Dr. D.P.S. Bhati & Another vs State Of U.P. & Others
2011 Latest Caselaw 4101 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Case :- WRIT - C No. - 53773 of 2000
 

 
Petitioner :- Dr. D.P.S. Bhati & Another
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- Suresh Singh, A. Kumar, Shailendra
 
Respondent Counsel :- C.S.C., B. Narain Singh, Devendra Pratap, H.N. Singh, M.N. Singh
 
With
 
Case :- WRIT - C No. - 12475 of 2004
 

 
Petitioner :- The Balwant Educational Society Agra And Another
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Sanjay Sharma, Shailendra, Shashi Nandan
 
Respondent Counsel :- C.S.C., R.K.Ojha, V.S. Parmar
 

 
Hon'ble Sudhir Agarwal,J.

1. Both these writ petitions are connected having common questions of law and facts and related to same institution, a premier and prestigious higher educational institution at Agra, namely, Raja Balwant Singh College, Agra (hereinafter referred to as the "College").

2. Certain factual matrix giving a bird eye view of the matter to understand the dispute may be stated as under.

3. Under the provisions of Codicil-Will of late Raja Balwant Singh of Awagarh (Etah), a private trust was founded on 31.05.1909. An application was made in the year 1915 to the local Government of United Provinces of Agra and Oudh by majority of members of Committee of Management of Balwant Rajput High School, Agra for security for money and immoveable property and land set forth in Schedule-I. The request was made to vest property in Treasurer of Charitable Endowment for United Provinces of Agra and Oudh (hereinafter referred to as the "Treasurer") on the following terms: "the income from the funds and property of the Trust shall be applied to the maintenance of the Balwant Rajput High School, Agra, and to the maintenance of the boarding house attached to the said school as laid down in para 18 of the scheme appended thereto."

4. It appears that a notice was issued on 16.06.1915 whereupon one objection was filed by Pt. Madan Mohan Malviya of Allahabad on 16.07.1915. The Government rejected objection and on 28.07.1915 issued notification under Section 4(1) of Charitable Endowments Act, 1890 (hereinafter referred to as "Act, 1890") declaring the securities for money and immoveable properties as stated in the latter and land as vested in "Treasurer".

5. The scheme of management provided in Schedule-II of the said notification contain 27 clauses and relevant ones are referred as under:

"1. His Highness Major General Maharaja Sir Pratap Singh Bahadur, CCSI, GCIE of Kashmir and Jammu shall be the patron of the Balwant Rajput High School.

2. His Honour the Lieutenant Governor of the United Provinces shall be the visitor, with power to advise regarding the affairs of the school.

3. The management and governance of the said school shall vest in a committee of management compound of:

(a) The Disst. & Session Judge, Agra for the time being.

(b) The Inspector of Schools for the Agra circle for the time being.

(c) The Civil Surgeon of Agra for the time being.

(d) The Raja of Awagarh and his successor for the time being, to the gaddi of the Awagarh estate provided that whenever the Raja is a minor the manager of the estate for the time being.

(e) Eleven members of the committee of management to be appointed as hereinafter prescribed.

4. The eleven persons who shall be the first member of the said committee of management are:

1.Raja Kushal Pal Singh of Kotla

2.Thakur Dhian Pal Singh

3.Diwan Chet Singh

4.Thakur Jawant Singh

5.Thakur Kalyan Singh

6.The Hon'ble Pandit Madan Mohan Malviya

7.Munshi Shankar Dayal

8.Thakur Udaivir Singh, Barrister of Law

9.Thakur Jogendra Pal Singh

10.Kunwar Drigpal Singh

11.Thakur Hanumant Singh

5. That in case a member of the committee of management resigns or otherwise ceases to be a member of the said committee, the remaining members of the committee shall within three months or within such further time as the Local Govt. may allow of the offices of a member failing vacant elect another qualified members to fill up the said vacancy and notify such election to the local Government.

6. That in the event of the remaining of the committee failing to elect a member to fill up the said vacancy within the period aforesaid the local govt. shall appoint a qualified person to fill up the said vacancy.

7. That the Disst. & Session Judge, Agra for the time being shall be the President of the committee.

8. The Raja of Awagarh for the time being shall be Vice-President provided that he be not a minor.

9. The first Secretary of the said committee shall be Thakur Dhian Pal Singh and in case of his resignation or ceasing to be the Secretary of the Committee, the Committee of management shall appoint one of its members to act as Secretary or such period as the Committee may fix.

