# Vaibhav Jain v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 289
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-02
- **Case number:** Civil Misc. Writ Petition No. 7241 of 2011
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Dilip Gupta, Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vaibhav-jain-v-state-of-u-p-ors-43303
- **Pages:** 5

## Headnote

Constitution of India, Art.-226-Election of
Committee of Management-as per by
laws-7 of the institution-3 years apart
from one month-question the term of
newly management when start ?-either
from date of declaration of result or the
date of taking actual charge-held-if any
legal impediment or dispute-the relevant
date would be the date on which taken
charge-if newly elected person fails to take
charge-the period shall start from the date
of declaration of result of election.
Held: Para-13
Clause 7 of the amended scheme of
administration provides for a term of three
years for the committee of management. A
further period of grace of one month is
provided.
If
the
new
committee
of
management does not take over charge on
the expiry of a period of three years and
one month, the term of the earlier
committee would ipso facto come to an
end. Thereupon, the Joint Director of
Education is authorised to appoint a
Prabandh
Sanchalak.
The
Prabandh
Sanchalak, in turn, is duty bound to conduct
elections as expeditiously as possible, so
that the newly elected committee of
management can be handed over charge.
The actual handing over of charge is what
merits emphasis. In the event of a dispute,
a provision has been made for its resolution
by the Deputy Director of Education. A
newly elected committee of management
may be unable to take charge in a given
case despite the election which has been
conducted by the Prabandh Sanchalak for a
reason not bearing on its own default. In
such a case, the term of office of the
committee
of
management
would
commence with effect from the date on
which it has taken over charge. However,
where despite the absence of any hurdle,
the
newly
elected
committee
of
management fails to take over charge due
to its own default, its term of office of three
years would commence with effect from the
date of declaration of the result of the
election and would not be postponed to the
date on which it takes over charge. The
judgment of the Division Bench in Vaibhav
Jain (supra) lays down a principle contrary
to what has been explained above in the
earlier judgments of the Division Benches in
Jangali Baba and in Ratan Singh Solanki.
The decision in Vaibhav Jain (supra) would
not be construed as laying down the correct
principle of law.
Case Law discussed:
Spl. Appeal No. 1283 of 2008; (1991) 2
UPLBEC 1183; 2010 (1) ADJ 262.

## Text

1 All] Vaibhav Jain Vs. State of U.P. & Ors.
289
dismissed on the ground of delay and laches
and the same, accordingly, stands dismissed.
23. However, there shall be no order
as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE SUNEET KUMAR, J.
Civil Misc. Writ Petition No. 7241 of 2011
Vaibhav Jain
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri P.N.Saxena, Sri Pramod Narayan
Shahi, Sri Amit Saxena
Counsel for the Respondents:
C.S.C., Sri C.B. Yadav, Addl. Advocate
General, Sri Shashank Shekhar Singh,
Addl. Chief Standing Counsel.
Constitution of India, Art.-226-Election of
Committee of Management-as per by
laws-7 of the institution-3 years apart
from one month-question the term of
newly management when start ?-either
from date of declaration of result or the
date of taking actual charge-held-if any
legal impediment or dispute-the relevant
date would be the date on which taken
charge-if newly elected person fails to take
charge-the period shall start from the date
of declaration of result of election.
Held: Para-13
Clause 7 of the amended scheme of
administration provides for a term of three
years for the committee of management. A
further period of grace of one month is
provided.
If
the
new
committee
of
management does not take over charge on
the expiry of a period of three years and
one month, the term of the earlier
committee would ipso facto come to an
end. Thereupon, the Joint Director of
Education is authorised to appoint a
Prabandh
Sanchalak.
The
Prabandh
Sanchalak, in turn, is duty bound to conduct
elections as expeditiously as possible, so
that the newly elected committee of
management can be handed over charge.
The actual handing over of charge is what
merits emphasis. In the event of a dispute,
a provision has been made for its resolution
by the Deputy Director of Education. A
newly elected committee of management
may be unable to take charge in a given
case despite the election which has been
conducted by the Prabandh Sanchalak for a
reason not bearing on its own default. In
such a case, the term of office of the
committee
of
management
would
commence with effect from the date on
which it has taken over charge. However,
where despite the absence of any hurdle,
the
newly
elected
committee
of
management fails to take over charge due
to its own default, its term of office of three
years would commence with effect from the
date of declaration of the result of the
election and would not be postponed to the
date on which it takes over charge. The
judgment of the Division Bench in Vaibhav
Jain (supra) lays down a principle contrary
to what has been explained above in the
earlier judgments of the Division Benches in
Jangali Baba and in Ratan Singh Solanki.
