# Shree Arya Mahila Hitakarini Mahaparishad, Varanasi & Anr v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1443
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-19
- **Case number:** Writ-C No. 9252 of 2023
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shree-arya-mahila-hitakarini-mahaparishad-varanasi-anr-v-state-of-u-p-ors-50117
- **Pages:** 5

## Headnote

Civil Law - Constitution of India, 1950 -
Article - 226 - Societies Registration Act,
1860 - Bye Laws of Society - 29 & 35 : -
Writ Petition - impugned order - two elections
were counted by the rival parties to the society
- writ petition - Special Appeal - remanded
back the matter before the Prescribed Authority
- who has upheld the election set up by the
respondent no. 4 and invalidated the election
claim of the petitioners - court finds that,
prescribed authority in the impugned order
considered the interplay of bye laws of the
society - namely bye laws no. 29 and 35 to
determine the legality of the meeting called
for election - court finds that, Bye law no.
35 is especial provision made for a specific
purpose, while Bye Law no. 29 is a general
provision created for all others purposes -
Good authorities in law settled the cannon of
interpretation that the special law prevails
over the general law - hence, an election
meeting shall be governed and regulated
only by Bye Laws no. 35 - and the next
issue regarding venue of the meeting was in
the teeth of the holding of the learned
Division Bench - further, there is no issue
about the electoral college - consequently,
impugned order is liable to be set aside and
matter is remitted to the Assistant Registrar,
Firms, Societies and Chits to conduct the
election in a fair and transparent manner -
writ petition is allowed - directions issued
accordingly.

Writ Petition Allowed. (E-11)

List of Cases cited:

## Text

5 All. Shree Arya Mahila Hitakarini Mahaparishad, Varanasi & Anr. Vs. State of U.P. & Ors.
1443
land to petitioner on the said date. The
decision in Adarsh Seva Sahkari Samiti
Ltd. (supra) is not applicable to the facts of
this case.

24. In view of the above discussion,
the petition is allowed. We direct the
concerned revenue authorities to delete the
endorsement contained in the remarks
column of the Khatauni, regarding land
being surplus under the Ceiling Act, copy
of which is annexed as Annexure 1 and
restore the name of the petitioner in respect
of the land in question in the revenue
record, so far as his share therein is
concerned. This is without prejudice to the
rights of any third person who may have a
claim against the petitioner.

25. The original records which were
produced and were retained by the Court,
are returned herewith to the counsel for the
State.
----------
(2023) 5 ILRA 1443
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ-C No. 9252 of 2023

Shree
Arya
Mahila
Hitakarini
Mahaparishad, Varanasi & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Dr. Pradeep Kumar Mishra, Sri Shivendu
Ojha, Sri Radhakant Ojha (Sr. Adv.)

Counsel for the Respondents:
C.S.C., Ms. Vishakha Pande, Sri Ashok
Kumar Singh, Sri Rakesh Pande (Sr. Adv.)

Civil Law - Constitution of India, 1950 -
Article - 226 - Societies Registration Act,
1860 - Bye Laws of Society - 29 & 35 : -
Writ Petition - impugned order - two elections
were counted by the rival parties to the society
- writ petition - Special Appeal - remanded
back the matter before the Prescribed Authority
- who has upheld the election set up by the
respondent no. 4 and invalidated the election
claim of the petitioners - court finds that,
prescribed authority in the impugned order
considered the interplay of bye laws of the
society - namely bye laws no. 29 and 35 to
determine the legality of the meeting called
for election - court finds that, Bye law no.
35 is especial provision made for a specific
purpose, while Bye Law no. 29 is a general
provision created for all others purposes -
Good authorities in law settled the cannon of
interpretation that the special law prevails
over the general law - hence, an election
meeting shall be governed and regulated
only by Bye Laws no. 35 - and the next
issue regarding venue of the meeting was in
the teeth of the holding of the learned
Division Bench - further, there is no issue
about the electoral college - consequently,
impugned order is liable to be set aside and
matter is remitted to the Assistant Registrar,
Firms, Societies and Chits to conduct the
election in a fair and transparent manner -
writ petition is allowed - directions issued
accordingly.

