HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment reserved on 13.7.2015 Judgment delivered on 28.7.2015 Case :- WRIT - C No. - 37924 of 2015 Petitioner :- C/M Sri Swami Vivekanand Madhyamik Vid. Thru' Secy. & Anr. Respondent :- State Of U.P. & 2 Others Counsel for Petitioner :- D.K. Singh,Sharad Chandra,V.K. Singh Counsel for Respondent :- C.S.C.,Neeraj Tripathi,Ram Krishna Mishra Hon'ble Mahesh Chandra Tripathi,J.
1. Heard Sri G.K. Singh, Senior Advocate assisted by Sri V.K. Singh, learned counsel for the petitioners; Sri Pankaj Rai, learned Additional Chief Standing Counsel for the respondent Nos. 1 and 2 and Sri Neeraj Tripathi, learned counsel for the respondent No. 3.
2. By means of this writ petition, the petitioners have prayed for quashing the impugned order dated 10.6.2015 passed by the Deputy Registrar, Firms, Societies and Chits, Kanpur.
3. Brief facts giving rise to the present case are that there is a Society known as "Sri Swami Vivekanand Madhyamik Vidyalaya Sahar, District Auraiya" (hereinafter referred to as the Society). The Society was registered on 30.7.1969 under the Societies Registration Act, 1860 (in short the Act), renewed from time to time. The affairs of the Society are governed by its bye-laws. According to bye-laws of the Society, as amended upto date, there are two categories of members i.e. founder members and ordinary members. The name of five founder members are mentioned in the bye-laws. The bye-laws further provides that in case a vacancy occurs in respect of the founder member, it shall be filled up by nomination by the remaining founder members. With regard to the ordinary members, the bye-laws provide that any person, who intends to become a member, has to deposit Rs.10/- annually and in case he deposits Rs.36/- in one instalment, he would become member for three years. The interested person has to move an application before the founder members and the founder members in a meeting to be held for that purpose may accept the said person as a member.
4. The last undisputed election of the Committee of Management of the Society was held on 16.7.2007, in which one Jagdamba Singh Chauhan was elected as President and Shri Ganga Kumar Pandey was elected as Secretary. For the first time, the proceeding of the election dated 16.7.2007 was filed before the Deputy Registrar, Firms, Societies and Chits, Kanpur on 16.3.2012 by Shri Ganga Kumar Pandey, Secretary along with an application for renewal of the registration of the Society with effect from 10.10.2010 for a period of five years. Along with the said application, Shri Ganga Kumar Pandey also filed a copy of the resolution dated 16.3.2012 for holding election of the Committee of Management; a list of 20 members of the general body and the list of office bearers of the Society for the year 2011-12. The Deputy Registrar passed an order on 19.3.2012 granting renewal of registration of the Society from 10.10.2010 for five years. According to bye-laws, the tenure of the Committee of Management is of five years. The term of the Committee of Management expired on 15.7.2012 and no election was held by the then Committee of Management.
5. In the meanwhile, some persons moved an application before the founder members for becoming members and they had also deposited the requisite fees as per the bye-laws. They were accepted as members by the founder members. The list of the members of the general body was approved and finalized in the meeting of the general body held on 12.6.2011. The aforesaid meeting dated 12.6.2011 was convened by the then Secretary Shri Ganga Kumar Pandey and the proceedings of the said meeting dated 16.6.2011 were signed by him. By resolution no.2, the list of 52 members including old and new members was finalized and the meeting dated 12.6.2011 was also attended by the newly enrolled members. Shri Jagdamba Singh Chauhan, President submitted his resignation and his resignation was accepted vide resolution-3 on 12.6.2011 and vide resolution-4 the post of president was filled up by electing one Shri Anil Yadav as President. Shri Ganga Kumar Pandey, the then Secretary moved an application on 15.9.2014 together with the list of office bearers of the year 2014-15. Along with the aforesaid application, the proceedings dated 12.6.2011, by which the change in the list of office bearers had been brought about and the proceedings of annual general meetings of the general body, which were held on 10.6.2012, 7.5.2013 and 8.6.2014, were also filed, requesting to register the list of office bearers of the year 2014-15. Acting upon the aforesaid application dated 15.9.2014, the Deputy Registrar passed an order on 14.10.2014 registering the list of office bearers for the year 2014-15 submitted by Shri Ganga Kumar Pandey.
