- (1.) O. P. Jain, J. Counter and rejoinder affidavit and the supplementary affidavit filed today may be placed on record.
(2.) HEARD learned counsel for the parties. The short question which was in controversy in this case was whether Mahendra Prakash Sharma was the member of General body or not ? This matter came up before this Court on an earlier occasion and the order, Annexure '9' to the petition, dated 12th April, 1994 was passed. The D. I. O. S. was directed to dispose of this contro versy after hearing all the concerned parties. In compliance to that direction the D. I. O. S. beard the parties on 5-5-1994 and passed the order, Annexure '13' dated 25th July, 1994. A perusal of Annexure '13' shows that Mahendra Prakash Sharma relied on a receipt bearing 314, dated 31st March, 1977 in supporter his claim that he is a life member and has deposited Rs. 1000 in 1977. The D. I. O. S. rejected the contention of Mahendra Prakash Sharma on the ground that he has not got this fact verified from the cash-book that a sum of Rs. 1000 was deposited by him on 31st March, 1977. Thereafter, the D. I. O. S. observed, in Annexure '13' that the institution is in a dilapi dated condition and some untowards incident can take place at any time. He, therefore, recommended, in public interest, that an Authorised Controller (Prabandh Sanchalak) may be appointed by the Dy. Director of Education. Some how the D. I. O. S. through it fit to review his own order and passed the impugned order Annexure '14' on 17th September, 1994. ID this order he has taken complete summersault and has observed that Ihe receip t dated 31st March, 1977 is reliable and he has also observed that the burden does not lie on the person who had deposited the money. While passing this order, the D. I. O. S. has also taken into consideration the additional fact that the name of Mahendra Prakash Sharma is to be found in the list of 1991. It is argued on behalf of the respondent that the list of 1991 was not before the D. I. O. S. when the order Annexure '13' dated 25th July, 1994 was passed by him and, therefore, the review of the earlier order by the impugned order is justified. This contention has no force. It is well settled principles that a document available earlier and not produced by the parties cannot be the basis of review. There is one thing more ; by the time the impugned order dated 17th September, 1994 was passed the term of the Committee has already come to hearing completion and only three or four months had remained. Therefore, for such a short period it was hardly necessary for the D. I. O. S. to give recognition to Mahendra Prakash Sharma contrary to his own earlier order. It is an admitted fact that before passing this impugned order, Annexure '14' no fresh hearing took place. In Annexure 14 at page 65 the D. I. O. S. has referred to the hearing dated 5th May, 1994. It is apparent that after hearing dated 5-5-1994 the order Annexure 13, dated 25th July, 1994 had been passed by the D. I. O. S. and therefore, obviously there was no fresh hearing prior to the passing of the impugned order.
(3.) IN view of the above discussion, the writ petition is allowed and the impugned order Annexure '14' is quashed. The effect of quashing of Annexure 14 is that the earlier order of the D. I. O. S. , Annexure 13 dated 25th July, 1994 is revived and in accordance with that order, the Dy. Director of Education should appoint a Prabandh Sanchalak to hold an election at an early date and, if possible, within three months. This Court expresses no opinion as to whether Mahendra Prakash Sharma is or is not a member and whether the receipt is a genuine or forged receipt. The question of membership may be got decided by the parties in a civil suit. Petition allowed. .;