Dr. Mahendra Pratap Singh and 14 ors. Vs. the State of U.P. and ors. - Court Judgment

Dilip Gupta, J.

1. This petition seeks the quashing of the order dated 1 5th October, 2009 passed by the Authorised Controller of the Khalsa Inter College, Noorpur, District Bijnor by which he has determined the list of 281 life members of the General Body entitled to participate in the election of the Committee of Management of the Institution. The petitioners have sought a further direction that the Authorised Controller should continue in the Institution till the valid electoral roll is determined and the election of the Committee of Management of the Institution is held.

2. It is asserted in the writ petition that Khalsa Inter College, Noorpur, District Bijnor (hereinafter referred to as the 'Institution') is a minority Institution which is run by the 'Sikh Vidhya Sabha Noorpur, District Bijnor' and is governed by the provisions of the U.P. Intermediate Education Act, 1921. Under Clause 7 of the Scheme of Administration of the Institution, the term of the Committee of Management of the Institution is three years from the date of election. In the election of the Committee of Management of the Institution held on 3rd February, 2005, Dr. Shrawan Singh was elected as the Manager and Dr. Mahendra Pratap Singh was elected as the President. However, the Committee of Management elected on 3rd February, 2005 amended Clauses 7 and 8(2) of the Scheme of Administration and extended the term of the Committee of Management from three years to five years and the Joint Director of Education, Moradabad also granted approval to the said amendments on 13th September, 2007. The District Inspector of Schools, however, passed an order on 16th January, 2008 that the amendments made in the Scheme of Administration regarding the extension of the term of the Committee of Management of the Institution from three years to five years would be applicable from the next election of the Committee of Management and would not apply to the term of the existing Committee of Management.

3. This order dated 16th January, 2008 passed by the District Inspector of Schools was challenged by the Committee of Management in Writ Petition No. 18926 of 2008 in which an interim order was passed on 1 7th April, 2008 staying the operation of the order dated 1 6th January, 2008 but ultimately the said petition was dismissed by the judgment and order dated 27th May, 2009.

4. It is further asserted that under Clause 7 of the Scheme of Administration of the Institution, it is provided that if fresh election is not held within three years, then the Committee of Management can continue for one more month but if within this extended period of one month, decision on fresh election is not taken, then the term of the existing Committee of Management will come to an end and an Authorised Controller shall be appointed by the Joint Director of Education from amongst the office bearers of the erstwhile Committee of Management who shall hand over charge to the newly elected Committee of Management but if election has not been held, then he shall hold the election and give the charge to the newly elected Committee of Management at the earliest.

5. Consequently, upon dismissal of Writ Petition No. 18926 of 2008, the Regional Joint Director of Education appointed Harjeet Singh, a member of the erstwhile Committee of Management of the Institution, as the Authorised Controller.

6. The appointment of Harjeet Singh as the Authorised Controller was challenged by Dr. Sharawn Singh in Writ Petition No.31969 of 2009 which was disposed of with the consent of the parties by the judgment and order dated 2nd July, 2009 with the following observations:

Accordingly, with consent of the learned Counsel for the parties it is directed that the Joint Director of Education shall request the District Magistrate, Bijnor to appoint an officer, not below the rank of Sub Divisional Magistrate, as authorized controller to manage the affairs of the institution and to hold the elections of the Committee of Management after finalising the voter's list, as expeditiously as possible, but not later than three months from the date of appointment of such officer as authorized controller. It is made clear that the officer appointed by the District Magistrate shall perform all duties of election officer as well as manage the affairs of the Committee of Management till such period the elected Committee of Management takes charges.

7. It is pursuant to the aforesaid order passed by the Court that the Authorised Controller proceeded to finalise the electoral college by the order dated 1 5th October, 2009 which has been impugned in the present petition.

8. It transpires from the order that before the Authorised Controller the following disputes about the electoral college had been raised:

i) validity of the enrollment of 240 new life members by the Committee of Management of the Institution on 14th November, 2007.

ii) expulsion of three life members namely Bhopal Singh, Komal Singh and Harpal Singh in the meeting of the General Body of the Institution held on 13th January, 2008.

iii) expulsion of Dr. Mahendra Pratap Singh, President of the Committee of Management in the meeting of the General Body of the Institution held on 30th June, 2008.

iv) expulsion of 11 life members in the meeting of the General Body of the Institution held on 1 1th January, 2009.

9. The Authorised Controller has found that 197 life members out of the 240 new life members were validly enrolled as life members of the General Body of the Institution by the Committee of Management of the Institution in the meeting held on 14th November, 2007 and out of the 131 life members of the General Body earlier enrolled, the Authorised Controller found that the General Body had expelled three life members on 13th January, 2008, one life member on 30th June, 2008 and 11 life members on 11th January, 2009. Accordingly, out of the earlier 131 life members of the General Body, only 84 life members remained as valid life members of the General Body of the Institution since the membership of the 15 persons had been cancelled and 32 members had died in the meantime. In this manner, the Authorised Controller determined the electoral college of 281 life members consisting of 84 old life members and 197 new life members.

10. After the aforesaid order was passed by the Authorised Controller on 15th October, 2009, a notification for holding of fresh election on 1st November, 2009 for constituting of the Committee of Management of the Institution was also issued by the Authorised Controller and this was published in four newspapers on 22nd October, 2009.

11. It is at this stage that the present petition was filed by the 15 life members who had been expelled and on 26th October, 2009 an interim order was passed that fresh election may be held but the result shall not be declared. It is stated that fresh elections of the Committee of Management of the Institution have been held on 1st November, 2009 but counting has not been done because of the interim order dated 26th October, 2009.

