# C/M Thakur Biri Singh Inter College Tundla, Firozabad & Anr v. State of U.P. & Ors

- **Citation:** (2020) 9 ILRA 590
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-05-19
- **Case number:** WRIT - C No. 28560 of 2019
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-thakur-biri-singh-inter-college-tundla-firozabad-anr-v-state-of-u-p-ors-46015
- **Pages:** 18

## Headnote

(A) Civil Law-U.P. High Schools And
Intermediate
Colleges
(Payment
Of
Salaries
Of
Teachers
And
Other
Employees)
Act-1971-Section
5(1)
-
Procedure for payment of salary in the case of
certain institutions - Societies Registration Act,
1860 U.P. - Section 25(2) - Intermediate
Education Act, 1921 - Even in the absence of
any
challenge
the
Inspector
retains
the
jurisdiction to exercise her authority under
Section 5(1) of the Act of 1971 if a difficulty in
law arises in payment of salary - Inspector can
exercise power under Section 5(1) of the Act of
1971 if a serious dispute has arisen regarding
constitution
of
the
committee
of
management.(Para -34,35)

District Inspector of Schools - invoked authority
under Section 5(1) of the U.P. High Schools And
Intermediate Colleges (Payment Of Salaries Of
Teachers And Other Employees) Act, 1971 -
pass an order of single operation - ground -
petitioner management stood recognized by the
Inspector on 17.10.2018 - which is not
challenged by anyone, and as there is no
difficulty in payment of salary to the teachers
and employees of the institution - invocation of
authority under Section 5(1) of the Act of 1971
to pass an order of single operation is wholly
arbitrary and unsustainable in law.(Para-1)
9 All. C/M Thakur Biri Singh Inter College Tundla, Firozabad & Anr. Vs. State of U.P. & Ors. 591
HELD:- The exercise of power by the Inspector,
in the facts of the present case to pass an order
of single operation of accounts is clearly justified
and is in consonance with the law laid down by
this Court. (Para-36)

Petition dismissed. (E-7)

List of cases cited: -

## Text

_Characters 0–39,981 of 61,877. This is a partial read: ask again with offset=39981 for what follows._

590 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded tenure holder of Plot No. 180 Ka
area 1-9-0 situated in the same village
being
affected
by
the
award
dated
28.11.1984, preferred a reference under
section 18 of the Act, 1894 before the
Collector/Special Land Acquisition Officer
being LAR No. 6 of 2002. Subsequently,
the said LAR was produced before the Lok
Adalat i.e. Addl. District and Sessions
Judge/F.T.C. No. 2 Gautam Budh Nagar
and the same was allowed on 12.3.2016 on
the basis of a compromise between the
parties
alongwith
other
references
enhancing the compensation to Rs.297.50/-
per sq. yard. Though the petitioners have
not preferred any reference but on coming
to know about the said award, they have
moved an application on 12.5.2016 under
section 28-A of the Act, 1894 before the
respondent no. 4 within time. The said
application of the petitioners has been
rejected by the respondent no. 4 by the
impugned order dated 19.5.2018. In view
of the fact that identical questions of fact
and law are involved in this writ petition
also, the impugned order dated 19.5.2018 is
set aside and the writ petition is allowed in
the light of the discussion and direction
given in the leading writ petition no. 27848
of 2018. The respondent no. 4-Addl.
District
Magistrate
(Land
Acquisition)/Special
Land
Acquisition
Officer, District Gautam Budh Nagar is
directed to pass fresh order on the
application
of
the
petitioners
dated
12.5.2016 in the light of our observations
made herein above within a period of three
months from the date of receipt of the
certified copy of this order.

54. There shall be no order as to costs.
----------
(2020)09ILR A590
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.02.2020

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

WRIT - C No. 28560 of 2019

C/M Thakur Biri Singh Inter College
Tundla, Firozabad & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Nitinjay Pandey, Sri Gajendra Pratap

Counsel for the Respondents:
C.S.C., Sri Hemendra Kumar, Sri Naresh
Chandra Tripathi

(A) Civil Law-U.P. High Schools And
Intermediate
Colleges
(Payment
Of
Salaries
Of
Teachers
And
Other
Employees)
Act-1971-Section
5(1)
-
Procedure for payment of salary in the case of
certain institutions - Societies Registration Act,
1860 U.P. - Section 25(2) - Intermediate
Education Act, 1921 - Even in the absence of
any
challenge
the
Inspector
retains
the
jurisdiction to exercise her authority under
Section 5(1) of the Act of 1971 if a difficulty in
law arises in payment of salary - Inspector can
exercise power under Section 5(1) of the Act of
1971 if a serious dispute has arisen regarding
constitution
of
the
committee
of
management.(Para -34,35)

