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Judgment
Since the Review Petition against our judgment and order dated 28th September, 2007 passed in Special Appeal No. 796 of 2007 has been filed by the same very persons who are respondents in Special Appeal No. 110 of 2009, therefore, the same is being taken-up together along with the Special Appeal No. 964 of 2007 filed by the same very persons, viz; Naresh Chandra Bhargava, Mahabir Singh, who had filed Special Appeal No. 796 of 2009, the review of which order is being sought for and which also raises the same very questions of facts and law, and are being decided by a common judgment and order.
In short to clear the controversy involved, it would be appropriate to put on record the following facts. Uttar Pradesh Society for Child Welfare, (hereinafter referred to as ''the Society'' ) registered under the Societies Registration Act, 1860 (hereinafter referred to as ''the Act'' ) was established for the welfare of the children of the State. The Governor of Uttar Pradesh is the Ex-Officio President of the Society. The term of the elected Committee of Management is three years and in accordance with the bye-laws of the Society, the elections are to be held after three years by a decision taken in an Annual General Meeting to be convened under orders issued by his Excellency the Governor of Uttar Pradesh.
Un-disputedly the last elections were held in the year 2001 and the elections which were held on 30th September 2004 became the subject matter of challenge, which was disputed by certain persons who claimed themselves to be the life members viz; 24 in number and who were allegedly unilaterally and illegally removed from the membership of the Society and in contrast 267 new members were illegally enrolled allegedly without looking to their criminal antecedents and of course in violation of the Rules framed under the bye-laws in an illegal and arbitrary manner. Concern of the persons aggrieved, who claimed themselves to be the validly enrolled life members, who were illegally allegedly ousted in the elections of the year 2004, preferred a Writ Petition No. 4650 (MS) of 2004, in which an interim order of stay was passed on 14.10.2004 staying the operation of the order dated 29.9.2004 passed by the Registrar, Firms, Societies and Chits in which subsequent proceedings were also ordered to be stayed.
The said Writ Petition was ultimately dismissed on 27.05.2005, against which order, Special Appeal No. 361 of 2005 was filed which was allowed vide order dated 8.11.2005 and the Registrar was directed to hold the elections again within a period of four months after verifying the correctness of the list of members.
Against the aforesaid order passed in Special Appeal No. 361 of 2005, SLP No. 25498 of 2005 was filed by the Committee, which was allowed by the Supreme Court vide its order dated 5.5.2006. The Supreme Court while considering the Special Leave Petition, after hearing both the parties, on the submission made by the counsel for the respondents namely; Sri Naresh Chandra Bhargava and Mahabir Singh that they were prepared to withdraw the writ petition filed by them before the learned Single Judge and file an Election Petition u/s 25(1) of the Act, gave liberty to file Election Petition with a further direction that, if such a Petition is filed within 30 days, it shall not be dismissed on the ground of limitation because the respondents were pursuing litigation before wrong forum. The Writ Petition as well as the SLP were disposed of accordingly by the apex court.
At this juncture, it would be relevant to mention that the dispute in the Writ Petition No. 4650(MS) of 2004 filed by the present appellants, in substance was a challenge to the determination of membership by the Registrar for holding the elections in which 24 life members allegedly were illegally ousted and 267 new members were inducted. The election, which was held on 30th September 2004, was an election which is said to have been held with the members who could not have been legally enrolled nor were legally enrolled (267 in number) and the members who were duly enrolled members (24 life members) were denied participation in the elections.
The Supreme Court considering the aforesaid fact wherein the validity of the election as well as determination of membership was under challenge, found that the issues raised, ought to have been considered in the Election Petition u/s 25(1) of the Act and not in writ jurisdiction, and therefore, while disposing of the writ petition as well Special Leave Petition, gave liberty to the aggrieved persons namely; the present appellants to approach the Registrar u/s 25(1) of the Act, by filing Election Petition.
In pursuance of the liberty granted by the apex court, the Election Petition was filed before the Sub Divisional Officer/Prescribed Authority under the Act, in which apart from the Society 13 members (from amongst the 267 newly enrolled members )who were also the office-bearers elected in the elections held on 30.9.2004, were also arrayed as respondents.
After contest being put in, in the Election Petition, the same was allowed by the Prescribed Authority vide its order dated 24.8.2007 in which the election said to have been held on 30th September 2004 was declared invalid and consequently the election of the respondents in the aforesaid Election Petition, was set aside.
The Prescribed Authority found that the election held on 30th September 2004 were not validly held and after declaring the aforesaid election invalid the Prescribed Authority directed that a copy of the said order be sent to the Registrar for getting the election held u/s 25(2) of the Act.
It appears that despite the election said to have been held on 30th September 2004 having been declared illegal and a request being made by the Deputy Registrar to the Registrar for conducting the election u/s 25(2) of the Act, the ousted office bearers proceeded to hold the election under their own leadership and fixed 9th September 2007 for the purpose. Since the elections on the basis of which they were claiming to be the validly elected office bearers had already been declared invalid by the Prescribed Authority, the present appellants preferred a Writ Petition No. 4604 (MS) of 2007 for issuance of a writ of mandamus commanding the Registrar to forthwith stop holding of the elections by the ousted office bearers and for restraining the ousted office bearers from managing the affairs of the Society. The ousted office bearers also filed Writ Petition No. 4653 (MS) of 2007 assailing the orders dated 6.7.2007 and 24.8.2007 passed by the Prescribed Authority. The order dated 6.7.2007 was an order by means of which the Election Petition preferred by the appellants was held to be maintainable, and by means of the order dated 24.8.2007 the election held on 30.9.2004 was declared invalid.
