# Mohd. Tabib Khan v. State of U.P. and others

- **Citation:** (2007) 3 ILRA 668
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-09-25
- **Case number:** Special Appeal No. 529 of 2006
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-tabib-khan-v-state-of-u-p-and-others-41061
- **Pages:** 11

## Headnote

Sri S.K. Yadav
Sri P.K. Singh
Sri S.S. Sisodiya
Sri R.K. Ojha
S.C.

High Court Rules-Chapter VIII Rule-5Special Appeal- against the Order/
3 All] Mohd. Tabib Khan V. State of U.P. and others
669
judgment by Single Judge-arises out
from the Order passed by the prescribed
Authority
order
25
(1)
of
Society
Registration Act-held-not maintainable.

Held: Para 24

We are in full agreement with the
judgment and order of the Division
Bench of this Court in the case of Jai
Prakash Agarwal (supra) and that the
Full Bench of this Court has not laid
down any law to the controversy in the
case of Sri Kashi Raj Mahavidyalay, Aurai
(supra) and therefore, hold that the
present special appeal which has been
filed under Chapter VIII Rule 5 of the
Allahabad
High
Court
Rules,
1952
against the judgment and order of the
learned Single Judge arising out of an
order of the Prescribed Authority under
Section
25(1)
of
the
Societies
Registration
Act
is
legally
not
maintainable.

## Text

668 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Raj singh's case, and that there are in fact
a large number of such cases where the
records have become untraceable. As
often this exercise is undertaken long after
the record was reported lost, often even
the police papers such as FIR, inquest,
161 Cr. P.C. statements, postmortem
report etc. in the case diary which may
have facilitated reconstruction or re-trial
have also been lost or destroyed or
weeded out, and invariably there is no cooperation from the Counsel for the
accused and even from the prosecution
Counsel or the State, it has enabled guilty
person to escape unpunished, who may
even have been instrumental in the
disappearance of the records in their
cases. We therefore think that the
Registry to issue a circular to all the
district
judges
to
immediately
communicate
to
the
police
stations
concerned where the crime was registered
through S.S.P./S.P.s in charge of the
districts to preserve the police paper and
records in such cases, and ensure that they
are not weeded out or lost or otherwise
destroyed in cases where the trial court
records, especially where foul play may
be suspected. A communication should
also be immediately sent to the High
Court and the Registry for obtaining
immediate
orders
from
the
bench
concerned directing the concerned District
Judges
to
initiate
proceedings
for
reconstruction of the lost record, or retrial so that timely action may be taken for
ensuring compliance of the Apex Court's
orders in Abhai Raj Singh's case in letter
and spirit, and for ensuring that the guilty
do not escape punishment and the process
of justice is not derailed by the
machinations of wily and unscrupulous
accused.

10. We therefore order the Registrar
General to take steps for issuing a circular
to
all
the
District
Judges
for
communication to all subordinate Courts
for compliance on the lines suggested
herein above, and to take the other steps
suggested.

11. Office is also directed to
communicate this order and papers in the
case for re-trial as directed herein above
in the present case to the District Judge
Bareilly within a week who shall try to
get the re-trial completed, if it is possible
within 4 months and report compliance to
this Court.

12. With these observation this
appeal is disposed of.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.09.2007

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Special Appeal No. 529 of 2006

Mohd. Tabib Khan ...Petitioner-Appellant
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri Ashok Khare
Smt. Anita Tripathi

Counsel for the Respondents:
Sri S.K. Yadav
Sri P.K. Singh
Sri S.S. Sisodiya
Sri R.K. Ojha
S.C.

High Court Rules-Chapter VIII Rule-5Special Appeal- against the Order/
3 All] Mohd. Tabib Khan V. State of U.P. and others
669
judgment by Single Judge-arises out
from the Order passed by the prescribed
Authority
order
25
(1)
of
Society
Registration Act-held-not maintainable.

Held: Para 24

We are in full agreement with the
judgment and order of the Division
Bench of this Court in the case of Jai
Prakash Agarwal (supra) and that the
Full Bench of this Court has not laid
down any law to the controversy in the
case of Sri Kashi Raj Mahavidyalay, Aurai
(supra) and therefore, hold that the
present special appeal which has been
filed under Chapter VIII Rule 5 of the
Allahabad
High
Court
Rules,
1952
against the judgment and order of the
learned Single Judge arising out of an
order of the Prescribed Authority under
Section
25(1)
of
the
Societies
Registration
Act
is
legally
not
maintainable.