13. The treasure of Charitable Endowments for the United Provinces of Agra and Oudh shall remit the income of the funds vested in him on account of this trust to the Secretary.

14. All money that may be received by the Secretary or by the Committee of management shall be deposited in the bank of Bengal, Agra Branch and shall be disbursed by cheques to be signed by the Secretary.

27. In the event of a question arising as to whether any particular student applying for admission into the school and boarding house was or was not a member of the Rajput Community within the meeting of that term as used in these rules, the decision of the committee of management on the point shall be final."

6. Obviously the aforesaid trust, therefore, run and maintain Balwant Rajput High School established at Agra.

7. At this stage, it would be appropriate to refer Sections 3, 4 and 5 of Act, 1890 as under:

"3. Appointment and incorporation of Treasurer of Charitable Endowments- (1) The Central Government may appoint an officer of the Government by the name of his office to be Treasurer of Charitable Endowments for India, and the Government of any State may appoint an officer of the Government by the name of his office to be Treasurer of Charitable Endowments for the State.

(2) Such Treasurer shall, for the purposes of taking, holding and transferring movable or immovable property under the authority of this Act, be a corporation sole by the name of the Treasurer of Charitable Endowments for India or, as the case may be, the State, and, as such Treasurer, shall have perpetual succession and a corporate seal, and may sue and be sued in his corporate name.

4. Orders vesting property in Treasurer- (1) Where any property is held or is to be applied in trust for a charitable purpose, the appropriate Government, if it thinks fit, may, on application made as hereinafter mentioned, and subject to the other provisions of this section, order, by notification in the Official Gazette, that the property be vested in the treasurer of Charitable Endowments on such terms as to the application of the property or the income thereof as may be agreed on between the appropriate Government and the person or persons making the application, and the property shall thereupon so vest accordingly.

(2) When any property has vested under this section in a Treasurer of Charitable Endowments, he is entitled to all documents of title relating thereto.

[* * *]

(4) An order under this section vesting property in a treasurer of Charitable Endowments shall not require or be deemed to require him to administer the property, or impose or be deemed to impose upon him the duty of a trustee with respect to the administration thereof.

5. Schemes for administration of property rested in the Treasurer- (1) On application made as hereinafter mentioned, and with the concurrence of the person or persons making the application, the appropriate Government, if it thinks fit, may settle a scheme for the administration of any property which has been or is to be vested in the Treasurer of Charitable Endowments, and may in such scheme appoint, by name or office, a person or persons, not being or including such Treasurer, to administer the property.

(2) On application made as hereinafter mentioned, and with the concurrence of the person or persons making the application, the appropriate Government may, if it thinks fit, modify any scheme settled under this section or substitute another scheme in its stead.

(3) A scheme settled, modified or substituted under this section shall, subject to the other provisions of this section, come into operation on a day to be appointed by the appropriate Government in his behalf, and shall remain in force so long as the property to which it relates continues to be vested in the Treasurer of Charitable Endowments or until it has been modified or another such scheme has been substituted in its stead.

(4) Such a scheme, when it comes into operation, shall supersede any decree or direction relating to the subject-matter thereof insofar as such decree or direction is in any way repugnant thereto, and its validity shall not be questioned in any Court, nor shall any Court give, in contravention of the provisions of the scheme or in any way contrary or in addition thereto, a decree or direction regarding the administration of the property to which the scheme relates:

Provided that nothing in this sub-section shall be construed as precluding a Court from inquiring whether the Government by which a scheme was made was the appropriate Government.

5. In the settlement of such a scheme effect shall be given to the wishes of the author of the trust so far as they can be ascertained, and, in the opinion of the appropriate Government, effect can reasonably be given to them.

6. Where a scheme has been settled under this section for the administration of property not already vested in the Treasurer of Charitable Endowments, it shall not come into operation until the property has become so vested."

8. On 02.04.1960 a society was constituted and registered under the provisions of Societies Registration Act, 1860 (hereinafter referred to as the "Act, 1860") under the name and style "Balwant Educational Society, Agra". The objects of society as prescribed in para 3 were as under:

"3. The objects of the Society are as follows:-

(i) To make arrangements, suitable to the trend of times, for educating the children and youths, irrespective of caste or creed in various branches of education, vacations in life and professions.

