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Judgment
Rajiv Sharma, J.—Issue notice.
Notice on behalf of opposite parties 1 & 4 is accepted by learned Chief Standing Counsel whereas Mr. U.S. Sahai appeared on behalf of the opposite parties 2 and 3 and filed counter affidavit.
Heard learned Counsel for the parties.
By means of the instant writ petition, the petitioners have challenged the order dated 20.12.2007 passed by the Deputy Registrar, Faizabad holding that Sardar Jagar Singh, Sardar Mahendra Singh, Sardar Balwant Singh and Sardar Ram Singh Gyani (petitioners) are not the legally valid members of General Body of Guru Nanak Educational Society, Faizabad. The petitioners have also challenged the order dated 27.2.2008 passed by the Deputy Registrar, Faizabad notifying the election programme of the Committee of Management and appointing one Mr. Ajai Pratap Singh of Dr. Ram Manohar Lohia Avadh University, Faizabad as the Election Officer.
A preliminary objection has been raised by the opposite parties Nos.2 and 3 that the election process has been notified vide notification dated 27.2.2008 and as such the writ petition is not maintainable in view of the decisions rendered by the Hon''ble Supreme Court as well as by this Court in Election Commission of India v. Ashok Kumar and others, (2000) 8 SCC 216, Basant Prasad Srivastava, Manager v. State of U.P. and others and Fahid Ahmad v. State of U.P., reported in 2007 (1) AWC 1020 (LB).
The facts as stated in the writ petition are that Guru Nanak Educational Society is a Society registered under the Societies Registration Act, 1860 with one of the object to establish and administer educational institutions for boys and girls of Sikh Community in particular and for boys and girls of other community from lower standard to higher standard. Accordingly, Guru Nanak Bala Viyda Mandir, Guru Nanak Public School and other educational institutions were established. The said society was registered with seven members, described as founder members of the Society. Out of the above founder members, only two members are alive at present, namely, Sardar Mohan Singh Bagga, petitioner No.4 and Sardar Rajendra Singh Arora, opposite party No.2. The remaining five members who had founded the above registered Society unfortunately passed away in due course of time.
Learned counsel for the petitioner has contended that the impugned order dated 20.12.2007 has been passed in utter disregard of the provisions of law and without taking into consideration the order dated 31.10.1995 whereby the membership of the petitioners has been invalidated on a complete misapprehension and nonapplication of mind causing serious prejudice to the petitioners. He further submitted that the petitioners were inducted as Members and have participated in the meeting as and when it was convened by the Management Committee. Elaborating further, he submitted that the rules and byelaws of the above registered Society do not imperatively provide for deposit of any membership fee by a new member. The ingredients of membership as required under Section 15 of the Societies Registration Act are duly being fulfilled by the petitioners but inspite of that membership has illegally been held to be invalid vide order dated 20.12.2007. He further submitted that the membership of the General Body of the registered Society had gone below the requisite strength i.e. seven members, but the opposite party No.1 has recorded a finding that the Board of Management of the institution as well as the General Body of the registered Society to be in existence and having jurisdiction to enroll new members though as a matter of fact the Society has lost its status as there are only three members at present.
Learned counsel for the petitioners next contended that the impugned orders are illegal and unjustified and are intended to aid the opposite parties to get their exclusive hold of the Management of the institution for their personal gains. He also submitted that as the petitioners have been debarred from the status of being members of the Society, they will have no remedy.
In support of his above contentions, Sri S.K. Mehrotra has relied upon Krishna Tiwari and another v. Regional Joint Director of Education, Varanasi and others, (2006) 1 UPLBEC 681; Bar Council of Delhi and another (etc.) v. Surjeet Singh and others (etc. etc.), AIR 1980 Supreme Court 16121 and Jayrajbhai Jayantibhai Patel v. Anibhai Nathubhai Patel and others, (2006) 8 Supreme Court Cases 200.
In rebuttal to the arguments advanced by learned counsel for the petitioners, Mr. U.S. Sahai, learned Counsel for the answering respondents has submitted that the Society was established by 09 Founder Members/ Life Members and not by 07 Founder Members/ Life Members. Petitioner No.4 and the opposite party No.2 are the founder life members of the Society and the opposite party No.3 was inducted as life member in the year 1989. According to him, petitioners Nos.1, 2 and 3 as well as Sardar Gyani Ram Singh had never been inducted as members of the Society and by means of the impugned order dated 20.12.2007, it has rightly been held that the petitioners Nos.1, 2 and 3 and Sardar Gyani Ram Singh were not members of the Society.
Learned Counsel for the respondent next submitted that the petitioners cannot claim membership by giving donation as the receipts would show that these receipts have been issued against the donation given by the petitioners to the Guru Nanak Bal Vidya Mandir which has no relation with the Society. As regard the amendment in the byelaws of the Society, it was pointed out that the amended bye laws of the Society were cancelled by the order dated 30.6.1992 passed by the Deputy Registrar, against which a writ petition No.378 (MS) of 1993 was filed and the same was also dismissed.
He further submitted that there is no illegality or infirmity in the impugned order dated 20.12.2007 contained in Annexure1 and further the same was not challenged earlier. Now when the elections have been notified vide order dated 27.2.2008, the petitioners have approached this Court just to install the election process. Mr. U.S. Sahai also contended that after evidence and material available on record, a finding of fact has been recorded by the opposite party No.1 and the same cannot be interfered under Article 226 of the Constitution of India. He also submitted that in case the petitioners have any grievance they can agitate the same before the appropriate forum provided under the law.