Writ Petition Allowed. (E-11)

List of Cases cited:

1. Writ - C No. 20203/2022 (Shree Arya Mahila
Hitakarini Mahaparishad & anr. Vs St. of UP &
ors.) decided on Dated 20.10.2022,

2. Special Appeal No. 692/20222 (Dr. Shashi
Kant Dixit Vs St. of UP & ors.) decided on Dated
16.12.2022.

(Delivered by Hon'ble Ajay Bhanot, J.)
1444 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Heard Sri Radhakant Ojha, learned
Senior Counsel assisted by Dr. Pradeep
Kumar Mishra, learned counsel for the
petitioners and Sri Rakesh Pande, learned
Senior Counsel assisted by Ms. Vishakha
Pande, and Sri Ashok Kumar Singh,
learned counsel for the respondent no. 4.

2. By the impugned order dated
27.02.2023 passed by the Prescribed
Authority/Joint
Magistrate/Upziladhari,
Sadar, Varanasi, under the Societies
Registration Act, 1860, the election set up
by the respondent no. 4 has been upheld
while the election claim of the petitioners
has been invalidated.

3. Brief facts are these. Election to
society was called on 18.02.2022 by the
Chief Secretary/General Secretary of the
Samrakshak
Sabha
by
notice
dated
23.01.2022. The said notice fixed Arya
Mahila PG College, Varanasi as the
election venue. On 04.02.2022 meeting
called by the Joint Secretary of the All
India Council resolved to change the venue
of
the
election
to
Bharat
Dharam
Mahamandal Building, Jagatganj, Banaras.

4. Two elections were conducted by
the rival parties at their respective venues.
The competing election claims were
presented before the Assistant Registrar,
Firms, Societies and Chits, Varanasi. The
Assistant
Registrar
vide
order
dated
28.06.2022 recognized the election set up
by the respondent no. 4 and invalidated the
claim of the petitioner. Aggrieved the
petitioners invoked the extra ordinary
jurisdiction of this Court under Article 226
of the Constitution of India and instituted a
writ petition which was registered as Writ
C No. 20203 of 2022 (Shree Arya Mahila
Hitakarini Mahaparishad and Another vs.
State of U.P. and Others). The learned
single Judge by judgment rendered on
20.10.2022 ruled as follows:

"Therefore, under such facts and
circumstances as well as law laid down by
this Court, the writ petition is allowed and
impugned order dated 28.6.2022 passed by
the Assistant Registrar-respondent no.2 is
hereby
quashed.
Respondent
no.2
is
directed to refer the matter to Prescribed
Authority within two weeks alongwith
election proposals of both the rival groups.
Prescribed Authority is further directed to
take final decision in the matter maximum
within six weeks thereafter after affording
opportunity
of
hearing
to
petitioner,
respondent no.3 and all other concerned, if
any."

5. The order passed by the learned
single Judge was carried in appeal by
respondent no. 4 which came to be
registered as Special Appeal No. 692 of
2022 (Dr. Shashi Kant Dixit vs. State of
U.P. and 3 Others). The learned Division
Bench affirmed the judgment of the learned
Single Judge and dismissed the appeal by
judgment dated 16.12.2022. However,
various observations were made by the
learned Division Bench which influence the
controversy till date. The learned Division
Bench in Special Appeal No. 692 of 2022
(supra) dealing with the argument relating
to invalidity of the notice and change of the
election venue observed thus:

"Dealing with the first argument
that there is an inherent defect in the notice
for convening the meeting on 29.01.2022, it
would be apt to bear in mind that the
election programme was notified by the
appellant fixing 18.02.2022. It is not in
dispute that convening a meeting is a step
towards holding the elections. Clause 30 of
the Rules of the Association provides for a
5 All. Shree Arya Mahila Hitakarini Mahaparishad, Varanasi & Anr. Vs. State of U.P. & Ors.
1445
three weeks notice for convening the
meeting. Parties are in agreement that the
election date so fixed by the appellant for
holding the election remained unaltered.
However, it is the venue which got
changed. Now a question would arises
whether holding a meeting on 04.02.2022
to change the venue would amount to
materially and substantially altering the
election program. The answer to the same
finds place in Rule 35 of the Rules of the
Association wherein, it is provided that in
case election is held at Varanasi, then it
should be at the Headquarters at Varanasi.
Headquarters is specified in Clause 2 of the
MOA, which is, at Bharat Dharam
Mahamandal Building, Jagatganj, Benaras.
Admittedly, the venue of the elections so
notified by the appellant was at Arya
Kanya P.G. College, Chetganj, Varanasi
which was not a place specified in MOA
for conducting elections. It is also not in
dispute that allegations were levelled
regarding the possibility of manipulation.
Thus, in the opinion of the Court, mere
change in the election venue would not
partake the character of materially altering
the election programme as to require
issuance and publication of fresh election
programme by giving three weeks notice."

