- (1.) SANJAY Misra, J. Heard learned Counsel for the petitioner as well as learned Standing Counsel for the opposite party Nos. 1 to 5 and Sri S. P. Shukla, for the opposite party Nos. 6 and 7.
(2.) THE petitioner is aggrieved by the order dated 3. 4. 2002 (Annexure No. 23 to the writ petition) as also the order dated 27. 12. 2002 passed by the respondent No. 5, the Sub-Divisional Officer, Mankapur, District Gonda. The submission of learned Counsel for the petitioner is that an Authorized Controller had been appointed for the institution and under his aegis the election dated 24. 8. 1997 was conducted. The said election was granted approval by the Sub-Divisional Officer by order dated 9. 8. 2001 while exercising his power under section 25 (1) of the Societies Registration Act. The contention of learned Counsel for the petitioner is that subsequent to the aforesaid order dated 9. 8. 2001, the respondent No. 5 has proceeded to pass the impugned order dated 3. 4. 2002 thereby recalling the earlier order dated 9. 8. 2001. As a consequence of the order dated 3. 4. 2002, the respondent No. 5 has proceeded to cancel the; election dated 24. 8. 1997 by the impugned order dated 27. 12. 2002. The contention is that the Sub-Divisional Officer while exercising his jurisdiction under section 25 (1) of the Act could not recall his earlier order, which would amount to exercising a power of review, which he was inherently lacking. The second submission is that the election dated 24. 8. 1997 was conducted under the Authorized Controller and was duly approved. Consequently, the dispute raised with respect to the election could be decided by the respondent No. 5, which he did on 9. 8. 2001 and the said election was found to have been validly held. The third submission of learned Counsel for the petitioner is that even in the application made by the respondent No. 6 and 7 they were claiming on the basis of their own election dated 24. 4. 2001 and the election of 1997 held by the Authorized Controller was not a subject matter of the objection filed under section 25 (1) of the Act. For the aforesaid contention, learned Counsel for the petitioner has referred to the findings recorded by the Sub-Divisional Officer in the impugned order dated 27. 12. 2002. He contends that in so far as the election of 1997 is concerned the respondent No. 5 has set it aside on the ground that the first election having been held in the year 1993, the next election was due only in the year 1998, hence the election of 1997 was invalid. The second ground taken in the impugned order is that there was no list of the general body of the Society, that there was no agenda nor it was circulated and that the principal was not present when the proceedings for the elections were held. The Sub-Divisional Officer also held that none of the original record was produced by the petitioner before him. For the aforesaid grounds on the basis of affidavits filed by various members in support and against the parties, the election of 1997 has been set aside. He-further contends that the election dated 24. 4. 2001 on the basis of which the respondent No. 6 and 7are claiming has also been set aside by the impugned order dated 27. 12. 2002 and in so far as the respondents election is concerned, the order of the Sub-Divisional Officer has attained finality because admittedly the same has not been challenged by the respondent till today. Learned Counsel for the respondent Nos. 6 and 7 contends that the order dated 9. 8. 2001 was an ex parte order inasmuch as by referring to paragraph No. 34 of the counter affidavit, he submits that the date fixed before the Sub-Divisional Officer had been preponed by him and no notice of the same was available with the respondents, hence, the order dated 9. 8. 2001 was passed by the respondent No. 5 in a clandestine manner and in connivance with the petitioner. He further contends that the respondent No. 5 while exercising his jurisdiction under section 25 (1) of the Act has inherent power to recall the order on the ground that preponement of the date without notice to the respondents' amounts to a fraud on the power being exercised by the respondent No. 5. He further contends that when the order dated 3. 4. 2002 had been passed, the petitioners did not challenge the same and have proceeded before the respondent No. 5 which has culminated in the passing of the impugned order dated 27. 12. 2002. For the aforesaid reasons he contends that the findings of fact recorded in the impugned order holding the election 24. 8. 1997 as invalid cannot be faulted and does not require any interference by this Court under Article 226 of the Constitution of India.
(3.) HAVING heard learned Counsel for the parties and perused the record, it appears that the election dated 24. 8. 1997 was held under the aegis of the Authorized Controller and a Writ Petition No. 2451 (M/s) of 1997 was filed wherein the orders dated 11. 4. 1997 and 31. 7. 1997 were under challenge whereby the election was scheduled by the Authorised Controller. This Court recorded that the earlier election prior to 1997 was in dispute and the matter was pending before the Deputy Director of Education under section 16-A (7) of the U. P. Intermediate Education Act. It found that the period of three years and one month had already expired and according to the scheme, the Authorised Controller had rightly pointed out and has directed to hold the election for the office bearers of the Committee of Management. This Court was of the opinion that no intervention at this stage was required and if the petitioners therein are entitled to participate in the election, they may approach the competent authority for ventilation of the grievance and if such an application is made it shall be decided. After passing of the aforesaid order dated 22. 8. 1997, the election appears to have been held on 24. 8. 1997. The fact that there were rival registration obtained by the parties has also been brought on record, it has been pointed out that the registration obtained in the name of the society by the respondent Nos. 6 and 7 was cancelled in proceedings held in the year 1993 and as such the registration, as brought forward by the petitioners still continues to be validly renewed. In support of the first ground taken by learned Counsel for the petitioner he has placed reliance upon a decision of this Court in the case of Gaya Dutt Mishra v. District Inspector of Schools, Etawah and others 1995 (13) LCD 1148. His contention is that the Sub-Divisional Officer while exercising his jurisdiction under section 25 (1) of the Act could not have inherent power to recall and order passed by him earlier. Paragraph 10 of the aforesaid judgment is quoted herein: - " Sri S. M. Dayal Submitted that every Administrative and Executive authority has inherent power to look into the correctness of the order and recall the same passed by him, if he is satisfied that the order passed by him was under some misapprehension of facts. He relied on the decision of the Division Bench of this Court in Suraj Narain S/o Badri Prasad v. District Magistrate 1958 ALJ 283. The learned Counsel for the respondent submitted that the order passed by the respondent No. 3 was based on ignorance of correct and real facts. Since he was not aware that the signature of Sri Jagdish Narain Misra on the application for correction/modification in the rules was genuine, he had passed the order on the application and the objection filed by the respondent. He considered it his legal duty and also as per the observations made in the interim order passed by the High Court in the writ petition, referred to above, he embarked into the investigation and enquiry about the genuineness of the signature of the person concerned by even looking into the report of the Handwriting Expert. The submission of the learned Counsel for the respondent cannot be accepted, as submitted. The law on the point is settled. There is admittedly no provision in the Act permitting review. Once the respondent No. 3 himself had rejected the application and objection filed by the O. P. Then he again thought it necessary to enter into the controversy and question of fact to find out whether the signature on the application was of Sri Jagdish Narain Misra was genuine or not. The High Court had not directed that any duty was to cast on the respondent No. 3 to review or recall the order passed by him. The direction for consideration of the representation does not mean that High Court had directed to recall the said order. The respondent No. 3 committed a manifest error of law in recalling the order passed by him in the impugned order, which is quashed. ";