Vinod Kumar Varshney vs State Of U.P. And 5 Others
2017 Latest Caselaw 1476 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR
 
Reserved
 

 
Civil Misc. Writ Petition No.54357 of 2016
 

 
Vinod Kumar Varshney			 ........	      Petitioner
 

 
Vs.
 

 
State of U.P. and others	        	    	........	       Respondents
 

 
With
 

 
Civil Misc. Writ Petition No.34408 of 2016
 

 
C/M Barauli Vidyalaya Samiti & another	 ........	      Petitioners
 

 
Vs.
 

 
State of U.P. and others	        	    	........	       Respondents
 

 

 
******************
 

 
Hon'ble Tarun Agarwala,J.

Hon'ble Rajul Bhargava, J.

(Per: Tarun Agarwala, J.)

(Delivered on 31st May, 2017)

The petitioner in Writ Petition No.54357 of 2016, Vinod Kumar Varshney Vs. State of U.P. and others contends that he is a member of the general body of the society and has the right and locus to question the action of the Committee of Management of the society.

The brief facts in this writ petition is, that there is a society known as Barah Saini College Society, Aligarh, which held its last election on 20th October, 2013. The term of the Committee of Management was three years, which expired on 20th October, 2016. Prior to the expiry of the period, a notice dated 4th October, 2016 was issued by the Secretary to convene a meeting on 20th October, 2016 on which date, the members of the general body resolved to hold a fresh election, which was fixed for 25th December, 2016. Based on this resolution, an election notice dated 30th October, 2016 was published in the Dainik Jagran newspaper intimating that the election would be held on 25th December, 2016. This election notice has been questioned in the writ petition on the ground that once the term of the Committee of Management comes to an end, the said Committee of Management has no right to convene a meeting or hold an election. The petitioner has also prayed for a writ of mandamus commanding the Deputy Registrar, Firms, Society and Chits to hold the election in exercise of his authority under Section 25(2) of the Societies Registration Act, 1860 (hereinafter referred to as the Act).

The petitioner in Writ Petition No.34408 of 2016, C/M Barauli Vidyalaya Samiti & another Vs. State of U.P. and others contends that the last election of Barauli Vidyalaya Samiti, Aligarh was held on 28th March, 2010. The elections were not held even after the expiry of the term and, accordingly, a complaint was filed by certain members before the Assistant Registrar, Firms, Society and Chits praying that since no election has been held, the Assistant Registrar should take suitable action under Section 25(2) of the Act and hold the election. Based on this complaint, a notice was issued to the Committee of Management to file their objections, if any. It is alleged that a detailed objection was filed intimating that an election was held on 4th April, 2015. The Assistant Registrar, by the impugned order held that the Committee of Management had no right to hold the election after the expiry of its term. The Committee of Management, being aggrieved, has filed the writ petition.

The learned Single Judge while hearing the matter found that there were conflicting decision on the issue as to whether the Committee of Management could convene a meeting and hold an election after the expiry of its term. The learned Single Judge by its order dated 29th November, 2016 held that the matter requires consideration by a larger Bench on the following questions, namely:-

"(i) Whether, the office bearers of the society registered under the Act of 1860 ceases to have lawful authority to hold elections to constitute its managing committee, immediately upon expiry of its term specified in the Rules of the Society, or the right to hold election subsists till a meeting of election is called by Registrar under sub section (2) of Section 25 of the Act, and no other meeting can be called for the purpose thereafter by virtue of sub section (3)?

(ii) Whether the expression "May" used by the legislature in sub Section 2 of Section 25 is peremptory in nature, or it admits of any discretion with the Registrar in exercise of such power, and the limits thereof?

(iii) Whether the judgment in Committee of Management Siksha Prasar Samiti, Dharai Mafi, Sultanpur and others (supra) as well as Gyanodaya Association Sansaripur and another (supra) correctly lay down the law on the subject?"

Based on the said order, the Chief Justice has nominated this Bench to answer the aforesaid questions.