12. Sri P.S. Baghel, learned Senior Counsel appearing for the petitioners, assisted by Sri Sujeet Kumar and Sri Rajeev Joshi, has made the following submissions:

1) The Committee of Management of the Institution elected on 3rd February, 2005 in which Dr. Shrawan Singh was elected as the Manager could have continued upto 2nd March, 2008 only, even if the grace period of one month is added and, therefore, any decision taken by the Committee of Management after the expiry of the aforesaid period of three years and one month is illegal and of no consequence. In support of this contention, learned Senior Counsel for the petitioners placed reliance upon Clause 7 of the Scheme of Administration and has contended that under the said Clause it is provided that the term of the Committee of Management of the Institution shall be three years from the date the office bearers are elected. It is, therefore, his submission that the Authorised Controller committed an illegality in holding that the term of the Committee of Management will start to run from 1 8th May, 2005, when charge was handed over to the Committee of Management of the Institution after the Regional Level Committee approved the election on 1 6th May, 2005 and the signatures of the Manager were also attested by the District Inspector of Schools on 1 8th May, 2005. In this connection, he has placed reliance upon the decisions of this Court in Committee of Management, Jangali Baba Intermediate College Garwar District Ballia and Anr. v. Deputy Director of Education, Vth Region, Varanasi and Ors. (1991) 2 UPLBEC 1183; Committee of Management, Janta Inter College, Azamgarh and Ors. v. Regional Deputy Director of Education (Secondary) and Ors. : 1999 (2) A.W.C. 1090; Committee of Management, Adarsh Inter College, Handia, Mittoopur, Azamgarh v. Joint Director of Education, Azamgarh Region, Azamgarh and Ors. (2005) 2 UPLBEC 2018 and Ratan Kumar Solanki v. State of U.P. and Ors. 2010 (1) ADJ 262 (DB).

2) Though the term of the Committee of Management of the Institution may have been extended from three years to five years by the Committee of Management elected on 3rd February, 2005, but such extension will apply only to the elections held in future and cannot not apply to the term of the existing Committee of Management.

3) The interim order passed on 17th April, 2008 in Writ Petition No. 18926 of 2008 filed by the Committee of Management for assailing the decision of the District Inspector of Schools that the extension of the term will apply to future elections will not confer any benefit on the respondents since the writ petition was ultimately dismissed on 27th May, 2009 and the decisions taken by the Committee of Management during this intervening period are of no consequence.

4) 240 life members enrolled on 14th November, 2007 could not have participated in the election held on 1st November, 2009 since under Clause 8(3) of the Scheme of Administration of the Institution, the list of members of the General Body is required to be declared 6 months prior to the expiry of the term of the Committee of Management of the Institution and so when the term of the Committee of Management was to expire on 2nd March, 2008, the list of members of the General Body was required to be declared on or before 2nd August, 2007 and members enrolled after this date cannot claim to be members of the General Body entitled to participate in this election. The Authorised Controller, therefore, committed an illegality in holding that 197 life members of these 240 life members enrolled on 14th November, 2007 are valid members of the General Body. The participation of these 197 life members in the election has rendered it bad in view of the decision of the Division Bench of this Court in Special Appeal No. 207 of 2000 (C/M, Madan Mohan Malviya Shiksha Samiti v. Madan Mohan Malviya Shiksha Samiti, Bhat-par Rani, District Deoria and Ors.) decided on 25th May, 2000.

5) Even otherwise, the General Body of the Institution had imposed a bar on enrollment of new members of the General Body in the meeting held on 8th November, 1994, and so new members could not have been enrolled on 14th November, 2007. It is only on the basis of fictitious proceedings of the meeting of the General Body said to have been held on 3rd August, 2005 that Dr. Shrawan Singh claimed before the Authorised Controller that the bar on enrollment of new members had been removed by resolution No. 4 and subsequently in the meeting of the Committee of Management of the Institution held on 14th November, 2007 their membership was accepted. It is his submission that 75 members had submitted affidavits that no such meeting was held on 3rd August, 2005 but these affidavits have not been considered by the Authorised Controller in the impugned order.

6) The expulsion of three life members in the meeting of the General Body of the Institution held on 13th January, 2008 is bad in law inasmuch as the said meeting never took place and 75 members had submitted affidavits to this effect.

7) The expulsion of the President Dr. Mahendra Pratap Singh is also bad in law since the meeting of the General Body of the Institution is said to have been held on 30th June, 2008, much after the expiry of the term of the Committee of Management of the Institution on 2nd March, 2008.

8) Likewise, the expulsion of 11 life members in the meeting of the General Body of the Institution held on 1 1th January, 2009 is also bad in law.

9) Even otherwise, the meeting of the Committee of Management of the Institution held on 14th November, 2007 is bad in law as it could have been called by the President under Clause 16 of the Scheme of Administration and not by the Manager and the said meeting was also not presided by the President.

13. Sri Ashok Khare, learned Senior Counsel appearing for the contesting respondent No. 6-Dr. Shrawan Singh, however, submitted as follows:

1) The term of the Committee of Management of the Institution elected on 3rd February, 2005, in the facts and circumstances of the case, can start to run only when charge was handed over to the newly elected Committee of Management of the Institution by the Authorised Controller on 1 8th May, 2005 and not from the date of election and, therefore, the term of the Committee of Management of the Institution continued upto 1 8th June, 2008 after adding the grace period of one month. In support of this contention, he has placed reliance upon the decision of the Supreme Court in Ram Pyare Chaudhary and Anr. v. State of U.P. and Ors. : (1982) 1 SCC 671 as also the decisions of this Court in Ratan Kumar Solanki (supra) and Committee of Management of V.V. Inter College, Shamli, District Muzaffar Nagar and Ors. v. State of U.P. and Ors. 2010 (2) ADJ 470.

2) The meeting of the General Body of the Institution was validly held on 3rd August, 2005 pursuant to the agenda earlier circulated to all the members of the General Body on 2nd July, 2005 for removing the ban on the fresh enrollment of members of the General Body of the Institution.

3) Even if the extension in the term of the Committee of Management of the Institution is to apply from the next election, still as there was interim order in favour of the Committee of Management in Writ Petition No. 18926 of 2008, decision taken by the Committee of Management before the dismissal of the writ petition will not be rendered bad because of the defacto doctrine as has been held by the Division Bench of this Court in Committee of Management, Gangadin Ram Kumar Inter College, Jaunpur v. Deputy Director of Education, Vth Region, Varanasi and Ors. (2006) 3 UPLBEC 2862.