(ii) To maintain, run, expand, develop and raise the Institutions known as the Raja Balwant Singh College, Raja Balwant Singh Higher Secondary School, Raja Balwant Singh Basic Schools, the Rural Higher Institute (Bichpuri) and the Raja Balwant Singh College of Education (founded and maintained under the provisions of the Balwant Educational Trust made by the late Raja Balwant Singh of Awagarh in the year 1901 and maintained and administered at present by the Balwant Rajput Educational Society, Agra) to the status of the highest academic educational institutions, and to start and take up other Educational, Vocational and Professional institutions according to the needs of the times.

(iii) To take measures for spreading such kind of education as may contribute to the highest public good according to the needs of the times;

(iv) To establish centres in the various parts of Uttar Pradesh of propagating the Educational activities of the Society; and

(v) To do all such other lawful acts as are incidental or conducive to the attainment of these objects."

9. The application for registration of the said society was submitted by following:

"1. Shri Mahesh Chandra, District and Sessions Judge, Agra, Ex-officio-President.

2. Shri Raja Surya Pal Singh, Rais, Awagarh, District Etah, Ex-officio-Vice-President

3. Shri Sudhakar Sharma, District Inspector of Schools, Agra, Ex-officio-member.

4. Dr. Kanahya Lal, Civil Surgeon, Agra, Ex-officio-member.

5. Dr. R.K. Singh, Principal, R.B.S. College, Agra, Ex-officio-member.

6. Dr. R.S.Yadava, Principal, R.B.S. Higher Secondary School, Agra, Ex-officio-member.

7. Dr. T.S. Tomar, R.B.S. College Agra, representative of the teachers of the R.B.S. College, Agra.

8. Shri Rao Krishna Pal Singh, Rais, Brij Jiwan, Niwas Dampier Park, Mathura, Honorary Secretary.

9. Dr. S.C. Sarkar, Homeopath Practitioner Civil Lines, Agra.

10. Kr. Prabal Pratap Singh, Rais, Wazirpura, Agra.

11. Kr. Jaipal Singh, Special Railway Magistrate, Aligarh.

12. Shri Sheo Baran Singh, Retired District and Sessions Judge, U.P. Visheshwar Bhavan, Shivpuri Bulandshahr.

13. Rajkumar Dharam Pal Singh, Rais, Castle Grand, Agra.

14. Shri T.N. Singh, Member, Planning Commission, Government of India, New Delhi.

15. Dr. N.K. Sethi, Ex-Principal, Agra College, Civil Lines, Agra.

16. Raja Mahendra Ripudaman Singh, M.L.A. Rais, Bhadawar House, Agra.

17. Dr. R.B.Shahi, Commissioner, Department of Animal Husbandry and Dairying, U.P. Lucknow.

18. Shri Munshi Singh, Retired Deputy Collector, Ramnagar Colony, Agra (Representative of the Old Boys)"

10. The Memorandum of Association of society is on record as Annexure-CA-2 of the counter affidavit filed by respondent no. 6 in Writ Petition No. 12475 of 2004. Clause 5 of Memorandum of Association say that the Governor of U.P., shall be the 'Visitor' and Clause 6 provides for Board of Management and reads as under:

"5. Patron and Visitor: The Board of Management will have power to select a patron or patrons for the Balwant Educational Society. His Excellency, the Governor of Uttar Pradesh shall be the Visitor with power to advise regarding the affairs of the Society.

6. Board of Management:-

(1) The Management, superintendence and governance of the Society and all its institutions shall vest in the Board of Management, composed of:-

(a) The District and Sessions Judge of Agra for the time being.

(b) The Raja of Awagarh Estate, provided that whenever the Raja is minor the manager of the Estate for the time being. The Raja may nominate his major son to attend meetings in his absence.

(c) The District Inspector of Schools, Agra for the time being.

(d) The Civil Surgeon of Agra for the time being.

(e) The Principal of the Balwant Rajput College, Agra for the time being.

(f) The Principal of the Balwant Rajput Higher Secondary School, Agra for the time being.

(g) One teacher of the Balwant Rajput College in order of seniority as judged by the length of service in the College. His term of membership shall be one year.

(h) An Old Boy of any of the institutions maintained by the Society to the elected by the Board of Management for a term of three years.

(i) Thirteen members to be elected by the Board of Management for a term of five years commanding from the date of appointment.

Provided that in the event of a question arising as to whether a particular person is or is not an old boy of the institution the decision of the Board of Management shall be final.

(2) Any member appointed under sub-clause (h) or (I) of clause (1) not attending meetings of the Board for one year, shall be deemed to have vacated his office.

