Tarun Agarwala - (1.) HEARD Sri M. K. Gupta, assisted by Sri Nitin Sharma, the learned counsel for the petitioners, Sri Ashok Mehta, the learned counsel for respondent Nos. 5 to 12 and the learned standing counsel for respondent Nos. 1 to 4 who is a mute spectator in the entire proceedings.
(2.) THE petitioners are the plaintiffs, who applied for membership of the General Body of the institution under the scheme of administration framed under the U. P. Intermediate Education Act. THE Committee of Management by its resolution dated 18.11.2006, accepted the proposal of inducting new members, namely, the petitioners, and directed the treasurer to accept the amount on or before the next meeting of the Committee of Management. It has come on record that the treasurer deposited the amount on 13.12.2006. THE Committee of Management next met on 2.1.2007, on which date, 20 members of the Committee of Management ratified the earlier resolution of 18.11.2006 and the petitioners became members of the General Body of the Educational Institution. It transpires that the election process started w.e.f. 27.11.2007 to elect new office bearers of the Committee of Management. It transpires that trouble started when respondents No. 5 to 11 apparently made a complaint before the District Inspector of Schools, Meerut, (hereinafter referred to as D. I.O.S., who is alleged to have passed an ex parte order holding that the petitioners were not eligible to become members of the General Body of the Educational Institution on the ground that the acceptance of the membership fee was in violation of Clause 7 of the Scheme of Administration. THE D.I.O.S. vide its order dated 19.12.2007 held that the induction of the petitioners as members was invalid. This order of D.I.O.S. was apparently passed after the election process had been initiated. On the basis of this order, the petitioners became ineligible to participate in the election process and accordingly instituted a suit for declaration and for injunction praying that the order of the D.I.O.S. dated 19.12.2007 was a void order and further prayed for injunction restraining the respondents from interfering in the right of the petitioners to participate in the election, being valid members of the General Body of the Institution. Alongwith the suit, an application for temporary injunction was also filed under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure. The contesting respondents No. 3 to 12 were not parties to the suit but were made parties on an application for impleadment made by them. The contesting respondents filed their objections and the trial court, after hearing all the parties, issued a temporary injunction permitting the petitioners to participate in the election which was subject to the result of the suit. The contesting respondents, being aggrieved by the grant of injunction, filed an appeal under Order XLIII, Rule 1 (r) of the C.P.C., which was allowed and the injunction granted by the trial court was set aside. The plaintiffs, being aggrieved by the order of the lower appellate court, have filed the present writ petition. The lower appellate court held that the suit was barred by Section 41 (h) of the Specific Relief Act, since the petitioners had filed a representation before the Joint Director of Education against the order of D.I.O.S. Further, the lower appellate court found that the D.I.O.S. had jurisdiction to adjudicate upon the matter under Section 16A (7) of the Intermediate Education Act. The lower appellate court further found that the deposit of the membership fee made on 13.12.2006 was not in accordance with the provision of the Clause 7 of the Scheme of Administration and such irregularities was fatal to the membership of the petitioners and consequently the membership of the petitioners was invalid and therefore, the petitioners had no right to participate in the election. The lower appellate court also relied upon an affidavit of the President of the Committee of Management who submitted that no such meeting of the Committee of Management took place on 18.11.2006 or on 2.1.2007. The lower appellate court also took into consideration the affidavit of four persons who submitted that they had neither applied for membership nor had deposited any amount.
(3.) THE bone of contention is the interpretation of Clause 7 of the Scheme of Administration. THE question as to whether the said provision is mandatory or directory and whether the said provision provides a forum before the D.I.O.S. for adjudication of a dispute with regard to the grant of membership to a person are all questions to be adjudicated by the trial court in the suit and any comment on this aspect of the matter at this stage would prejudice the trial court in giving its finding, but this much is clear, that the petitioners were inducted as members by a resolution of the Committee of Management dated 18.11.2006. Admittedly, the amount was deposited on 13.12.2006 and the resolution of 18.11.2006 was ratified by the C.O.M. on 2.1.2007. At the present moment, prima facie it appears that the petitioners became members of the General Body of the Institution. The question whether the petitioners were validly inducted as members of the institution is a question which also requires to be adjudicated by the trial court after evidence is led. The trial court will also adjudicate upon the interpretation of Clause 7 of the scheme of administration, but at the present moment, a prima facie case has been made out that the petitioners were inducted as members by the Committee of Management. The affidavit of one person to the effect that no such resolution took place is again a question of fact, especially when there is no affidavit from other members of the Committee of Management who had participated in the meeting of 18.11.2006 and 2.1.2007. Further, the Court finds that the dispute, if any, was required to be adjudicated before D.I.O.S. within one month. In the present case, the contesting respondents who are also members of the General Body of the institution raised this issue when the election process had started. It is settled law that such issues can only be raised after the election is held and such issue cannot be raised when the election process had started. The Supreme Court has consistently held that the election process should not be disturbed. A complaint was made by the respondents after the election process had started and based on that complaint, the D.I.O.S. issued an order dated 19.12.2007.;