# Shambhoo Narain Yadav & Anr v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 600
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-04-02
- **Case number:** Civil Misc. Writ Petition No.19288 of 2014
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shambhoo-narain-yadav-anr-v-state-of-u-p-ors-42837
- **Pages:** 4

## Headnote

Societies Registration Act, 1860-Section
25(i)- Power of prescribed authority-to
decide
controversy-through
summary
proceeding and take final decision-no
authority to pass interim order-in absence
of statutory provision-order granting stayheld-without jurisdiction-quashed.

Held: Para-16
In the present case reference was made
under section 25(1) of the 'Act 1860' by a
member. The Prescribed Authority on the
reference itself has passed an exparte and
cryptic order staying the operation of the
order passed by the Assistant Registrar
dated 23.1.2014 and 6.3.2014. In absence
of power to grant an interim order, the
order of the Prescribed Authority is without
jurisdiction. It is liable to be set aside.
Accordingly, it is set aside.

Case Law discussed:
1982 UPLBEC 82; (1994) 4 SCC 225.

## Text

600 INDIAN LAW REPORTS ALLAHABAD SERIES

13. It is to be seen that under Article
329(b) of the Constitution of India there is
a
specific
prohibition
against
any
challenge to an election either to the
Houses of Parliament or to the Houses of
Legislature of the State except by an
election
petition
presented
to
such
authority and in such manner as may be
provided for in a law made by the
appropriate legislature. Parliament has by
enacting the Representation of the People
Act, 1951 provided for such a forum for
questioning such elections hence, under
Article 329(b) no forum other than such
forum constituted under the RP Act can
entertain a complaint against any election.

14. The word "election" has been
judicially defined by various authorities
of this Court to mean any and every act
taken by the competent authority after the
publication of the election notification.

..................... 23. The next argument of
learned counsel for the respondent is that as
per the provisions of section 36 of the
Representation of the People Act, Rule 4 of
the Conduct of Elections Rules, 1961 and
clause
13
of
the
Election
Symbols
(Reservation and Allotment) Order, 1968,
the omissions found by the Returning Officer
in Form B filed by the respondent herein are
all curable irregularities and are not defects
of substantial nature, calling for rejection of
the nomination paper. We think these
arguments based on the provisions of the
statutes, rules and orders are all arguments
which can be addressed in a properly
constituted election petition, if need be, and
cannot be a ground for setting aside the order
of the Returning Officer which is prima facie
just and proper, in our opinion."

12. For these reasons, we are not
inclined to entertain the petition. The
petition is, accordingly, dismissed. There
shall be no order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2014

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No.19288 of 2014

Shambhoo Narain Yadav & Anr. Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri S.M. Misra

Counsel for the Respondents:
C.S.C., Sri B.P. Singh, Sri Shiv Nath
Singh,Sri Rajesh Kumar

Societies Registration Act, 1860-Section
25(i)- Power of prescribed authority-to
decide
controversy-through
summary
proceeding and take final decision-no
authority to pass interim order-in absence
of statutory provision-order granting stayheld-without jurisdiction-quashed.

Held: Para-16
In the present case reference was made
under section 25(1) of the 'Act 1860' by a
member. The Prescribed Authority on the
reference itself has passed an exparte and
cryptic order staying the operation of the
order passed by the Assistant Registrar
dated 23.1.2014 and 6.3.2014. In absence
of power to grant an interim order, the
order of the Prescribed Authority is without
jurisdiction. It is liable to be set aside.
Accordingly, it is set aside.

Case Law discussed:
1982 UPLBEC 82; (1994) 4 SCC 225.

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)
2 All] Shambhoo Narain Yadav & Anr. Vs. State of U.P. & Ors.
601

1. The petitioners are two in
number. They claim to be the member of
the Society namely Chak Chaubey Palya
Development Block Higher Education
Expansion
Association,
Pakardiha
,
district Azamgarh, which is registered
under the Societies Registrar Act, 1860
(Act No. 21 of 1860) (for short
'Act,1860').

