Vijayesh Rana vs The Assistant Registrar, Firms and Societies and Others

By this intra Court appeal u/s 2 (1) of the M.P. Uchcha Nyaylaya (Khand Nyaypeeth Ko Appeal), Adhiniyam, 2005 the appellant is challenging the order dated 24.08.2012 passed by the learned Single Judge in Writ Petition No. 7729/2012 and Writ Petition No. 7746/2012 whereby the prayer for grant of stay of the decision dated 27.07.2012 of the respondent No. 1 has been rejected. This matter has been listed today for consideration of interim relief and admission because the election of M.P. Cricket Association is going to be held on 26.08.2012.

Shri Shekhar Bhargava, learned Senior counsel for the intervenor who had filed an application for intervention in writ petition raised a preliminary objection regarding maintainability of this writ appeal under Chapter 8 of Rule 39 of the M.P. High Court Rules, 2008 and Clause-B of Chapter 7 of Rules 2006 and submitted that supply of copy of the writ appeal along with the documents amended therein is one of the pre-condition to all the affected parties, whereas in this writ appeal no copy has been supplied to him who is appearing for the intervenor and he was duly heard by the learned Single Judge.

Learned counsel for the respondents raised the same objection and submitted that they have also not received copy of the stay application and prayed for dismissal of the writ appeal. Both the writ appeals are presented on 25.08.2012 in late Hours i.e. 6:15 pm and, therefore, the copies have not been supplied to them. Considering these facts, we are not inclined to dismiss this writ appeals on these grounds. We left this question for consideration at the time hearing of the appeal.

The appellant and other 19 members who were inducted has a Life Member of respondent No. 3 Association in the Annual year of 2011-12 under Clause -11 and 12 of the Bye-laws framed by M.P. Cricket Association known as ''Constitution of M.P. Cricket Association which is registered under the M.P. Registration Act, 1973. These Bye-laws were framed from time to time with the approval of the Assistant Registrar under the Act of 1973. As per Clause-A of Rule 11 of the Bye-laws any persons who intending to be a life member have to file an application along with necessary admission fee in advance. The appellants and other 19 members were applied for Life Membership as per the the said provisions from time to time and their applications were pending from last so many years but they were granted membership from the quota of 2008-09, 2009-10, 2010-11,2011-12. A complaint was lodged before the respondent No. 1 by respondent No. Dr. Leeladhar Paliwal in which he pointed out number of irregularities. The learned Assistant Registrar after issuing show cause notice to the Association decided the matter and passed the order dated 27.07.2012 and declared membership of all the 20 members as void. This order was communicated by the respondent No. 3 Association to those 20 members stating therein that the membership of 20 persons as granted by the Association was illegal. This action by which 20 members whose induction were held to be illegal has challenged the order of Assistant Registrar by filing various writ petitions before the learned Single Judge and has also prayed for grant of interim relief.

The learned Single Judge after hearing learned counsel for the parties at length came to the conclusion that the respondent No. 1 has passed a detailed order after giving an opportunity to the respondent No. 3 MPCA and also found that 20 members during the period 2008-09 to 2011-12 were inducted in violation of Clause-11 of the Bye laws of respondent No. 3 MPCA and the Assistant Registrar has also taken note of the irregularities which were committed by granting the membership and held that no case for staying of the operation of the said order is made out and rejected the application.

It is submitted by the learned counsel for the appellant that as per Rule 11 B of the Constitution of M.P. Cricket Association every year not more than 5 persons shall be admitted as members, meaning thereby, if any person wants to become life member of the Association he has to apply as per Clause-12 of the Bye-laws and his application will be considered as per Clause-11 of the Bye-laws. It is also submitted that as per Clause-11, 5 persons can be admitted as member of the Association every year out of which 2 persons shall be ''Cricketers'' and as ''Umpire'' and three members of ''General Category''. Here in the present case all the members were applied for their membership and accordingly they were inducted as a member strictly as Clause-11 and admitted from the quota of all the relevant year. They were appointed in the quota 2008-09 to 2011-12. Thus, there is violation of any of the provisions of bye-laws framed by the Association nor any of the provisions of M.P. Registration Act, 1973 and rules framed thereunder. It is also submitted that Registrar never authorised the Assistant Registrar to conduct an enquiry and decide the complaint of the respondent No. 2. The learned Assistant Registrar committed an error in passing the order and the order is wholly jurisdiction. It is also submitted that the order was passed without giving any show cause notice to the life members to the members and thus the said order is in violation of principles of natural justice. He lastly submitted that respondent No. 1 Assistant Registrar in its reply dated 23.08.2012 which duly supported by affidavit categorically admitted that membership of the appellant and other members were never cancelled their membership. The membership was cancelled by the Association in pursuance to the order passed on 27.07.2012.

