Arun Tandon, J.
These four writ petitions pertain to the constitution of the Committee of Management of Shri Girija Shankak Tiwari Inter College, Neebhapur, Jaunpur and its elections held from time to time. All these writ petitions have, therefore, been clubbed together and are being decided by means of this common judgment and order.
I have heard Shri G.K.Singh, Advocate on behalf of faction lead by Shri Prakash Tiwari, Shri P.N.Saxena, Senior Advocate assisted by Shri Amit Saxena, Advocate on behalf of the faction lead by Shri Hari Shankar Tewari and Shri R.P.Shukla, Advocate on behalf of faction lead by Shri Santosh Kumar Tewari and the Standing Counsel for the State respondents.
The facts as are borne out from the records of these petitions are as follows :
Shri Girja Shankar Tiwari Inter College, Neebhapur, Jaunpur is a recognized Intermediate College. It has its own approved scheme of administration. Elections for the Committee of Management of the institution took place on 23.01.2000. These elections were approved and are undisputed. In the said elections, Sheetla Prasad Dubey was elected as the President and Gauri Shankar Tiwari was elected as the Manager. Gauri Shankar Tiwari expired on 25.07.2002. One Hari Shankar Tiwari s/o. Jhagdu (herein after referred to as Hari Shankar Tiwari (I) claimed that he was the elected Deputy Manager, therefore, he became entitled to function as the Manager for the remaining term. Shri Prakash Tiwari claimed that he has been enrolled as a valid member of the general body on 21.08.2001 and after the death of Gauri Shankar Tiwari in 2002, he has been elected as the Manager for remaining term of the Committee of Management.
It may be recorded that there is nothing on record to establish as to which of the two rival claims set by Shri Prakash Tiwari and Hari Shankar Tiwari (I) were accepted. What is on record is that the elected President Sheetla Prasad Dubey made an application before the District Inspector of Schools on 16.12.2002 seeking permission to hold fresh elections. The District Inspector of Schools, Jaunpur is stated to have granted the permission asked on 30.12.2002. Two sets of elections were set up, first dated 22.01.2003 wherein Sheetla Prasad Dubey is claimed to have been elected as the President with Shri Prakash Tiwari as the Manager. The other set of elections are stated to have been held on 05.01.2003 in which Kapil Deo Pandey is stated to have been elected as the President with Hari Shankar Tiwari (I) as the Manager. Both the rival elections were placed for consideration before the Joint Director of Education. He vide order dated 31.12.2003 disapproved both the elections and further directed that fresh elections shall be held by Hari Shankar Tiwari (I).
Three fresh elections are stated to have been held thereafter, first dated 10.07.2005 wherein Shri Prakash Tiwari claimed to have been elected as Manager, second dated 17.07.2005 wherein Hari Shankar Tiwari (I) claimed to have been elected as Manager and the third dated 17.07.2005 in which Dilraji Devi claimed to have been elected as Manager. All these elections were considered by the Regional Joint Director of Education who vide his order dated 29.12.2005 recognized the elections set up by Shri Prakash Tiwari dated 10.07.2005. Writ Petition No. 3411 of 2006 was filed by Dilraji Devi and Writ Petition No. 3608 of 2006 was filed by Hari Shankar Tiwari (I), challenging the order of the Regional Joint Director of Education dated 29.12.2005.
The High Court vide order dated 24.01.2006 allowed both the writ petitions. The order of the Regional Joint Director of Education dated 29.12.2005 was set aside and a direction was issued for appointment of Prabandh Sanchalak for holding fresh elections with a further direction that he shall decide the membership before holding the elections. Against the order of the writ Court dated 26.01.2006, Special Appeal No. 172 of 2006 was filed which was dismissed under order dated 20.03.2006.