2. Petitioners are aggrieved by the
order of the prescribed Authority whereby
he has granted an interim order. The
grievance of the petitioners is that under
section 25 (1) of the 'Act 1860'. the
Prescribed Authority does not have power
to pass an interim order.

3. Brief reference to the factual
aspects would suffice.

4. A Society namely Chak Chaubey
Palya
Development
Block
Higher
Education
Expansion
Association,
Pakardiha
,
district
Azamgarh
(
hereinafter referred for the sake of brevity
as Society) was registered in the year
1975. It has established an educational
institution namely Junior High School,
Chak
Chaubey
(Palya)
Pakardeeha,
district Azamgarh. It is recognized by the
U.P.Basic Education Act, 1962. The
institution does not receive any aid out of
State Fund.

5. It is stated that the last renewal of
the Society was made on 8.12.2010 for
five years on the papers submitted by one
Sri Ram Dayal Yadav. Earlier one Lalji
Yadav had also moved application for
renewal claiming himself as the Manager
of the Society. In view of the conflicting
claim by two rival factions the Assistant
Registrar, Firms, Societies and Chits
referred the matter to the Prescribed
Authority under section 25 (1) of the 'Act
1860'. The Prescribed Authority vide his
order dated 26.4.2010, recognized the
election of the faction headed by Ram
Dayal Yadav. It is avered in the writ
petition that the last election of the
Managing Committee was held on 10th
August, 2008. The next election was due
in the year 2011. Due to the rival claims
the election could not be held, therefore,
the Assistant Registrar exercising his
power under section 25(2) of the 'Act
1860' published a tentative list of
members of the general body and he
invited objection by 28.2.2014.

6. It is stated that after receiving the
objection he determined the list of the
office bearers and 32 members were
found to be valid members. The Assistant
Registrar vide order dated 6.3.2014 also
deputed the District Basic Education
Officer, Azamgarh as the Election Officer
to hold the fresh election. It is stated that
one of the alleged member with a view to
delay the election proceedings moved an
application
before
the
Prescribed
Authority under section 25(1) of the 'Act
1860' challenging the order of the
Assistant Registrar dated 23.1.2014. On
the
same
reference
the
Prescribed
Authority has stayed the order of the
Assistant
Registrar
dated
23.1.2014
inviting application of the tentative list
and 6.3.2014 whereby he had determined
32 members as valid members of the
general body.

7. I have heard Sri S.M.Mishra,
learned counsel for the petitioner, Sri B.P.
Singh learned counsel for the respondent
no.4 and Sri S.N.Singh, learned counsel
appearing for respondent no.5. Learned
Standing Counsel has accepted notice on
behalf of the State authorities.
602 INDIAN LAW REPORTS ALLAHABAD SERIES

8. In view of the fact that no factual
controversy is involved in the writ
petition. Only question of law has been
raised by learned counsel for the
petitioner. No counter affidavit is needed
in the matter. The writ petition is
accordingly being finally disposed of in
terms of the Rules of the Court.

9. Sri S.M.Mishra, learned counsel for
the petitioner submits that under section 25
(1) of the Societies Registration Act, 1860
(Act No. 21 of 1860) (for short 'Act,1860'),
the Prescribed Authority has no power to
grant any interim order. He submits that
under section 25 (1) the Prescribed Authority
has been empowered only to decide the
dispute in regard to election of the office
bearers which is referred to him by the
Registrar or by atleast 1⁄4 members of the
Society.

10. Learned counsel for the
respondents submits that it shall be
deemed that Prescribed Authority has
ancillary power to pass an interim order
also.

11. I find it helpful to extract section
25(1) of the 'Act 1860' hereunder below:-

"25.Dispute regarding election of
office
bearers.-(1)
The
prescribed
authority may, on a reference made to it
by the Registrar or by at least one-fourth
of the members of a society registered in
Uttar Pradesh, hear and decide in a
summary manner any doubt or dispute in
respect of the election or continuance in
office of an office bearers of such society,
and may pass such orders in respect
thereof as it deems fit :"

12. From a careful reading of the said
section it is evident that Section 25(1) of
the 'Act 1860' confers power to the
Prescribed Authority to decide the dispute of
the office bearers of the Society. He is
required to decide the matter summarily. The
State Government has not framed any rule to
lay down the procedure for hearing and
decide the dispute. He is required to decide
any doubt or dispute in respect of the election
of an office bearers. The proviso and
explanation provides the ground on which
the election can be set aside.

