C/M Kshetriy Shri Gandhi Aashram ... vs Prescribed Authority/S.D.M. ...
2017 Latest Caselaw 7766 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						    A.F.R.
 
						    Reserved On: 8.11.2017
 
						    Delivered On: 7.12.2017
 

 

 
Case :- WRIT - C No. - 49540 of 2017
 

 
Petitioner :- C/M Kshetriy Shri Gandhi Aashram Maghar And Another
 
Respondent :- Prescribed Authority/S.D.M. Khalilabad And 11 Others
 
Counsel for Petitioner :- Narendra Kumar Chaturvedi,Akhilesh Chandra Mishra
 
Counsel for Respondent :- C.S.C.,Kundan Rai
 

 
Hon'ble Neeraj Tiwari,J.

Heard Sri Narendra Kumar Chaturvedi, learned counsel for the petitioners, Sri Kundan Rai, learned counsel for respondent No. 4 and learned Standing Counsel for respondent Nos. 1 and 2.

With the consent of learned counsel for the parties, without calling for counter affidavit petition is being disposed of at the admission stage itself.

By means of this writ petition, petitioner is challenging the order dated 09.10.2017 passed by respondent No. 2-Prescribed Authority.

Brief facts of the case are that there is a Society in the name of Kshetriya Shri Gandhi Ashram Maghar District-Sant Kabir Nagar and a dispute arose with regard to the election of Office Bearer of the Society. Assistant Registrar, Gorakhpur i.e. respondent No. 2 vide order dated 12.01.2016, declared Committee of Management of Society as time barred and further held that election shall take place under the provision of Section 25(2) of the Societies Registration Act, 1860 amongst the list of valid members of general body of the year 2014-15 excluding dead and retired members.

Against the order dated 12.01.2016, respondent Nos. 3 to 5 had filed Writ-C No. 11569 of 2016 and petitioners had also filed Writ-C No. 23507 of 2016 for directing the respondent No. 2 to register the list of office bearers elected in election dated 17.03.2016, which was held pursuant to the order dated 12.01.2016. Both the writ petitions were decided by the Court vide order dated 23.8.2016 and in first writ petition i.e. Writ-C No. 11569 of 2016, this Court held that election in terms of Section 25(2) of the Societies Registration Act, 1860 has been held on 17.03.2016, therefore, petition is dismissed as infructuous. However, the Court had made it clear that dismissal of writ petition shall not preclude the petitioner from assailing the elections before the competent authority as per law. So far as second petition is concerned, i.e. Writ-C No. 23507 of 2016, the same was also disposed of on the same date with a direction to Assistant Registrar, Firms Societies & Chits, Gorakhpur Region, Gorakhpur to pass appropriate order in terms of Section 4 of the Societies Registration Act in respect of the governing body of the petitioners elected pursuant to election dated 17.3.2016.

In compliance of the order of the Court dated 23.8.2016, respondent No. 2 vide order dated 28.9.2016 discarded the election dated 17.3.2016 and directed to hold fresh election amongst the members of general body of the years 2014-15 excluding dead and retired members. Vide same order, he has also appointed District Village Industry Officer, Sant Kabir Nagar as Election Officer. Pursuant to the order dated 28.9.2016, election of Committee of Management of the Society was held on 4.11.2016 and 5.11.2016, in which 7 members had participated.