6. The term of the Committee of Management elected on 16.7.2007 expired on 15.7.2012 and no fresh election was held by the outgoing management. A request was made by 11 members to Shri Ganga Kumar Pandey vide application dated 29.11.2014 for getting fresh elections. However, Shri Ganga Kumar Pandey did not take any action in the matter. Consequently the aforesaid 11 persons approached the President by making an application before him for getting fresh election. On receiving the aforesaid application, the President issued an order on 1.12.2014 asking the Manager to initiate election proceedings. When he did not take any action for fresh elections, the President himself issued an agenda notice on 16.12.2014 for getting fresh election held on 28.12.2014. All the members of the general body were sent notices by registered post in respect of election proceedings. The respondent no.3 filed an objection/application before the Deputy Registrar on 01.1.2015. The election was held on 28.12.2014, in which Shri Anil Yadav was again elected as President and the petitioner no.2 was elected as the Secretary. On 01.1.2015 the respondent no.3 filed a copy of the election proceedings dated 18.7.2012 and also filed copies of the proceedings dated 25.2.2013, 1.2.2013, list of members of the general body containing 20 names and the list of office bearers of the years 2012-13, 2013-14 and 2014-15 with a request that the list of 2014-15 may be registered. The Deputy Registrar registered the list of office bearers dated 15.9.2014 submitted by Shri Ganga Kumar Pandey for the year 2014-15 on 14.10.2014. Since the respondent no.3 submitted another list of office bearers for the same year i.e. 2014-15, the Deputy Registrar issued notices to the office bearers, whose names were there in the earlier list of 2014-15, which was registered on 14.10.2014. Since there were two rival claims set up before the Deputy Registrar, he should have referred the said dispute to the Prescribed Authority under Section 25 (1) of the Act. Instead of referring the said dispute to the Prescribed Authority under Section 25 (1) of the Act, the Deputy Registrar proceeded to decide it himself. He issued notices to the parties concerned calling upon them to substantiate their respective claims. The petitioner filed objections before the Deputy Registrar, denying the claim set up by the respondent no.3. By the impugned order dated 10.6.2015, the Deputy Registrar, after hearing the parties concerned, decided the said dispute and set aside the earlier order dated 14.10.2014, by which he had registered the list of office bearers of the year 2014-15 under Section 4 of the Act. He also held that the proceedings dated 12.6.2012, whereby certain members were enrolled and Shri Anil Yadav was elected as President, was invalid. He has also declared the other proceedings of the subsequent years of the general body relied upon by the petitioners as invalid and he has also declared the election of the petitioner dated 28.12.2014 as invalid.
7. Shri G.K. Singh, Senior Advocate, appearing for the petitioners submits that the impugned order passed by the Deputy Registrar dated 10.6.2015, insofar as it recalls the earlier order dated 14.10.2014, is absolutely illegal being without jurisdiction. Under the Societies Registration Act, the Deputy Registrar does not have any powers to review his own order and by the impugned order dated 10.6.2015 the Deputy Registrar has reviewed his earlier order dated 14.10.2014, which was not permissible in law. He submits that the reasons assigned by the Deputy Registrar for setting aside the resolution dated 12.6.2011 are unsustainable in law and are perverse. He has placed reliance on a judgment of this Court reported in 2011 (3) ADJ 813.
