohon v. Zachilhu reported in : AIR 1993 SC 412 Para 51 which is to the following effect:
51. Before parting with the case, we should advert to one other circumstance. During the interlocutory stage, the constitution bench was persuaded to make certain interlocutory orders which, addressed as they were to the Speaker of the House, (though, in a different capacity as an adjudicatory forum under the Tenth Schedule) engendered complaints of disobedience culminating in the filing of petitions for initiation of proceedings of contempt against the Speaker. It was submitted that when the very question of jurisdiction of the Court to deal with the matter was raised and even before the constitutionality of Paragraph 7 had been pronounced upon, self restraint required that no interlocutory orders in a sensitive area of the relationship between the legislature and the Courts should been made.
The purpose of interlocutory orders is to preserve in status-quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency. One of the contentions urged was as to the invalidity of the amendment for non-compliance with the proviso to Article 368(2) of the Constitution. It has now been unanimously held that Paragraph 7 attracted the proviso to Article 368(2). The interlocutory orders in this case were necessarily justified so that, no land-slide changes were allowed to occur rendering proceedings ineffective and infructuous.
18. There is yet another legal impediment which deserves to be explained. It is established by a series of decisions that any action taken in violation of an interim order would be a nullity. Reference may be had to the decision in the case of Prof. K.P. Rai v. Vice-Chancellor, B.H.U. reported in 1993(2) UPLBEC 1412 Para 10.
10. To the decision of this Court in the case of Dr. Vijay Pratap Tiwari (supra) both the University and its Vice-Chancellor were parties and they were directed thereby to seek recommendation of the Academic Council for allotment of the posts of the Projects to various Departments. Till date it has not been done by them. The action of the Vice- Chancellor in appointing respondent No. 3 as Head of the Department runs counter to the above decision of this Court and in fact is in defiance thereof. A Division Bench of this Court and in case of Satyendra Pal v. The Regional Transport Authority, Agra 1982j ALJ 310 , has while considering the effect of the order passed in violation of the Court's order, laid down as follows:
In fact, there is another principle of law still more puissant and not less irrevocable, viz. That he who chooses to defy the order of a Court must face the Namesis, the wages of disobedience is penalty. It follows as a corollary that if a person is able to secure any advantage by flouting an order of the Court, he must be made to disgorge such gain. Likewise, proceedings taken by an authority in flagrant disregard of the order of a Court are nullity and the Court should have no compunction in putting the hand of the clock back and restoring the status quo ante, Where an order of a Court is disobeyed, a writ must be issued to redress the injury suffered by a person on account of the disobedience of such order. To borrow the words of Chinnappa Reddy, J in Capt. Dushyant Somal v. Smt. Sushma Somal : (1981) 2 SCC 277 : AIR 1981 SC 1026 at p. 1029:
Where what is complained of is an impudent disregard of an order of a Court, the fact certainly cries out that a prerogative writ shall issue.
18. The Supreme Court in the case of D.D.A. v. Skipper Construction Co. Ltd. reported in : 1996(4) SCC 622 (para 19) has further ruled that;
19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. V. S.Suppiah and Sujit Pal v. Prabir Kumar Sun. In Century Flour Mills Ltd. It was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as policy, to set the wrong rights and not allow the perpetuation of the wrong doing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order.
19. See also : 2003 (3) AWC Page 1718 Smt. Savitri Devi v. Civil Judge, Gorakhpur.
20. Accordingly the impugned order dated 12.12.2008 being in violation of the interim order dated 17.9.2008 is unsustainable.
21. Apart from this on the merits of the case it has to be clarified, and it has already been held time and again by this Court, that the proceedings before the Regional Deputy Director of Education in respect of the Committee of Management of the College, stands on altogether a different footing and is governed by a different Act namely the U.P. Intermediate Education Act 1921 and the Regulations framed thereunder It may be that the membership of the general body of the Society and the Committee of Management is the same but the procedure and the law to be followed in respect of both the Committees, is entirely different and cannot be inter mixed. A society registered under the Societies Registration Act, 1860 is a different and distinct legal entity and a dispute relating to the election or continuance of office bearers of the Society can be examined only under the provision of Section 25(1) of the 1860 Act.
22. In the instant case the Deputy Registrar has taken the findings recorded by the Authorised Controller and by the Regional Level Committee as alleged on behalf of the learned Counsel for the respondent No. 3 to be the basis for deciding the dispute. This is in my opinion could not have been the sole basis and as a matter of fact an independent finding should have been recorded by the competent authority and not by the Deputy Registrar. It has been settled by now in a series of decisions of this Court that it is the Prescribed Authority who shall decide such a dispute and the Deputy Registrar will have no jurisdiction to adjudicate such a claim. One of the leading cases on the issue is Committee of Management v. Zila Basic Shiksha Adhikari reported in 1987 UPLBEC 333. The aforesaid decision has been followed later on in a series of decisions .
23. In the instant case the Deputy Registrar after discussing the issue of membership has concluded that the proceeding submitted by the petitioner Ram Prakash Singh are forged and fictitious. He records that the said conclusion has been drawn after having assessed the proceedings in this regard. It is more than apparent that the Deputy Registrar has proceeded to decide the claim of continuance of office bearers of the Society. It is evident from the list of the office bearers for the year 2008-09 that the petitioner claims himself to be the Secretary of the Society. This claim of continuance as a Secretary of the Society in my opinion falls within a dispute under Section 25(1) of the Societies Registration Act. It was therefore incumbent upon the Deputy Registrar to have referred the matter to the Prescribed Authority under Section 25(1) of the Societies Registration Act. This being the legal position the impugned order is unsustainable on this ground as well.
24. Sri Yatindra contends that the Deputy Registrar is not mere a post office as has been held in a Division Bench judgment in the case of Committee of Management v. Assistant Registrar reported in 1995 (2) UPLBEC 1242. However, the instant case is distinguishable on facts. The dispute arose out of the genuineness of membership which also travelled up to the dispute of election and continuance of office bearers which according to the Deputy Registrar was a dispute founded on a fake list. The twin questions of continuance as an office bearer on the strength of an alleged fake list registered for the year 2008-09 coupled with the issue of membership, not having been decided on merits earlier by the Prescribed Authority, clearly make out a case for reference. A declaration that such claim of continuance is fake or unsupported by evidence can be assessed not by the Deputy Registrar but by following the procedure under Section 25 of the Act. The petitioner could not have been thrown out summarily as a trespasser by the Deputy Registrar clothing himself with a jurisdiction which he otherwise did not possess. This Court vide order dated 28.8.2008 cannot be presumed to have conferred a jurisdiction as has been held by this Court in the case of Udit Narain K.H. School v. District Magistrate Deoria reported in 1993 ACJ 1293 para 9.
25. Having considered the rival submissions and the fact and circumstances of the case, there is no room for doubt that the Deputy Registrar, Firms, Societies and Chits has travelled beyond his jurisdiction to pass the order dated 12.12.2008. The action complained of squarely falls within the phrase 'Coram Non Judice'.
26. The impugned order dated 12.12.2008 is therefore quashed. The matter shall now stand remanded back to the Prescribed Authority under Section 25(1) of the Societies Registration Act for a decision in accordance with law keeping in view the rival contentions of the parties and the observations made herein above within a period of three months from the date of production of a certified copy of this order before him. It shall be open to the Prescribed Authority to get a fresh election held in the event it is found that the elections have not been held in accordance with law or even otherwise even the tenure of the erstwhile committee of management has expired.
27. The writ petition is allowed. No order as to costs.