Pursuant to election held on 4.11.2016 and 5.11.2016, respondent No.2-Assistant Registrar on 17.11.2016 under Section 4 of the Societies Registration Act, 1860 registered the list of Committee of Management of the Society for the years 2016-17. Against the said order, respondent Nos. 3 to 5 filed Writ-C No. 58365 of 2016 challenging the same, and the same was taken up of by the Court on 09.12.2017. In the writ petition, respondents/petitioner have raised preliminary objection that petitiioners had already filed representation under Section 25(1) of the Societies Registration Act, 1860 and this fact is not disclosed in the writ petition, therefore, petition is not maintainable. On the objections raised by learned counsel for the respondents/petitioner, the Court has sought instructions from learned counsel for the petitioner. On the receipt of instruction, this fact was found correct, therefore, ultimately vide order dated 2.1.2017, the writ petition was finally disposed of with a direction to Prescribed Authority/Sub-Divisional Magistrate, Sant Kabir Nagar to decide the reference strictly in accordance with law. Respondents/petitioners had also filed their objection dated 21.3.2017 against the reference and taken specific plea that reference is not maintainable because the same has been filed by only 2 members i.e. respondent Nos. 3 and 4 in the writ petition and under the provision of Section 25(2) of the Societies Registration Act, 1860, it has to be filed by 1/4th member i.e. 3 members in the present case and it has been filed by only 2 members which is less than 1/4th. After that, petitioners have filed one more writ petition bearing Writ-C No. 32637 of 2017 with a prayer that they have raised objection of maintainability of reference under Section 25(1) of the Societies Registration Act, 1860, therefore, the same has to be decided first and this Court was pleased to dispose of the writ petition vide order dated 27.7.2017 directing the Prescribed Authority to first decide the preliminay objection dated 21.3.2017 within two months after affording opportunity to the parties concerned. Thereafter, vide impugned order dated 9.10.2017, reference was decided discarding the election dated 4.11.2016 and 5.11.2016 directing the respondent No. 2 to first decide the membership, publish electoral role and then conduct election afresh.

While assailing the order dated 9.10.2017, learned counsel for the petitioners has submitted that the reference is not mainatainable because of the reason that there were total 13 members and as per direction of respondent No. 2, election was to be conducted amongst the members of the general body of the year 2014-15 excluding dead and retired members and as there are total 13 members, out of which 2 members retired earlier and 1 member namely Dharmendra Upadhyay retired recently before election dated 4.11.2016 and 5.11.2016, therefore, election has to be conducted among the 10 members. For filing and maintaining the reference under Section 25(1) of the Societies Registration Act, 1860, it has to be filed by 1/4th member of total members i.e. by minimum 3 members and in present case, it has been filed by only 2 valid members.

It is further stated that date of birth of Dharmendra Upadhyay is 15.10.1956 and he has attained the age of retirement on 15.10.2016, whereas election was held on 4.11.2016 and 5.11.2016, therefore, neither he can participate in election nor file reference. Learned counsel for the petitioner has further submitted that in the reference of the respondents, this fact is accepted that out of 13 members, 2 members are retired and presently 11 members are remaining. It is further stated that in the election held on 4.11.2016 and 5.11.2016, only 7 members have been participated because Vidya Shankar Pandey, Ramji Pandey and Dharmendra Upadhyay were retired and respondent Nos. 3 & 4 Virendra Prashad Pandey, Ram Chandra Chaudhary and one Rameshwar Nath Mishra had not participated in the election. It was also argued that vide order dated 28.9.2016, respondent No. 2 has finalised the electoral college and, therefore, Prescribed Authority has no authority to interfere the same under Section 25(1) of the Societies Registration Act, 1860.

It is further argued that respondent No. 1 has exceeded the jurisdiction observing that order of Assistant Registrar dated 28.9.2016 is not in accordance with law, in fact respondent No. 1 was required to only examine the maintainability of reference as to whether it has been filed by 1/4th members or not and accordingly it is mainatainable or not. It is the case of the petitioners that respondent No. 1 has wrongly came to the conclusion that the list has not been properly decided and his direction is also bad in law that respondent no. 2 should decide electoral college afresh.

It is lastly argued that the Court has fixed the para meter for recognising the election and according to that, it is required on the part of Authority to test the same on three para meters:-

1.whether election was held by Competent Authority or not?

2. whether election has been held amongst the valid members of general body of the Society or not?

3. whether election held according to the bye-laws of the Society or not?