(3) In case a member of the Board resigns or otherwise ceases to be a member of the Board, the remaining members of the Board may, within three months of the office of a member falling vacant, or within such further time as the State Government may allow, elect another member to fill up the said vacancy.

(4) In the event of the remaining members of the Board failing to elect a member to fill up the said vacancy within the period aforesaid, the State Government may appoint a person to fill up the said vacancy.

(5) The first members of Board of Management of the Balwant Educational Society shall be the same as may be members of the Committee of Management of the Balwant Rajput Educational Society on the day of the registration of the Balwant Educational Society:

Provided that such of these members who had been chosen for a fixed term, shall retire on the expiry of that term."

11. Clause 16 of Memorandum of Association provides for amendment in such memorandum and reads as under:

"16. Amendment: Any amendment to these rules may be made by a resolution of the Board of Management issued at a meeting specially convened for the purpose and by a majority of not less than two thirds of the members present and voting:

Provided that no such resolution shall take effect till approved by the Government of Uttar Pradesh."

(emphasis added)

12. It appears that an amendment was sought to be made in the scheme of trust as notified on 31.07.1915 and the said amendment was notified by Government on 18.05.1964. The modified scheme as notified on 18.05.1964 provides that trust shall be administered by Balwant Educational Society, Agra according to rules framed by it and registered under Act, 1860 by the Registrar. It also provides that Treasurer shall remit the amount of interest on the vested funds belonging to trust, on the Secretary of Society who shall utilise the same to give effect the purposes of trust.

13. Some amendments were proposed in the rules of Society and sent to Assistant Registrar, Firms, Societies and Chits, Agra in 1998 but the said amendment was not accepted by Assistant Registrar vide his letter dated 20.08.1999 and he declined to register it (Annexure-5 to the Writ Petition No. 12475 of 2004).

14. It is claimed that Society vide letter dated 22.11.1999 referred the said amendment to State Government for its approval since the amendment required approval of Government. The State Government vide letter dated 30.12.1999 informed the Secretary of Society that under Section 20 of Act, 1860 any amendment in the rules of Society shall be considered and would require approval of Registrar/ Additional Registrar of the Society of Chits Funds. Accordingly a letter dated 24.01.2000 sent to Assistant Registrar requesting him to approve amendment.

15. The Deputy Registrar, Agra by order dated 28.07.2000 referred to State Government's letter dated 30.12.1999, granted approval to aforesaid amendement in the Rules. Immediately thereafter by another letter dated 26.08.2000 the State Government revoked its letter dated 30.12.1999. This order dated 26.08.2000 was challenged by one Sonpal Singh in Writ Petition No. 44087 of 2000. Consequently the Registrar vide letter dated 26.09.2000 directed the Deputy Registrar to defer all his orders till the amendment is approved by State Government. This letter was issued by Registrar on a complaint made by one Sri Balbir Singh to the Registrar that Deputy Registrar has no authority to accept the said amendment. Pursuant to Registrar's letter dated 26.09.2000 the Deputy Registrar vide letter dated 20.10.2000 cancelled his order dated 28.07.2000.

16. The Registrar's order dated 26.09.2000 and Deputy Registrar's order dated 20.10.2000 have been challenged in Writ Petition No. 53773 of 2000 wherein an interim order was passed on 03.05.2001 staying both the orders.

17. The Government vide order dated 03.12.2001 rejected the amendment observing that it was contrary to Rule 26 of the Scheme of Management published on 31.07.1915. This order dated 03.12.2001 was challenged in Writ Petition No. 16362 of 2002. The writ petition was finally disposed of vide judgment dated 10.07.2003 observing that since the petitioner has already made a representation to the Principal Secretary, the same would be considered and decided by a speaking order within two months.

18. The Principal Secretary, however, rejected the representations vide letter dated 03.03.2004 (Annexure-1 to the Writ Petition No. 12475 of 2004) pursuant whereto the consequential letter was issued by Joint Secretary, Higher Education to petitioner's committee of management directing it to act according to scheme contained in notification dated 31.07.1915. The order dated 03.12.2001 whereby the amendement was rejected and the order dated 03.03.2004 rejecting representation have been assailed in Writ Petition No. 12475 of 2004.

19. The short question up for consideration is whether Deputy Registrar was competent to accept amendment in the Rules of Society in the peculiar facts of this case; and, whether the Government could have disapproved the amendment sought in the scheme.

