Allahabad High Court

C/M Anjuman Kherul Almin ... vs State Of U.P. And 2 Ors. on 18 December, 2013

Bench: Dhananjaya Yeshwant Chandrachud, Chief Justice, Sanjay Misra




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Chief Justice's Court
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 1286 of 2013
 
Appellant :- C/M Anjuman Kherul Almin Allahganj And Another
 
Respondent :- State Of U.P. And 2 Ors.
 
Counsel for Appellant :- Yogish Kumar Saxena
 
Counsel for Respondent :- C.S.C.,N.L. Pandey
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Sanjay Misra,J.

The special appeal arises from a judgment of the learned Single Judge dated 3 October 2013, declining to entertain a petition filed by the appellants under Article 226 of the Constitution on the ground that the appellants have a remedy of moving the Prescribed Authority under Section 25(1) of the Societies' Registration Act, 1860. The appellants, claiming to be the Committee of Management of Anjuman Kherul Almin Allahganj and its Manager Mr. Abbash Khan sought to question the legality of an order dated 26 July 2013 passed by the Deputy Registrar, Firms Societies and Chits, Kanpur. By his order, the Deputy Registrar rejected the claim of the appellants and accepted the list of office bearers submitted by the third respondent for the year 2013 and issued consequential directions for registration of the list of office bearers under Section 4 of the Act. When the petition came up an objection was raised on behalf of the third respondent that the appellants can avail of a statutory alternative remedy under Section 25(1). This objection was accepted by the learned Single Judge while dismissing the petition.

The contention of the appellants is that the Deputy Registrar, who passed the order dated 26 July 2013 which was called into question before the learned Single Judge had no jurisdiction to entertain an election dispute about which of the rival claims was sustainable. Hence it has been submitted that when the list of office bearers is submitted to the Deputy Registrar under Section 4 and he finds that there is a dispute in regard to the validity of the elections set up by the rival contestants, the Deputy Registrar cannot decide that question but he has to make a reference to the Prescribed Authority under Section 25(1). In the present case it was submitted that the Deputy Registrar transgressed the limitation on his jurisdiction by going into the merits of the rival claims when he ought to have referred the dispute to the Prescribed Authority. In this regard reliance was placed on the judgments of two Division Benches of this Court in All-India Council through Bharat Dharam Maha Mandal, Bahura Bir Varanasi and another Vs. Assistant Registrar, Firms, Societies and Chits, Varanasi Region, Varanasi and another, 1988 AWC 1154 and in Gram Shiksha Sudhar Samiti Junior High School, Sikandra District Kanpur Dehat Vs. Registrar, Firms, Societies and Chits, U.P. Lucknow, 2010-ADJ-7-643.

On the other hand it was urged on behalf of the third respondent that it has been held in a subsequent decision of the Division Bench in the Committee of Management, Adarsh Krishak Junior High School, Mauaima, Allahabad Vs. State of U.P. and others, 2009(5) ESC 3506 that the Deputy Registrar, when he is seized with a proceeding under Section 4 is not a "mere post office" who must refer any and every dispute. In the present case, it was urged that the third respondent had set up an election and a list had been submitted for 2013-14 the validity of which was within the jurisdiction of the Deputy Registrar to determine.

Under Section 4 of the Societies' Registration Act, 1860, as amended in the State of U.P. the following provision has been made:-

"4. (1) Annual list of managing body to be filed.-Once in every year, on or before the fourteenth day succeeding the day on which, according to the rules of the Society, the annual general meeting of the society is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the Registrar of the names, addresses and occupations of the governors, council, directors, committee, or other governing body then entrusted with the management of the affairs of the society.

Provided that if the managing body is elected after the last submission of the list, the counter signature of the old members, shall, as far as possible, be obtained on the list. If the old office-bearers do not counter-sign the list, the Registrar may, in his discretion, issue a public notice or notice to such persons as he thinks fit inviting objections within a specified period and shall decide all objections received within the said period.

(2) Together with list mentioned in sub-section (1) there shall be sent to the Registrar a copy of the memorandum of association including any alteration, extension or abridgment of purposes made under section 12, and of the rules of the society corrected up to date and certified by not less than three of the members of the said governing body to be a correct copy and also a copy of the balance-sheet for the proceeding year of account."

The proviso to Section 4, as amended in the State of U.P., states that if the managing body is elected after the last submission of the list the counter signature of the old members, shall, as far as possible, be obtained on the list. If the old office bearers do not countersign the list the Registrar may in his discretion issue a public notice inviting objections and decide all the objections received within the said period.

Section 25(1) as applicable in the State of U.P. provides as follows:-

"25.Dispute regarding election of office-bearers.-(1) The prescribed authority may, on a reference made to it by the Registrar or by at least one-fourth of the members of a society registered in the Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an officer-bearers of such society, and may pass such orders in respect thereof as it deems fit:

[Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied-

(a) that any corrupt practice has been committed by such office-bearer; or

(b) that the nomination of any candidate has been improperly rejected; or

(c) that the result of the election in so far as it concerns such office-bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with the provisions of any rules of the society."