On 7.9.2007 an interim order was passed by the learned Single Judge in Writ Petition No. 4604 (MS) of 2007 by which the ousted office bearers were restrained from proceeding with the election but at the same time it was ordered that the ousted office bearers who were the petitioners in Writ Petition No. 4653 (MS) of 2007 shall continue to discharge the functions of the society.
Aggrieved by the aforesaid interim order dated 7.9.2007, the appellants preferred the Special Appeal No. 796 of 2007 which was disposed of vide judgment and order dated 28.9.2007 with the consent of all the parties counsel in the special appeal wherein the Registrar was directed to hold the elections of the Society either himself or through a Deputy Registrar nominated by him in a given time.
In pursuance of the direction issued by the Court for holding the elections, the Deputy Registrar published/notified a tentative list of the members of the Society on 25.10.2007, inviting objections. The present six respondents who have filed the Special Appeal No. 110 of 2009 (MS) and who have filed the Review Petition also, did not file any objection against the tentative list of the members, though their names were not shown in the list, nor they did avail the opportunity of filing objections raising any grievance or for inclusion of their names in the list.
The Deputy Registrar issued the final list of the members on 8.11.2007 in which the names of respondents 1 to 6 were not mentioned but still the respondents aforesaid did not challenge the said final determination of members which was done on 8.11.2007. However, Writ Petition No. 6101 (MS) of 2007 was filed by four out of 267 alleged illegally inducted members viz; Shiv Mohan Singh and three others, who were no more the members as finally determined by the Deputy Registrar, assailing the order dated 8.11.2007 by means of which the final membership was determined and the learned Single Judge (Hon''ble Sabhajit Yadav, J) disposed of the Writ Petition on the same day, i.e. 22.11.2007, issuing a direction that the membership be re-determined in accordance with the bye-laws and the elections be held thereafter.
It is to be taken notice of that this writ petition No. 6101 (MS) of 2007 petition was not filed by the present respondents 1 to 6 but by a different set of four members i.e. Shiv Mohan Singh and three others, challenging their non-inclusion in the final list of members of the Society as determined by the Deputy Registrar on 8.11.2007.
Aggrieved by the aforesaid order dated 22.11.2007, Special Appeal No. 964 of 2007 was filed by the appellants wherein the order dated 22.11.2007 was stayed vide order dated 20.12.2007. In the meantime, the Deputy Registrar, in pursuance of the order dated 22.11.2007, passed in Writ Petition No. 6101(MS) of 2007 issued the list of the members, on 19.12.2007, i.e. one day before the stay order dated 20.12.2007, which according to the appellants was an ante-dated list and was in fact, issued after the order dated 20.12.2007, passed by this Court in Special Appeal No. 964 of 2007, staying the operation of the order passed by the learned Single Judge but which according to the respondents was issued before passing of the aforesaid order but it was not brought to the notice of the Court.
The present respondents 1 to 6 though with considerable delay but thereafter, also filed a Writ Petition No. 371 of 2008 questioning the order dated 6.7.2007 and 24.8.2007 passed by the Prescribed Authority holding the election petition preferred by the present appellants, Naresh Chandra and Mahabir Singh as maintainable and declaring the election said to have been held on 30.9.2004, as invalid but while filing the aforesaid Writ Petition, they did not disclose that they had already file a Review Petition against the judgment and order dated 28.9.2007 passed in Special Appeal No. 796 of 2007 and in accordance with the direction issued by the said order, the Registrar has already proceeded to hold the elections.
It appears that the Deputy Registrar, in pursuance of the directive issued in the aforesaid Special Appeal No. 796 of 2007, decided on 28.9.2007, after finalizing and publishing the list of the valid members, issued the election programme on 21.1.2009 fixing 1.3.2009 for holding the elections. It may be of some relevance to mention here that the Deputy Registrar proceeded to hold the election and issued the election programme with great delay after the final determination of membership, only, on contempt proceedings being initiated for non-compliance of the court''s order dated 28.9.2007 passed in Special Appeal No 796 of 2007 but before the elections could be finalized or so to say could be given effect to, the Writ Petition preferred by the present respondents 1 to 6 bearing number 371 of 2008 was finally decided by the learned Single Judge (Hon''ble S.S. Chauhan, J ) on 20.2.2009.
The learned Single Judge in his order declared that the order passed by the Prescribed Authority on 24.8.2007cannot be sustained and it was set aside. The learned Single Judge further directed that the factual aspect in regard to the enrollment of the members can only be looked into by the Chairman, therefore, the matter be placed before the Chairman who is to take a decision, if possible before holding the election, in regard to the validity of the membership of 267 persons and if the petitioners and such persons are held to be valid members then they shall have a right to participate in the election.
Against the aforesaid order passed by the learned Single Judge, the Special Appeal No. 110 of 2009 has been filed. In this Special Appeal, an interim order was passed allowing the election to be held on the date fixed but the result of the election was directed not to be given effect to till the next date of listing. This order was passed without prejudice to the rights of either parties, leaving open also the plea of the maintainability of the Special Appeal as well as the maintainability of the Writ Petition filed before the learned Single Judge by a set of different persons, after the final orders passed by the Division Bench on 28.9.2007 in Special Appeal No. 796 of 2007. It was further provided as an interim measure that the impugned order passed by the learned Single Judge dated 20.2.2009 shall not be given effect to and the Governor shall not enter into the question of deciding membership dispute.
