Moin Uddin vs Iftekhar Husain and Others

These two appeals arise out of a common judgment delivered in two separate writ petitions, one filed by the Committee of Management, Ansar Inter College Moradabad through Israr Husain as Manager and the other writ petition No. 33470 of 2010 filed by eleven persons claiming themselves to be the members of the general body challenging the order dated 5th May, 2010 passed by the Regional Level Committee headed by the Joint Director of Education.

The second writ petition also assails the consequential publication of the election programme that were scheduled to be held on 8th June, 2010 as a consequence of the order of the Regional Level Committee.

The Institution, Ansar Inter College, Moradabad is governed by the provisions of the U.P. Intermediate Education Act, 1921 and has a scheme of administration. The said scheme of administration is formulated under the provisions of Section 16-A of the 1921 Act. The scheme provides for holding of periodical elections from amongst the members of the general body entitled to participate in the same.

There was a dispute pending relating to the membership of the electoral college. The parent society registered under the Societies Registration Act is known as Ansar Vernacular Middle School, Moradabad. The membership issue was sought to be resolved for the purpose of holding the elections of the Committee of Management of the Institution in relation whereto this High Court issued directions on 11th December 1998. This direction was issued to the Regional Joint Director of Education in Writ Petition No. 41691. After hearing the parties concerned, an order was passed on 7th June 1999 whereby District Inspector of Schools was directed to get the elections held from the undisputed original list of 115 members. Accordingly, the membership was finalized on 12th July, 1999 and elections from amongst the said electoral college were held on 29th July, 1999. In the aforesaid elections Moinuddin, the Appellant was elected as a President and the Respondent Israr Husain was elected as the Manager.

Seven out of 115 members are dead which fact is undisputed leaving behind the surviving members. The dispute arose thereafter when the President and the Manager fell out and some resolutions were passed on 20th January 2000 and 6th March, 2000 relating to amendment in the tenure of the Committee and criteria for membership. The amendments were approved by the Joint Director of Education on 18.7.2000.

The amendments in the scheme of administration were also subjected to challenge in a writ petition filed by one Mohd. Islam Arshi being Writ Petition No. 31923 of 2002 which was disposed of on 8th August, 2002 directing the authority concerned to decide the representation by a reasoned order.

It is alleged that another resolution was fabricated by Moin Uddin the President alleging a no confidence motion dated 8.8.2002 having been passed against Israr Husain the Manager. It appears that the District Inspector of Schools proceeded to recognize Moinuddin as Manager on 28th August 2002 when his signatures were attested presumably on the ground that he had been elected a Manager in place of the Israr Husain after a no confidence motion. The Joint Director of Education called upon the District Inspector of Schools vide order dated 9.9.2002 to recall the order dated 28.8.2002. Some proceedings are stated to have taken place on 14.9.2002.

The order dated 28.8.2002 was assailed in Writ Petition No. 41319 of 2002 and the operation of the order attesting signatures of the Appellant as Manager was stayed on 30.9.2002. It was further provided in the said interim order that the Joint Director of Education shall proceed to take a decision on the said dispute after giving opportunity of hearing to the parties. The aforesaid order of the learned Single Judge was assailed by the Appellant herein in Special Appeal No. 1122 of 2002. The Division Bench did not interfere with the interim order passed but made an observation that once the decision is taken by the Joint Director of Education, the aggrieved person would be at liberty to challenge the same in accordance with law. The writ petition itself was finally disposed of by the order of the Division Bench dated 21.10.2002.

The Joint Director of Education thereafter proceeded to pass an order on 12th December 2002 holding that the Appellant Moin Uddin had been wrongly recognised as a Manager by the District Inspector of Schools as his alleged election was contrary to the provisions of the scheme of administration and till fresh elections are held, the Committee of Management which was elected in the year 1999 shall continue to function. The aforesaid order passed by the Joint Director of Education was not assailed and had become final.

The Appellant Moin Uddin obtained an order from the District Inspector of Schools to the effect that there were 121 members and a list was accordingly released by the District Inspector of Schools on 25th April, 2003 for holding of elections. This action of the District Inspector of Schools and the list of membership was assailed in Writ Petitions being Writ Petition No. 21787 of 2003 and 34909 of 2003. No interim orders were passed therein.

