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Judgment
Pradeep Kant, J.—Heard Sri Anil Tiwari, learned Senior Advocate, assisted by Sri Apoorva Tiwari and Dr. L.P. Misra for the respondents.
This special appeal challenges the interim order dated 17.9.2010, by means of which, the order passed by the Regional Level Committee dated 30.8.2010/4.9.2010 and the order dated 9.9.2010 passed by the District Inspector of Schools, Pratapgarh have been stayed.
A preliminary objection has been raised by Dr. L.P. Misra against the maintainability of the special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, on the ground that the appeal against an interim order does not lie, moreso, when it does not decide any issue or any controversy involved in the writ petition finally, and also does not affect the right of the appellants in any manner.
Dr. Misra has further submitted that the order under appeal is only a time bound interim order, which does not decide any dispute and, therefore, the appellant could have moved an application for vacation of the stay order but the special appeal would not be maintainable.
Reliance has been placed upon the case of Society Madarsa Mazahir Uloom Mubarak Shah, Saharanpur v. Muzaffar Hussain (1994) 1 UPLBEC 277, wherein operation of the order granting certificate of renewal of registration was stayed. The Court found that it was not a Judgment within the meaning of the rule and, therefore, special appeal was not maintainable.
In support of his contention, Dr. L.P. Misra has also elaborated the meaning of ''Judgment'' in Letters Patent Appeal and has relied upon the cases of Shah Babulal Khimji Vs. Jayaben D. Kania and Another, Shanti Kumar R. Canji Vs. The Home Insurance Co. of New York, and Tarapore & Co., Madras v. V/O. Tractors Export, Moscow and Anr. AIR SC 1168.
In the case of Shah Babulal Khimji (supra), broadly the meaning of ''Judgment'' has been defined, wherein their Lordships considered Clause 15 of the Letters Patent of the Bombay High Court, providing appeal against the Judgment of the Single Judge on original side to Division Bench and issued guidelines and illustrations in this regard. Their Lordships held that the order passed by the learned Single Judge refusing grant of injunction and appointment of receiver in an interlocutory application, is a Judgment. The Court categorised the Judgment as (1) a final Judgment; (2) a preliminary Judgment; and (3) Intermediary or interlocutory Judgment.
The Court further observed that there may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a Judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. As such an order which vitally affects a valuable right of the defendant it will be treated as a Judgment within the meaning of the Letters Patent so as to be appealable to a larger Bench.
In the case of Shanti Kumar R. Chanji (supra), the Court took note of the fact that the amendment order is not purely of discretion and that even with regard to discretionary orders the appellate Court can interfere where the order is insupportable in law or is unjust.
In the case of M/s Tarapore & Co., Madras (supra), the expression ''final order'' again was considered by the Supreme Court, where it was held that the expression "final order" occurring in Article 133(1) means a final decision on the rights of the parties in dispute in a suit or proceeding; if the rights of the parties in dispute in the suit or proceeding remain to be tried, after the order, the order is not final. An order, refusing to grant an interim injunction, passed by High Court in appeal which does not finally dispose of a suit and leaves the rights and obligations of the parties for determination in the suit from which the appeal has arisen, is not final within the meaning of Article 133(1) (a) and (b). As such High Court cannot grant Certificate under Article 133.
This was a case in which the jurisdiction of the High Court to grant certificate under Article 133, while deciding an application for interim injunction, was in issue and not the provisions of Letter Patent Appeal, as we find in Chapter VIII Rule 5 of the Allahabad High Court Rules.
In response, Sri Anil Tiwari submitted that by means of the interim order under appeal, the order passed by the Regional Level Committee has been stayed, which has considered the question of validity of the elections said to have been held by the respondents in pursuance of the directives issued in earlier writ petition bearing number 2136 (MS) of 2000, wherein the Regional Committee, besides holding that there were 31 validly enrolled members, found that the election said to have been conducted by the respondents was not valid, for which many more reasons have also been given.
Submission is that the election by 10 members only could not at all have been held and that validly enrolled members, 21 in number, could not have been excluded from participating in the election, which vitiates the election said to have been conducted by the respondents. The Regional Committee, therefore, directed for holding the election from 31 validly enrolled members, including aforesaid 10 members by the District Inspector of Schools under the supervision of the Principal, Government Inter College, Samar Bahadur Singh, who was to act as observer.
It has also been urged by Sri Anil Tiwari, learned Counsel for the appellant that, in fact, the writ petition itself was not maintainable against the order passed by the Regional Level Committee as the dispute of membership cannot be decided by the High Court and, in particular, in the given circumstances of the present case, where the election said to have been held by the respondents, was made the subject matter of consideration by the Regional Level Committee, under the directives issued by the High Court itself earlier, which Committee did not recognise the election so held, the effect of the order is, that a Committee apparently constituted in an invalidly held election, has been allowed to function as such, which is per se illegal.
Argument further is that, the interim order passed by the learned Single Judge is though, time bound but it has stalled the election, the process of which had started under the directions of the Regional Committee and once the election process starts, the Court would normally not interfere in such elections as the remedy lies in raising election dispute after the elections.
Reliance has been placed upon a Division Bench Judgment in the case of Gulab Dhar Pandey v. State of U.P. and Ors. 2009 (3) ESC 1640 (All) (DB), wherein the Court in a dispute of elections of Committee of Management, held that once the election process started, Court should not interfere and that if any party has any grievance about finalisation of voter list, same could be challenged in the appropriate proceeding, namely, under the Statute, Rules or Regulations or by filing suit in the competent Court of law.