Before adverting upon the merit of the Special Appeal No. 110 of 2009 and Special Appeal No. 964 of 2007, it would be appropriate to deal with the Review Petition first.
The Review Petition has been filed by the present respondents 1 to 6 seeking review of our order dated 28.9.2007 passed in Special Appeal No. 796 of 2007. The present respondents 1 to 6 were not parties in the Writ Petition No. 4653 (MS) of 2007 nor in Writ Petition No. 4604 (MS) of 2007, though in both the Writ Petitions the Society was a party and certain other persons who were from against the 267 newly enrolled members ( in which group the new applicants also fall) and were also the office-bearers, in the election held on 30.9.2004 were also arrayed as respondents. Review-applicants pleaded that they were validly enrolled members when the election of the year 2004 were held and that they have a right to challenge the order passed by the Prescribed Authority in which they have not been treated as validly enrolled members and they also have a right to be included and treated as members in the final list of the members.
The order passed in the aforesaid Special Appeal No. 796 of 2007 is a consented order. The Court looking to the rival claims of the parties in the interest of the Society for managing its affairs in the teeth of multiple litigations which were continuing since very long and the interest of the beneficiaries of the Society(children) suggested all the parties during the course of the arguments, to let the elections be conducted by the Registrar and if anybody is aggrieved by the election, he may challenge the same in the appropriate forum after the elections are over. The Government functionaries were represented by the learned Chief Standing Counsel, the Society was represented by Sri O.P. Srivastava, Advocate and respondents 4 to 16 in the Special Appeal, whose membership alongwith other such members (total 267) was not found valid by the Prescribed Authority in his order dated 24.8.2007 and who were in fact ousted office-bearers, under the orders of the Prescribed Authority were represented by Sri Heera Lal. All the parties were, thus, duly represented before the Court and therefore, the Court with the consent passed the following orders:
After arguing the matter at some length, both the parties counsel agreed to the suggestion of the Court that let the elections be conducted by the Registrar, who is the authority competent to do so under Sub-section 2 of Section 25 of the Societies Registration Act (hereinafter referred as the Act) and in the meantime President of the Society be requested to make an alternative arrangement for doing day today affairs of the Society and the order passed by the learned Single Judge be modified with the aforesaid direction.
We are also of the view that merely because of two warring groups claiming control over the affairs of the Society and, the management thereof cannot be allowed to be terned into mis-management.
Admittedly the term of the Committee of Management is coming to an end on 30th September 2007 and there is an order of the Prescribed authority holding that the present Committee is illegal, against which order, a petition has been filed by the present Committee. As against this, the appellant has filed a writ petition raising grievance against the alleged inaction on the part of the Registrar in not proceeding to hold elections under Sub-section 2 of Section 25 of the Act despite the Prescribed Authority having passed the order under Sub-section 1 of Section 25 of the Act.
In these circumstances to put the controversy at rest on the agreement of the parties counsel, we direct that the Registrar, either himself or any other Deputy Registrar nominated by him having jurisdiction shall hold the elections of the Committee of Management expeditiously, say; within a maximum period of two months. In the meantime, the President is requested to make alternative arrangement forthwith for running of the Society as both the counsel also agreed for such an arrangement during interregnum period of this election.
In view of the aforesaid order, the learned Counsel for the appellant Sri Prashant Chandra, Sri O.P. Srivastava, and Sri Heera Lal agree and say that, in both the writ petitions have lost their significance, and therefore, they may be disposed of accordingly, but liberty be given to the aggrieved party who feels aggrieved by the present elections to challenge the same.
We, therefore, while ordering accordingly also give liberty to the party, who is aggrieved by the present election, to challenge the same before the appropriate forum, as may be provided in accordance with law.
WE have summoned the record of the Writ Petition No. 4604 (MS) of 2007 and Writ Petition No. 4653(MS) of 2007. As both the writ petitions have lost their significance, therefore, they are disposed of accordingly. Subject to aforesaid direction, the Special Appeal is allowed. No order as to costs.
This order as per the information given has not been challenged in the superior forum nor review of the said order has been asked for by any of the parties in the Special Appeal or in the concerned Writ Petitions. It is by a new set of persons who claim themselves to be the illegally ousted members, (who are also included in 267 members), the Review Petition has been filed.
Submission of the learned Counsel for the review-applicants is that since the order passed by the Prescribed Authority u/s 25(1) of the Act, became the subject matter of challenge before the learned Single Judge, the Special Appeal itself was not maintainable in terms of Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 and therefore, even if consent was given by the parties counsel representing respondents in the Special Appeal, it would not confer jurisdiction upon the Court to entertain the Special Appeal.
