Allahabad High Court

Avinindra Kr. Singh & Anr. vs State Of U.P. & Others on 2 April, 2013

Bench: Arun Tandon




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 38
 

 
Case :- WRIT - C No. - 70071 of 2009
 

 
Petitioner :- Avinindra Kr. Singh & Anr.
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- P.K. Dubey,Dharampal Singh,H.N.Singh,S. Niranjan
 
Respondent Counsel :- C.S.C.,Y.K. Saxena
 

 
Hon'ble Arun Tandon,J.

Heard Sri H.N. Singh, learned counsel for the petitioner, Sri Y.K. Saxena, learned counsel for respondent no.3 and learned Standing Counsel for the State-respondents.

Petitioner, before this Court, is the legal heir of founder Secretary of the society, namely, Harish Chandra Singh. He seeks quashing of the order of the Deputy Registrar, Firms, Societies and Chits, Kanpur dated 6th November, 2009, where-under the Deputy Registrar has rejected his claim for being recognized as the Secretary of the society subsequent to the death of founder secretary, namely, Harish Chandra Singh.

Challenging order of the Deputy Registrar, learned counsel for the petitioner submits that the Deputy Registrar has relied upon the amendment said to have been affected in the bye-laws of the society in the meeting dated 1st December, 2005, whereby Clause 8 (kha) of the bye-laws was amended. According to the petitioner, in view of Clause 10 of the same bye-laws, no amendment in Clauses 8 (ka), 8 (kha) and 8 (ga) is legally permissible. Even otherwise, he submits that under the amended provision also, it is the senior-most legal heir of Harish Chandra Singh, to be treated as the next manager/secretary subsequent to the death of Harish Chandra Singh or his resignation. According to him, the part of the amended provision, which starts from the word "vFkok" takes care of the situation, when the senior-most legal heir of Harish Chandra Singh does not accept to act as the Secretary or is incapacitated to act as such.

He further submits that the resolution of the general body for amending Clause-8 passed in the alleged meeting dated 1st December, 2005, is all fabricated. He, therefore, contends that the order impugned passed by the Deputy Registrar is patently illegal.

Sri Y.K. Saxena, learned counsel for respondent no.3 disputes the contentions so raised and submits that amendment in Clause 8(kha) was made during the life time of Harish Chandra Singh, founder secretary and that Harish Chandra Singh resigned in 2006 itself. Thereafter respondent no.3 Abhishek Kumar Singh was elected as the Manager in terms of the amended provision. The list of office bearers submitted by Abhishek Kumar Singh as the manager was registered under the order of the Deputy Registrar dated 28th February, 2006. The petitioner, Avinindra Kumar Singh did not raise any grievance for full three years. It is only when that Harish Chandra Singh has expired that he has set up a claim for being accepted as the Manager on the plea that he is the senior-most legal heir of Harish Chandra Singh, founder Secretary and therefore, entitled to be treated as the Secretary.

Sri Saxena, in the alternative submits that under amended bye-laws, it was open to three persons mentioned in Clause 8 (kha) to elect some one as the manager from amongst themselves. Once Abhishek Kumar Singh has been so elected as the Manager in 2006 and the petitioner did not lodge any protest in that regard, whatever rights he had stood waived.

According to Sri Saxena, under the amended bye-laws specifically Clause 8 (kha), once three persons mentioned therein have elected a new manager, right of senior-most legal heir of founder Secretary ceases to exist. He therefore, submits that the order of the Deputy Registrar impugned need not be interfered with.

I have considered the submissions made by the learned counsel for the parties and have examined the records of the present writ petition.

It is not in dispute between the parties that under Clause 8 (kha) of the original bye-laws of the society registered in the name and style of "Shri Janta Prasar Samiti Sadharamau, Manepur, Post Jhinjhak, District Kanpur Dehat", founder manager/Secretary, namely Harish Chandra Singh was to continue as manager during his life time and that on his resignation or death, vacancy was to be filled by his senior-most legal heir. That post of manager shall always be filled on the basis of legal descendants. This Clause 8 (kha) is stated to have been amended in the meeting of the general body dated 1st December, 2005. Amended clause 8 (kha) reads as follows:

"la'kksf/kr fu;ekoyh fu;e la[;k 8 ¼[k½

ÞorZeku izcU/kd dk in fjDr gksus dh n'kk ¼R;kx i= ;k e`R;q ls½ esa mldk oS/kkfud T;s"B mRrjkf/kdkjh gh oS/k izcU/kd ekuk tk;sxk ftldh fLFkfr ,oe~ 'kfDriw.kZr;k 8&d ds vuqlkj gksxh vFkok lfefr us loZleEfr ls Jh vfHk"ksd dqekj flag] Jherh mek flag rFkk Jh ohjsUnz flag HknkSfj;k dks muds laLFkk ds izfr vVwV J)k] fu"Bk ,oe~ Hkou ejEer esaa fo'ks"k vkfFkZd ;ksxnku tSls egRoiw.kZ dk;ksZa ds vk/kkj ij vkthou fof'k"B lnL; cuk;k gS Hkfo"; esa ;fn ;g rhuksa lnL; vU; fdlh O;fDr dks mlds laLFkk ds izfr fo'ks"k ;ksxnku ij cgqer ;k loZlEefr ls vkthou fof'k"B lnL; cukuk pkgssaxs rks cuk ldsaxsA ;gh vkthou fof'k"B lnL; Hkfo"; esa izcU/kd dk in fjDr gksus dh n'kk esa vius esa ls cgqer ;k loZlEefr ls izcU/kd pqusaxs vkSj bl izdkj pquk gqvk O;fDr gh izcU/kd gksxk] 'ks"k izcU/k lfefr dk pquko ;Fkk fLFkfr ds vuqlkj lEiUu gksxkAß

