# Dinesh Singh Sarathi v. State of U.P. & Ors

- **Citation:** (2022) 7 ILRA 83
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-22
- **Case number:** Writ C No. 10572 of 2022
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-singh-sarathi-v-state-of-u-p-ors-48852
- **Pages:** 11

## Headnote

A. Civil Law - Societies Registration Act,
1860
-
Section
4-B
&
25(2)
-
Membership dispute - Electoral college -
Earlier, the order of Assistant Registrar,
Societies holding membership of 54
members genuine, was upheld by the
High Court in writ petition and Special
Appeal - Controversy of the same
membership again raised - Exercise of
power by Assistant Registrar u/s 4-B to
change it, how long permissible
-
Remedy available discussed - While
exercising power under Section 4-B of
the Act, 1860, the Assistant Registrar,
Societies cannot reopen the controversy
to return a finding qua membership
contrary to what has already been held
by such an authority previously and
affirmed
by
the
High
Court
-
Controversy with regard to the 54
members
did
not
remain
open
to
challenge
any
further
except
in
proceedings to be drawn either under
Section 25(1) of the Act, 1860 or
through a common law remedy of
instituting the suit. (Para 16 and 17)
B. Interpretation of Statute - de facto
doctrine - Meaning and Scope - The
doctrine of de facto is based on sound
principle of public policy and is aimed at
removing any kind of insecurity and
confusion amongst the people whose
rights would get prejudiced in the event
the orders passed or actions taken by a
person who in fact occupied the office, is
held to be void on account of his
occupation of office subsequently being
held to be illegal. (Para 26)
C. Committee of management - Elected
office bearer continuing in office and
working - Challenge to the validity of
the
office,
how
far
effect
their
proceeding and resolution - Application
of de facto doctrine - Held, mere
challenge to an office in absence of any
order of interim stay or rider making
continuance subject by express words,
would not mean that such persons,
board of Management or Committee
illegally continued and so exercise of
power would stand served by the de
facto
doctrine
-
Committee
of
Management that had validly continued
until the elections were set aside, its
conduct
of
proceeding
including
resolution adopted by it, shall stand
84 INDIAN LAW REPORTS ALLAHABAD SERIES
saved by virtue of de facto doctrine.
(Para 32 and 35)
Writ petition dismissed. (E-1)
List of Cases cited :-

## Text

7 All. Dinesh Singh Sarathi Vs. State of U.P. & Ors.
83

21. Accordingly, the order dated
24.02.2016, the order dated 22.03.2016 and
the order dated 17.02.2017 are set aside.

22. As no direction for renewal of the
licences can be issued in view of the
change in the policy of the State
Government, the writ petition is disposed
off with a direction to refund the
proportionate
basic
license
fee,
the
proportionate license fee and the security
deposit as forfeited by means of the order
dated 24.02.2016 within a period of two
months from the date of the petitioner
moving an appropriate application before
the District Magistrate, District Amethi.

23. There shall be no order as to costs.
----------
(2022)07ILR A83
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.04.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ C No. 10572 of 2022

Dinesh Singh Sarathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Narendra Kumar Chaturvedi, Sri Ashok
Khare (Senior Adv.)

Counsel for the Respondents:
C.S.C., Sri Balwant Singh, Sri Amit Saxena
(Senior Adv.)