Further argument is that the appellants have an independent right to get their dispute of membership settled and if they are aggrieved by the order passed by the Prescribed Authority, dated 24.8.2007 they need be heard and they cannot be left remedy-less because a consent order has been passed in Special Appeal wherein they are not the parties. In regard to the maintainability of the Special Appeal aforesaid, it has to be taken into consideration that two Writ Petitions were filed, one by the Society alongwith certain other private persons whose membership was not found valid and who were ousted office bearers as the election of the year 2004 was declared invalid by the Prescribed Authority and another Writ Petition was filed by the present appellants seeking mandamus against the Registrar to proceed to hold the elections in accordance with the provisions of Section 25(2) of the Act as a consequence to the aforesaid order passed by the Prescribed Authority on 24.08.2007. Two Writ Petitions aforesaid were numbered as Writ Petition No. 4653 (MS) of 2007(writ petition by ousted office bearers) and Writ Petition No. 4604(MS) of 2007(writ petition filed by the present appellants) and both the Writ Petitions were clubbed together and an interim order was passed on 7.9.2007 by the learned Single Judge in writ petition No. 4604(MS) of 2007 who on the one hand restrained the ousted office bearers from holding the election but at the same time ordered that ousted office bearers shall continue to discharge the functions of the Society.
Since the aforesaid interim order, restrained the ousted office bearers from holding the election but at the same time, allowed them to continue to discharge the functions, despite the fact that the Prescribed Authority in the order dated 20.9.2007 had already requested the Registrar to hold the election u/s 25(2) of the Act, the failure, on the part of the Registrar, to do so, compelled the present appellants to file the Writ Petition seeking mandamus, for holding the elections, therefore, any order passed in Writ Petition, where a mandamus is sought for against the Registrar to hold the election u/s 25(2) of the Act, the Special Appeal would be maintainable. The High Court in such a case, exercises its original jurisdiction under Article 226 of the Constitution and not a supervisory or appellate jurisdiction. There is also no order of any Tribunal exercising appellate jurisdiction or deciding any lis between the parties. Holding of elections by the Registrar u/s 25(2) after the election said to have been held, having been declared invalid, by the Prescribed Authority is the statutory obligation and legal duty of the Registrar, for which no request or direction need be issued by the Prescribed Authority, and on failure on the part of the Registrar, in performing his duty, a writ of mandamus can be sought for and issued by the High Court. Apart from this, the interim direction issued by the learned Single Judge had the effect of allowing the ousted office bearers who were not even members of the Society to discharge the function of the Society, which direction legally could not have been given, as they were having no legal right to do so nor the Prescribed Authority had permitted them to discharge such functions and, therefore, the direction so issued, was obviously an order, which can be said to have been passed under the original jurisdiction of Article 226 of the Constitution, as it did not flow from the order passed by the Prescribed Authority u/s 25(1) of the Act, therefore, also the Special Appeal would be maintainable. Leaving aside the aforesaid controversy, it is also to be taken note of that in an election dispute of a Society where two groups are fighting for power/control over the Society and the elections cannot be successfully held for a considerable long period, it is always the endeavour of the Court to set the controversy at rest so that elected Committee of Management comes into power leaving it open to the aggrieved persons to challenge the election in the appropriate forum, if they are aggrieved for any reason whatsoever with the said election, particularly when the plea of membership can very well be raised in the Election Petition or before the Civil Court, as the case may be, while challenging the election.
The Society was duly represented whose elections were in dispute in the Special Appeal No. 796 of 2007. The ousted office bearers were also parties and they were duly represented by the counsel. The appellants as well as State functionaries were duly represented by the counsel and therefore, for putting the controversy at rest, suggestion given by the Court was accepted by all the parties and a consent order was passed.
Normally individual members or the alleged members or those who stood ousted from the membership under the orders passed by the Prescribed Authority, cannot raise a dispute like the present one, where the Society, the ousted office bearers who were similarly enrolled new members as the present review applicants and whose elections were declared invalid and who had filed Writ Petition challenging the order passed by the Prescribed Authority dated 28.9.2007, if have consented for holding the election by the Registrar where the Registrar naturally was to decide the membership before holding the elections, nor their could be any ground for reviewing the order on the behest of such persons who did not chose to challenge the order of the Prescribed Authority dated 24.8.2007 at any time before the decision rendered in the Special Appeal aforesaid, have chosen to file a fresh writ petition challenging the same very order, which had already attained finality.
It requires to be added that in the matter like the one, in hand, where on the consent of all the parties an amicable settlement is arrived at for setting the controversy at rest, particularly when the Society(Society) is facing constant litigation, which not only injures the Management but also adversely and severally effects its beneficiaries, if an order is passed with the consent of all the parties, the question of maintainability of the appeal would not be of much significance as it satisfies all the parties to the litigation but, even then, we have addressed the aforesaid issue of maintainability of the aforesaid Special Appeal in view of plea raised by the review-applicants.
The order under review is a well considered and a consented order and it does not call for any review, nor any error apparent could be shown within the parameter of Order 47 Rule 1 of the Code of Civil Procedure.
It is also worthwhile to mention that the grievance of the present respondents 1 to 6 that their membership has not been correctly determined or looked into, also cannot be a ground for reviewing the order for the simple reason that before holding the present election, the tentative list of the members was published on 25.10.2007 but the present applicants/respondents 1 to 6, did not file any objection, even after the publication of the final list of membership on 8.11.2007 and therefore, the challenge cannot be made, when the said list has been finalized, and the election process had begun.
That being so, the respondents failed to avail the opportunity, with respect to their cause before the Deputy Registrar or in other words to establish that they were the validly enrolled members and should be included in the final list of members. That being the position, it is not open for the private respondents to come before the Court for review of the order which has been passed with the consent of the parties counsel where Society (Society) itself was a party and the ousted office bearers who also claimed their membership in the same manner, as the present review-applicants, had already agreed for a fresh election in terms of the order passed by the Court. The ousted office-bearers for all practical purposes, were representing the cause of all such members, whom they represented in the Committee of Management.
