Sri Jain Dharm Parvardhani Sabha ... vs State Of U.P. Thru ...
2015 Latest Caselaw 3183 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 26
 
Case :- MISC. SINGLE No. - 6131 of 2015
 

 
Petitioner :- Sri Jain Dharm Parvardhani Sabha Thru Its Sabhapati & Anr.
 
Respondent :- State Of U.P. Thru Prin.Secy.Institutional Finance Lko.&Ors.
 
Counsel for Petitioner :- Sandeep Dixit,Vijay Dixit
 
Counsel for Respondent :- C.S.C.,Hira Lal Srivastava,Prakhar Mishra
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard Sri Sandeep Dixit, learned counsel for petitioners, Sri Rahul Shukla, learned Standing Counsel appearing for State and Sri Anil Tiwari, Senior Advocate assisted by Sri Apoorva Tiwari and Sri Heera Lal Srivastava, learned counsel for respondent no.4.

The dispute engaging attention of this Court in this petition instituted under Article 226 of the Constitution of India relates to the membership of the general body of a charitable Society known as "Sri Jain Dharm Parvardhani Sabha, Lucknow" (hereinafter referred to as 'Society') . The petitioner no.1 herein is the Society itself represented by its alleged Sabhapati through Sri Vinay Kumar Jain, who is the petitioner no.2 as well.

The petitioners have assailed the validity of an order dated 29.09.2015 passed by the Deputy Registrar Firms, Societies and Chits, Lucknow Division, Lucknow whereby list of members of the general body of the society has been finalized and election programme under Section 25 (2) of the Societies Registration Act,1860 (hereinafter referred to as 'Act') has been promulgated.

The society was registered on 6.09.1972 and its registration was renewed on 24.09.1996 w.e.f 10.10 1985 till 09.10.2000. It appears that since the year 2000, once the registration of the society lapsed, no efforts were made to get its registration renewed. However, an application appears to have been made on 27.11.2013 i.e., after lapse of a period of about 13 years seeking renewal of the registration of the society. The registration of the society was, thus, renewed by order dated 31.12.2013. The petitioner appears to have moved an application seeking recall of the order dated 31.12.2013 which was rejected by the Deputy Registrar by means of the order dated 11.12.2014. It is this order dated 11.12.2014 whereby representation made by the petitioner for recalling the order dated 31.12.2013 was rejected which is under challenge in Writ Petition No. 8222 (M/S) of 2014.

It appears that thereafter the list of members of the Committee of Management was submitted as required under Section 4 of the Act which was accepted by the Registrar. This action of the Registrar, apart from an order dated 23.01.2015 whereby certain amendments in the bye-laws of the society were registered, is the subject matter of challenge in Writ Petition No.1367 (M/S) of 2015. Both the petitions were clubbed together and on 01.04.2015, an order was passed directing the Registrar/Deputy Registrar to notify the respective lists of members of the general body inviting objections. The Registrar/Deputy Registrar was further directed that after having regard to the objections and material placed on record, the list of the general body shall be finalized. It was further provided that renewal of the registration done on 31.12.2013 shall be read as part of the general body to be finalized by the Deputy Registrar/Registrar under the order dated 01.04.2015. The Court in the said order further directed that the general body so finalized shall thereafter hold election of the office bearers of the society and for the said purpose the provision of Section 25 (2) of the Act would automatically come into play. The operative portion of the aforesaid order dated 01.04.2015 is quoted herein below:-

"The Registrar/Deputy Registrar after affording opportunity to both the parties shall notify the respective lists for objection on the notice board and after having regard to the objections and material placed on record, the list of the general body shall be finalised by the Registrar/Deputy Registrar within a period of two months which would be reckoned w.e.f 15.04.2015.

The renewal of the registration shall be read as a part of the general body finalised by the Registrar/Deputy Registrar within the aforesaid time. The general body finalised by the Registrar/Deputy Registrar shall thereafter hold the election of office bearers of the society and for this purpose the provisions of Section 25(2) of the Societies Registration Act would automatically come into play as has been conceded by the parties before this Court.The said exercise shall also be undertaken and completed within a period of next two months i.e. before 15.08.2015. Once the general body is finalised and election held, the consequences shall follow.