District Inspector of Schools - invoked authority
under Section 5(1) of the U.P. High Schools And
Intermediate Colleges (Payment Of Salaries Of
Teachers And Other Employees) Act, 1971 -
pass an order of single operation - ground -
petitioner management stood recognized by the
Inspector on 17.10.2018 - which is not
challenged by anyone, and as there is no
difficulty in payment of salary to the teachers
and employees of the institution - invocation of
authority under Section 5(1) of the Act of 1971
to pass an order of single operation is wholly
arbitrary and unsustainable in law.(Para-1)
9 All. C/M Thakur Biri Singh Inter College Tundla, Firozabad & Anr. Vs. State of U.P. & Ors. 591
HELD:- The exercise of power by the Inspector,
in the facts of the present case to pass an order
of single operation of accounts is clearly justified
and is in consonance with the law laid down by
this Court. (Para-36)

Petition dismissed. (E-7)

List of cases cited: -

1.
Dharampal
Satyapal
Ltd.
Vs
Deputy
Commissioner of Central Excise, Gauhati & ors.,
(2015) 8 SCC 519

2. Committee of Management, Gandhi Smarak
Inter College, Agra Vs District Inspector of
Schools, Agra, 2001 (2) UPLBEC 1347

3. Committee of Management, Pt. Jawahar Lal
Nehru Inter College, Bansgaon Vs Deputy
Director
of
Education,
Gorakhpur
Region,
Gorakhpur & ors., (2005) 1 UPLBEC 85

4. Committee of Management Vs District
Inspector of Schools & ors., 1978 AWC 124

5. Jaswant Singh Vs District Inspector of Schools
& ors., 1980 ALJ 124 : 1980 UPLBEC 43 (DB)

6. Committee of Management, Sri Gandhi
Mahavidyalaya Vs District Inspector of Schools,
Ballia & ors., 1981 Education Cases 100 : 1981
UPLBEC 328

7. Committee of Management of Sarvodaya
Inter College Vs Deputy Director of Education,
Vth Region, Varanasi & ors., 1982 UPLBEC 31

8. Committee of Management of Shri Nehru
Intermediate College, Rohi, Varanasi & anr. Vs
District Inspector of Schools, Varanasi & anr. ,
(1990) 1 UPLBEC 339

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. This writ petition is directed
against an order passed by the District
Inspector of Schools, Firozabad, dated 26th
June,
2019,
whereby
petitioner's
application, filed pursuant to orders passed
by this Court in Writ Petition No. 16904 of
2019, has been rejected and the previous
order passed by the Inspector on 29th
March, 2019 is maintained. The previous
order of Inspector, dated 29th March, 2019,
holds that in view of the order passed by
this Court on 23rd January, 2019, in
Special Appeal No. 215 of 2018, the
continuance
of
petitioner
committee
pursuant
to
elections
held
on
30th
September,
2018
has
become
impermissible in law and, consequently the
Inspector has invoked her authority under
Section 5(1) of the U.P. High Schools And
Intermediate
Colleges
(Payment
Of
Salaries
Of
Teachers
And
Other
Employees) Act, 1971 to pass an order of
single operation. This order is assailed
primarily on the ground that the petitioner
management stood recognized by the
Inspector on 17.10.2018, which is not
challenged by anyone, and as there is no
difficulty in payment of salary to the
teachers and employees of the institution,
as such, the invocation of authority under
Section 5(1) of the Act of 1971 to pass an
order of single operation is wholly arbitrary
and unsustainable in law.

2. Before adverting to the legal
proposition urged on behalf
of
the
petitioner, it would be necessary to refer to
the basic facts of the present case in the
context of which the aforesaid dispute has
arisen. There exists a society known as
'Thakur Biri Singh Educational Society,
Tundla Firozabad, registered under the
provisions of the Societies Registration
Act, 1860 (hereinafter referred to as the
'society'). The society is running an
Intermediate College namely 'Thakur Biri
Singh Inter College' at Firozabad which is
recognized under the provisions of the U.P.
Intermediate
Education
Act,
1921
(hereinafter referred to as the 'institution').
592 INDIAN LAW REPORTS ALLAHABAD SERIES
The teaching and non-teaching staff of this
institution is receiving salary from the State
funds by virtue of the provisions contained
in the U.P. High Schools And Intermediate
Colleges (Payment Of Salaries Of Teachers
And
Other
Employees)
Act,
1971
(hereinafter referred to as the Act of 1971).
The
educational
institution
is
being
managed in accordance with its recognized
scheme of administration. The bye-laws of
the society, as also the scheme of
administration
of
the
institution
are
contained in Annexures 1 & 2 to the writ
petition in respect of which no dispute
exists. The scheme of administration
contains a definition clause wherein the
society is defined in clause 2(8), as under:-

^^¿8À lkslkbVh dk rkRi;Z Bk0 chMh
flag f'k{kk lfefr Vw.Myk vkxjk uke jftLVMZ
lkslk;Vh ls gSA^^