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This special appeal is directed
against the judgment and order passed by
the learned Single Judge in Writ Petition
No. 18566 of 2006 dated 04/4/2006.

2. Facts giving rise to the present
appeal are Madarsa Jamya Ahley Sunnat
Emdadul Ulum, Matehna, Post Khadsari
Bazar District Siddhartha Nagar is a
society duly registered under the Societies
Registration Act, 1860 (hereinafter called
the "Act 1860"). Elections of the office
bearers of the society are stated to have
taken place in the year 2000. Proceedings
under Section 25(1) of the Act, 1860 were
initiated
by
respondents
4
to
58
questioning the elections so held before
the Prescribed Authority. The dispute was
registered as Misc. Case No. 17 of 2001.
During the pendency of the dispute, the
term of the office bearers expired on
09/10/2005. Prior to the expiry of the term
of the office bearers of the society, fresh
elections are said to have taken place on
25/9/2005. On the strength of the
elections so held the appellant-petitioner
submitted
an
application
dated
06/10/2005 before the Assistant Registrar
Firms Societies and Chits Gorakhpur
Region Gorakhpur seeking renewal of the
registration
of
the
society.
In
the
meantime the Prescribed Authority by
means of his order dated 17/3/2006
answered the reference under Section
25(1) of the Act 1860 and directed that a
copy of the order along with the relevant
file be transmitted to the Assistant
Registrar Firms Societies and Chits
Gorakhpur for appropriate action. Against
this order of the Prescribed Authority the
appellant who claims to be the Manager
of the Committee of Management of the
Madarsa filed Writ Petition No. 18566 of
2006. The learned Single Judge by means
of
his
judgment
and
order
dated
04/4/2006 dismissed the writ petition after
recording that it raises disputed questions
of fact and it is not feasible under Article
226 of the Constitution of India to decide
such disputed issues of fact. Accordingly
the writ petition has been dismissed with
the liberty to the petitioner-appellant to
approach the Civil Court. It is against this
order that the present special has been
filed.

3. A preliminary objection has been
raised on behalf of respondents by Shri
R.K. Ojha, Advocate to the effect that the
present special appeal under Chapter VIII
Rule 5 of the Allahabad High Court
Rules, 1952 is not maintainable inasmuch
as the Prescribed Authority, who has
decided the dispute under Section 25(1) of
the Act 1860, acts as a Tribunal, having
trappings of the Court and therefore, this
670 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Special Appeal against the judgment and
order of the learned Single Judge arising
out of the proceedings from an order of
the Tribunal is legally maintainable in
view of the language of Chapter VIII Rule
5 of the Allahabad High Court Rules
1952. In support of the said submission
reliance has been placed upon the
Division Bench judgement of this Court
in the case of Jai Prakash Agarwal Vs.
Prescribed
Authority
(Sub-Divisional
Magistrate), Sadar, District Deoria &
Ors., (1999) 1 UPLBEC 697.

4. The preliminary objection raised
on behalf of the appellant is answered by
Shri
Ashok
Khare,
learned
Senior
Advocate assisted by Smt. Anita Tripathi
contending that the Division Bench
judgment relied upon by Shri R.K. Ojha
in the case of Jai Prakash Agarwal (supra)
does not lay down the correct law. With
reference to the Full Bench judgement of
this Court in the case of Committee of
Management,
Shri
Kashi
Raj
Mahavidyalaya, Aurai & Anr Vs. Deputy
Director of Education, Vth Region,
Varanasi & Ors., 1997 (29) ALR 417,
Shri Khare submits that the Prescribed
Authority under Section 25(1) of the Act
1860 cannot be treated to be a Tribunal
for the following reasons:

(a) The
proceedings
before
the
Prescribed Authority are summary in
nature, the order passed therein is not
final in as much as it has specifically
been held by the Hon'ble Supreme
Court that the order of the Prescribed
Authority can always be questioned
by way of civil suit.
(b) The Prescribed Authority is not
entrusted
with
inherent
judicial
powers of the State, inasmuch as it
has no authority to;
(i) summon production of witnesses or
for ensuring their attendance;
(ii) to direct recovery/production of
documents.

