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Judgment
Ritu Raj Awasthi, J.—Notice on behalf of opposite party No. 1 has been accepted by the learned Chief Standing Counsel, Sri M.B. Singh has accepted notice for opposite party No. 2, whereas Sri R.P. Mishra - II, has put in appearance for opposite party No. 4.
Heard Sri Anil Tewari, Senior Advocate, assisted by Sri Apoorva Tewari, learned Counsel for the Petitioner, Sri M.P. Singh for opposite party No. 2 and Sri R.P. Mishra - II, for opposite party No. 4 and perused the record.
Issue notice to opposite party No. 3 returnable at an early date.
Learned Counsel for the Petitioner submitted that in compliance of the Court''s order dated 25.2.2010 passed in Writ Petition No. 3808 (MS) of 2009, the Deputy Registrar by order dated 3.9.2011 has finalized the voter list and appointed himself as Election Officer to hold the election of the Committee of Management of the society. Thereafter the election programme was declared on the same day i.e. 3.9.2011. As per the said programme the elections are to be held on 24.9.2011. However, by the impugned order dated 14.9.2011 the opposite party No. 2 has directed the Petitioner to submit all the relevant documents for re - consideration of the valid voter list and for that purpose has given one month''s time.
The contention of the learned Counsel for the Petitioner is that the Deputy Registrar has No. authority to review his own order. Once he has finalized the voter list by order dated 3.9.2011 and on that basis the election is scheduled to be held, he has No. power to review the said order, may be, on a complaint made by the member of the society. In support of his submission, he has relied upon the judgment of this Court reported in 2006 (24) LCD 1078 Fahim Ahmad and Ors. v. State of Uttar Pradesh and Ors. , wherein in para - 31 it has been observed that the Deputy Registrar has No. power to review his own decision.
It is informed that against the aforesaid judgment Special Appeal No. 462 of 2006 was filed. The judgment of the Special Appeal is reported in 2008 (26) LCD 1109, wherein in para 36 it has been reiterated that if any decision is taken by a statutory authority at the behest or on the suggestion of a person who has No. statutory role to play, the same would be ultra vires.
Relevant paragraph - 36 of the aforesaid judgment is reproduced:
In pursuance of the aforestated direction the Deputy Registrar, Firms, Societies and Chits finalized the electoral list by the order dated 13.3.2006. Now, a question arises when the Deputy Registrar, Firms, Societies and Chits was holding election in pursuance of the direction issued by this Court in writ petition No. 43074 of 2003, could any direction be issued by the Registrar. In our view, it could not be. Source to hold the election by the Deputy Registrar is the order of the High Court. More or less, a similar controversy arose in Jawahar Lal Nehru Memorial Association v. Director of Higher Education Uttar Pradesh Allahabad 1994 ALJ 618 wherein the High Court with the consent of the parties directed the Registrar to hold the election. The Assistant Registrar finalized the voter list. It was held that source of the power is the order of Court, as such No. other authority except Registrar could hold the election. The same principle will be applicable in this case also. The Deputy Registrar under the direction of the High Court was required to hold the election and any interference in its functioning by any authority without the leave of the Court will vitiate the proceedings. It is well settled that if any decision is taken by a statutory authority at the behest or on the suggestion of a person who has No. statutory role to play, the same would be ultra vires. (See: Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and Others,
Sri M.B. Singh, appearing for opposite party No. 2 submitted that in fact by order dated 3.9.2011 the Petitioner was required to inform all the members regarding election programme but the Petitioner did not inform the members in time and therefore, the opposite party No. 4 could not file his nomination in time. In this regard the opposite party No. 4 has made a complaint to the opposite party No. 2 and on that basis the election officer/opposite party No. 2 has taken a decision to reconsider the declaration of voter list and re - schedule the election.
Sri R.P. Mishra - II, learned Counsel appearing for opposite party No. 4 has submitted that opposite party No. 4 was not informed in time by the Petitioner and therefore, he has been denied to contest the election.
I have considered the submissions made by the parties counsel.
Prima - facie, it appears that the opposite party No. 2 has No. authority or power to review his own decision merely on a complaint made by one individual member. The voter list has been finalized by the opposite party No. 2 in compliance of the Court''s order and thereafter the election programme has been declared. As per the said election programme the nominations papers were to be received on 12.9.2011 and they were required to be filed by 13.9.2011. The nomination papers were to be finalized by 14.9.2011 and the 15.9.2011 was the date fixed for withdrawal thereafter the list of nomination papers was to be published on 16.9.2011 and the election was scheduled to be held on 24.9.2011 but during the election programme on 14.9.2011 the opposite party No. 2 has passed the impugned order.
Prima - facie, I am of the considered opinion that the opposite party No. 2 has No. authority to review its own order.
In this view of the matter, as an interim measure it is provided that the operation of the impugned order dated 14.9.2011 shall remain stayed till the next date of listing.
In the meantime, the opposite party No. 2 shall proceed with the election programme and hold the elections as per schedule. In case the election is not possible to be held on 24.9.2011 it may be postponed for a period of 15 days at the most.
The opposite parties are directed to file counter affidavit within four weeks. In case counter affidavit is filed, Petitioner may file rejoinder affidavit within two weeks, thereafter.
List thereafter.