Maharaja Jiwajirao Education Society vs State of M.P.and Others

Sujoy Paul, J.—By filing these review petitions, the petitioners have prayed for review of the common order passed by this Court in W.P. Nos. 3926/2012 (Maharaja Jiwajirao Education Society v. State of M.P.& Ors.) and 6443/2012 (Dr. Padam Jain & Ors. v. State of M.P.& Ors.). Since common questions of fact and law are involved in these review petitions, on the request of the parties, matters are analogously heard and decided by this common order. Shri K.N. Gupta, Senior Advocate with Shri Ankur Mody, learned counsel for the petitioner in R.P. No. 413/12 and Shri N.K. Gupta, learned counsel for the petitioners in R.P. No. 15/13, submit that in the writ petitions the action of the respondents was called in question on the ground that the show-cause notice and impugned proceedings are impermissible and without authority of law. The main ground for this submission was that the Registrar can take action in accordance with the mandate of Section 32 of the Madhya Pradesh Society Registrikaran Adhiniyam, 1973. For the purpose of this action, application seeking enquiry must be supported by 1/3rd members of the society. Learned counsel for the petitioners submit that necessary numbers (1/3rd) was not there if Shri Babu Lal Jain (respondent No. 5) in W.P. No. 3926/12 is not taken into account. In other words, the bone of contention of the petitioners in the writ petitions aforesaid was that respondent No. 5-Babu Lal Jain was not a member of the society and minus Babu Lal Jain, the application does not have the support of 1/3rd members of the society. This Court disapproved the said contention in para 18 of the judgment by holding that Babu Lal Jain was a founder member and this has already been held in the earlier round of litigation in W.P. No. 4687/2005 (Maharaja Jiwajirao Education Society and another vs. State of MP and others). Learned counsel for the petitioners submit that this Court gave a finding that in Maharaja Jiwajirao Education Society (supra) this Court has already given a finding that Babu Lal Jain is very much a member, whereas in the said case, Babu Lal Jain was not at all a party and the finding was given with regard to Shri Raghav Ji who was respondent No. 5 in W.P. No. 4687/2005. He submits that the entire judgment and finding is based on this assumption of this Court that Babul Lal Jain was held to be a member in the earlier round of litigation which is factually incorrect, and therefore, this may be treated as an error apparent on the face of the record which requires review.

Per contra, Shri R.D. Jain, Advocate General assisted by Shri Vivek Khedkar, Deputy Advocate General for the State, submits that it cannot be disputed that Babu Lal Jain was not a party in W.P. No. 4687/2005 and to that extent the finding of this Court is erroneous, yet the entire order of this Court need not be disturbed. In other words, it is argued that inadvertently this Court had treated Babu Lal Jain as respondent No. 5 in W.P. No. 4687/05, but fact remains that Babu Lal Jain and Raghav Ji are similarly situated. They were founder members of the society, their names find place in the same set of documents, bye-laws of the society etc., and therefore, this error will not have an effect of nullifying the entire order. He relied on State of Nagaland and Another Vs. Toulvi Kibami and Another, , Santosh Kumar Vs. Smt. Shanti Bai and Another, , Veer Singh Vs. State of M.P. and Another, , Mohammad Matin Vs. The Additional District Judge, Kanpur and Others, , Jagdishkumar Agrawal Vs. State of U.P. and Another, , Shree Nath Mishra Vs. State Bank of India and Others, , National Motors Vs. The Punjab State, and 2012 LE (MP) 373 (Bhagwati Sharma v. State of M.P.). Learned Advocate General further submits that Annexure P/6 dated 22.12.1994 is the main document which was before the Writ Court and if this document is examined properly, the conclusions drawn by this Court in the Writ Petitions will not be disturbed. He relied on Annexure R/6 to submit that Babu Lal Jain was founder member and his signatures are also there. Learned Advocate General relied on Annexure R/6 clause 12 to submit that unless Babu Lal Jain is removed in accordance with the bye-laws, he will continue to be a member, and therefore, the findings given by this Court in the Writ Petitions are not required to be disturbed or altered. Lastly, it is stated on the strength of Toulvi Kibami (supra) that once the order passed in Writ Petition stood implemented, there is no scope of review of the said order.

Shri H.D. Gupta, learned Senior Counsel with Shri Santosh Agrawal, Advocate for respondents No. 5 & 6, borrowed the arguments of learned Advocate General.

I have heard learned counsel for the parties and perused the record.