In compliance to the order of the High Court dated 24.01.2006, the Joint Director of Education issued an order dated 02.09.2006 providing that only those persons would be entitled to participate in the elections whose name was included in the electoral college qua the elections held in the year 2000 which were undisputed. Against the said order Shri Prakash Tiwari filed Civil Misc. Writ Petition No. 51561 of 2006 (herein after referred to as the First Petition). An interim order was granted by the High Court on 18.09.2006 providing that the Prabandh Sanchalak may hold elections after finalizing the electoral college and the order of the Joint Director of Education dated 02.09.2006 was stayed. The Prabandh Sanchalak is stated to have published a tentative list in Hindi newspaper Dainik Jagran after calling for the same from the office of the Assistant Registrar on 20.03.2008. He invited objections thereto. Only one set of elections were filed by one Manoj kumar Pandey. The Prabandh Sanchalak finalized the list vide order dated 27.05.2008 and thereafter proceeded to hold elections on 0708.06.2008 in which Shri Prakash Tiwari is stated to have been elected as the Manager and Chandra Shekhar Dubey is stated to have elected as the President. A parallel set of elections were set up by Hari Shankar Tiwari (I) as the President and Hari Shankar Tiwari s/o. Kedar Nath (herein after to as Hari Shankar Tiwari (II) as the Manager. Papers pertaining to both the said elections were considered by the Regional Level Committee.
The Regional Level Committee under order dated 18.09.2009 upheld the elections dated 0708.06.2008 with Shri Prakash Tiwari as the Manager. This order has been challenged by means of Civil Misc. Writ Petition No. 25189 of 2009 (herein after referred to as the Second Petition) before this Court by Hari Shankar Tiwari (I) and Hari Shankar Tiwari (II).
According to Shri Prakash Tiwari the Assistant Registrar on 09.07.2009 has directed renewal of registration of the Society on the papers transmitted by him. Civil Misc. Writ Petition No. 60406 of 2009 (herein after referred to as the Third Petition) has been filed by Manoj Kumar Pandey against the said order.
Since the term of the Committee was to expire, two sets of fresh elections have been set up, one by Hari Shankar Tiwari (II) dated 05.06.2011 and the other dated 07.06.2011 by Santosh Kumar Tiwari as the Manager.
Both these set of elections were again placed before the Regional Level Committee. The Regional Level Committee under the order dated 05.02.2013 has held that none of the elections are valid and has directed holding of fresh elections by the Prabandh Sanchalak strictly in accordance with the order of the High Court dated 24.01.2006. This order has been challenged by Shri Prakash Tiwari by means of Civil Misc. Writ Petition No. 11368 of 2013 (herein after referred to as the Fourth Writ Petition).
Shri G.K.Singh, counsel for the petitioner submits that the finding recorded by the Regional Level Committee insofar as it holds that the direction issued by the High Court under order dated 24.01.2006 have not been complied with and the electoral college has not been determined in accordance with law is bad inasmuch as the Prabandh Sanchalak had published a tentative list on 20.03.2008 and had invited objection by publication in newspaper. Only one set of elections were filed by Manoj Kumar Pandey, he did not lead any evidence to support his objections. The electoral college was finalized the list vide order dated 27.05.2008 which order has become final. In the said list name of the Shri Prakash Tiwari is included as one of the members. He further submits that the Assistant Registrar under the order dated 09.07.2009 has upheld the elections of the year 2008 with Shri Prakash Tiwari as Manager. It is his case that once the elections of 2008 have been approved by the Regional Level Committee with Shri Prakash Tiwari as Manager, it is not open to the same Regional Level Committee to revisit that matter and to hold that the elections of 2008 had not been held in compliance with directions as per the order dated 24.01.2006. He further points out that Shri Prakash Tiwari was enrolled as a member on 21.01.2001. Papers pertaining to the period prior to 25.07.2002 are not available in original as they were in the custody of Gauri Shankar Tiwari who expired without handing over the documents. If any person wants to question the membership of Shri Prakash Tiwari, he may file a civil suit. It is further submitted that although objections were filed by Manoj Kumar Tripathi to the tentative list dated 20.03.2008, he did not challenge the elections which were held on the basis of the list so finalized in the year 2008 by filing writ petition against the order of the Regional Level Committee recognizing the elections. That the respondents Hari Shankar Tiwari (I) and Hari Shankar Tiwari (II) as well as Dilraji Devi did not file any objections to the tentative list, therefore, it is not open to them to question the electoral college so finalized.
