Allahabad High Court

Gyanodaya Association ... vs State Of U.P. Thru Its ... on 31 August, 2015

Bench: Rajan Roy




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.    
 
Court No. - 10
 

 

 
                    Case :- WRIT PETITION (MISC. SINGLE)  No. - 4693 of 2015
 

 
Petitioner :-                        Gyanodaya Association Sansaripur
 
                                             through Manager G.P.Gupta & another.
 
Respondent :-                     State Of U.P. Through its Principal Secretary Department of 
 
                                             Institutional Finance, Civil Secretariat, Lucknow and others. 
 
Counsel for Petitioner :-    Madhumita Bose, Sandeep Dixit
 
Counsel for Respondent :- C.S.C.,Diwakar Singh Kaushik, Ramesh Pandey.
 

 

 
Hon'ble Rajan Roy,J.

This case was posted for re-hearing today vide order dated 17.08.2015.

Heard Sri Sandeep Dixit learned counsel for the petitioner and Sri Ramesh Pandey, Sri H.G.S. Parihar for opposite party no. 4 and learned Additional Chief Standing Counsel for the State.

The dispute came up before this Court earlier by means of Writ Petition No.1757(MS) of 2015 filed by the petitioners herein challenging an order dated 23.3.2015 purported to have been passed by the Deputy Registrar, Firms, Societies and Chits, Lucknow, declaring the Society in question as time-barred under Section 25(2) of the Societies Registration Act 1860 (for short "the Act") with effect from 2011. This court disapproved the said action and quashed the order dated 23.3.2015 vide its judgment and order dated 7.4.2015, which reads as under:-

"Heard learned counsel for the petitioners, Sri H.G.S. Parihar, learned Senior Counsel assisted by Sri Diwakar Singh 'Kaushik' for respondent no. 4, learned Standing Counsel who has accepted notice on behalf of respondents no. 1 to 3 and Sri I. P. Singh, who has filed Vakalatnama on behalf of respondent no. 5, which is taken on record.

Having heard learned counsel for the parties at length and on perusal of the impugned order, it is apparent that two elections, one held on 2.11.2014 and other allegedly held on 9.11.2014 were brought to the notice of Deputy Registrar, Firms, Societies and Chits, Faizabad, respondent no. 3. Once the elections held by the rival claimants came to the notice of the Deputy Registrar, the validity thereof could not have been adjudicated upon by him within the purview of Section 25(2) of the Societies Registration Act and the matter ought to have been referred to the prescribed authority. The issuance of the impugned order by ignoring the order dated 30.9.2013 and holding the previous election as invalid is clearly beyond the jurisdiction of the Deputy Registrar and for this reason, interference by this Court is called for in the impugned order dated 23.3.2015.

At this stage, both the parties are in agreement that the writ petition, instead of being kept pending, may be disposed of finally, leaving it open to the Deputy Registrar to act in accordance with law and for that purpose, impugned order may be set aside.

Being of the considered opinion that the impugned order having been passed without jurisdiction, is liable to be set aside, the parties to the proceedings before this Court are also in agreement to the proposition and pray that the matter may be relegated to the Deputy Registrar for fresh consideration in accordance with law.

Having regard to the submissions made by the learned counsel and the agreement expressed, the impugned order dated 23.3.2015, having been passed beyond the scope of Section 25 (2) of the Act, is hereby set aside. Both the parties are permitted to appear before the Deputy Registrar on 20.4.2015 and it shall be open to the Deputy Registrar to proceed in accordance with law, having regard to the fact that rival disputes of election have been raised by the respective parties.

With the aforesaid observations, the writ petition is disposed of finally."

This court had categorically held that the dispute did not attract Section 25(2) of the Act and the impugned order had been passed ignoring the order dated 30.9.2013 by which the list of office bearers submitted by the earlier Committee of Management had been taken on record and the renewal of the Society had been done on its application.

It is not in dispute that two rival elections have been held, one by the petitioner which is said to have taken place on 2.11.2014 and the other election is said to have been held by the rival party represented by the opposite party no.4 Ayodhya Prasad on 9.11.2014. In pursuance to the earlier judgment of this court dated 7.4.2015 the impugned order has been issued publishing a tentative list of the Members of the General Body for election to the Committee of Management of the Society after declaring the said Committee of Management as time-barred under Section 25(2) of the Act.

Firstly, there is a claim of the outgoing Committee-of-Management that having held the election before the expiry of its tenure the Committee of Management cannot be declared as time-barred, even if the election is disputed by a rival faction in view of the law laid down by this court in C/M Vidyawati Higher Secondary School v. Assistant Registrar, reported in 2005(1) AWC 927.