8. Shri G.K. Singh, Senior Advocate also submits that the first reason, which has been assigned by the Deputy Registrar for reaching to a conclusion that the resolution dated 12.6.2011 was bad, is that vide resolution no.2 it was noted by the members of the general body present in that meeting that certain persons were enrolled as members by the Founder Samiti and the Founder Samiti, according to the Deputy Registrar as per the bye-laws, did not have the authority to do so. The Deputy Registrar has totally misread the bye-laws of the society. The bye-laws of the Society clearly empowers the founder members only to enroll members. The resolution dated 12.6.2011 noticed the aforesaid fact that certain members had been enrolled by the founder members and by the said resolution, said enrollment was formally approved. The second reason, which has been assigned by the Deputy Registrar in the order impugned for discarding the resolution dated 12.6.2011, is that in case the membership of newly enrolled members was being approved, then members, whose membership was being approved, were not supposed to participate in the said meeting. As mentioned above, those persons, who had been enrolled as members, had already been enrolled earlier by the founder members. They were, therefore, entitled to participate in the meeting of the general body, which was held on 12.6.2011. The Deputy Registrar was not correct in saying that those persons, whose membership was being approved, were not entitled to participate in the said meeting.
9. It is submitted that the third reason assigned by the Deputy Registrar for discarding the resolution dated 12.6.2011 is that despite notice, only a photostat copy of the said proceedings was submitted by Shri Anil Yadav, and not the original proceedings. The Deputy Registrar has failed to take note of the fact that as on 12.6.2011 the Respondent no.3 was the Secretary and the entire papers and records of the Society were with him. He was duty bound to produce the said proceedings and not Shri Anil Yadav, who was elected as President in the said meeting. The President is not supposed to maintain records of the Society. Since the dispute had arisen in the Committee of Management of the Society in the year 2014, the documents were not produced by the respondent no.3 before the Deputy Registrar.
10. Learned counsel for the petitioners submits that the Deputy Registrar has invalidated the elections dated 28.12.2012 on two reasons, firstly that the proceedings dated 28.12.2014 are based upon the order dated 14.10.2104 passed by the Deputy Registrar and since the said order had been set aside, the proceedings dated 28.12.2014 would also fall through. The order dated 14.10.2014 had been recalled by the Deputy Registrar for the reason that it was based upon the proceedings dated 12.6.2011, which was found to be invalid by him. Secondly, that since the aforesaid election was held beyond the term of five years of the Committee of Management, it was invalid. The Deputy Registrar has failed to take into consideration the fact that a Committee of Management of the Society does not become defunct and it continues till fresh elections are held or till an order is passed under Section 25 (2) of the Act by the Registrar for holding fresh elections. Since in the present case no order till 28.12.2014 was passed by the Deputy Registrar for holding election under Section 25 (2), the members of the general body of the Society were fully empowered to get the elections held. The Deputy Registrar could not have decided the said dispute himself and he should have referred the same to the Prescribed Authority under Section 25 (1) of the Act. He has placed his reliance on the judgments of this Court reported in 2001 (7) ADJ 643; 2010 (9) ADJ 795 & 2014 (1) ADJ 44 in support of his argument.
11. Learned counsel for the petitioners submits that after discarding the claim set up by the petitioners the Deputy Registrar has accepted the election of contesting respondent dated 18.7.2012 without discussing anything. Admittedly, the election proceedings dated 18.7.2012 were filed after more than two and half years on 1.1.2015 by the contesting respondent. For upholding an election, the Deputy Registrar requires to examine as to whether the election was held in accordance with the bye-laws; whether election meeting was convened by a person authorized and as to whether the aforesaid election was held on the basis of a valid electoral college but the Deputy Registrar has not considered these basic issues while upholding the elections dated 18.7.2012. .
12. Lastly, Shri G.K. Singh, Senior Advocate submits that if there were serious disputes between the Committees, the Deputy Registrar had no authority to accord approval of the Committee and attest the signatures.
