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Judgment
Rajiv Sharma, J.—Heard Mr. S.K. Mehrotra, learned counsel for the petitioners, Mr. I.B. Singh, learned counsel appearing as intervenor and Mr. Rakesh Srivastava, learned Standing Counsel. Also perused the records produced by the Standing Counsel.
By means of the instant writ petition, the petitioners have challenged the order dated 15.6.1993 passed by the Assistant Registrar of Firms, Societies and Chits, Faizabad, whereby by names of the petitioners and three others have been excluded from the membership of the Society.
It has been stated by the learned counsel for the petitioners that Lauhar Paschim Maharshi Dayanand Junior High School, Lauhar Paschim, Post Bandhua Kalan, Tehsil and District Faizabad, is a Society registered under the Societies Registration Act on 9.7.1991. Certificate of registration was also issued on an application submitted by Shri Hari Bux Singh, the then Chairman. The said certificate was renewed from time to time as and when the same had fallen due. Lastly, the above Society was renewed for a period of five years on 9.7.1991. Mr. Hari Bux Singh, the founder President of the Society died on 13.3.1983 and after his death, seven new members were enrolled including ordinary as well as life members.
It has been contended that the election of the Generla Body of the above Society was held on 3.3.1991 for electing the office bearers and members of the Executive Committee of the Society, after duly notifying the above meeting of the General Body and after circulating its agenda. In the said meeting dated 3.3.1991, it was resolved that the president and the Manager of the Executive Committee were authorized to enroll 50 members and in pursuance thereof, the petitioner Nos. 1 to 47 were enrolled as new life members on depositing Rs. 101/ each as their membership fees. The papers relating to the above general election were duly submitted to the District Basic Education Officer who countersigned the signature of Sri Raghunandan Singh, the newly elected Manager. Subsequently, by means of the order dated 15.6.1993, the Assistant Registrar has cancelled the enrolment of new life members. Being aggrieved thereof, the instant writ petition has been preferred inter alia on the grounds that the Assistant Registrar has no authority to question the validity of membership of the members of the General body and further no individual opportunity of hearing was afforded by the Assistant Registrar while cancelling the membership of the petitioners 1 to 47. This Court by means of the order dated 28.6.1993 stayed the operation and implementation of the order dated 15.6.1993 passed by the Assistant Registrar, until further orders of this Court.
Sri I.B. Singh, learned counsel appearing as an intervenor submits that the petitioners have equally efficacious remedy of approaching the appropriate forum against the exclusion of names of the petitioners as members of the Society but without availing the remedy so available to the petitioner, he has directly approached this Court. Therefore, the present writ petition is liable to be dismissed on the gorund of availability of alternative remedy.
Placing reliance upon Pradeep Kumar Singh v. U.P. State Sugar Corporation, Lucknow and others, 2002 (20) LCD 46, Smt. Kanak v. U.P. Avas Evam Vikas Parishad, (2004) (22) LCD 1149 (SC), Mohan Lal Bagla v. Board of Revenue, 2005 (23) LCD 86, Canara Bank v. V.K. Awasthi, 2005 (6) SCC 321 and Mangilal v. State of U.P., 2004 (2) SCC 447, learned counsel for the petitioners contended that alternative remedy is not a bar where the order has been passed in violation of principles of natural justice. In such circumstances, the writ petition is maintainable as it has been filed for enforcement of fundamental right or infringement of principles of natural justice. Therefore, the plea of availability of alternative remedy raised by the respondents is liable to be rejected, more so, when the writ petition was filed fifteen years ago and no useful purpose would be served by relegating the petitioners now, to avail the alternative remedy.
I find force in the submission advanced by Mr. S.K. Mehrotra that no useful purpose would be served by asking the petitioners to avail the alternative remedy as the writ petition was filed in the year 1993. Moreover, a perusal of the order sheet shows that the opposite parties have not raised any preliminary objection regarding maintainability of the petition at initial stage and even the parties have exchanged affidavits much earlier.
It is submitted by the learned counsel for the petitioners that the membership of the general body of the registered Society is of two types. One is life membership and the other is ordinary membership. Petitioner Nos.48 to 54 have been enrolled as life members of the Society by the then President Hari Bux Singh in the year 1982 by depositing Rs.101/ each. Petitioner Nos.1 to 47 were enrolled as new life members after the resolution dated 3.3.1991. Thereafter the elections were held and papers relating to the election were submitted to the District Education Officer, who countersigned the signatures of Shri Raghu Nandan Singh, the newly elected Manager.
The grievance of the petitioners is that by the impugned order dated 15.6.1993 the Assistant Registrar excluded the petitioners and three others from the membership of the Society. It is contended by the learned counsel for the petitioners that before passing the adverse impugned order, it was incumbent upon the Assistant Registrar to have afforded opportunity of hearing to the petitioners, which, in the instant case, was not adhered to. No notice was ever served upon the petitioners and entire proceedings were taken by the Assistant Registrar ex parte causing serious prejudice to the petitioners.
Next contention of the petitioners'' Counsel is that under Societies Registration Act, 1860, there is no provision which empowers the Registrar of the Societies to adjudicate on the question of validity of membership of the members of the General Body of the registered Society. Hence, the impugned order is without jurisdiction, apart from being in utter disregard of principles of natural justice.