3. Clause 5 of the scheme of
administration provides for constitution of
a managing committee. Sub-clause (2) of
Clause 5 clearly provides that election of
office-bearer will be made from the
members of the society. Clause 5 (2) of the
scheme of administration is reproduced
hereinafter:-

''5-सबमबत का सींगठन-

(2) सबमबत के सभ सदस्य पदेन
सदस्योीं को छोड़कर अवैतबनक होींगे। इनका
चुनाव सोसायि के सदस्योीं मे से होगा।''

4. It appears that dispute arose in the
past, from time to time, regarding valid
election of the office-bearers of society and
a bunch of writ petitions, in that regard,
came to be disposed of by this Court on
2.2.2018.
Claim
of
membership
of
petitioner no. 2 also fell for consideration
before this Court. Following observations
of this Court, made in that regard are
relevant and are accordingly reproduced
hereinafter:-

"In this backdrop, the Court has
proceeded to have a glance of order dated
17.05.1990 and 25.07.2002 passed by the
Deputy Registrar as well as order dated
19.05.2012 passed by Prescribed Authority
by which it is clearly reflected that at the
relevant point of time the society in
question was time barred since as per the
bye laws, the election ought to have been
held within three years period as admittedly
the last valid election was held on
18.01.1987 and as such, directives have
been issued to conduct the election in terms
of Section 25(2) of the Act. Perusal of the
order dated 19.05.2012 would also reflect
that a clear cut finding has been recorded
by the Prescribed Authority that the dispute
with regard to the membership was very
much there and the same was required to be
decided by Deputy Registrar before holding
the election of Committee of Management
of Society.

Record
in
question
clearly
reflects that it was the consistent case of
petitioners that at no point of time any such
exercise had been carried out and it appears
that at the relevant point of time, while
passing the order dated 13.05.2016, in
absence of the said exercise, the Deputy
Registrar had erroneously accepted the
claim of Surendra Singh Nauhar and as
such, the same cannot be accepted.

It is a trite law that once the term
of the Society is over, then the Assistant
Registrar has got the power to hold the
election under section 25 (2) of the Act and
in the present case also, vide order dated
17.05.1990 and 25.07.2002 passed by the
Deputy Registrar as well as order dated
19.05.2012 passed by Prescribed Authority,
the election was sought to be conducted in
9 All. C/M Thakur Biri Singh Inter College Tundla, Firozabad & Anr. Vs. State of U.P. & Ors. 593
terms of Section 25(2) of the Act after
finalizing the issue with regard to the
electoral roll. Even it has also been argued
before this Court that the contesting
respondent namely Surendra Singh Nauhar
is ceased to have been member of the
Society since he has been convicted by
Trial Court vide order dated 08.06.2012 in
Case no.787/1997 (State vs. Surendra
Singh and another) under Sections 147,
323, 353, 322 IPC, P.S. Tundla, District
Firozabad and as such, the election set up
by him is unsustainable as per the bye
laws."

5. After referring to various judicial
pronouncements on the subject, this Court
went on to direct as under:-

"In view of the above, once the
Society was time barred and there were
rival claims as well as membership dispute,
then before holding the election, the
membership was required to be decided by
the Deputy Registrar and as such, the said
view of the Deputy Registrar cannot sustain
in the eyes of law in the light of order dated
17.05.1990
as
well
as
order
dated
25.07.2002
and
as
such,
the
order
impugned in the present Writ Petition dated
03.09.2013 as well orders impugned in
connected writ petitions dated 24.06.2015,
13.05.2016 cannot sustain and the same are
set aside.

At this stage, without adverting
such issue of membership as the same
would be dealt with by the competent
authority at the appropriate time and after
careful consideration of the facts and
circumstances of the present Writ Petition
as well as in the connected writ petitions,
this Court is of the considered opinion that
the election may be held as early as
possible and the same are to be ensured as
per the directives issued by this Court vide
order dated 28.01.2014, which provides as
under:-

(a) The Assistant Registrar shall
nominate an Officer as Election Officer to
hold the election;

(b) The Election Officer shall call
list of the members from all the rival
groups within two weeks from the date of
the appointment as Election Officer;

(c) On the basis of the list,
supplied by the rival group, he will publish
the tentative electoral roll and will call the
objection to the tentative electoral roll;

(d) After receiving the objections,
the Election Officer shall decide the
objection by the brief reasons and finalize
the electoral roll within six weeks from the
date of receiving the objections;

(e) On the basis of the electoral
roll the election shall be held within four
weeks;

(f) Any party aggrieved by the
election will be at liberty to adopt the
remedy available under law.

Accordingly, the Writ Petition no.
54882 of 2013, Writ Petition no. 54860 of
2013, Writ Petition no. 41630 of 2015,
Writ Petition no. 55419 of 2015, Writ
Petition no. 25839 of 2016, Writ Petition
no. 32104 of 2016, Writ Petition no. 38093
of 2016, are allowed and Writ Petition no.
38804 of 2016 is dismissed."