20. Shi Shailendra, learned counsel for the petitioners submitted that in law no formal approval is required from Registrar. He refers to Section 4-A as amended in U.P. in the Societies Registration Act, 1860 (hereinafter referred to as the "Act, 1860") and contended that only an intimation of change in Rules of Society certified by not less than three members of governing body is required and nothing else. He, therefore, submitted that since no approval is required under statute, therefore, the amendment when passed by Society comes into effect immediately thereafter and its intimation and registration with Registrar is only a ministerial job. He further submitted that in any case, in accordance with the scheme of management published on 31.07.1915, the State Government authorised Registrar to pass order of approval and once the power was exercised by Registrar on 28.07.2000, the respondents ceased to possess any power to revoke, recall or nullify the said order. He also submitted that before passing impugned orders no notice or opportunity was afforded to petitioners and, therefore, the impugned orders are illegal and nullity. Challenging the very power of State Government for approval of amendment in Rules, it is contended that after induction of Section 4-A in the Act, 1860, the said power conferred by scheme of administration renders nullity and would be subservient to the statute.

21. I propose to consider the scope of Section 4-A of the Act, 1860, first, which reads as under:

"4-A. Changes etc. In rules to be intimated to Registrar. - A copy of every change made in rules of the society and intimation of every change of address of the society, certified by not less than three of the members of the governing body shall be sent to the Registrar within thirty days of the change."

22. The aforesaid provision has been considered by this Court in several matters and it would be useful to refer those authorities to find out the scope of Section 4-A of the Act, 1860.

23. In Sri Sanatan Dharam Sabha and another Vs. The Registrar, Firms, Societies and Chits, U.P., Lucknow and others, AIR 1989 All 189 a Division Bench held that the only requirement under Section 4-A of Act, 1860, is of giving intimation of amendement in Rules of the Society to the Registrar. Such requirement, therefore, is only directory and not mandatory. The question up for consideration therein was, whether the communication of an amendment if made beyond time prescribed in Section 4-A would invalidate the resolution making such amendment or not. The Court looked into the language of Section 4-A in the light of Section 27 of Act, 1860 and said in para 12 of the judgment:

"12. In the present case, the only allegation of non-compliance of Section 4-A is non-communication of the resolution passed by the general body within thirty days. It cannot be doubted it is merely a procedural difficulty and unless this defect leads to invalidate the resolution itself by some provision of the same statute it cannot be said to be mandatory in nature. It is significant Section 27 which provides for penalty confines to the non-communication of the papers as required under Section 4-A leading to the penal consequences, but does not further specify of penal consequences even if the same was communicated to the authorities concerned but beyond the period as stipulated under Section 4-A. Further, it is not in dispute that any bye-law could be amended by the general body and the communication is only done by the person who is authorised by the general body and mere failure of a person authorised by the general body to communicate to an authority under the statute would not lead to invalidate the action of the whole of the general body. It may be in order that a proper supervision and checks are made by the authorities under the statute period is provided and persons who are liable to communicate, if fail, are made liable for penalties, but, in our opinion, this cannot be stretched to make even the action of the general body to be invalid. The statue is meant for the proper functioning of a society and provisions are made to see the benefit which accrues to the said society are not whittled out and a statute is to be interpreted to give benefit to the subject for which it has been enacted. In fact, it is in cases where on account of default the very purpose is defeated and penal consequence is provided for and such a statute is to be read as mandatory in nature. It is not in all cases where penalty is provided, it is neither on account of merely of penal consequences provided for or use of word "shall" could lead to a conclusion that a particular statue is mandatory in nature. In the present case, we find the only ground on which it has been urged, to which we are concerned is whether mere non-communication of the resolution of the general body within thirty days as required under Section 4-A would lead to invalidate the very resolution on account of the said section being mandatory in nature in view of penalty provided for under Section 27. As we have said above, the penalty is on account of its non-communication to the authority concerned and the liability is fastened on the person who is responsible to communicate. However, it cannot be read further that if the said resolution was communicated to the authorities after the said period would also lead to invalidate the valid resolution passed by the said body. Thus, we are of opinion that Section 4-A of the aforesaid Act to the extent it requires a resolution to be communicated within a specified period if not communicated within such a period cannot lead to invalidate the said resolution. If such a provisions is made as mandatory then mere mischief of any, who is authorised to communicate, by dealing within the said period would frustrate the action of the whole general body, which could not be the intention of the Legislature. In view of this the finding of the Deputy Registrar, contained in Annexure 13 to the writ petition, that the election dated 23rd August, 1987, would be invalid on account of the resolution dated 21st April, 1985, not being communicated to the authorities within thirty days cannot be upheld."