The decision in Vaibhav Jain (supra) would
not be construed as laying down the correct
principle of law.
Case Law discussed:
Spl. Appeal No. 1283 of 2008; (1991) 2
UPLBEC 1183; 2010 (1) ADJ 262.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, C.J.)
1. This reference to the Full Bench
has been occasioned by a referring order
dated 9 February 2011.
290
 INDIAN LAW REPORTS ALLAHABAD SERIES
2. Jain Kanya Pathshala Inter College,
Muzaffarnagar is a recognized and aided
institution governed by the provisions of the
U.P. Intermediate Education Act, 19211.
Clause 7 of the scheme of administration as
originally framed provided for the following
term for members of the committee of
management:
"7. Term of members:- The term of
office bearers and members other than exofficio members shall be three years form
the date they are chosen provided that the
term of every office bearer shall be
deemed to have continued till his
successor is chosen."
3. The scheme of administration was
subsequently amended on 14 December
1983. As amended, the scheme of
administration substituted original clause
7 for the following:
"7- izcU/k lfefr dk dk;Zdky%
orZeku izkfo/kku fujLr fd;k tkrk gSA iwoZ
izkfo/kku ds LFkku ij fuEukafdr izkfo/kku jgsxkA
inkf/kdkjh ,oa lfefr ds lnL;ksa dk dk;Zdky
rhu o"kZ dk gksxkA dk;Zvof/k lekIr gks tkus ij
vxys ,d lky rd gh vifjgk;Z dkj.kksa ls
inkf/kdkjh cus jg ldsaxsA ;fn rhu o"kZ i'pkr ,d
ekl ds vUnj uop;fur lfefr dk;ZHkkj xzg.k ugha
djrh gS rks rhu o"kZ ,d ekl i'pkr dkykrhr
lfefr dk;Zdky Lor% lekIr le>k tk;sxk vkSj
e.Myh; mi f'k{kk funs'kd }kjk izcU/k lapkyd
fu;qDr------------------------ftls
izcU/kkf/kdj.k
ds
iwoZ
vf/kdkj gksxsaA ;g izcU/k lapkyd uop;fur lfefr
dks 1⁄4pquko u gksus dh fLFkfr esa pquko djkdj1⁄2
'kh?kzkrh'kh?kz dk;Zjr djk;sxkA ;fn ,d ls vf/kd
izcU/k lfefr vf/kdkj dk nkok djs rks izdj.k mi
f'k{kk funs'kd dks izLrqr fd;k tk;sxk ftldk
fu.kZ; vfUre gksxkA"
4. The Prabhandh Sanchalak, who
was managing the institution, got the
elections conducted, in the circumstances
disclosed in the petition and the results
were declared on 28 October 2007.
Objections were raised and ultimately, the
Regional Level Committee approved the
election on 9 April 2008 after which, the
committee of management represented by
the fourth respondent started functioning.
A writ petition was filed seeking a
mandamus to the Joint
Director of
Education to appoint an authorized
controller under the amended scheme of
administration with a direction to hold the
elections for a new committee of
management. The case of the petitioner
was that under amended clause-7 of the
scheme of administration, the term of the
committee of management is three years
together with a grace period of one month
after
which,
if
no
committee
of
management is elected, the Joint Director
of Education is authorized to appoint an
authorized controller to hold elections.
Accordingly, it was urged that the period
of three years would commence from 28
October 2007 when the results were
declared and after the expiry of the term
of the committee of management, an
authorized
controller
ought
to
be
appointed for conducting the elections.
5. Reliance was placed by the
petitioner on a judgment of a Division
Bench of this Court in Vaibhav Jain v.
State of U.P.2 in which, the submission
that the term of the committee of
management would commence from the
date of assumption of charge of office
was negated. This Court in a judgment of
a Division Bench in a special appeal held
that the term of the committee of
management would start from the date of
its election even if the elected body has
started
functioning
much
after
the
declaration of the results of the elections.