6. It is on record that petitioner
committee of management conducted its
election on 30th September, 2018 and the
signatures of petitioner no. 2 (Surendra
Singh Nauhwar) was attested for a term of
four years (term of elected committee, as
per scheme of administration, is four years)
i.e. upto 26.9.2022. The order of Inspector
dated 17.10.2018, recognizing the election
of managing committee dated 30.9.2018 in
which Surendra Singh Nauhwar got elected
as the manager is not challenged.
594 INDIAN LAW REPORTS ALLAHABAD SERIES

7. The judgment of this Court, dated
2.2.2018 came to be challenged before a
division bench of this Court in Special
Appeal No. 215 of 2018 alongwith
connected appeals. The special appeals
have been disposed of vide following
orders passed on 23.1.2019:-

"It is also evident from the record
right from 1992 after the elections of
18.1.1987 more than a dozen of writ
petitions relating to the election disputes of
the Society have been preferred by either of
the parties time and again.

It is settled that the Deputy
Registrar is not empowered to deal with
validity of the elections of the Society and
the same if any, has to be left to be decided
upon by the Prescribed authority in a
summary manner. This is implicit vide
Sub-section 1 of Section 25 of the Act. At
the same time Sub-section 2 provides that
where the office bearers of the Society are
no longer entitled to continue in office or
the elections of the office bearers have not
been held within time specified, the
Registrar may call a meeting of the general
body of the Society for electing the office
bearers.

In view of the above provisions,
learned Single Judge is justified in holding
that the Deputy Registrar by the order dated
3.9.2013 could not have decided about the
dispute of the elections of the office bearers
of the Society and ought to have referred it
to the prescribed authority, if necessary.

There is also no dispute that
previously all elections of the office bearers
of the Society were held at the interval of
five years uptil 2012 even though it is
admitted that the terms of the office bearers
of the Society is three years w.e.f.
21.3.1980. Therefore, all the elections
were apparently held after the expiry of
the term of the office bearers of the
Society in contravention of Section 25 (2)
of
the
Act
which
mandates
the
Registrar/Deputy
Registrar
to
hold
elections if the elections are not held
within time.

In this context, it is relevant to refer
to Sub-section 3 of section 25 of the Act as
well which provides that no other meeting
shall be called for the purposes of election by
any authority or person claiming to be office
bearers of the Society where a meeting is
called by the Registrar in exercise of powers
under Sub-section 2 of Section 25 of the Act.
Thus, as in the present case there is
already an order of the Deputy Registrar
dated 17.5.1990 passed under Section 25
(2) of the Act for the purposes of holding
the elections of the office bearers of the
Society, no other person or authority could
have held any other meeting for the
purposes of election. Therefore, the said
order not having been set aside, the
Deputy Registrar is well within its power
to hold the meeting of the Society for
electing its office bearers.

In view of the aforesaid facts and
circumstances, specially looking to the long
drawn litigation so as to bring the Society
on rails, we are of the opinion that to cut
short all controversies, the directions given
by the writ Court by the impugned order
dated 2.2.2018 ought to be upheld and the
Registrar/Assistant Registrar be permitted
to proceed with-holding the elections of the
office bearers of the Society in accordance
with law keeping in view the directives of
the Court. It goes without saying that if he
is unable to finalize the list of members or
the electoral roll in a summary manner or if
his decision is not acceptable, the dispute
of membership can be got resolved by
taking recourse to the proceedings before
the civil court.

All the appeals stand disposed of
accordingly."
9 All. C/M Thakur Biri Singh Inter College Tundla, Firozabad & Anr. Vs. State of U.P. & Ors. 595

8. The division bench judgment was
challenged before the Apex Court also in
Special Leave to Appeal No. 7511 of 2019
but it was got dismissed as withdrawn on
5.4.2019, vide following orders:-

"Learned
Senior
Counsel
appearing
for
the
petitioners
seeks
permission to withdraw this petition with
liberty to file review petition before the
High Court.

Permission, as sought for, is
granted.

Accordingly, the special leave
petition is dismissed as withdrawn with the
aforesaid liberty.

Needless to state that in case the
petitioners fail before the High Court, they
are permitted to approach this Court once
over again challenging the main order as
well as the order passed in the review
petition."

9. The Deputy Registrar, Firms,
Societies & Chits accordingly finalized the
electoral college in order to hold elections
under Section 25(2) of the Societies
Registration Act, 1860. List of twelve
members, who had participated in the last
undisputed elections, dated 17.1.1987 came
to be finalized on 7.3.2019. This order dated
7.3.2019 then came to be challenged before
this Court in Writ Petition No. 9813 of 2019
which got disposed of vide following orders
passed on 15th March, 2019:-

"Heard
Sri
Nitinjay
Pandey,
learned counsel for the petitioners, Sri
Narendra Chandra Tripathi and Sri Arun
Kumar Singh, learned counsel have entered
appearance on behalf of the members who
have been held valid by the order of the
Deputy Registrar dated 07.03.2019 and
learned Standing Counsel for the State
respondents.