4) The enrollment of 240 life members by the Committee of Management of the Institution on 14th November, 2007 is not hit by Clause 8(3) of the Scheme of Administration of the Institution since the term of the Committee of Management of the Institution was upto 18th June, 2008 and not 2nd March, 2008.

5) The meetings of the General Body of the Institution were validly held on 13th January, 2008, 30th June, 2008 and 11th January, 2009 and, therefore, the expulsion of 15 life members from the old list of 131 life members of the General Body of the Institution does not suffer from any infirmity.

6) Under Clause 10 of the Scheme of Administration of the Institution, meeting of the General Body of the Institution is called by the Manager after intimation to the President and the meeting of the Committee of Management of the Institution, whenever necessary, can also be called by the Manager after intimation to the President. Therefore, the contention of the petitioners that the meeting of the Committee of Management of the Institution on 14th November, 2007 could only be called by the President under Clause 16 of the Scheme of Administration is not correct. The meeting was presided by the Vice-President as the President did not attend the meeting despite due service of the agenda of the meeting.

7) The election of the Committee of Management of the Institution cannot be quashed merely because some members participated in the election, who otherwise could not have participated, in the absence of any proper foundation in the writ petition that the election of the Committee of Management was materially affected by such participation. In this connection, he has placed reliance upon the decision of a Division Bench of this Court in Qamar Rashid Khan v. Committee of Management, Azamgarh Muslim Education Society, Azamgarh and Ors. : 1999 (4) A.W.C. 3279.

14. I have considered the submissions advanced by the learned Counsel for the parties.

STARTING POINT OF TERM OF THE COMMITTEE

15. The first issue that needs to be decided is about the starting point of the term of the Committee of Management of the Institution elected on 3rd February, 2005. It is seen that an order dated 1 1th August, 2004 was passed in Special Appeal No. 946 of 2004 directing the District Magistrate, Bijnor himself or an officer nominated by him not below the rank of Additional District Magistrate to look-after the affairs of the Committee of Management of the Institution and get the election of the Committee of Management held positively within three months. The order is quoted below:

Without going into merits of the case we are of the opinion that a free and fair election should be held in respect of the Committee of Management, Khalsa Inter College, Noorpur, District Bijnore as early as possible.

We therefore direct the District Magistrate, Noorpur, Bijnor to get the election of the Committee of Management held positively within three months from today either himself or through an officer nominated by him. During this period the D.M. Binore either himself or through an officer nominated by him, not below the rank of A.D.M. shall look after the affairs of the Committee of Management. The officer nominated by the D.M. for holding the election will prepare a voter list after hearing all the parties concerned as expeditiously as possible so that the election may be held on the basis of that voter list.

16. The District Magistrate appointed the Additional District Magistrate (Administrative), Bijnor to look-after the affairs of the Committee of Management and finalise the voters list for holding the fresh election. The Additional District Magistrate took over charge of the Committee of Management of the Institution and determined the electoral College on 12th January, 2005.

17. This order dated 12th January, 2005 determining the electoral college was challenged by some members of the General Body of the Institution in Writ Petition No. 2820 of 2005 which was disposed of by the judgment and order dated 24th January, 2005 with the following observations:

Under the Government Order dated 19-12-2000, the recognition to the Committee of Management will be granted by the Regional Committee of which the Joint Director of Education is the Chairman. In view of the fact that the election process has started and also as the question of membership is hotly contested between the parties, which is a dispute of facts, it is appropriate that such a dispute may be decided by the Regional Committee after the elections have been held and the papers are submitted before it for grant of recognition of the newly constituted Committee. Before the Regional Committee, it will be open to the petitioners to file their objection regarding their exclusion from the electoral college and to claim before it that they are members. The Regional Committee will decide the matter after affording opportunity of hearing to the petitioners and the parties concerned.

18. The Additional District Magistrate held the fresh election on 3rd February, 2005 and sent the papers to the Regional Level Committee constituted under the Government Order dated 1 9th December, 2000 for granting approval in view of the aforesaid order passed by the Court. The Regional Level Committee, by its decision taken on 16th May, 2005, granted approval to the Committee of Management elected on 3rd February, 2005 with Dr. Shrawan Singh as the Manager and Dr. Mahendra Pratap Singh as the President. The District Inspector of Schools attested the signatures of Dr. Shrawan Singh as the Manager of the Committee of Management on 1 8th May, 2005 and the Additional District Magistrate, who had been functioning in the Institution as the Authorised Controller, then gave charge to the newly elected Committee of Management on 1 8th May, 2005.

19. Clause 7 of the Scheme of Administration of the Institution deals with the term of the Committee of Management, which translated in English, would read as follows:

7. The term of the members and office bearers of the Committee of Management shall be three years from the date they are elected. The Committee of Management, however, shall continue for a further period of one month even after the expiry of the said period. During this period, if a decision on the fresh election is not taken, then the term of the Committee of Management shall come to an end on the expiry of the three years and one month. In such a situation, the Principal of the Institution shall intimate this fact to the District Inspector of Schools who shall refer the matter to the Regional Joint Director of Education for nomination of an Authorized Controller to manager the affairs of the Committee of Management. Nomination of the Authorised Controller shall be from amongst the office bearers of the erstwhile Committee of Management. The nominated Authorised Controller shall hand over the charge to the newly elected Committee of Management at the earliest. However, if elections have not been held then the Authorised Controller shall get the elections held after following the election procedure and in the event the elections are disputed then the Authorised Controller shall hand over the charge to the Committee of Management after the elections are approved and recognised by the District Inspector of Schools.