The case of the petitioner is that no resolution was passed in any valid meeting of the general body for amendment of Clause 8 (kha) and further that no amendment could have been affected in Clauses 8 (ka), 8 (kha), 8 (ga) and 8 (gha) in view of Clause 10 of registered/approved bye-laws of the society, which reads as follows:

"10:-fu;eksa o fofu;eksas eaas la'kks/ku djuk %&

laLFkk ds fu;eksa o fofu;eksa esa la'kks/ku lk/kkj.k lHkk ds [email protected] lnL;ksa ds cgqer ls fd;k tk ldsxkA ijUrq /kkjk&8 d] [k] x ij bldk dksbZ izHkko ugh iM+ ldsxkA"

The aforesaid aspect of the matter has completely been ignored by the Deputy Registrar while passing the order impugned. Further the issue as to whether resolution had been passed in any valid meeting of the general body convened for the purpose has also not been finally adjudicated. Merely because amendments have been singed by certain office bearers cannot ipso facto lead to a conclusion that a valid meeting of the general body has taken place. It had to be examined as to whether agenda for such meeting was circulated in accordance with the bye-laws among members and that a valid meeting for the purpose did take place from amongst the valid members. A finding had to be returned as to whether any valid amendment has been made in Class 8 (kha) as well as could the Clause 8 (kha) be amended in view of Clause 10.

Even otherwise on simple reading of amended Clause 8 (kha), this Court finds that said clause is in two parts, (a) which declares that senior-most legal heir of the present manager would automatically be treated to be manager, if the earlier manager tenders his resignation or expires, thereafter there is the other clause starting from the word "vFkok" (b) which confers a power upon three persons named, namely, Abhishek Kumar Singh, Smt. Uma Singh and Virendra Singh Bhadauriya to elect a new manager in case of vacancy from among themselves.

In the opinion of the Court for harmonizing the two clauses it is but necessary to hold that it is only when the senior-most legal heir of outgoing manager becomes incapacitated or otherwise refuse act as the secretary/manager then that three persons mentioned in the Clause can exercise their power to elect the manager from among themselves. The first preference for being treated to be manager is therefore, with the senior-most legal heir of the outgoing manager.

In the facts of the case it is not in dispute that eldest son of Harish Chandra Singh namely, Ashok Kumar had expired during his life time. Petitioner is the second eldest son of Harish Chandra Singh, the earlier manager/secretary. Therefore, he has a preferential right to be treated as the manager after the resignation/death of Harish Chandra Singh in terms of the amended clause also.

However, the question remains as to whether the petitioner had waived his right in view of respondent no.4 being elected as the manager in 2006 and thereafter the list of office bearers being registered, with respondent no.4, as the manager under Section 4 of Act, 1860.

For determining the said issue, it is but necessary to examine amongst others as to whether respondent no.4 ever exercised powers of the manager/secretary of the society subsequent to his alleged election as manager in 2006 or not, which requires consideration of the relevant documents of the society and the accounts etc. maintained in that respect. Waiver of a right is essentially an issue of fact which is to be culled out from the evidence to be produced by the parties and their conduct.

In the totality of the facts on record this Court is of the opinion that the present writ petition be disposed of by permitting the petitioner to file a reference petition under Section 25 (1) of the Societies Registration Act, 1860 before the Prescribed Authority within two weeks from today, along with a certified copy of this order challenging the order of acceptance of respondent no.3 as the manager/secretary of the society and his continuance as such. If such petition is filed, the Prescribed Authority shall enter into the dispute and shall decide the same in light of the observations made above, preferably within two months from the date of receipt of the reference petition after affording opportunity of hearing to the petitioner and respondent nos. 3 to 5 and after examining the original records of the society. He shall pass a reasoned speaking order. Order impugned passed by the Deputy Registrar shall abide by the orders to be passed by the Prescribed Authority as indicated above. All consequential action shall be taken immediately thereafter. in terms of the order to passed by the Prescribed Authority as indicated above.

With the aforesaid direction/observations, the present writ petition is disposed of.

(Arun Tandon, J.)

Order Date :- 2.4.2013

Sushil/-

Case :- WRIT - C No. - 70071 of 2009

Petitioner :- Avinindra Kr. Singh & Anr.

Respondent :- State Of U.P. & Others

Petitioner Counsel :- P.K. Dubey,Dharampal Singh,H.N.Singh,S. Niranjan

Respondent Counsel :- C.S.C.,Y.K. Saxena

Hon'ble Arun Tandon,J.

Disposed of.

For order see order of date passed on the separate sheets.