The order dated 07.03.2019 has
declared the list of valid members. The
validity of this list of members is not
disputed.

The contention of learned counsel
for the petitioners is that the various other
members
including
11
persons
who
claimed to be the valid members have not
been made part of the list of members. The
order dated 07.03.2019 is bad to that
extent.

After some arguments, learned
counsel for both the parties agree that a
post decisional hearing in the instant case
would subserve the ends of justice.

No useful purpose would be
served by keeping the petition pending.
With consent of the parties, the writ
petition is being finally disposed of.

It
is
well
settled
that
the
principles of natural justice are not cast in
any strait jacket formula. The requirements
of natural justice are adapted to the facts of
the case to subserve the ends of justice. In
the evolution of the law of natural justice,
the Hon'ble Supreme Court has applied the
concept of post decisional hearing in
appropriate cases. In the case of Dharampal
Satyapal
Limited
Vs.
Deputy
Commissioner of Central Excise, Gauhati
and others, reported at (2015) 8 SCC 519,
the Hon'ble Supreme Court held thus:

"38. But that is not the end of the
matter. While the law on the principle of
audi alteram partem has progressed in the
manner mentioned above, at the same time,
the Courts have also repeatedly remarked
that the principles of natural justice are
very flexible principles. They cannot be
applied in any straight-jacket formula. It all
depends upon the kind of functions
performed and to the extent to which a
person is likely to be affected. For this
reason, certain exceptions to the aforesaid
principles have been invoked under certain
596 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances. For example, the Courts
have held that it would be sufficient to
allow a person to make a representation and
oral hearing may not be necessary in all
cases, though in some matters, depending
upon the nature of the case, not only fullfledged oral hearing but even crossexamination of witnesses is treated as
necessary concomitant of the principles of
natural justice. Likewise, in service matters
relating to major punishment by way of
disciplinary action, the requirement is very
strict and full-fledged opportunity is
envisaged under the statutory rules as well.
On the other hand, in those cases where
there is an admission of charge, even when
no such formal inquiry is held, the
punishment based on such admission is
upheld. It is for this reason, in certain
circumstances,
even
post-decisional
hearing is held to be permissible. Further,
the Courts have held that under certain
circumstances principles of natural justice
may even be excluded by reason of diverse
factors like time, place, the apprehended
danger and so on."

In view of the facts of the case
and position of law laid down by the
Hon'ble Supreme Court, a post decisional
hearing would subserve the interest of
justice. Matter is remitted to the respondent
no. 2, Deputy Registrar, Firms, Societies
and Chits, Agra Region, Agra.

A writ of mandamus is issued
commanding the the respondent no. 2,
Deputy Registrar, Firms, Societies and
Chits, Agra Region, Agra to execute the
following directions:

I. The petitioners shall submit all
the documents and pleadings in regard to
the validity of their membership on
25.03.2019.

II. The members of the societies
whose membership have been held valid by
the Deputy Registrar,Firms, Societies and
Chits, Agra Region, Agra shall be served
copies of the documents and pleadings
being relied upon by the petitioners.

III. The members who have been
held to be valid members by the order of
Deputy Registrar dated 07.03.2019, shall
file their objections to the pleadings and
documents
of
the
petitioners
on
27.03.2019.

IV. The Deputy Registrar shall
hear the parties on 29.03.2019.

V. The Deputy Registrar shall
pass a final order on 02.04.2019.

VI. The claim of the petitioners
shall be decided by a reasoned and
speaking order in accordance with law.

It is clarified that this Court has
not interfered the order dated 07.03.2019
passed by the Deputy Registrar, Firms,
Societies and Chits, Agra Region, Agra and
any further action taken in pursuance
thereof. The same shall abide by the
decision taken by the Deputy Registrar,
Firms, Societies and Chits, Agra Region,
Agra in compliance of the order passed by
this Court.

The writ petition is disposed of
finally."

10. A subsequent writ petition filed
before this Court being Writ Petition No.
12689 of 2019, challenging the same order
of Deputy Registrar, dated 7.3.2019, has
also been disposed of vide following orders
passed on 12.4.2019:-

"Considering
the
facts
and
circumstances of the case, with the consent
of learned counsel for the parties, this
petition is disposed of with a direction to
Election Officer to proceed with the
election proceeding and after declaration of
result of election, at the time of recognition
under Section 4(1) of the Societies
Registration Act, 1860, petitioners is
9 All. C/M Thakur Biri Singh Inter College Tundla, Firozabad & Anr. Vs. State of U.P. & Ors. 597
permitted to file their objection before
Assistant Registrar (Firms, Societies & Chits),
Agra and if any such objection is filed by the
petitioners, the Assistant Registrar (Firms,
Societies & Chits), Agra shall consider the
same and decide strictly in accordance with
law expeditiously, preferably within a period
of one month from the date of receipt of
proposal of recognition of election."

