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N. L. Ganguly, J.—These eleven Writ Petitions have been filed by the Committee of Management, B. S. M. Inter College, Roorkee, district Haridwar as the petitioners No. 1 or 2 in these petitions are the managers. In some writ petitions Dr. Bhushao Lal Sharma claimed himself to be the manager of the committee of management and in others Sri Manohar Lal Sharma claimed himself to be the manager of the committee of management. Since April 1990 the parties started tiling writ petitions one after the other in succession claiming themselves to be the Manager of the committee of management and challenging one order OF the other passed by the District Inspector of Schools or the Deputy Director of Education from time to time.
There are three other educational institutions under the B. S. M. Society, namely, B. S. M. (P, G.) College, B. S. M. Montessories School, B. S. M. Samiti and Ayurvedic College and B. S. M. Inter College. The disputes in all these writ petitions are concerning the B. S. M. Inter College, Roorkee, district Hardwar, which is admittedly a recognised Inter College governed under the U. P. Intermediate Education Act. Since all the Writ Petition are in respect of managerial dispute or the dispute about the Payment of Salary Act or the order of single operation, all of them have been clubbed together. The learned counsel for the parties have exchanged their affidavits and they have no objection in clubbing of all the cases together for disposal by a common judgment. The learned standing counsel has filed counter affidavit in some petitions, in others where no counter affidavit has been filed, the learned standing counsel does not propose to file counter affidavit and consents that the cases may be finally decided on the basis of affidavits filed by the private parties contesting their case in these writ petitions. I propose to consider the earliest Writ Petition concerning the institution first and according to the date of their filing etc.
Civil Misc. Writ Petition No. 11622 of 1990 was filed by the B. S. M. Samiti (Mahasabha) Roorkee, district Hardwar through its Manager Sri Ishwar Chand Sharnta challenging the order dated 2041990 passed by the D. I. O. S. Hardwar by which the D. I. O. S. on the complaint received from various respectable citizens of the city in respect of the institution of the petitioner that the Mahasabha was not permitting the citizens to be made members of the Mahasabha. The grievance of the citizens was that the committee of management of the institution was not functioning democratically and was not permitting citizens and other respectable persons of the society to be the members of the society and the committee of management on account of sectarian and arbitrary view. The District Magistrate after receipt of the complaint had asked the D. I. O. S. to investigate into the matter and submit a report. The D. I. O. S. in his turn proceeded to issue notice to the petitioner committee of management through its officebearers to furnish the required information and 145 persons, who were seeking to become the members of the society be enrolled as members of the Mahasabha. 26th to 30th April, 1990 were fixed for necessary investigation and enquiry foe investigating and clearing the names of 145 persons whose names were sent to the D. I. O. S. for being enrolled as a members of the Society of the Mahasabha.
In the Writ Petition the D. I. O, S. and the District Magistrate, Hardwar are respondents. Counter affidavit has been filed by the State and rejoinder affidavit also filed.
The only question for decision that arises in this case is whether the State Government or the District Magistrate or the D. I. O. S. have a legal authority to pass orders and issue direction for enrolling persons of their choice or the persons, who themselves want to become the members of the General Body of the Mahasabha to be enrolled as members in spite of the fact that the Society /Mahasabha does not accept them nor accept their proposal to become members. In the counter affidavit filed by the State on behalf of the D. I. O. S. in para 3 it is stated that three educational institutions are run by the society, namely, B. S. M. Inter College, B. S. M. (PG) College, Roorkee and B. S. M. Ayurvedic College, Roorkee. B. S. M. Ayurvedic College has not been functioning for the last so many years and the building has been rented cut by the management committee of the institution to one private Eye Specialist Medical Practitioner and that too without prior permission, and without seeking necessary permission from the educational authorities. In 1988 about 162 persons applied for enrolment of membership of the society after depositing the required fee in the shape of Bank Draft but they were not enrolled as members. Being aggrieved those persons filed an appeal before the District Magistrate, which was not accepted on the ground that no appeal lay against such orders by the society. The question as already mentioned above is whether the petitioner society can be forced to accept the persons as members of the society or not.
The learned counsel for the petitioner placed reliance on the decision reported in AIR 1971 SC 966, Smt. Damyanti Naranga v. Union of India and others, for the proposition that the right to form an association, necessarily implies that the persons forming the association have also the right to continue to be associated with only those whom they voluntarily admit in the association. Any law, by which members are introduced in the voluntary association without any option being given to the members to keep them out, or any law which takes away the membership of those who have voluntarily joined it, will be a law violating the right to form an association. The law is interpreted by the apex court while considering the applicability of Article 19(1) (f) of the Constitution. If the law is passed not merely for ensuring proper management and administration of the property, but for totally depriving the persons, in whom the property vested, of their right to hold the property, the law cannot be justified as a reasonable restriction under Article 19(5). In the present facts of the case there was no legislation or law by which the citizen or respectable persons of the society were permitted to be members of the society. The association of the petitioner the Mahasabha is a registered society according to the Scheme of Administration, which admittedly stood approved by the Assistant Registrar under the Societies Registration Act. Unless there was any such provision which compels the society and its members to accept the persons as member by a statutory law, no such enforcement was legally possible. The Hon''ble Supreme Court in the judgment cited (supra) clearly held that if such imposition is made by any statute, that would be in violation of Article 19(1)(f) of the Constitution. Thus from the facts and circumstances of the case it is abundantly clear that the grievance of the citizen, educated persons of the society, who sought themselves to be the members of the Mahasabha could not force the society to enrol them as members of the society. The contemplated investigation and enquiry into the matter by the D I O S in compliance with the directions of the District Magistrate ate thus wholly misconceived, without jurisdiction and cannot be allowed to stand and deserve to be quashed. If the aggrieved parties were seeking any other legal right in the society such disputed questions of fact about their claim could also not be investigated and enquired into by the D I O S. The remedy was to file a civil suit before a competent court of law as was held in the decisions reported in 1980 UPLBEO 209, Committee of Management, Nonapur Inter College, Kanpur v. District Inspector of Schools, Kanpur and another, 1991(2) UPLBEC 1420, Committee of Management, Inter College, Karanda, Ghazipur and another v. Dy, Director of Schools, V Region Varanasi and another, and 1994 (3) UPLBEC 2019. Raj Narain Singh and another v. District Inspector of Schools, Jaunpur and others.
