Shahganj Public School Thru' Its ... vs State Of U.P. & 2 Others
2015 Latest Caselaw 1445 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 15.07.2015
 
Delivered on 24.07.2015
 

 
Case :- WRIT - C No. - 27463 of 2015
 
Petitioner :- Shahganj Public School Thru' Its C/M & Another
 
Respondent :- State Of U.P. & 2 Others
 
Counsel for Petitioner :- R.K. Sinha,Gagendra Pratap
 
Counsel for Respondent :- C.S.C.,V.D. Shukla
 

 
Hon'ble Yashwant Varma,J.

Heard Sri Gajendra Pratap, learned senior counsel appearing in support of this writ petition assisted by Sri R.K. Sinha, the learned Standing Counsel for the state respondents and Sri Ashok Khare, learned Senior Counsel appearing for the private contesting respondents.

After hearing counsel at some length and with their consent judgement on this petition had been reserved on 18.05.2015. During the course of preparation of the judgement, it became necessary to seek certain clarification with respect to certain documents submitted by the counsel for the Respondents across the board as a consequence of which it became necessary to post the matter for further hearing. Accordingly, this petition was listed for further hearing on 15.07.2015, where after hearing learned counsel for the parties, orders were reserved.

The challenge in the present petition is to an order passed by the Assistant Registrar, Firms Societies and Chits made in purported exercise of powers conferred by Section 3A of the Societies Registration Act, 18601. While proceeding to consider an issue of renewal of the society in question, the Assistant Registrar proceeded to issue directions for holding of elections for constitution of the committee of management of the society in question. This direction, he proceeded to make by invoking the provisions of Section 25(2) of the Act, 1860. For the purpose of conduct of the said elections, the Assistant Registrar proceeded on the basis that the electoral college comprised of 52 members, the details of which were submitted before him by Sri Hriday Narain Misra (the 3rd Respondent in these proceedings) and Sri Ram Sammukh Tripathi. It was this list submitted by Sri Tripathi which was declared to constitute the electoral college. During the course of hearing Sri Khare had also handed across the board a newspaper extract which carried the detailed election programme and pursuant to which the Court was informed that elections had taken place on 24 May 2015.

Having heard learned counsel for the parties and having perused the materials on record, it transpires that the Shahganj Public School was incorporated as a society as far back as in 1944. The registration of the society admittedly came to be accorded lastly on 11.07.1991. In terms of this order, the society stood renewed for a period of five years w.e.f. 10.10.1990. The order of the Assistant Registrar records that thereafter no periodical renewal of the society was undertaken and consequently, it became deregistered. The Assistant Registrar further found that one Ashok Kumar Sinha submitted papers for renewal on 07.02.1996. It was during the pendency of consideration of the aforesaid papers that one Jagdish Narain Sinha submitted papers along with a letter of 18 September 2007. This letter further carried proceedings of a purported election stated to have been held on 05.07.2000.

While the aforesaid proceedings remained pending before the Assistant Registrar, Sri Ashok Kumar Sinha along with his letter of 26.06.2014 proceeded to deposit fee for renewal and election proceedings of the committee of management and a list of office bearers alleged to have been elected right from 1997-1998 to 2012-2013. Along with these papers, Sri Sinha further submitted a list which was stated to represent the general body of the society as existing in 2012-2013.

A third front came to be opened up before the Assistant Registrar with one Sri Hridaya Narain Mishra (the 3rd respondent herein) filing parallel proceedings of the society right from the year 1990-2014. Sri Dixit along with his application also deposited the fee seeking renewal of the society upon the papers submitted by him.

Faced with these competing claims, the Assistant Registrar proceeded to issue notice to respective parties and afforded them an opportunity to file relevant papers and documents in support of their respective claims. Shorn of all over superfluous facts, it appears that the Assistant Registrar came to be faced with competing claims laid by Sri Sinha and the 3rd Respondent. It is also worthy to note that both Sri Sinha and the 3rd Respondent relied upon a list said to comprise the general body of the society containing the names of 52 persons. While the total number of members were common, the list of members submitted by them was different.