Shri P.N.Saxena, Senior Advocate on behalf of Hari Shankar Tiwari II in reply submits that in the order of the Joint Director of Education dated 31.12.2003, it has specifically recorded that Shri Prakash Tiwari has not been able to establish his membership. The said order is enclosed at page 58 of the Fourth Petition. He points out that this order of the Joint Director of Education dated 31.12.2003 has not been subjected to any further challenge by Shri Prakash Tiwari. The High Court while passing the order dated 24.01.2006 not only set aside the order of the Joint Director of Education dated 29.12.2005 whereby the elections with Shri Prakash Tiwari as Manager were approved, it further went on to direct that fresh elections shall be held by the Prabandh Sanchalak after finalizing the issue of membership. Therefore, the Prabandh Sanchalak was duty bound to examine the issue of membership on merits and to have decided as to which of the members were entitled to participate in the future elections. He submits that the elections held by Prabandh Sanchalak dated 0708.06.2008 wherein Shri Prakash Tiwari is stated to have been elected as the Manager is under challenge in the Second Writ Petition, on the ground that the electoral college has not been determined in accordance with the order of the High Court dated 24.01.2006.
So far as the order of the Assistant Registrar dated 09.07.2009 is concerned, he points out that the order is under challenge in Civil Misc. Writ Petition No. 60406 of 2009 (Third Petition) and even otherwise it relies upon the orders passed by the Joint Director of Education dated 31.12.2003 as well as on the interim order which was passed in Civil Misc. Writ Petition No. 51561 of 2006 (First Petition). It is his case that at no point of time the issue pertaining to the membership of Shri Prakash Tiwari has been examined. Absolutely no finding has been recorded by any authority as to when Shri Prakash Tiwari was enrolled as a member and after following what procedure. The order of the Joint Director of Education dated 31.12.2003 which has gone unchallenged and has become final, amongst other specifically records that Shri Prakash Tiwari has failed to establish his membership. He explains that in the objections filed by Manoj Kumar Pandey before the Prabandh Sanchalak in response to the notice dated 20.03.2008, it was specifically stated that the earlier list of members who had participated in the elections is very much available on the records of the Joint Director of Education. He may finalize the electoral college after considering the same. This objection has been brush aside only on the ground that Manoj Kumar Pandey has not lead evidence in support of his case which according to Shri Saxena is wholly perverse inasmuch as what was expected from the Prabandh Sanchalak was to have examined his own records pertaining to the elections of 2000 as well as the impact of the order dated 31.12.2003. He contends that the order of the Joint Director of Education dated 05.02.2013 may not be interfered with.
I have heard learned counsel for the parties and have gone through the records of the present writ petition.
Following facts are undisputed :
Last undisputed elections of the Committee of Management were held in the year 2000. In the said elections Shri Prakash Tiwari did not participate as he claims to have been enrolled as a member only on 21.01.2001. Subsequent to the said date, Shri Prakash Tiwari pleaded that in the meeting held on 21.08.2001 he was elected as Manager for the remaining term after death of Gauri Shankar Tiwari. This claim of Shri Prakash Tiwari has not been has been accepted by any authority at least, there is no order on record to that effect.
So far as the elections of the year 2003 are concerned, suffice is to record that the elections had been disapproved under the order of the Joint Director of Education dated 31.12.2003 which order has gone unchallenged. In the said order it has specifically been recorded that Shri Prakash Tiwari who claimed election as Manager on dated 22.01.2003 had not been able to establish his membership. Shri Prakash Tiwari accepted the order without challenge. The legality of the elections held in the year 2005 with Shri Prakash Tiwari as Manager culminated in an order of approval of the Joint Director of Education dated 29.12.2005. This order was specifically set aside by the High Court vide judgment and order dated 24.01.2006, as detailed above. Meaning thereby that the elections of 2005 are also of no legal consequence in view of the order of the Writ Court dated 24.01.2006. The order dated 24.01.2006 has been upheld with the dismissal of Special Appeal No. 172 of 2006. The directions issued vide order dated 24.01.2006 by the High Court amongst other was that fresh elections shall be held by the Prabandh Sanchalak after finalizing the membership. Meaning thereby that the issue of membership was left to be examined on merits by Prabandh Sanchalak and the minimum expected in the facts of the case from the Prabandh Sanchalak was to have examined as to whether Shri Prakash Tiwari had led any evidence for establishing his membership or not and as to whether the records support the case of Shri Prakash Tiwari. This exercise has not been undertaken apparently because the Joint Director of Education passed an order dated 02.09.2006 directing that the elections shall be held from persons who participated in the elections of 2000 only, which order has been stayed in First Writ Petition and a direction was issued to the Prabandh Sanchalak to hold fresh elections after finalizing the electoral college.