The judgment of the Division Bench
dated 4 January 2011 is extracted
hereinbelow:
1 All] Vaibhav Jain Vs. State of U.P. & Ors.
291
"This appeal has been filed against the
judgment and order dated 26th August, 2008
by which the writ petition has been
dismissed. The dispute before the Hon'ble
Single Judge was with respect to the validity
of the election held on 28.10.2007 of which
Sri Praveen Kumar Jain was elected as
Manager. It is submitted that the term of
Committee of Management is three years.
Although it is contended by learned counsel
for the appellant that the term shall start
running from the date of assuming the charge
of office of the Manager but the law is settled
in this regard that the term of Committee will
start from the date of its election even if the
elected body has started its functioning much
after the declaration of the result of election
of Committee of Management.
In view of that, no useful purpose
will be served in deciding the case on
merit.
The special appeal is dismissed."
6.
When reliance was placed on the
aforesaid decision, the learned Single Judge
was of the view that the Division Bench had
failed to notice an earlier decision in
Committee of Management, Jangali Baba
Intermediate College Garwar District Ballia
v. Deputy Director of Education, Vth
Region, Varanasi3. Hence, the reference.
7. The issue which falls for
determination before this Court is as
follows:
Whether
the
judgment
of
the
Division Bench in Vaibhav Jain v. State
of U.P. (Special Appeal No.1283 of 2008,
decided on 4 January 2011) lays down the
correct position in law when it holds that
the
term
of
the
Committee
of
Management will start from the date of its
election even if the elected body has
started
functioning
much
after
the
declaration of the results of the election.
8. In the earlier decision of the
Division Bench in Jangali Baba (supra),
the Court noted that the period prescribed
for the committee of management under
the scheme of administration was three
years. The term of a validly elected
committee
of
management
would
automatically come to an end after one
month thereafter. The Division Bench
held as follows:
"However, we feel after perusing the
Scheme of Administration, the various
provisions of the Act and the Rules that its
period would start running either from the
date of election validly held where the period
of earlier Committee of Management has
already come to an end prior to this date and
there being no dispute or from the date the
elected Committee of Management takes
over the charge of the Management."
9. The Division Bench was of the view
that if, for some reason, after the election the
newly elected committee of management is
not permitted to take charge from the earlier
committee or from the Prabandh Sanchalak,
the period of three years of the newly elected
committee of management would commence
after it has taken over charge and
commences functioning.
10. This decision of the Division
Bench in Jangali Baba was followed by
another Division Bench of this Court in
Ratan Kumar Solanki v. State of U.P.4
After noting the law on the subject, the
Division Bench held as follows:
"40. The above discussion makes it
clear that the term of Committee of
292
 INDIAN LAW REPORTS ALLAHABAD SERIES
Management would commence when the
Committee
of
Management
starts
functioning as a result of the election. If a
Committee of Management which is
already existing and the same Officer
Bearers have come to be elected in the
new election, if the election has been held
after expiry of the term of the earlier
Committee of Management, the newly
elected Committee of Management can
start function from the date its result is
declared but where Office Bearers are
different, for newly elected Committee of
Management the same can be said to have
taken over charge after the term of the
earlier Committee is over and newly
elected Committee is allowed to function.
However
where
the
newly
elected
Committee of Management is not able to
function not on account of any lapse on its
part, but for the reasons beyond its
control, namely, some order issued by the
educational authorities restraining it from
functioning or an order by the Court or
similar other circumstances, the term of
the Committee of Management would
commence after it takes over charge and
starts function. We make it clear that there
may be a case where despite a new
election having taken place, the term of
the earlier Committee of Management is
over, and, in the absence of any
prohibitive order by any competent
authority, Committee of Management
newly elected does not take any step on
its own to take over charge of the
management of the College, in that case
we are clearly of the view that the lapse
on the part of the newly elected
Committee of Management would not give
it any advantage to defer or postpone the
commencement of the period inasmuch it
cannot be allowed to take advantage of its
own wrong but where despite efforts etc.,
the rival Committee or the Authorised
Controller, as the case may be, has not
permitted the newly elected Committee of
Management to function, in that case the
dictum as laid down above that the term
would commence from the date of taking
over the charge would apply."