In regard to the Special Appeal filed against the order dated 22.11.2007 passed in Writ Petition No. 6101(MS) of 2007 (Special Appeal No. 964 of 2007) we take notice of the argument of the counsel for the appellants that the said writ petition filed by four out of 267 new members viz; Shiv Mohan Singh, and three others who did not find their names in the final list of members on 8.11.2007 was disposed of by issuing a direction to decide the membership dispute afresh before holding the election appears to have been passed by the learned Single Judge on persuasion being made by the aforesaid four members though in the teeth of the Division Bench judgment/order passed in Special Appeal No. 796 of 2007 decided on 28.09.2007 such a direction obviously could not have been issued.
The learned Single Judge, though noticed the order passed by the Division Bench in his order, but, issued the direction to the Registrar or Deputy Registrar, to consider the claim of the members of Society(Society) before holding the election afresh in accordance with Rules of Society and only then he was directed to proceed with the election with valid members of the Society.
The said order, in fact and in effect, diluted or so to say, nullified the effect the order passed by the Division bench, in the Special Appeal aforesaid on 28.09.2007. The learned Single Judge did not appreciate that the order passed by the Division Bench specifically provided that any person who is aggrieved by the election can challenge the same before the appropriate forum, meaning thereby, that the elections were not to be intercepted after the Division Bench order and they were to be concluded with the aforesaid liberty. The membership dispute cannot be allowed to be raised again and again stalling the election process and depriving the Society to have an elected Committee of Management. The order passed by the learned Single Judge under challenge in Special Appeal No. 964 of 2007, therefore, cannot be sustained.
This writ petition was filed by only Sri Shiv Mohan Singh and three other members and not by the present respondents 1 to 6 though their names were also not included in the final list of members dated 8.11.2007 passed in pursuance of the directives for holding election, issued by the Division Bench in Special Appeal No. 796 of 2007.
The present respondents, for the first time assailed the order dated 6.7.2007 and 24.8.2007 passed by the Prescribed Authority in the month of January 2008 though they had filed a Review Petition earlier by filing a fresh writ petition bearing number 371 of 2008. The fact of filing Review Petition was not disclosed in the writ petition. The present respondents did not challenge the final determination of membership published on 8.11.2007 and only challenged the orders passed by the Prescribed Authority aforesaid.
The Writ Petition by these respondents was not also maintainable, as it appears to be an after thought since they appeared to be satisfied by the order passed by the Prescribed Authority on 6.7.2007 and 24.8.2007, and did not choose to file the writ petition before January 2008 that too after the decision in the Special Appeal No. 796 of 2007 filed by the present appellants which was preferred against an order passed in the Writ Petition No. 4604(MS) of 2007, after hearing the ousted office bearers as well as the Society (Society).
The Division bench passed an order for holding the election afresh leaving it open to the aggrieved persons who were not allowed to participate in the election or whose membership was not accepted to challenge the election after it was over. Even if, allegedly some members were not permitted to take part in the election, such a grievance can be raised before the Election Tribunal i.e. the appropriate forum after the election is over. A fresh order for determination of membership was not required to be passed that too on the behest of a different set of persons, four or six in number who filed the two writ petitions separately as aforesaid which have been decided by the two learned Single Judges, as noticed hereinbefore. The learned Single Judge allowed the writ petition preferred by the present respondents and has set aside the order passed by the Prescribed Authority dated 24.8.2007.
A perusal of the order passed by the learned Single Judge under appeal would reveal that after taking note of the Division Bench judgment passed in Special Appeal No. 796 of 2007 dated 28.09.2007, observed, that the writ petition takes into account the cause of 267 members though the writ petition was filed only by six persons namely; the present respondents and despite the fact that these respondents did not file objection at any point of time i.e. when the tentative list of members was published on 25.10.2007 after the orders passed by this Court in the Special Appeal on 24.8.2007 nor thereafter when the final list of membership was published on 8.11.2007 but by making an observation that Shiv Mohan and others had filed objections, the present petition has been allowed. It is noticeable that Shiv Mohan and three others, had already filed a separate Writ Petition No. 6101 (MS) of 2007 raising the same grievance, which stood finally disposed of on 22.11.2007, therefore, taking cognizance of their objections against the tentative list of members and final list dated 8.11.2007, were of no relevance in so far the claim of the present respondents is concerned.
The order further says that the compromise which has been entered into between the present appellants and certain other persons, who do not belong to the list of 267 members that would not be binding on the present petitioners namely the present respondents.
The aforesaid plea is itself contradictory as it is evident from the arguments raised by the present respondents before the learned Single Judge that these are the persons who were included in 267 members including the ousted office bearers who had filed the earlier Writ Petition alongwith the Society(Society itself), therefore, it cannot be said that they formed a separate group, so as to be competent to file a fresh writ petition that too after judgment was delivered, in the Special Appeal No. 796 of 2007 which had set the controversy regarding membership at rest, before holding the elections, leaving it open to challenge the election after it was over. Even assuming, (though not pleaded or established before us) they are a separate group of persons whose membership was not accepted, the writ petition could not have been entertained and then decided so as to overcome and nullify the judgment of Division Bench in Special Appeal No. 796 of 2007.
