Kuber Mishra And 14 Others vs State Of U.P. And 2 Others
2017 Latest Caselaw 2848 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 33								AFR
 

 
Case :- WRIT - C No. - 33296 of 2017
 

 
Petitioner :- Kuber Mishra And 14 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Vijay Kumar Singh, Santosh Kr. Singh Paliwal
 
Counsel for Respondent :- C.S.C., Bhawesh Pratap Singh
 

 
Hon'ble Manoj Misra, J.

Heard Sri G.K. Singh, learned Senior Counsel assisted by Sri S.K. Singh Paliwal, for the petitioners; learned Standing Counsel for the respondents 1 and 2; and Sri Irshad Ali along with Sri Bhawesh Pratap Singh for the third respondent.

As there is not much factual dispute in respect of the ground on which this order is being passed, the learned counsel for the parties are in agreement that this petition be finally disposed at this stage itself.

The brief facts giving rise to the present case are summarized as follows:-

There is a society named Adarsh Junior High School, Maheshpur, District Azamgarh (herein after referred to as the society), which is registered under the provisions of Societies Registration Act, 1860 (herein after referred to as the Act). The last election of the office bearers of the society, of which there is no dispute inter se the parties, was held on 18.08.2013 from a general body comprising 49 members. The petitioner no.1 was elected President; the petitioner no.2 was elected Vice-President; and the third respondent was elected Manager. The list of members of the general body as well as list of office bearers was registered under the provisions of the Act. According to the petitioners, on 09.04.2015, the third respondent (Manager of the Committee) was removed and a fresh election was held on 14.08.2016. The removal as well as fresh election was disputed and by order dated 16.11.2016, the Assistant Registrar discarded the election and proceeded to direct holding of election under sub-section (2) of Section 25 of the Act. The order dated 16.11.2016 has not been challenged and has attained finality.

The dispute in the present petition relates to determination of the electoral college for election to be held under sub-section (2) of section 25 of the Act.

In respect of membership of the society, the third respondent set up a meeting dated 25.12.2013, allegedly presided over by the petitioner no.1, to show induction of 49 members, out of which 18 were existing members. The petitioners are 15 out of those 18 members. This meeting, however, was disputed by the petitioner no.1.

The Assistant Registrar, by the order impugned, discarded the aforesaid meeting dated 25.12.2013 and proceeded to finalize the electoral college by excluding all those 49 members stated to have been inducted by resolution dated 25.12.2013.

The petitioners are aggrieved by exclusion of their name because they were existing members and their induction was not dependent on the validity of the resolution dated 25.12.2013.

The Assistant Registrar did not include those existing 18 members in the list by placing reliance on clause 4-Ka of the bye-laws of the society, which provides as follows:-

4&¼d½ tks O;fDr fo|ky; dks izfr o"kZ 12 :i;k pUnk nsxsaA ftl o"kZ pUnk ugh nsxsa] ernku ds vf/kdkjh ugh gksxsaA

The Assistant Registrar proceeded to hold that since the meeting dated 25.12.2013 has been discarded and those 18 persons had, admittedly, not deposited Rs.12/-, as required by clause 4-Ka, they cannot be considered as part of the electoral college.

The aforesaid decision of the Assistant Registrar has been challenged by the petitioners by claiming that the Assistant Registrar has not properly interpreted the provisions of the bye-laws of the society relating to membership of the society. It has been submitted that clause 4-Ka has to be read in harmony with other clauses of clause 4 and if clause 4-Ka is read with clause 4-Kha, a person who in one go had made a deposit of Rs.300/- would be considered as life member and, as such, he cannot be denied voting right under any circumstances. It is the case of the petitioners that since there is no dispute that the petitioners had, at one go, deposited Rs.300/- they cannot be deprived of their voting right.

To understand the aforesaid submission, it would be apposite to reproduce the provisions of clause 4 of the bye-laws of the Society. The same is extracted herein below:-

4& fo|ky; lfefr ds 30 lnL;ksa ds fuEukafdr O;fDr tks lk/kkj.k lnL; dgyk;saxs ds izfr rhljs o"kZ 15 vxLr dks fo|ky; ds izkax.k esa ,d= gks dj pqusxsaA

4&¼d½ tks O;fDr fo|ky; dks izfr o"kZ 12 :i;k pUnk nsxsaA ftl o"kZ pUnk ugh nsxsa] ernku ds vf/kdkjh ugh gksxsaA

¼[k½ tks O;fDr fo|ky; dks dqN Hkwfe vFkok ,d gh ckj de ls de 300 :i;k iznku djsxsaA

¼x½ fo|ky; ds vkl ikl ds xzkeksa ds iz/kkuA ,sls xzkeksa dh lwph izfr pquko ds volj ij pquko ls ,d ekl iwoZ izcU/k lfefr rS;kj djds ?kksf"kr djsxhA

¼?k½ vU; Hkh O;fDr ftldh izcU/k lfefr ernku ds fy, vf/kd`r djsaaA ,sls O;fDr;ksa dh lwph izcU/k lfefr izfr pquko ds ,d ekl iwoZ rS;kj ds fy, ?kksf"kr djsxsaA

Sri Irshad Ali, who has appeared on behalf of the third respondent, has submitted that clause 4-Kha only confers membership but voting right of a member is subject to deposit of Rs.12/- as provided by clause 4-Ka and since, admittedly, Rs.12/- had not been deposited, the electoral college comprising members who had made such deposit is proper and exclusion of the petitioners who have admittedly not deposited is legally justified.

