| SooperKanoon Citation | sooperkanoon.com/478627 |
| Subject | Constitution |
| Court | Allahabad High Court |
| Decided On | Apr-19-2002 |
| Case Number | C.M.W.P. Nos. 12700 and 15287 of 2002 |
| Judge | R.R. Yadav, J. |
| Reported in | 2002(3)AWC1940; (2002)3UPLBEC2537 |
| Acts | Uttar Pradesh Intermediate Education Act, 1921 - Sections 16A(7); Societies Registration Act, 1860 - Sections 25(1); Payment of Salaries Act, 1971 - Sections 5 |
| Appellant | Committee of Management of Adarsh Inter College, Etawah and anr. |
| Respondent | Joint Director of Education, Kanpur and ors. |
| Appellant Advocate | A.P. Sahi and ;G.K. Singh, Advs. |
| Respondent Advocate | S.C. |
Excerpt:
constitution ( res subjudice - section 16a (7) of u.p. intermediate education act, 1921 and section 25 (1) of societies registration act, 1860 ( dispute between two rival claimants of committee of management of educational institution ( reference made by deputy registrar of firms, societies and chits kanpur region under section 25 (1) of act of 1860 to prescribed authority - joint director of education has no jurisdiction to decide the issue which is directly and substantially subjudice before the prescribed authority - prescribed authority directed to decide the dispute within two months. - - 6. after hearing the learned counsel for both the sides as well as learned standing counsel, i am of the view that the joint director of education, kanpur region, kanpur, has crossed his boundary envisaged under section 16a (7) of u.r.r. yadav, j. 1. by way of filing these two writ petitions, one being writ petition no. 12700 of 2002 and the other being writ petition no. 15287 of 20o2 (hereinafter referred to as earlier writ petition and later writ petition respectively), the petitioners who are opposing each other in these two writ petitions, are questioning the legality and validity of the order dated 18.3.2002, passed by joint director of education, kanpur region, kanpur, annexure-11 to later writ petition. the aforesaid order dated 18.3.2002 is filed and marked as annexure-16 to earlier writ petition. it is to be noticed that consequential order dated 23.3.2002 passed by district inspector of schools, etawah, annexure-12 to later writ petition is challenged by the petitioners whereas the same is not under challenge in2. since both the writ petitions are interlinked and common question of law and facts are involved, therefore, i propose to decide both of them by composite order making later writ petition as leading case in which counter and rejoinder-affidavits have been exchanged between the parties.3. these two writ petitions are posted today for admission but with the consent of the learned counsel for the parties, i propose to decide the same on merit finally at admission stage. both the writ petitions can be decided on merit on the admitted facts between learned counsel for both the sides.4. it is conceded by learned counsel for both the sides that question involved in these two writ petitions relating to rival elections of both the petitioners are directly and substantially subjudice before the prescribed authority under sub-section (1) of section 25 of the societies registration act on a reference made by deputy registrar, firms, societies and chits, kanpur region, kanpur, vide his order dated 11.2.2000, annexure-5 to later writ petition.5. from perusal of the order dated 18.3.2002, annexure-11 to later writ petition, passed by joint director of education , kanpur region, kanpur, it is revealed that he arrived at a conclusion that radhey ram sharma alleged to have been elected as manager of the committee of management is not a member of the general body. it is noticed by the joint director of education, kanpur region, kanpur, that a reference in respect of membership of radhey ram sharma is pending consideration before the prescribed authority on the basis of reference made by deputy registrar, firms, societies and chits, kanpur region, kanpur vide order dated 11.2.2000, annexure-5 to later writ petition. he recorded a finding that as radhey ram sharma is not a member of general body, therefore, he cannot be elected as manager of committee of management. in view of aforesaid finding, he arrived at a conclusion that question of recognition ofcommittee of management headed by radhey ram sharma does not arise. therefore, he cancelled the election of the committee of management headed by ishwar chandra tiwari, petitioner no. 2 in earlier writ petition as also the election of the committee of management headed by radhey ram sharma, petitioner no. 2 in later writ petition.6. after hearing the learned counsel for both the sides as well as learned standing counsel, i am of the view that the joint director of education, kanpur region, kanpur, has crossed his boundary envisaged under section 16a (7) of u. p. intermediate education act, 1921 which provides that whenever there is dispute with respect to the management of an institution, persons found by the regional deputy director of education upon such enquiry as is deemed fit to be in actual control of its affair may, for purpose of this act, be recognised to constitute the committee of management of such institution unless a court of competent jurisdiction directs otherwise.7. 