Allahabad High Court
C/M Madarsa Chashma-A-Faiz Adri ... vs State Of U.P. Thru Secy. And Others on 28 August, 2012
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 38
Case :- WRIT - C No. - 40799 of 2012
Petitioner :- C/M Madarsa Chashma-A-Faiz Adri And Others
Respondent :- State Of U.P. Thru Secy. And Others
Petitioner Counsel :- S.P. Pandey,D.V. Singh
Respondent Counsel :- C.S.C.,D.P. Mishra
Hon'ble Amreshwar Pratap Sahi,J.
Heard Sri S.P. Pandey, learned counsel for the petitioners, Sri D.P. Mishra for the Respondent No.4 and the learned Standing Counsel for the Respondent Nos. 1,2 and 3.
The matter has been heard at length and the learned counsel for the parties State that the matter can be disposed of finally at this stage in view of the submissions raised without waiting for any counter affidavit. Accordingly, with the consent of the parties, the petition is being disposed of finally.
The challenge in this petition is to the order of the Assistant Registrar, Firms Societies & Chits, Azamgarh dated 8th August, 2012 whereby the Assistant Registrar in relation to the exercise of enrollment of members of General Body of the Society has held that the meeting dated 12.11.2011, in which the alleged enrollment has been made, was an invalid meeting as the quorum of the meeting was not complete. It has also been held that the enrollment has not been made in accordance with the bye-laws. The Assistant Registrar has further opined that the notice for the said meeting where the members of the general body were to be enrolled had not been published in any newspaper nor the notices were sent through registered post and, therefore, the claim set up by the petitioners deserves to be rejected. He further found that the elections as claimed by the petitioners after enrollment of members cannot be accepted and he has directed that fresh elections should be held invoking the provisions of Sub-section 2 of Section 25 of the Societies Registration Act, 1860.
Sri S.P. Pandey contends that apart from other factual issues and infirmities in the impugned order, it is to be noted that the bye-laws have been completely misunderstood and misconstrued by the Assistant Registrar and, therefore, this misreading has resulted in a wrong conclusion. In particular, Sri Pandey has invited the attention of the Court to Clause-7,8 and 12 of the Bye-laws to contend that the enrollment has been made by the public at large as per Clause-7 of the bye-laws in a meeting which was validly convened by the Manager of the Institution who was then the petitioner No.2. He further submits that it was an emergent meeting which was convened for which the agenda was issued on 4th November, 2011 and the meeting was to be held at the very next day i.e. 5th November, 2011. He submits that this meeting was held by way of an announcement as there is no specific mode of notice provided in the bye-laws and this procedure has been adopted for long since the inception of the society as there is no other procedure provided. He submits that there is no procedure for sending notices by registered post or publishing it in any newspaper. He, therefore, submits that the meeting was held on 5th November, 2011 and the Committee of Management adjourned the same as the quorum was not complete. He submits that the quorum is provided for in Clause 11 of the Bye-laws but the quorum is not a requirement if the meeting is adjourned and is for the same agenda.
After the meeting was adjourned, the petitioner contends that a fresh notice was circulated on 8th November, 2011 to convene the said meeting on the same agenda on 11th November, 2011. This meeting was also attended by four members of the Committee of Management as well as a large number of the members of the public who according to bye-law No.7 are entitled to participate to elect the members in accordance with the same. The bye-laws require that the general body shall consist of 25 to 30 members. He, therefore, contends that the aforesaid provisions have been overlooked by the Assistant Registrar while passing the order in relation to the procedure of enrollment of membership and hence the impugned order is vitiated.
Sri Mishra, learned counsel for the respondent No.4 submits that the quorum had to be 2/3rd of the members of the Committee of Management as per clause-12 of the bye-laws. He submits that not only this an emergent meeting as per Clause 11 could have been called only on the requisition of 1/3rd members of the Committee of Management and not otherwise and, therefore, the conclusion drawn by the Assistant Registrar cannot be faulted with. He further submits that the meeting being invalid and the membership enrollment conducted by the petitioner being not in accordance with the bye-laws the impugned order does not call for any interference.
The same arguments have been advanced by the learned Standing Counsel.
Having heard learned counsel for the parties and having considered the submissions raised as well as the findings recorded in the impugned order, it is evident that the meeting of the Committee of Management can be called through three modes. The first is the general provision which recites that the meeting of the committee of management shall be held at least thrice in a year. Other than these routine meetings, an emergent meeting can be called upon by the Manager as per Clause-10 of the said bye-laws. A third provision has been made that an emergent meeting can also be called upon on the requisition of 1/3rd members of the committee of management. It is, therefore, clear that these meetings can be called by these three modes.
The contention of the petitioner is that the Manager has called the meeting under Clause-10 in which the enrollment of members has been carried out. The impugned order completely overlooks these provisions and it does not record any finding on this issue.
The second issue is regarding quorum. The impugned order records that since the quorum of 2/3rd was not complete, therefore, the meeting was invalid. The Assistant Registrar while proceeding to consider the same has also overlooked that part of Clause-12 of the bye-laws which indicates that if a meeting has been adjourned then there would be no requirement of quorum provided the item of agenda remains the same. In the absence of any finding on a consideration of aforesaid provisions, in my opinion, the impugned order is vitiated.
So far as the issuance of notice is concerned, learned counsels have been unable to point out any particular mode of service of notice in the bye-laws. The petitioner contends that it is a matter of practice that meetings have been called in a similar manner as in the past. This aspect has also not been considered in the light of the fact that there is no provision for sending notices by registered post or publishing it in newspapers. Accordingly, the impugned order on all these three counts being silent cannot be sustained. Accordingly, the impugned order dated 8.8.2012 is quashed. The writ petition is allowed.
The matter is remitted back to the Assistant Registrar Firms, Societies & Chits, Azamgarh to take a fresh decision in accordance with law and keeping in view the observations made hereinabove after providing an opportunity of hearing and liberty to lead evidence to the respective parties in respect of their claims within a period of three months from the date of production of a certified copy of this order.
Order Date :- 28.8.2012
Manish