So far as the publication of the tentative list by the Prabandh Sanchalak dated 20.03.2008 is concerned, this Court may record that a specific objection was raised in writing by Manoj Kumar Pandey that the list of persons who had participated in the earlier elections is very much available in the records of the Joint Director of Education. He may examine the matter in pursuance thereto.
Even assuming for sake of arguments as advanced by Shri G.K.Singh material was produced to object to the tentative list, there was an order on record before of the Joint Director of Education dated 31.12.2003 which did record that Shri Prakash Tiwari has not been able to establish his membership. The Prabandh Sanchalak could have not brushed aside the objection merely by recording that Manoj Kumar Pandey has not lead any evidence in support of his case. The impact of the order dated 31.12.2003 on the issue of membership of Shri Prakash Tiwari have completely been ignored and merely because the Prabandh Sanchalak had published a tentative list, it will not mean that the order dated 31.12.2003 will become non est or of no consequence.
In my opinion having regard to the order of the Joint Director of Education dated 31.12.2003 and the order of the High Court dated 24.01.2006, the Joint Director of Education was under legal obligation to decide as to whether Shri Prakash Tiwari was ever enrolled as a member of the general body, if so, on which date and by following what procedure. This Court has no hesitation to record that in none of the orders passed by the Prabandh Sanchalak, Joint Director of Education or by the Assistant Registrar, any finding has been recorded qua the date and the mode and manner of enrollment of Shri Prakash Tiwari. Since the basic issue with regard to the finalization of the electoral college itself has gone wrong at the hands of the Prabandh Sanchalak by not considering the impact of the order dated 31.12.2003 and the directions issued by this Court dated 24.01.2006 and merely referring to the list forwarded to the Assistant Registrar said to have been signed by the President, will not justify the determination of the electoral college for the elections held.
In the facts and circumstances of the case, I am of the considered opinion that the order passed by the Regional Level Committee dated 05.02.2013 to the effect that the elections earlier held as well as those held on 07.06.2011 and 05.06.2011 are bad for non finalization of the electoral college in terms of the order of the High Court dated 24.01.2006 is legally justified. Therefore, the order does not warrant any interference at the behest of Shri Prakash Tiwari.
So far as the elections set up by Hari Shankar Tiwari (II) are concerned, suffice is to record that under the order of the High Court dated 24.01.2006, fresh elections could have been held by the Prabandh Sanchalak only. Once the Prabandh Sanchalak has held that the elections on 0708.06.2008 in which Shri Prakash Tiwari is alleged to have been elected as the Manager, it is Shri Prakash Tiwari who could have held subsequent elections in 2011 and nobody else. For these reasons the elections set up by Hari Shankar Tiwari (II) have rightly not been accepted.
So far as the order of the Assistant Registrar dated 09.07.2009 is concerned, suffice is to record that renewal of the Society is always provided in favour of the Society and no in favour of any particular office bearer. The legality of the elections and the right of the alleged office bearers to continue in office is dependent upon an order to be passed under Section 4 of the Societies Registration Act directing registration of the list of office bearers either by the Assistant Registrar himself after following the procedure prescribed under the said Section or in pursuance to an order to be passed by the Prescribed Authority under Section 25(1) of the Societies Registration Act or by any competent Court of law.
In the totality of the circumstances as noticed herein above, Civil Misc. Writ Petition No. 51516 of 2006, No. 25189 of 2009, No. 60406 of 2009 and No. 11368 of 2013 are disposed of by providing that fresh elections shall be held by the Authorized Controller strictly in accordance with the directions issued by this Court under order dated 24.01.2006. Tentative list of members shall be published. Objections shall be invited and considered, by means of a reasoned speaking order, keeping in mind the order passed by the Prabandh Sanchalak dated 31.12.2009 as well as all such document as may be relevant for deciding as to who had participated in the elections of the year 2000 and who had been enrolled as member of the general body till the date of death of Gauri Shankar Tiwari i.e. up to 25.07.2002, inasmuch as all subsequent elections have been disapproved either by the High Court or by the Regional Level Committee. Therefore, nobody had the competence to enroll new members after 25.07.2002. Such exercise shall be completed by the Prabandh Sanchalak within six weeks from the date a certified copy of this order is filed before him.
The legality of the elections and continuance of the office bearers are, therefore, left open to be agitated before the appropriate forum by the person aggrieved.
