# College, Meerut through its Manager v. State of U.P. And others), which dealt with

- **Citation:** (2015) 1 ILRA 114
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-01
- **Bench:** Arun Tandon, Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/college-meerut-through-its-manager-v-state-of-u-p-and-others-which-dealt-with-43072
- **Pages:** 5

## Headnote

Constitution
of
India,
Art.-226-Writ
Jurisdiction-alternative
remedy-by
composite order winding up of cooperative
society as well as cancellation of registration
passed-certainly
against
cancellation-no
statutory appeal provided hence except writ
petition-no other remedy-but cancellation of
registration based upon winding up-subject
to appeal under section 98 (1)(i) of the Act
1965-petitioner to file appeal- the same be
decided within 3 months-the cancellation be
subject
to
outcome
of
appeal-petition
disposed of.
Held: Para-13
In our opinion, if the order is composite and
since no statutory appeal is provided for
against the order of cancellation of the
registration of a society under Section 76 of
Act, 1965, writ is a remedy available to the
cooperative society. However, we are also
conscious of the fact that cancellation of
registration of a society is a consequential
action taken with reference to the order
made under Section 72 of Act, 1965. Unless
an order of winding up of the cooperative
society stands on record, there cannot be
any order of cancellation of the registration
of cooperative society. Therefore, the order
of cancellation of registration of the
cooperative society is squarely dependent
upon the fate of the order made under
Section 72 of Act, 1965. In both the
circumstances, contemplated by Section 76
of Act, 1965. Having arrived at the said
conclusion, we are of the considered
opinion that the petitioner may be asked to
file an appeal against the order impugned,
as there are reasons and facts recorded for
coming
to
the
conclusion
that
the
cooperative society was liable to be wound
up. However, specific orders for winding up
may not have been recorded and only the
consequential order has been made.