We have heard Sri Jahangir Jamshed Munir, Advocate, Sri Govind Kumar Singh, the learned Senior Advocate assisted by Sri Arvind Kumar Singh, the learned counsels for the petitioner and Sri Sudhir Dixit, Sri Anoop Trivedi and Sri J.N. Maurya, the learned Additional Chief Standing Counsel for the respondents.

Before we proceed, it would be appropriate to have a glance at Section 25(2) and (3) of the Act, which is extracted hereunder:-

"25. Disputes regarding election of office-bearers. (2) 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-bearer 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 modifications.

(3) Where a meeting is called by the Registrar under sub-section (2), no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office-bearer of the society."

Section 25(2) of the Act indicates three situations in which the Registrar can call a meeting of the general body of the society for electing an office bearer or office bearers, namely:-

(i) Where an order under Section 25(1) is passed setting aside an election.

(ii) Where an office bearer is held that he is no longer entitled to continue in office.

(iii) Where the Registrar is satisfied that any election of an office bearer of a society has not been held within the time specified in the rules of that society.

If any of these three situations exists, it would be open to the Registrar to call a meeting of the general body for electing such office bearer or office bearers and such meeting would be presided by him or by any Officer authorised by him.

In the instant case, we are considering the third situation, namely, that the election of the office bearer of the society have not been held within the time specified in the rules of the society.

In this regard, the learned counsel for the parties placed divergent views in the matter. It was urged by one party that if the Committee of Management does not convene a meeting and hold an election before the expiry of the term, in that event, the Committee of Management becomes functus officio and was not empowered to hold an election after the expiry of its term. On the other hand, it was urged that if the Rules of the society does not place an embargo or the Rules of the society does not indicate that the Committee of Management and its office bearers would become functus officio after the expiry of its term, in that event, the Committee of Management would be permitted to convene a meeting and hold an election, which would be permissible unless a meeting is called by the Registrar under Section 25(2) of the Act whereupon, no other meeting could be called by the Committee of Management for the purpose of holding an election in view of Section 25(3) of the Act.

In Committee of Management, Shiksha Prasar Samiti Dharai Mafi, District Sultanpur and others Vs. State of U.P. and others, 2012 (2) ADJ 263 (LB) a learned Single Judge held that the Committee of Management has no right to hold an election after the expiry of its term. The learned Single Judge held as under:-

"Thus, the office bearers who were elected have no right to usurp the office and run the society for any reason whatsoever after completion of their term. They have no right to hold the office for such a long period, i.e. for more than the period for which they were elected. In case they are permitted to do so, it shall amount to give set back to the democratic process in the society. In such situations, it shall be the duty of the Registrar to take initiative under Section 25(2) of the Societies Registration Act. Further, as the elections were not held within the specified time as such after expiry of the term the out going committee cannot hold the election and it is only the Registrar or the Deputy Registrar to hold the election. Filling of vacancy due to death or otherwise would not mean that elections of the entire committee of management took place. It may be noted that from the perusal of record it clearly comes out that last election took place on 15.6.2005. Further the two members of the committee of management, namely, Dr. Ram Sagar Tripathi and Som Prakash Pathak died on 17.1.2007 and 12.6.2009 respectively. Therefore, the vacancies were filled by the resolutions dated 21.1.2007 and 12.7.2009 inducting Ram Sunder Kori as member and Sri Sharad Pathak as Dy. Manager of the Committee of Management. It is further to be noted that from the proceedings filed with regard to election of the office bearers of the committee of management, it is evident that the office bearers were elected for a period of two years only. Therefore, there was no occasion and law also does not permit the outgoing committee of management to hold the election. Similarly, the rival group cannot hold the election and it is only the Deputy Registrar, who is vested with the power to convene the general body and hold the elections as provided under Section 25(2) of the Act. Therefore, both the Committee of Management cannot be said to be validly elected body."

In Gyanodaya Association Sansaripur and another Vs. State of U.P. and others, 2015 (8) ADJ 155 (LB) a learned Single Judge held that if the elections are not held before the expiry of the term, in that eventuality, the elections will have to be held as per the directions of the Deputy Registrar under Section 25(2) of the Act. The learned Single Judge held as under:-

"The legal position on the issue involved is if next elections are not held before expiry of term of the outgoing Committee-of-Management, elections will have to be held as per direction of the Deputy Registrar under Section 25(2) and it is not open for any body else to hold such election. If they are held other than under Section 25(2), they cannot be taken into consideration for making a reference under Section 25(1) as such a case would not be referable under the said provision. Disputes relating to elections held before expiry of term of outgoing Committee-of-Management alone are referable under Section 25(1)."

