# Ahmad Rasheed and others v. State of U.P. Thru Secy. and others

- **Citation:** (2012) 2 ILRA 630
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-05-29
- **Case number:** Civil Misc. writ Petition No. 27344 of 2012
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ahmad-rasheed-and-others-v-state-of-u-p-thru-secy-and-others-42238
- **Pages:** 4

## Headnote

Constitution of India, Article 226-power
to hold election-limited only to hold
election-by person/authority nominated
by court-where only one member by
Court-where only one member survivingauthorize controller or such nominated
person not competent to induct new
member-only Court to frame scheme
permissible under law-petition disposed
of accordingly.

Held: Para 19

However, in the opinion of the Court the
only remedy for the petitioners to file a
civil suit for intervention in the matter so
as to come over the peculiar situation,
which has arising in the institution for
want of valid members of the General
Body and it is for the competent Civil
2 All] Ahmad Rasheed and others V. State of U.P. and others
631
Court to frame a scheme as may be
permissible under the law.
Case law discussed:
1991 (1) U.P.L.B.E.C. 558; 2000 A.L.R. (38)
page 431; AIR 1971 SC 966

## Text

630 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
unless the exercise of discretion was on
wholly untenable grounds or arbitrary or
perverse. But it is a different matter
when the first court refuses to condone
the delay. In such cases, the superior
court would be free to consider the cause
shown for the delay afresh and it is open
to such superior court to come to its own
finding even untrammelled by the
conclusion of the lower court".

8. In view of the decision of the
Apex Court it is abundantly clear that
while considering the delay condonation
application the court has to see the merit
of the case also as the law of limitation is
not meant to take away the right of
Appeal. The courts are meant for
imparting justice and not to scuttle the
justice on technicalities. The length of
delay is also not very much material if
there is a substance on merit. Further once
the discretion has been exercised in
positive manner then it should not be
interfered with unless it is perverse and
based on no material.

9. Here in this case, the delay has
been condoned by the court below i.e.
Sub-Divisional Officer Faridpur and the
revision filed by the petitioner has been
dismissed, now those orders are impugned
in the writ petition. Sitting under Article
226 of the Constitution of India, I am not
inclined to interfere in such a matter
where the delay has been condoned.

10. However, considering the facts
and circumstances of this case, I find that
the cost imposed by the courts below of
Rs. 300/- is very less and the same is
being enhanced by Rs.1,000/- which is
directed to be paid to the petitioners
before
the
court
of
Sub-Divisional
Officer, where the case is pending. In case
the respondents, herein, deposit of Rs.
1,000/- along with certified copy of the
order of this Court before the SubDivisional Officer, the Sub-Divisional
Officer
shall
proceed
thereafter
in
accordance with law.

11. The writ petition is disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.05.2012

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. writ Petition No. 27344 of 2012

Ahmad Rasheed and others ...Petitioners
Versus
State of U.P. Thru Secy. and others

 ...Respondents

Counsel for the Petitioner:
Sri Ramesh Kumar Shukla
Sri Anil Sharma

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-power
to hold election-limited only to hold
election-by person/authority nominated
by court-where only one member by
Court-where only one member survivingauthorize controller or such nominated
person not competent to induct new
member-only Court to frame scheme
permissible under law-petition disposed
of accordingly.

Held: Para 19

However, in the opinion of the Court the
only remedy for the petitioners to file a
civil suit for intervention in the matter so
as to come over the peculiar situation,
which has arising in the institution for
want of valid members of the General
Body and it is for the competent Civil
2 All] Ahmad Rasheed and others V. State of U.P. and others
631
Court to frame a scheme as may be
permissible under the law.
Case law discussed:
1991 (1) U.P.L.B.E.C. 558; 2000 A.L.R. (38)
page 431; AIR 1971 SC 966

(Delivered by Hon'ble Arun Tandon, J.)

1. It is not in dispute that the
elections
of
the
Committee
of
Management of Bijnor Inter College,
Bijnor were last held on 16th August,
1998.
The
elections
were
grant
recognition on 9th September, 1998.

2. The dispute pertaining to the
subsequent
elections
pleaded
lastly
travelled up to High Court in Special
Appeal No. 1752 of 2010. The Division
Bench of this Court disposed of the
special appeal by issuing following
directions:

"Accordingly, in view of the above
agreed position between the parties, we
dispose of this appeal by modifying the
order of the learned Single Judge that the
election of the Committee of Management
of the institution shall be held under the
supervision of the District Magistrate,
Bijnor through the valid members of the
Society.

So far as the management of the
affairs of the institution is concerned, the
same will abide by the order dated 1st
September, 2010 passed by the Joint
Director of Education, till the new
Committee is constituted and takes
charge.

The list of valid members, after due
verification, will be prepared within six
weeks, as directed by the learned Single
Judge, and thereafter elections shall be
held within one month from the said date
by the Election Officer.

The appeal stands disposed of."

3. This Court may record that prior
to the order of the Division Bench of this
Court dated 27.10.2010, the Joint Director
of Education had appointed Shri Hakeem
Naseem-Ur-rahman,
the
outgoing
President
of
the
Committee
of
Management, as the nominated person for
getting the fresh elections held, reference
page 123 of the paper-book. According to
the
petitioners,
the
term
of
such
nominated person/Authorized Controller
can be three months only.

4. In the light of the directions
issued by the Division Bench of this
Court as aforesaid, the list of valid
members after due verification was to be
prepared within six weeks. Thereafter, the
elections were to be held within one
month to be notified by the Election
Officer.

5. The petitioners claimed to be
enrolled as life members by the earlier
nominated person Shri Ikbal Ahmad.

6. The issue with regard to the
finalization of the electoral college came
be considered by the District Magistrate
as directed, who in turn authorized the
Sub Divisional Magistrate to oversee the
elections.