It is apt to quote paragraph 18 of the order on the strength of which review is sought for, which reads thus:-

(18) A bare perusal of judgments on the point shows that there is no thumb rule or straight-jacket formula for applying the doctrine of merger. Unless there is some adjudication on merits, doctrine of merger has no application. In the present case, the learned writ court has passed a detailed order on merits in the case of Maharaja Jiwajirao Education Society (supra). By the time matter was finally taken up in writ appeal, statutory period of supersession of the society was over and, therefore, the Division Bench issued direction for conducting elections. There was no occasion for the Division Bench to examine the correctness of the orders passed by the learned writ court. Resultantly, no opinion on merits is expressed and as a matter of course, it is directed to follow the Statute and conduct elections. In those circumstances, in the considered opinion of this Court, the doctrine of merger cannot be pressed into service and it cannot be held that the findings of writ court are vanished or merged by the Division Bench. In my opinion, the Division Bench has given a passing remark about political bias raised by appellants and this remark cannot be treated as finding on the issue. Apart from this, the document Annexure P/6 dated 22/12/1994 was part of W.P. in Maharaja Jiwajirao Education Society (supra) and yet Babulal Jain was treated as member by writ Court. On the basis of aforesaid analysis, it is clear that the findings of learned writ court in Maharaja Jiwajirao Education Society (supra) are not disturbed which contain a specific finding regarding membership of Babulal Jain. Thus, Babulal Jain is very much a member. Apart from this, in para 48 in Maharaja Jiwajirao Education Society (supra) the writ court gave a finding that respondent No. 5 (Babulal Jain) was a member, who had subscribed to the formation of the society in the year 1990. In fact, he is a founder secretary of the society and is one of the seven persons who had subscribed to form the society. Therefore, it was construed that he had a interest in the affairs of the society as he had played role in establishment of the society. It is further opined by this Court that it would be natural for a person interested in the affairs of the society to make endeavour for highlighting the illegality, if any, being committed in the working of the society. Thus, the point that Babulal Jain is not a member is decided against the petitioners.

A bare perusal of this finding shows that this Court has treated Babu Lal Jain as party respondent (respondent No. 5) in W.P. No. 4687/05. It is not in dispute between the parties in these review petitions that this finding is factually incorrect. Thus, the singular question is whether this finding requires the review of the entire order or the contention of learned Advocate General should be accepted that despite changing this finding that Babu Lal Jain was not a member and there is no finding with regard to Babu Lal Jain in Maharaja Jiwajirao Education Society (supra), the order need not be disturbed.

In the considered opinion of this Court, the entire edifice of the order passed in the Writ Petitions is based on the finding of this Court that Babu Lal Jain was held to be a member in the earlier round of litigation in W.P. No. 4687/2005. On the strength of this finding, this Court opined in paragraph 18 as aforesaid. The other documents which are heavily relied upon by learned Advocate General were not taken into account while giving finding in paragraph 18 of the order. In review it is neither proper nor permissible to hear and appreciate the matter as a Court of first instance. The question is whether the finding in para 18 of the order amounts to error apparent on the face of the record and whether it needs review. This is settled law that such errors which are manifest and no elaborate arguments are required to establish them are ''errors apparent on the face of the record''. In the present case, the error is manifest and palpable. No elaborate arguments were required to establish them and in fact the parties are in agreement on the point that this Court has erred in holding that Babu Lal Jain was respondent No. 5 in W.P. No. 4687/05. Thus, in my opinion, the finding in paragraph 18 of the order amounts to an error apparent on the face of the record.

Once this Court comes to the conclusion that such error amounts to an error apparent on the face of the record and the other documents on which heavy reliance is placed by learned Advocate General were not marshaled and examined in the original case, it will not be proper for this Court to examine them for the first time at review stage. In the further opinion of this Court, the finding of para 18 is the main finding on the strength of which this Court upheld the action of the respondents. In original side/Writ Petition the parties may be heard on other available documents but in review petitions it will not be in accordance with law to hear the parties on the documents on which no findings are given in the impugned order dated 30.11.2012.

Apart from this, Review Petition No. 413/12 is filed by the petitioner on 3rd December, 2012 and the alleged order of the State Government/Department taking further action is passed on 5.12.2012. Accordingly, the judgment in Toulvi Kibami (supra) is of no assistance to the respondents. The judgments cited by learned Advocate General have no application in the facts and circumstances of the present case. In the fitness of things, I deem it proper to review and recall the order dated 30.11.2012 for the reasons stated above. I do so accordingly. The order dated 30.11.2012 passed in W.P. Nos. 3926/12 and 6443/12 is reviewed and recalled. Both the Writ Petitions are restored to their original number. The Registry is directed to list the Writ Petitions for further consideration forthwith before the appropriate Bench. Review Petitions are disposed of with the aforesaid.