13. It is true that Section 19-A of the
General Clauses Act , 1904 provides an
ancillary power to a person/ Officer or
Functionaries to enforce doing all such
acts, or thing. All such powers shall be
deemed to be given as necessary to enable
the person to do or enforce the doing of
act or thing. From perusal of Section
25(1) of the 'Act 1860' it is not
discernable any such power conferred on
the Prescribed Authority. This issue fell
for consideration of a Division Bench of
this
Court
in
Meerut
Collegiate
Association, Meerut and others v. Sri
Arvind Nath Seth and others, reported
(1982 UPLBEC 82). The Division Bench
has considered the effect of Section 19-A
of the U.P. General Clauses Act, 1904 and
has also considered the similar provision
under section 95 of the U.P. Panchayat
Raj Act, 1947 and section 17 of the Arms
Act, 1959. The Division Bench has also
considered Section 7-F of the U.P.
(Temporary) Control of Rent and Eviction
Act, 1947 and Section 254 of the Income
Tax Act, 1961. After considering the said
provisions of the Act and the power of
Section 25(1) of the 'Act 1860', the Court
came to hold that Prescribed Authority
while deciding the dispute under section
25(1) of the 'Act 1860' has no power to
pass an interim order. The Court has held
as
under
:-
2 All] Z.U. Ansari Vs. The State of U.P. & Ors.
603

"Applying the principles enunciated
in the decision referred to above, it is not
possible to say that for hearing and
deciding any doubt or dispute in regard to
the election of the office bearer of the
petitioner committee it was absolutely
necessary for the Prescribed Authority to
stay the functioning of the committee
pending decision of the reference and
further more so when the proceeding are
summary in nature. The impugned order,
therefore, is liable to be quashed."

14. The Supreme Court in the case
of Morgan Stanley Mutual Fund v.
Kartick Das reported (1994) 4 SCC 225,
has considered the issue whether the
Consumer Dispute Redressal Forum has
power to pass an interim order. The Court
analyzing the provisions of Section 14 of
the Consumer Protection Act, 1986 found
that the said section does not empower the
Tribunal to pass any interim relief.
Paragraph 44 of the judgment reads as
under :-

" A careful reading of the above
discloses that there is no power under the
Act to grant any interim relief of (sic or)
even an ad interim relief. Only a final
relief could be granted. If the jurisdiction
of the Forum to grant relief is confined to
the four clauses mentioned under section
14, it passes our comprehension as to how
an interim injunction could ever be
granted disregarding even the balance of
convenience."

15. In view of the aforestated legal
position, I am of the view, that Prescribed
Authority does not have any power to
pass an interim order.

16. In the present case reference was
made under section 25(1) of the 'Act
1860' by a member. The Prescribed
Authority on the reference itself has
passed an exparte and cryptic order
staying the operation of the order passed
by the Assistant Registrar dated 23.1.2014
and 6.3.2014. In absence of power to
grant an interim order, the order of the
Prescribed
Authority
is
without
jurisdiction. It is liable to be set aside.
Accordingly, it is set aside.

17. Writ petition is allowed.

18. The Prescribed Authority is
directed to decide the Reference in
accordance with law. The order is also
without prejudice to the rights and
contention of the parties.

19. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.02.2014

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Civil Misc. Writ Petition No.19485 of 2012

Z.U. Ansari ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sawan Kumar Srivastava, Sri Anil Kumar
Srivastava,Sri
Chandrajeet
Tiwari,
V.S.
Tiwari.

Counsel for the Respondents:
C.S.C., Sri Pankaj Saxena.

Civil Services Regulation-351-A-Petitioner
working as Assistant Engineer-retired on
30.09.2008-after three years of retirement
charge sheet on 27.06.2011-without prior
sanction from Governer-defence taken by