24. In Managing Committee, Khalsa Middle School and another Vs. Mohinder Kaur (Smt.) and another, 1993 Suppl. (4) SCC 26 the Apex Court considered the date from which an amendment to the Rules would become effective. It held that amendment in rules would be effective from the date from which the resolution would be passed and not the date on which it was registered. The Apex Court said that Act, 1860 does not provide for registration of any amendment made in the Rules and Regulations. As such the amendment in Rules and Regulations would be effective from the date of passing of resolution and not the date on which the same is registered. Though there was no provision like Section 4-A in the case considered by Apex Court but what it has said in para 10 of the judgment may be reproduced hereunder for better understanding of the matter:

"10. Apart from the requirement contained in Section 12-A for registration of the change of name of a society with the Registrar, there is no requirement in the Societies Registration Act which requires registration of any amendment in the Memorandum of Association or the Rules and Regulations of a society to be registered with the Registrar. Even in the Companies Act, 1956 a distinction is made in the matter of alteration of the Memorandum of Association and alteration of the Articles of Association. Under Section 18 of the Companies Act, it is necessary that alteration of Memorandum of Association be registered with the Registrar of Companies within the prescribed period and the alteration takes effect from the date of its registration and under Section 19 (1), it is provided that the alteration shall have effect only if it has been duly registered in accordance with the provisions of Section 18. There is no such requirement with regard to registration of the alteration in the Articles of Association of the company. Here we are concerned with the amendment in the Rules and Regulation of the Society. In the absence of any requirement in the Societies Registration Act that the alteration in the Rules and Regulations must be registered with the Registrar, it cannot be held that registration of the amendment is a condition precedent for such an alteration to come into effect. It is, therefore, not possible to accept the contention of Shri Mehta that the amendment which was made in the Rules and Regulations by resolution dated July 1, 1979 did not come into effect till March 13, 1980 when the amended Rules and Regulations were registered with the Registrar, Firm and Societies. The said amendment should be treated to have come into effect from the date on which the resolution making the said amendment was passed i.e. July 1, 1979. . . . ."

25. In Prabha Shanker Mishra and others Vs. State of U.P. and others, 2009(77) ALR 713 a Single Judge of this Court relying on earlier decision in Sri Sanatan Dharam Sabha (supra) held that an amendment made in the Rules or Bye-laws of society only required to be intimated to the Registrar and there is no provision empowering the Registrar to adjudicate or decide objections with regard to correctness of amendment in the Rules and Regulations of Society.

26. Same is the view expressed in Liyakat Marquise Khan Vs. Christ Church College Society, Kanpur and others, 2010(4) UPLBEC 3311 wherein para 15, the Court said, that, Section 4-A of the Act, 1860 does not require any adjudication on the part of Registrar and only requirement is to bring to the notice of Registrar the amendment resolved by Society to be made in Rules and Regulations.

27. Taking a similar view, another Single Judge in Adhyaksha, Committee of Management Sri Vimal Nath Digamber Jain Teerth Kshetra Committee, Kampil, U.P. Farrukhabad and another Vs. Dy. Registrar, Firms Societies and Chits Kanpur Mandal, Kanpur and another, 2011(84) ALR 334 observed, if any person disputes the resolution making amendement, the remedy lie by filing a civil suit.

28. To the same effect recently a Division Bench has taken the view in Allahabad High School Society, Allahabad and others Vs. State of U.P. and others, 2011(3) AWC 3221 wherein following the judgment in Shiksha Samiti Degree College and others Vs. Registrar, Firms, Societies and Chits, U.P., AIR 1990 All 110 and Apex Court's decision in Managing Committee, Khalsa Middle School (supra) the Court said:

"This Court prior to and subsequent to the judgment in the case of Shiksha Samiti Degree College (supra) held that the provision of intimation of an amendment in the rules was only directory and not mandatory and no registration of amendment in the Rules of the Society was required. Further even the Apex Court in the case of Managing Committee Khalsa Middle School (supra) had held that there was no requirement of registration of any amendment in the Rules or Bye-laws of the society under the Act. We would thus be bound by the view that no registration under Section 4-A of the Act was required and the Registrar would not have any power to adjudicate on the merits of the amendment. The only power vested in the Registrar under Section 4-A of the Act was to examine the fact as to whether the meeting of the Society had been validly held in accordance with the provisions of the Act and the Rules of the Society. Only scope of this aspect could be to make factual verification as to whether the meeting was validly convened, due notice was given, quorum was complete and it was passed by the required majority. Beyond that the Assistant Registrar could not go into the question of the merits of the amendments and adjudicate upon the same while exercising powers vested under Section 4-A of the Act."