A. Civil Law - Societies Registration Act,
1860
-
Section
4-B
&
25(2)
-
Membership dispute - Electoral college -
Earlier, the order of Assistant Registrar,
Societies holding membership of 54
members genuine, was upheld by the
High Court in writ petition and Special
Appeal - Controversy of the same
membership again raised - Exercise of
power by Assistant Registrar u/s 4-B to
change it, how long permissible
-
Remedy available discussed - While
exercising power under Section 4-B of
the Act, 1860, the Assistant Registrar,
Societies cannot reopen the controversy
to return a finding qua membership
contrary to what has already been held
by such an authority previously and
affirmed
by
the
High
Court
-
Controversy with regard to the 54
members
did
not
remain
open
to
challenge
any
further
except
in
proceedings to be drawn either under
Section 25(1) of the Act, 1860 or
through a common law remedy of
instituting the suit. (Para 16 and 17)
B. Interpretation of Statute - de facto
doctrine - Meaning and Scope - The
doctrine of de facto is based on sound
principle of public policy and is aimed at
removing any kind of insecurity and
confusion amongst the people whose
rights would get prejudiced in the event
the orders passed or actions taken by a
person who in fact occupied the office, is
held to be void on account of his
occupation of office subsequently being
held to be illegal. (Para 26)
C. Committee of management - Elected
office bearer continuing in office and
working - Challenge to the validity of
the
office,
how
far
effect
their
proceeding and resolution - Application
of de facto doctrine - Held, mere
challenge to an office in absence of any
order of interim stay or rider making
continuance subject by express words,
would not mean that such persons,
board of Management or Committee
illegally continued and so exercise of
power would stand served by the de
facto
doctrine
-
Committee
of
Management that had validly continued
until the elections were set aside, its
conduct
of
proceeding
including
resolution adopted by it, shall stand
84 INDIAN LAW REPORTS ALLAHABAD SERIES
saved by virtue of de facto doctrine.
(Para 32 and 35)
Writ petition dismissed. (E-1)
List of Cases cited :-
1. C/M Gangadin Ram Kumar Inter College Vs
Deputy Director of Education, Vth Region & ors.;
2006 (4) AWC 3731 All
2. Gokaraju Rangaraju Vs St. of Andra Pradesh
3. Achanti Sreenivasa Rao & ors. Vs St. of
Andhra Pradesh; (1981) 3 SCC 132
4. C/M Dayanand Arya Kanya Degree College,
Moradabad & ors. Vs Director of Higher
Education, Allahabad & ors.; (1998) 4 SCC 104
5. Mehandi Hasan & ors. Vs St. of U.P. & ors.;
(2014) 2 UPLBEC 1338
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Ashok Khare, learned
Senior Advocate assisted by Sri Narendra
Kumar Chaturvedi, learned counsel for the
petitioner and Sri Amit Sexena, learned
Senior Advocate assisted by Sri Balwant
Singh, learned counsel for the respondents.

2. The petitioner, who claims to be a
member of general body of the society is
aggrieved against the order of the Assistant
Registrar, Society dated 10th March, 2022,
whereby he has rejected the objection of
the present petitioner against the list of
members of general body and finalized 251
members electoral college for the purposes
to hold election of the Committee of
Management of the society nominating
District Inspector of Sanskrit Schools of
Gorakhpur Division, Gorakhpur as an
Election Officer.

3. It transpires from the record that
earlier petitioner had approached this Court
vide Writ - C No.- 29150 of 2019 against
the order dated 1st July, 2015 passed under
Section 25(2) of the Societies Registration
Act, 1860 (hereinafter referred to as ''Act,
1860') directing District Inspector of
Schools, Gorakhpur to hold elections of the
society.

4. The main argument advanced in the
said case was that District Inspector of
Schools wholly illegally further delegated
the power to the associate District Inspector
of Schools to conduct elections inasmuch
as the elections that were held, were not in
consonance with the scheme of the byelaws.

5. The Contesting respondents in the
said writ petition agreed for a fresh election
to be held and, accordingly, direction was
issued to the Assistant Registrar, Societies,
Gorakhpur to ensure that fresh elections of
the Committee of Management of the
Societies were held under Section 25(2) of
the Act, 1860 in accordance with bye-laws
of the society. The operative portion of the
order of this Court dated 18th September,
2019 is reproduced hereunder:-

"With consent of parties, the
orders dated. 06.07.2019 passed by the
Assistant Registrar, Firms, Societies and
Chits, Gorakhpur, the elections proceedings
dated 11.06.2017 and 20.06.2019 are
quashed and the matter is remitted to the
Assistant Registrar, Firms, Societies and
Chits, Gorakhpur to execute the following
directions:

1. The respondent no.2, Assistant
Registrar, Firms, Societies and Chits,
Gorakhpur shall ensure that the fresh
elections to the society are conducted under
Section 25(2) of the Societies Registration
Act as per the Bye-laws of the society.

2.
The
elections
shall
be
conducted within a period of two months
7 All. Dinesh Singh Sarathi Vs. State of U.P. & Ors.
85
from the date of receipt of a certified copy
of this order.

The writ petition is allowed to the
extent indicated above."