In view of the above discussion, in Writ Petition No. 11622 of 1990 the order, dated 2041990, Annexure 10 to the writ petition passed by the D I O S is hereby quashed.
Writ Petition No. 14851 of 1990 is filed by the committee of management of B. S. M. Inter College, Roorkee, district Hardwar through its Manager Sri Manohar Lal Sharma challenging the order of the D I O S, Hardwar, dated 571990, Annexure 4 to the writ petition by which the orders under Section 5(1) of the U. P. Act No. 21 of 1971 (Payment of Salary Act) imposing single operation of accounts. Counter affidavit was filed by the standing counsel. The learned counsel for the petitioner has made a statement that in view of the interim order, dated 1871990 which only was a status quo order and subsequent order passed by the educational authorities, which have also been challenged by the subsequent writ petitions, writ petition No. 14851 of 1990 has become infructuous.
The above writ petition is dismissed as infructuous.
Writ Petition No. 18067 of 1990 was filed ; by the Committee of Management of B.S.M. Samiti (Mahasabha), Roorkee through its President, Sri Ishwar Chand Sharma and Manager, Sri Manohar Lal Sharma seeking a writ of mandamus restraining the respondents No. 1 and 2 not to interfere with the functioning of the Committee of Management of the petitioner on the basis of the alleged election of the respondents No. 3, 4 and 5. The respondent No. 3 is Sri Geeta Ram Misra, Manager of B.S.M. Inter College, respondent No. 4 is the Committee of Management (P.G.) College, Roorkee through Sri Virendra Kumar Bhardwaj and the respondent No. 5 is the Committee of Management, B. S. M. Inter College, Roorkee through its Maaager Sri Bhushan Lal Sharma. la this case on 1871990 an order for maintaining status quo was passed by the learned Single Judge. Sri V.K. Shukla, counsel for the petitioner, has made a statement before the Court that this petition has also become infructuous by lapse of time and it may be dismissed as infructuous.
The writ petition is dismissed as infructuous.
Writ Petition No. 14852 of 1990 was filed by the Committee of Management, B.S.M. P.G.) College, Roorkee, district Hardwar throuh itg President Sri Manohar Lal Sharma for quashing the order dated 671980. Annexure 4 to the writ petition. The O1OS by the impugned order had passed the order for single operation of accounts of the institution under the Payment of Salary Act. Sri V. K. Shukla, counsel for the petitioner, had made a statement that on account of passage of time and subsequent writ orders passed and challenged in the subsequent writ petitions, this petition has also become iufructuous.
Accordingly this writ petition is dismissed as infructuous.
Writ Petition No. 20855 of 1990 has been filed by Sri Iswar Chand Sharma as President of the B.S.M. Samiti Mahasabha, Roorkee, Hardwar challenging the order, dated 551990, Annexure 6 to the writ petition and the orders, dated 751990 Annexures 7,8 and 9 to the writ petition. By the order dated 551990. Annexure 6 to the writ petition, the DIOS decided the applications of the persons for enrolment as members of the B.S.M Samiti Mahasabha. The DIOS by the impugned order directed that the persons mentioned in the accompanying list, whose Bank Draft was received, shall be accepted to be members of the General Body of the Mahasabha with effect from the date of their deposit of the Bank Draft. Communication of the above order was to be made to the Manager/Secretary of the B.S.M Samiti Mahasabha, Roorkee to enrol the name of such persons as members of the general body and they may be permitted to participate in the ensuing election to be held in June 1990. The Annexures 7,8 and 9 to the writ petition dated 751990 are letters of communication sent by the DIOS to various persons mentioned in the list informing that they have been enrolled as members of the General, Body.
In this petition counter affidavit has been filed by the DIOS Sri B.S. Mehta himself. Another counter affidavit with stay vacation application was filed by Sri Bhushan Lal Sharma as Manager of the BSM Inter College. Rejoinder affidavits have been filed on behalf of the petitioner
The petitioner in the writ petition has stated that during 1551988 upto 2061988 about 162 persons including one Sri Mangi Lal Sharma of their own accord applied for becoming enrolled as members of the society. After receipt of the said applications by the Manager of the Society, the applications were so denied in the presence of the President. It was found that the applications for becoming members of the ''Society were submitted on prescribed form to be obtained from the office of the society. The said 162 persons had got the pro forma printed at their own behest and applied for being enrolled as members. Secondly, the membership forms were not in order and also the Bank Drafts were in personal name of the Manager of the Society (Nishi Ram Vaidya). All the persons, who had applied for being enrolled as members were duly informed by the Manager of the society regarding irregularities in the applications forms and Bank Drafts submitted by them. They ware requested to make applications afresh on the prescribed forms to be obtained from the office of the society and furnish Bank Draft in the name of the society''s account. A letter was received, copy of which is Annexure 5 to the writ petition, by the petitioner wherein it was stated that the said persons have not applied for membership nor had contributed ;,any amount for membership fee. Some of the other persons, whose applications were received by the Manager of the committee, sent joint reply making vague and evasive statemoots. Some of such persons i. e. about 10 persons, Sri Mangi Lal Sharina, Suresh Chandra Sharma and others stated in para 10 of the writ petitions after acknowledging the irregularities committed in standing the applications for membership rectified their mistake and submitted fresh forms on the prescribed forms after depositing proper fee were duly enrolled as members of the society. The Bank Draft which were received earlier and were in the personal name of the Manager of the Society were returned with the endorsement made by the Bank to the effect that the payee''s name and account holder''s name differ.
Since the persons, who had submitted applications not on the prescribed forms to be obtained from the office of the society, instead of submitting fresh applications on prescribed forms and Bank Draft in the name of the Mahasabha, submitted an appeal under clause 9(2) of the amended Scheme of administration of the college before the DIOS. The DIOS by his order dated 2271989 dismissed the appeals, a copy of which is Annexure3 to the writ petition. The said order became final and was never challenged anywhere. The aggrieved persons after the order, dated 2271989 submitted an appeal to the District Magistrate, Hardwar requesting him to do the needful. The District Magistrate asked for the comments from the DIOS^Hardwar. in the meantime district Hardwar was created w.e.f. 2421999. Sri B. S. Mehta had taken over as DIOS, Hardwar to initiate proceedings for considering the matter of membership of the society and issued the order dated 2041990, Annexure 4 to the writ petition asking the Manager of the Mahasabha as to why the respectable citizens, who submitted Bank Drafts to the Mahasabha were deprived of being members of the General Body of the Mahasabha and why they be not permitted to participate in the election of the officebearers scheduled to be held in June 1990. He estimated that about 145 persons were refused membership of the Mahasabha.