6. Other observations were also in the
judgment.
However,
most
relevant
observation on which the fate of the case
before this Court turns has been extracted
above.

7. Sri Radhakant Ojha, learned Senior
Counsel assisted by Dr. Pradeep Kumar
Mishra, learned counsel for the petitioners
submits that the findings quoted above
finally decided the issue of venue of the
elections. The impugned order is in the
teeth of the holding of the learned Division
Bench.

8. Per contra, Sri Rakesh Pande,
learned Senior Counsel assisted by Ms.
Vishakha Pande, learned counsel for the
respondent no. 4 contends as under:

9. The findings of the learned Division
Bench in Special Appeal No. 692 of 2022
(supra) were made only in the context
whether a triable case arose which merited
reference to the prescribed authority. The
said
observations
do
not
bind
the
authorities. Upon remand the prescribed
authority
was
liable
to
exercise
its
independent judgment uninfluenced by
observations made in the judgment of the
learned Division Bench.

10. Heard learned counsel for the
parties.

11. Two issues define the controversy.
Firstly the legality of the meetings and
resolutions dated 23.01.2022 and 04.02.2022
respectively called by the rival parties.
Secondly the validity of the elections held by
the parties respectively at separate venues.

12. The prescribed authority in the
impugned order considered the interplay of
relevant bye laws of the society namely Bye
law No. 29 and Bye law no. 35 to determine
the legality of the meeting called on
04.02.2022.

13. The provisions are extracted
hereinunder for ease of reference.

"Bye Law no. 29- The meeting
of the Samrakshak Sabha shall be held at
least once in every five years or whenever
considered
necessary
by
the
Chief
Secretary, joint Chief Secretary or on the
request of at least seven members of the
Samrakshak Sabha in writing to the Chief
Secretary to call the meeting.
1446 INDIAN LAW REPORTS ALLAHABAD SERIES

Bye Law no. 35- The member of
the All India Council other than the disciple
of
Bhagwan
Maharashi
Swami
Gyananandji Maharaj, the representative of
Sri Bharat Dharm Mahamandal, and Shree
mahamaya Trust shall be elected every five
years by the All India Samrakshak Sabha at
its meeting specially called for the purpose
either at Varanasi, the head quarter or at
any other place in India considered suitable
by the General president, Chief Secretary
or General Secretary."

14. The bye laws delineate two
categories of meetings. The first class of
meetings are of a general nature which can
be called within the prescribed time period
and on other occasions by the authorities
depicted in the Bye law No. 29. The other
set of meetings which were contemplated
in Bye Law No. 35 exclusively pertain to
elections. An election as per Bye law No.
35 can be called only by the General
President, Chief Secretary or General
Secretary. The venues for the meeting were
also provided in the said bye law.

15. The Bye law No 35 clearly is a
special provision made for a specific
purpose, while Bye law No. 29 is a general
provision created for all other purposes.

16. Good authorities in law settle the
cannon of interpretation that the special law
prevails over the general law. Hence, an
election meeting shall be governed and
regulated only by Bye law No. 35.

17. The meeting called by respondent
no. 4 on 23.01.2022 related to holding of
the election. The office bearer calling for
the said election was competent to do so as
per the scheme of the bye laws. To the
contrary, the Joint Chief Secretary was not
authorised by the bye laws to call an
election
meeting
on
04.02.2022.
No
exception can be taken in the findings in
the impugned order insofar as it invalidates
the
meeting
dated
04.02.2022
and
consequent election for like reasons.

18. The learned Division Bench by
using the word "prima facie" did not decide
the issue but clearly left it open for the
parties to canvass the same before the
prescribed authority;

"In our opinion, once the Joint
Chief Secretary was authorised to issue
notice/agenda and convene the meeting,
then, primafacie, there appears to be no
inherent defect in the notice/agenda."