In the present case, as already stated above, two rival elections are alleged to have been held on 2.11.2014 and 9.11.2014. Section 4 of the Act, reads as under:-

"4. 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 it rules do not provide for an annual general meeting, in the months of January, list shall be filed with the Registrar of Joint Stock Companies, of the names, addresses and occupations of the governors, council, director, committee, or other governing body then entrusted with the management of the affairs of the society."

In the event of the aforesaid rival elections as claimed to have been held on the respective dates the rival Committee-of-Managements were required to file a list of office-bearers/Managing Body of the Society before the Deputy Registrar under Section 4. As per the provisions contained under Section 4 if the Managing Committee is elected after the last submission of the list, counter signatures of the last Members shall as far as possible be obtained on the list. If the old office bearers did 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.

It is not in dispute that both the rival factions of the Society submitted their separate list of office-bearers said to have been elected in the elections held by them separately. Faced with this scenario, the least that was required to be done by the Deputy Registrar was to look into the claims of the rival factions and ascertain the genuineness of the same. While doing so he was also required to see as to whether the persons claiming Management of the Society are Members of the Society or not. If in this process he found that some of the names or one of them was not even a Member of the Society, then no further action including a reference under Section 25(1) of the Act would be made at the behest of such person. For this limited purpose, the Deputy Registrar is empowered to hold a limited inquiry to ascertain the genuineness of the dispute. If he found that genuine dispute relating to management existed and fell within the domain of Section 25(1) of the Act, then he ought to have referred the matter to the Prescribed Authority for adjudication.

In the present case, instead of adopting the aforesaid course of action the Deputy Registrar passed an order dated 23.3.2015 whereby he declared the Committee of Management as time-barred with effect from 13.11.2011. Since the outgoing Committee-of-Management had become time-barred, therefore, it was not authorized to hold the election.

This Court adjudicated the validity of the order dated 23.3.2015 vide its judgment dated 7.4.2015 passed in Writ Petition No. 1757 of 2015 and quashed the same. The said judgment has already been quoted hereinabove. Now, while passing a fresh order dated 27.07.2015, impugned herein, the Deputy Registrar has again committed the same mistake which he had committed earlier. Instead of dwelling upon the genuineness of the rival claims of the factions to Management of the Society based on separate elections held by them in the light of what has been stated hereinabove, the Deputy Registrar has erroneously come to the conclusion that this is not a case covered by Section 25(1) of the Act and has, under a mistaken premise, held again that the Committee-of-Management had become time-barred, this time with effect from 2.7.2001.

As far as the reliance placed by learned counsel for the petitioners on the judgment of this Court rendered in C/M Vidyawati Higher Secondary School v. Assistant Registrar (supra) is concerned this Court held that if the outgoing committee-of-Management had held the elections before an order having been passed by the Deputy Registrar under Section 25(2) of the Act declaring it as time barred, even if the said elections had been held after the expiry of the term of the outgoing committee-of-Management, the committee-of-Management so elected cannot be declared as time barred under Section 25(2) of the Act nor can the elections be said to be invalid merely on this ground. In this regard the Court referred to the provisions contained in Section 25(3) of the Act. This Court while rendering the said judgment did not notice an earlier judgment of a Division Bench of this court on the same issue in the case of Committee-of-Management, Adarsh Shiksha Niketan Renukoot, District Sonbhadra and an other Vs. The Assistant Registrar, Firms, Societies and Chits, Varanasi Division, Varanasi and others, reported in [(2000)2 UPLBEC 1600] wherein it has been held that if the elections are not held by the outgoing committee-of-Management before expiry of its term, the Assistant Registrar was perfectly justified in issuing a direction to hold fresh elections under Section 25(2) and in such an event any dispute relating to the said election held after expiry of the term of the outgoing committee-of-Management would not be referable under Section 25(1) of the Act. It held that a dispute referable to Section 25(1) of the Societies Registration Act, 1860 would arise only if the elections had been held within the period of three years i.e. before expiry of the term of the outgoing committee-of-Management and two rival groups claim to have been elected as office-bearers of the society. If the claim is made by two rival parties based on the elections held after expiry of the term of the committee-of-Management it cannot be referred to the Prescribed Authority under Section 25(1) of the Act 1860 and fresh elections would have to be held under Section 25(2). Relevant extract of the said judgment is quoted hereinbelow:--