The learned counsel for the petitioner submitted that the DIOS Saharanpur, under whom till the creation of new district Hardwar was, had already decided the question about the membership of the Mahasabha. The same matter could not be reagitated by the DIOS again. Any matter of the said nature was only amendable to challenge under Section 24/25 of the Societies Registration Act, 1860 before the Prescribed Authority. The petitioner had already filed writ petition No. 11622 of 1990, B, S. Mahasabha v. District Magistrate and others, in which this Court was pleased to pass an interim order on 1451990 as under :
"Meanwhile the operation of the order dated 2041990 shall remain stayed.
Sd/ A. Singh
1451990"
The said order was served on DIOS, Hardwar on 1851990. The learned counsel for the petitioner submitted that the respondents No. 1 and 2 permitted to publish election programme on 161990 and appointed the petitioner Ishwar Chandra Sharma President to hold the election on 2461990.
It has been pointed out that a rival committee of management was attempted to be set up by the respondents No. 3 to 5A. F.I.R. was lodged by the petitioner and a complaint was also sent to the D.I.O.S. The petitioner had to file writ petition No. 18067 of 1990. This Court was pleased to pass an interim order dated 1871990, which is quoted as under :
"Heard Sri A. K. Yog and Sri G. C. Dwivedi and that they agree that meanwhile the parties be directed to maintain status quo. The parties are directed accordingly. Learned counsel for the respondent Sri Dwivedi prays for and is granted time to file counteraffidavit by 2771990. Standing counsel should also file counteraffidavit by 2771990.
List on 3171990.
No further time shall be granted unless for very compelling circumstances.
Sd/ H.C.M.
1871990"
The respondent No. 2, Sri B. S. Mehta, DIOS passed order for single operation with respect to the PostGraduate College of the Mahasabha, which was challenged before this Court by filing a writ petition in writ petition No. 14851 of 1990 and 14852 of 1990, The order of the DIOS in respect of the PostGraduate College was unwarranted and without jurisdiction in which status quo order dated 1871990 referred to above was passed. I need not further enter into the said controversy as both the said writ petitions have been dismissed as infructuous on the statement of the learned counsel for the petitioner. No doubt, the learned counsel for the petitioner pointed out that the contempt proceedings for disobedience of the order, dated 1451990 was pending. The learned counsel for the petitioner submitted that the orders dated 551990 and communication dated 751990 impugned in the writ petition are without jurisdiction. It has been argued that the order dated 551990, Annexure 6 to the writ petition is antedated, which has been stayed by the interim order dated 2981990 passed by this Court.
The learned counsel for the petitioner placed reliance on the case reported in 1989 ALJ 33, Committee of Management, Inter College, Noonapur v. District Inspector of Schools, Kanpur, for substantiating his argument that the DIOS had already decided the matter of membership of the General Body of the Mahasabha by an order, whica was never challenged and had become final. DIOS by the impugned order had no jurisdiction or authority to review or reopen the same matter of membership again. The orders of the DIOS do not show nor there is any such allegation that the earlier order passed by the DIOS was obtained by mistake, misrepresentation or fraud. The Division Bench in the said case referred to another decision reported in 1978 AWC 40, R. S. Chaubty v. District Inspector of Schools, wherein the Division Bench of this Court had held that there is no provision under the Intermediate Education Act or any regulations framed thereunder conferring power on the DIOS of review an Order..., ..The learned counsel for the petitioner cited other decisions repotted in 1980 U. P. L. B. E. C. 43, Jaswant Singh v. District Inspector of Schools, 1980 U. P. L. B. E. C. 209 Committee of Management, Noonapur Inter College, Kanpur v. District Inspector of Schools, for the proposition that reviewing his earlier order by the DIOS is beyond his competence. The learned counsel for the petitioner also cited cases reported in U. P. L. B. E. C. 529 (DB), Committee of Management of Vedic Kanya Inter College, Dadri v. R. L G. S. Meerut 1982 U. P. L. B. E. C. 547 C. M. Baba Raghubir Das Uchchattar Madhyamik Vidyalaya Jamilpur, Azamgarh v. D. D. E., VII Region, Gorakhpur, for the proposition referred to the earlier decision and also for the proposition that the powers under Article 226 of the Constitution when to be exercised. As already held that the question about the membership of the society whether was correctly decided, application for membership duly submitted, requisite amount or membership fee received are such questions of fact which would require evidence. The Scheme of Administration also provides for appeal in such matters of membership. The question about the correctness and legality of the order granting or refusing membership of the society is open to examination by the Civil Court or under the provisions of the Societies Registration Act. It is submitted that the order of the DIOS had once become final in the matter of membership of the society, that was not open for review.