6. It appears that after the aforesaid
order was passed, the Deputy Registrar,
Societies proceeded to issue notice dated 8th
February, 2021 to both the petitioner and
respondent No.- 2 to deposit requisite
expenses to be incurred in holding elections.
The list of general body members was
forwarded by the respondent No.- 3 to the
Assistant Registrar, Societies on 22nd
January, 2021 for necessary approval and
follow up action to hold election under
Section 25(2) of the Act, 1860. This gave an
opportunity this time to the petitioner to file
his objections which he did file on 25th April,
2021 and claimed 108 members to be only
the valid members and, therefore, prayed that
rest of the members be held to be illegally
enrolled. This is how the matter under
Section 4-B of the Act, 1860 came to be
adjudicated upon by the Assistant Registrar,
Societies by the order impugned.

7. The main argument advanced herein
this petition by learned Senior Advocate is
that those members who had participated in
the election held in the year 2004 should be
taken to be only the valid members to form
the electoral college because 52 members
who were subsequently enrolled and were not
the members in the year 2004 were wholly
illegally inducted as members.

8. It is argued that the Committee of
Management that was elected on 11th June,
2017 was ultimately held to be invalid and
cancelled by this Court under its order dated
18th September, 2019, therefore, the list that
was got registered for the year 2019-20 on
6th July, 2019 would be taken to be invalid
and therefore, meeting convened by such
Committee of Management on 28th July,
2019 would stand void. It is argued that
depositing enrollment fee on 1st August,
2019 shows that the 86 members were got
fraudulently enrolled.

9. It is in the above background,
therefore, it is argued that Assistant Registrar,
Societies was not justified in applying de
facto doctrine in upholding memberships of
86 members on the ground that their
membership fee was accepted as per the
scheme of bye-laws prior as the election of
the Committee of Management then in power
having been quashed.

10. Per contra, it is argued by Sri Amit
Saxena, learned Senior Advocate appearing
for the petitioner that the petitioner could
have grievance to the extent of his
membership and he being not the Committee
of Management, could not have set up
grievance regarding others inasmuch as he
argued that the order passed by the Assistant
Registrar, Societies is a reasoned and
speaking order in which he has dealt with
various aspects of the matter of determination
of the membership and is, therefore, fully
justified in upholding the membership of 251
members
submitted
by
the
contesting
respondents. He further submits that de facto
doctrine has been correctly applied and thus
prayed that the petition deserves to be
dismissed.

11. Learned Standing Counsel would
defend the order for the reasons assigned
therein.

12. Rival submissions fall for
consideration:-

13. The elections that were earlier
held by the associate District Inspector of
Schools dated 11th June, 2017 and so the
86 INDIAN LAW REPORTS ALLAHABAD SERIES
consequential order dated 26th February,
2019 were basically questioned on the
ground that the District Inspector of
Schools could not have sub-delegated the
power once he was directed by the
Assistant Registrar, Societies to hold the
elections and this is how the writ petition
came to be allowed on 18th February, 2019
with a direction to the Assistant Registrar,
Societies,
Gorakhpur
to
conduct
the
elections as per the scheme of bye-laws
under Section 25(2) of the Act, 1860. It,
therefore, clearly transpires that insofar as
the previous election is concerned there
was no dispute of the membership, it only
cropped up when a list of 251 members
was
forwarded
by
the
contesting
respondent No.- 3 in response to the notice
of Assistant Registrar, Societies on 8th
November, 2019 in which only expenditure
to be incurred was required to be deposited.
The
Assistant
Registrar,
Societies
proceeded to issue fresh notice on 8th
January, 2021 directing the parties to
produce their original documents so as to
determine electoral college under Section
4-B of the Act, 1860. The objection taken
before the Deputy Registrar, Societies by
the present petitioner was that after
verifying
from
the
original
records
membership of 54 old members and 86 new
members be held invalid and only the
living members of 108 list of members that
was there in 2004 election, be taken to be
as consisting a valid electoral college. He
has raised objection to the membership of
54 members on the ground that there was
forged meeting held on 1st October, 2006
as there was nothing available on records to
demonstrate as to whether any receipt was
issued against the membership fee taken
from each such member nor, membership
fee
was
deposited
in
the
account.
Regarding 86 members the plea taken is
that their membership was accepted on 1st
August, 2019 only by a Committee of
Management which was there in office and
since very election pursuant to which the
Committee continued in office came to be
set aside by this Court on 18th September,
2019 it will be taken that those 86 members
were enrolled by an illegally elected
Committee of Management and so their
membership was also liable to be cancelled.