Insofar as the claim laid by Sri Sinha is concerned, the Assistant Registrar proceeded to record that he had failed to furnish any documentation which could establish how he became a member of the society in 1978. The Assistant Registrar further held that Sri Sinha had also not submitted any documentary proof or evidence in respect of the members, whose names stood included in the list furnished by him.

On the other hand, while dealing with the papers submitted by the 3rd Respondent, the Assistant Registrar found that it was supported by the notary affidavits of 34 members and it was on the basis of these affidavits that he formed an opinion that the papers submitted by Sri Misra were liable to be countenanced. The other relevant material which the Assistant Registrar proceeded to rely upon was the affidavit of Sri Ram Sammukh Tripathi. He records that Sri Ram Sammukh Tripathi and certain other members had donated their agricultural land for the purpose of establishment of the society and the institution and that the affidavits filed by these members lent credence and authenticity to the claim laid by Sri Misra. It was on the above basis that the Assistant Registrar proceeded to issue directions for the holding of elections based upon and resting on the papers submitted by the 3rd Respondent.

Insofar as the order impugned refusing to accept the proceedings of purported elections having been held between 1997 to 2013 and 1990 to 2015 by the contesting parties, this Court does not find any fault in the conclusion recorded by the Assistant Registrar. Admittedly, these proceedings were submitted by the rival factions "en bloc" only in June and August, 2014. The long hiatus between 1996 to 2015 was not satisfactorily explained by either faction. In the opinion of this Court, therefore, the Assistant Registrar clearly did not err in refusing to accord recognition or approval to the election proceedings alleged to have been conducted by the rival factions.

Sri Gajendra Pratap learned Senior Counsel appearing for the Petitioner centered his submissions, not on the findings of fact as recorded by the Assistant Registrar, but on the following two issues:-

(a) Sri Pratap contended that in the admitted state of facts, the registration of the society came to an end in 1996 and that no renewal thereafter was effected. He submitted that consequent to the society becoming unregistered it went out of the purview of the Act, 1860 and therefore the orders passed were without jurisdiction.

(b) The second submission advanced by learned senior counsel was that the Assistant Registrar had failed to follow the procedure prescribed under Section 25 (2) of the Act, 1860. He submitted that the decision to hold elections could have only been taken in a meeting of the general body of the society which was to be presided over by him. Sri Pratap in this connection placed reliance upon a judgment rendered by a Division Bench of our Court in H.C. Gupta Vs. Registrar.2

Sri Khare learned senior counsel on the other hand submitted that the Act, 1860 would not cease to apply on mere deregistration of the society. He submitted that a renewal of the society by statutory fiction related back and therefore it cannot be said that the Assistant Registrar wrongly exercised power or assumed jurisdiction. Even otherwise Sri Khare contended that the renewal of registration of a society inhered to the benefit of all members of the society. In support of the above submission Sri Khare drew the attention of the Court to the judgment rendered in Shiksha Prasar Samiti Allahabad Vs. Registrar Societies, Chits and Firms U.P.3

Before proceeding to deal with the rival submissions, let it be noted that the submission of Sri Pratap with respect to assumption of jurisdiction by the Assistant Registrar must necessarily be viewed in light of the fact that the Petitioner himself invoked his authority by seeking renewal of the society in question. It is not disputed that both sides sought renewal of registration by making of appropriate applications and deposit of requisite fee. Therefore it does not lie in the mouth of the Petitioner to now assert that the Assistant Registrar could not have assumed authority over the affairs of a society which had become unregistered. Nevertheless since the issue has been raised this Court proceeds to deal with the same.

The fact that the society had become unregistered is not disputed by either faction. The only issue therefore which falls for consideration is whether in such a situation the Assistant Registrar stands denuded of all jurisdiction and authority over such a society. The answer in the opinion of this Court must be in the negative. Here are the reasons.