## Text

114
 INDIAN LAW REPORTS ALLAHABAD SERIES
formulated by professional men possessing
technical expertise and rich experience of
actual day-to-day working of educational
institutions and the departments controlling
them. It will be wholly wrong for the court to
make a pedantic and purely idealistic
approach to the problems of this nature,
isolated from the actual realities and grassroot problems involved in the working of the
system and unmindful of the consequences
which would emanate if a purely idealistic
view as opposed to a pragmatic one were to
be propounded."
33. The above principles laid down in
Maharashtra State Board1 have been
followed and reiterated in several decisions of
this Court, some of which are referred to in
para 9 above. But the principles laid down in
the decisions such as Maharashtra State
Board1 depend upon the provisions of the
rules and regulations of the examining body.
If the rules and regulations of the examining
body provide for re-evaluation, inspection or
disclosure of the answer books, then none of
the principles in Maharashtra State Board1
or other decisions following it, will apply or
be relevant. There has been a gradual change
in trend with several examining bodies
permitting inspection and disclosure of the
answer books.
34. It is thus now well settled that a
provision barring inspection or disclosure of
the answer books or re-evaluation of the
answer books and restricting the remedy of
the candidates only to re-totalling is valid and
binding on the examinee. In the case of CBSE,
the provisions barring re-evaluation and
inspection contained in Bye-law 61, are akin
to Rule 104 considered in Maharashtra State
Board1. As a consequence if an examination
is governed only by the rules and regulations
of the examining body which bar inspection,
disclosure or re-evaluation, the examinee will
be entitled only for re-totalling by checking
whether all the answers have been evaluated
and further checking whether there is no
mistake in the totalling of marks for each
question and marks have been transferred
correctly to the title (abstract) page. The
position may however be different, if there is a
superior statutory right entitling the examinee,
as a citizen to seek access to the answer
books, as information."
(emphasis supplied)
24. Learned counsel for the respondent
has also placed reliance upon a judgment of
the Division Bench of this Court reported in
2008(72)
AIC
555
(Committee
of
Management, Ismail Girls National Inter
College, Meerut through its Manager Vs.
State of U.P. And others), which dealt with
the definition of public authority in the context
of institution receiving aid from the State, and
therefore, the institution was held to be a
public authority. In the facts of the present
case, since the institution is not receiving aid
from the Government, therefore, the judgment
relied upon will have no applicability.
25. Thus, in view of the discussions
aforesaid, I am of the considered opinion
that the respondent Board is under no
obligation to provide the answer scripts to
the
petitioners,
in
respect
of
the
examination conducted by the Board, and
the relief prayed for is not liable to be
granted to them. Consequently, the writ
petition fails and is dismissed.
26. No order, however, is passed as
to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2014
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE VIVEK KUMAR BIRLA, J.
1 All] Tajpur Krishi Utpad Vipran Sahkari Samiti Ltd. Moradabad Vs. State of U.P. & Ors.
115
Civil Misc. Writ Petition No. 62582 of 2014
Tajpur
Krishi
Utpad
Vipran
Sahkari
Samiti Ltd., Moradabad
...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri H.R. Mishra, Sri Neeraj Pandey
Counsel for the Respondents:
C.S.C.
Constitution
of
India,
Art.-226-Writ
Jurisdiction-alternative
remedy-by
composite order winding up of cooperative
society as well as cancellation of registration
passed-certainly
against
cancellation-no
statutory appeal provided hence except writ
petition-no other remedy-but cancellation of
registration based upon winding up-subject
to appeal under section 98 (1)(i) of the Act
1965-petitioner to file appeal- the same be
decided within 3 months-the cancellation be
subject
to
outcome
of
appeal-petition
disposed of.
Held: Para-13
In our opinion, if the order is composite and
since no statutory appeal is provided for
against the order of cancellation of the
registration of a society under Section 76 of
Act, 1965, writ is a remedy available to the
cooperative society. However, we are also
conscious of the fact that cancellation of
registration of a society is a consequential
action taken with reference to the order
made under Section 72 of Act, 1965. Unless
an order of winding up of the cooperative
society stands on record, there cannot be
any order of cancellation of the registration
of cooperative society. Therefore, the order
of cancellation of registration of the
cooperative society is squarely dependent
upon the fate of the order made under
Section 72 of Act, 1965. In both the
circumstances, contemplated by Section 76
of Act, 1965. Having arrived at the said
conclusion, we are of the considered
opinion that the petitioner may be asked to
file an appeal against the order impugned,
as there are reasons and facts recorded for
coming
to
the
conclusion
that
the
cooperative society was liable to be wound
up. However, specific orders for winding up
may not have been recorded and only the
consequential order has been made.
(Delivered by Hon'ble Arun Tandon, J.)
1. Heard Sri H.R. Mishra, learned
Senior Advocate assisted by Sri Neeraj
Pandey, learned counsel for the petitioner
and Sri Chandra Shekhar Singh, learned
Additional Chief Standing Counsel for the
State-respondents.
2.
Petitioner-Tajpur Krishi Utpad
Virpan Sahkari Samiti Ltd., Tajpur Mafi,
Vikash Khand and District Moradabad
(hereinafter referred to as the petitioner's
society) has filed this writ petition against the
order of the Deputy Registrar, Cooperative
Societies,
U.P.
Moradabad
Division,
Moradabad dated 31st October, 2014, whereunder the registration of the petitioner's
society has been cancelled in exercise of
powers under Section 76 of the U.P.
Cooperative Societies Act, 1965 (hereinafter
referred as the "Act, 1965"). The order is
challenged on the ground that the same was
not preceded by any order under Section
72/73 of Act, 1965 for winding up of the
cooperative society and therefore, in view of
the judgement of this Court in the case of
Krishi Upaj Evam Vipdan Samiti Ltd. vs.
State of U.P. & Another (Civil Misc. Writ C
No. 59668 of 2012) decided on 7th
November, 2013, no order under Section 76
of Act, 1965 should have been made.
3. Sri Chandra Shekhar Singh,
learned
Additional
Chief
Standing
Counsel for the State-respondents submits
that it is not necessary, than an order
under Section 72 of Act, 1965 for winding
up of the cooperative society, to proceed
for cancellation of registration of the
116
 INDIAN LAW REPORTS ALLAHABAD SERIES
society under Section 76 of Act, 1965. He
explains that both the orders can be
simultaneous and can be part of one
common order. He further submits that
against the order of winding up of the
cooperative society made under Section
72, an appeal under Section 98 (1) (i) of
Act, 1965 has been provided for.
Therefore, this Court may insist upon the
petitioner to avail the statutory alternative
remedy in the facts of the case.
4.
Sri H.R. Mishra, learned Senior
Advocate on behalf of the petitioner submits
that against the order of winding up of a
society made in exercise of powers under
Section 72 of Act, 1965, an appeal is
provided for under Section 98 of Act, 1965
but no appeal is provided against the order of
cancellation of the registration of a society
under Section 76 of Act, 1965. He refers to
Section 73 (3) Act, 1965 for the purpose that
once an appeal is filed under Section 98 of
Act, 1965, against an order of winding up
made in exercise of powers under Section 72
of Act, 1965, further proceedings of winding
up of a society are stayed automatically. He
submits that in the facts of the case since
there is no order in so many words directing
winding up of the society under Section 72
of Act, 1965, and there are only passing
references for the society being wound up, in
the order of cancellation of registration of the
society under Section 76 of Act, 1965, no
alternative remedy is available to the
petitioner in the facts of the case.
5.

