Subhash Upadhayaya vs State of U.P. and Others

Shishir Kumar, J.—Heard Sri Ashwani Mishra, learned Counsel for the petitioner and Sri P.N. Saxena, learned Senior Advocate assisted by Sri R.M. Vishwakarma, learned Counsel for the respondents.

The petitioner has filed the present writ petition against the order dated 13.10.2010 passed by Assistant Registrar by which on the basis of directions issued by this Court, he has recorded a finding regarding validity of the valid members and has directed to hold the election u/s 25(2) of the Societies Registration Act.

Brief facts arising out of the present writ petition are that there is a society known as Junior High School Vidhmaua Pokhara, district-Jaunpur registered under the Societies Registration Act on 9.12.1953. The Society decided to run an educational institution after framing the bye-laws. The last election of the Committee of Management of the Society was held on 31.12.2004 and thereafter no election of the Committee of Management was held. The Assistant Registrar issued a notice to the respondents along with the office bearers of the Committee of Management to submit a reply regarding the validity of 94 members of the General Body. Respondent No. 3 Sri Adya Prasad Pandey has submitted a reply along with the affidavit dated 26.9.2009 that the election of Committee of Management of Subhash Upadhyay is forged and fabricated and as such the Assistant Registrar issued notice to the petitioner to submit the entire record. In pursuance of the notice, an order was passed by the Assistant Registrar, that was under challenge before this Court by filing Writ Petition No. 47080 of 2010 which was finally decided by this Court and this Court has confirmed the order of the Assistant Registrar to this extent that the order passed by the Assistant Registrar regarding the fact that both the election held by the rival committee was on the waste papers, therefore, the Assistant Registrar was correct in holding to hold the election u/s 25(2) of the Societies Registration Act. As regards the validity of the membership of the General body amongst whom the election has to be held, the Court has directed the Assistant Registrar to take a step to finalise the list of members after inviting objections and after giving opportunity to the parties. The operative portion of that order passed by the Court dated 10.8.2010 is quoted below:

Let the Assistant Registrar take steps or publishing a tentative list of the members and inviting elections, if objections are filed by the petitioner or by other persons the same shall be considered by means of reasoned and speaking order and thereafter the Electoral College shall be finalized. The exercise may be completed within a month. It is clarified that after the Assistant Registrar from the finalizes the elected college, fresh elections shall be taken place within a month, thereafter. Parties are at liberty to challenge the elections college so determined after the elections are over.

Writ petition is disposed of subject to the direction issued above.

Now in pursuance of the order passed by this Court, the Assistant Registrar while passing the order impugned which is under challenge, has recorded a specific finding that from the record it is clear that only 31 members are valid members and out of 31 members, 3 members have died, therefore, 28 members remained. A further finding has been recorded that as regards the Serial Nos. 32 to 94, the objections of the respondents to this effect that no receipts were issued and at the time when they allege to have been included as members, the petitioners have got no right to include them as members.

Petitioners aggrieved by the aforesaid order regarding holding the validity of the list of valid members of the Society submitted that Registrar has got no jurisdiction to decide the issue and the original documents have not been considered, therefore, finding to this effect regarding validity of the members from Sl. No. 32 to 94 is not correct.

On the other hand Sri P.N. Saxena learned Senior Advocate submitted that this Court has directed the Assistant Registrar to consider the validity and to decide the valid members of the Society. In such circumstances the Assistant Registrar on the basis of the objections filed by the parties after giving opportunity has decided the issue and held that only 31 members are valid members. Further it has been submitted that the date of election has already been fixed and 29.10.2010 has been fixed for holding the election, therefore, in view of settled principles of law as the process of election has already commenced, therefore, there cannot be any interference by this Court under Article 226 of the Constitution of India.

I have considered the submissions of the parties and perused the record. From the perusal of the Judgment and order passed by this Court, the learned Single Judge has confirmed the finding by holding the claim on the basis of election by both the parties and has held that both the elections held by the petitioner and respondent was on the waste papers and cannot be taken into consideration and has directed that the Assistant Registrar will hold the election u/s 25(2) of the Societies Registration Act. But as regards the validity of the members, the contention of the petitioner was accepted and power has been delegated to the Assistant Registrar to decide the dispute regarding the valid members of the General Body. In that circumstances jurisdiction has been conferred by this Court to the Assistant Registrar to finalise the list and to hold the fresh election within a period of one month. The contention of the petitioner cannot be accepted in view of the fact that the jurisdiction upon the Registrar has been conferred on the basis of directions issued by this Court, therefore, in case the order considering the validity of electoral college has been finalised on the basis of objections and after hearing both the parties, then in my opinion, there cannot be any interference by this Court.