Admittedly the provision for renewal of registration of a society stands engrafted in the Act, 1860 by virtue of insertion of Section 3-A4. Sub section (1) of the above provision mandates that a certificate of registration issued under section 3 would remain in force for a period of two years. Sub section (2) thereof then provides that an application for renewal would have to be made within a period of one month from the expiry of the above period. The "above period" necessarily meaning the period of two years. Significantly however section 3-A (2) covers all societies which seek to register under the Act after coming into force of the above provision as also societies which may have been registered prior to its insertion. Therefore a society which came to be registered prior to the promulgation of U.P. Act 26 of 1979 saw its period of registration being restricted to two years. The inherent fallacy in the argument advanced on this score is therefore apparent. Would a society which became unregistered by virtue of Section 3-A (1) go out of the ambit of the Act, 1860. The Court negatives such a proposition and holds that this is surely not the ethos of the provision nor for that matter of the Act, 1860.

Secondly in terms of sub section (5) of the Act, 1860 a society which fails to apply for renewal within one year from the expiry of the period for which the certificate was operative is stated to have become unregistered. However the proviso thereof empowers the Registrar to entertain an application for registration even after the expiry of the above period subject to sufficient cause being shown. This clearly indicates that even an "unregistered society" can apply to the Registrar for renewal in terms of the proviso to section 3-A (5). If such an application is made, the Registrar is bound to consider the same subject to sufficient cause for the delay being shown and established. It cannot therefore be said that the Registrar looses jurisdiction over the affairs of an "unregistered society."

More fundamentally, in terms of sub section (6) the renewal of a certificate of registration is deemed to operate from the date of expiration of the period for which it was operative. Therefore by legal fiction the act of renewal wipes out the consequences of the period during which the society remained unregistered. Needless to state a legal fiction must be given its full weight and permitted to operate in all its width without the mind being boggled.

In light of the above this Court refuses to accept the first submission as advanced on behalf of the Petitioner.

Coming then to the second submission advanced by Sri Pratap, this Court finds that the sheet anchor of the said submission is the judgement of the Court in H.C. Gupta (supra).

Dealing with the nature of the power exercised by the Registrar under section 25 (2) and stage and manner in which it was liable to be delegated, the Division Bench held thus:-

"5. Section 25 deals with disputes regarding election of office-bearers. Under sub-section (1) such disputes are required to be decided by the Prescribed Authority on a reference made to him by the Registrar or by atleast 14th of the members of society registered in Uttar Pradesh. It was in exercise of this power that the Prescribed Authority decided the dispute by order dated 1st May, 1989. Sub-section (2) provides for the follow up action and reads as follows:

"Where by an order made under sub-section (1), an election is set aside or an office-bearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of office-bearers of a society has not been held within the time specified in the rules of that society, he may call meeting of the general body of such society for electing such office-bearer or office-bearers, and such meeting shall be prescribed over and be conducted by the Registrar or by any officer authorised by him in this behalf, and the provisions in the rules of the society relating to meetings and elections shall apply to such meeting and election with necessary modification." (emphasis supplied)

From the emphasised portion in the above sub-section it would appear that the Registrar undoubtedly has the power to delegate his fuctions. The quetion is to what extent the power can be delegated? Is the power to delegate confined to the matters specified in the immediately proceeding clause viz., the clause reading "and such meeting shall be prescribed over and conducted by the Registrar" or it embraces also the earlier clause which reads "he may call meeting of the general body of such society for electing such office-bearers?

A perusal of Section 25(2) shows that it provides for four distinct matters-

(1) When the powers conferred thereunder will be exercised,

(2) how the power will be exercised or the manner of exercise of power,

(3) the rules which will govern the resultant exercise of power, and

(4) delegation of power.

