- (1.) PRESENT appeal has been filed against the judgment and order dated 9th January, 2009 passed by the learned single Judge whereby the learned single Judge has declined to interfere in the order dated 15th December, 2008 leaving it open to the Appellants to get the disputed question adjudicated by filing a civil suit. It appears that in the earlier round of litigation which came up before this Court in Special Appeal No. 558 of 2008 the validity of action initiated by the Assistant Registrar, Firms, Societies, Chits, Varanasi under Section 25(2) of the Societies Registration Act, 1860 (hereinafter referred to as the Act) was under consideration. The Assistant Registrar vide order dated 19th February, 2008 had earlier held that elections pleaded by both the parties cannot be held to be in accordance with law and exercising the powers under Section 25(2) of the Act directed to hold fresh elections on the basis of the list of members and for the purpose appointed the Sub Divisional Magistrate , Mohammadabad, Ghazipur as Election Officer. When it was pointed out that the elections have already been held in terms of the list finalised by the Assistant Registrar, this Court vide judgment and order dated 22nd April, 2004 had disposed of the special appeal by giving the following directions: (1)The Assistant Registrar shall transmit the relevant papers qua the elections to a Sub Divisional Magistrate/Election Officer other than the officer who has held elections, within two weeks from the date of filing a certified copy of this order before him. (2) The papers so received by the officer concerned shall be treated to be a reference under Section 25(1) of the Act and the issues referred to him shall be examined by him after giving opportunity of hearing to the parties concerned preferably within a period of two months from the reference is so received. (3) The Assistant Registrar or the election officer shall not be influenced by any of the observations made by this Court in this judgment. (4) If the Sub Divisional Magistrate/Election Officer comes to the conclusion that the names mentioned in the list Assistant Registrar forwarded by the Assistant Registrar are valid, he shall answer the reference in favour of the election members of the office bearers of the society and in case, it is found that the electoral college has rightly been prepared, he shall issue fresh electoral college and hold election accordingly. (5) Till then, there shall be single operation of the account of the society.
(2.) PURSUANT to the direction given by this Court, the Sub Divisional Magistrate treated the matter as reference under Section 25(1) of the Act and vide order dated 15.12.2008 decided the issues in favour of the Respondent No. 4 herein which was subject matter of challenge in the writ petition giving rise to the special appeal, which as already mentioned above, has been disposed of with certain observations. We have heard Sri M.A. Khan, learned Counsel for the Appellant, learned standing Counsel appearing for Respondent Nos. 1, 2 and 3 and Sri K. Sahi, learned Counsel appearing for Respondent No. 4, perused the impugned order dated 9th January, 2009 passed by the learned single Judge giving rise to the present appeal, grounds taken in the memo of appeal and the documents filed along with it.
(3.) SRI K. Sahi, learned Counsel appearing for the Respondent No. 4 raised a preliminary objection that as the Sub Divisional Magistrate has acted as the Prescribed Authority and decided the reference under Section 25(1) of the Act in terms of the direction contained in Clause (2) of the judgment and order dated 22nd April, 2008 passed by the Division Bench of this Court in Special Appeal No. 558 of 2008 an intra court appeal under Chapter VIII, Rule 5 of the Rules of the Court against the judgment and order passed by the learned single Judge is not maintainable. In support of his submission he has relied upon a Division Bench Decision of this Court in Mohd. Talib Khan v. State of U.P. and Ors., (2008) 1 UPLBEC 538.;