'the effective control' has been explained in explanation added to sub-section (7) of section 16a of u. p. intermediate education act which provides that in determining the question as to who is in actual control of the affairs of the institution the regional deputy director of education shall have regard to the control over the funds of the institution and over the administration, the receipt of income from its properties, the scheme of administration approved under sub-section (5) and other relevant circumstances.8. it is urged by the learned counsel for petitioners in earlier writ petition, sri y. k. saxena that question relating to membership of radhey ram sharma can be undergone under explanation added to sub-section (7) of section 16a of u. p. intermediate education act which provides 'other relevant circumstances'. according to sri saxena, radhey ram sharma is not a member of the general body itself is a circumstance that the committee ofmanagement headed by him cannot be said to be in actual control for the affairs of the institution. he supported the order in this regard but urged before me that joint director of education, kanpur region, kanpur has no authority to cancel the election of the committee of management headed be ishwar chandra tiwari.9. the aforesaid argument advanced by the learned counsel sri saxena appearing for petitioners in earlier writ petition is refuted with equal vehemence by sri a. p. sahi, learned counsel for the petitioners appearing in later writ petition. it is urged by sri sahi that in view of the order passed by deputy registrar, firms, societies and chits, kanpur region, kanpur dated 11.2.2000, annexure-5 to later writ petition, the question relating to membership of radhey ram sharma is referred to prescribed authority under sub-section (1) of section 25 of the societies registration act. since the aforesaid question is subjudice before the prescribed authority under subsection (1) of section 25 of the societies registrtion act, therefore, the joint director of education, kanpur region, kanpur has no authority to hold that committee of management headed by radhey ram sharma is not in actual control of the affairs of the institution.10. i have given my thoughtful anxious consideration to the rival contentions raised at the bar. i am of the view that once a reference is made by the deputy registrar, firms, societies and chits, kanpur region, kanpur vide his order dated 11.2.2000, annexure-5 to later writ petition before the prescribed authority under sub-section (1) of section 25 of the societies registration act which provides that 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 an election or continuance in office of an office-bearer of such society, and may pass such orders inrespect thereof as it deems fit and proper. as the dispute relating to valid membership of radhey ram sharma was also subjudice on the date of the order impugned dated 18.3.2002 passed by joint director of education, kanpur region, kanpur, hence he has no jurisdiction to decide the issue which was directly and substantially subjudice before the prescribed authority within the meaning of sub-section (1) of section 25 of the societies registration act.11. it is next contended by sri sahi that reference made by the deputy registrar, firms, societies and chits, kanpur region, kanpur on 11.2.2000 can be conveniently splitted into two parts, one relating to subject deciding the validity of the election held in 1998 and other relating to validity of membership of radhey ram sharma of general body of the institution. according to sri sahi since the term of the office of committee of management was only three years, therefore, validity of election held in 1998 does not survive and it would be a futile exercise to go into validity of election held in 1998. it is admitted by learned counsel sri sahi that the reference made by the deputy registrar, firms, societies and chits, kanpur region, kanpur relating to validity of membership of radhey ram sharma of the general body of the institution still survives and is to be decided by the prescribed authority on the basis of reference dated 11.2.2000 made by deputy registrar, firms, societies and chits.12. i refrain to make comments on the aforesaid arguments raised by the learned counsel for both sides relating to validity of the reference made by the deputy registrar, firms, societies and chits, kanpur region, kanpur dated 11.2.2000. both the parties would be entitled to raise all these points which are being raised before this court by way of filing these two writ petitions before the prescribed authority and the same is left open to be decided by the prescribed authority in the light of legally admissible evidence adduced by both the parties before him in accordance with law.13. for the reasons discussed hereinabove, the order dated 18.3.2002, passed by joint director of education, kanpur region, kanpur deserves to be quashed and the same is hereby quashed. as regards the order dated 23.3.2002, annexure-12 to later writ petition is concerned, it is a consequential order founded on the aforesaid order dated 18.3.2002. as the order dated 18.3.2002 is quashed, therefore, the consequential order dated 23.3.20o2 founded on the aforesaid order dated 18.3.2002 is also hereby quashed.14. it is pertinent to observe that till final decision is made by the prescribed authority, sub-divisional magistrate, chakar nagar, district etawah under sub-section (1) of section 25 of the societies registration act the district inspector of schools, etawah would be at liberty to pass an order of single operation in accordance with law to facilitate the payment of salary to teachers and other employees of the institution as contemplated under section 5 of u. p. act no. 24 of 1971.15. it is to be noticed that the dispute between two rival claimants of committee of management is pending consideration before the prescribed authority since 2000, therefore, it would be expedient in the interest of justice to direct the prescribed authority, sub-divisional magistrate, chakar nagar, district etawah to decide the election dispute between two rival claimants within two months from the date of receipt of certified copy of this order. after decision of election dispute between two rival claimants by the prescribed authority, the joint director of education, kanpur region, kanpur is to decide effective control between two rival claimants within the meaning of sub-section (7) of section 16a of w, p. intermediate education act, 1921, in accordance with law on the subject.16. with the aforesaid directions, the instant two writ petitions are finally disposed of at admission stage. the parties shall bear their own costs.