5. In support of his aforesaid
contentions, Shri Khare has placed
reliance upon the judgments of the Apex
Court in The Bharat Bank, Ltd., Delhi Vs.
The Employees of the Bharat Bank Ltd,
Delhi, AIR 1950 SC 188; Mrs. Sarojini
Ramaswami Vs. Union of India & Ors.,
AIR 1992 SC 2219; Jaswant Sugar Mills
Ltd., Meerut Vs. Lakshmi Chand & Ors.,
AIR 1963 SC 677.

6. Shri R.K. Ojha in the rejoinder
affidavit submits that merely because the
proceedings
before
the
Prescribed
Authority are summary in nature or that
the order of the Prescribed Authority can
be questioned by way of Civil Suit, will
not mean that finality has not been
attached to the order of the Prescribed
Authority
so
far
as
the
Societies
Registration Act is concerned. With
regard to the second contention raised by
Shri Ashok Khare, he submits that the
power to summon the witnesses as well as
to
ensure
discovery/production
of
documents are only few of the factors
relevant for adjudicating upon the issue as
to whether the authority deciding the
dispute
answers
the
description
of
Tribunal or not. He clarifies that even if
the aforesaid two factors are absent while
other relevant factors to be taken into
consideration are present, the authority
deciding
the
dispute
answers
the
description of Tribunal and the aforesaid
two factors are to be ignored.

7. We have considered the rival
submissions made by learned counsel for
the parties and perused the record.
3 All] Mohd. Tabib Khan V. State of U.P. and others
671
8. The issue as what is a Court and a
Tribunal having trapping of the Court and
which authority cannot be held to be
Court, has been considered by the Courts
time and again. A Constitution Bench of
the Hon'ble Supreme Court in The Bharat
Bank Ltd. (supra), examined the issue at
length. The question arose therein as to
whether
the
Industrial
Tribunal
constituted under the Industrial Disputes
Act, 1947 functions as a Court. The
Hon'ble Supreme Court examined the
scheme of the Act 1947 and considered its
earlier judgements and held that as the
Industrial Tribunal has some of the same
powers as are vested in the Civil Court
under the provisions of the Code of Civil
Procedure (hereinafter called the 'CPC')
while trying a suit in respect of the
matters, particularly - (a) enforcing the
attendants of any person and examining
him
on
oath;
(b)
compelling
the
production of documents and material
objects; (c) issuing commissions for
examination of witnesses; (d) in respect of
such other matters as may be prescribed
and every enquiry or investigation by a
Tribunal shall be deemed to be a judicial
proceeding. The Court further held as
under:-

"It is difficult to conceive in view of
these
provisions
that
the
Industrial
Tribunal performs any functions other
than that of a judicial nature. The Tribunal
has certainly the first three requisites and
characteristics of a Court as defined
above. It has certainly a considerable
element of the fourth also inasmuch as the
Tribunal cannot take any administrative
action,
the
character
of
which
is
determined by its own choice."

9. The Court further held that the
fact that the Government has to make a
declaration for enforcing the decision of
the Tribunal final is not, in any way,
inconsistent with the view that the
Tribunal acts judicially and the Court
came to the conclusion that it was a
Court.

10. In Virindar Kumar Satyawadi
Vs. The State of Punjab, AIR 1956 SC
153,
the
Hon'ble
Supreme
Court
considered the issue as to whether the
Returning Officer deciding the validity of
nomination paper under the provisions of
the Representation of People Act, 1951 is
a Court for the purposes of Section 195 of
the Code of Criminal Procedure or not.
The
Supreme
Court
examined
the
provisions of the Representation of
People Act, 1951 and made a distinction
between the quasi judicial Tribunal and
administrative authority observing that a
quasi judicial Tribunal is charged with a
duty to decide disputes in a judicial
manner and declare the rights of parties in
a definitive judgment. Such decisions
involve entitlement of the parties as a
matter of right to be heard in support of
their claim and adduce evidence in
support thereof. The authorities are under
legal obligation to decide the matter on
consideration of the evidence adduced
and in accordance with law. The Court
held that the Returning Officer has to
examine the nomination form and decide
all objections which may be made thereto.
The power was of a judicial nature but as
in the said case parties have no right to
insist on producing evidence which they
desire and there was no machinery
provided for summoning of witnesses or
for compelling production of document in
an enquiry and there was no lis in which
persons
with
opposite
claims
were
entitled to have their rights adjudicated in
672 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
a judicial manner. The Returning Officer
was not functioning as a Court.