We
have
considered
the
submissions made by the learned counsel
for the parties and have examined the
records of the present writ petition.
6. It is settled law that right of an
appeal is an statutory right and if the
appeal against a particular order has not
been provided for under the Statute, the
High Court in exercise of powers under
Article 226 of the Constitution of India
cannot create a forum of appeal.
7. From reading of Section 76 of
Act,
1965, it is
apparent
that it
contemplates cancellation of registration
of
a
cooperative
society
in
two
circumstances, (a) when an order of
winding up has been made under Section
72 of Act, 1965, and the Deputy Registrar
is of the opinion that it is not necessary to
appoint a liquidator, (b) when the affairs
of cooperative society in respect of which
the liquidator has been appointed under
Section 73 have been wound up, the
Deputy Registrar may direct cancellation
of the registration of the society.
8. For ready reference Section 76 of
Act, 1965 is being quoted herein below:
"76. Cancellation of registration of a
co-operative society.- Where in respect of a
co-operative society which has been ordered
to be wound up under Section 72, the
Registrar is of opinion that it is not necessary
to appoint a liquidator, or where the affairs
of a co-operative society in respect of which
a liquidator has been appointed under
Section 73, have been wound up, the
Registrar shall make an order cancelling the
registration of the society and the society
shall be deemed to be dissolved and shall
cease to exist as a corporate body from the
date of such order of cancellation."
9. From simple reading of aforesaid
provision, it is apparent that Registrar can
direct cancellation of registration of a
society while making an order under
Section 72 of Act, 1965 for winding up of
the society after being satisfied that no
liquidator is to be appointed in the facts of
1 All] Tajpur Krishi Utpad Vipran Sahkari Samiti Ltd. Moradabad Vs. State of U.P. & Ors.
117
the case. In other case where winding up
order has been made and liquidator has
been appointed, such cancellation of the
registration can be directed after the
winding up proceedings are over.
10. Appeal against the order of
registration is provided under Section 98
of Act, 1965. Section 98 (1) (i) of Act,
1965 reads as follows:
"98. Appeal against the awards,
orders and decisions.---(1) An appeal
against---------
........
(i)an order made by the Registrar
under Section 72 directing the winding up
of a co-operative society ; .........."
11. From simple reading of Section 98
(1) (i) of Act, 1965, an appeal has been
provided for against the order made under
Section 72 of Act, 1965 i.e. winding up of a
cooperative society only. No appeal has been
provided against an order of cancellation of
the registration of the cooperative society. An
order under Section 72 of Act, 1965 and an
order under Section 76 lead to difference
consequences and in the case of cancellation
of registration of the society, the cooperative
society ceases to exist in the eyes of law.
12. It is no doubt true that from
reading of Section 76 of 1965, it can be
said that an order under Sections 72 and
76 of Act, 1965 for winding up and for
cancellation of the registration of a
society under Section 76 of Act, 1965 can
be made simultaneously in a given set of
facts but the moot question is as to what
happens to right of appeal and what
happens to the statutory provisions
contained under Section 73 (3) of Act,
1965 in such a situation. Section 73 (3) of
Act, 1965 reads as follows:
"73. Liquidator. ---(1) ........
(3) Where an appeal is preferred under
Section 98 against an order of winding up of a
co-operative society passed under Section 72,
the further winding up proceedings shall be
stayed by the liquidator until the order is
confirmed in appeal. :
Provided that the liquidator shall
continue to have custody or control of the
property, effects and actionable claims
mentioned in sub-section (2) and have
authority to take the steps referred to in that
sub-section."
13.
In our opinion, if the order is
composite and since no statutory appeal is
provided for against the order of cancellation
of the registration of a society under Section
76 of Act, 1965, writ is a remedy available to
the cooperative society. However, we are also
conscious of the fact that cancellation of
registration of a society is a consequential
action taken with reference to the order made
under Section 72 of Act, 1965. Unless an
order of winding up of the cooperative society
stands on record, there cannot be any order of
cancellation of the registration of cooperative
society. Therefore, the order of cancellation of
registration of the cooperative society is
squarely dependent upon the fate of the order
made under Section 72 of Act, 1965. In both
the circumstances, contemplated by Section
76 of Act, 1965. Having arrived at the said
conclusion, we are of the considered opinion
that the petitioner may be asked to file an
appeal against the order impugned, as there
are reasons and facts recorded for coming to
the conclusion that the cooperative society
was liable to be wound up. However, specific
orders for winding up may not have been
recorded and only the consequential order has
been made.
14.