11. Another Writ Petition No. 24465
of 2019 also came to be filed challenging
the order dated 7.3.2019, which too got
disposed of vide following orders passed
on 13.8.2019:-

"In view of the facts of the case
and position of law laid down by the
Hon'ble Supreme Court, a post decisional
hearing would subserve the interest of
justice. Matter is remitted to the respondent
no. 2, Deputy Registrar, Firms, Societies
and Chits, Agra Region, Agra.

A writ of mandamus is issued
commanding the the respondent no. 2,
Deputy Registrar, Firms, Societies and
Chits, Agra Region, Agra to execute the
following directions:

I. The petitioners shall submit all
the documents and pleadings in regard to
the validity of their membership on
25.08.2019.

II. The members of the societies
whose membership have been held valid by
the Deputy Registrar, Firms, Societies and
Chits, Agra Region, Agra shall be served
copies of the documents and pleadings
being relied upon by the petitioners.

III. The members who have been
held to be valid members by the order of
Deputy Registrar, Firms, Societies and
Chits,
Agra
Region,
Agra,
dated
07.03.2019, shall file their objections to the
pleadings and documents of the petitioners
on 27.08.2019.

IV. Other members of the society,
who are desirous of submitting or tendering
their objections along with supporting
documentation, shall also be given an
opportunity of hearing.

V.
The
pleadings/documents,
shall be exchanged interse the parties, and
their respective adversaries before the
hearing. Finding in this regard shall be
recorded by the Deputy Registrar, Firms,
Societies and Chits, Agra Region, Agra, in
the proceeding book.

VI. The Deputy Registrar, Firms,
Societies and Chits, Agra Region, Agra,
shall hear the parties on 28.09.2019.

VII. The Deputy Registrar, Firms,
Societies and Chits, Agra Region, Agra,
shall pass a final order within two weeks
from 28.09.2019.

VIII. The claim of the petitioners
shall be decided by a reasoned and
speaking order in accordance with law after
hearing all concerned parties who are
before this court and who may like to
tender their submissions.

It is clarified that this Court has
not interfered the order dated 07.03.2019
passed by the Deputy Registrar, Firms,
Societies and Chits, Agra Region, Agra and
any further action taken in pursuance
thereof. The same shall abide by the
decision taken by the Deputy Registrar,
Firms, Societies and Chits, Agra Region,
Agra in compliance of the order passed by
this Court.

The writ petition is disposed of
finally."

12. It is worth noticing that this Court
in its judgment dated 2.2.2018, has
specifically disapproved the order of
Deputy Registrar, 13.5.2016, whereby the
claim of membership of petitioner no. 2
was accepted. The judgment of this Court
dated 2.2.2018, has attained finality upto
598 INDIAN LAW REPORTS ALLAHABAD SERIES
the Apex Court. The claim of membership
of petitioner no. 2 since is seriously doubted
by this Court and his name otherwise did not
figure in the list of 12 members finalized by
the Deputy Registrar, as such the Inspector
appear to have raised doubts upon the
continuance of petitioner no. 2 as manager
since a member of society alone could be
elected as manager in terms of the scheme of
administration. The District Inspector of
Schools, consequently proceeded to pass an
order dated 29th March, 2019 holding that
the election dated 30th September, 2018,
which
stood
recognized
earlier
on
17.10.2018, and the signatures of the
petitioner
no.
2
were
attested
was
impermissible as it would be in teeth of the
division bench judgment of this Court.

13. This apparently was done as under
the scheme of administration the officebearers of the committee of management of
institution can be elected only from
amongst the members of the society and as
petitioner no. 2 was not found to be the
member of the society, he could not be
elected as the manager. For such purposes
the Inspector invoked her jurisdiction under
section 5(1) of the Act of 1971.

14. Order of Inspector dated 29th
March, 2019 came to be challenged before
this
Court
on
the
ground
that
no
opportunity of hearing was given to the
petitioner before passing it. The writ
petition has been allowed vide following
orders passed on 29th March, 2019:-

"Heard learned counsel for the
petitioners, learned Standing Counsel for
respondent nos. 1 to 3 and Sri N.C.
Tripathi,
learned
counsel
for
newly
impleaded respondent nos. 4 to 6.

Learned
counsel
for
the
petitioners has assailed the impugned order
dated
29.03.2019
passed
by
District
Inspector
of
Schools,
Firozabad-
respondent no. 2 basically on the ground
that this order has been passed without
providing opportunity of hearing to the
petitioner ignoring this fact that prior to
passing
of
order,
committee
of
management of petitioners' institution was
duly approved, therefore, it is required on
the part of respondent no. 2 to provide
opportunity of hearing prior to passing the
order impugned.