Here it is pertinent to put on record that the final order passed by the Division Bench in Special Appeal No. 796 of 2007, which issued the direction for holding the election afresh, giving liberty to the aggrieved persons, to challenge the elections in the appropriate forum after the elections were over, could not have been annulled by the Learned Single Judge by adverting again on the same issue of membership on the behest of four or six persons, whose membership was not accepted by the Deputy Registrar even in the fresh exercise done by him in pursuance of the Division Bench order in Special Appeal No. 796 of 2007.
The other pleas regarding non-maintainability of Special Appeal, decided on 24th August 2007 and the plea that the Prescribed Authority though could have set aside the election but the issue of membership could not have been adjudicated by him, was also considered by the learned Single Judge and being persuaded by these arguments he allowed the Writ Petition with a direction as mentioned above in the earlier part of the judgment.
We are constrained to observe with deep respect to the learned Single Judge that the question of maintainability of Special Appeal No. 796 of 2007 which already stood decided could not have been made the subject matter of writ petition filed later on, nor could have been raised by the present respondents in the Writ Petition nor could have been adverted upon by the learned Single Judge. In other words whether the aforesaid special appeal was maintainable or not, could not have been decided by the learned Single Judge in a separate writ petition filed after the decision in the special appeal. Any observation, therefore, made on this plea, is non-est and without jurisdiction.
It has been also urged that the Prescribed Authority while deciding an election dispute can not look into the validity of membership of the members.
An election of the Committee of Management, can be challenged on various grounds, besides the ground, that the election has been held from amongst the persons, who can not be treated legally enrolled members or that legally and validly enrolled members were illegally restrained from participating in the election and if the Prescribed Authority finds that the elections suffer from any such illegality or infirmity, which has effected the result of election, the elections are to be declared invalid. Thus, it cannot be argued, that even though the election has been held by an electoral college, which is not legally formed or does not consist the legally enrolled members, would be allowed to be continued and such an election cannot be declared invalid by the Prescribed Authority.
Thus it cannot be pleaded nor accepted that the Prescribed Authority in an election dispute cannot embark upon the issue of validity of membership which power, he can exercise u/s 25 sub Clause (i)(c) of the Act.
A further plea again has been raised, that the Special Appeal No. 110 of 2009 against the judgment and order passed by the learned Single Judge, is not maintainable as it arises out of an order passed by the Prescribed Authority exercising its power as a Tribunal u/s 25(2) of the Act, under Chapter VIII Rule 5 of the High Court Rules.
We do not find any force, in the aforesaid plea for the following reasons.
The writ petition aforesaid was not maintainable nor could have been entertained, in view of the final judgment passed by the Division Bench in Special Appeal No. 796 of 2007 as no prayer could have been made in the writ petition nor any order could have been passed, in writ petition, which nullifies the order passed by a Division Bench, and which may also tantamount, review of the order passed by the Division Bench by the learned Single Judge. Each and every member, who formed part of the group of 267 members, who were not found to be validly enrolled members, could not have been allowed to challenge the order passed by the Prescribed Authority, of their own, whenever they wanted, particularly when the so called elected Committee of Management out of these very members, had earlier not only challenged, the said order of the Prescribed Authority in separate writ petition, but did also consent for a fresh election, on the basis of which the Special Appeal No. 796 of 2007 was decided.
Besides directions issued as urged by the learned Counsel for the Appellants did not flow from the relief claimed, e.g. directing the Governor who was the President of the Society to determine the membership who was not authorized otherwise to do so, therefore, the order passed by the learned Single Judge, did not arise from the order passed by the Prescribed Authority but was an order passed, in original jurisdiction, under Article 226 of the Constitution, therefore, also the Special Appeal is maintainable.
In this regard, reliance has been placed upon the case of Shahu Shikshan Prasarak Mandal and Anr. v. Lata P. Kore and Ors. reported in (2009) 1 UPLBEC 234 where the apex court after noting the decisions in the case of Naib Singh Vs. State of Punjab, and Sushilabai Lamainarayan Mudliyar and Ors. v. Nihalchand Waghajibhai Shaha and Ors. 1993 Supp. (1) SCC 1 observed as under:
In the present matter apart from the fact that the petition is labeled under Article 226 of the Constitution of India, it is clear that the grounds raised in the petition suggest that the petition is not only under Article 227 but also under Article 226 of the Constitution. It is to be seen that in the grounds raised against the order of the Tribunal, it is specifically suggested that the order passed by the Tribunal was arbitrary, unreasonable, unjust and perverse. The further complaint made against the Tribunal''s order pertain to failure on the part of the Tribunal to appreciate certain facts and eventualities thereby complaining non application of mind on the part of the Tribunal. Complaint has also been made against the approach of the Tribunal and it is suggested that the said approach was perverse. After reading the writ petition we are convinced that the contentions raised and the facts stated in the petition justify the respondent herein to file an application both under Articles 226 and 227 of the Constitution of India.
The plea regarding validity or invalidity of the orders passed by the Prescribed Authority dated 6.7.2008 and 24.8.2008 was also not open to be looked into or assailed in the present writ petition filed by the present respondents after the judgment passed in Special Appeal, nor the effect of the judgment and order passed in Special Appeal No. 796 of 2007 could have been nullified by an order passed by the learned Single Judge, in a subsequently filed writ petition, nor there was any occasion nor jurisdiction to pass an order, which has the effect of setting aside the order, passed by the Division Bench, particularly on the behest of such persons who did not file any objection against the tentative list of membership nor against the final list of membership published on 8.11.2007.