"3. ....... A plain interpretation of para 8 of the bye0laws would show that normal period of office bearers of the Society is three years from the date of election and after the expiry of three years they are entitled to function till the election is held. The election was held on 8.7.1992 and the appellants claimed that the next election took place on 9.3.1997 i.e. after about five years. Sri Dwarika claimed that election took place on 13.12.1998, i.e. after more than six years. In these circumstances we are of the opinion that the Assistant Registrar was justified in exercising powers under sub-section (2) of Section 25 of the Societies Registration Act in directing that a fresh meeting of the general body be held for electing office-bearers of the Society. Sri Srivastava lastly urged that it is a case where there was a dispute in respect of election or continuance of office-bearers of the Society and, therefore, the matter ought to have been referred to the Prescribed Authority for decision under sub-section (1) of Section 25 of the Act. We are unable to accept the contention raised by the learned counsel for the appellants. The dispute referred to under this provision could arise only if the election had been held within the period of three years and two rival groups claimed to have been elected as office-bearers of the Society. The claim made by both the parties was based upon the elections, which were admittedly held after more than five years. In these circumstances the Assistant Registrar was perfectly justified in issuing direction to hold a fresh election under sub-section (2) of Section 25 of the Act. We, therefore, find n o illegality in the impugned judgment and order of the learned Single Judge."

The aforesaid Division Bench decision has been followed by this Court in a recent judgment in the case of Committee of Management, Shiksha Prasar Samiti Dharai Mafi, District Sultanpur and others Vs. State of U.P. And others, reported in 2012 (2) ADJ 263.

The legal position on the issue involved is if next elections are not held before expiry of term of the outgoing Committee-of-Management, elections will have to be held as per direction of the Deputy Registrar under Section 25(2) and it is not open for any body else to hold such election. If they are held other than under Section 25(2), they cannot be taken into consideration for making a reference under Section 25 (1) as such a case would not be referable under the said provision. Disputes relating to elections held before expiry of term of outgoing Committee-of-Management alone are referable under Section 25(1)

In the present case it is not in dispute that an election to the Committee-of-Management of the Society was held on 28.07.2008. As per bye-laws of the Society the term of the elected Committee-of-Management is three years. It being so the term of the said Committee-of-Management elected on 28.07.2008 expired on 27.07.2011. No elections to the Committee-of-Management were held by the outgoing Committee-of-Management prior to 27.07.2011. Both the rival parties claim to have held the elections in the month of November, 2011. Be that as it may, the fact of the matter is that the list of office-bearers submitted by Surendra Kumar Gupta based on the elections held by him in November, 2011 was accepted by the Deputy Registrar and the said elections were not challenged by the rival party by way of reference under Section 25(1) nor by way of a civil suit. As per Surendra Kumar Gupta's claim the outgoing Committee-of-Management held the elections on 02.11.2014 whereas rival party alleged to have held the elections on 09.11.2014. Meaning thereby both the elections were held before the expiry of the term of the outgoing Committee-of-Management which was to expire in November, 2014. It being so now it is not open for the Deputy Registrar to re-open the elections held in the year 2011 or any earlier election as the same have remained undisputed uptil now. If the Committee of Management of the Society was to be declared as time barred it had to be done under Section 25(2) in the year 2011, not in 2014 after another election had already been held in November, 2014 before the expiry of the term of outgoing Committee of Management. True, no dispute based on elections of 2011 could have been referred under Section 25(1) but no such reference is being sought based on elections of 2011. The dispute is regarding subsequent elections held in 2014. As the elections of 2014 by rival parties have been held before expiry of the term of outgoing Committee of Management there is no impediment in making a reference under Section 25(1) if a genuine dispute, as referred in the earlier part of this judgment, exists. Moreover, if the Deputy Registrar is permitted to dwelve upon the validity of the elections held in 2011 and those prior to it on the ground that the said elections were held by a Committee-of-Management which had become time barred, it would amount to empowering him with the power to decide the validity of the elections with retrospective effect which is clearly beyond his jurisdiction. In the facts of the present case it is now not open for the Deputy Registrar to re-open stale matters. In a given case in exceptional circumstances this Court may permit such action but the facts of the case do not allow the same.

Moreover, this Court vide its earlier judgment dated 07.04.2015 quashed the earlier order of Deputy Registrar dated 23.03.2015 which was passed on the same lines, therefore, it was not open for him to declare the Committee-of-Management as time barred, that too with effect from 02.07.2001 as had been done by him in the earlier order dated 23.03.2015 though with effect from 27.07.2011.

In view of the above the impugned order dated 27.07.2015 passed by the Deputy Registrar declaring the members of the general body as existing on 02.07.2001 on the aforesaid factual premise, which is the bone of contention herein, cannot be sustained and the same is hereby quashed.

Accordingly, the writ petition is allowed with a direction to the Deputy Registrar to take a fresh decision on the list submitted by the rival factions under Section 4 and in the said process he shall do the needful, as stated hereinabove and shall act accordingly as per law.