Sri G.K. Singh in reply submitted that a bare perusal of clause 4 of the bye-laws would reveal that general body of the society comprises of those persons who are specified in clause 4-Ka to clause 4-Gha and they have right to elect in a periodical meeting held every three years. He has submitted that if persons mentioned in clause 4-Kha have right to participate in the meeting to be held every three years, clause 4-Ka would have to be interpreted in such a manner that it does not take away that right and render the provisions of clause 4-Kha otiose. He has submitted that a person who has made one time deposit of Rs.300/- should therefore be conferred life time voting right irrespective of him depositing annual charge of Rs.12/-.

I have given thoughtful consideration to the submissions of the learned counsel for the parties.

Clause 4 of the bye-laws of the society enumerate various categories of person who could be considered ordinary member of the society. Clause 4-Ka provides that a person who deposits Rs.12/- per year would be one such person but if he does not make deposit in any particular year, he would have no right to vote in that year. Clause 4-Kha confers membership right to a person who has either contributed land or has made one time deposit of Rs.300/-.

The contention of the learned counsel for the petitioners that a person who falls under clause 4-Kha would be a member of the general body of the society is sound and acceptable by reading clause 4 as a whole. Clause 4-Ka deals with a different category of member and qualifies his voting right by making it subject to annual payment of Rs.12/-. Whether the condition of annual deposit of Rs.12/- to earn voting right applies even to a member who falls in the category enumerated in clause 4-Kha of the bye-laws, is an issue on which the parties are in disagreement.

If the bye-laws of a society permit different possible interpretations, to arrive at a definite conclusion, apart from various other parameters, at times, the past accepted practice of the members of the society assumes importance. On that score there is no substantial material on the record of the present case. This Court therefore refrains from making a conclusive determination of the issue. More so, because it is not necessary inasmuch as this court is not testing any previous election held by members of a general body, but is dealing with determination of an electoral college, under sub-section (2) of section 25 of the Act, for an election to be held.

Sub-section (2) of section 25 of the Act, provides 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 presided 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."

Sub-section (2) of section 25 of the Act confers power on the Registrar, in a given set of circumstances, to call for a meeting of the general body of the society for electing its office bearers. To call for a meeting of the general body, the power to determine the general body is built in the mechanism and is incidental to the power to call for a meeting of the general body of the society. The power to determine the general body is however subject to the rules of the society relating to meetings and elections with necessary modification.

Therefore while determining the general body of the society, the Registrar is required to take notice of the bye-laws of the society.

A perusal of clause 4 of the bye-laws of the society would reveal that a person who falls in the category of a person described under clause 4-kha would be a member. Even if the interpretation as suggested by learned counsel for the third respondent, that is to avail voting right a member has to pay Rs.12/-, is accepted, a person who is a member under clause 4-Kha cannot be deprived of his voting right if he is prepared to deposit Rs.12/-. Therefore, in the considered view of the court, in a worst case scenario for the petitioners, the Registrar ought to have included the petitioners in the list of members of the general body by declaring their voting right subject to deposit of Rs.12/- by a particular date. And, dependent upon such deposit, the final voter list ought to have been drawn. Such an exercise would be very much permissible as sub-section (2) of section 25 of the Act admits of necessary modification in the rules of the society relating to meetings and elections for holding a meeting and election conceived by the said provision.

In view of the aforesaid position, the Court asked the learned counsel for the petitioners whether the petitioners were agreeable to deposit Rs.12/- for earning voting right irrespective of their claim of life time membership under clause 4-kha of the bye-laws of the society.

Sri G.K. Singh, learned counsel for the petitioners, at once agreed to the suggestion and expressed willingness on the part of the petitioners to make a deposit of Rs.12/- in the account of the society for earning voting right.

Sri Irshad Ali, who appears for the third respondent, has some hesitation in permitting the petitioners to make such deposit.

Considering that confusion has arisen on account of a possible interpretation of the provisions of the bye-laws of the society, and keeping in mind that the petitioners are members of the general body though their voting right is under cloud on account of non-deposit of a paltry sum of Rs.12/-, this Court is of the considered view that before holding elections under sub-section (2) of section 25 of the Act, the petitioners had a right to be offered an opportunity to make such deposit.

In view of the above as also considering that the election is to be held under the provisions of sub-section (2) of Section 25 of the Act, this Court considers it appropriate to set aside the order dated 09.06.2017 passed by the Assistant Registrar, Firms, Societies and Chits, Azamgarh Region, Azamgarh, with a direction upon the Assistant Registrar to fix a date for opportunity to each of the petitioners to deposit Rs.12/- with the Assistant Registrar to exercise their voting right. Upon such deposit being made, the Assistant Registrar shall include their name in the voter list and redraw the voter list accordingly, and, thereafter, shall hold election.

To facilitate that the election is not delayed, it is hereby provided that the petitioners shall furnish certified copy of this order on the Assistant Registrar by or before 20th August, 2017, whereupon the Assistant Registrar shall fix a date, not later than ten days, for making deposit as provided herein above. If the petitioners make deposit of the requisite amount by the date so fixed their name shall be included in the voter list and the voter list shall be redrawn accordingly, and, thereafter election shall be held, and the exercise relating to election shall be completed within a period of next two months.

The petition stands allowed to the extent indicated above.

Order Date :- 1.8.2017

AKShukla/-