We, with due respect to learned Single Judge do observe that once the Division Bench has passed an order settling the election dispute at rest, ordering for a fresh election giving liberty to the aggrieved person to challenge the election, no direction was required to be issued by the learned Single Judge to the contrary or in other words no direction could have been issued so as to nullify or over-ride the order passed by the Division Bench. If any party was aggrieved by the aforesaid judgment/order, passed by the Division Bench, the remedy was to be pursued elsewhere in the appropriate forum and not before the learned Single Judge.
Since in the present bunch of cases, a peculiar situation had arisen that the final judgment passed by a Division Bench of this Court has been modified or to put it precisely stands nullified by the judgments subsequently passed by two Hon''ble Judges by giving their own reasons, this Bench would be singularly failing in its duty in not addressing itself on the principle and doctrine of binding precedents and the hierarchy of the legal system in dispensation of justice.
Normally a judgment rendered by the Single Judge of the High Court is to be followed by a Single Bench having coordinate jurisdiction and if he finds some ground for dis-agreement with the judgment passed earlier, he can make a reference of the matter to the larger bench. Likewise if a Division Bench does not find itself in agreement with the decision rendered by another Division Bench earlier, on the same issue, the latter Bench can make a reference for getting the matter decided before the larger Bench but a decision rendered by a Division Bench is binding upon the learned Single Judge.
In the case of Pradip Chandra Parija and Others Vs. Pramod Chandra Patnaik and Others, the following has been observed by their Lordship of apex court:
In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.
In the case of Vishweshwaraiah Iron and Steel Ltd. v. Abdul Gani and Ors., (2002) 10 SCC 437 the following has been observed by their Lordship of apex court:
The order of reference was made to a Constitution Bench by a Bench of two learned Judges for the reason that they found some difficulty in coming to a conclusion as to whether an earlier Constitution Bench judgment and judgments of Benches of three learned Judges resolved this question. In our view, a Bench of two learned Judges cannot make a reference directly to a Constitution Bench; this has been laid down in the judgment in Pradip Chandra Parija v. Pramod Chandra Patnaik. It is therefore, that this Constitution Bench will not decide the reference.
In the case of Rajasthan Public Service Commission and Another Vs. Harish Kumar Purohit and Others, the following has been observed by their Lordship of apex court:
The position was highlighted by this Court in a three-Judge Bench decision in State of Tripura Vs. Tripura Bar Association and Others, in the following words:
We are of the view that the Division bench of the High Court which has delivered the impugned judgment being a coordinate Bench could not have taken a view different from that taken by the earlier Division Bench of the High Court in the case of Durgadas Purkayastha v. Hon''ble Gauhati High Court reported in (1998) 1 GLR 6 . If the latter Bench wanted to take a view different than that taken by the earlier Bench the proper course for them would have been to refer the matter to a larger Bench. We have perused the reasons given by the learned Judges for not referring the matter to a larger Bench. We are not satisfied that the said reasons justified their deciding the matter and not referring it to the larger Bench. In the circumstances, we are unable to uphold the impugned judgment of the High Court insofar as it relates to the matter of inter se seniority of the Judicial Officer impleaded as respondents in the writ petition. The impugned judgment of the High Court insofar as it relates to the matter of seniority of the respondent Judicial Officers is set aside. The appeals are disposed of accordingly. No costs.
In the case of State of Punjab and Another Vs. Devans Modern Brewaries Ltd. and Another, their Lordship of apex court in paragraph 339 held as under:
Judicial discipline envisages that a coordinate Bench follow the decision of an earlier coordinate Bench. If a coordinate Bench does not agree with the principles of law enunciated by another Bench, the matter may be referred only to a larger Bench. Pradip Chandra Parija and Others Vs. Pramod Chandra Patnaik and Others, followed in Union of India (UOI) and Another Vs. Hansoli Devi and Others, at para 2. But no decision can be arrived at contrary to or inconsistent with the law laid down by the coordinate Bench. Kalyani Stores Vs. The State of Orissa and Others, and Krishna Kumar Narula etc. Vs. The State of Jammu and Kashmir and Others, both have been rendered by the Constitution Benches. The said decisions, therefore, cannot be thrown out for any purpose whatsoever, more so when both of them if applied collectively lead to a contrary decision proposed by a majority.
In the case of Central Board of Dawoodi Bohra Community and Another Vs. State of Maharashtra and Another, their Lordship of apex court held that "a Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the mater may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted".
In the case of Chandra Prakash and Ors. v. State of U.P. and Anr. reported in : (2002) 4 SCC 234 their Lordship of apex court held that the principles of the doctrine of binding precedent are no more in doubt. This case shows that the Supreme Court took note of the hierarchical character of the judicial system in India and held that the pronouncement of law is binding on a Division Bench of the same or smaller number of Judges.
Keeping in mind the principle of binding precedent and the meaning given in the aforesaid decisions of the apex court, the orders passed by the two learned Single Judges who passed the two orders separately in two writ petitions filed subsequently i.e. after the decision of the Division Bench in Special Appeal which run contrary to the aforesaid orders passed in Special Appeal, cannot be sustained as the subsequent order tends to nullify the order passed by the Division Bench.
