Dushyant Kumar vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

The application, seeking condonation of 57 days' delay in preferring this Special Appeal, is not opposed by Sri A.K. Sharma, learned counsel for the respondent-writ petitioner. The application, seeking condonation of delay in preferring this Special Appeal, is therefore ordered, and the delay is condoned. The application seeking leave to appeal is also allowed.

Sri A.K. Sharma, learned counsel for the respondent-writ petitioner, would submit, not without justification, that the appellant cannot avail two remedies simultaneously; and, since the appellant herein has already filed an application seeking review of the order under appeal, he is not entitled to simultaneously avail the remedy of filing an appeal against the very same order.

When we asked Sri Parikshit Saini, learned counsel for the appellant, regarding the justification for the appellant to avail two parallel remedies simultaneously, learned counsel would submit that the appellant would withdraw the application seeking review of the order under appeal, and this Court may consider examining the order under appeal on its merits. Recording the above submission of Sri Parikshit Saini, learned counsel for the appellant, we shall examine the appeal on its merits.

The jurisdiction of this Court was invoked by the respondent-writ petitioner seeking a mandamus directing the respondent-authorities to hold elections for the Committee of Management of the B.D. Inter College, Bhagwanpur, District Haridwar.

Facts, as noted in the order under appeal, are that the Additional Director of Education, Garhwal Mandal, Pauri was appointed as the Administrator for the management of the B.D. Inter College, Bhagwanpur on 29.03.2011; it is the respondent-writ petitioner's complaint that though the five-year period, for which an Administrator can be in-charge, came to an end, no elections have been held till date; the Scheme of Administration stipulates that the Committee of Management would continue only for a period of three years; Writ Petition (M/S) No. 2574 of 2012 was filed before this Court, and was disposed of by order dated 02.01.2014 directing the Registrar, Firms, Societies and Chits to look into the matter, and in case he came to the conclusion that the membership was valid, he should then pass a speaking order to that effect, giving details of manner in which each person became the member of the Society; if he came to the conclusion that inclusion of those members was wrong and invalid, in the same manner, he should give reasons; he should decide the matter as expeditiously as possible and, in any event, within eight weeks from the date of production of a certified copy of the order; till a decision was reached by the Registrar, the results of the election, which was subject matter of the writ petition, should not be declared; in compliance with the said order, the Registrar, Firms, Societies and Chits passed an order that the list of 387 members, headed by the appellant, had been approved on 29.03.2014; the appellant filed Special Appeal No. 28 of 2014, which was withdrawn on 02.04.2014; subsequently, two Special Appeals bearing Nos. 569 and 567 of 2014 were filed, which were also dismissed by order dated 25.08.2015; thereafter, Special Appeal Nos. 550 and 549 of 2015 were filed which were also dismissed on 14.07.2017; the term of the Committee of Management was only three years, which had already lapsed on 12.12.2014; there was no dispute regarding the membership of the Society; the respondent-writ petitioner, thereafter, approached the Director of Education, Madhyamik Shiksha, Dehradun requesting that elections for the Committee of Management be held; and, on the ground that the Director had not passed any order, the appellant had invoked the jurisdiction of this Court.

The learned Single Judge took note of the contents of the counter-affidavit that the respondent-Institution was a Government-aided School; various writ petitions were filed challenging the elections held in the year 2013; because of the pendency of these writ petitions, elections to the Committee of Management could not be held; the then Chief Education Officer, Haridwar had passed an order to hold election on 29.12.2012, and had also appointed an Election Officer on 29.12.2012; it is, thereafter, that Writ Petition (M/S) No. 2574 of 2012 was filed, and an order was passed on 20.01.2013 directing that the results of the election be not declared; thereafter the Registrar, Firms, Societies and Chits had submitted his report on 29.03.2014; the said order was stayed by the Commissioner, Garhwal Mandal, Pauri, on 05.04.2014; thereafter, one Mahendra Singh filed Writ Petition (M/S) No. 1997 of 2014 before this Court; thereafter, Mahendra Singh filed Writ Petition (M/S) No. 1686 of 2015 seeking a direction to conduct elections to the Committee of Management; the said writ petition was dismissed for non-prosecution on 03.08.2017; and, thereafter, Mahendra Singh had submitted letters to the Chief Education Officer, Haridwar mentioning therein Special Appeal Nos. 567 and 569 of 2014 filed by Baburam Tyagi and Dharamveer Singh challenging the order dated 02.01.2014.

After extracting the order passed in these Special Appeals on 25.08.2015, the learned Single Judge noted the submission, urged on behalf of the respondent-writ petitioner, that pendency of the writ petitions would not come in the way of conducting elections to the Committee of Management of the Institution, as another set of Special Appeals was decided by the Court; despite specific directions of the Director of Education to the Chief Education Officer, Haridwar to hold election of the Committee of Management, elections have not been conducted so far, though there is no order restraining the holding of elections; and, since the Sub Divisional Magistrate, Bhagwanpur, District Haridwar is the prescribed authority to hold elections, the authority be directed to hold election as expeditiously as possible; and an Authorized Controller cannot continue for an indefinite period.

Considering the prayer to be innocuous, the learned Single Judge directed the authority, i.e. the Sub-Divisional Magistrate, Bhagwanpur, District Haridwar to hold elections of the Committee of Management. Aggrieved thereby, the appellant, a member of the General Body of the Society, has preferred this intra-Court appeal.