In Committee of Management, Adarsh Shiksha Niketan, Renukoot Vs. The Assistant Registrar, Firm, Societies and Chits, Varanasi and others, 2000 (2) UPLBEC 1600 a Division Bench of this Court held that the Assistant Registrar was justified in setting aside the election of the society on the ground that the election was not held within the specified period prescribed under the Rules. The Division Bench further held that the Assistant Registrar was justified in issuing a direction to hold a fresh election.

In Committee of Management Vidyawati Higher Secondary School, Shahpur, Sarain, Azamgarh and another Vs. Assistant Registrar, Firms, Societies and Chits, Azamgarh Region, Azamgarh and others, 2005 (3) UPLBEC 2410 a learned Single Judge held that a bare reading of Section 25(2) and (3) of the Act clearly establishes that the right to convene a meeting for the purpose of holding an election by the Committee of Management after the expiry of its term is lost only when the Registrar passes an order under Section 25(2) of the Act, meaning thereby, that so long as an order is not passed by the Registrar under Section 25(2) of the Act, the power to convene a meeting of the general body can be done by the outgoing Committee of Management. The learned Single Judge held:-

"A bare reading of the aforesaid section would establish that the right to convene a meeting for the purposes of holding elections of the office-bearers of the outgoing Committee of Management and after expiry of the term of the office-bearers the society is lost only when the Registrar passes order under Section 25(2) of the Act for convening a meeting of the general body of the society for the purposes of holding fresh election of the Committee of Management. It is at that stage only that outgoing office bearers are debarred from convening any meeting for the said purpose.

In the facts of the present case it is admitted position that no such order was passed by the Registrar under Section 25(2). Thus the power to convene a meeting of General Body for holding fresh elections was not lost and there is no bar either in the byelaws of the society or under the Societies Registration Act in holding of fresh elections by the outgoing office-bearers. In such circumstances the elections which have been held on 2.3.2003, even after expiry of the term of the office-bearers of the society, cannot be said to be illegal or invalid in any manner and the objections raised in that regard cannot be legally sustained."

In Prabandh Karini Samitee and another Vs. State of U.P. and others, 2007 (8) ADJ 147 a learned Single Judge held:-

"A bare perusal of the provision quoted above would go to show that 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 the 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 modifications. Sub-section (3) of Section 25 further provides that where a meeting is called by the Registrar under sub-section (2) no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office bearer of the society. On conjoint reading of sub-section (2) and (3) of Section 25 it clear that once meeting is called under sub-Section (2) of Section 25 for electing office bearers of the society by the Registrar after satisfying himself that election of the office-bearers of a society has not been held within the time specified in the rules of that society then, no other meeting of the general body of such society for electing such office-bearer is permissible. Merely because tenure of the Managing Committee has come to end same would not be ipso facto have the effect of taking away the right of outgoing Managing Committee of the society to hold the elections."

Having given our thoughtful consideration in the matter and upon considering the language of Section 25(2) and 25(3) of the Act and upon a conjoint reading of Section 25(2) and 25(3) of the Act, it is apparently clear that the Registrar has the power and jurisdiction to call a meeting for the purpose of holding an election if he is satisfied that the election has not been held within the time specified in the rules of the society. However, Section 25(3) of the Act recognises that a meeting for the purpose of holding an election can be convened by any other authority or by any other person claiming to be an office bearer of the society, meaning thereby that if the term of the Committee of Management expires, the Committee of Management can still convene a meeting and hold an election unless an order is passed by the Registrar under Section 25(2) of the Act for holding an election.