14. I find that Assistant Registrar,
Societies has discussed the issue of 54
members whose membership was finalized
by the Assistant Registrar, Societies vide
order dated 1st September, 2015 which
came to be challenged before this Court
vide Writ- C No.- 43837 of 2015 and the
Court
had
repelled
the
argument
questioning the membership of those 54
members earlier enrolled by erstwhile
Committee of Management in the year
2006 and, therefore, the Court held that
"the induction of 54 members cannot be
faulted especially as it has not been shown
anywhere nor argued that in past the
members of both the committees acted
separately or distinctly".

15. Thus, the Court declined to
interfere with the order of Assistant
Registrar, Societies and the petition was
dismissed.
The
said
judgement
was
unsuccessfully appealed against and it
found favour with the findings of learned
Single Judge by observing thus:-

"The issue as to whether the 54
members
were
validly
inducted
and
whether the second appellant presided over
or did not participate in the meeting in
which they are said to have been enrolled
are clearly disputed questions of fact. The
Assistant Registrar, it may be noted while
finalizing the composition of the general
body of a society, is exercising only a
7 All. Dinesh Singh Sarathi Vs. State of U.P. & Ors.
87
summary jurisdiction and it is always open
to a person aggrieved to question the same
in appropriate proceedings instituted either
before the Civil Court or by invocation of
the provisions of Section 25 of the 1860
Act.
The
Assistant
Registrar
while
proceeding to negative the claim of the
subsequent elections has in our opinion
correctly proceeded to direct the holding of
fresh elections, the results of which shall be
open to question by the rival factions by
either invoking the jurisdiction of the civil
court or by challenging the same in
appropriate proceedings under the 1860
Act."

16. Having gone through the
judgment of learned Single Judge and that
of the Special Appellate Bench, in my
considered view the controversy with
regard to the 54 members enrolled in the
year 2006 did not remain open to challenge
any further except in proceedings to be
drawn either under Section 25(1) of the
Act, 1860 or through a common law
remedy of instituting the suit.

17. The order of Assistant Registrar,
Societies on the question of membership
of those very 54 members having been
held to be genuine members once stood
upheld by a Coordinate Bench and then by
Division Bench of this Court even while
exercising power under Section 4-B of the
Act,
1860,
the
Assistant
Registrar,
Societies cannot reopen the controversy to
return a finding qua membership contrary
to what has already been held by such an
authority previously and affirmed by this
Court. Section 25 as referred to in the
order of Division Bench (supra) would be
referable to Section 25(1) of the Act, 1860,
where the question of membership can be
raised while reference is being adjudicated
upon.

18.

Under
the
circumstances,
therefore, I do not find any fault in the
findings returned by the Assistant Registrar,
Societies relating to 54 members.

19. Now I come to the second
argument that Assistant Registrar, Societies
wrongly applied de facto doctrine in
upholding membership of 86 new members
whose fee was deposited on 1st August,
2019 prior to the order of this Court dated
18th
September,
2019,
whereby
the
elections were set aside.

20. In support of his argument learned
Senior
Advocate
appearing
for
the
petitioner has relied upon the judgment of
Division Bench of this Court in the case of
Committee of Management Gangadin
Ram Kumar Inter College v. Deputy
Director of Education, Vth Region and
others reported in 2006 (4) AWC 3731 All.
Learned counsel for the petitioner has
relied upon paragraphs 22 and 23 of the
judgment that run as under:

"22. learned Counsel for the
appellant has further placed reliance on
Division Bench judgment of this Court
reported in Mohd. Iqbal v. State of Uttar
Pradesh and Ors.,(1992) 2 UPLBEC 1558.
In the aforesaid case two members were
nominated by the State Government in the
Board exercising power under proviso to
Section 9 of the U.P. Municipality Act, 1916
by notification dated 2.8.1991. These two
nominated members participated in the
proceedings of no-confidence held on
12.8.1991 which was brought against the
President of the Municipal Board Mohd.
Iqbal. The President filed writ petition
challenging
the
proceedings
dated
12.8.1991 and participation of aforesaid
two nominated members. Two nominated
members who were earlier nominated vide
88 INDIAN LAW REPORTS ALLAHABAD SERIES
notification
dated
19.4.1990
also
challenged
the
notification
dated
12.8.1991. The Division Bench relying on
an earlier judgment of the Division Bench
held that the power of nomination given to
the
State
Government
was
without
providing any definite guide lines, thus the
nomination dated 12.8.1991 was of no
legal consequence. Thus, the notification
nominating the two members was held to be
illegal. It was contended before the
Division Bench that their participation in
the proceedings dated 12.8.1991 is saved
by de facto doctrine because on the date
when they participated in the proceedings
the nomination was subsisting. The writ
petition
was
filed
even
before
the
proceedings dated 12.8.1991 could take
place seeking the interim relief restraining
the nominated members to participate in
the election. The Court did not grant any
interim order staying the participation but
only directed that their participation shall
be subject to result of the writ petition. The
Division Bench in the aforesaid case
repelled the argument of saving the said
proceedings dated 12.8.1991 on de facto
doctrine. Following was observed in
paragraphs 7 and 8:

7... If the result of no- confidence
motion proceeding is subjected to the
decision of a writ petition and if the right to
hold office is directly questioned as it has
been done in the cases on hand, then de
facto doctrine could not protect the illegal
participation of respondent Nos. 4 and 5
and voting right exercised by them in the
ab-initio void no- confidence motion
proceeding.

8... The Supreme Court lint the
case of Gokaraju Rangaraju (supra)
clearly
enunciated
that
a
judgment
delivered by a Judge cannot be questioned
in a collateral proceeding like appeal or
revision but his right to hold office of a
Judge can be questioned directly. The right
to hold office of a member by respondents
No. 4 and 5 under the notification dated
2.8.1991 has not been challenged by the
petitioner in the instant cases in a
collateral
proceeding
but
directly.
Therefore, reliance placed by Sri Ravi
Kiran Jain on the case of Gokaraju
Rangaraju (supra) is misplaced.

23. In the above case the Division
Bench did not accept the submission based
on de facto doctrine for saving of actions of
illegally nominated members principally on
the ground that the nomination of two
members was directly under challenge in
the writ petition. The Division Bench
applied the judgment of the apex Court in
Gokaraju Rangaraju (supra). The above
case does not help the appellant in any
manner rather support the view which we
have taken in the present case. No benefit
can be taken by the appellant of de facto
doctrine."

21. Upon a bare reading of aforesaid
paragraphs I find that there was already
writ petition filed before the Court in which
the nomination of 2 members was already
under challenge and their participation in
the voting was directed to be subject to the
result of the writ petition.

22.

This
is
a
case
quite
distinguishable on facts. Here in this case
there was no such rider operating in the
writ petition being Writ - C No.- 29150 of
2019 which ultimately came to be allowed
on 18th September, 2019. It is on the score
of their being already a rider provided in
the said case that Division Bench held that
de facto doctrine would not be attracted to
save the participation and consequential
casting of votes by two nominated
members.
7 All. Dinesh Singh Sarathi Vs. State of U.P. & Ors.
89

23. It is a settled law that when the
occupation of an office is under challenge
and the interim order is passed by the Court
that the no policy decision would be taken by
such party in office nor, would its conduct
resulting in finality to any proceeding then
this doctrine would not apply. Even otherwise
the Court is of the view that if the officer
whose title is ultimately held to be defective
then any act by him by which he would build
up a personal right or claim or privilege or
emolument by reason of his being in office,
the doctrine would not be attracted (Cooley'
Constitutional Limitations 8th Edition (2)
1355).

24. Here is a case where certain
members have come to be enrolled and so
no individual rights by any office bearer of
Committee in office is sought to be invoked
or built up for any personal gain rather it is
the members who have the right to
participate in an election and cast their
respective votes so it is more prejudicing
their right than the office bearers who by
adopting resolution enrolled members to the
general body of the society. By no stretch of
imagination if Committee of Management is
functioning and adopting resolution, it can
be attributable to any personal gain of a
particular office bearer individually or
collectively
by
the
Committee
of
Management.

25. It is one who applies for
membership his application is taken into
consideration and then the Committee or
Society adopts the resolution as the case may
be. For any Committee of Management that
is in office, this is a routine and general
exercise
of
power
which
cannot
be
questioned
only
on
this
score
that
subsequently
such
Committee
of
Management got ousted by virtue of its
election being held to be invalid.