29. The matter does not rest here inasmuch as though the amendment in Rules may not require any registration or approval but whenever a question arose whether the resolution has been passed correctly or not proposing/making amendement in rules/ bye-laws of Society, this court has observed that such a scrutiny can be made by Registrar which would be referable to Section 4-A. In Allahabad High School Society (supra) the Division Bench in this regard said:

"Further under Section 4-A of the Act the Registrar could examine as to whether the meeting for amending the Rules of the Society had been validly convened or not."

30. In order to see whether an amendment has been made rightly or not one has to then fall upon the Rules and Regulations or Bye-laws providing procedure and manner in which amendment can be and has been made therein. It is not a matter of doubt that Section 4-A itself does not require by way of statutory compulsion that a resolution proposed or making amendment in Rules and Regulations or Bye-laws be registred or approved by Registrar but simultaneously it does not give away any such requirement if contemplated in Rules and Regulations already enforced and made by Society for the reason that Section 4-A by itself neither imposes any new obligation nor amend the provisions in Rules, Regulations or Bye-laws already existing.

31. It is in this context the Division Bench in Allahabad High School Society (supra) further observed:

"From a plain reading of the aforesaid rule it is apparent that any alteration, amendment or revision of the rules could be done only at a meeting of the Society specially called for the purpose and only after being approved by at least three quarters of the members of the Society present at such a meeting. We notice that there are two requirements to be fulfilled for carrying out any amendment in the rules of the Society. The first requirement is that it could be done in a meeting of the Society specially called for the purpose. This clearly means that any amendment in the rules has to be considered at a meeting specially called for the purpose, that is to say that in any meeting where other business is transacted, no resolution relating to amendment of the rules could be considered or passed. The second requirement under rule 38 of the rules is that it should be approved by at least three quarters of the members of the Society present at such a meeting."

32. Now in the light of above discussions, this Court has to find out whether orders impugned in these writ petitions are sustainable or not.

33. Clause 16 of Memorandum of Association provides for amendment in Rules and clearly said that any resolution with respect to amendment to Rules shall not take effect till approved by Government of U.P. Therefore, in the present case, there is no manner of doubt that a resolution passed by Society for making amendment in Rules, Regulations and Bye-laws or Memorandum of Association would not take effect unless it has been approved by State Government. It appears that under a mistaken belief that by virtue of Section 4-A the resolution proposing amendment has to be registered by Registrar, the State Government mistook upon itself and hence directed Registrar to pass appropriate order but as soon as it realised its mistake, revoked the said order. The Registrar's letter dated 26.09.2000 and Deputy Registrar's letter dated 20.10.2000 on their own have not done anything but simply have sought to give effect to the State Government's order dated 26.08.2000. This order of 26.08.2000 passed by State Government is not under challenge. There is no provision under the Memorandum of Association authorising the State Government to delegate its power to any subordinate executive authority. The decision of Apex Court in Managing Committee, Khalsa Middle School (supra) may help the petitioners to contend that amendment in the Rules would come into effect as soon as the resolution is passed by Society provided the Rules of Society authorising amendement are made in the particular manner provided in the existing Rules and not otherwise.

34. Here is a case where Clause 16 of Memorandum of Association contemplates a specific procedure for amendment. It specifically require that no amendment shall take effect unless it is approved by State Government. It is in these circumstances that a resolution passed by Society in question making amendment will not come into effect unless it is approved by State Government.

35. When a particular procedure has been prescribed under Rules, Regulations or Bye-laws, whereunder the Society is working, the said procedure has to be followed in words and spirit and anything otherwise would be illegal. It thus cannot be said that amendment proposed by Society would come into effect as soon as the resulution was passed. On the contrary, unless approved by State Government, it would not take effect. I have no hesitation in observing that State Government could not have delegated its power of approval to Registrar and, therefore, the impugned orders whereby the Deputy Registrar's earlier order dated 28.07.2000 has been revoked for the reasons that Registrar did not possess any power of approval cannot be said to be erroneous.