19. The next critical issue relates to
the venue of the election. The election
called by the respondent no. 4 on
23.01.2022 was held at Arya Mahila P.G.
College, Varanasi. The venue of the
meeting was in the teeth of the holding of
the learned Division Bench. The learned
Division Bench conclusively adjudicated
the issue of election venue as seen in the
findings extracted earlier.

20. It is contended on behalf of the
private respondent that the venue of the
election as a matter of precedent has for the
past many decades been Arya Mahila P.G.
College, Varanasi. However, this submission
is contested by Sri Radhakant Ojha, learned
Senior Counsel. In any case it is nor for this
Court to decide the venue in view of the
holding of the learned Division Bench.

21. While the arguments of Shri
Rakesh Pande, learned Senior Counsel
appear persuasive but not enough for a
Single Judge to transgress the holdings of a
learned Division Bench. The matter has to
be settled on merits by a Division Bench of
superior strength.
5 All. Committee of Management of Shiksha Prasar Samiti, Kanpur & Anr. Vs. State of U.P. & Ors.
1447

22. The impugned order insofar as it
upholds the election dated 23.01.2022 held
at Arya Mahila P.G. College, Varanasi is
liable to be reversed and is reversed. The
election claim set up by the respondent no.
4 on the footing of election held at Arya
Mahila P.G. College, Varanasi is liable to
set aside and is set aside.

23. The findings of the prescribed
authority invalidating the meeting set up by
the petitioner on 04.02.2022 and the
elections held on 18.02.2022 at the
Mahamandal
Buildings,
Lahurabir,
Varanasi are not liable to interfered with.

24. There is no dispute about the
electoral college.

25. The matter is remitted to the
Assistant Registrar, Firms, Societies and
Chits, Varanasi to conduct the election in a
fair and transparent manner as per law
within a period of six weeks from the date
of receipt of a certified copy of this order.

26. The impugned order insofar as it
upholds the election claim set up by the
respondent no. 4 is liable to be set aside
and is set aside.

27. The District Magistrate, Varanasi
is directed to ensure that adequate security
arrangements be made at the election
venue.

28. The writ petition is allowed.
----------
(2023) 5 ILRA 1447
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2023

BEFORE

THE HON'BLE AJAY BHANOT, J.
Writ-C No. 9866 of 2023

Committee of Managemant of Shiksha
Prasar Samiti, Kanpur & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sharad Chandra, Sri Sankalp Narain

Counsel for the Respondents:
C.S.C., Sri Sanjeev Kumar Yadav

(A) Civil Law - Constitution of India, 1950
- Article - 226 - Societies Registration Act,
1860 - Sections 4(1), 5(a)(g), 16-A &
25(1) - Indian Penal Code - Section - 302
- Writ Petition - petitioner claims as an elected
Secretary of the Society challenging the
impugned order passed by the Registrar U/s
4(1) declining to register the list of office
bearers on the footing that a reference is
pending U/s 25(1) - Question of Disqualification
- Court finds that, both the petitioner and the
contesting respondents are convicts of offence
of murder - 'Moral Turpitude' - the term moral
turpitude cannot be defined by an iron cast rule
or an inflexible formula to fit all cases - The line
of enquiry would examine the gravity of the
offence, the role of offender, nature of
culpability in the crime, and the scheme of the
enactment before the criminal offence becomes
an act of moral turpitude which attracts a
disqualification - held, the offence of murder for
which the petitioner has been convicted is
comprised in the ambit of moral turpitude U/s
16-A of the Act, - hence, persons with such
criminal antecedents cannot be permitted to run
the affairs of an educational institution and
blight the education prospects of the country's
youth - both petitioner and respondent neither
has right to contest the elections of the society
nor can have any say in running of the
educational
institution
-
writ
petition
is
dismissed. (Para - 9, 13, 15, 16)

(B) Civil Law - Constitution of India, 1950
- Article - 226 - Societies Registration Act,
1860 - Sections 4(1), 5(a)(g), 16-A &
25(1) - Indian Penal Code - Section - 302
- Writ Petition - Question of Disqualification -
Moral Turpitude - both the petitioner and the