26. Coming to the de facto doctrine,
the literal meaning of this would be ''in
fact'. The doctrine of de facto is based on
sound principle of public policy and is
aimed at removing any kind of insecurity
and confusion amongst the people whose
rights would get prejudiced in the event the
orders passed or actions taken by a person
who in fact occupied the office, is held to
be void on account of his occupation of
office subsequently being held to be illegal.

27. It is rightly said that doctrine is
borne of necessity and to arrest mischief if
there exists office in law and an authority
occupies it by virtue of its appointment or
election or nomination. Such a person or
body is clothed with insignia of the office
and exercises powers and functions as such
and the authority to exercise such power is
upheld by virtue of de facto doctrine.

28. Public policy is a matter of faith
and trust that individual's repose in a
system which has been created for their
benefits. In case of Gokaraju Rangaraju
v. State of Andra Pradesh and Achanti
Sreenivasa Rao and others v. State of
Andhra Pradesh reported in (1981) 3 SCC
132, it was held vide paragraphs 7, 8, 9, 10
and 17 thus:

"7. In Scadding v. Lorant [1851]
3 HLC 418, the question arose whether a
rate for the relief of the poor was rendered
invalid by the circumstance that some of the
vestry men who made it were vestry men de
facto and not de jure. The Lord Chancellor
observed as follows :

With regard to the competency of
the vestry men, who were vestry men de
facto, but not vestry men de jure, to make
the rate, your Lordships will see at once the
importance of that objection, when you
consider how many public officers and
90 INDIAN LAW REPORTS ALLAHABAD SERIES
persons there are who were charged with
very important duties, and whose title to
the office on the part of the public cannot
be ascertained at the time. You will at once
see to what it would lead if the validity of
their acts, when in such office, depended
upon the propriety of their election. It
might tend, if doubts were cast upon them,
to consequences of the most destructive
kind. It would create uncertainty with
respect to the obedience to public officers
and it might also lead to persons, instead of
resorting to ordinary legal remedies to set
right anything done by the officers, taking
the law into their own hands.

8. Some interesting observations
were made by the Court of Appeal in
England in Re James (An Insolvent) [1977]
2 W.L.R. 1. Though the learned Judges
constituting the Court of Appeal differed on
the principal question that arose before
them namely whether "the High Court of
Rhodesia" was a British Court, there did
not appear to be any difference of opinion
on the question of the effect of the invalidity
of the appointment of a judge on the
judgments pronounced by him. Lord
Denning M. R., characteristically, said :

He sits in the seat of a judge. He
wears the robes of a judge. He holds the
office of a judge. May be he was not validly
appointed. But, still, he holds the office. It
is the office that matters, not the
incumbent... So long as the man holds the
office and exercises it duly and in
accordance with law, his orders are not a
nullity. If they are erroneous they may be
upset on appeal. But, if not, erroneous they
should be upheld".

Lord Denning then proceeded to
refer to the State of Connecticut v. Carroll
decided
by
the
Supreme
Court
of
Connecticut, Re Aldridge decided by the
Court of Appeal in New Zealand and
Norton v. Shelby County decided by the
United States Supreme Court. Observations
made in the last case were extracted and
they were :

Where an office exists under the
law, it matters not how the appointment of
the incumbent is made, so far as the
validity of his acts are concerned. It is
enough that he is clothed with the insignia
of the office, and exercises its powers and
functions.... The official acts of such
persons are recognised as valid on grounds
of public policy, and for the protection of
those having official business to transact.

Scarman, L.J., who differed from
Lord Denning on the question whether the
High Court of Rhodesia was a British
Court appeared to approve the view of Lord
Denning, M. R. in regard to the de facto
doctrine. He said :

He (Lord Denning) invokes the
doctrine of recognition of the de facto
judge, and the doctrine of implied mandate
or necessity. I agree with much of the
thinking that lies behind his judgment. I do
think that in an appropriate case our courts
will recognise the validity of judicial acts,
even though they be the acts of a judge not
lawfully appointed or derive their authority
from an unlawful government. But it is a
fallacy to conclude that, because in certain
circumstances our Courts would recognise
as valid the judicial acts of an unlawful
court or a de facto judge, therefore, the
Court thus recognised is a British Court.