Sri
C.S.
Singh,
learned
Additional Chief Standing Counsel has
118
 INDIAN LAW REPORTS ALLAHABAD SERIES
admitted that if the winding up order is set
aside in an appeal, order of cancellation of
the registration of the cooperative society
would fall automatically and in that
circumstance, registration of cooperative
society shall stands restored.
15.
For the aforesaid reasons, we feel
that interest of substantial justice would be
served in the facts of the case by providing
that the petitioner may file an appeal under
Section 98 (1) (i) of Act, 1965 against the
order impugned in the present writ petition,
insofar as it directs winding up of the
cooperative society within four weeks from
today, along with a certified copy of this
order.
16.
The Tribunal under the Act, 1965
may consider and decide the appeal filed by the
petitioner within eight weeks from the date the
appeal is so filed after affording opportunity of
hearing to the parties concerned. Fate of the
order of cancellation of the registration of
petitioner's society shall be dependent upon the
orders to be passed on the appeal. If the appeal
is allowed, the order of the cancellation of
registration
of
the
society
shall
fall
automatically. It is ordered accordingly.
17.

With
the
aforesaid
directions/observations, the present writ
petition is disposed of.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2014
BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
Civil Misc. Writ Petition No. 63170 of 2014
Smt. Isharat & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri M.P. Tiwari
Counsel for the Respondents:
C.S.C., Sri S.K. Pundir
Constitution of India, Art.-226-Protection
of persons and property-marriage took
place in accordance with Muslim rites on
impleadment application of legally wedded
wife having pries issued under bed lock of
petitioner no. 2-the petitioner being minor
girl, in presence of parents of both
petitioners-marriage not proved-petitioner
guilty of fraud-with forged ID-source of
income only agricultural land also found
false-as per provision of Ayat 3 of Sura 4 of
Holy Quran-bigamy not sanctified unless
can
do
justice
with
orphans-second
marriage can not be performed-religious
mandate-binding upon all Muslims menpetition
dismissed
with
cost
of
Rs.
50,000/- payable to respondent-5.
Held: Para-11 & 19
11. Thus, it is apparent on record that
the present writ petition supported by an
affidavit of petitioner no. 2 has been
filed concealing material facts of the
case and making false averments. Fake
papers have also been filed along with
the writ petitions. Thus, the petitioners
have approached this Court with unclean
hands, unclean mind and unclean heart.
They deserve no sympathy or leniency.
19. In view of mandate in the Holy Quran it
is amply clear that bigamy is not sanctified
unless a man can do justice to orphans, who
in the present set of facts are the respondent
nos. 5 to 8. As per mandate of the Holy
Quran as noted above all Muslims men have
to deal justly with the orphans. A married
Muslim man having his wife alive cannot
marry with another muslim women, if he
cannot deal justly with the orphan. A
mandate has been given that in such
circumstances a Muslim man has to prevent
himself to perform second marriage, if he is
not capable of fostering his wife and