Anand Swaroop Agarwal vs State Of U.P. Thru Secy. And Others
2015 Latest Caselaw 3521 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 38
 

 
Case :- WRIT - C No. - 55045 of 2011
 

 
Petitioner :- Anand Swaroop Agarwal
 
Respondent :- State Of U.P. Thru Secy. And Others
 
Counsel for Petitioner :- J.J. Munir,Manish Goyal,Uma Nath Pandey
 
Counsel for Respondent :- C.S.C.,Hemendra Kumar,R.K.Ojha
 

 
Hon'ble Pankaj Mithal,J.

An order dated 27.08.2011 passed by the Assistant Registrar (Firms, Societies and Chits), Moradabad under Section 25(2) of the Societies Registration Act, 1908 (hereafter referred to as the Act) has been impugned by the petitioner in this writ petition as also the consequential election programme dated 30.08.2011 issued by the respondent No.8.

The Assistant Registrar by the impugned order inter alia holds that the term of the Managing Committee of the Society is to be treated as one year and as its elections have not been held within time the Managing Committee has become time barred. He accordingly directed for convening a meeting of the General Body of the Society for the purpose of elections.

In assailing the above order the primary contention of Sri Manish Goyal, learned counsel appearing for the petitioner is that the impugned order passed by the Assistant Registrar is completely without jurisdiction. The bye laws of the society do not prescribe for the elections of the Managing Committee to be held every year and therefore, the Assistant Registrar manifestly erred in treating the term of the Managing Committee to be one year and for directing the elections to be held accordingly.

In addition to the above primary contention raised on behalf of the petitioner, it has been contended that the order impugned has been passed in violation of the principles of natural justice and suffers from perversity.

In response to the above argument, Sri Gagendra Pratap, learned Senior Advocate, assisted by Sri Hemendra Kumar appearing for respondents No. 3 to 7 submits that the bye laws of the Society provides for the election of the Managing Committee which means that the members of the Managing Committee and its office bearers have to be elected. The concept of election itself postulates holding of elections periodically therefore, even if the bye laws are silent on the term of the Managing Committee in view of Section 4(1) of the Act, as the list of members is to be submitted annually, the Assistant Registrar has not erred in treating the term of the Managing Committee to be of one year.

In view of the aforesaid facts and circumstances, the only question which falls for consideration in this writ petition is whether in the absence of any stipulation under the registered bye laws of the Society regarding the tenure of the Managing Committee, the Assistant Registrar was justified in treating the term of the Managing Committee to be one year only and in holding it to be time barred for the purposes of fresh elections of the Managing Committee.

Before dealing with the respective arguments of the parties, it is important to place on record the brief facts leading to the establishment of the Society and its bye laws.

It appears that one Brij Mohan Saran Agarwal and Anand Swaroop (Manav) together by a deed of trust dated 17.10.01 established a trust known as Sri Gangaram Shiksha Dharamarth Nyaas which inter alia provides that the trust will have a minimum of 2 and maximum of 12 trustees and that in case of vacancy of any trustee the same shall be filled up by the remaining trustees.

It is not in dispute that the aforesaid trust in addition to the two founder trustees aforesaid had 11 other trustees that is a total of 13 trustees.

The aforesaid trust established a Society known as Sri Gangaram Shiksha Samiti. The said society and its bye laws were registered under the Act on 05.04.2002. The bye laws of the Society have been filed as annexure-2 to the petition.

There is no dispute that all the 13 trustees of the trust constituted the General Body of the Society.

The registered bye laws provide for the constitution of the Managing Committee of 8 members including 5 office bearers to be elected by the General Body of the Society.

There is no dispute between the parties that the registered bye laws of the Society nowhere provides for the term of the Managing Committee of the Society. It only provides that the vacancy in the Managing Committee shall be filled up by the General Body of the Society by the majority of 2/3rd of its members.

The Society and its bye laws were registered in 2002. Its registration was renewed on 09.04.2007 for a period of 5 years. Thereafter, papers regarding the elections of the Managing Committee held on 15.12.09 were submitted before the Assistant Registrar whereupon notice was issued to the petitioner and upon his objections the impugned order came to be passed.

The facts of the case reveal that after getting the Society registered initially no list of its Managing Committee on the basis of any elections were got registered except for submitting the list on the basis of the elections held on 15.12.2009.

The registered bye laws of the Society only provides for the election of the 8 members of the Managing Committee including 5 office bearers from amongst the General Body members of the Society. It does not provide for any periodical election or for the tenure of the Managing Committee. It only lays down that in the event of any vacancy in the Managing Committee the same shall be filled up by the General Body by the majority of 2/3rd of its members. In this way, the registered bye laws of the Society do not contemplate elections of the Managing Committee on regular interval after the initial election except for the purposes of filling the vacancy.