In support thereof, learned counsel for the petitioner relied upon certain decisions of this Court in the matter of Committee of Management, Dwapar Vidyapeeth Parishad and another Vs. State of U.P. and others 2017(10) ADJ 429 (LB), Committee of Management Gramya Vikas Uchchatar Madhyamik Vidyalaya Samittee Khuthan District Jaunpur Vs. State of U.P. LAWS(ALL)-2012-8-178 and C/M Shri Nehru Educational Society & another Vs. State of U.P. & 2 others 2017 (9) ADJ 1 (D.B.).

Rebutting the submissions made by learned counsel for the petitioners, Sri Kundan Rai, learned counsel for the respondent No. 4 has stated that there are total 11 valid members including Dharmendra Upadhyay and it was filed by 3 members which is 1/4th of total members as provided under Section 25(1) of the Societies Registration Act, 1860, therefore, reference is very well maintainable. He has further submitted that Prescribed Authority has not decided the electoral college in its order dated 28.9.2016 and list appended along with order is having the name of 13 members including Dharmendra Upadhyay, therefore, all members are entitled to vote. He has further stated that he should issue a list of electoral college excluding the name of those persons who are retired or dead, unless the same is not done, all the members shall be treated valid member having the right of voting as well as filing reference. He has pressed for membership of Dharmendra Upadhyay and for that purpose he has relied upon the minutes of the meeting of Committee of Management dated 23.10.1989, which provides age of retirement as well as procedure required for retirement. Para 9.1 of minutes of the meeting provides that to be in the service of Ashram, maximum age would be 60 years and the same shall be applicable to all the employees( workers and labourers) and thereafter, he relied upon para 9.5 of minutes of the meeting dated 23.10.1989 which provides that a notice shall be given to the concerned employees before one month from the date of retirement to hand over the charge within time. For ready reference para 9.1 and 9.5 of minutes of the meeting is quoted below:-

"¼9½& fjVk;jesUV ds lEcU/k esa pjpk pyh] ekr` laLFkk dh ehfVax fnukad 5&6&86 ds fu.kZ; ds ifjis{; esa fjVk;jesUV ds lEcU/k esa fuEu fu.kZ; fy;k x;kA

1&vkJe lsok es cus jgus dh vf/kdre vk;q 60 o"kZ gksxh ;g fu;e mu lHkh deZpkjh ¼dk;ZdrkZ o Jfed½ o thoar lnL; Hkh 'kkfey gksus ij ykxw gksxk tks lsokjr gSA

5& fjVk;jesUV dh vof/k ls ,d ekg iwoZ lEcfU/kr deZpkjh dks uksfVl ns nh tk,xh vkSj mlds ftEes tks Hkh pktZ vkfn gksxk le; le; ls djk fn;k tk,xkA dk;ZdrkZ Hkh vius ftEes dk iwjk&iwjk pktZ le; ls ns ns vU;Fkk bldh ftEesokjh mldh gksxhA **

He has further argued that the provisions of para 9.5 of minutes of the meeting has not been complied with and Dharmendra Upadhyay has never been given any notice, therefore, he cannot be treated retired unless the notice is given to him. It is further argued that Election Officer has committed the same mistake again, which was committed earlier in first election dated 17.3.2016 as in that earlier election only 7 members participated and again in present election too, only 7 members have participated. It is lastly submitted that election held on 4.11.2016 and 5.11.2016 absolutely bad in law and the respondent No. 1-Prescribed Authority has rightly set aside the same with a direction to conduct the election afresh after publication of electoral college by respondent No. 2.

I have considered the argument raised by learned counsel for the parties and perused the record.

It has to be seen first that whether reference is maintainable or not. On this issue, Prescribed Authority has said in impugned order that electoral college was not finalised by respondent No. 2 as he has not excluded the retired or dead members and further Election Officer has no authority to treat Dharmendra Upadhyay as retired member unless his name is not excluded from the list published by respondent No. 2. He has given finding in his order that there is no dispute with regard to retirement of Virendra Prashad Pandey and Ram Chandra Chaudhary and only dispute is that whether Dharmendra Upadhyay was retired or not or whether he has right to file the reference under Section 25(1) of the Societies Registration Act, 1860 or not and his finding is that Assistant Registrar has given the list of 13 members without any reference of retirement of any of the members and he has only mentioned in para 5 of order dated 28.09.2016 that members referred at Serial No. 5 & 12 Vidya Shankar Pandey, Ramji Pandey are retired and therefore, election held by only 11 members is valid. In fact while deciding the issue, the Prescribed Authority has not applied his mind by going through the last paragraph of order dated 28.09.2016. For ready reference, the same is being quoted below:-