Judgment:R.R. Yadav, J.
1. By way of filing these two writ petitions, one being Writ Petition No. 12700 of 2002 and the other being Writ Petition No. 15287 of 20O2 (hereinafter referred to as earlier writ petition and later writ petition respectively), the petitioners who are opposing each other in these two writ petitions, are questioning the legality and validity of the order dated 18.3.2002, passed by Joint Director of Education, Kanpur Region, Kanpur, Annexure-11 to later writ petition. The aforesaid order dated 18.3.2002 is filed and marked as Annexure-16 to earlier writ petition. It is to be noticed that consequential order dated 23.3.2002 passed by District Inspector of Schools, Etawah, Annexure-12 to later writ petition is challenged by the petitioners whereas the same is not under challenge in
2. Since both the writ petitions are interlinked and common question of law and facts are involved, therefore, I propose to decide both of them by composite order making later writ petition as leading case in which counter and rejoinder-affidavits have been exchanged between the parties.
3. These two writ petitions are posted today for admission but with the consent of the learned counsel for the parties, I propose to decide the same on merit finally at admission stage. Both the writ petitions can be decided on merit on the admitted facts between learned counsel for both the sides.
4. It is conceded by learned counsel for both the sides that question involved in these two writ petitions relating to rival elections of both the petitioners are directly and substantially subjudice before the Prescribed Authority under Sub-section (1) of Section 25 of the Societies Registration Act on a reference made by Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur, vide his order dated 11.2.2000, Annexure-5 to later writ petition.
5. From perusal of the order dated 18.3.2002, Annexure-11 to later writ petition, passed by Joint Director of Education , Kanpur Region, Kanpur, it is revealed that he arrived at a conclusion that Radhey Ram Sharma alleged to have been elected as Manager of the Committee of Management is not a Member of the General Body. It is noticed by the Joint Director of Education, Kanpur Region, Kanpur, that a reference in respect of membership of Radhey Ram Sharma is pending consideration before the Prescribed Authority on the basis of reference made by Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur vide order dated 11.2.2000, Annexure-5 to later writ petition. He recorded a finding that as Radhey Ram Sharma is not a Member of General Body, therefore, he cannot be elected as Manager of Committee of Management. In view of aforesaid finding, he arrived at a conclusion that question of recognition ofCommittee of Management headed by Radhey Ram Sharma does not arise. Therefore, he cancelled the election of the Committee of Management headed by Ishwar Chandra Tiwari, petitioner No. 2 in earlier writ petition as also the election of the Committee of Management headed by Radhey Ram Sharma, petitioner No. 2 in later writ petition.
6. After hearing the learned counsel for both the sides as well as learned standing counsel, I am of the view that the Joint Director of Education, Kanpur Region, Kanpur, has crossed his boundary envisaged under Section 16A (7) of U. P. Intermediate Education Act, 1921 which provides that whenever there is dispute with respect to the Management of an institution, persons found by the Regional Deputy Director of Education upon such enquiry as is deemed fit to be in actual control of its affair may, for purpose of this Act, be recognised to constitute the Committee of Management of such institution unless a court of competent jurisdiction directs otherwise.
7. 'The effective control' has been explained in Explanation added to Sub-section (7) of Section 16A of U. P. Intermediate Education Act which provides that in determining the question as to who is in actual control of the affairs of the institution the Regional Deputy Director of Education shall have regard to the control over the funds of the institution and over the administration, the receipt of income from its properties, the Scheme of Administration approved under Sub-section (5) and other relevant circumstances.
8. It is urged by the learned counsel for petitioners in earlier writ petition, Sri Y. K. Saxena that question relating to membership of Radhey Ram Sharma can be undergone under Explanation added to Sub-section (7) of Section 16A of U. P. Intermediate Education Act which provides 'other relevant circumstances'. According to Sri Saxena, Radhey Ram Sharma is not a Member of the General Body itself is a circumstance that the Committee ofManagement headed by him cannot be said to be in actual control for the affairs of the Institution. He supported the order in this regard but urged before me that Joint Director of Education, Kanpur Region, Kanpur has no authority to cancel the election of the Committee of Management headed be Ishwar Chandra Tiwari.