20. In the present case, the Authorised Controller, who was appointed in the Institution, held the election but as a serious dispute about the voters list notified by him on 12th January, 2005 had earlier been raised by some members of the General Body of the Institution and in Writ Petition No. 2820 of 2005 that had been filed to challenge the said order, the Court had passed an order dated 24th January, 2005 that since there was a serious dispute about the membership of the General Body of the Institution, the Regional Level Committee shall decide the dispute after the elections have been held and the papers are submitted to it for grant of recognition and approval, the charge was handed over to the Committee of Management by the Authorised Controller only after the District Inspector of Schools attested the signatures of Dr. Shrawan Singh as the Manager of the Committee of Management of the Institution on 1 8th May, 2005 after the Regional Level Committee had approved the election on 16th May, 2005.

21. It has been stated in paragraph 8 of the counter affidavit filed by respondent No. 6-Committee of Management that the Committee of Management with Dr. Shrawan Singh as the Manager assumed charge of the office on 1 8th May, 2005 and has been discharging duties from the date of assuming the charge. In paragraph 11 of the rejoinder affidavit, which is in reply to the averments made in paragraph 8 of the counter affidavit, this fact has not been denied and all that has been stated is that while deciding Writ Petition No. 2820 of 2005, the Court had not restrained the newly elected Committee of Management from assuming charge.

22. Learned Senior Counsel for the petitioners has, however, placed reliance on the initial part of Clause 7 of the Scheme of Administration of the Institution which provides that the term of the office bearers and members of the Committee of Management of the Institution shall be three years from the date they are elected. It is his contention that in view of this stipulation, the term of the Committee of Management of the Institution has to be counted from the date the election is held.

23. It is not possible to accept this contention. The first sentence of Clause 7 of the Scheme of Administration cannot be read dehors what is contained in the remaining part of the said Clause 7 that if the election is held by the Authorised Controller and a dispute has been raised in respect of the said election, then the Authorised Controller shall hand over the charge to the newly elected Committee of Management after it is approved and recognised by the District Inspector of Schools. Thus, in certain circumstances, it is possible that the Committee of Management cannot immediately take charge and it has necessarily to wait for certain events to happen. In such situations, the term of the Committee will commence not from the date of election but from a subsequent date. In this connection, the respondents have also brought on record the communication dated 28th November, 2007 sent by the District Inspector of Schools Bijnor to the Manager of the Institution in which he has clearly stated that the term of the Committee of Management of three years shall begin to run from the date the Regional Level Committee had approved the election.

24. Reference also needs to be made to the Division Bench judgment of this Court in Ratan Kumar Solanki (supra), wherein the Court was called upon to interpret Clause 7 of the Scheme of Administration of that Institution which also provided that the term of the office bearers and members of the Committee of Management, other than the ex-officio members, shall be three years from the date they are elected but their term shall continue till their successors are elected. After examining the Scheme of Administration of the Institution and the earlier judgments, the Court observed:

29. From the perusal of the scheme of administration, it is apparent that there is nothing to show as to when the period of the elected members would commence though it talks of the continuance of the member till the successor in office is elected and period of three years from the date of election meaning thereby if that is treated to be an indication for the purpose of determining the period of the Committee of Management, that would mean that the date on which the election is held and result is declared but if we take this literal interpretation, there are several circumstances in which the elected members can be allowed not to function even for a day and yet their tenure would come to an end. Can it be said that tenure of an elected member of the Committee of Management of the College would expire even if the elected members, for the reasons beyond their control have not been able to function or hold the office effectively. Since this issue has come up for consideration before this Court time and again, therefore, before embarking upon the discussion of our own, it would be a prudent way to look into the dispute by first of all going through the earlier precedents to find out as to what has been held therein and whether they cover the issue having similar set of facts as in our case so as to constitute a binding precedent for deciding the issue in question..

38. In Committee of Management, Lakhori Inter College, Moradabad and Anr. v. District Inspector of Schools, Moradabad and Ors. : (2002) 1 UPLBEC 199 (by Hon'ble S.K. Singh, J.), clarifying position regarding the term 'taking over charge', after referring to Committee of Management, Jangali Baba Intermediate College (supra) and another Division Bench decision in Committee of Management v. Dy. Director of Education and Ors. (1995) 1 UPLBEC 149, Committee of Management Brij. Hoshiar Singh Memorial Inter College, Shamli (supra), His Lordship observed as under:

In both the cases aforementioned, it was held that commencement of the term of the committee of management was not dependent on attestation of signature by the DIOS but at the same time, the Court did recognise that the term of the committee in a given case may begin to run from the date the elected committee of management takes over charge of the management. It would depend upon the facts of each case that whether term of committee of management will begin from the date of election or from the date of taking over charge. In a case where the affairs of the college are managed by the Committee which holds the elections in accordance with the scheme of administration, before expiry of its term, the newly elected committee of management will begin to run not from the date of election but from the date of taking over charge of the management after expiry of the term of the outgoing committee.39. We find ourselves in respectful agreement with the above observations.

40. The above discussion makes it clear that the term of Committee of Management would commence when the Committee of Management starts functioning as a result of the election. If a Committee of Management which is already existing and the same Officer Bearers have come to be elected in the new election, if the election has been held after expiry of the term of the earlier Committee of Management, the newly elected Committee of Management can start function from the date its result is declared but where Office Bearers are different, for newly elected Committee of Management the same can be said to have taken over charge after the term of the earlier Committee is over and newly elected Committee is allowed to function. However where the newly elected Committee of Management is not able to function not on account of any lapse on its part, but for the reasons beyond its control, namely, some order issued by the educational authorities restraining it from functioning or an order by the Court or similar other circumstances, the term of the Committee of Management would commence after it takes over charge and starts function. We make it clear that there may be a case where despite of a new election having taken place, the term of the earlier Committee of Management is over, and, in the absence of any prohibitive order by any competent authority, Committee of Management newly elected does not take any step on its own to take over charge of the management of the College, in that case we are clearly of the view that the lapse on the part of the newly elected Committee of Management would not give it any advantage to differ or postpone the commencement of the period inasmuch it cannot be allowed to take advantage of its own wrong but where despite of efforts etc., the rival Committee or the Authorised Controller, as the case may be, has not permitted the newly elected Committee of Management to function, in that case the dictum as laid down above that the term would commence from the date of taking over the charge would apply.