** vr% mDr izcU/kd lfefr ds fuokZpu ds fy, ftyk xzkeks|ksx vf/kdkjh] lardchjuxj dks fuokZpu vf/kdkjh ukfer fd;k tkrk gS rFkk muls vuqjks/k fd;k tkrk gS fd iathd`r fu;ekoyh dh /kkjk&9¼2½ ds /kkjk 20¼1½ ds vuqlkj lk/kkj.k lHkk lwph o"kZ 2014&15 ds oS/k lnL;ksa es ls ¼e`rd o lsokfuo`Rr lnL;ksa dks NksMdj½ thfor lnL; ds e/; izcU/kd lfefr o ea=h dk fuokZpu lEiUu djkdj fuokZfpr izcU/kd lfefr dh lwph bl dk;kZy; dks izsf"kr djus dk d"V djsA **

Vide order dated 28.09.2016, the Assistant Registrar has decided the electoral college clearly directing District Village Industries/Election Officer to conduct the election amongst the list of general body of the year 2014-15 excluding the name of dead and retired members. This clearly shows that list was finalised and only Election Officer was given authority to exclude the name of dead and retired members, therefore, there is no illegality in the order dated 28.09.2016 and members of general body were very well finalised by this order. Finding of Prescribed Authority in para 5 of the order dated 28.09.2016 is that the names of Vidya Shankar Pandey, Ramji Pandey is only referred as retired and name of Dharmendra Upadhyay was not mentioned, is also without application of mind. In fact on 28.09.2016, Dharmendra Upadhyay was not retired, therefore, his name was not mentioned as retired member, but when the election was held on 4.11.2016 and 5.11.2016, Dharmendra Upadhyay became retire, therefore, he cannot participate in election and file reference. Therefore, the finding returned by the Prescribed Authority is absolutely without application of mind.

Now coming to the second issue, as learned counsel for the respondents has heavily relied upon minuts of the meeting of Committee of Management dated 23.10.1989 and it has been stated that one month notice is required before retirement to hand over the charges etc.

On being confronted that is there any provision in the bye-laws or in the minutes of meeting that if the notice has not been given to concerned person, he shall not be treated retired? Learned counsel for the respondents could not point out any such provision either in bye-laws or in minutes.

I have carefully perused para 9.5 of minutes of the meeting dated 23.10.1989, in that though it is stated that notice of one month is required before the retirement, but the same is well defined in the said paragraph and it is only for the purpose to hand over the charge to avoid difficulty. By the perusal of para 9.1 and 9.5 of the minutes of the meeting dated 23.10.1989, this fact is very much clear and no such interpretation can be drawn that if notice is not given, the concerned employee shall not be treated as retired.

So far as date of birth and age of Dharmendra Upadhyay are concerned, facts are undisputed, therefore, when the election was held on 4.11.2016 and 5.11.2016, Dharmendra Upadhyay was retired on 15.10.2016 and he cannot participate in election as voter. Against the said election, reference was filed on 15.11.2016 and if a person cannot participate in election dated 4.11.2016 and 5.11.2016, he can also not file reference on 15.11.2016. Reference dated 15.11.2016 was made by three persons namely Virendra Prashad Pandey, Ram Chandra Chaudhary and Dharmendra Upadhyay accepting the membership of 11 persons which is not correct in the light of discussions made hereinabove. In fact there are only 10 valid members on the date of election and refrence was filed by only two valid members, which is less than 1/4th of the total members.