The impugned order dated 11.12.2014 shall stand modified in terms of the observations recorded above.

List both the petitions after two months.

Learned counsel for the petitioners has also expressed concern about some religious function i.e. Mahaveer Jayanti which is going to be held tomorrow i.e. 02.04.2015. The Registrar/Deputy Registrar to whom the matter has been relegated shall make a request to the District Administration for ensuring the maintenance of law and order situation during the religious function going to be held tomorrow.

Let the above order be also communicated to the District Magistrate, Lucknow by Senior Registrar of this Court today".

It is also noticeable at this juncture that the aforesaid order dated 01.04.2015 was passed on concessions given by both the parties based on an understanding that the issue of the membership of the society deserves to be set at rest and further that till that time the renewal granted by the Deputy Registrar may be withheld and be kept on record. While issuing the aforesaid directions, this Court in the order dated 01.04.2015 took note of the newly inserted provisions contained in Section 4-B of the Act and accordingly left both the parties at liberty to place their respective lists before the Registrar/Deputy Registrar which were ordered to be examined and finalized keeping in view the original bye-laws and the relevant provisions of the Act. After the aforesaid order was passed by this Court on 01.04.2015, list appears to have been finalized by the Deputy Registrar by means of the order dated 20.07.2015. The aforesaid order finalizing the list of the general body of the society was challenged by the petitioners by way of filing Writ Petition No.4335 (M/S) of 2015 which was allowed by this Court by means of order dated 29.07.2015 and the order dated 20.07.2015 as also the consequential order dated 21.07.2015 were quashed. The aforesaid order was passed by this Court as learned Standing Counsel and the learned counsel for respondent no.4 in the said writ petition had fairly stated before the Court that opportunity of personal hearing was not afforded by the Deputy Registrar/Registrar to the parties before passing the order dated 20.07.2015. It has been submitted by learned counsel for petitioners that pursuant to the order dated 29.07.2015, detailed objections were filed on behalf of the petitioners. It is in the background of the aforesaid facts and in pursuance of the orders passed by this Court on 29.07.2015 and 01.04.2015 that the Deputy Registrar has passed the order, which has been impugned in this petition, finalizing the list of the members of the general body of the society with the further direction to take steps for holding the election of the Committee of Management.

Sri Sandeep Dixit, learned counsel for petitioners, ably assisted by Sri Vijay Dixit, has attempted to impeach the impugned order passed by the Deputy Registrar principally on two grounds: (1) that the impugned order has been passed by the Deputy Registrar in breach of the mandate issued by this Court in its order dated 01.04.2015 and also while passing the impugned order, the provisions of Section 4-B of the Act, have not been followed and applied and (2) that the finalization of list made by the Deputy Registrar by passing the impugned order is not based on correct appreciation of material and evidence which were placed by the petitioners and also that the said finalization is not supported by the relevant material which ought to have been made available by respondent no.4 in support of the genuineness of the membership of the persons as claimed by them.

As regards the first argument that the Deputy Registrar, while passing the impugned order, has not followed the mandate issued by this Court inasmuch as that the provisions of Section 4 (B) of the Act have not been followed, Sri Sandeep Dixit, learned counsel for petitioners has drawn attention of this Court to the recital made in the impugned order at page 39 of the writ petition which reads as under:-

lkslkbVh vf/kfu;e esa lekfo"V fd;k x;k /kkjk&4 ch dk izkfo/kku o"kZ vDVwcj 2013 ls ykxw fd;k x;k gSA mijksDr foospuk ds vuqlkj laLFkk dh lk/kkj.k lHkk ds lnL;ksa ds fu/kkZj.k dk le; o"kZ 1972 ls o"kZ 2000 ds e/; bafxr fd;k x;k gSA vr,o lks0 jft0 vf/k0 1860 ds uohu vaxhd`r fd;s x;s /kkjk&4 ch ds izkfo/kku dks orZeku izdj.k esa ykxw fd;k tkuk mfpr ugha gksxk] D;ksafd mDr izkfo/kku ljdkjh xtV m0 iz0 ds vlk/kkj.k xtV esa 9 vDVwcj 2013 dks izdkf'kr gS rFkk mDr izkfo/kku dk vuqefr fnukad &28 flrEcj 2013 dks egkefge jk"Vªifr }kjk iznku dh x;h gSA