In the case of Short Commissioned Officers Welfare Association and Another vs . Union of India and Another reported as the apex court held that the dispute between two rival factions for control of administration of the educational institution, should not be ordinarily interfered by the High Court. Their Lordships further observed that where the Deputy Director, after giving a clear finding that neither of the two factions was in effective control of the institution, directed the holding of fresh elections, the High Court was bound by the said finding and should not have set aside the order of the Deputy Director.
In the case of Basant Prasad Srivastava and Anr. v. State of U.P. and Ors. (1993) 2 UPLBEC 1333, a Division Bench of this Court, reiterated that once the election process starts, it must come to its logical conclusion. Once it comes to its logical conclusion by declaration of result of the election, the aggrieved person may challenge the election by filing election petition 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.
The Court further held that 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.
We do not intend to repeat the facts about the history of litigation between the rival factions nor the dispute of membership, which was continuing for such a long time but we confine our consideration only to the plea, whether the interim order passed in this case could be subjected to special appeal and whether the order passed therein though being a time bound interim order, can be interfered with.
Reference can be made to the cases referred to above and, in particular, of Shanti Kumar R. Chanji (supra) where the Supreme Court has observed that even with regard to discretionary orders, the appellate Court can interfere where the order is insupportable in law or is unjust.
It is not always necessary that the interim order must decide the controversy or an issue involved in the writ petition finally or the order should appear to have decided such a dispute finally but if the interim order passed does not take into consideration, the relevant facts and, in particular, relevant law and, the considerations, which are required for passing an interim order, stand ignored, appeal would lie. If an interim order has been passed without taking into consideration three well known principles, namely, (i) prima facie, case in favour of the petitioner; (ii) balance of convenience; and (iii) irreparable loss and injury, in case the interim order is passed or it is refused, then who would be the party who would suffer such an injury, the interim order will suffer from manifest error of law, apparent on the face of record, which shall allow its challenge in special appeal.
Needless to mention that interim orders cannot be passed merely on the asking of the petitioner by the Court. The Court has to apply its mind on the aforesaid three factors, which are well recognised in law.
We find that the learned Single Judge, except narrating the facts/submission made by the learned Counsel for the petitioners (herein respondents) and thereafter the rebuttal made by the respondents to the writ petition (herein appellant), has not recorded any finding about his, prima facie, satisfaction regarding any case for consideration being made out by the petitioners in the writ petition nor has addressed himself on the issues of balance of convenience and irreparable loss.
It cannot be disputed by either of the parties, that validity of the election, so held, was required to be looked into and was to be decided under the orders passed by this Court in the earlier writ petition by the Regional Level Committee. The Regional Level Committee has passed a detailed order for not accepting the said election. The respondents, therefore, apparently lost their right to continue in office, unless, of course, the learned Single Judge had come to the conclusion at least, prima facie, that the order passed by the Regional Level Committee suffers from any manifest error, which may vitiate its order and thereafter being satisfied that it is a case for being decided by the Court, could have proceeded to consider the two other ingredients, namely, balance of convenience and irreparable loss. It was only after satisfying itself on all the aforesaid three issues, interim order could have been passed, if required.
We find that there is no such finding recorded by the learned Single Judge in its order and, therefore, though it is time bound, the special appeal against such an order is maintainable.
Apart from this, maintainability of the writ petition, which in a dispute like the present one, was a vital question, ought to have been considered by the learned Single Judge before passing an interim order. The learned Single Judge was having full liberty to record, prima facie, finding in this regard also and then to proceed to pass the interim order. In the absence of any such, prima facie, finding/satisfaction being recorded, the interim order cannot be sustained.
During the course of arguments, we repeatedly asked the learned Counsel for the respondents, that under what circumstances and under which authority, only 10 members can form/elect the Committee of Management, as it is admitted between both the parties that there have to be at least 15 office bearers in the Committee of Management but no satisfactory reply could be given.
Since all these questions have not been considered by the learned Single Judge and the interim order has been passed without recording any, prima facie, satisfaction on the relevant issues, nor any reason has been given to allow the respondents to function, though their elections have been found to be invalid by the Regional Level Committee, the order passed, cannot be sustained, which is hereby set aside.
Considering the fact that the institution cannot run without any responsible person, in the absence of the Committee of Management for controlling its affairs, we, while setting aside the order passed by the learned Single Judge and remitting the matter to the learned Single Judge for deciding afresh, in accordance with law, provide that till the matter is considered by the learned Single Judge, the District Inspector of Schools shall look after the affairs of the institution. The District Inspector of Schools shall take charge of the institution, immediately.
We request the learned Single Judge to decide the writ petition at the earliest. The parties may exchange affidavits, if not already exchanged, within three weeks.
Let the writ petition be listed before the learned Single Judge having jurisdiction, for hearing peremptorily, after three weeks, in the month of October, 2010 itself.
We may clarify that we have not addressed ourselves on the merits of the case but have only taken into account the pleas raised only for the limited purpose of deciding the special appeal. Any observation made by us in the present order on any issue would not be taken as final and the pleas raised before the learned Single Judge would be considered by him as per his own discretion in accordance with law.
The special appeal is allowed.