Learned counsel for the petitioners has submitted that in election dated 4.11.2016 and 5.11.2016 only 7 members participated for the reason that Vidya Shankar Pandey, Ramji Pandey and Dharmendra Upadhyay retired and respondent Nos. 3, 4 and one Rameshwar Mishra had not participated. This fact was also not disputed by learned counsel for the respondents except the retirement of Dharmendra Upadhyay, which is not acceptable for the reasons given in earlier paragraph. Therefore, this Court is of the view that Assistant Registrar has decided the electoral college vide order dated 28.09.2016 with a direction to Election Officer to exclude the name of only retired and dead persons. He has rightly proceeded to conduct the election amongst the 10 members. Undisputedly, these members have not participated in elections dated 4.11.2016 and 5.11.2016, therefore, there is no illegality in conducting election amongst the 7 members.

As per provision of Section 25(1) of the Societies Registration Act, 1860 for making valid reference, it has to be filed by 1/4th of the total members. For ready reference, Section 25(1) of the Societies Registration Act, 1860 is quoted hereinbelow:-

"25(1). The prescribed authority may, on a reference made to it by the Registrar or by at least one-fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office-bearer of such society, and may pass such orders in respect thereof as it deems fit.

..............."

It is very much clear that out of 10 members, it has been filed by only 2 valid members which is less than 1/4th therefore, the reference is not maintainable under the provision of Section 25(1) of the Societies Registration Act, 1860.

I have also seen the judgment relied upon by learned counsel for the petitioners in Committee of Management, Dwapar Vidyapeeth Parishad and another Vs. State of U.P. and others. He has placed reliance on Para Nos. 17 and 18 of the judgment which is quoted below:-

"17. A careful reading of Section 25(1) of the Societies Registration Act reveals that the Prescribed Authority envisaged therein assumes jurisdiction to decide any doubt or dispute in respect of the election or continuance in office of an office-bearer of a Society only in two situations, (1) on a reference to be made to it by the Registrar and (2) on a reference to be made to the Prescribed Authority by at least one-fourth members of the Society. In absence of any of the aforesaid two modes of references, the Prescribed Authority or Sub Divisional Officer even in terms of the Notification dated 28.10.1975, will have no jurisdiction to entertain any application from any one in relation to any doubt or dispute as referred to in Section 25(1) of the Societies Registration Act. The very assumption of the jurisdiction by the Prescribed Authority/Sub Divisional Officer under Section 25(1) of the Societies Registration Act is dependent on either of the two conditions or situations enumerated therein i.e. to say, the Prescribed Authority will assume jurisdiction to proceed under Section 25(1) of the Societies Registration Act only in case of availability of reference before him from the Registrar or in a case of reference to be made by one-fourth members of the Society. In absence of fulfillment of either of these two conditions, the Prescribed Authority/Sub Divisional Officer cannot assume jurisdiction on his own on a mere application made by any member of a Society provided such application/reference is not made by one-fourth members of the Society.

18. The Court, while considering the scheme of Section 25(1) of the Societies Registration Act, is of the opinion that no jurisdiction to entertain any grievance under Section 25(1) of the Societies Registration Act can be conferred on the Prescribed Authority/Sub Divisional Officer even by any judicial order which may be passed by a court, except as per the prescriptions available in Section 25(1) of the Societies Registration Act. In other words, the jurisdiction, which is otherwise not vested in an authority under the Statute under which it is created, cannot be conferred even by the judicial order or even by the consent of the parties."

The Court has held that Prescribed Authority can entertain the reference only in two situations, first on a reference to be made to it by the Registrar and second on a reference to be made at least 1/4th members of the Society and Court has further held that jurisdiction cannot be conferred even by the judicial order or by the consent of the parties.

In another case of Jagdish Prasad Sharma Vs. State of U.P. & 2 others 2017(9) ADJ 1 (D.B.), Division Bench of this Court has laid down the parameter for examining the validity of election of Committee of Management of recognised Intermediate College and the same is being quoted hereinbelow:-

"For examining as to whether the election of the Committee of Management of a recognized Intermediate College have been held in accordance with the provision applicable or not, following issues besides other need to be considered by the authority concerned,

(a) Elections have been held by the Outgoing Committee of Management or by authority duly authorized for the purpose under the Scheme of administration.