Here it is also pertinent to mention that in pursuance of the directive issued by the Division Bench in Special Appeal, in its order dated 28.9.2007, the Registrar, prepared and published a tentative list of members on 25.10.2007 and invited objections from the persons who were effected namely; whose names were not included in the list or against the names who were wrongly included and thereafter on consideration of such objections, published the final list of members for the purpose of election on 8.11.2007.
The aforesaid procedure was fully in consonance with the election process which took absolute care and caution in getting the elections held from amongst the validly enrolled members. The order passed by the Prescribed Authority on 24th August 2007 was thus of no consequence after the present election process was initiated, in which fresh opportunity was given to get the membership decided for being enrolled as valid members before the elections. In case the Deputy Registrar again found that the persons who objected to the tentative list, were not validly enrolled members, such a dispute can very well be raised in the election petition and was not supposed to be brought in this Court by means of separate writ petitions, in view of decision given in the Special Appeal and also in view of the settled principles of challenging the elections after they are over.
Apart from the aforesaid fact, the respondents 1 to 6, as already observed having not filed any objection against the tentative list of members published on 25.10.2007, and having not challenged the final list of members dated 8.11.2007, cannot have any right to challenge the on-going elections on the ground that they were not treated valid members by the Prescribed Authority in view of orders passed by the Prescribed Authority dated 24.8.2007. To reiterate the order aforesaid of the Prescribed Authority dated 24.8.2007, lost all relevance and significance, when fresh exercise had already been undertaken by the Deputy Registrar of verifying the membership, in pursuance of the final order passed by the Division Bench in Special Appeal and these respondents (petitioners to the writ petition) did not lodge their claim for being treated as members for the ongoing elections.
It is also to be seen that, these respondents have made no prayer in the writ petition for including their names in the final list of members published on 8.11.2007, and therefore, also the writ petition filed on their behalf could not have been entertained during the election process.
Care is to be taken that in an election dispute of like nature where every individual who claims the membership, or whose membership has not been accepted by the Prescribed Authority, or the Registrar, is not supposed to file Writ Petitions at their convenience and at every stage even after the Court passes an order for holding the elections. The period of time, when such a challenge is made, would be a relevant factor so that the ongoing election process is not stalled and the elections are not delayed further. If such individual disputes are allowed to be raised at every stage of the election, the result would be, withholding of elections and depriving the Society to have an elected Committee of Management.
For the so called interest of few individual persons, the interest of the Society can not be sacrificed.
In the instant case, undisputed elections have taken place in the year 2001. The elections of the year 2004 were not found to be valid by the Prescribed Authority in his order dated 24.8.2007, and there is no challenge to the aforesaid order insofar it declares the aforesaid election as invalid. Therefore, fresh elections are necessarily to be held and that too by the Registrar u/s 25(2) of the Act. In holding these elections, membership was to be checked, which has been done afresh, by issuing a tentative list and thereafter final list of members, after considering the objections filed against tentative list.
The only ground which has been raised by the present respondents in the Writ Petition is that their membership was wrongly held as invalid in the order of the Prescribed Authority dated 24.8.2007. In such a circumstance, there was no justification for stalling the election and asking the Deputy Registrar to decide the dispute of membership again and again. If this is allowed, today six individuals have come in the writ petition and tomorrow there may be many more who may file the writ petitions though have not chosen to challenge the order till date. This is neither permissible nor can be said to be in the interest of the Society, moreso, when the ousted office bearers had already pleaded such a cause and had agreed for a consented order for allowing the Registrar to hold fresh elections.
The respondents very well knew the order dated 6th July 2007 and 24.8.2007 passed by the Prescribed Authority and they also very well knew that their names have not been mentioned in the tentative list of members dated 25.10.2007, which was notified in pursuance of the directions issued by the Division Bench in Special Appeal No. 796 of 2007 but they did not challenge either the tentative list of members or the final list of members issued on 8th November 2007 but they challenged the order passed by the Prescribed Authority dated 6th July 2007 and 24th August 2007 much after the decision of the Special Appeal when the fresh process of election was on and membership had been finalized afresh. At the stage there was no cause of action, nor occasion for the respondents to challenge the order passed by the Prescribed Authority, as it had lost all significance, to the membership dispute, after determination of membership, afresh on 8.11.2007. Any interruption in the process of election at such a belated stage was not beneficial to any party, and was also contrary to the Division Bench judgment in Special Appeal No. 796 of 2007 besides the fact that the order dated 24.8.2007, passed by the Prescribed Authority was no more open to challenge, as no challenge was raised regarding the finding of holding the election of 2004 as invalid and a fresh list of membership was made and prepared by the Deputy Registrar on 8.11.2007, which was also not under challenge.
The rights of the respondents, if any, stand violated they still had a remedy to challenge the election in the appropriate forum where all question raised would be considered.
We for the aforesaid reasons hold that neither the Review Petition has any substance nor the same is maintainable nor the order passed by the learned Single Judge in the two Writ Petitions namely; Writ Petition No. 4604 (MS) of 2007 and Writ Petition No. 4653 (MS) of 2007 can be sustained, which are hereby set aside. The Review Petition is dismissed.
The Special Appeal No. 964 of 2007 and Special Appeal No. 110 of 2009 are allowed and consequently the two Writ Petitions namely; Writ Petition No. 6101 (MS) of 2007 and 371 (MS) of 2008 are dismissed.
Since the result of the election has not been given effect to, in pursuance of the interim order passed by this Court, the Registrar is directed to proceed further forthwith in accordance with law and give effect to the result of the elections.