In the counter affidavit Sri B. S. Mehta, DIOS, Hardwar has stated that the appeal preferred to the District Inspector of Schools was not finally disposed of. The learned standing counsel pointed out the Annexure 3, the writ petition, dated 2271989 sent by the DIOS wherein it has been mentioned that the applications for membership of the General Body had not been according to the School of Administration, as such persons had been directed to submit fresh applications to the Manager/Secretary of the Mahasabha according to the rules. The applications for membership since have not been finally rejected, the only irregularities in submission of the applications were pointed out, as such the appeal was not maintainable. The appeal would be maintainable only after the applications for membership were refused by the Manager of the Mahasabha. In the said letter it was also mentioned that the applications for membership according to the approved and amended Scheme of Administration may be submitted so that process for enrolling membership be initiated and completed. In counter, affidavit of Sri Bhushan Lal Sharma in para 4 it is stated that the DIOS had wrongly stated in his letter sent to Sri Ravi Dutt Sharma, who is not the appellant, that no appeal was maintainable. It has been stated that since the appeal filed by the 139 persons had not been replied by the DIOS, a representation was given to the District Magistrate, Hardwar and the Ministry of Education and the DIOS aftet enquiry had admitted 139 applications for the membership of the General Body of the Mahasabha by the impugned order. In the rejoinder affidavit by the petitioner in respect of the allegation of Bhushan Lal Sharma it has been stated that between 1651988 to 2061988 Sri Bhushan Lal Sharma and 161 other persons of their own accord applied for becoming members of the General Body of the Society on forged application forms of the Society. All the said applications were sent by registered post addressed to Vaidya Rishi Ram Sharma in his individual capacity at his village address Jeorasi, district Hardwar. The Bank Drafts accompanying the same also were in the name of Sri Ribhi Ram Shanna and all the allegations were submitted by Sri Ravi Dutt Sharma, father of Sri Bhushan Lal Sharma from his address 25, Maktulpuri, Roorkee. Since all the applications were sent by Sri Ravidutt Sharma, father of Sri Bhushan Lal Sharma, reply was sent by the DIOS to Sri Ravi Dutt Sharma communicating the order of the DIOS. The direction of the DIOS, dated 2271989 was never challenged by the persons who claimed to become members of the Mahasabha. It is pointed out that neither the District Magistrate, Hardwar is the appellate authority of the order of the DIGS nor the order of the DIGS, dated 2271989 could be reopened by Sri B. S. Mehta, DIOS Hardwar. It has been pointed out that the orders of the District Magistrate and the DIGS directing the enrolment of the respondents and others as members of the General Body were in violation of the constitutional right of the petitioner and the order impugned infringed the fundamental right of the petitioner guaranteed under Article 19(3) of the Constitution.
The learned counsel for the petitioner further submitted that the DIGS passed an illegal order holding that the persons, who had deposited their membership fee by Bank Draft became the members with effect from the date of deposit of the Bank draft and communication to the said effect was sent by the DIOS to ail such persons, who bad submitted their Bank Draft as per the lists, Annexures 7, 8 and 9 to the writ petition. The learned counsel for the petitioner submitted that the DIGS could not himself pass orders enrolling the members of the General Body and should have asked or directed the petitioner to do the same as he was of the opinion that there was procedural error committed by the management. The petitioner has specifically stated that the order impugned was passed without notice and opportunity to the petitioner. The DIGS has not filed any documentary evidence to show that the order dated, 551990 impugned was ever communicated to the petitioner. The petitioner stated in para 35 of the writ petition that the copy of the order, dated 551990 was for the first time served with the counteraffidavit in writ petition No. 11622 of 1990 on 1771990. A vague reply has been given by the DIOS Sri B. S. Mehta in para 25 of the counteraffidavit that the order, dated 551990 was sent immediately to the Mahasabha for compliance.
After consideration of the facts and circumstances enumerated above and hearing the learned counsel for the parties at length it is abundantly clear that the order, dated 1451990 passed by this Court in writ petition No. 11622 of 1990 staying the operation of the order, dated 20419iiO and the DIGS, Hardwar received complaint from various respectable citizens of the city complaining that the institution of the petitioner and the Mahasabha were not permitting the citizens to be made as members of the Mahasabha and that the Committee of Management was not functioning democratically but was functioning with sectarian and arbitrary manner. The DIGS had issued notice to the petitioner for submitting the required information and 26th to 30th April, 1990 was fixed for necessary enquiry aad investigation. It is not disputed that this Court had already passed orders dated, 1451990 staying the operation of the said order dated 2041990, which was also served on the DIOS. The DIOS proceeded in a most arbitrary and partial manner and perhaps was in great hurry so that the persons seeking to become members of the General Body of the Mahasabha may be declared as such at the earliest so that they may participate in the ensuing election scheduled to be held in Juno, 1990. The petitioner has impleaded Sri B. S, Mehta, as O. P. by name. He has filed his counteraffidavit also, is apparent from the record that the DIOS has not been able to place any documentary evidence to establish that the order, dated 551990 was immediately served on the petitioner. It is submitted by the DIOS in his counteraffidavit that for the first time the order, dated 551990 was appended as an annexure with the counteraffidavit on 1771990 in writ petition No. 11622 of 1990. The over all facts and counteraffidavit of Sri B. S. Mehta show that he was acting as a partisan to the contesting respondents so that all such persons, whose applications for enrolment for membership of the General Body were not allowed and who had been directed by the DIOS by his earlier order to submit fresh applications with Bank Draft as provided under the Scheme of Administration. Such an order passed by the DIGS cannot be allowed to stand and is liable to be quashed. I further hold that in view of the findings recorded by me in the earlier part of this judgment in writ petition No. 11622 of 1990 relying the decision reported in AIR 1971 SC 966, Smt. Damyanti Narang v. Union of India, the order of the DIGS cannot be allowed to stand, In view of the facts and circumstances mentioned above the writ petition No. 20855 of 1990 is allowed and the impugned order, dated 551990, Annexure 6 to the writ petition and orders of communication, dated 751990, Annexures 7, 8 and 9 to the writ petition respectively are hereby quashed.
Writ Petition No. 31229 of 1990 has been filed on behalf of the B. S. M. Saniiti Mahasabha through its President Sri Mangat Ram, Secretary Sri Virendra Bharadwaj of B. S. M. PostGraduate College and Sri Bhushan Lal Shaima as Manager of the Committee of Management, B. S. M. Inter College praying for a writ of mandamus directing the respondents not to interfere in the functioning of the Committee of Management except in accordance with law and also for declaring the election meeting, dated 2941990 as illegal. Sri R. C. Sinha, counsel for the petitioner, made a statement on 1841995 that the writ petition has become infructuous. This case was directed to be listed for final orders along with the connected writ petitions. In view of the statement of the learned counsel for the petitioner, Sri R. C. Sinha, the writ petition is dismissed as infructuous.
Writ Petition No. 3246 of 1991 has been filed on behalf of the Committee of Management through its Manage! Sri Bhushan Lal Sharma praying for a writ in the nature of certiorari quashing the impugned order, dated 321991. Sri R. C. Sinha, learned counsel for the petitioner, has made a statement on 2141995 that this petition has become infructuous and then it was directed that this case be listed for final orders along with other connected writ petitions. In view of the statement of the learned counsel for the petitioner the writ petition is dismissed as infructuous.