(b) Elections have been held form amongst valid Members of the general body after determination of the electoral college in accordance with the scheme of administration.

(c) The elections have been conducted strictly in accordance with the procedure prescribed under the Scheme of administration."

Though this parameter was laid down in the matter of Committee of Management of Intermediate College but the ratio of law shall also be applicable in the present case.

First point, whether election was held by a duly authorised person or not, there is no dispute on this point as it has been held by an Election Officer duly appointed by respondent No. 2. So far as the second point with regard to the fact that the election has been held by valid members in accordance with law is concerned, the Court is of the view that Presecribed Authority has wrongly came to the conclusion that it has not been held amongst the valid members and election has been held very well amongst the valid members as decided by respondent No. 2 vide order dated 28.09.2016 and thirdly, whether election was conducted strictly in accordance with prescribed procedure or not and there is no dispute on this point between the parties. Therefore, in the light of both the judgments referred hereinabove, this fact is very much clear that respondent No. 1 Prescribed Authority has wrongly came to the conclusion that list has not been finalised by respondent No. 2 while granting registration of officer bearers of Committee of Management pursuant to the election dated 4.11.2016 and 5.11.2016. All these para meters are very well followed, therefore, it has rightly been approved by respondent No. 2 on 17.11.2016.

Prescribed Authority is also not correct on this point that illegalities committed in earlier election dated 17.3.2016 was repeated in fresh election again. In fact earlier election dated 17.3.2016, reasons were different for participation of only 7 members and in present election, there is no illegality in participation of 7 members as out of list of 13 members, undisputedly 2 members are retired and 3 members have not participated in the election. So far as retirement of third member is concerned, Court is of the view that Dharmendra Upadhyay was not eligible to participate in the election as he had attained the age of retirement, therefore, this finding is also not correct that the election held on the strength of 7 members is bad.

Electoral college has not been accepted by the Prescribed Authority on the ground of non finalisation of electoral college and non-issuance of list by Assistant Registrar. It is stated in the impugned order that Assistant Registrar-respondent No. 2 has without exercising his power provided a disputed list of the year 2014-15 which is absolutely bad. In fact, this finding is absolutely incorrect and Assistant Registrar has not provided any disputed list but provided an undisputed list along with order dated 28.9.2016. In fact, list of the year 2014-15 is not disputed by either of the parties except the retirement of members mentioned therein and undisputedly the Election Officer was only given power to exclude the name of dead and retired members, and list was very well finalized by respondent No.2.

In the light of facts mentioned and discussion made hereinabove, this fact is very much clear that there are only 10 valid members eligible to participate in the election, therefore, this finding of Prescribed Authority is incorrect.

In the light of facts mentioned and law discussed here-in-above, the Court is of the view that there is no illegality in finalisation of list by the respondent No. 2 and according to valid list, election dated 4.11.2016 and 5.11.2016 was also conducted in accordance with law by Election Officer (Government Officer namely District Village Industry Officer). While deciding the preliminary objection, the Prescribed Authority has wrongly came to the conclusion that Dharmendra Upadhyay is a valid member and declared that reference is maintainable whereas Dharmendra Upadhyay cannot be treated as valid member for the reasons recorded above. Reference dated 15.11.2016 is not maintainable under Section 25(1) of the Societies Registration Act, 1860. On both the issues that is maintainability of reference as well as on merits of election daed 4.11.2016 and 5.11.2016, order of Prescribed Authority dated 09.10.2017 is bad and liable to be set aside.

Therefore, order dated 09.10.2017 passed by respondent No. 1 Prescribed Authority/Sub Divisional Magistrate Khalilabad, District Sant Kabir Nagar is quashed.

It is made clear that if any reference is filed in accordance with Section 25(1) of the Societies Registration Act, 1860, it is open for respondent No. 1 to decide the same in accordance with law.

The writ petition succeeds and is allowed.

Order Date :-07.12.2017

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