Sri N.C. Tripathi, learned counsel
for respondent nos. 4 to 6 has raised several
facts, but could not dispute this fact that
opportunity of hearing has not been
granted. Learned Standing Counsel has also
not disputed this fact.

Considering
the
facts
and
circumstances of the case, impugned order
dated
29.03.2019
passed
by
District
Inspector
of
Schools,
Firozabad-
respondent no. 2 is hereby quashed and the
matter is remanded back to respondent no.
2 to pass fresh order, maximum within a
period of 30 days from the date of
production of certified copy of the order
after providing opportunity of hearing to
the petitioner as well as newly impleaded
respondent nos. 4 to 6.

Accordingly,
this
petition
is
allowed.

No order as to costs."

15. It is thereafter that the Inspector
has passed the order impugned reiterating
her earlier order dated 29th March, 2019.
The reasoning assigned in the order is that
Deputy Registrar, Firms, Societies & Chits
has finalized the list of members of society
on 7.3.2019 and the name of petitioner no.
2 does not figure amongst the twelve
members
recognized
by
the
Deputy
Registrar. It has, therefore, been observed
that the elections of petitioner committee
9 All. C/M Thakur Biri Singh Inter College Tundla, Firozabad & Anr. Vs. State of U.P. & Ors. 599
held on 30th September, 2018 with the
participation of 111 members was wholly
impermissible in view of the order passed
in Special Appeal No. 215 of 2018 and
petitioner no. 2 cannot be recognized as the
manager.
Consequently,
petitioner's
application dated 20.6.2019 has been
rejected.

16. The Deputy Registrar, Firms,
Societies & Chits has proceeded to
redetermine the list of members vide his
order dated 6th November, 2019 by
accepting claim of membership of even
those also who were enrolled after expiry
of the term of undisputed elections i.e.
1990. This order is challenged in Writ
Petition No. 37643 of 2019 and the order of
the Deputy Registrar, dated 6.11.2019, has
been stayed vide following order passed on
21.11.2019:-

"Shri Ashish Srivastava, learned
counsel for the respondents states that he
has filed Caveat Application on behalf of
one of the member of the Society and his
Caveat has not been reported by the Stamp
Reporter.

Shri Ashish Srivastava, learned
counsel for the respondents is directed to
file
Impleadment
Application
as
the
members of the Society has not been
impleaded as a party.

Put up this matter again on
5.12.2019 as fresh.

Till the next date of listing, effect
and operation of the impugned order dated
6.11.2019 passed by Deputy Registrar,
Firms Societies & Chits, Agra, respondent
No.2 shall remain stayed."

17. Subsequently, following orders
have been passed in Writ Petition No.
37643 of 2019 on 28.1.2020, which is
reproduced hereinafter:-

"An order passed by the Deputy
Registrar, Firms Societies and Chits, Agra
dated 06.11.2019 determining the Electoral
College is assailed in this petition. It is
contended that the determination made is
absolutely
in
teeth
of
an
earlier
adjudication made by this Court in a bunch
of writ petitions decided on 02.02.2018
with leading Writ Petition No. 54882 of
2013 as also the order passed in Special
Appeal on 23.01.2019 with leading Special
Appeals being Special Appeal No. 215 of
2018. It is contended that this Court in the
aforesaid adjudication has clearly accepted
the position that last undisputed elections
of the Society were conducted in the year
1987 and because the term of society was
three years which had exhausted/ outlift its
tenure as such the Deputy Registrar had
intervened under Section 25(2) of the
Societies Registration Act,1860 vide his
order dated 17.05.1990. The order passed
by Deputy Registrar dated 17.05.1990 has
already been upheld. The Division Bench
has observed that once that be so no other
faction would have the right to hold any
subsequent election or to act as validly
elected committee of management and to
enroll new members. It is contended that
the Deputy Registrar in his previous order
dated 07.03.2019 had rightly restricted the
membership of persons enrolled up till
17.01.1990
and
that
any
subsequent
acceptance of claim of membership based
upon enrollment made after 07.01.1990
would clearly go contrary to the orders
passed by this Court in special appeal.

Matter requires consideration.

The
respondents
are
already
represented through Sri Anoop Trivedi,
learned Senior counsel assisted by Sri
Vibhu Rai, Advocate. Application for
intervention has also been filed by Sri N. C.
Tripathi, learned counsel for respondents in
the connected matter. It will be open for all
600 INDIAN LAW REPORTS ALLAHABAD SERIES
the parties to file their affidavits within two
weeks. Rejoinder affidavit, if any, may be
filed within three days.

Let this matter be listed on
27.02.2020.

Interim order granted earlier shall
continue, till the next date of listing.
Persons who have filed the impleadment
application would also be heard as
interveners under Chapter 22, Rule 5-A of
the Rules of the Court. It will be open for
them also to file a counter affidavit within
the same period."

