B. S. Chauhan and Arun Tandon, JJ. - (1.) -This special appeal is directed against the judgment and order passed by the learned single Judge in Writ Petition No. 18566 of 2006 dated 4.4.2006.
(2.) FACTS giving rise to the present appeal are Madarsa Jamya Ahley Sunnat Emdadul Ulum, Matehna, Post Khadsari Bazar district Siddhartha Nagar is a society duly registered under the Societies Registration Act, 1860 (hereinafter called the 'Act 1860"). Elections of the office bearers of the society are stated to have taken place in the year 2000. Proceedings under Section 25 (1) of the Act, 1860 were initiated by respondents 4 to 58 questioning the elections so held before the prescribed authority. The dispute was registered as Misc. Case No. 17 of 2001. During the pendency of the dispute, the term of the office bearers expired on 9.10.2005. Prior to the expiry of the term of the office bearers of the society, fresh elections are said to have taken place on 25.9.2005. On the strength of the elections so held the appellant-petitioner submitted an application dated 6.10.2005 before the Assistant Registrar Firms Societies and Chits Gorakhpur Region Gorakhpur seeking renewal of the registration of the society. In the meantime the prescribed authority by means of his order dated 17.3.2006 answered the reference under Section 25 (1) of the Act, 1860 and directed that a copy of the order alongwith the relevant file be transmitted to the Assistant Registrar Firms Societies and Chits Gorakhpur for appropriate action. Against this order of the prescribed authority the appellant who claims to be the Manager of the Committee of Management of the Madarsa filed Writ Petition No. 18566 of 2006. The learned single Judge by means of his judgment and order dated 4.4.2006 dismissed the writ petition after recording that it raises disputed questions of fact and it is not feasible under Article 226 of the Constitution of India to decide such disputed issues of fact. Accordingly the writ petition has been dismissed with the liberty to the petitioner-appellant to approach the civil court. It is against this order that the present special appeal has been filed. A preliminary objection has been raised on behalf of respondents by Shri R. K. Ojha, advocate to the effect that the present special appeal under Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952 is not maintainable inasmuch as the prescribed authority, who has decided the dispute under Section 25 (1) of the Act, 1860, acts as a Tribunal, having trappings of the Court and therefore, this special appeal against the judgment and order of the learned single Judge arising out of the proceedings from an order of the Tribunal is legally maintainable in view of the language of Chapter VIII, Rule 5 of the Allahabad High Court Rules, 1952. In support of the said submission reliance has been placed upon the Division Bench judgment of this Court in the case of Jai Prakash Agarwal v. Prescribed Authority (Sub-Divisional Magistrate), Sadar, district Deoria and others, (1999) 1 UPLBEC 697 : 1998 (4) AWC 10. The preliminary objection raised on behalf of the appellant is answered by Shri Ashok Khare, learned senior advocate assisted by Smt. Anita Tripathi contending that the Division Bench judgment relied upon by Shri R. K. Ojha in the case of Jai Prakash Agarwal (supra) does not lay down the correct law. With reference to the Full Bench judgment of this Court in the case of Committee of Management, Shri Kashi Raj Mahavidyalaya, Aurai and another v. Deputy Director of Education, Vth Region, Varanasi and others, 1997 (29) ALR 417 : 1996 (3) AWC 1788 (FB), Shri Khare submits that the prescribed authority under Section 25 (1) of the Act, 1860 cannot be treated to be a Tribunal for the following reasons : (a) The proceedings before the prescribed authority are summary in nature, the order passed therein is not final inasmuch as it has specifically been held by the Hon'ble Supreme Court that the order of the prescribed authority can always be questioned by way of civil suit. (b) The prescribed authority is not entrusted with inherent judicial powers of the State, inasmuch as it has no authority to : (i) summon production of witnesses or for ensuring their attendance ; (ii) to direct recovery/ production of documents.
(3.) IN support of his aforesaid contentions, Shri Khare has placed reliance upon the judgments of the Apex Court in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi, AIR 1950 SC 188 ; Mrs. Sarojini Ramaswami v. Union of INdia and others, AIR 1992 SC 2219 ; Jaswant Sugar Mills Ltd., Meerut v. Lakshmi Chand and others, AIR 1963 SC 677. Shri R. K. Ojha in the rejoinder-affidavit submits that merely because the proceedings before the prescribed authority are summary in nature or that the order of the prescribed authority can be questioned by way of civil suit will not mean that finality has not been attached to the order of the prescribed authority so far as the Societies Registration Act is concerned. With regard to the second contention raised by Shri Ashok Khare, he submits that the power to summon the witnesses as well as to ensure discovery/ production of documents are only few of the factors relevant for adjudicating upon the issue as to whether the authority deciding the dispute answers the description of Tribunal or not. He clarifies that even if the aforesaid two factors are absent while other relevant factors to be taken into consideration are present, the authority deciding the dispute answers the description of Tribunal and the aforesaid two factors are to be ignored.;