25. After having so observed, the Division Bench of this Court examined the facts of the case and observed:

41. Now, considering the facts of the present case in the light of the above exposition of law, we find that the result of the election was declared on 17.7.2005. It is true that the petitioner-appellant made a complaint alleging irregularities in the election and requested the educational authorities for re-counting, the DIOS also passed an order for re-counting, but, thereafter, he found that there was no apparent irregularity in the election having seen the video of the election of the Committee of Management and granted approval to the election but throughout this period the counsel for respondent- Committee of Management could not place anything before us to show what prevented the newly elected Committee of Management from taking charge or requesting the educational authorities or the Authorized Controller to hand over charge to them. Learned Counsel for the respondent, Committee of Management, could not place any material to show that any step whatsoever was taken by the respondent- Committee of Management to take over charge of the College for more than a year inasmuch the stay order was passed by this Court on 17.10.2006. Counsel for respondent-Committee of Management in fact only refers to the dispute raised by the petitioner-appellant before the educational authorities and contended that the matter was pending but on his part whether any effort was made to have the charge has not been stated. Thus we are clearly of the view that in the absence of any prohibitive order of any competent authority, the respondent-Committee of Management in this case is itself guilty of not assuming charge and start functioning in the College, hence it cannot take the advantage of the above dictum of law that the period would commence from the date when the Committee of Management has taken over charge as it would not apply in the case in hand in the peculiar facts and circumstances of the case. Therefore, in our view, the period in this case would commence from the date of the declaration of the result since there was no hurdle before the respondent-Committee of Management to take over charge and start function in the College.

26. The Division Bench in the above decision made it absolutely clear that in a given case the term of the Committee of Management of the Institution can begin from the date the charge is given to the newly elected Committee of Management. The Court clarified that where the newly elected office bearers are different or the Committee of Management cannot function for reasons beyond its control, the term will start to run when the newly elected Committee of Management takes over charge and starts functioning. In the present case, the Authorised Controller was functioning in the Institution when the election was held and the Committee of Management elected on 3rd February, 2005 could have started functioning only when charge was given to it by the Authorised Controller.

27. Sri P.S. Baghel, learned Senior Counsel for the petitioners, however, placed much emphasis on paragraph 41 of the aforesaid judgment and contended that since there is nothing on the record to indicate that the newly elected Committee of Management made any effort to take over charge of the management of the Institution after the election was held on 3rd February, 2005, the term of the Committee of Management of the Institution shall start to run from 3rd February, 2005 and not from 18th May, 2005.

28. The contention of Sri P.S. Baghel, learned Senior Counsel for the petitioners cannot be accepted. The last part of Clause 7 of the Scheme of Administration (which is absent in the Scheme of Administration in Ratan Kumar Solanki's case) clearly provides that in case there is a dispute about the election, the Authorised Controller shall hand over charge to the newly elected Committee of Management after the election is approved and recognised by the District Inspector of Schools. As noticed hereinabove, there was a serious dispute about the electoral college and this Court in the judgment and order dated 24th January 2005 also directed that a decision on this should be taken by the Regional Level Committee after the election is held and papers are submitted to it for grant of recognition to the election. In view of such a condition in the Scheme of Administration of the Institution, the Committee of Management elected on 3rd February, 2005 could not have insisted for handing over charge immediately after the election was held and they had necessarily to wait till the Regional Level Committee and the District Inspector of Schools took a decision in the matter.

29. In this connection, reference also needs to be made to a decision of this Court in C/M, V.V. Inter College (supra), wherein while dealing with a similar controversy as to when the term of the Committee of Management will begin to run, the Court observed as follows:

The contention of Sri Ashok Khare, learned Senior Counsel for the respondents, however, is that the District Inspector of Schools committed no illegality in holding that there was no Committee of Management in existence. It is his contention that the term of the Committee of Management elected on 5th December, 2001 should start from 23rd January, 2002 on which date the Prabandha Sanchalak declared the election result. It is for this reason that he contends that the Committee of Management elected on 2nd February, 2006 cannot be approved because the election was held after the expiry of three years and one month from 23rd January, 2002 and only the Prabandha Sanchalak, in accordance with Clause 7 of the Scheme of Administration of the Institution, could have held the elections..

In the present case, the Authorised Controller was functioning in the Institution prior to the holding of the elections on 5th December, 2001. Under Clause 5(6) of the Scheme of Administration, the Committee of Management can be given charge only after the District Inspector of Schools grants recognition to the Committee of Management. It is not in dispute that the District Inspector of Schools attested the signatures of petitioner No. 2 Sanjay Kumar Sangal as Manager of the Committee of Management on 17th February, 2003 . Thus, it was not possible for the petitioner-Committee of Management to take over charge on 23rd January, 2002 and nor is it the case of the respondents that the Committee of Management took charge on this date. In paragraph 16 of the writ petition, the petitioners have specifically stated that it is after the passing of the order dated 17th February, 2003 by the District Inspector of Schools that the charge of the Institution was handed over to the petitioner-Committee of Management by the Prabandha Sanchalak. All that has been stated in paragraph 8 of the counter affidavit filed by the State respondents is that there is no need to give any reply to this paragraph. In fact, the District Inspector of Schools in the impugned order has also mentioned that the term of the Committee of Management would begin from 17th February, 2003. It is, therefore, not possible to accept the contention advanced by Sri Ashok Khare learned Senior Counsel for the respondents.

30 Sri Ashok Khare, learned Senior Counsel for the contesting respondent has also placed reliance upon the judgment of the Supreme Court in Ram Pyare Chaudhary (supra) in support of his contention that the earlier part of Clause 7 of the Scheme of Administration of the Institution should not be literally interpreted and should be interpreted in a manner that the term of the Committee of Management should start to run from the date charge is handed over to the newly elected Committee of Management.