In respect of the first matter it provides that the power may be exercised when (1) an election has been set aside or an office-bearer has been held disentitled to hold office in proceeding under section 25(1), and (ii) when the Registrar is satisfied that the time specified under the rules of the Society for holding election has expired and no election has been held. The first situation is positive or active and the second is negative or passive. The first situation arises from an order of the Prescribed Authority and the second from inaction of the office-bearers of the Society. In either of the two situations or on existence of both of these, the Registrar is authorised to take a certain step. The step that he is authorised to take is to call meeting of the general body of the Society. The purpose of calling such meeting is also specified viz, to elect office-bearers of the Society. This pertains to matter (2) enumerated above. Up to this stage section 25(2) does not speak of any functionary except the Registrar. Therefore, up to the stages referred to hereinbefore there is no scope for delegation. Coverage of matters (ii) does not stop here. After the meeting has been called, the next question is -

(1) who will preside over the meeting, and

(2) how the meeting will be conducted.

The first relates to the manner of exercise of power and the latter to the rules applicable to the further exercise of power. About the 1st, section 25(2) says that the meeting may be presided over by the Registrar himself or by his nominee. It is only here that that a functionary other than the Registrar comes in the picture and that is his nominee. The meeting whether presided over by the Registrar himself or by his nominee will have to be conducted in accordance with the rules of the the Society relating to meetings and elections. From the scheme of section 25(2) it appears that the occasion for Registrar to nominate an officer arises only when he decides, after calling the meeting, that the meeting shall not be presided over by him but by some one else. Accordingly the role of the nominee arises only after the meeting has already been called. The essential function of calling the meeting, therefore, has to be performed by the Registrar himself. Once it is held that the Registrar himself as to call the meeting and this function cannot be delegated by him, the next question would be as to who has to finalise the list of voters or members of the Society.

6. For calling meeting of the general body the Registrar will have to fix a date for the meeting and intimate that date to the members of the Society. Without this the calling of meeting will not be complete. For issuing notice to the members, the Registrar must have a valid list of voters or members of the Society. Without such a list it will not be possible for him to give intimation of the date of meeting fixed by him. It is apparent that if any dispute arises regarding the membership of the Society it will have to be decided before the notices are issued. Thus the function of finalising the list is implicit in the function of calling the meeting of the general body. From this it flows that the nominee of the Registrar is not competent to take any decision regarding the list of members, if any dispute in that regard arises. In fact from the scheme of Section 25 it appears that the settlement of dispute of that nature must precede the calling of the meeting. Accordingly, the decision of the Tahsildar to hold election on the basis of the list dated 18th July, 1986, about which there was dispute, cannot be sustained. For the same reason the Deuty Registrar's order dated 4th September, 1989, Annexure 11, whereby he required the Tahsildar to decide dispute regarding membership also cannot be sustained. The election was held on 14th September, 1989 without there being a valid and finalised list of members. The said election cannot, therefore, be upheld."

From a reading of the above it is apparent that two essential functions are liable to be performed by the Assistant Registrar:-

a) Finalise the list of members of the general body; and

b) Convene the meeting for electing office bearers

The Division Bench in H.C. Gupta (supra) has clearly held that the actual meeting of the general body need not be presided over by the Assistant Registrar and that his nominee could preside over such a meeting. Bearing the above in mind, it is apparent that the directions issued by the Assistant Registrar while passing the order impugned does not fall foul of the law laid down by this Court. In terms of the impugned order, the Assistant Registrar has proceeded to declare that the list of 52 members submitted by the respondents would comprise the members of the society as contemplated under section 15 of the Act, 1860. He further proceeded to issue directions for holding of a meeting to elect the office bearers referring to the powers conferred under Section 25 (2) upon him. The entrustment of further functions to the District Inspector of Schools Jaunpur who was appointed as the Election Officer, in the opinion of this Court, was not in violation of the dictum laid down in H.C Gupta (supra).

At the cost of repetition this Court must note that the Petitioner has not assailed the findings returned by the Assistant Registrar on facts. The findings that the Petitioner did not place any papers to prove his membership or for that matter of the 52 others who according to him constituted the general body has not been challenged either in the writ petition or in oral submissions.

In view of the above conclusions, this Court finds no error in the order passed by the Assistant Registrar. The writ petition is consequently dismissed. No costs.

Order Date :- 24.07.2015

LA/-