11. A Constitution Bench of Hon'ble
Supreme Court in Associated Cement
Companies Ltd. Vs. P.N. Sharma &
Anr., AIR 1965 SC 1595, examined the
issue as to whether the State Government
while exercising the appellate jurisdiction
under Rule 6(6) of the Punjab Welfare
Officers Recruitment and Conditions of
Service Rules, 1952, was a Tribunal. The
Court examined the scheme of the said
Rules and held that the requirement of a
procedure which are followed in Courts
and possession of subsidiary powers
which are given to Courts to try the cases
before them, are described as Trappings
of the Courts, and so, it may be conceded
that these trappings are not shown to exist
in the case of the State Government while
hearing the appeals under the said Rules.
However, the Court observed as under:-

"The presence of some of the
trappings may assist the determination of
the question as to whether the power
exercised
by
the
authority
which
possesses the said trappings, is the
judicial power of the State or not. The
main and the basic test, however, is
whether the adjudicating power which a
particular authority is empowered to
exercise, has been conferred on it by a
Statute and can be described as a part of
the State's inherent power exercise in
discharging its judicial function."

12. Again a Constitution Bench of
the
Hon'ble
Supreme
Court
in
Engineering Mazdoor Sabha & Anr. Vs.
Hind Cycles Ltd., AIR 1963 SC 874,
considered the similar issue and observed
that the Court can compel witnesses to
appear, they can administer oath to them,
they are required to follow certain rules of
procedure; the proceedings before them
are required to comply with rules of
natural justice, they may not be bound by
the strict and technical rules of evidence,
but, nevertheless, they must decide on
evidence adduced before them; they may
not be bound by other technical rules of
law,
but
their
decisions
must,
nevertheless, be consistent with the
general principles of law. In other wards,
they have to act judicially and reach their
decisions in an objective manner and they
cannot proceed purely administratively or
base their conclusions on subjective tests
or
inclinations.
These
are
the
characteristics if found in an authority, it
can be described as a Court or Tribunal.
However, the basic test is that the
authority/Tribunal should be constituted
by the State and should be invested with
the State's inherent judicial power.

13. A Constitution Bench of the
Hon'ble Supreme Court in Indo-China
Steam Navigation Co. Ltd. Vs. Jasjit
Singh, Additional Collector of Customs,
Calcutta & Ors., AIR 1964 SC 1140,
considered the issue as to whether the
authority under Section 167 of the Sea
Customs Act was a Court or Tribunal and
came to the conclusion that while
determining such an issue, the Court must
examine briefly the procedure prescribed
by the Act in relation to the adjudications
made under its provisions, and as to
whether such authorities are constituted
by
the
Legislature
and
they
are
empowered to deal with the disputes
brought
before
them
by
aggrieved
persons. Thus, the scheme of the Act, the
nature of proceedings brought before the
appellate or revisional authorities, the
extent of the claim involved, the nature of
the penalties imposed and the kind of
3 All] Mohd. Tabib Khan V. State of U.P. and others
673
enquiry which the Act contemplates, all
indicate that both the appellate and the
revisional authorities acting under the
relevant provisions of the Act constitute
Tribunal because they are invested with
the judicial power of the State and are
required to act judicially.