10. The de facto doctrine has
received judicial recognition in the United
States of America also. In State v. Gardner
(Cases on Constitutional Law by Mc.
Gonvey and Howard Third Edition 102) the
question arose whether the offer of a bribe
to a City Commissioner whose appointment
was unconstitutional was an offence.
Bradbury, J. said :

We think that principle of public
policy, declared by the English Courts three
7 All. Dinesh Singh Sarathi Vs. State of U.P. & Ors.
91
centuries ago, which gave validity to the
official acts of persons who intruded
themselves into an office to which they had
not been legally appointed, is as applicable
to the conditions now presented as they
were to the conditions that then confronted
the English Judiciary. We are not required
to find a name by which officers are to be
known, who have acted under a statute that
has
subsequently
been
declared
unconstitutional, though we think such
officers might aptly be called de facto
officers.

17. A judge, de facto, therefore, is
one who is not a mere intruder or usurper
but one who holds office, under colour of
lawful authority, though his appointment is
defective and may later be found to be
defective. Whatever be the defect of his title
to the office, judgments pronounced by him
and acts done by him when he was clothed
with the powers and functions of the office,
albeit unlawfully, have the same efficacy as
judgments pronounced and acts done by a
Judge de jure. Such is the de facto doctrine,
born of necessity and public a policy, to
prevent needless confusion and endless
mischief. There is yet another rule also
based on public policy. The defective
appointment of a de facto judge may be
questioned directly in a proceeding to
which he be a party but it cannot be
permitted to be questioned in a litigation
between two private litigants, a litigation
which is of no concern or consequence to
the judge except as a judge. Two litigants
litigating their private titles cannot be
permitted to bring in issue and litigate
upon the title of a judge to his office.
Otherwise so soon as a judge pronounces a
judgment a litigation may be commenced
for a declaration that the judgment is void
because the judge is no judge. A judge's
title to his office cannot be brought into
jeopardy in that fashion. Hence the rule
against collateral attack on validity of
judicial appointments. To question a
judge's appointment in an appeal against
his judgment is, of course, such a collateral
attack."

29. In the case of Committee of
Management Dayanand Arya Kanya
Degree College, Moradabad and others
v.
Director
of
Higher
Education,
Allahabad and others reported in (1998) 4
SCC 104, the Court upheld the acceptance
of voluntarily resignation of a teacher by
the Committee of Management which was
de facto in office. Vide paragraph 3 of the
judgment
the
Court
held
that
the
Committee of Management that was
continuing in office by virtue of interim
order of the High Court, it would be taken
to be a de facto and de jure as well.

30. Following the above judgment, a
Division Bench of this Court in the case of
Mehandi Hasan and others v. State of
U.P. and others reported in (2014) 2
UPLBEC 1338, had an occasion to deal
with the situation where Committee of
Management continued to enjoy office by
virtue of stay order passed by this Court
even though subsequently the election was
held to be invalid. In that case the
Committee of Management which was
continued by virtue of an interim order it
issued an advertisement. The petitioners,
who had applied against the advertisement
and their selection was held but the same
was questioned on the ground that their
appointment was void ab initio as at that
time the Committee was only on the
strength of interim order. Vide paragraphs
15 and 16 of the judgment, the Court held
thus:

"15. The principles of de facto
and de jure have been explained by the
92 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court in the case of Committee of
Management,
Dayanand
Arya
Kanya
Degree College, Moradabad and others v.
Director of Higher Education, Allahabad
and others, MANU/SC/0050/1998MANU/
SC/0050/1998 : (1998) 4 SCC 104. In the
said case one Dr. Manju Saraswat was a
Principal of Dayanand Arya Kanya Degree
College. She tendered her resignation from
the post, which was accepted by the
managing committee. The dispute arose
whether the committee of management had
power to accept the resignation as on the
date when the committee of management
had accepted the resignation, it was in the
office by virtue of interim order passed by
the High Court in a writ proceeding in
favour of the committee of management.
The resignation was not accepted by the
Vice Chancellor on the ground that the
authorized controller was appointed in the
Institution and he had not accepted the
resignation but it was accepted by the
committee of management, which was
continuing on the strength of the interim
order. The High Court had also taken the
same view. The Supreme Court took the
view that as the committee of management
was working in the Institution on the
strength of interim order, its decision is
saved by de facto and de jure both. The
similar view was taken by a Division Bench
of this Court in the case of Committee of
Management Gangadin Ram Kumar Inter
College,
Ramgarh
Barwan,
District
Jaunpur v. Deputy Director of Education,
Vth
Region,
Varanasi
and
others,
MANU/UP/0622/ 2006 : 2006(4) ADJ 381
(DB).