The Joint Director of Education however on 2nd May, 2003 passed an order staying the operation of the order of the District Inspector of Schools dated 24.5.2003 against which the Appellant Moin Uddin filed Writ Petition No. 23927 of 2003. An interim order was passed therein that elections may be held but the same shall not be given effect to.

In terms of the aforesaid interim order the alleged elections were held on 18th August 2003. All the three writ petitions namely Writ Petition No. 21787/03, 34909/03 and Writ Petition No. 23927 of 2003 were decided together on 23.8.2003. They were disposed of with a direction to the Regional Joint Director of Education to decide the dispute of membership and the elections simultaneously.

The Joint Director of Education on 29th October 2003 passed an order holding that the alleged membership list as disclosed by the District Inspector of Schools on 25.4.2003 was incorrect and the alleged expulsion of 45 members by the Appellant was also illegal. The Appellant filed Writ Petition No. 49296 of 2003 assailing the same.

In between an order of single operation was passed by the District Inspector of Schools which was challenged by the Manager of the Institution Mohd. Israr in Writ Petition No. 55435 of 2003 in which a stay order was passed on 17.12.2003.

The elections in terms of the order of the Joint Director of Education dated 29.10.2003 held on 8.12.2003. Strangely enough the Appellant Moinuddin appears to have obtained an order of attestation of his signatures as Manager on 3rd January 2004. Mohd. Israr filed writ petition No. 2355 of 2004 in which this Court passed an order staying the operation of the said order and at the same time directed the District Inspector of Schools to manage the affairs of the Institution.

All the aforesaid writ petitions namely, Writ Petition No. 43934/03,49296/03,55435/03 and 2355 of 2004 were allowed on 4.11.2008. Two special appeals being Special Appeal Nos. 1743 of 2008 and 1744 of 2008 were respectively filed which were dismissed on 10.12.2008. Consequently the order of this Court dated 4.11.2008 became final. The Joint Director of Education had to accordingly decide the matter afresh.

The Joint Director of Education thereafter proceeded to decide the matter 20th August, 2009 in favour of the Appellant which was assailed by the Respondent Israr Husain in Writ Petition 51965 of 2009. The said writ petition was allowed on 15.10.2009 directing the Joint Director of Education to decide the matter afresh. The Joint Director of Education passed the order on 5th May, 2010 directing the District Inspector of Schools to hold elections from 123 members without deciding the dispute as directed by this Court. However questioning the said direction two writ petitions were filed one by Israr Husain and the other by 11 members which have given rise to these two appeals. The writ petitions were allowed in terms of the directions contained therein. The learned Single Judge found that the meetings which were held on 22.9.2002, the validity thereof had to be decided and the enrolment or expulsion of the members as alleged by the Appellant has not been decided in correct perspective. The manner in which the meeting was convened and notices were sent was not found to be in accordance with the scheme of administration. Accordingly, the writ petitions were allowed and all consequential orders were set aside whereby directions had been given for holding a fresh election. The Regional Level Committee has been directed to take a fresh decision in the matter in accordance with the scheme of administration.

It is in the aforesaid background Sri P.S. Baghel learned Counsel for the Appellant contends that the learned Single Judge committed an error by proceeding on the premise that the order of the Joint Director of Education is founded on surmises and conjunctures. He further submits that the members who have been non-suited is a finding of fact based on material on record, therefore the learned Single Judge fell in error that the order passed by the Joint Director of Education is based on surmises and conjunctures.

Sri Baghel has invited the attention of Court to the findings recorded in Paragraph 5 of the order of the Joint Director of Education to contend that detail findings supported on facts are indicated in relation to the validity of the meetings in which certain members were declared to have lost their membership on account of non-deposit of their membership fee. Sri Baghel submits that none of those members have filed any writ petition to challenge the aforesaid findings and therefore the Respondents including the ex-Manager Israr Husain have no authority to espouse the cause of such members who have already lost interest in the matter.

In these circumstances, he submits that the learned Single Judge by remitting the matter on this issue, when the members who membership has been held to be invalid have not chosen to approach this Court or challenge the same ''has erred in allowing the petition''. He therefore submits that the impugned order of the learned Single Judge is vitiated. In essence his submission is that there is no perversity in the order and the findings of fact recorded by the Joint Director of Education could not have been interfered with by the learned Single Judge on such grounds.