18. Aggrieved by the order of
Inspector, dated 26.6.2019, the petitioner is
before this Court.

19. Sri Gajendra Pratap, learned
Senior Counsel for the petitioner states that
the primary purpose for passing an order of
single operation under Section 5(1) of the
Act of 1971 is to facilitate regular payment
of salary to the teaching and non-teaching
staff of the institution and as there was no
default by the petitioner in that respect, the
order of Inspector is wholly without
jurisdiction. It is also urged that the
elections held on 30th September, 2018
since has already been recognized on
17.10.2018, and no challenge to it is made
before any forum, therefore, there was
otherwise no occasion or justification for
the Inspector to pass the order impugned.
Learned Senior Counsel for the petitioner
has placed reliance upon a judgment of this
Court in Committee of Management,
Gandhi Smarak Inter College, Agra Vs.
District Inspector of Schools, Agra reported
in 2001 (2) UPLBEC 1347. Reliance is
placed upon paragraph 9 of the judgment,
which reads as under:-

"9. Section 5 of the Salaries Act
lays down the grounds on which an order of
single operation of account can be passed.
The Government Order dated 19.12.2000
provides that an order of single operation of
accounts could be passed by the DIOS on the
recommendations of the committee. The
second proviso to Section 5(1) of the Salaries
Act clearly provides that where a difficulty
has arisen in disbursement of salaries of the
staff of the institution due to any default of
the management, an order of single operation
of account can be passed by the DIOS. In
paragraph 18 of the writ petition, it has been
stated that there is no dispute regarding
management and there was no default on the
part of the management in respect of payment
of salary to teachers and other employees of
the institution. Section 5(1) does not provide
that for the delay on the part of the DIOS or
the regional committee in recognising the
newly elected management, an order of
single operation of account could be passed.
The impugned order passed by DIOS on
3.4.2001 does not mention that the regional
committee on the ground of delay had made a
recommendation to the DIOS for passing an
order of single operation of accounts. The
power under Section 5(1) can be exercised
sparingly and for reasons mentioned in the
section as it is an infringement of right of an
elected body to manage the affairs of the
institution. Any infringement of right cannot
be accepted as valid exercise of power.
Therefore, in absence of any recommendation
of the regional committee or existence of
condition precedent for exercise of power, the
order passed by the DIOS is arbitrary and
illegal being contrary to the provisions of
Section 5(1) of the Salaries Act and the
Government Order dated 19.12.2000. It
cannot be upheld."

20. Per contra, Sri N.C. Tripathi
appearing for the respondents submits that
petitioner no. 2 claims his induction as
member of the society much after 1990,
9 All. C/M Thakur Biri Singh Inter College Tundla, Firozabad & Anr. Vs. State of U.P. & Ors. 601
and in view of the settled legal proposition
that a member could be enrolled by a
legally
constituted
committee
of
management of society, any induction of
member
after
1991
would
be
impermissible.
The
continuance
of
petitioner no. 2 as recognized manager is
alleged to be impermissible and in teeth of
the orders passed by the division bench in
Special Appeal No. 215 of 2018. Reliance
is placed upon paragraphs 7, 8, 9 & 12 of a
full bench judgment of this Court in
Committee of Management, Pt. Jawahar
Lal Nehru Inter College, Bansgaon Vs.
Deputy Director of Education, Gorakhpur
Region, Gorakhpur and others, reported in
(2005) 1 UPLBEC 85, which reads as
under:-

"7. In order to consider these
questions, it is necessary to go into the
background in which Section 16-A was
inserted in the Act. Every recognized
institution is to be managed by a
Committee of Management elected in
accordance
with
a
'Scheme
of
Administration approved by the Deputy
Director of Education. Such a Committe of
Management is required to discharge
various statutory functions under the Act
including
the
payment
of
salaries,
appointments
of
adhoc
teachers,
determination of seniority etc. The District
Inspector of Schools has to exercise various
statutory functions in collaboration with
such Committee of Management under the
Act and the U.P. High School and
Intermediate Colleges (Payment of Salaries
of Teachers and other Employees Act, 1971
(in short the U.P. Act of 1971). It is,
therefore necessary to find out as to which
of the elected Committee of Management is
in actual control of the affairs of the
Institution. Where the elections arc not
disputed, the District Inspector of Schools
is required to attest the signatures of the
Principal and the Manager for the purposes
of carrying out statutory functions and for
maintenance of accounts. Where however
there is a dispute regarding the elections,
and the control over the Institution the
District Inspector of Schools is required to
satisfy himself as to who, according to him,
is the validly elected Committee of
Management.

8. In Committee of Management
v. District Inspector of Schools and others,
1978 AWC 124, a Division Bench held that
the mere raising of a dispute did not
absolve the District Inspector of Schools
from his duty, to find out on administrative
level as to who are the real office bearers of
the College.