14. In Thakur Jugal Kishore Sinha
Vs. The Sitamarhi Central Co-operative
Bank Ltd. & Anr., AIR 1967 SC 1494, the
question arose as to whether the Assistant
Registrar discharging functions of the
Registrar under Section 48 of the Bihar
and Orissa Co-operative Societies Act,
1935 was a Court and any contempt there
of could be dealt with under the
provisions of the Contempt of Courts Act,
1952.The Court placed reliance upon the
judgment of this Court in Raja Himanshu
Dhar Singh Vs. Kunwar B.P. Sinha, 1962
ALJ 57 where the disputes arose with
certain resolutions passed by the Hind
Provincial Flying Club, which was
referred
to
the
Registrar
of
the
Cooperative
Societies
under
the
provisions of the U.P. Cooperative
Societies Act, 1965 and the Registrar
delegated his power to the Assistant
Registrar to arbitrate in the matter. The
Assistant Registrar issued an injunction
that no further meeting should be called
and the said direction was disobeyed. This
Court held that only those arbitrators can
be deemed to be Courts who are
appointed through a Court and not those
arbitrators who function without the
intervention of a Court. The Hon'ble
Supreme Court came to the conclusion
that
the
Assistant
Registrar
was
functioning as a Court in deciding a
dispute between the parties.

15. In Ramrao & Anr. Vs. Narayan
& Anr., AIR 1969 SC 724, again a
question arose regarding the provisions of
the Maharastra Co-operative Societies Act
and the Hon'ble Supreme Court referred
to and relied upon the Halsebury's Law of
England, wherein it has been observed as
under:-

"Originally the term "Court" meant,
among other meanings, the Sovereign's
place; it has acquired the meaning of the
place where justice is administered and,
further, has come to mean the persons
who exercise judicial functions under
authority derived either immediately or
mediately
from
the
Sovereign.
All
tribunals, however are not courts, in the
sense in which the term is here employed,
namely, to denote such tribunals as
exercise jurisdiction over persons by
reason of the sanction of the law, and not
merely by reason of voluntary submission
to their jurisdiction. Thus, arbitrators,
committees of clubs, and the like although
they may be tribunals exercising judicial
functions, are not "Courts" in this sense of
that term. On the other hand, a tribunal
may be a court "in the strict sense of the
term although the chief part of its duties is
not judicial. Parliament is a Court. Its
duties
are
mainly
deliberative
and
legislative: the judicial duties are only
part of its functions."
In Article 810 it is stated:
"In determining whether a tribunals
is a judicial body the facts that it has been
appointed by a non-judicial authority, that
it has no power to administer an oath that
the chairman has a casting vote, and that
third parties have power to intervene are
immaterial, especially if the statute setting
it up prescribes a penalty for making false
statements; elements to be considered are
(1) the requirement for a public hearing,
subject to a power to exclude the public in
a proper case, and (2) a provision that a
674 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
member of the tribunal shall not take part
in any decision in which he is personally
interested or unless he has been present
throughout the proceedings.
A tribunal is not necessarily a Court
in the strict sense of exercising judicial
power because (1) it gives a final
decision, (2) hears witnesses on oath; (3)
two or more contending parties appear
before it between whom it has to decide;
(4) it gives decisions which affect the
rights of subjects; (5) there is an appeal to
a Court; and (6) it is a body to which a
matter is referred by another body. Many
bodies are not courts although they have
to decide questions, and in so doing have
to act judicially, in the sense that the
proceedings must be conducted with
fairness and impartiality."

16. The Court came to the
conclusion that the Registrar was not
entrusted with the judicial power of the
State, therefore, he was not a Court.

17. In Keshab Narayan Banerjee Vs.
State of Bihar & Ors., AIR 2000 SC 485,
while determining a similar issue, the
Hon'ble Supreme Court referred to and
relied upon a large number of its earlier
judgments including Harinagar Sugar
Mills
Ltd.
Vs.
Shyam
Sunder
Jhunijhunwala & Ors., AIR 1961 SC
1669; and Canara Bank Vs. Nuclear
Power Corporation of India Ltd. & Ors.,
1995 Supp. (3) SCC 81 and after
examining the provisions of the Act
involved herein, came to the conclusion
that he lacked the essential attributes of
evidence which a Civil Court possesses,
thus, considering the nature of jurisdiction
and extent of power conferred on him,
undoubtedly it was not a Court, though
certain powers of the Code of Civil
Procedure had also been conferred upon
him.