On the other hand, Sri P.N. Saxena contends that the Joint Director of Education exceeded his jurisdiction and even otherwise on facts he has not found as to how the meetings had been validly convened when the notices had been admittedly sent under postal certificate. He submits that there is a denial of participation by the members of the Committee of Management and the presumption raised that they had knowledge of the meeting is therefore founded on surmises and conjunctures. He therefore submits that the learned Single Judge because of the said reason came to the conclusion that the Joint Director of Education has proceeded to dispose of the matter on surmises and conjunctures.

We have also heard learned Standing Counsel who submits that the Joint Director of Education shall proceed to decide the matter in terms of the direction of this Court. Having heard learned Counsel for the parties, the matter is being finally disposed of at this stage with their consent.

Sri P.S. Baghel as an alternative argument, without conceding the position already taken by him on behalf of the Appellant: submits, that the elections should be held on the basis of an undisputed electoral college and therefore a direction should be issued to hold fresh elections on the basis of a valid membership list. Sri. P.N. Saxena to this alternative argument submits that elections have to be held and there is no way out in order to constitute the Committee of Management but the issue relating to membership has to be decided inasmuch as the proceedings that are being relied upon by the Appellant for expelling members and including members have wrongly been held to be valid by the Joint Director of Education and hence, the elections should be held only from amongst valid members to be decided as per the directions of the learned Single Judge.

We have considered the submissions raised by the learned Counsel for the parties. From the facts that emerge it is evident that so far as the issue relating to the meetings of the year 2002 are concerned the order of the Joint Director Education dated 12.12.2002 had not been assailed by any party. It is to be noted that the meetings which were held on 8.8.2002 and 14.9.2002 were during the period when there was a dispute going on between the parties. This Court stayed the attestation of signatures of the Appellant on 30.9.2002 whereafter the matter was decided by the Joint Director of Education on 12.12.2002. The said decision holds that the meetings dated 20.1.2000,6.3.2000,8.8.2002 and 14.9.2002 are invalid. The dispute therefore came to an end at that point of time.

The issue again arose on account of the list of new members relied upon by the Appellant in which orders were issued by the District Inspector of Schools on 25.4.2003. This order was also annulled by the Joint Director of Education on 29.10.2003. Nonetheless the said order dated 29.10.2003 was also set aside on 4.11.2008. It is therefore clear that the issue of membership as claimed by the Appellant was to be decided by the Joint Director of Education. The Joint Director of Education while passing the order dated 20.8.2009 accepted the claim of the Appellant but at the same time proceeded to draw conclusions only on inferences with regard to the meetings dated 22.9.2002 and 16.9.2002. These meetings have been seriously disputed and therefore no assumption could have been drawn by the Regional Joint Director of Education about the presence of those persons in the meetings about which disputes had been raised without adverting to the issue appropriately and appreciating the facts and the provisions of the scheme in correct perspective.

Sri Baghel submits that original documents had been produced. The production of original documents would not by itself be a proof of the validity of the meetings. The contents thereof have to be proved by corroborative material. The Joint Director of Education has after narrating the facts concluded that the members had notice of the meeting on 22.9.2002 and that they were present in the meeting inspite of the fact that some of the members had denied their signatures on the said documents. Sri Baghel submits that such a finding of fact could not have been interfered with by the learned Single Judge on the ground that it was being proceeded on surmises of conjunctures.

The aforesaid finding of the learned Single Judge, in our opinion, is based on the material that was placed on the record. It is true, that the members whose membership have been disputed have not approached this Court by filing any writ petition. In order to resolve the aforesaid controversy as to whether the aforesaid members were put to notice at all in relation to their dispensation of membership and as to what was the valid electoral college, the same had to be decided in view of the contentions raised by the parties.

Learned Counsels have already indicated that both the parties want elections to be held. In such a situation, the appeals stand disposed of with a direction to the Regional Level Committee to examine as to whether such members whose membership is said to have been dispensed with by the Appellants are still claiming themselves to the members and if so whether they are entitled to participate in the elections. This will have to be decided keeping in view the provisions of the scheme of administration. Accordingly, the Regional Level Committee shall decide the matter keeping in view the aforesaid facts and to dispose of the matter within eight weeks from the date of the presentation of a certified copy of this order before him.

Upon a decision on the issue of membership, the Regional Level Committee shall issue a direction to the District Inspector of Schools to get the elections held within one month thereafter in accordance with the electoral college so decided to enable the newly elected committee to take over charge.

The appeals stand disposed of accordingly.