Writ Petition No. 6310 of 1991 has been filed by Sri Manohar Lal Sharma as Manager of the Committee of Management, B. S. M. Inter College for quashing the order, dated 1921991 by which the OIOS had passed an interim direction in pursuance of the interim order, dated 821991 passed by the High Court and the opinion of the Chief Standing Counsel, dated 1821991 the signature of Sri Bhushan Lal Sharma as Manager of the Committee of Management was attested, who also performed the duties a Manager of the Committee of Management till further orders. An interim order was passed by this Court in this writ petition on 1331991 by which it was directed :
"Until further orders in respect of the right to manage B. S. M. Inter College, Roorkee status quo as prevailing immediately before 321991 on which date the order, dated 321991 directing single operation of the account of the institution was passed by the D1OS Hardwar, which has been stayed by this Court by means of an order, dated 821991 in Civil Misc. Writ Petition No. 3246 of 1991 shall be maintained."
The writ petition arises out of an interim arrangement attesting the signature of Sri Bhushan Lal Sharma as Manager till further orders as passed by the D1OS which in fact does not decide any disputed question about the rights of the parties to hold the office of the Manager. The parties of this writ petition have filed as many as II writ petitions one after the other even against such interim arrangement orders of the DIGS. In the present writ petition counteraffidavit and rejoinderaffidavit have been filed, hi view of the facts and circumstances that the other writ petition, in which the rights of the parties are involved, is also being decided along with the present bunch of writ petitions, this writ petition as such does not call for any decision on merits as the result shall follow on the basis of the writ petition which involves the question of rights and validity of the orders of the DIGS in the present case. Further orders about this writ petition shall be stated in the concluding part of the judgment.
Writ Petition No. 32483 of 1990 has been filed by Ishwar Chand Sharma and Rishi Ram Sharma as President and Secretary of the B. S. Mahavidyalaya (Mahasabha) Samiti and Deep Singh as Secretary of the Committee of Management of B. S. Mahavidyalaya (P. G. College) and Sri Manohar Lal as Manager of the Committee of Management of B. S. M. Inter College as petitioners challenging the order, dated 10111990, Annexure 19 to the writ petition, by which Sri B. S. Mehta, District Inspector of Schools, Haridwar approved the election of the office, bearer of the Committee of the Intermediate College said to be held on 2161990 in which Darshan Lal Sharma was said to be elected as President and Bhushan Lal Sharma as Manager of the Committee of Management. Further prayer in the writ petition was for a direction to the DIGS, Haridwar and Sri B. S. Mehta, DIOS by name not to decide the objection, dated 981990, a copy of which is Annexure 26 to the writ petition. Besides other prayer for writ of mandamus directing the respondents not to interfere in the petitioner''s Management of the Institution, direction for making payment of salary on the pay bill submitted by the petitioners. The petition was presented and heard b> this Court on 18121990 and this Court was pleased to pass an interim order which is quoted as under :
"In the meantime, the operation of the order, dated 10121990 (Annexure 19) shall be stayed. In pursuance of that order, the position with regard to the Management of the institution shall not be changed. Respondents Nos. 3 to 7 are restrained to interfere with the petitioner''s Management."
This order still stands and has not been modified or vacated.
As already mentioned, before filing of this writ petition, 8 earlier writ petitions have already been filed by the petitioners and the respondents regarding the same institution and the managerial dispute and also the dispute about the controversy of the enrolment of members of the General Body of B. S. M. Mahasabha. The petitioners again repeated the facts of the case in the writ petition and reiterated the fact that in W. P. No. 11622 of 1990 in which the respondents were also the parties, this Hon''ble Court was pleased to pass the following order :
"Meanwhile the operation of the order, dated 2041990 shall remain stayed.
Sd/ R. A. Singh, J.
1451990."
This order is said to have been served to the DIOS in spite of the said service of the order, it is said that the DIOS accorded permission on 161990 to publish the election programme in the newspaper to Sri Rajendra Sharma, Election Officer appointed by the Management Committee for holding the election on 2461990. Again the fact of filing the writ petition No. 1S067 of 1990 was reiterated and it was said that Hon. Mr. Justice H. C. Mittal passed the interim order, dated 1871990 by which it was said that Sri A.K. Yog representing the petitioners of this writ petition and Sri G. C. Dwivedi representing the contesting respondents of this writ petition had agreed that meanwhile the parties be directed to maintain the status quo. The respondents 1 and 2 in spite of the order, dated 1451990 passed in writ Petition Nos. 18061 of 1990, 14851 of 1990 and 14852 of 1990 passed an order for holding enquiry without notice to the present petitioners of this writ petition with the intention to dislodge the committee of management. This paragraph has been directed against Sri B. S. Mehta, respondent Mo. 2 by name. It is also said that a contempt petition has been filed against Sri B. S. Mehta, the then DIOS on which this court has been pleased to issue notice in the contempt proceedings. Sri B. S. Mehta, the then DIOS had antedated an order, dated 551990 and the copy of the said order was for the first time annexed with the counteraffidavit by the DIOS on 1771990 in Writ Petition No. 11622 of 1990. The petitioners have said that older, dated 751990 (Annexures 3, 4 and 5) were never served to the petitioners and the petitioners have no notice for intimation regarding the said order.
It has been specifically stated in the writ petition in paragraph No. 20 that the DIOS respondent No. 1 and Sri B. S. Mehta, respondent No. 2 in collusion with the respondent Nos. 3 to 7 the surreptitious proceedings have been brought on record. In para 18 of the writ petition, it has been specifically stated that the respondent No. 2 Sri B. S. Mehta being in league with the respondent Nos. 3,4, 5, 6 and 7 and hand in gloves with the respondent Nos. 1 and 2, started manipulating things and as such forged papers and correspondence in order to forestall a rival committee of management of the Society as well as educational institutions. Counteraffidavit has been filed by Sri Bhushan Lal Sharma, opposite party and a counteraffidavit has also been filed by Sri A. S. Khanna on behalf of the office of the DIOS. The DIOS Sri B. S. Mehta in spite of the fact that he was named as opposite party No. 2, has not cared to file and rebut the allegations of bias and mala fide against him in the counteraffidavit. Thus, the fact that the allegations of mala fide of opposite party Nos. 1 and 2 stands uncontroverted. The fact that there had been an interim order already inforce which still continues to be inforce and not vacated, the allegations that the DiOS Sri B. S. Mehta was hand in gloves with the respondents stands proved on account of nonrebuttal. The fact that the orders (Anuaxures 3, 4, and 5 to the writ petition), by which the persons mentioned in the list were directed to be enrolled as members of the General Body of the Mahasabha and the communication in respect thereof are said to have been never served to the petitioners. This fact has been vaguely denied by the affidavit filed on behalf of the DIOS. It has been said in the counteraffidavit that the said orders were sent to the petitioners under certificate of posting. Such important document which were likely to effect the Society, was not likely to be sent under certificate of posting. This allegation that it was sent under certificate of posting is not substantiated by the receipt from the post office, showing the correct address of despatch under certificate of posting. In earlier writ petitions, already referred above, the opposite parties have taken a different stand and it was said in counteraffidavit that soon after passing of the order, the order was sent to the petitioners. Thus, it is apparent that the story of sending said Annexures, 3, 4 and 5 under certificate of posting is a later improvement.