Further it is settled in law that in case the process of election has started and date of election has been fixed, there should not be any interference by this Court while exercising powers under Article 226 of the Constitution of India.

In Basant Prasad Srivastava and others Vs. State of U.P. and others, . a Division Bench of this Court has held that if once election process has started, it must come to its logical conclusion and there should not be any interference by this Court to interfere in the process of election. The relevant paragraphs are 7, 15 and 17 which are quoted below:

In our opinion the judgment of the learned Single Judge does not suffer from any infirmity. The election process having started it must come to its logical conclusion. Once it has come to its logical conclusion by declaration of result of the election the aggrieved person may challenge the election by filing election or civil suit in accordance with law. In such a proceeding the election may not be set aside if the alleged illegality or irregularity has not materially affected the result of the election. Approach to Court at intermediate stages in the election is bound to result in an office either remaining vacant or being occupied by a person whose entitlement to hold the office has ceased. Neither is a happy situation. It is, therefore, desirable that the election process should end as early as possible and the declaration of result should not be deferred through repeated interim orders passed from time to time. In taking this view we have the support of authorities which may be immediately noticed.

The appellants writ petition were not maintainable in view of the proposition laid down in this case also.

In Hridaya Narain Rai v. Deputy Director of Education Vth Region Varanasi and Ors. (1992) 2 UPLBEC 1232 : 1993 AWC 184 it has been held by one of us (R.A. Sharma, J.) as follows:

The principles that any matter which has the effect of vitiating election should not be brought up at an intermediate stage before the Court and the person who is interested in challenging the election should wait till the election is over are the principles of general applicability not confined to the election under Representation of People Act. As mentioned above, these principles have been applied by the Supreme Court to the elections to the local bodies. There is nothing in the Intermediate Education Act or the Scheme of Administration, framed thereunder which excludes the applicability of the aforesaid principles to the election of a committee of Management of an education institution. In view of the ratio laid down by Supreme Court in the case of Nanhoo mal (Supra) te above principles are fully applicable to the instant case also .Hence there cannot be any interference with the electoral process at the intermediate stage, by this Court under Article 226 of the Constitution.

It has been settled by this Court more than once that election of the Committee of Management of an educational institution can be challenged before Civil Court. A dispute with respect to the management of such institution can also be agitated before Deputy director of Education u/s 16-A (7) of the Intermediate Education act and the decision of the Deputy Director given under the above provision is subject to the decision of a competent court. Neither Intermediate Education Act nor the Scheme of Administration limits /restricts the ground on which the election of the Committee of Management can be challenged. Election of such a committee, as such, can be challenged, both on merits as well as on the ground that the persons who were not entitled to vote were permitted to vote or the persons who were entitled to vote were excluded. The order of any person or authority limiting the right to vote in the election t certain persons only is liable to be challenged, while challenging the election and competent authority or the Court can set aside the election of the Committee of Management on that ground. Under these circumstances it is not open to change any order at the intermediate stage. The position would have been different had the law excluded the challenge to the election on the ground of defective electoral roll. But as mentioned above, this is not the position in the instant case.

This was also a case relating to the election for constituting a Committee of Management of an educational institution like the present one. The observations made in this judgment are fully applicable to the facts of the present case. The learned Single Judge has, therefore, rightly applied the law in dismissing the appellants writ petitions. The special appeal, therefore, lacks merit and is liable to be dismissed.

It is also settled in law that once election has been notified, ordinarily court lacks jurisdiction to interfere on any ground which may amount to set aside or stopping the election process vide AIR 1978 SC 857 Mohinder Singh Gill and Anr. v. The Chief Election Commissioner New Delhi and Ors. and 2006 (24) LCD 1373 Umesh Chandra and Anr. v. Mahila Vidyalaya Society, Aminabad, Lucknow and Ors.

In view of the aforesaid facts and circumstances, I see no justification to interfere in the matter.

The writ petition is hereby dismissed.

No order is passed as to costs.