IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Review Application No. 201 of 2008 & Delay Condonation Application No. 1087/2008 IN Writ Petition (M/S) No. 849 of 2007 The “Good Shepherd” Agricultural Mission and two others. … Applicant-Petitioners. Versus Prescribed Authority, Societies Registration Act and another. … O.P.-Respondents. Sri B.S.Khanka, learned counsel for the applicant-petitioners. Sri K.P.Upadhyay, learned Addl. C.S.C. for the State-respondent No.1. Sri Sharad Sharma & Sri Hari Mohan Bhatia, learned counsel for the respondent no.2. Date April 07, 2008. Hon’ble B.S.Verma, J. (Recall Application with Delay Condonation Application) Sri B.S.Khanka, learned counsel for the applicant- petitioners, Sri K.P.Upadhyay, learned Addl. Chief Standing Counsel for the State and Sri Sharad Sharma and Sri Hari Mohan Bhatia, learned counsel for the respondent-O.P. No.2. Heard on the delay condonation application. There is delay of 140 days in filing the review application. The grounds mentioned in the affidavit for condoning the delay in filing the review application are sufficient. Delay is hereby condoned. The delay condonation application is allowed. Heard learned counsel for the parties on review application. This review application has been filed on behalf of the petitioners in Writ Petition (M/S) No. 849 of 2007, which was disposed of finally vide order dated 18-9-2007 along with Writ Petition No. 827 of 2007 (M/S) by a common judgment. 2 Review application has been filed on behalf of the petitioners on the ground, which have been raised in paragraph nos. 3, 4 and 5 in the affidavit annexed with the review application wherein it has been stated that according the rules and regulations of the petitioners society, the administration is governed by the Board, which will be permanent in nature and in case any permanent vacancy arises due to death, resignation and removable of any member of the governing body (Board, the same will be filled by the members of the Board and General Body staff and there is no provision to conduct a general election to constitute a new board. It has also been stated that this Hon’ble Court has passed an order dated 18-9-2007 of which review has been sought on relying the statement of both side counsel without going into the merits of the case and both the aforesaid said writ petitions (WPMS 849 of 2007 and WPMS No. 827 of 2007) have been disposed of with the direction to the Deputy Registrar Firms, Societies and Chits Haldwani shall manage the affairs of the society till the formation of new Board. The sole contention of the learned counsel for the petitioners-applicant is that the consent was given by the applicants for conducting the election for the post of Director and Secretary and consent was not given to conduct the election of the whole Board. The learned counsel appearing for the respondent no.2- O.P. Maxine Shipway has contended that the learned Prescribed Authority in his order has also stated that there were four vacancies lying vacant in the Board and one post was lying vacant because of abandonment of the post of Deputy Director by Malcome Rencountere and the strength of the Board is seven in number. 3 The Writ Petition nos. 849 (M/S) of 2007 and Writ Petition No. 827 of 2007 were filed by the review petitioners as well as respondent-Opposite Party, wherein the order passed by the Prescribed Authority dated 6-7-2007 was assailed. After hearing the review petitioners as well as opposite party, the Prescribed Authority had set aside the election of the Director on the basis of the proceedings, which allegedly took place on 12-5-2003 and appointment of Moti Ram Saklani as Secretary in place of Velrie Cattle on the strength of proceedings which allegedly took place on 5-4-2004 and it was also directed that the Deputy Registrar, Firms, Societies and Chits, Haldwani shall manage the affairs of the Society till the formation of the new Board. During the course of hearing, the learned counsel for the petitioners in both the writ petitions and learned Additional Chief Standing Counsel for the State had agreed that the election of the Board be conducted within a stipulated period and the writ petitions be disposed of with suitable direction to the Deputy Registrar, Firms, Societies and Chits Haldwani. This Court in the interest of smooth running of management and affairs of the Society, directed the Deputy Registrar concerned to conduct the elections of the Board of the Society as per Rules, Regulations and Bye-laws of the society within a period of six weeks from the date of production of certified copy of the order. Even though the learned counsel for the petitioner in both the petitions had given their consent to hold the election of the Board, the review petitioner no. 2 of Writ Petition No. 849 of 2007, have claimed himself to be the Director and petitioner no. 3 to be the Secretary of the Board. Before filing the review/recall application one clarification application was filed by the review petitioners to this 4 effect that the consent, which was given, it was pertaining to the post of Director and Secretary and consent was not given for other posts of the Board. The clarification application was rejected by order dated March 03, 2008 and liberty was given to the petitioners to file review/recall application. In the review/recall application, the grounds, which have been raised are almost the same. Learned counsel for the applicant-petitioners has relied upon the judgment of the Apex Court in the case of S. Sethuraman Vs. Rvenkataraman and others [(2007) 6 S.C.C. Page 382]. In that case it was observed that when the extant rule operating in the field was referred to by the High Court, it should have applied the same. What, therefore, could have been done by the appellate authority was to follow the provisions of the Rules and not to act de-hors the same. The contention of the learned counsel for the review-applicants is that principle of estoppel cannot be applied in such cases when the consent was given de-hors the Rules. The ratio of the judgment cannot be disputed. Having heard the contentions of learned counsel for the review-petitioners as well as by learned counsel for the O.P.- respondent no.2, this fact is not disputed that the consent was given by the learned counsel for the petitioners as well as learned counsel for the respondent that the election of the Board be conducted within a stipulated period. The relevant paragraph of the judgment at page 4 is quoted as under:- “The learned counsel for the petitioners in both the writ petitions and learned Additional Chief Standing Counsel for the respondent-State have agreed to it that the elections of the Board be conducted with a stipulated period and the writ petitions be disposed of with suitable direction to the Deputy Registrar, Firms, Societies and Chits Haldwani in that regard.” 5 The contention of the learned counsel for the review petitioners that direction was given by this Court on the basis of consent of the parties counsel is misconceived because the operative portion of the order reads as under:- “Accordingly, in the interest of smooth running of management and affairs of the Society, directed the Deputy Registrar concerned to conduct the elections of the Board of the Society as per Rules, Regulations and By laws of the society within a period of six weeks from the date of production of certified copy of the order.” The direction was given to conduct the election of the Board as per Rules, Regulations and Byelaws of the society. According to the petitioners instead of conducting the election of Board of the vacancies, which were to be filled up in the Board, election was conducted of the whole Board. If the election was conducted of the entire Board de-hors the Rules, no other persons, who were affected by the election of the Board, came forward to file review petition. Only the review petitioner and petitioners no. 2 and 3 of Writ Petition No. 849 of 2007 claiming themselves to be Director and Secretary filed the review application. The learned counsel on behalf of the review petitioners at least agreed to conduct fresh elections for the post of Director and Secretary, which according to them are lying vacant. If despite the direction of this Court, election has not been conducted as per Rules, Regulations and Byelaws of the society, the remedy is not a review petition rather it is a civil suit. With these observations, the review petition is dismissed. However, the review petitioners may avail appropriate remedy before appropriate forum if they feel that the election of the Board was not conducted as per rules, regulations and bye-laws of the society, if so advised. ( B.S.Verma, J.) RCP 6