9. The aforesaid argument advanced by the learned counsel Sri Saxena appearing for petitioners in earlier writ petition is refuted with equal vehemence by Sri A. P. Sahi, learned counsel for the petitioners appearing in later writ petition. It is urged by Sri Sahi that in view of the order passed by Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur dated 11.2.2000, Annexure-5 to later writ petition, the question relating to membership of Radhey Ram Sharma is referred to Prescribed Authority under Sub-section (1) of Section 25 of the Societies Registration Act. Since the aforesaid question is subjudice before the Prescribed Authority under Subsection (1) of Section 25 of the Societies Registrtion Act, therefore, the Joint Director of Education, Kanpur Region, Kanpur has no authority to hold that Committee of Management headed by Radhey Ram Sharma is not in actual control of the affairs of the Institution.
10. I have given my thoughtful anxious consideration to the rival contentions raised at the Bar. I am of the view that once a reference is made by the Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur vide his order dated 11.2.2000, Annexure-5 to later writ petition before the Prescribed Authority under Sub-section (1) of Section 25 of the Societies Registration Act which provides that 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 an election or continuance in office of an office-bearer of such society, and may pass such orders inrespect thereof as it deems fit and proper. As the dispute relating to valid membership of Radhey Ram Sharma was also subjudice on the date of the order impugned dated 18.3.2002 passed by Joint Director of Education, Kanpur Region, Kanpur, hence he has no jurisdiction to decide the issue which was directly and substantially subjudice before the Prescribed Authority within the meaning of Sub-section (1) of Section 25 of the Societies Registration Act.
11. It is next contended by Sri Sahi that reference made by the Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur on 11.2.2000 can be conveniently splitted into two parts, one relating to subject deciding the validity of the election held in 1998 and other relating to validity of membership of Radhey Ram Sharma of General Body of the Institution. According to Sri Sahi since the term of the office of Committee of Management was only three years, therefore, validity of election held in 1998 does not survive and it would be a futile exercise to go into validity of election held in 1998. It is admitted by learned counsel Sri Sahi that the reference made by the Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur relating to validity of membership of Radhey Ram Sharma of the General Body of the Institution still survives and is to be decided by the Prescribed Authority on the basis of reference dated 11.2.2000 made by Deputy Registrar, Firms, Societies and Chits.
12. I refrain to make comments on the aforesaid arguments raised by the learned counsel for both sides relating to validity of the reference made by the Deputy Registrar, Firms, Societies and Chits, Kanpur Region, Kanpur dated 11.2.2000. Both the parties would be entitled to raise all these points which are being raised before this Court by way of filing these two writ petitions before the Prescribed Authority and the same is left open to be decided by the Prescribed Authority in the light of legally admissible evidence adduced by both the parties before him in accordance with law.
13. For the reasons discussed hereinabove, the order dated 18.3.2002, passed by Joint Director of Education, Kanpur Region, Kanpur deserves to be quashed and the same is hereby quashed. As regards the order dated 23.3.2002, Annexure-12 to later writ petition is concerned, it is a consequential order founded on the aforesaid order dated 18.3.2002. As the order dated 18.3.2002 is quashed, therefore, the consequential order dated 23.3.20O2 founded on the aforesaid order dated 18.3.2002 is also hereby quashed.
14. It is pertinent to observe that till final decision is made by the Prescribed Authority, Sub-Divisional Magistrate, Chakar Nagar, District Etawah under Sub-section (1) of Section 25 of the Societies Registration Act the District Inspector of Schools, Etawah would be at liberty to pass an order of single operation in accordance with law to facilitate the payment of salary to teachers and other employees of the Institution as contemplated under Section 5 of U. P. Act No. 24 of 1971.
15. It is to be noticed that the dispute between two rival claimants of Committee of Management is pending consideration before the Prescribed Authority since 2000, therefore, it would be expedient in the interest of justice to direct the Prescribed Authority, Sub-Divisional Magistrate, Chakar Nagar, District Etawah to decide the election dispute between two rival claimants within two months from the date of receipt of certified copy of this order. After decision of election dispute between two rival claimants by the Prescribed Authority, the Joint Director of Education, Kanpur Region, Kanpur is to decide effective control between two rival claimants within the meaning of Sub-section (7) of Section 16A of W, P. Intermediate Education Act, 1921, in accordance with law on the subject.
16. With the aforesaid directions, the instant two writ petitions are finally disposed of at admission stage. The parties shall bear their own costs.