With the aforesaid it is submitted that the election is going to be held today, if some interim protection be granted to the appellant else this writ appeal will returned infructuous.

It is also submitted that they shall have the right to present at the meeting of the Association, right to seek election and right to express opinion on the matters, by impugned orders these rights have been infringed and submitted that interim protection be granted so that they shall cast their votes subject to the decision of the writ appeal and if there is a difference of more than 20 votes then result of the election be declared, subject to pendency of the writ appeal.

It is also submitted by the learned Senior counsel for the respondents that the principles of natural justice cannot be applied in a straight jacket formula. Their application depends upon the facts and circumstances of each case. They submitted that appellant not prejudiced by non observance of principles of natural justice. In the case in hand, the 20 persons life membership of the appellant was terminated making various allegations that they have not applied as per rule 11 and 12 of the constitution of the association. It is pointed out that some of the members never submitted any admission fee in advance, which is one precondition for consideration of the application. It is also submitted that 5 to 6 notices were given to the respondent No. 3 Association and Association failed to give necessary particulars as required by the Assistant Registrar and thus, no fruitful purpose will be served in giving opportunity of hearing to the appellant and that 19 members. It is true that principles of natural justice cannot be applied in a straight jacket formula.

In the present case, the appellant has been prejudiced because life membership of 20 members were terminated and that to without giving any opportunity of hearing to them. What they required is fairness by the authority concerned. Prima facie, we found that the authority has not acted fairly in the matter. This also shows from the reply filed on 23.08.2012.

Shri Chitale, learned Senior counsel who is appearing on behalf of respondent No. 2 in support of the argument of the appellant has drew our attention the decision of Siliguri Municipality and Others Vs. Amalendu Das and Others, and Banera Valves Limited Vs. Commissioner of Central Excise 2006 (13) SCC 347 and submitted that main purpose of passing the interim order is to evolve the workable arrangement to the extent call for by the demands and Court has to strike the delicate balance after considering the pros and cons lest public interest is not jeopardized and institutional embarrassment is eschewed.

In the case of Banera Valves Limited Vs. Commissioner of Central Excise (supra) the Apex Court held that where denial of interim relief may lead to public mischief grave irreparable private injury or shake citizens faith in the impartiality of public administration, interim relief can be given.

On the other hand, learned counsel for the respondents has submitted that the learned Single Judge after hearing the arguments at length passed a detailed order which an interlocutory order and no writ appeal lies against the interlocutory order.

In support of the decision of Arvind Kumar Jain and Others Vs. State of Madhya Pradesh and Others, wherein it has been held that when an interim order is sembles final order or affect the rights of the parties, it can be treated as an order for all practical purpose and an appeal can be preferred against an order in regard to have nature and tenure and impact and effect of the passed by learned Single Judge.

Considering the facts and circumstances of the nature and order passed by the learned single Judge we are of the view that impugned order passed by the learned Single Judge refusing to grant ad-interim prayer was not an interlocutory order and could be challenged in the writ appeal. In the present status of the writ appeals prima facie it appears that the order dated 27.07.2012 was passed in violation of principles of natural justice as the members have not been heard. No notice were issued to the members who were inducted as life member of the Association. It also appears that the authority who has passed the order was not authorised by the Registrar as required u/s 32 (3) of the Act of 1973 and Rule 55 of the Bye-laws of the Association.

In the bye-laws there is no provision of deemed refusal of the application nor there is any provision that if the application is not decided in the preceding year/relevant year then the same shall be deemed to have been refused. It is not in dispute that all the applications were not filed in one relevant year and the members who were inducted in different preceding years nor quota of five has been exceeded in the relevant year.

On due consideration of the arguments of the learned counsel for the parties, we are of the considered view that if the limited stay is not granted in favour of the appellant then they will suffer immensely and they will not be able to cast vote and their valuable rights for the election 2011-12 would be affected. Therefore, operation of the impugned order dated 27.07.2012 passed by the respondent No. 1 Assistant Registrar, Firms and Societies, Indore Division Vide Order No. 150/2012 shall remain stayed and all the members who''s membership have been terminated shall have limited right to cast their votes and if there is difference of more than 20 votes in the contesting parties of each post then the result of the election shall be declared subject to decision of the writ appeal and the result of the posts where the difference is less than 20 votes then the result of such post/posts shall not be declared.

List this writ appeal for hearing after a week. Cc today.