The fact that the interim orders passed by this Court, dated 1451990, 1871990 passed by this Court in Writ Petition Nos. 11622 of 1990 and 18067 of 1990 and order, dated 1331991 passed in Writ Petition No. 6310 of 1991, this court had been pleased to direct the parties to maintain status quo. Thus, it is abundantly clear that there was no necessity or justification on the part of the DIOS to pass the order, dated 10111990 (Annexure 19 to the writ petition). There are allegations of bias and mala fide against Sri B S. Mehta, DIOS who has not controverted the allegations in the writ petition by filing a counteraffidavit. Thus, I am of the view that the orders passed by the DIOS impugned in this writ petition which are in violation of the rule of natural justice, and suffers with bias, cannot be sustained, in the eye of law.
Writ Petition No. 30880 of 1993 has been filed on behalf of the B.S.M. Samiti through its President Sri Ishwar Chandra Sharma and Prabandhak/Sachiv of the registered society Sri Rishi Ram Sharma and Committee of Management through its Manager Sri Monohar Lal Sharma praying for a writ of certiorari quashing the order, dated 2751993, Annexure 13 to the writ petition, by which the election held on 1141993 electing Dr. Rakesh Gaur as Presiding and Dr. Bhushan Lal Sharma as Manager of the Committee of Management of the Inter College was approved by the DIGS, Further prayer was that the respondents be restrained from interfering with the peaceful functioning of the petitioner society and the Committee of Management. As usual again the petitioners filed this fresh writ petition seeking the aforesaid relief, The same fact has been repeated in this writ petition also challenging the order dated 27th May, 1993 passed by the DIOS, Haridwar with mala fide and oblique motives in order to circumbent and do away with the order of an injunction passed by the Munsif, Roorkee dated 3151993 in favour of the petitioners. The petitioners stated that at no point of time, any election was held whatsoever on any date or on 1141993. The petitioners also pleaded that the office bearers allegedly elected namely Sri Rakesh Gaur and Sri Bhushan Lal Sharma, opposite parties Nos. 5 and 4, respectively, neither are members of the Society nor they could be elected office bearers unless they were duly enrolled as members. The learned counsel for the petitioners drew the notice of the court to the interim orders passed in Writ Petition No. 2085 of 1990 and orders dated 551990 and 2981990 by which the orders of the DIOS directing enrolment of the contesting opposite parties and others dated 751990 was sustained. The petitioner again drew the notice of the court to the interim order passed in Writ Petition No. 32483 of 1990 dated 18 121990 passed by this Hon''ble Court by which the order dated 10121990 was stayed and the respondents Nos. 3 to 7 of the said writ petition were restrained not to interfere with the petitioner'' management.
In this writ petition also counteraffidavit has been filed by Sri Bhushan Lal Sharma. No separate counteraffidavit has been filed by the DIOS Sri B. S. Mehta, who has been named as opposite party in his personal capacity of the Society. By the impugned order, Annexure 13 dated 2751993, the election dated 1141993 Dr. Rakesh Gaur and Sri Bhushan Lal Sharma, opposite parties was approved as duly elected office bearers of the Committee of Management of the Intermediate College.
Without discussing at this juncture about the correctness and legality of the order, I proceed to decide the writ petition No. 7345 of 1995 filed by the Committee of Management of Bhushan Lal Sharma seeking a writ of certiorari quashing the order dated 1031995, Annexure 8 to the writ petition, by which the DIOS Sri P. S. Bist dated 1031995 recalled the order dated 2751993 and approved the election held on 1871993 in which Sri Manohar Lal Sharma was elected as manager of the Committee of Management and Sri Sri Kant Gautam as President of the Committee of Management besides other members.
The judgment impugned in this writ petition is dated 1031995 passed by the DIOS, a copy of which is annexed as Annexure 8 to the writ petition. Sri Manohar Lal Sharma, the opposite party in this writ petition filed counteraffidavit and two supplementary counteraffidavits, to which a rejoinder affidavits has been filed by the petitioners.
The controversy raised and decided by the DIOS by the impugned order shows that the election of office bearers said to have been held on 1141993 in which Sri Bhushan Lal Sharma, the petitioner was elected as Manager of the Committee of Management and then DIOS Sri B. S. Mehta by his order dated 2751993 had proved the election of Sri Bhushan Lal Sharma as Manager.
Sri Manohar Lal Sharma moved an application dated 28194 before DIGS for calling the order dated 27593 approving the election of Sri Bhushan Lal Sharma on the ground that the election of the officebearers of the Society was hold on 18793, which was communicated to the DIGS and the then DIGS had not passed any order considering and deciding about the election held on 18793 Sri Manohar Lal Sharma submitted an application before the Education Minister, dated 7294. The Minister of Education was pleased to direct the Dy. Director of Education, Meerut by his letter, dated 22394 for taking appropriate action and issuing directions in this aspect. The D I O S in compliance with the orders of the Dy. Director of Education served a notice to Sri Bhushan Lal Sharma and Sri Manohar Lal Sharma to appear and place their respective cases along with the evidence fixing a date for the purpose.