36. The Writ Petition No. 53773 of 2000, therefore, deserves to be dismissed.

37. Now coming to Writ Petition No. 12475 of 2004 it is evident from the above discussion that the State Government by its order dated 03.12.2001 has declined to accept the amendment proposed in scheme of administration/rules of Society in question. The said order dated 26.08.2000 was never challenged before any competent authority and has attained finality. Nothing has been brought before this Court to show that order dated 26.08.2000 in any manner has been revoked or cancelled by State Government at any point of time. The representation has been rejected by State Government vide order dated 03.03.2004 referring to State Government's order dated 03.12.2001 declining to approve amendment, therefore, cannot be said to be faulty in any manner. Similarly, the order dated 03.12.2001 whereby the Society was required to function in accordance with scheme of administration without looking into the amendment proposed in 1998, cannot be said to be erroneous in any manner since the order of permitting approval by Registrar has been cancelled by State Government vide order dated 26.08.2000 and the said order dated 26.08.2000 has not been challenged in any of these writ petitions.

38. In the circumstances, even this writ petition deserves to be dismissed.

39. Before parting this Court would like to state that petitioners' Society is running a prestigious educational institution at Agra. The College is one of the most recognised and acclaimed higher educational institution at Agra. It is the duty of all persons concerned including the members of Society, its office bearers as also the public in general that for petty managerial disputes, the educational institution may not suffer in any manner. The height institution has reached not only needs be maintained but attempt should be made to take it further up and not to bring down. The education, these days, has become highly commercialised. It has become a lucrative business for those who look upon it as a major intellectual resource which can yield huge wealth. The Court is inclined to take judicial notice of the fact that in respect to certain professional courses, management of educational institutions are running sophisticated and cultured shops collecting huge money under the table as capitation fees. They call it by different names like donation, etc. They provide their own justification but the fact remains that this system of imparting education having the sole capital oriented objective reflects adversely upon the meritorious but poor students. Despite merit they remain waiting in queue being incapable of crossing monetary hurdle on account of their poverty. In a country where more than 80% people are still struggling to cross just the line which is called above or below poverty line, one can easily visualise how and in what manner they can aspire for better education despite circumstances generated by their poverty. Unfortunately, the educational authorities instead of functioning with the goal of achieving constitutional obligation of providing equal opportunity for education to all, are acting hand in gloves with education jugglers and mafias. The system is perishing intellectual wealth of this country by keeping opportunity of better and higher education away from the poor creating a great financial hurdle. I am dismay to observe that the system has been made to work in such a manner that one can obtain loan to purchase a car on a meagre interest rate of 8-9% per annum but financial assistance in the form of education loan is available at higher rate of interest i.e. 12-13%. Is it not a mockery of poor but meritorious students who though are otherwise entitled to obtain better education but have paucity of funds. Their foremost problem is how to survive. They get little time for them of acquiring education. The opportunity and avenues as also the atmosphere has to be created by welfare Government of the country but the cancerous growth of self interest, corruption and apathy to the welfare of large section of the society, at the level of above poverty line/below poverty line, is eroding and vanishing their future prospects. We can boast to have presently having mushroom growth of educational institutions including privately owned universities but the manner they are working is well known to everyone. So much so that at one stage even the Apex Court intervened in a public interest litigation resulting in making several self styled universities running in the area of Madhya Pradesh and Chhattishgarh unconstitutional. (See Prof. Yashpal & Anr. Vs. State of Chhattisgarh & Ors., 2005 AIR 2026=2005 (5) SCC 420). In this difficult and little bit grim scenario it becomes our moral and pious duty to protect and save what we already have in the form of well established and old educational institution working like temples of education. There are some such institutions at Agra which are relentlessly discharging their social obligations taking care of people in most effective and satisfactory manner like Agra College, St. John's College and petitioners' College is also one of them. I have quoted the names just as an illustration and it is not exhaustive. This Court, though not issuing a command to the people responsible for management of institution but would remind them to keep intact the people's aspiration, they have from the members of Society responsible for effective administration and management of educational institution run by the petitioners Society. The petty individual interest should not score a march over larger public interest. Come what may, but the atmosphere of educational institution should not be affected in any manner otherwise not only the people of city at Agra but entire province and may be the country, (since students comes to this College across the country) would never condone the sin. I hope and trust that good senses shall prevail with the disputing parties and they shall give serious thought over the matter so as to work conjointly for the better and more effective functioning of educational institution and to raise its standard sky high.

40. With the above observations, both the writ petitions are dismissed.

41. No costs.

Order Date :-25.08.2011

AK