Sri Parikshit Saini, learned counsel for the appellant, would submit that, in terms of the Scheme of Administration applicable to the subject-college, the Committee of Management is entitled to continue for a term of three years commencing from the date on which they assume charge; in the present case, the elections were itself interdicted and, consequently, the Committee of Management, which was successful in the elections held in the year 2012, has not assumed charge ever since; on the dispute regarding membership of the General Body, in relation to the subject-elections, being referred under Section 25(1) of the Societies Registration Act, the matter is seized by the prescribed authority (Sub-Divisional Magistrate) under Section 25(2) thereof; it is only thereafter, if the earlier elections were held to be illegal, can the Registrar, Firms, Societies and Chits then hold a meeting to elect a new Committee of Management; and, since the Administrator continues in office ever since 2012 till date, the learned Single Judge was not justified in directing the Sub-Divisional Magistrate to hold elections to the Committee of Management.

On the other hand Sri A.K. Sharma, learned counsel for the respondent-writ petitioner, would submit that, in terms of Section 34 (4) of the Uttarakhand School Education Act, 2006 (for short the '2006 Act'), the maximum period for which the administration of an aided college can be entrusted to an Administrator is five years; the five-year period expired in the year 2017, despite which the Administrator continues to remain in-charge; and it is for this reason that the learned Single Judge had directed that the elections be held to the Committee of Management of the subject-college.

It is true that Section 34 (4) of the 2006 Act confers power on the Director of Education to recommend to the State Government to appoint an Authorised Controller, and for the State Government to appoint him for a period of two years. Under the first proviso, the term of office of the Authorised Controller cannot exceed five years. Under the second proviso, the State Government may continue the Authorized Controller till it is satisfied that a Committee of Management is duly constituted.

While it is not known whether the Registrar, Firms, Societies and Chits had periodically extended the term of office of the Authorised Controller, it is not in dispute that the maximum period of five years, as stipulated in the first proviso to Section 34(4), expired two years ago in the year 2017, and yet the Authorised Controller continues to control administration of the college.

As noted hereinabove, the order of this Court in Writ Petition (M/S) No. 2574 of 2012 and batch dated 02.01.2014 required the Registrar, Firms, Societies and Chits to decide the matter expeditiously within eight weeks, and till the Registrar, Firms, Societies and Chits takes a decision, the result of the election was directed to be stayed. The Registrar, Firms, Societies and Chits, thereafter, passed order dated 29.03.2014 setting aside the election. Aggrieved thereby, the jurisdiction of this Court was invoked again by way of Writ Petition (M/S) No. 2332 of 2014 which was dismissed on 08.04.2019. Against the said order, Special Appeal No. 680 of 2019 was preferred and we had, in our dated 26.07.2019, observed that, since the order passed by the Registrar of Societies was on the assumption of jurisdiction which he did not have, and since Section 25(1) only conferred on him the power to refer the matter to the Prescribed Authority (Sub-Divisional Magistrate) and not to undertake the task of determining the validity of the election of members, both the order under appeal, and the order impugned in the writ petition, were liable to be set aside. The Registrar was directed to refer the matter to the Sub-Divisional Magistrate who, after affording an opportunity of being heard to all the parties concerned, was directed to pass an order in accordance with law.

It is not in dispute that the matter is now pending before the Sub-Divisional Magistrate. On account of the repeated invocation of the jurisdiction of this Court, by one or the other members of the Society, the present situation has arisen, where the Authorised Controller continues in office, despite the legislative mandate under the first proviso to Section 34 (4) of the Uttarakhand School Education Act which stipulates that the maximum period, for which an Authorised Controller can hold office, is five years. While elections, to constitute a Committee of Management, can be held, if the three year period of the erstwhile Committee of Management has expired, that again is the subject matter of the proceedings before the Sub Divisional Magistrate in the light of the order passed by this Court in Writ Petition (M/S) No. 2574 of 2012 and batch dated 02.01.2014; and since the Committee of Management, which was declared successful in the elections held in the year 2012 admittedly never took charge, the question whether the term of three years of the then Committee of Management has come to an end is also the subject matter of the proceedings pending before the Sub Divisional Magistrate, on the matter being referred to him by the Registrar, Firms, Societies and Chits.

With a view to resolve this dispute in its entirety, it is necessary that the Sub-Divisional Magistrate passes an order, under Section 25(1) of the Societies Registration Act, with utmost expedition, for it is only after he passes an order, under Section 25(1) of the Societies Registration Act, would the question of the Registrar, Firms, Societies and Chits, exercising powers under Section 25(2) of the Societies Registration Act to conduct an election afresh, arise for consideration. If elections, to the erstwhile Committee of Management is set aside by the Sub-Divisional Magistrate, it is open to the Registrar, Firms, Societies and Chits thereafter, under Section 25(2), to direct that fresh elections be held. If, on the other hand, elections, of the erstwhile Committee of Management, held in the year 2012 is upheld by the Sub-Divisional Magistrate, then the said Committee of Management may possibly claim to be entitled to hold office for a period of three years from the date they assume charge. In any view of the matter, the inquiry pending before the Sub Divisional Magistrate necessitates early disposal. Since this issue has been lingering on for more than seven years, and has now resulted in a situation where the Authorised Controller continues to hold office despite expiry of the maximum period of five years stipulated in the first proviso to Section 34(4), we direct the Sub Divisional Magistrate to hear and decide the matter pending before him with utmost expedition and, in any event, within two months from the date of production of a certified copy of this order, after giving the parties, to the proceedings pending before him, a reasonable opportunity of being heard.

It is made clear that any attempt by any of the parties, to drag on the proceedings, shall be sternly dealt with by the Sub Divisional Magistrate who shall, irrespective of any such attempt, pass orders under Section 25(1) of the Societies Registration Act within the time stipulated hereinabove.

The order under appeal is set aside, and the Special Appeal is disposed of in terms of the directions hereinabove mentioned. No costs.