It has been submitted by learned counsel for petitioners that by the aforequoted extract recited in the impugned order, the Deputy Registrar admits that while passing the impugned order, he has neither followed nor applied the provisions of Section 4-B of the Act which renders the impugned order illegal for the reason that it is not only that it was the duty of the Deputy Registrar itself to have followed the provisions of Section 4-B of the Act, but also because the reading of the order dated 01.04.2015 passed by this Court makes it clear that the Deputy Registrar was under obligation and mandate of this Court to have followed the said provisions.

As regards the second submission, Sri Dixit, learned counsel for petitioners has strongly contended before the Court that the Deputy Registrar while finalizing the list of members of the general body has completely ignored Rule 4 of the bye-laws which prescribes the prerequisites for any person to be admitted as a member of the society. He has also contended that there are various members who have been included in the list of members of the general body of the society by the Deputy Registrar by passing the impugned order in respect of whom the relevant documents are not available on record.

It has also been contended by Sri Dixit, as already observed above, that the impugned order cannot be permitted to be sustained for the solitary reason that the same has been passed without applying and following Section 4-B of the Act. Thus, on this ground alone the impugned order should be quashed and direction be issued to the Deputy Registrar to consider the matter afresh.

Per contra, Sri Anil Tiwari, Senior Advocate assisted by Sri Apoorva Tiwari, learned counsel for respondent no.4, arguing with vigour, has submitted that even though a recital has been made in the impugned order by the Deputy Registrar that provisions of Section 4-B of the Act are not applicable to the facts of the case, if the relevant records are examined, it will be revealed that the entire exercise carried out by the Deputy Registrar while passing the impugned order is an exercise as contemplated under Section 4-B of the Act. He has also stated that even if the provisions contained in Section 4-B of the Act are not followed, then also for the purposes of conducting election under Section 25 (2) of the Act, the Deputy Registrar or the Registrar is required to call for a meeting of the general body of the society for electing office bearers and for the said purpose, the Deputy Registrar or the Registrar has to undertake an exercise to determine the membership of the general body in the wake of the provisions contained in Section 15 of the Act. He has also drawn attention of this Court to the provisions of Section 15 wherein the member of the society has been defined to mean a person who, having been admitted in the society according to the rules and regulations thereof, shall have paid subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations.

In pith and substance, submission made by learned counsel for respondent no.4 is that in any case the genuineness of the membership of the general body has been determined and the said exercise may be construed to be an exercise as required under Section 25 (2) read with Section 15 of the Act or it can also be construed to be an exercise done by the Deputy Registrar under Section 4-B of the Act. He has also submitted that contention of learned counsel for petitioners regarding applicability/ non-applicability or the provisions of Section 4-B of the Act is not relevant at all.

Sri Tiwari, has also stated that the society in question is a charitable society and has been in existence for a long period of time i.e since 1972 and is engaged in various charitable activities and functions. He has also stated that the dispute regarding membership of the general body of the society has been a subject matter of litigation since long and hence, this Court should now give a quietus to the said dispute so that the society can be permitted to discharge its functions and achieve the objects for which it has been created. He has also stated that the respondent no.4, while submitting the list of members of the general body of the society for consideration of the Deputy Registrar, has submitted all the requisite documents including the application form and the membership register. It has also been stated that since as per Rule 4 of the bye-laws of the society, there is no requirement of any subscription for membership, hence the receipt book of membership fee or cash book etc. were not furnished before the Deputy Registrar. He has, thus, contended that minor discrepancies in the application form of certain members of the general body should not come in the way to create an atmosphere where the society can run smoothly and achieve its purpose, for which, it was formed which is charitable in nature.