In Krishna Tiwari''s case (supra), the under challenge was the order passed by the Rgional Level Committee and the Court has come to the conclusion that the Committee of Management Satya Narian Pandey as Manager has been validly elected and the recognition of the Committee of Management was reaffirmed. This case is not applicable in the present case as the controversy involved in the present case is altogether different. Similarly, the Bar Council of Delhi''s case (supra) will not be of much assistance to the petitioner as in that case the elections were over whereas in the instant case, the election process has started and the election process is yet to be completed. Further, the vires of Rule 3(j) of the Delhi Bar Council Election Rules was challenged and Hon''ble the Supreme Court held the said rule to be ultra vires and invalid. It is in this background Hon''ble the Supreme Court held that it can be challenged in a writ petition.
Thus, the proposition of law laid down in the case of Jayrajbhai Jayantibhai Patel (supra) is on different footing and facts and as such, it cannot be made applicable in the instant case, insofar as the case of the petitioners is that they were the bona fide members of the Society and the same is being disputed by the answering respondents 2 and 3. The Deputy Registrar on the basis of evidence and material on record has held that the petitioners are not the valid members of the Society. The disputed questions of fact cannot be decided in a writ jurisdiction under Article 226 of the Constitution of India. Moreover, it is a settled proposition of law that Courts ordinarily should not stall the election process.
In the case of Basant Prasad Srivastava, Manager, Gandhi Smarak Uchchtar Madhyamik Vidyalya, Kauriya, Azamgarh v. State of U.P. and others, 1994 All CJ 162, a Division Bench of this Court has proceeded to held as under:
��7. 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 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 affect 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.
13��.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 under Section 16A(7) of the Intermediate Education Act and the decision of the Deputy Director given under the above provision is subject to the decision of 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, a 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 to 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 challenge 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.�
In the case of Shri Sant Sadguru Janardean Swami (Moingiri Maharaj) Sahakari Dudgha Utpadak Sanstha and another v. State of Maharastra and others, (2001) 8 SCC 509, Hon''ble Supreme Court held that breach or non compliance with the mandatory provisions of Rules during the preparation of electoral roll can be challenged in an election petition. It has been further held by the Hon''ble Supreme Court that the preparation of voter list is a part of the election process for constituting Managing Committee of a specified Society, accordingly, the Court should not interfere with the election process at the intermediate stage. For convenience, relevant portion from the judgment of Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and others (supra) is reproduced as under:
�9. If the contention of the appellants is that there was a breach of rule or certain mandatory provisions of the Rules were not complied with while preparing the electoral roll, the same could be challenged under Rule 81 (d) (iv) of the Rules by means of an election petition. In view that the preparation of electoral roll is part of the election process and if there is any breach of the Rules in preparing the electoral roll, the same can be called in question after the declaration of the result of the election means of an election petition before the tribunal.
In view of our finding that preparation of the electoral roll being an intermediate stage in the process of election of the Managing Committee of a specified Society and the election process having been set in motion, it is well settled that the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll. It is not disputed that the election in question has already been held and the result thereof has been stayed by an order of this Court, and once the result of the election is declared, it would be open to the appellants to challenge the election of the returned candidate, if aggrieved, by means of an election petition before the Election Tribunal.�
In another case reported in (2004) 13 SCC 574, Tapash Majumder v. Pranab Dasgupta, Hon''ble Supreme Court held that when the election process is started, the Court should not interfere with it.
In Fahim Ahmad v. State of U.P., (2007) 1 AWC 1021, on which reliance has been placed by Sri U.S. Sahai, appearing for the respondents, this Court following the decisions, referred to above, refused to interfere with the order of the Deputy Registrar finalizing the voter list and notifying the election on the ground that writ petition is not maintainable in such matter and held in paragraphs 28 and 29 as under:
�28. The law emerges from the discussion made hereinabove is that once the election process is started which includes the preparation of electoral roll, then ordinarily High Court should not invoke extraordinary jurisdiction of Article 226 of the Constitution of India and the aggrieved party shall have a right to challenge the outcome of the election in pursuance to the provisions contained in the Societies Registration Act or any other law time being enforced. The outcome of the election may also not be impugned under extraordinary jurisdiction of Article 226 of the Constitution of India in case the remedy to file an election petition or any other remedy under the Act or Statutes is available to an aggrieved person.
In view of above, since, by the impugned order the Deputy Registrar, has finalized the voter list and notified the election, the present writ petition shall not be maintainable.�
I am in full agreement with the law enunciated by learned Single Judge in the aforesaid case.
In view of above, I find force in the submissions advanced by the Counsel for the respondents that after the election process has started, party aggrieved has a right to challenge the election by approaching the appropriate forum. The Hon''ble Supreme Court in the case of Umesh Shivappa Ambi and others v. Angadi Shekara Basappa and others, (2998) 4 Supreme Court Cases 529, has observed that once the election is over, the aggrieved candidate will have to pursue his remedy in accordance with the provisions of law and the High Court will not ordinarily interfere in the elections under Article 226 of the Constitution of India.
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, 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.�
Thus, from the aforesaid principles and facts it clearly emerges out that once the election process starts, it must come to its logical conclusion by declaration of result, the aggrieved person may challenge the election by filing election petition before the appropriate forum or the civil suit in accordance with law. Approach to Court at an intermediate stage 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. It is, therefore, desirable that the election should end as early as possible.
For the reasons stated hereinabove, the writ petition is dismissed as not maintainable. It is clarified that I have not entered into the merits of the case.
(Petition dismissed)