Applicants, Virendra Pratap Singh, Basudeo Singh and Mohd. Rafique moved an application for impleadment as opposite parties 3 to 5 through Mr. I.B. Singh, Advocate. In their application they mentioned that the applicants are the members of the Managing Committee. They have moved application before the opposite party No.1 that the decision should be taken with regard to the validity of members after hearing the petitioners, applicants and other aggrieved persons. Thus, the applicants were necessary parties. The aforesaid application for impleadment was rejected. However, it was provided that the applicants will have a right of hearing.
Sri I.B. Singh submitted that the impugned order has been passed after hearing all the persons, which includes the representatives of the petitioners and as such, the assertion of the petitioners that they were not afforded opportunity of hearing is absolutely incorrect and misconceived. It has further been pointed out that the petitioners, who were not legally valid members, have illegally elected Ram Samujh Singh as President of Committee of Management on 11.2.1996. Reghu Nandan Singh, S/o Jagadamba Singh has been elected as the Member of the School, who is working against the interest of the institution. It is said that Mr. Raghunandan Singh, the Manager of the School had got recorded 419 decimal land belonging to School for his personal use.
To strengthen his arguments Sri I.B. Singh has placed reliance upon Gaya Prasad Mishra and others v. State of U.P. and others, 2006 (4) ESC 2461 (All) in which this Court has observed that the Writ Court cannot do anything much about these successive administrative decisions going the same way i.e. against the appellants and in favour of the respondents.
In Hridaya Narain Rai v. Deputy Director of Education Vth Region, Varanasi and others, (1992) 2 UPLBEC 1232, on which reliance has been placed by Sri Singh, this Court placing reliance on Supreme Court decisions held that once the election of the Committee of Management of an educational institution is over, it can be challenged before Civil Court. It can also be challenged 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.
It may be mentioned that Sri Kapil Muni Dubey, Advocate has put in appearance on behalf of opposite party No.2, but he did not address the Court. From the materials on record, it comes out that a counter affidavit has been filed by Reghu Nandan Singh alleging himself to be the Manager of the Institution. Surprisingly, in the counter affidavit he has supported the allegations made by the petitioners.
A perusal of the impugned order shows that several dates were fixed by the Assistant Registrar for deciding the controversy and all the aggrieved persons were given opportunity to present their case and documentary evidence. On behalf of the petitioners their representative was heard and given ample opportunity of hearing. The opposite party No.1 has observed that there is no mention of serial number in the membership certificate and in the Membership Register, names of large persons, as claimed, were not found. In the documents, which have been filed in support of their claim of being members of the Society, but their names did not appear in any of the agenda after the date they alleged themselves to be members. In these circumstances, the opposite party No.1 has rightly come to the conclusion that only the membership certificate cannot be made the basis for treating them as members of the Society.
I do not find any force in the submission advanced by the learned counsel for the petitioners that the petitioners were not given opportunity of hearing. When the representative authorized by the petitioners was heard, it is not open for the petitioners to come with the case that they were not heard. From the record, it is revealed that the petitioners were fully aware of the proceedings going on before the opposite party No.1 but chooses neither to appear nor move any application for giving hearing to them as they have given authorization to one person. Thus, the contention of the petitioners is misconceived and afterthought. Reliance placed by the petitioners on 2006 (24) LCD 1373 is of no avail to them.
It would be useful to add that whenever a controversy involved is a disputed question of fact, then ordinarily it should not be adjudicated under extraordinary remedy of Article 226 of the Constitution. In a recent judgment reported in JT 2006 (4) SC 373: 2006 (5) SCC 255, Sanjay Sitaram Khemka v. State of Maharastra and others, the Hon''ble Supreme Court observed as under:
�A writ petition, as has rightly been pointed out by the High Court, for grant of the said reliefs, was not the remedy. A matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. As the High Court or this Court cannot, in view of the nature of the controversy as also the disputed questions of fact, go into the merit of the matter; evidently no relief can be granted to the petitioner at this stage.�
Having given anxious consideration to the facts and circumstances of the case, it can be easily inferred that the impugned order has been passed after giving reasonable opportunity of hearing to all the persons concerned. If the petitioners have authorized one person to represent case on their behalf too, then it is not open for the petitioners to say that they were not heard individually. The petitioners cannot retract from their own saying. Moreover, as averred above, the petitioners were fully aware of the proceedings going on before the opposite party No.1 but the petitioner did not choose to appear or move any application for giving hearing to them. The impugned order shows that the authority concerned has examined all the relevant documents, like, membership register, cash book, agenda and other materials produced before him. He has also considered the certificate produced by Shri Raghunandan Singh, the then Manager on 15.8.1990. In this list, there are 45 as life members. Out of these, three were reported to be dead and 42 were alive. The opposite party No.1 after considering all these documents declared the valid list of members before passing of the order dated 9.1.1991 passed by the Allahabad High Court. He also mentioned in the impugned order that some dead members may have been included in the said list as no details have been furnished in this regard. Therefore, if any, action is taken, it should be after excluding the names of the dead persons.
Thus, I find no infirmity or illegality in the impugned order. The opposite party No.1 has passed the impugned order, which is a reasoned and justified order. Therefore, no good ground is made out for interference under Article 226 of the Constitution of India.
For the reasons aforesaid, the writ petition is dismissed. However, it will be open for the petitioners to approach the appropriate forum for redressal of their grievances. Since it has been alleged that the college property has been acquired by some individual person, the District Inspector of School, Sultanpur shall look into these allegations and take appropriate action in accordance with law.
(Petition dismissed)