Learned Standing Counsel defending the impugned order passed by the Deputy Registrar has submitted that the order has been passed on the basis of material available on record and further that the same does not suffer from any discrepancy or illegality so as to call for any interference.

The original record has been produced by learned Standing Counsel from the office of the Registrar/Deputy Registrar.

I have given my conscious consideration to the arguments raised by learned counsel for respective parties and have also perused the original record produced by learned Standing Counsel today.

The Societies Registration Act, 1860 is a piece of legislation not for regulating or putting in place any regulatory measures over the functioning of the societies which are required to be registered. The said enactment has been made by the Central Legislature with a view to improve the legal condition of the societies established for promotion of literature, science, or the fine arts or for the diffusion of useful knowledge or for charitable purpose. An assembly of like minded person for some specific purpose or goal has been a natural urge of every human being since long. Under the Scheme of the Act, it is the society formed for specific purpose which has to be given the paramount importance and whose interest is to be safeguarded by the authorities created by or appointed under the Act. The authorities acting under the said Act have to keep in mind that all of their actions are required to be taken only with a view to farther the goal of the society and not to hamper the same.

As regards the instant case, the society, as observed above, was formed by certain individuals belonging to a particular sect of Jain religion for the charitable purposes way back in the year 1972. Both the parties to this petition who are contesting the matter regarding membership of the general body have no dispute as regards the charitable purposes and works for which society has been formed. However, it appears that for certain reasons which have nothing to do with aims and objects of the society, some individuals have indulged in a manner which has resulted into multiple litigation.

Dealing with the first argument raised by learned counsel for petitioners as regards the applicability of Section 4- B of the Act in the present case, it may only be observed that the submission made by learned counsel for the petitioners is correct for the reason that Section 4-B starts to operate at the time of registration/renewal of the society. Any retrospective period for which the renewal is sought is not relevant for the purposes of application of the provisions of Section 4-B of the Act. It is the time of the registration or renewal of the registration of the society which is material and in case renewal/registration of the society is considered at a point of time later than the point of time when Section 4-B of the Act was inserted, its applicability, in my considered opinion, cannot be doubted or denied; even if the reference period for which renewal is being sought falls prior to introduction of Section 4-B.

In the instant case, the order of renewal of the registration of the society was passed on 31.12.2013. Section 4-B was inserted by U.P. Act No.23 of 2013 on 09.10.2013. It is also worth mentioning that this Court while passing the order dated 01.04.2015 has not set-aside, varied or rescinded the order of renewal of registration of the society; rather has stated that the finalization of the list to be made will form part of the order of renewal of the registration of the society dated 31.12.2013. Thus, the relevant point of time to establish the applicability or non applicability of Section 4-B of the Act would be the date of consideration of the renewal of the registration of the society which admittedly was done on 31.12.2013 by which date Section 4-B was already in operation. Thus, the recital made by the Deputy Registrar in his order to the effect that Section 4-B will not be applicable for the reason that reference period for which the membership is to be determined is from 1972 to 2000 is based on complete misreading of the provisions of Section 4-B which commences with the opening phrase "at the time of registration/renewal of a society".

Having observed above that the provisions of Section 4-B of the Act will be applicable in the facts of this case and the entire exercise ought to have been conducted by the Deputy Registrar keeping in view the provisions of Section 4-B, what now needs to be examined is as to whether from the perusal of the record and on scrutiny of the exercise conducted by the Deputy Registrar, it can be established that the said exercise, in fact, is referable to Section 4-B or not.

Section 4-B of the Act requires that the list of members of the general body of the society shall be filed at the time of registration/renewal mentioning the name, father's name, address and occupation of the members. It further mandates the Registrar to examine the correctness of the list of members of the general body on the basis of (1) register of members and minutes book thereof (2) cash book, (3) receipt book of membership fee and (4) pass book of the society.