31. In the aforesaid decision of the Supreme Court, the term of the Committee of Management under Rule 445 of the U.P. Co-operative Societies Rules, 1968 is provided as three co-operative years including the year of election. Explanation appended to this Rule clarifies how the period of three co-operative years is to be computed and is follows:

For the purposes of determination on the term of a elected member the cooperative year during which the elections are held shall count as full year irrespective of the period left after such election in that cooperative year.

32. It was contended by the State that since poll was held on 11th September, 1978, the term of the Committee of Management of three years including the co-operative year of the election expired on 30th June, 1981, while on behalf of the appellant, it was contended that though the poll was held on 1 1th September, 1978 but as the result was declared on 28th January, 1980 the term of three co-operative years will expire on 30th June, 1982.

33. Interpreting this Rule, the Supreme Court held as follows:

Rule 445(1) provides that the term of office of the elected members of Committee of Management of a co-operative society shall be three co-operative years including the co- operative year of their election. This provision indicates the terminus quo for commencement of the term, viz., that the term of office of the elected members would be three co-operative years including the year of their election. Election means process of being elected and the term of office is of the elected member, not of contesting member. When candidates offer themselves for election, they are called candidates and unless selected the term of such candidates would not commence. Their term would commence when elected. The expression 'year of their election' even on literal and grammatical construction would mean the year in which the member concerned whose term is in dispute, is declared elected meaning thereby he became eligible for office and entitled to enter office as a member. Apart from literal construction, the completed process of election comprehends nomination, recording of votes, counting of votes and declaration of result and publicising and notifying the result. There ends the process of election. Recording of votes is a mere stage in the process of election. Even when votes are recorded, the candidates contesting the poll do not acquire the status of members of Committee of Management. That status is acquired on being declared elected. And unless that status is acquired the term of office as member cannot begin to run. Therefore, the expression 'co-operative year of their election year', upon true construction can only mean the year in which the member is declared elected and not the year in which he contested the poll.

34. It is clear from the aforesaid decision of the Supreme Court that under certain circumstances literal interpretation is not to be resorted to for determining the starting point of the term of the Committee.

35. The decision relied upon by learned Senior Counsel for the petitioners in Committee of Management, Jungali Baba (supra) has been considered in Ratan Kumar Solanki (supra). The decisions in Committee of Management, Janta Inter College (supra) and Committee of Management, Adarsh Inter College (supra) do not help the petitioners as there was no provision in the Scheme of Administration that the newly elected Committee of Management can assume office only after the District Inspector of Schools has accorded approval.

36. Thus, from the aforesaid discussion, the inevitable conclusion that follows is that the term of the Committee of Management of the Institution elected on 3rd February, 2005 will start to run from 1 8th May, 2005, when charge was given to it by the Authorised Controller who had been continuing in the Institution prior to the holding of the election after the District Inspector of Schools attested the signatures of the Manager on 1 8th May, 2005.

AMENDMENT IN SCHEME OF ADMINISTRATION

37. Regarding the second contention of learned Senior Counsel for the petitioners, there can be no dispute that any amendment made in the Scheme of Administration of the Institution for increasing the term of the Committee of Management applies only to subsequent elections and not to the term of the existing Committee of Management as has been held in Committee of Management, Arya Kanya Inter College, Bulandshahar and Anr. v. State of U.P. and Ors. 2008 (10) ADJ 398 (DB).

38. The third contention of learned Senior Counsel for the petitioners does not arise for consideration in this case since nothing turns on the decisions that may have been taken by the Committee of Management after the passing of the interim order on 17th April, 2008 and dismissal of Writ Petition No. 18926 of 2008 on 27th May, 2009.

VALIDITY OF ENROLLMENT OF 240 MEMBERS

39. The fourth issue is about the validity of the enrollment of 240 new life members to the General Body of the Institution on 14th November, 2007. The parties do not dispute that the General Body of the Institution had earlier imposed a ban on 8th November, 1994 on enrollment of new members.

40. The case of the respondent-Committee of Management is that on 2nd July, 2005, an agenda for holding the meeting of the General Body of the Institution on 3rd August, 2005 under the Presidentship of Dr. Mahendra Pratap Singh for removing the ban earlier imposed on 8th November, 1994 was circulated to all the members of the General Body. A meeting of the General Body of the Institution was, accordingly, held on 3rd August, 2005 under the Presidentship of Dr. Mahendra Pratap Singh and the General Body resolved to remove the ban. The minutes of the meeting of the General Body held on 3rd August, 2005 were approved in the next meeting of the General Body on 20th August, 2006 under the Presidentship of Dr. Mahendra Pratap Singh. Subsequently, on 7th October, 2007 a notice was also published by the Manager of the Committee of Management in newspapers inviting applications from eligible persons of Sikh Samaj for enrollment as life members and general members of the General Body of the Institution in accordance with the Scheme of Administration. It is pursuant to the said advertisement that 240 persons of Sikh Samaj applied for enrollment as members and deposited the membership fees. On 1st November, 2007, the agenda for holding the meeting of the Committee of Management of the Institution on 14th November, 2007 for enrollment of new members was circulated to all the members of the General Body. On 14th November, 2007, the Committee of Management of the Institution, as per Clause 6 of the Scheme of Administration, accepted the proposals of 240 applicants for enrollment as life members of the General Body. This meeting was presided by the Vice-President as the President did not attend this meeting. The bank drafts towards the enrollment fees were deposited in the Bank Account. Subsequently, on 1 5th November, 2007 intimation regarding enrollment of these 240 new members of the General Body was also sent by the Manager and the list of the life members of the General Body was published and forwarded to the District Inspector of Schools.