13. On the other hand, Shri Neeraj Tripathi, learned counsel for the contesting respondents has vehemently submitted that nowhere in the writ petition the petitioners have given any details regarding their membership nor any receipt has been filed. The alleged claim, which has been set out on the basis of some enrollment in the meeting dated 12.6.2011, can also not be sustained on the ground that no such meeting had ever been convened by the founder members. Nothing has been brought either before the Deputy Registrar or before this Court giving any details regarding their deposits towards the fee required for the membership; no enrolment and even before the authority concerned the only photocopy of the alleged resolution had been placed. He has also placed his reliance on the judgments in A.P. Aboobaker Musalia vs. District Registrar (G) Kozhikode and others (2011) 11 SCC 247; Committee of Management, Rashtriya Junior High School (Society), Babhaniyaon, District Jaunpur vs. The Assistant Registrar, Firms, Societies and Chits, Varanasi Region, Varanasi and others (2005) 3 UPLBEC 2817; Committee of Management, Baba Ram Sahai Shiksha Samiti, Ballia and others vs. Assistant Registrar, Firms, Societies and Chits, Azamgarh and others 2009 (5) ESC 2675 (All); Arvind Kumar vs. State of UP and others 2010 (2) ESMC 1345 and Writ C No.18827 of 2015 (Lietenant Chhote Singh Sainik Shiksha Prasar Samiti & another vs. Registrar, Firms, Societies and Chits and 2 ors decided on 7.4.2015.
14. Shri Neeraj Tripathi also submits that Section 4 of the Act deals with the filing of annual list of managing body of a society but there is no provision in the said Act for filing of list of general body of the Society. A large number of the Societies are disputed due to non-existence of its correct list of general body with the Registrar. In several cases, an illegal person, fraudulently produces before the Registrar an incorrect list of general body of the Society and claims to be the member or office bearer of such society. In order to avoid such situation, the State Government amended the Societies Registration Act, 1860 in its application to Uttar Pradesh and inserted a new Section 4-B by U.P. Act No.23 of 2013 w.e.f. 9.10.2013 providing for filing of the list of general body with the Registrar at the time of registration or renewal of such society.
15. The newly inserted Section 4-B (1) provides that at the time of registration/renewal of a society, list of members of general body of that society shall be filed with the Registrar mentioning the name, father's name, address and occupation of the members. The Registrar shall examine the correctness of the list of members of the general body of such society on the basis of the register of members of the general body and minutes book thereof, cash book, receipt book of membership fee and bank pass book of the society. Sub-section (2) provides that if there is any change in the list of members of the general body of the society referred to in sub-section (1), on account of induction, removal, registration or death of any member, a modified list of members of general body, shall be filed with the Registrar, within one month from the date of change. Sub-section (3) provides that the list of members of the general body to be filed with the Registrar under this section shall be signed by two office bearers and two executive members of the society.
16. Shri Neeraj Tripathi submits that Section 4-B (1) of the Act gives right to the Deputy Registrar to scrutinize the relevant papers, material and if the membership is in dispute, then it would be appropriate that the petitioner may approach the Civil Court and as such, the disputed facts cannot be assailed by means of writ petition Article 226 of Constitution of India.
17. Having gone through the records and having heard the learned counsel for the parties, this Court finds that while exercising powers under Section 4 of the Act, 1860, the Deputy Registrar is not to go into and decide an election dispute, but at the same time he is not to act as a mere rubber stamp and relegate the parties to take recourse to Section 25 of the Act, 1860. For the purposes of exercising the said discretion, the Deputy Registrar must be at least prima facie satisfied that the rival claim set up and raised before him is one, which is liable to be at least prima facie countenanced.
18. In Committee of Management, Rashtriya Junior High School (Society), Babhaniyaon, District Jaunpur Vs. The Assistant Registrar, Firms, Societies and Chits, Varanasi Region, Varanasi & Ors, reported in (2005) UPLBEC 2817 a Division Bench of this Court as under:
"4. It is the standard law that, if any, bonafide dispute as to two rival Committees of Managements is shown to be in existence to the Registrar or Assistant Registrar, a reference by him of the dispute to the Prescribed Authority follows as a matter of course. But a bonafide dispute does come into existence merely because one member, even if he is a founder member, chooses simply to say or ascertain that he has a rival Committee and therefore, a bonafide dispute as to Management exists. Sufficient prima facie material must be produced before the Registrar before he can validly exercise his jurisdiction of referring the dispute. He must, simply put, be satisfied that there is something to refer and he is not merely sending litigations before the Prescribed Authority, without there being even a shadow of real cause for litigation."
19. Accordingly, and in view of the above, this Court finds no merit in the writ petition. It is accordingly, dismissed. .
(Mahesh Chandra Tripathi,J.) Order Date :-28.7.2015 RKP