18. In K. Shamrao & Ors. Vs.
Assistant Charity Commissioner, (2003) 3
SCC 563, the Hon'ble Supreme Court
while examining the provisions of the
Bombay Public Trusts Act, 1950 in
respect of the duties assigned to Assistant
Charity Commissioner under the said Act
has held that Section 73 of the Act, he had
been given the powers of the Code of
Civil Procedure to take evidence by
affidavits, summoning and enforcing the
attendance of any person and examining
him on oath; ordering discovery and
inspection, and compelling production of
documents, examining witnesses on oath,
and issuing commission etc. and its
judgments were held to be final unless set
aside by the Court on application or by
the High Court in appeal and the
jurisdiction of the Civil Court had been
barred in matters decided by the Deputy
or Assistant Charity Commissioner or the
Charity Commissioner. It was held that
the Charity Commissioner was a Court for
the purposes of the provisions of the
Contempt of Courts Act, 1971.

19. In view of the above, the law can
be summarised that if a Tribunal has been
constituted by the State and it exercises
the inherent judicial power of the State, it
is a Court, even if some of the trappings
of the Court are not found therein.

20.

In
the
aforesaid
legal
background following three issues need
determination by this Court:
(A) Whether the order passed by the
Prescribed Authority under Section 25 (1)
of the Act 1860 is final so far as the
provisions of the Act are concerned or
not;
3 All] Mohd. Tabib Khan V. State of U.P. and others
675
(B) Whether the order of the Prescribed
Authority having being held to be subject
to the order of suit proceedings has the
effect of declaring that the order is not
final between the parties; and
(C) Whether in absence of powers to
ensure the attendance of witnesses and to
direct
discovery
and
production
of
documents, Prescribed Authority can be
said to be vested with judicial powers of
the State so as to hold that it was a
Tribunal, having trapping of the Court.

21. Since counsel for the parties
have placed reliance upon the same Full
Bench judgment of this Court in the case
of Committee of Management, Shri Kashi
Raj
Mahavidyalaya
(supra),
it
is
appropriate to refer to law as explained
under the judgment qua maintainability of
Special Appeals under Chapter VIII Rule
5 of the Allahabad High Court Rules
1952. In paragraph 9 of the said judgment
it has been held as follows:

"The rationale behind exclusion of
special appeal in respect of a decree or
order made by a court is that once a
decision
has
been
rendered
by
a
competent court of jurisdiction, one
challenge in the High Court against such
decree or order should be enough, so far
as the High Court is concerned and
finality should attach to that decision even
if the decision has been rendered by a
learned Single Judge of the High Court.
Since the tribunals also discharge similar
functions of deciding disputes acting
judicially, as is done by the courts and
they enjoy the same status as the Courts
do, as the tribunals have also been
entrusted with inherent judicial powers of
the State, there is no reason why the same
reason should not apply for exclusion of
special appeal in respect of order of a
tribunal. Therefore, a tribunal within
the meaning of rule 5 must be an
authority which is required to act
judicially and which has been entrusted
with the inherent judicial powers of the
State."

22. Reference may also be made to
paragraph 17 of the aforesaid Full Bench
judgment wherein after referring to the
judgment of the Apex Court in the case of
Jaswant Sugar Mills Ltd. (supra) and Mrs.
Sarojini Ramaswami (supra) it has been
laid down:

"It would appear that to determine
the question whether an authority is a
tribunal, the nature of the order passed
by
the
authority
and
also
the
characteristic of the body which is
called upon to adjudicate upon the
matter
in
dispute
are
material
considerations. Even a judicial authority
may, in a given situation, act in
administrative or executive capacity. In
that situation the authority would not be a
tribunal.
Likewise
an
administrative
authority, even if required to act judicially
would not be a tribunal if it is not invested
with the inherent judicial power of the
State."

23. The Full Bench of this Court
thereafter proceeded to hold that an order
passed under Section 16-A (7) lacks
finality or conclusiveness in nature which
is associated with the decisions of Court
and Tribunal, therefore, the special appeal
against an order under Section 16-A (7)
has been held to be maintainable.

