Sunil Hali, J. - (1.) DWARIKA Prasad Inter College is a recognized educational Institution aided up to High School level and unaided up to Intermediate level. It has a common Managing Committee for the College and the Society. Ever since its inception, the rival Committees of Management have been engaged in litigation. Every new election to the Management Committee has landed up in this Court for one reason or the other. General Body of the Managing Committee of the Society constituted its Electoral Colleges. The eligibility of the members of the Electoral College is determined by the Scheme of Administration which is required to be formulated in terms of the Section 16-A of the Intermediate Education Act 1921 (in short "Act'). Fluctuation in the size of the Electoral College is an inevitable process. It is this process which becomes bone of contention between the rival Managing Committees. Disputes are always raised in respect of the strength of the Electoral Colleges, more particularly on the registration of the new members or eligibility of the members by the rival claimants. There are three types of the members, which constitutes the Electoral College of the society viz.; (i) Permanent Members; (ii) Temporary members; (iii) Enrollment of fresh members.
(2.) SOURCE of dispute in the present writ petitions is also some how similar. Two sets of writ petitions have been filed in which the petitioners claim to be legally constituted Committee of Management of the College and seeking declaration to the extent that election of the respondent No. 5 and 6 to be illegal and in violation of the rules. In both the writ petition constitution of the Committee of Management of the respondent Nos. 5 & 6 is subject matter of. challenge. Since in both the writ petitions common questions of facts and law are involved hence they are being dealt together and decided by a common judgment. In order to appreciate the controversy involved in both the writ petition, it is necessary to give brief facts for proper adjudication of the case. Facts in Civil Misc. Writ Petition No. 38672 of 2008 The petitioners claim to be a legally constituted Committee elected by an Electoral College consisting of 221 members. Aaditya Naraya Tiwari is the Manager of the Committee of Management of the said College. The contention raised by the petitioners in the instant writ petition is that the election process by which Committee of Management was constituted by respondent Nos. 5 and 6 was an act of fraud committed by them. It is alleged that there was no intimation sent to the members of the society by registered post which fact stands affirmed by this Court vide its order dated 27.9.2007 passed in Civil Misc. Writ Petition No. 47314 of 2007. Having held the process of election actuated by fraud and mala fide renders the Committee of Management void-ab-initio. Further, the order of Regional Committee in affirming the election of respondent No. 5 ignoring the direction of the Court which has held that the process of election was tainted with fraud as such the impugned order is required to be quashed. Further the decision was vitiated on account of one of its member respondent No. 4 having not participated in the hearing but had only signed the decision. Facts in Civil Misc Writ Petition No. 38675 of 2008 In this writ petition, the petitioners claim to be legally constituted Committee of Management based upon the Electoral College of 60 members which is said to have been approved by the authority. Reliance has been placed on the election conducted by Ram Lakhan Shukla in the year 1998. Issue with respect to the authenticity of the Electoral College constituted by 60 members continued to remain in force as no direction has been passed while disposing of the Civil Misc Writ Petition No. 39207 of 2003.What is contended is that the impugned order in the said writ petition has not been set aside. Following issues have been raised in the writ petition : (i) That the authenticity of the Electoral College consisting of 60 members having remained intact the election of Committee of Management based upon the said college was authorized and any election held on the basis of any other Electoral College is vitiated. (ii) Assuming that the direction of the Division Bench passed in review relating to review/up-dating of the Electoral College was in existence but no such review in terms of the direction has been undertaken. The election of respondent No. 5 cannot be sustained. (iii) After publication of the election schedule by the respondent Nos.5 and 6, respondent No. 5 did not participate in the said election process which was required to be conducted in presence of nominee of District Inspector of Schools Sri Vijay Kumar Singh. Once the election was conducted in pursuance to the aforesaid election schedule consisting of the Electoral College of 60 members afresh there was no occasion to hold another election conducted by respondent No. 6 on the basis of Electoral College consisting of 121 members. (iv) The finding recorded by the Regional Committee that in the election of respondent Nos. 5 and 6, 78 members had participated is not borne by any record. In absence of that election could not have been validated by the Committee.
(3.) ON the other hand the stand of the respondents in both the writ petitions is as follows: (i) That there was no finding recorded by this Court in respect of any fraud having been committed by the respondent Nos. 5 and 6 in the election process. That the order of the Court only connotes that the matter be remitted back to the Regional Committee for fresh hearing. (ii) That the power to conduct the election was with erstwhile Managing Committee as provided by the Scheme of Administration. It is the President and the Manager who hold the proceedings for conducting the election in which neither DIOS nor any election officer has a right nor any power to finalize the Electoral College. The power to finalize the Electoral College rest with the erstwhile committee (iii) That initial Electoral College consisting of 60 members was enhanced to 121 in the year 1994 in accordance with the Scheme of Administration and provision of the bylaws. A dispute was raised by the petitioners in this behalf and same has been settled by the Deputy Director of Education vide its order dated 15.7.1997 in the proceedings held by him under Section 16-A(7) of the Act. A list of 121 members also stands approved by the Assistant Registrar, Firms and Society Chits, Varanasi Region, Varanasi. The said orders were questioned in Civil Misc Writ Petition Nos. 24998 of 1997 and 4267 of 1998. Both the writ petitions were heard together and by a common order dated 1.9.1998 approved the order of the Assistant Registrar. Fresh elections were held on 13.11.2002 on the basis of the Electoral College of 121 members which stands attested by the DIOS, Jaunpur. This election was also questioned in Civil Misc Writ Petition No. 39207 of 2003, 44460 of 1998 alongwith Civil Misc Writ Petition No. 43326 of 1998.The order dated 1.7.2003, 23.7.2003 and 24.7.2003 were quashed on 20.5.2005. After having confirmed the strength of the Electoral College to be 121 a fresh election for 2005 was conducted on the basis of the said Electoral College. What has been contended is that the authenticity of the Electoral College stands affirmed by this Court as such any election sought to have been conducted on the strength of any other Electoral College cannot be entertained. (iv) That even if it is assumed that no registered notices were issued to the members about the schedule of the election it was published in the news papers and all those members who have participated in the said elections were aware of the date and schedule of election. Election process cannot be vitiated merely on the ground that in absence of registered notice not been served when the members had intimation about the schedule of election which was published in the news paper which aspect has not been denied by the other side. After noticing the contention of the either side following issues are required to be determined in these writ petitions which are as under: (i) Whether the direction issued by this Court in the year 2007 tantamounts to declaring the election process conducted by the respondent Nos. 5 and 6 as void on the premise that the finding of fraud has been recorded by the Court? (ii) Whether the elections process could be initiated by any person or the DIOS while the legally constituted Committee of Management was in saddle? (iii) Whether in the face of the judgments passed by this Court affirming the Electoral College of the Committee as 121, can legality be attached to any election process conducted by the rival committees of Management on the basis of the Electoral College consisting of members whose authenticity and eligibility has not been certified by the outgoing Managing Committee or an authority under the Act? (iv) Whether the impugned order in this writ petition has not addressed the controversy raised by the parties before it?;