Both these provisions have been harmonized in the judgment of the Division Bench in All-India Council (Supra) where it was held as follows:-

"Section 25 of the Societies Registration Act as amended by the State Legislature enacts a comprehensive code and creates a designated forum or tribunal for adjudication in a summary manner of all disputes or doubts in respect of the election or continuance in office of an office-bearer of such society. It also provides the grounds upon which the election of an office-bearer can be set aside. The procedure to be followed for filling up of the vacancies arising from the decisions rendered by the Prescribed Authority under Sub-section (i)of Section 25 has also been laid down(Section 25(2).)

7.It will, therefore, be seen that insofar as disputes or doubts in respect of the election or continuance in office of the office-bearers of a society registered in Uttar Pradesh are concerned, the Legislature has created a specific forum and laid down an exhaustive procedure for determination of the same under Section 25. There is no other provision, express or otherwise, providing for determination of such disputes specifically. It is settled law that where, as here, the Legislature creates a specific forum and lays an exhaustive procedure for determination of a particular class of disputes in respect of matters covered by the statute, such disputes can be determined only in that forum and in the manner prescribed thereunder and not otherwise. If, therefore, a dispute is raised with regard to the election or continuance in office of an office-bearer of a society registered in Uttar Pradesh, the same has to be decided only by the Prescribed Authority under Section 25(1) and not by the Registrar, save, of course, to the decision of the Prescribed Authority being subject to the result of a civil suit."

The judgment of the Division Bench came up for consideration in Gram Shiksha Sudhar Samiti (Supra). In the subsequent judgment the Division Bench held that the earlier judgment has harmonized the provisions of both Sections 4 and 25 and what can be inquired into under Section 25 of the Act, cannot be gone into under the proviso to Section 4. In that case, the Division Bench held that the learned Single Judge ought to have set aside an order of the Registrar dated 11 July 2010 and ought to have directed the Registrar to refer the objection to the Prescribed Authority under Section 25(1). The Division Bench held that once an application for taking on record the name of the office bearers and an objection as to the validity of the office bearers who were duly elected has been filed, the Registrar considering under Section 25(1) ought to refer the matter to the Prescribed Authority. Undoubtedly, in the subsequent decision in the Committee of Management (Supra) it has been held that the Registrar "is not a post office for referring any and every dispute". The Division Bench there held that more than three years after the holding of an election there was no reason to entertain a petition at the belated stage.

In the present case, a list was submitted by the third respondent, of office bearers under Section 4 for 2013-14. The list was objected too. The Deputy Registrar had conflicting claims between the appellants on the one hand and the third respondent on the other hand. Hence when an application for taking on record the names of the officer bearers was filed and an objection to the validity of the elected office bearers was placed before him, the Registrar ought to have referred the dispute to the Prescribed Authority under Section 25(1). In entertaining the dispute himself and going into merits of the rival claims, the Deputy Registrar has clearly transgressed his jurisdiction. The jurisdiction to decide any doubt or dispute in respect of an election of the office bearers of the Society lies with the Prescribed Authority and the Registrar ought to have made a reference to the Prescribed Authority.

The learned Single Judge is right in holding that the Prescribed Authority would have to decide under Section 25(1) upon the dispute which is raised. To that extent the observations of the learned Single Judge are justified. However, we find merit in the contention of the appellants that the petition could not have been dismissed merely with liberty to move the Prescribed Authority. The appropriate direction to pass, was to set aside the order of the Deputy Registrar which is an order without jurisdiction since the Deputy Registrar has decided an issue which fell within exclusive domain of the Prescribed Authority.

In consequence and while allowing the special appeal, we modify the order of the learned Single Judge in the following terms:-

(1) The order passed by the Deputy Registrar on 26 July 2013 is quashed and set aside as being without jurisdiction;

(2) The Deputy Registrar is directed to make a reference under Section 25(1) of the Societies' Registration Act, 1860 to the Prescribed Authority within a period of two weeks of the receipt of a certified copy of this order;

(3) The Prescribed Authority shall upon receipt of the reference under Section 25(1) decide upon the reference within a period of three months of the receipt of the reference;

(4) The Deputy Registrar shall thereafter take necessary steps under Section 4 upon receipt of the order of the Prescribed Authority expeditiously.

The special appeal is accordingly disposed of.

There shall be no order as to costs.

Order Date :- 18.12.2013

pks

(Dr. D.Y. Chandrachud, C.J.)

(Sanjay Misra, J.)

Chief Justice's Court

Case :- SPECIAL APPEAL DEFECTIVE No. - 1286 of 2013

Appellant :- C/M Anjuman Kherul Almin Allahganj And Another

Respondent :- State Of U.P. And 2 Ors.

Counsel for Appellant :- Yogish Kumar Saxena

Counsel for Respondent :- C.S.C.,N.L. Pandey

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice

Hon'ble Sanjay Misra,J.

This is an application for condonation of delay in filing the special appeal.

Since sufficient cause has been shown in the affidavit filed in support of the delay condonation application, the delay in filing the appeal is condoned.

The condonation of delay application is allowed.