The Division Bench of this Court in
the case of Jai Prakash Agarwal (supra)
after examining the said Full Bench
judgment of this Court held as under:
676 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
"Now if the aforesaid test is applied
to the prescribed authority under Section
25 of the Act, there remains no doubt that
it is a tribunal. Under Section 25
Prescribed Authority decides important
dispute of election and continuance in
office of an office-bearer, which is
essentially a dispute of civil nature. The
order passed by the Prescribed Authority
though has not been said to be final in
specific words but sub-section (2) of
Section 25 of the Act specifically
provides that where by an order made
under sub-section (1), an election is set
aside or an office-bearer is held no longer
entitled to continue in office or where the
Registrar is satisfied that any election of
office-bearers of a society has not been
held within the time specified in the Rules
of that society, he may call meeting of the
general body of such society for electing
such office bearer or office bearers, and
such meeting shall be presided over and
be conducted by the Registrar or by any
officers authorised by him in this behalf,
and the provisions in the Rules of the
society relating to meetings and elections
shall apply to such meeting and election
with necessary modifications. Thus the
provisions contained in sub-section (2)
of Section 25 of the Act provide that if
the election is set aside by the
Prescribed Authority a fresh election is
required to be held by the Registrar.
This is sufficient indication that the
order is final. The Prescribed Authority
is also required to hear and decide in
summary manner any doubt or dispute
in respect of the election. Thus the
order has to be passed after hearing
parties and giving them opportunity to
adduce evidence. From the provisions
contained in proviso, it is clear that he
decides the dispute in exercise of
inherent judicial powers of the State
vested in him by the notification.
Learned Counsel for the appellant
submitted that the order of the Prescribed
Authority is not final and suit can be filed
challenging the same, hence he decides
the dispute administratively and not
judicially. We are not prepared to accept
this submission. Prescribed Authority
under Section 25 of the Act decides the
dispute judicially and in exercise of the
inherent judicial powers of the State.
This position is not in any way diluted
because against the order of the
Prescribed Authority a suit may be
filed in the Civil Court. If this test is
accepted then no Court can exercise
inherent judicial power of the State
because orders can be challenged in
appeal or revision or before this Court
under Article 226 of the Constitution.
Finality of the order has to be judged from
the effect of it on the rights of parties, if
the order is not challenged further. In such
a situation, it should finally resolve the
dispute between parties. In our considered
opinion, the Prescribed Authority is a
tribunal and possesses the trappings of the
Court. A Division Bench of this Court in
All India Council and another (supra),
held in paragraphs No. 6 and 7 as under:-
"The petitioners are clearly right.
Section 25 of the Societies Registration
Act as amended by the State Legislature
enacts a comprehensive code and creates
a designated forum or tribunal for
adjudication in a summary manner of all
disputes or doubts in respect of the
election or continuance in office of an
office-bearer of such society. It also
provides the grounds upon which the
election of an office-bearer can be set
aside. The procedure to be followed for
filling up of the vacancies arising from
the decisions rendered by the Prescribed
3 All] Mohd. Tabib Khan V. State of U.P. and others
677
Authority under sub-section (1) of S. 25
has also been laid down [S. 25 (2)].
It will therefore, be seen that insofar
as disputes or doubts in respect of the
election or continuance in office of the
office-bearers of a society registered in
Uttar
Pradesh
are
concerned
the
Legislature has created a specific forum
and laid down an exhaustive procedure
for determination of the same under S. 25.
There is no other provisions, express or
otherwise, providing for determination of
such disputes specifically. It is settled
law that where, as here, the legislature
creates a specific forum and lays an
exhaustive procedure for determination
of a particular class of disputes in
respect of matters covered by the
statute. Such disputes can be determined
only in that forum and in the manner
prescribed thereunder and not otherwise.
If, therefore, a dispute is raised with
regard to the election or continuance in
office of an office-bearer of a society
registered in Uttar Pradesh, the same, has
to be decided only by the Prescribed
Authority under Section 25(1) and not by
the Registrar, save, of course, to the
decision of the Prescribed Authority being
subject to the result of a civil suit."
In case of Prabhat Mishra and others
(supra) relied on by the learned Counsel
for appellant, the learned Single Judge
was examining the question whether
Section 25 has taken away the jurisdiction
to adjudicate the dispute relating to
election of office-bearers of the society
and in that connection, the learned Single
Judge held that the suit is maintainable.
The question whether the Prescribed
Authority is a tribunal or not was not
involved before the learned Single Judge
and the judgment does not help appellant
in any manner. What we have held above,
we also find support from the Division
Bench judgment of this Court in case of
Sudarsan Singh Bedi (supra). In fact by
substituting Sec. 25 in the Act in
present
form,
legislature
has
constituted an election tribunal for
resolving
the
election
disputes
of
societies registered under the Act and
disputes regarding continuance of the
office-bearers of such societies, though
nomenclature
given
is
Prescribed
Authority.
The jurisdiction of
this
tribunal can be invoked either under a
reference made by Registrar of by ??
members of general body of society, as
provided under Section 25 (1) of the Act.
Individual members of the society have
been, it appears, intentionally excluded
and have not been given right to invoke
the jurisdiction of tribunal, only to avoid
multiplicity of proceedings and frivolous
litigation. Considering the fact that
generally
societies
consist
of
large
number of members such a step was very
necessary. Considered from all possible
angles the conclusion, which appears just
and proper, is that prescribed authority is
a tribunal."

