S.N.Srivastava, J. - (1.) Order of District Judge Mathura passed under Section 92, C.P.C. has been taken in challenge in this Court by means of the present petition under Article 226 of the Constitution of India by Sri Keshav Deo Sharma who is elected President of the Temple known as Sri Nand Rai Ji Maharaj, Nand Kila, Gokul Mandir Samiti, Gokul District Mathura. The dispute in the instant petition revolves round 'resignations' submitted by 7 elected members in the election held on 17.5.2002.
(2.) The affairs of the Temple known as Sri Nand Rai Ji Maharaj Nand Kila Gokul Mandir Samiti, Gokul District Mathura and five other temples dovetailed to it are managed by the Committee under the scheme prepared under Section 92, C.P.C. In accordance with it, election was held on 17.5.2002 in which 15 member were declared elected. It would transpire from the record that subsequently, 7 members so elected tendered their resignation on 21.5.2002 to the District Judge Mathura inasmuch as by that time, President had not been elected to head the Trust. On 22.5.2002 election of office bearers took place in which Keshav Deo Sharma was elected as President and Nand Kishore as Secretary. On President being elected, District Judge Mathura, transmitted resignations of all the seven members to the elected President. It would also appear that election of office bearers was given approbation by the District Judge on 23.5.2002. It is also evident from the averments in the writ petition that in the meeting held on 22.6.2002 headed by Secretary of the Committee, the resignations of all the seven members were accepted and nomination of one members was proposed and papers relating thereto were submitted to the District Judge for approval by the Secretary of the Committee. The newly elected President petitioner No. 1 did not give approbation to the proposed nomination by the Committee on the ground that no meeting had in fact been convened on 22.6.2002 and that the nomination of seven members was highly illegal. One of the ground assigned in the objection was that resignation submitted by seven members had been withdrawn on 25.11.2002 and as such since there was no vacancy, no nomination could be proposed by the Committee headed by Secretary. The District Judge, Mathura in turn held by means of order dated 28.1.2004 that vacancy had occurred due to resignation of seven members. The District Judge however did not lend approval to the nomination proposed and directed Dr. Mukesh Nath Samadhia District Government Counsel (Crl.), Election Officer, to commence fresh proceeding for election of seven members for the rest of the period of the Committee. It is in the above backdrop that the petitioner who is the elected President, has assailed the impugned order of the District Judge, Mathura.
(3.) I have heard Sri R.K. Jain senior advocate, assisted by Rahul Jain for the petitioner. The learned counsel for the petitioner premised his submission by stating that resignation was not given by seven members to proper authority, i.e., the President who is competent under the Constitution. He further canvassed that resignations so submitted required approval by the Committee of Management, which was not done in the instant case. He further canvassed that before the resignation could be acted upon all the seven members had withdrawn their resignation and by this reckoning, no vacancy was there and the order passed by the District Judge under Section 92 directing to hold fresh election in relation to 7 vacancies on posts of members, is impaired in law. The learned counsel drew attention to para 6 of the Constitution of the Trust the substance of which is that any office bearers or member could submit resignation by written information and since resignation had not been submitted to the President but was addressed to the District Judge, it could not have been treated to be valid resignation. It was further urged that before being acted upon the resignation had been withdrawn and hence the impugned order cannot be sustained in law. The learned counsel also addressed the Court on the aspect that resignation was provoked by some compelling circumstances and as such it could not be counted to be a voluntary act and by this reckoning, it could not be given the veneer of a valid resignation nor such resignation could be cognized as valid resignation in law. It was further urged by him that before the resignations could be acted upon, withdrawal applications had already been filed and besides those very persons had participated in the election of President, no vacancy could be said to have occurred and by this reckoning the impugned order is vitiated in law. The learned counsel placed credence on various decisions in vindication of his stand including the decisions in Union of India v. Gopal Chandra Misra, AIR 1978 SC 694; Moti Ram v. Param Deo, (1993) 2 SCC 725 and Abha Atri v. State of U.P., 2003 (1) UPLBEC 772. Per contra, learned standing counsel propped up the order on the premises that those seven members elected as members had tendered their resignation to the District Judge as there was no President at that time but the same was sent by District Judge on 23rd May, 2002 immediately after election of the President and as such it constitutes compliance with Clause 6 of the Constitution of the Trust which envisages that any office bearer or member of the Committee can resign his post by notifying to the President in writing. The learned standing counsel further contended that there is no provision in the Constitution of the Trust requiring acceptance of the resignation and so far as resignation from the post of membership of the Committee is concerned, it is, a unilateral act and cannot be stretched to mean a bilateral action requiring tendering of resignation on one hand and its acceptance on the other hand by the competent authority.;