R.K. Mahajan, J.@mdashThis writ petition is in the nature of certiorari quashing the order dated 25.4.1997, Annexure 7 to the writ petition,
passed by Respondent No. 1. A prayer has also been made in the nature of mandamus commanding the Respondent No. 3 to conclude the inquiry
in compliance of order dated 11.4.1997 within a specific period as fixed by this Court and order dated 11.4.1997 may be restored.
2. This petition has arisen out of power struggle between two groups who want to control over the Managing Committee of the institution named
Shiv Sahai Inter College. It is alleged that Petitioner''s institution is a recognised institution upto Intermediate and aided upto High School. It is
governed by the provisions of Intermediate Education Act and Payment of Salary Act is also applicable. According to the bye-laws of the Society
and the Scheme of Administration, the Management is valid for three years one month. The election of the Management was held on 13.3.1994
and Rajendra Singh was elected as Manager and Shiv Nath Katiyar was elected as President of the Management of the institution.
3. The allegations made in this petition are that Respondent No. 4 had held the election of the Management on 27.1.1997 after passing the Agenda
on 16.1.1997 with forged signatures of the Managing Trustees; that no publication was made in the newspapers and no information was given to
the District Inspector of Schools regarding the alleged election of 27.1.1997, that after the election was held the signatures are forwarded to the
District Inspector of Schools for attestation. It appears that caveat has been filed by Respondent No. 4 in this Court and when the Petitioner came
to know about the election and other things, he immediately approached Respondent No. 3 for holding fresh election according to the procedure
of law. Enquiry was started on the application of the Petitioner and Respondent No. 2 issued notice dated 11.4.1997 to Respondent No. 4
requiring him to appear before him on 29.4.1997 at 2.00 p.m. alongwith record of the alleged election. A direction was also issued by Respondent
No. 3 to the extent to stay the order of the District Inspector of Schools attesting the signature of Respondent No. 4 and a further direction was
given to make the payment of salary through Accounts Officer of District Inspector of Schools. In order to thwart the enquiry and to justify the
election, a civil suit being Civil Suit No. 150 of 1997 Prabandh Samiti v. State of U.P. and Ors. for granting mandatory injunction recognising
Respondent No. 4 as Manager of the Committee of Management was filed by Respondent No. 4. Respondent No. 1, Civil Judge (Senior
Division), Kanpur Dehat, passed an order dated 25.4.1997 allowing the application to the extent to maintain status quo and a direction was given
for not cancelling the election except in due course of law. Aggrieved by the said order dated 25.4.1997 of Respondent No. 1, Petitioner has filed
this writ petition.
4. Learned Counsel for the Petitioner has submitted that the impugned order could not have been passed by Respondent No. 1 as he has no
jurisdiction and he could not stop the enquiry regarding the validity of the constitution of the Managing Committee. He further submitted that only
the Deputy Director of Education u/s 16A of the U.P. Intermediate Education Act, 1921, (hereinafter called as the Act), has power to decide the
dispute of the college management regarding the election. He has further submitted that out of 15 members of the Managing Trustee, only three has
made signatures, remaining signatures of 12 members are forged and they have filed affidavit before the Deputy Director of Education denying their
signatures on the agenda.
5. Learned Counsel for the Respondent submitted that the order of the civil court is justified. The Petitioner has no locus standi to file the instand
writ petition as he is not a member of the Managing Committee. He further submitted that there is a difference between the member of the society
and member of the Managing Committee. He further submitted that even the order passed by the Deputy Director of Education is subject to
challenge in competent court of law and the civil court has jurisdiction to adjudicate the matter. He has further submitted that under the scheme of
administration, the elections have been held to be valid.
6. I am of the considered view, after hearing the counsel for the parties, that the order of the learned civil Judge is without jurisdiction and cannot
be sustained on the following reasons:
Firstly, I would like to quote Section 16A (7) of the U.P. Intermediate Education Act, 1921:
Whenever there is dispute with respect to the Management of an institution, persons found by the Regional Deputy Director of Education upon
such enquiry as is deemed fit to be in actual control of its affair may, for purposes of this Act, be recognised to constitute the Committee of
Management of such institution until a Court of Competent jurisdiction direct otherwise:
Provided that the Regional Deputy Director of Education shall, before making an order under this sub-section, afford reasonable opportunity to the
rival claimants to make representations in writing.
7. It is a very serious matter as the determination involves control of the affairs of institution, control over the funds of the institution and over the
administration. The enquiry has been started by the Regional Deputy Director of Education on the complaint of the member of the society and that
enquiry was challenged by filing a civil suit and stay order was obtained. The said stay order has killed the enquiry process which is not permissible
under the law. The order of the Regional Deputy Director of Education could have been challenged under competent court of jurisdiction after the
enquiry was over and not before that.
8. Learned Counsel for the Petitioner has relied upon a decision in the case of Sanad K. Niranjan v. Collector, District Jalaun and Ors. 1997 AIM
620, wherein it was observed that ""there is no other remedy provided except u/s 3 of the Act of 1972. Special Law will override general law. Civil
suit is impliedly barred except as discussed. In our view since the bank has resorted to this procedure it is open for the Petitioner to make
objection regarding maintainability of the suit in the appeal, if Petitioners like.
9. Section 9 of CPC also bars the remedy for time being, i.e., till the enquiry by Regional Deputy Director of Education is over.
10. Learned Counsel for the Petitioner also relied upon a decision in the case of Committee of Management of Subhash Uchchtar Madhyamik
Vidyalaya, Rajapura (Mowana), Meerut and Anr. v. Deputy Director of Education, Meerut and Ors. 1985 UPLBEC 241. The emphasis in this
rule is statutory because of the Legislature on Deputy Director of Education and Deputy Director of Education may require to form the statutory
duty in accordance with law. In other words, the Deputy Director of Education cannot go into the disputed question except with a. view to decide
the question of effective control of the management of the institution by regular process of procedure, i.e., bye-laws, scheme of administration.
Finally the question has to be decided by the civil court.
11. 1 would like to touch ipso facts of Article 226 of the Constitution of India. The High Court can interfere under Article 226 when the power has
been used arbitrarily by a statutory authority and against the provisions of the statute and against the provisions of the statute and where it lacks
jurisdiction to determine the fact as postulated u/s 16A (7) of the Act. Since the impugned order is without jurisdiction and the power has been
exercised arbitrarily, the same cannot be sustained and it is hereby quashed. The proceedings before civil court are quashed by using suo motu
power under Article 227 of the Constitution of India.
12. In the result, the petition is allowed. Impugned order dated 25.4.1997 (Annexure 7 to the writ petition) passed by Respondent No. 1 is hereby
quashed. The Deputy Director of Education shall proceed with the enquiry in accordance with law and it is hoped that the enquiry shall be
concluded within two months from the date a certified copy of this order is produced before him by either of parties after giving them opportunity
of hearing.