We may, add few of our reasons also for
the conclusion that:
(A) The order passed by the
Prescribed
Authority
passed
under
Section 25(1) of the Act 1860 is final so
far as the Act of 1860 is concerned. It
may be recorded that once an order under
Section 25(1) is passed by the Prescribed
Authority recognising a set of elections, it
automatically follows that the list of
office bearers so recognised has to be
registered under Section 4 of the Act 1860
by the Assistant Registrar. Similarly, if
the elections are disapproved any list of
office bearers earlier registered under
Section 4 of the Act, would lose its
sanctity by operation of the order passed
678 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
under Section 25(1) of the Act 1860. The
Act 1860 does not contemplate any appeal
or revision against the order of the
Prescribed
Authority
passed
under
Section 25(1). The right to seek renewal
of the Registration of the Society to make
amendments in the bye-laws etc., can be
affected by the office bearers those
elections are approved by the Prescribed
Authority under Section 25(1) of the Act
of 1860. Therefore, it cannot be disputed
by any stretch of imagination that the
order passed under Section 25(1) of the
Act 1860 in respect of right to be the
office bearers of the Society is final and
conclusive so far as the Act of 1860 is
concerned.

(B) Merely because the order of the
Prescribed Authority being subject to the
orders of the Civil Court would not mean
that the order has not attained finality so
far as the Statute under which order has
been passed. Civil Suits under the
provisions of Civil Procedure Code are
maintainable in respect of civil wrongs,
except when prohibited under Section 9 of
the Civil Procedure Code or by the
provisions of Specific Relief Act or by a
statutory enactment express or implied in
that regard. Therefore, merely because an
order of the Prescribed Authority under
Section 25(1) can be challenged by way
of civil suit, will not mean that the order
has not attained finality so far as the Act
1860 is concerned.

(C)
The
power
of
ensuring
attendance of witnesses and to direct for
discovery/production
of
documents,
though not conferred upon the Prescribed
Authority, suffice are only few of the
indices relevant for deciding as to whether
the authority has exercised judicial
powers of the State or not. They are not
conclusive in themselves. It is settled
legal proposition that even if few of the
indices qua trappings of the Court are
present the authority statutory vested with
a judicial power to decide a dispute
between two persons as a part of states
inherent power it exercises judicial
functions so as to answer the description
of a Tribunal having trappings of the
Court.

24. We are in full agreement with
the judgment and order of the Division
Bench of this Court in the case of Jai
Prakash Agarwal (supra) and that the Full
Bench of this Court has not laid down any
law to the controversy in the case of Sri
Kashi Raj Mahavidyalay, Aurai (supra)
and therefore, hold that the present special
appeal which has been filed under
Chapter VIII Rule 5 of the Allahabad
High Court Rules, 1952 against the
judgment and order of the learned Single
Judge arising out of an order of the
Prescribed Authority under Section 25(1)
of the Societies Registration Act is legally
not maintainable.

25. The Special Appeal is dismissed
as not maintainable. Interim order, if any,
stands vacated.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2007

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

First Appeal From Order No. 594 of 2003

The New India Assurance Company Ltd.

...Appellant
Versus
Jagdish Singh and others ...Respondents