To give an objective tool in the hands of the Registrar for determining correctly the membership of the general body, Section 4-B has been inserted by the State Legislature. Prior to insertion of Section 4-B also, in a situation where any elections were required to be conducted under Section 25 (2), the Registrar was required to determine the membership for the reason that election of the office bearers is required to be conducted after calling a meeting of the general body of the society. For calling a meeting of the general body of the society, it was incumbent upon the Registrar to correctly determine as to who are the members and who are not the members of the society, in case rival claim is made. However, except in an exigency where elections were required to be held under Section 25 (2) of the Act, before insertion of Section 4-B, there was no requirement for the Registrar to determine the correctness of the list of the members of the general body. Thus, Section 4-B not only gives a tool in the hands of the Registrar to determine the correctness of the list of the members of the general body of the society but it also gives an opportunity to make his own record straight for the reason that both at the time of seeking registration of a society and at the time of seeking its renewal, the person concerned is required to file the list of members with appropriate and relevant information along with all the requisite and relevant documents. Once an exercise under Section 4-B is completed, based on the said exercise, the Registrar will, in his record, also have correct list of the members of the general body. The State Legislature, thus, in its wisdom has not only given a tool in the hands of the Registrar to determine the correct list of the members of the general body but it has also provided an opportunity to the Registrar to keep a list of genuine members in his office record.

As observed above, during the course of hearing the Court has perused the record produced by learned Standing Counsel representing the Deputy Registrar. The record reveals that the applications moved by the persons whose names have been mentioned in the list submitted by the respondent no.4 were considered and taken into account by the Deputy Registrar. The Deputy Registrar has also considered the membership register as produced by respondent no.4. The list of members as provided or furnished by the petitioner no.2 has also been examined. Certain discrepancies have been mentioned in the impugned order as regards the list provided by the petitioner no.2 for consideration of the Deputy Registrar for the purposes of determining the membership of the general body. Various documents and material mentioned in the impugned order itself, which are also available on record , have been considered while passing the impugned order and hence, it cannot be said that the Deputy Registrar while passing the order and determining the list of the members of the general body has not taken into account the relevant record. The exercise, thus, conducted by the Deputy Registrar appears to be based on consideration of the documents and material including the membership register of the general body as furnished by the respondent no.4.

For conducting an exercise under Section 4-B, the Registrar has been mandated to examine the correctness of the list of the members on the basis of certain documents. In my considered opinion, the documents mentioned in Section 4-B cannot be said to be exhaustive for the purposes of determining the correctness of the list of the members of the general body. The register of the members, minutes book, cash book, receipt book of the membership fee and bank pass book of the society, which are mentioned in Section 4-B, are all relevant documents but it cannot be said that these are the only relevant documents which need to be considered and examined by the Registrar for the purposes of giving finding as regards the genuineness of the list of the members of the general body.

There may be a situation in case of a particular society where existence of some of the documents mentioned in Section 4-B may be a situation of impossibility. As in the present case, Rule 4 of the bye-laws of the society does not require any membership fee or subscription, hence, question of existence of receipt book of membership fee or any cash book does not arise at all. For establishing the genuineness of the membership of the general body, if a society produces any other material, depending on its relevance, the same can also not be taken into account by the Deputy Registrar; rather he is under obligation to take into account all relevant documents including the document mentioned in Section 4-B of the Act. Thus, after perusal of the original record produced by learned Standing Counsel, I have no hesitation to hold that though the Registrar in the impugned order has stated that Section 4-B is not applicable in this case, however, the entire exercise conducted by him while passing the impugned order can safely be termed to be an exercise under Section 4-B.

Besides above, for the purposes of conducting election under Section 25 (2) and calling a meeting of the general body of the society, determination was required to be made by the Deputy Registrar of the membership of the general body. Thus, contention of learned counsel for petitioners that the Deputy Registrar has wrongly observed in the impugned order that Section 4-B is not applicable appears to be correct. However, on an examination of the record produced by learned Standing Counsel, the said exercise is easily referable to the provisions of Section 4-B.