41. The contention of the learned Senior Counsel for the petitioners is two folds. The first is that these 240 life members said to have been enrolled on 14th November, 2007 could not have participated in the election since under Clause 8(3) of the Scheme of Administration of the Institution, the list of members of the General Body has to be declared six months prior to the expiry of the term of the Committee of Management of the Institution and as the term of the Committee of Management of the Institution was to expire on 2nd March, 2008, these 240 life members enrolled on 14th November, 2007 could not have participated in the election. The second submission is about the validity of the actual enrollment of these 240 life members as, according to the petitioners, meetings of the General Body of the Institution were not held on 3rd August, 2005 or 20th August, 2006 and 75 members of the General Body had also filed affidavits to this effect and that the bank drafts of some of the applicants had even been deposited upto 14th November, 2007 though they were required to be deposited in the bank by 1st November, 2007.

42. The contention of the learned Senior Counsel for the petitioners that the term of the Committee of Management came to an end on 2nd March, 2008 has been rejected while considering the first issue and it has been held that the term of the Committee of Management continued upto 18th June, 2008. Thus, the bar under Clause 8(3) of the Scheme of Administration will not apply since the new life members of the General Body of the Institution were enrolled on 14th November, 2007 which date is six months prior to the expiry of the term.

43. The submission of the learned Senior Counsel for the petitioners that the bank drafts have also been accepted upto 14th November, 2007 has been taken care of by the Authorised Controller inasmuch as he has excluded such members out of the 240 newly enrolled members who had submitted bank drafts after 1st November, 2007. It is for this reason that he published the list of only 197 life members out of the 240 life members enrolled on 14th November, 2007. Thus, this contention of learned Senior Counsel for the petitioners cannot be accepted.

VALIDITY OF MEETING HELD ON 3RD AUGUST, 2005

44. The fifth issue that needs to be decided is about the validity of the meetings of the General Body of the Institution held on 3rd August, 2005 in which the General Body of the Institution had resolved to remove the ban earlier imposed by it on 8th November, 1994 on enrollment of new members.

45. It is the contention of learned Senior Counsel for petitioners that the meeting dated 3rd August, 2005 seems to be forged as two proceedings of the same date have been filed and as many as 75 life members of the General Body had submitted affidavits that no meeting of the General Body was held on 3rd August, 2005.

46. Learned Senior Counsel for the contesting respondent, however, submitted that the meeting was actually held on 3rd August, 2008 under the Presidentship of Dr. Mahendra Pratap Singh. The minutes were, however, incorporated in the register of the General Body of the Institution as well as in the register of the Committee of Management of the Institution and infact there is no difference in the two resolutions and both the registers contain the signatures of petitioner No. 1-Dr. Mahendra Pratap Singh. In the subsequent meeting of the General Body of the Institution held on 20th August, 2006, the proceedings of the earlier meeting held on 3rd August, 2005 were confirmed and this meeting was also presided by Dr. Mahendra Pratap Singh. It has, therefore, been urged by learned Senior Counsel for the respondents that petitioners cannot urge that the meting of the General Body of the Institution was not held on 3rd August, 2005.

47. The Authorised Controller, in the impugned order, has noticed these facts. He has found as a fact that Dr. Mahendra Pratap Singh had also forwarded the papers of the aforesaid meetings to the District Inspector of Schools and while dealing with the objections of petitioner No. 1 has found that after the meeting of the General Body of the Institution was held on 3rd August, 2005, the General Body of the Institution, in the subsequent meeting held on 20th August, 2006, confirmed the minutes of the earlier meeting. He also found that the Committee of Management of the Institution also met on 1st December, 2005 under the Presidentship of Dr. Mahendra Pratap Singh and at resolution No. 4 had resolved that new members should be enrolled. Subsequently, Dr. Mahendra Pratap Singh himself opened an account in the Vidhur Gramin Bank and deposited the bank drafts for enrollment of new members of the General Body. The Authorised Controller, therefore, concluded that if the bar had not removed in the meeting of the General Body held on 3rd August, 2005, Dr. Mahendra Pratap Singh would not have opened the account and deposited the bank drafts. The Authorised Controller has also repelled the contention of Dr. Mahendra Pratap Singh that his signatures in the meeting of the General Body held on 3rd August, 2005 were forged because such objection was not raised by him in the subsequent meeting of the General Body held on 20th August, 2006 in which the proceedings of the earlier meeting of the General Body held on 3rd August, 2005 had been confirmed. The explanation submitted by the respondents for recording of the minutes of the meeting of the General Body held on 3rd August, 2005 at two places is plausible and the holding of the meeting cannot be doubted only for this reason.

48. Though it is correct that 75 affidavits said to have been filed by members of the General Body have not been considered by the Authorised Controller while dealing with this objection, but it is seen from the order of the Authorised Controller that such affidavits have been considered while dealing with objections raised by the petitioners regarding the meetings of the General Body held on 13th January, 2008, 30th June, 2008 and 11th January, 2009. However, as it has been found as a fact from the evidence available on record that the meeting of the General Body was held on 3rd August, 2005, the filing of such affidavits by certain members of the General Body before the Authorised Controller alleging that the meeting was not held on 3rd August, 2005 is of no consequence.

49. Learned Senior Counsel for the petitioners also submitted that in the register containing the resolution of the meeting of the General Body held on 3rd August, 2005, certain members have signed at two places. Such averments have not been made in the writ petition and, therefore, it is not possible to entertain such a plea. Even otherwise, Sri Ashok Khare, learned Senior Counsel for respondent No. 5 submitted that it was so because two persons had the same name.

50. Thus, what follows from the above discussion is that the General Body of the Institution had resolved on 3rd August, 2005 to remove the ban earlier imposed by it on 8th November, 1994 for enrollment of new members.

VALIDITY OF THE MEETINGS OF THE GENERAL BODY

HELD ON 13TH JANURY, 2008, 30TH JUNE, 2008 AND

11TH JANUARY, 2009

51. The sixth, seventh and eight issues are about the validity of the meetings of the General Body of the Institution held on 13th January, 2008, 30th June, 2008 and 1 1th January, 2009. It is said that in the meeting held on 13th January, 2008, the membership of three life members had been cancelled, in the meeting held on 30th June, 2008 the membership of the President was also cancelled and in the meeting held on 1 1th January, 2009, the General Body cancelled the membership of 11 life members. Thus, in all, the memberships of 15 life members of the General Body including the President was cancelled.