The D 1 O S referred to the documents and evidence produced before him shows that the orders of the High Court, dated 29890, 181290, 27291 and 13391 which have been passed by this Hon''ble Court had been concealed before the then D I O S and by concealing material and correct facts by playing fraud and misrepresentation had obtained an order of approval for the alleged election, dated 11493. It has been stated in the impugned order that the orders of the High Court, dated 29890 and 181290 by which the then D 1 O S had sanctioned and passed the salary bills for the month of December, 1990 submitted by Sri Bhushan Lal Sharma as Manager in the fact of the fact that there was restrained order by the High Court directing maintaining status quo, the DIGS had violated the orders of the High Court for which the contempt petition has been filed and notice issued to the D I O S and contempt petition still pending consideration. It is also observed in the impugned order that the order dated 3291 which was passed for single operation was also stayed by the order of the High Court in Writ Petition No. 6310 of 1991 dated 13391. The order impugned also shows that the controversy of enrolment of members of the General Body of the Society was in dispute and subjudice before this Court. This court was pleased to pass orders for maintaining the status quo. The DIGS observed that in view of the status quo order and interim orders passed by this Court, referred above, there was no justification for the then D I O S to have proceeded in the matter of approval of the election of Sri Bhushan Lal Sharma as Manager of the Committee of Management.
The last election of the Committee of Management about which there is no dispute was held on 24690 and the tenure of the office bearers of the said elected officebearers according to the Scheme of Administration was effective up to 24793 i. e. three years one month. There was no justification for holding the election by Sri Bhushan Lal Sharma before the expiry of the tenure of the officebearers. The DIGS has referred to evidence about the due conduct of the election after publication in the newspaper etc. in the impugned order.
The petitioners have submitted his case before the DIGS that the election of the officebearers of the Committee of Management was held on 11493 which was approved by the DIGS. The then DIGS had permitted to hold election by his order, dated 15393 and the then Accounts Officer, Sri Mahesh Chand Pant was the Observer appointed. The election held on 11493 was approved by then D I O S by his letter, dated 27593.
The learned counsel for the petitioners has submitted the legal arguments namely the D I O S once attested the signature of the petitioner No. 2, had no jurisdiction to review the earlier order, dated 27593. He also submitted that there is no provision of the U. P. Intermediate Education Act, 1921 and regulations framed thereunder. The learned counsel for the petition submitted that there is no specific finding in the order impugned that the attestation and approval by the then DIGS, dated 27593 was passed under some misrepresentation and fraud or was the result of mistake in the sense that it was based on incorrect facts. The learned counsel for the petitioners submitted that the application before the Minister for Education and the order of the Dy. Director of Education directing the DI O S to take necessary action was also without jurisdiction. No such direction could have been given by them. The dispute, if any, was to be raised before the competent civil court. The learned counsel for the petitioners submitted that since after the order, dated 27593, the petitioner namely Sri Bhushan Lal Sharma as committee of management is ineffective control over the institution and is managing the affairs of the Institution.
The perusal of the order impugned and the record of the writ petition shows that the petitions ; have not denied the fact that the orders passed by this Court, dated 29890, 181290, 27290 and 13391 still stands and holds good. The said orders have not been modified, recalled by any subsequent order. It has been pointed out and apparent from the record that the application and order for enrolling 139 persons as Manager of the General Body of the Mahasabha by which Sri Bhushan Lal Sharma and others were directed to be enrolled as members of the Mahasabha with effect from the date of deposit of the Bank Draft of membership fee was stayed by this Court by order, dated 29890. Thus, the D I O S was of the view that Sri Bhushan Lal Sharma petitioner and the alleged election held could not be a valid election of the officebearers of the Society of which Sri Bhushan Lal Sharma and persons of 139 in the list accompanied with the order, dated 5590 and 7590 could not participate and held any election of the officebearers of the Mahashabha. The D 1 O S in the concluding part of the order impugned found that the parties to the present writ petition are litigating in various writ petitions, referred above, and interim orders passed by this Court and matter is still to be finally decided. It was also found that by the stay orders passed by this Court dated 13391, the status quo as existed prior to 3291 was to be maintained and the said order is still inforce. He also found that the order approving attestation of the signature of Sri Bhushan Lal Sharma approving the election of the officebearers under him was passed by the then D I O S Sri B. S. Mehta without notice or opportunity to the respondents of this writ petition. He was also of the view that the election alleged to have been held before the expiry of the term of the officebearers of the last elected committee of management was without any reason or justification for which there was no order by any competent authority to hold the election afresh before expiry of the tenure.
The recall application of Sri Manohar Lal Sharma as Manager of committee of Management elected on 27593 was allowed and the order, dated 27593 approving the election of the officebearers of Sri Bhushan Lal Sharma was set aside. The election of the officebearers under Sri Manohar Lal Sharma as Manager, dated 18793 has approved by the impugned order.
After consideration of the arguments of the learned counsel for the parties, it emerges clearly that the controversy about the enrolment of the members of the General Body of the Mahasabha raised by the parties is still subjudice in the writ petition before this Court and by speaking order of this court, dated 29890, passed by this Court in Writ Petition No. 14852 of 1990 staying the operation of the order, dated 7590. The entire controversy and dispute apparently is on account of the partisan attitude of the then D I O S. Sri B. S. Mehta who in spite of the fact and orders of this Court, ignored the same and flouted the High Court''s order for which contempt petition is pending against him. I have already held in the earlier part of this judgment that the then DIOS Sri B. S. Mehta against whom allegations of mala fide was made specifically in Writ Petition No. 32483 of 1990, No counter affidavit rebutting the allegations levelled against him, was filed by him, The fact that the then DIOS, Sri B. S. Mehta passed orders in favour of Sri Bhushan Lal Sharma approving his election on 11493 was passed without notice to Sri Manohar Lal Sharma. This was in violation of rule of natural justice.
I have no hesitation in holding that the DIOS Sri B. S. Mehta had exceeded his jurisdiction and acted with a partisan attitude in passing the orders in favour of Sri Bhushan Lal Sharma. There was no justification for the then DIOS to have passed the orders in the controversy about the Management of the Committee of Management pending before the High Court between Sri Bhushan Lal Sharma and Sri Manohar Lal Sharma in view of the fact of the stay orders already enforced at the relevant time. In case Sri Bhushan Lal Sharma and 139 persons who had sought for the membership of the Mahasabha, the course open was for applying tor the membership in accordance with the Rules of the Society to the Mahasabha. The dispute about the membership question was once decided by the earlier DIOS, Saharanpur as at that time Haridwar was not a separate district, it used to be under District Saharanpur. That order had become final. Thereafter when District Haridwar was created, Sri B. S. Mehta joined as DIOS, Haridwar. There was no occasion for legal sanction for the District Magistrate to have issued directions for enquiring into the dispute for membership of the Mahasabha and the enquiry conducted by the DIOS appears to be patently illegal. The dispute about the membership could be legally egitated according to the Rules of the Society, or before the Registrar under the Societies Registration Act or before the competent civil court. The dispute was not within the domain of the DIOS to have made enquiries and passed orders for enrolling members of the Mahasabha. In view of the judgment given about the membership issued itself relying decision of the Hon''ble Supreme Court in the earlier part of the judgment also shows that the action of the DIOS was wholly unwarranted.