True it is that where the members and the office bearers of the Committee of Management or as a matter of fact of any body are to be elected, the normal course is to have periodical elections but holding of such elections periodically would be dependent upon the bye laws of the Society or the Institution concerned.

Neither the provisions under the Act nor the registered bye laws of the Society anywhere provides for regular elections of any Managing Committee of the Society rather in the present case the registered bye laws of the Society contemplates only elections of the Managing Committee at the initial stage and of the filling up vacancies if any from amongst the members of the General Body by majority of 2/3rd.

The management of a Society has to be in accordance with its registered bye laws which does not provide for the tenure of the Managing Committee or for holding elections thereof on regular intervals. The non fixation of the tenure of the Managing Committee or the absence of a provision for holding periodical elections is not in contravention of any provision of the Act as the Act nowhere mandates that the bye laws of the Society registered and established under the Act should provide for a fixed tenure of the Managing Committee or for elections of the Managing Committee on regular intervals.

The registered bye laws of any Society are not liable to any change except in accordance with the procedure prescribed under the bye laws itself. The Assistant Registrar or any other authority is not competent to intervene in the matter so as lay down the tenure of the Managing Committee if it is not so provided under the registered bye laws.

In Dayal Chand Jain Vs. Assistant Registrar, Firms, Societies and Chits, Allahabad and others 2008 (6) ADJ 401, his Lordship of this High Court while dealing with a matter under Section 25(2) of the Act itself and held that the Assistant Registrar is not empowered to change or alter the method of the elections provided in the bye laws. He does not have any power to deviate from the bye laws and to provide for a different procedure altogether for the purposes of holding the elections of the members of the Managing Committee and its office bearers.

The aforesaid decision leads me to draw an inference that the registered bye laws of the Society have to be read as they are without adding or supplementing anything therein so as to provide for any particular fixed tenure to the Managing Committee. If the registered bye laws do not provide for any fixed tenure of the Managing Committee, the Assistant Registrar would not be competent to provide and limit the term of the Managing Committee to one year on the basis of some other provision of the Act.

Section 4 of the Act provides for the submission of any annual list of members of the Managing Committee before the Registrar.

The aforesaid provision is only for the purposes of keeping the record of all additions and deletions in the names of the members of the Managing Committee and has nothing to do with its tenure.

The submission of annual list of members of the Managing Committee does not mean that such a list has to be submitted after holding fresh elections. It does not even mean that the term of the Managing Committee has to be treated as one year and that the list has to be submitted under Section 4 of the Act after holding elections every year.

The provisions of Section 4 of the Act are altogether in a different context and it does not in any way contemplates to fix the tenure of the Managing Committee or provides for holding elections of the Managing Committee on regular intervals or every year.

In Committee of Management, Ghorath Shankarpur, Kisan Uchchatar Madhyamik Vidyalaya, Ghorath, District Kushinagar and another Vs. State of U.P. and others 2011(3) Adj 54, it has been held that elections of the Managing Committee of the Society are required to be held in accordance with its registered bye laws and if the bye laws provide for holding elections every 5 year, it is not legal and proper to hold the elections on expiry of 3 years and the claim has to be examined in the light of the registered bye laws.

In other words it means that the elections of the Managing Committee are to be held on the expiry of the term laid down in the registered bye laws and in case the registered bye laws do not provide for any specific term it cannot be prescribed or limited by any authority under the Act. The Managing Committee once elected would thus continue with minor changes as to the members going out and coming in to fill up the vacancies occurring in the manner provided in the bye laws. Any other meaning if attributed to the bye laws would result in providing a fixed term to the Managing Committee which would be against the spirit of the bye laws.

In view of the aforesaid facts and circumstances, as the registered bye laws of the Society are completely silent with regard to the tenure of the Managing Committee and for holding periodical elections for electing the members of the Managing Committee and its office bearers, the Assistant Registrar acted wholly without jurisdiction in passing the impugned order and holding that the term of the Managing Committee to be one year only and that the Managing Committee in office has become time barred.

Since the order impugned is without jurisdiction, the consequential declaration of election programme and the holding of the elections thereafter are all bad and falls to the ground automatically.

In view of the fact that the petition succeeds on the first argument raised by counsel for the petitioner, I do not consider it necessary to dwell on the other aspect of the matter with regard to violation of principles of natural justice and the perversity of the impugned order.

The Society is directed to ensure filling up of the vacancies of the Managing Committee in accordance with its registered bye laws and it is provided that the Managing Committee of the Society henceforth shall regularly submit annual list of its members to the Registrar/Assistant Registrar as contemplated by Section 4 of the Act failing which it will be open for the Registrar/Assistant Registrar to take action for de-registration of the Society.

The impugned order dated 27.08.2011 is hereby quashed and a writ of certiorari is directed be issued accordingly.

The writ petition is allowed. No order as to costs.

Order Date :- 28.10.2015

Piyush