Next submission made by learned counsel for petitioners relating to non consideration of the relevant documents and misreading of the documents is to be considered in light of the observations made by the Deputy Registrar in the impugned order and also in light of the documents and material available on record. Learned counsel for petitioners has stated that so far as the list submitted by the petitioner no.2 is concerned, a detailed consideration has been made by the Deputy Registrar pointing out the discrepancies which have been found by him. However, in respect of the list submitted by the respondent no.4, it has been observed by the Deputy Registrar that from perusal of the record furnished by the respondent no.4, it is clear that the list of the members submitted by the respondent no.4 is as per Rule 4 of the registered bye-laws of the society.

It has been attempted on behalf of the petitioners to point out that in the original records which were available before the Deputy Registrar, various applications, submitted by the members whose names have been found in the list submitted by respondent no.4 do not contain details of the age, length of residence in the city and the information that the concerned person is a follower of Digamber Jain sect. From the original record, learned counsel for petitioners has shown some such applications which appear to contain deficient information. It has, thus, been contended by learned counsel for petitioners that in case any member, who has been inducted as member of the general body, does not fulfill the requirement of Rule 4 of the bye-laws, he/she could not have been said to be a genuine member. He has also submitted that Rule 4 of the bye-laws permitted only those persons who are followers of Digamber Jain sect and are 18 years of age and have been the residents of city of Lucknow for three years and have applied in writing can be the members. Referring to some applications where the applicants have not mentioned their age, some of them have not given any information regarding the length of residence in Lucknow city and some of them have not disclosed that they belong to Digamber Jain sect, it has been contended that admission of such members as the members of the general body cannot be sustained.

Sri Dixit, learned counsel for petitioners has also stated that out of the total 425 members of the general body as finalized by the impugned order, 70 persons are dead and hence, in this situation the impugned order and the list appended thereto cannot be permitted to be acted upon.

So far as the inclusion of dead members in the general body is concerned, the same, in my considered opinion, does not affect either the election to be held for the office bearers or the general functioning of the society. Keeping in view the long standing dispute between the parties regarding the society and also keeping in view the desire of all the members of the society that the society should function and achieve its goal as a charitable society, the inclusion of names of dead persons does not assume any relevance for the purposes of resolving the present controversy.

In respect of the discrepancies pointed out by learned counsel for petitioners in some of the applications of the members whose names have been included by means of impugned order as the members of general body where some information regarding the age etc. is not available, it can only be observed that for smooth functioning of the society and also with a view to give quietus to the dispute so that the society can work in a conducive atmosphere, the issue being sought to be raised will have no impact so far as resolution of the present dispute is concerned. Some discrepancies here and there in the applications would not dis-entitle a particular person to be the member of the society unless in respect of any individual a specific case is put forth by the petitioner that he/she is not a follower of the Digamber Jain sect or he is not 18 years of age or he has not been resident of the city for three years or any one has been included as a member without there being any written application.

In view of the discussions made and reasons given herein above, I do not find any good ground to interfere in the petition which is hereby dismissed.

It has been informed at the bar that the election schedule as given in the impugned order has been modified and now the last date of submission of nomination forms is 14.10.2015 and the withdrawal of nomination papers has been permitted till 15.10.2015 by 2.00 p.m. The publication of valid nomination papers is now to be made on 15.10.2015 at 4.00 p.m. However, no date of election has been announced.

At this juncture, learned counsel for petitioners has submitted that as per requirement of sub-section (2) of Section 25 of the Act, the Deputy Registrar is under obligation to call for a meeting of the general body of the society for electing the office bearers and such meeting has to be presided over and conducted by the Registrar or by any officer authorized by him. In the instant case the impugned order does not provide for calling a meeting of the general body of the society. Accordingly, it is directed that the Registrar/Deputy Registrar shall call a meeting of the general body of the society for electing its office bearers. The meeting shall be presided over by the Registrar or the Deputy Registrar or any other officer authorized by him. The said meeting shall be conducted within two weeks from today and the election programme shall accordingly be rescheduled.

With the aforesaid observations, the Court expects and deposes its trust in the genuine members of the society that they shall conduct the affairs of the society in such a manner which will make it possible for the society to achieve its goals which are charitable putting, aside all their petty differences.

No order as to costs.

Order Date :- 14.10.2015

Renu/-