7. The Sub Divisional Magistrate
under the order impugned after referring
to the judgment of the High Court in the
case of Rajendra Pal Singh Vs. District
Inspector of Schools, Jalaun reported in
1991 (1) U.P.L.B.E.C. 558 has held that a
nominated person/Authorized Controller
632 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
has no competence to enroll new
members to the General Body.

8. Therefore, such enrollment of the
petitioners as life members has been held
to be illegal. It has been held that there is
only one surviving life member of the
General
Body.
Therefore,
in
such
circumstances a letter may be written to
the Director of Education to appoint a
person for enrolling new members.

9. It is against this order, the present
writ petition has been filed.

Two questions have been raised in
the present petition. (a) If a person has
been appointed to held the fresh elections,
he gets the competence to enroll new
members and (b) in the facts of the case,
there being only one surviving life
member,
the
nominated
person/Authorized
Controller
had
to
induct new members in the General Body
so that valid elections could take place.

10. Heard Shri Anil Sharma,
Advocate assisted by Shri R.K. Shukla,
Advocate on behalf of the petitioners and
learned Standing Counsel on behalf of the
State-respondents.

11. It may be mentioned at the very
outset that a Division Bench of this Court
has held that the Authorized Controller
has no competence to enroll new
members reference Ranbir Singh Vs.
District Inspector of Schools at Orai &
others, 2000 A.L.R. (38) page 431.

12. The Hon'ble Supreme Court of
India in the case of Smt. Damayani
Naranga Vs. Union of India, AIR 1971
SC 966 has held that no member can be
inducted except with the consent of the
members of the voluntary Association as
that of the present one.

13. In view of the legal position so
explained, this Court has no hesitation to
record
that
neither
the
Authorized
Controller nor the nominated person has
any right to enroll new members to the
General Body for the purposes of holding
fresh elections of the Committee of
Management.

14. The right available to an
association of persons belonging to
minority section, which runs minority
institutions is more sacrosanct, wherein
the right to form the association stands
protected not only under Article 19 (1)
(C) but also under Article 30 of the
Constitution of India.

15. This Court may further record
that the powers, which have been
conferred
upon
the
nominated
person/Authorized Controller under the
scheme of administration i.e. Chapter IV
Clause 5, proviso reads as follows:

^^;fn izcU/k lfefr dk ikap o"kZ dk dk;Zdky
lekIr gksus ds i'pkr N% eghus ds vUnj ekStwnk
izcU/k lfefr pquko ugh djkrh rks izcU/k lfefr
Lor% lekIr le>h tk;sxh rFkk lekIr gksus okyh
izcU/k lfefr dk v/;{k izcU/k lfefr dk dk;ZHkkj
laHkky ysxk rFkk og rhu eghus ds vUnj pquko
djkus dk ikcUn gksxk vxj og Hkh pquko ugh
djkrk rks Mh0Mh0vkj Hkax gksus okyh lefr esa ls
fdlh Hkh O;fDr dks pquko djkus ds fy, uketn
djsasxsA tks pquko djk;sxsA^^

16. It is apparently clear that after
the term of five years of the earlier
Committee of Management expires then
the President of the outgoing Committee
of Management gets a limited right to get
fresh elections of the Committee of
Management held and in case he fails to
2 All] Smt. Madhubala V. H.P. Singh and others
633
get fresh elections held then the Deputy
Director of Education can appoint a
person for the purposes of holding fresh
elections. It is, therefore, clear that the
right, which is conferred upon the
nominated person is only to held fresh
elections only. All other rights under the
scheme of administration especially those
pertaining to enrollment of new members
is not conferred or transferred upon such
nominated person/Authorized Controller.

17. Reference may also be had to the
Clause 1 of Chapter II, which confer a
right upon the General Body to accept or
not to accept a person as member with a
further provision that in case of dispute,
the decision of the President shall be final.

18. Admittedly, as on date the
General Body comprises of only one
member and there is no President.
Therefore, the question of enrollment of
new members in accordance with the
scheme of administration does not arise.
As already noticed above, the nominated
person/Authorized Controller has not
been conferred any power under the
scheme of administration to enroll new
members. The Sub Divisional Magistrate
appears to be legally justified in recording
a finding that the enrollment of new
members by earlier nominated person was
apparently illegal. Similarly, there cannot
be any directions by the Joint Director of
Education for authorizing any other
person to induct new members to the
General Body.

19. However, in the opinion of the
Court the only remedy for the petitioners
to file a civil suit for intervention in the
matter so as to come over the peculiar
situation, which has arising in the
institution for want of valid members of
the General Body and it is for the
competent Civil Court to frame a scheme
as may be permissible under the law.

20. Writ petition is disposed of with
a
direction
upon
the
Education
Authorities to not to enroll any new
member to the General Body of the
institution except under orders of a
competent Civil Court.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2012

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 27994 of 2006

Smt. Madhubala

 ...Petitioner
Versus
H.P. Singh and others
 ...Respondents

Counsel for the Petitioner:
Sri Arun Sharma

Counsel for the Respondents:
S.C.
Sri Anupam Shukla

Code of Criminal Procedure-order XXIII,
Rule 3 (A)-compromise not signed by
petitioner-nor authorize the Counsel to
do so-order passed on basis of said
compromise-held illegal-matter remitted
back for decision on merit.

Held: Para 9

In the instant case there is no dispute
that the compromise was not signed by
the petitioner and the records also
indicates the same impugned order,
therefore, incorrectly assumes that the
petitioner had signed the compromise.
The
authorization
through
the
vakalatanama has to be supplemented
by the actual compromise being signed
by the parties themselves.