11. The judgment of the Division
Bench in Vaibhav Jain (supra) has
evidently not taken note of the earlier
judgments of the Division Bench in
Jangali Baba (supra) and in Ratan Kumr
Solanki (supra).The judgment of the
Division
Bench
in
Vaibhav
Jain
proceeded on the assumption that it is a
'settled principle of law' that the term of
the committee of management will
commence from the date of election even
if the elected body has started functioning
much after the declaration of result. In
fact the settled position in law was as
reflected in the decisions in Jangali Baba
and Ratan Singh Solanki. Hence a clear
distinction exists between a case where
the elected committee of management has
been unable to take charge due to a
circumstance outside its control like an
order of restraint of a competent authority
or court and a case where the elected
committee has been in default in taking
charge in spite of the absence of any legal
hurdle. In the former case, the term would
commence when the committee takes
charge to start functioning. In the latter
case the elected committee will not have
that benefit since the failure to take
charge has been due to its own default,
without a restraint or legal prohibition.
12.
The judgment of the Division
Bench in Ratan Kumar Solanki (supra) has
been followed by a judgment of a learned
Single Judge comprised of one of us
(Hon'ble Dilip Gupta, J) in Dr. Mahendra
Pratap
Singh
v.
State
of
U.P.5
1 All] Chetan Das Vs. D.C.S.C., U.P., LKO & Ors.
293
13. Clause 7 of the amended scheme
of administration provides for a term of
three
years
for
the
committee
of
management. A further period of grace of
one month is provided. If the new
committee of management does not take
over charge on the expiry of a period of
three years and one month, the term of the
earlier committee would ipso facto come
to an end. Thereupon, the Joint Director
of Education is authorised to appoint a
Prabandh
Sanchalak.
The
Prabandh
Sanchalak, in turn, is duty bound to conduct
elections as expeditiously as possible, so
that the newly elected committee of
management can be handed over charge.
The actual handing over of charge is what
merits emphasis. In the event of a dispute, a
provision has been made for its resolution
by the Deputy Director of Education. A
newly elected committee of management
may be unable to take charge in a given
case despite the election which has been
conducted by the Prabandh Sanchalak for a
reason not bearing on its own default. In
such a case, the term of office of the
committee
of
management
would
commence with effect from the date on
which it has taken over charge. However,
where despite the absence of any hurdle, the
newly elected committee of management
fails to take over charge due to its own
default, its term of office of three years
would commence with effect from the date
of declaration of the result of the election
and would not be postponed to the date on
which it takes over charge. The judgment of
the Division Bench in Vaibhav
Jain
(supra) lays down a principle contrary to
what has been explained above in the
earlier judgments of the Division Benches
in Jangali Baba and in Ratan Singh
Solanki. The decision in Vaibhav Jain
(supra) would not be construed as laying
down the correct principle of law.
14. We, accordingly, answer the
reference in the aforesaid terms. The writ
petition shall now be placed before the
regular court for disposal in the light of
the reference, as answered.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2015
BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.
Writ C No. 17647 of 1995
Chetan Das
...Petitioner
Versus
D.C .S.C., U.P., LKO & Ors. ...Respondents
Counsel for the Petitioner:
Sri S.N. Singh, Sri A.K. Rai, Sri C.K.
Parikh, Sri R.N. Singh
Counsel for the Respondents:
C.S.C., Sri A.C. Tripathi, Sri Satish
Mandhyan, Sri Tarun Tiwari
(A) Displaced Persons (Compensation &
Rehabilitation) Act 1954-Section 24 read
with Displaced persons claims & other Laws
Repeal Act, 2005 and General Clauses Act
1897-Section 6(e)-Revision Proceedingsorder
validity
challenged
under
writ
petition-whether maintainable even on
repeal of old Act 1954?-held-'Yes'-in view of
Section 6 (e) of General Clauses Act-such
proceeding shall continue.
Held: Para-17
The General Clauses Act is a part of
every Central Act, and has to be read, as
such, in the Act, unless, it is specifically
excluded. In view of the authoritative
pronouncement of law on the question
by the Apex Court, as reiterated by Full
Bench of this Court, I am of the
considered opinion that the proceedings
of the present writ petition would not
abate on account of repeal of Act of
1954, and the writ petition would be