52. The main submission of learned Senior Counsel for the petitioners is that the meetings for expulsion of these life members of the General Body were never held and in this connection, he has placed reliance upon the 75 affidavits said to have been filed by members of the General Body. In respect of the cancellation of membership of the President Dr. Mahendra Pratap Singh and the 11 life members in the meetings held on 30th June, 2008 and 1 1th January, 2009, it is also submitted by learned Senior Counsel for the petitioners that the decision taken in these meetings is of no consequence since the term of the Committee of Management of the Institution had expired on 2nd March, 2008.

53. The submission of learned Senior Counsel appearing for respondent No. 6 is that the meeting of the General Body of the Institution was held on 13th January, 2008 to consider the cancellation of the membership of three life members in accordance with the Scheme of Administration since these three life members were involved in serious financial irregularities and embezzlement and in this connection notices had earlier been issued to them on 28th July, 2007 and 24th September, 2007 for submitting a reply as to why their life memberships from the General Body may not be cancelled. It is also submitted that likewise, in the meeting of the General Body of the Institution held on 30th June, 2008, the membership of the President had been cancelled since he was also involved in various financial irregularities and misappropriation of the College property. In respect of the meeting held on 1 1th January, 2009, it is submitted by learned Senior Counsel for respondent No. 6 that notices were sent to 11 life members for submitting an explanation but they did not file any reply and as such on 5th December, 2008 agenda for holding a meeting of the General Body on 1 1th January, 2009 for cancellation of their membership was circulated and thereafter the memberships of these 11 life members of the General Body of the Institution were terminated on 1 1th January, 2009.

54. The Authorised Controller, on a consideration of the materials available on record, has recorded a categorical finding that the meetings of the General Body of the Institution were held on 1 3th January, 2008, 30th June, 2008 and 1 1th January, 2009 for consideration of cancellation of the memberships of the aforesaid fifteen life members of the General Body of the Institution and a decision for cancellation of their memberships was taken. The Authorised Controller also noted that though such expelled members had filed a representation before the District Inspector of Schools but they did not make any reference to the affidavits and it was only on 8th October, 2009 that such affidavits were placed before the Authorised Controller by Dr. Mahendra Pratap Singh. In such circumstances, there is no infirmity in the decision taken by the Authorised Controller which may call for any interference under Article 226 of the Constitution. It is, therefore, not possible to accept the contention of learned Senior Counsel for the petitioners that 15 life members had been wrongly expelled from the General Body of the Institution since the meetings of the General Body of the Institution were not held on 13th January, 2008, 30th June, 2008 and 1 1th January, 2009.

55. It has also been contended by the learned Senior Counsel for the petitioners that the decision taken in the meetings of the General Body of the Institution on 30th June, 2008 and 1 1th January, 2009 is of no consequence since they were held after the expiry of the term of the Committee of Management of the Institution on 2nd March, 2008. This contention cannot be accepted since the meetings were that of the General Body of the Institution and not of the Committee of Management of the Institution.

56. It is also the contention of the learned Senior Counsel for the respondents that petitioner No. 2-Dr. Mahendra Pratap Singh had filed objections before the Authorised Controller on 23rd September, 2009 only with regard to the enrollment of 240 new life members and no objection had been filed with regard to the expulsion of 15 life members of the General Body of the Institution. Learned Senior Counsel for the petitioners, however, contended that objections dated 29th September, 2009 regarding the expulsion of fifteen life members were actually filed. There is, therefore, a serious dispute between the parties as to whether the objections that were filed by Dr. Mahendra Pratap Singh were limited to the enrollment of 240 new life members or they also included the expulsion of 15 life members of the General Body of the Institution. It is not necessary to examine this issue in this petition as the validity of the expulsion of 15 life members of the General Body of the Institution has been considered.

VALIDITY OF MEETING HELD ON 14TH NOVEMBER, 2007

57. It is the submission of learned Senior Counsel for the petitioners that the meeting of the Committee of Management of the Institution held on 14th November, 2007 is bad in law since the meeting was not called by the President as is required under Clause 16 of the Scheme of Administration and nor it was presided by the President.

58. In the counter affidavit filed by respondent No. 6, it has been stated that on 1st November, 2007 the agenda of the meeting of the Committee of Management for the meeting scheduled to be held on 14th November, 2007 was circulated to all the members of the General Body of the Institution including the President Dr. Mahendra Pratap Singh, but the President, deliberately refused to sign the agenda. The Manager, therefore, sent a letter dated 2nd November, 2007 alongwith agenda dated 1st November, 2007 but Dr. Mahendra Pratap Singh refused to sign the agenda register after reading the same. The meeting of the Committee of Management of the Institution was held as per the schedule on 14th November, 2007 in the College premises but despite due information, the President did not attend the meeting and as such it was presided by the Vice-President. Nothing has been pointed out by the petitioners which may persuade the Court to hold that the aforesaid averments are not correct. It also needs to be noticed that under Clause 10 of the Scheme of Administration, the meeting of the Committee of Management of the Institution, whenever necessary, is to be called by the Manager after intimation to the President. The contention of learned Senior Counsel for the petitioners that the meeting has necessarily to be called by the President cannot be accepted.

59. In view of the aforesaid discussion, it is not necessary to examine the contention of Sri Ashok Khare, learned Senior Counsel appearing for respondent No. 6 that participation of 197 new members or non-participation of 15 old life members of the General Body of the Institution will not vitiate the election in the absence of any foundation in the writ petition that the same will materially affect the result of the election.

60. Thus, for all the reasons stated above, there is no infirmity in the order dated 1 5th October, 2009 passed by the Authorised Controller.

61. The writ petition is, accordingly, dismissed and the interim order dated 26th October, 2009 stands vacated. The Authorised Controller shall now declare the result of the election as expeditiously as is possible.