16. After careful consideration of
the matter, we are of the view that the
appointment of writ petitioners are saved
by the de facto doctrine. Accordingly, the
impugned order of the learned Single Judge
so far as it relates to the petitioners in Dr.
Mehandi Hasan and another v. The State of
U.P. and others, MANU/UP/0529/2007 :
2007(4) ADJ 664, is set aside and a
direction is issued upon the respondents for
the payment of salary of the writ
petitioners. Accordingly, special appeal is
disposed of."

31. Applying the above principle of
de facto doctrine in the present case, I find
that the present case stands on a much
better footing than those cases discussed
above. Here is a case where Committee of
Management had stood elected and was
continuing in office.

32. In my considered view unless and
until election to any office or post is held
bad, such elected office bearer or board of
Management or Committee, to whatever
name it is called, enjoy the office both de
jure and de facto. A mere challenge to an
office in absence of any order of interim
stay or rider making continuance subject by
express words, would not mean that such
persons,
board
of
Management
or
Committee illegally continued and so
exercise of power would stand served by
the de facto doctrine. No one would be
entitled to any personal benefit for having
occupied his office as such if such
occupation is held bad.

33. In this case writ petition was
filed challenging the election and no
interim order was passed. While it is true
that the elections were ultimately set
aside but neither any plea was taken in
the writ petition nor, any direction was
issued that whatever the powers had been
exercised
by
the
Committee
of
Management in office by virtue of its
election, would get rendered void or
cancelled on account of election being set
aside.
7 All. C/M Kaasampur Gadhi Kisan Sewa Sahkari Samiti Ltd., Bijnor & Anr. Vs. State of U.P. &
 Ors.
93

34. As a matter of fact from the bare
reading of the aforesaid order of the High
Court, I do not find that any plea regarding
membership was ever raised.

35. Thus, Committee of Management
that had validly continued until the
elections were set aside, its conduct of
proceeding including resolution adopted by
it, shall stand saved by virtue of de facto
doctrine.

36. In view of the above, therefore, I
do not find any good ground to interfere
with the order passed by the Assistant
Registrar, Societies. Liberty rests with the
petitioner to apply for common law
remedy.

37. This petition lacks merit and is,
accordingly, dismissed with no order as to
cost.

38. Consigned to records.
----------
(2022)07ILR A93
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DINESH PATHAK, J.

Writ C No. 11266 of 2022

C/M Kaasampur Gadhi Kisan Sewa Sahkari
Samiti Ltd., Bijnor & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Uday Pratap Singh, Sri Rakesh Pande
(Senior Adv.)

Counsel for the Respondents:
C.S.C., Sri Sujeet Kumar Rai

A. Civil Law - UP Cooperative Society Act,
1965 - Sections 35 & 65 - Suspension of
Committee of Management - Power, when
can be exercised by the Registrar -
Section 35 (1) contemplates two overt
acts by the Registrar indicating that
proceeding
for
suspension
has
commenced, namely (i) issuance of show
cause notice calling for explanation of the
Committee
of
Management
and
(ii)
obtaining the opinion of general body of
the society in a general meeting called for
the purpose - Non compliance of provision
of S. 35(1) - Effect - Held, the Registrar
though has formed an opinion that
suspension of the petitioner Committee of
Management is necessary, but has not
taken any steps towards supersession of
the Committee of Management - The
impugned order of suspension has been
passed at a premature stage before the
proceeding for supersession has actually
commenced. (Para 7 and 8)
Writ petition allowed. (E-1)
List of Cases cited :-
1. Veerpal Singh Vs The Registrar, Co-operative
Societies, U.P. & ors.; A.I.R. 1973, SC 1249
(Delivered by Hon'ble Manoj Kumar
Gupta, J.
&
Hon'ble Dinesh Pathak, J.)

1. The petitioners have called in
question an order dated 9.3.2022 passed by
respondent no.2, Joint Commissioner and
Joint
Registrar,
Cooperative,
U.P.
Moradabad
Mandal,
Moradabad
suspending the first petitioner, which is
Committee of Management of a primary
agricultural
Cooperative
Society,
in
exercise of power under Section 35 (2) of
the U.P. Cooperative Societies Act, 1965
(hereinafter referred to as 'the Act').
Respondent no.2, while passing the above