There was no justification for the DIOS to have passed the orders appointing the observer for holding election through Sri Bhushan Lal Sharma whose membership of the Society itself was subjudice and under cloud. It is also to be noted that the direction for holding the election prior to the expiry of the tenure of the office bearers of the elected Committee of the Management by the DIOS and approving the same is also patently illegal for want of any legal sanction or reason justifying the same.
After due consideration of the facts and circumstances, mentioned above, I am of the view that the order passed by the DIOS deserves to be quashed for the reasons, stated above, and the alleged election of Sri Bhushan Lal Sharma and Dr. Rakesh Gaur as Manager and President of the Committee of Management allegedly held on 1141993 is quashed.
So far as the correctness and legality of the impugned order in writ petition No. 7345 of 1995 is concerned, I am of the view that the DIOS was perfectly justified and had acted in accordance with law in recalling the earlier order dated 2751993 passed by the then DIOS approving the election dated 1871993.
The order of the DIOS dated 1031995 impugned in this writ petition so far recalling of the order of the then DIOS dated 1871993 is concerned, is perfectly just and legal and is thus maintained. Now it is necessary for this court to pass appropriate directions in the present writ petition. Admittedly the last election of the Committee of Management was held on 2461990 and the term of the Committee of Management according to the approval scheme of administration is for three years and the election could be held in next one month after expiry of three years by the elected Committee of Management. It is not disputed that before expiry of the term of the Committee of Management which was to expire on 2361993 and one month i.e. 2371993, the dispute came before this court and this court had been pleased to pass orders for maintaining status quo. Thus, neither Sri Manohar Lal Sharma nor Sri Bhushan Lal Sharma were competent to proceed in the mutter of election unless orders of this court was modified to that extent. The DIGS should have also taken note of the fact that in view of the High Court''s order, the status quo should have been maintained at all costs. It was for the parties specifically for Sri Manohar Lal Sharma to have come before this Court and applied for leave to hold election of the office bearers of the Committee of Management which was likely to come to an end on 24th June, 1993 plus one month i.e. 24th July, 1993. He also chose not to come to this court for any clarification or further orders and conveniently obtained some orders from the D1OS to appoint the observer for the election of his Committee of Management. Now the position that emerges is that after expiry of the term of the office bearers of the Committee of Management on 24th July, 1993, there was no justification for either of the parties to proceed for holding election. It was for the D1OS at that time to have either moved this Court or to have asked the parties to approach this Court for clarification and specific direction about holding the election after expiry of the term, according to law and Scheme of Administration. This was not done. The course open after the expiry of the term of the Committee of Management is to pass appropriate orders by the Dy. Director of Education to appoint an authorised controller for holding the election of the office bearers, within a specified period. Exercising the powers under Article 227 of the Constitution, I am of the view that the direction be issued to the DIOS, Haridwar to appoint an Associate/Addl./ Sub/Dy. DIOS as an authorised controller within a period of three weeks from the date of filing a certified copy of this order who may be directed to hold election of office bearers, according to law, within next two months of the date of appointment of authorised controller who shall also work as managing committee till the election is held and charge is given to the elected office bearer after approval by the DIOS. The parties interested in issue of membership of the Society, may seek appropriate relief from the competent civil court, if so advised. The challenge, if any about the membership issue would not deter the authorised controller in proceeding for holding of elections.
In view of the. above discussions, writ petition Nos. 11622 of 1990, 20855 of 1990 and 30880 of 1993 are allowed with costs, which I assess Rs. 1,000 for each petition, recoverable from Sri Bhushan Lal Sharma.
Writ Petition Nos. 14851 of 1990, 18867 of 1990, 14852 of 1990, 31229 of 1990. 32483 of 1990 and 3246 of 1991 are declared infructuous and are dismissed as such. The parties to bear costs.
Writ Petition No. 7345 of 1995 is dismissed with the observations and directions for compliance by the; DIOS.
Writ Petition No. 6310 of 1991 is allowed in view of the facts and finding, recorded above that Sri Bhushan Lal Sharma was not a member of the General Body and the matter was subjudice. The orders passed on 2921991 deserves to be quashed.
Before concluding, I would like to make certain comments about the filing of the successive writ petitions by the petitioner and the respondents about the same controversy and dispute before this Court. Eleven writ petitions have been filed by the petitioners and the respondents which has unnecessarily burdened the record and consumed time unnecessarily. The petitioners could have conveniently sought for amendment in the writ petition when he was aggrieved by subsequent orders and directions of the DIOS. This was not done. I have been experiencing that large number of petitions arising out of one and same institution are unnecessarily been filed. While deciding the writ petition reported in 1994 A LJ 1116 (DB), M/s. Munna Industries v. State of U. P., I had made observations in paragraph 20 of the judgment. It was suggested that necessary amendments be made in the provisions of Chapter 22. Rule 7 of the High Court Rules, which may require the petitioner to categorically state in the first paragraph of the writ petition that no earlier writ petition in the same matter or arising out of the same matter is pending or decided before this Court. If such statement is made by the petitioner in the writ petition, multiplicity of the writ petitions by the same parties could be avoided and for subsequent orders, if any passed requiring a relief by the petitioner, could be added in the writ petition by a seeking appropriate amendments. The Division Bench requested that the Hon''ble Chief Justice may get suitable amendments made in Chapter 22 of the High Court Rules indicating the suggested provisions, a copy of this order alongwith a copy of the judgment of C. M. Writ Petition No. 13639 of 1993, M/s Munna Industries v. State of U. P. reported in 1994 ALJ 1116 be placed before the Hon''ble Chief Justice by the office for necessary action for amendments in the High Court Rules.
Decided accordingly.