We are of the view that upon a conjoint reading of Section 25(2) and Section 25(3) of the Act, the power of the Committee of Management to convene a meeting for the purpose of holding an election gets eclipsed only when the Registrar has assumed jurisdiction and has taken steps to convene a meeting under Section 25(2) of the Act. We make it further clear that so long as an order for convening a meeting and for holding an election is not passed by the Registrar under Section 25(2) of the Act, the power to convene a meeting for the purpose of holding an election continues with the Committee of Management, even after the expiry of its terms unless it is specifically prohibited in the Rules of that society. In this regard, our view is fortified by a decision of a Full Bench of this Court in Committee of Management, Dadar Ashram Trust Society and others Vs. Mahatma Gandhi Kashi Vidyapeeth, Varanasi and others, 2017 (1) ADJ 1, wherein the Full Bench held:-

"As would be evident from a reading of sub-section (3), the power and jurisdiction of any other authority or person to call a meeting for the purpose of elections stands eclipsed only in a situation where a meeting has already been called by the Registrar under sub-section (2). In fact sub-section (3) recognises that a meeting for the purposes of elections may in fact be convened by any other authority or by any other person. The power of that other authority or person to convene such a meeting stands taken away only if the Registrar has assumed jurisdiction and steps under sub-section (2) to convene a meeting."

In the light of the aforesaid, the answer to question no.1 is, that the Committee of Management even after the expiry of its term can convene a meeting for the purpose of holding an election unless it is specifically barred under the Rules of its society. Such right continues till such time the Registrar passes an order under Section 25(2) of the Act after which no further meeting could be convened thereafter by the Committee of Management in view of sub-Section (3) of Section 25 of the Act.

In so far as the second question is concerned, we are of the opinion that the said question has been answered squarely by the Full Bench of this Court in Committee of Management, Dadar Ashram Trust Society (supra). The relevant portion is extracted hereunder:-

"In our considered view, the conclusion reached by the Division Bench is based upon the assumption that Section 25(2) is firstly of a mandatory character, and secondly that the same confers exclusive jurisdiction and authority on the Registrar alone. Here it becomes pertinent to note that the powers exercisable by the Registrar in terms of sub-section (2) by the very nature of the power conferred is apparently directory in nature. The power conferred on the Registrar becomes exercisable upon him being satisfied that an election of office bearers of a society has not been held within the time specified under its rules or bye laws. The provision then prescribes that upon such satisfaction being arrived at, the Registrar "may" call a meeting of the general body of such society for election of its office bearers. It becomes further relevant to note that all further actions that the Registrar takes from this point onwards has to be in accordance with the provisions of the rules of the society relating to meetings and elections. The very language of the provisions indicates that the power vested in the Registrar under sub-section (2) is directory and permissive. Sub-section (2) in our considered opinion, is neither couched in mandatory terms nor is it liable to be interpreted in a manner where we may be compelled to hold that the Registrar must necessarily convene a meeting of the general body of the society immediately upon the term of the erstwhile committee having come to an end or fresh elections having not been held. This we so hold in light of the fact that there may be varied circumstances in which elections of office bearers of a society may not come to be held within the time specified under its rules. It cannot be said that in all situations where elections of office bearers of the society have not been held, the same is attributable to a deliberate default on the part of the existing office bearers. A stark example is the present case itself where on account of the appointment of the Authorised Controller as far back as in 1988, the elected office bearers stood removed and were unable to hold any elections whatsoever. These and other similar situations may result in elections of office bearers not being held within the time specified under the rules of the society. It is in this sense that we have found the powers of the Registrar to be directory and permissive. On a thoughtful consideration of the nature of the power conferred, the circumstances in which it is liable to be exercised, it is apparent that sub section (2) confers a discretionary power upon the Registrar to convene a meeting of the general body of the society. Our conclusion on this aspect is further buttressed by the use of the word "may" in sub-section (2) insofar as the power of the Registrar to convene a meeting of the general body is concerned."

In view of the aforesaid, the answer to question no.2 is that the expression "may" is directory in nature and is not mandatory.

In the light of the aforesaid, our answer to question no.3 is, that the judgment in Committee of Management, Shiksha Prasar Samiti Dharai Mafi, District Sultanpur and others Vs. State of U.P. and others, 2012 (2) ADJ 263 (LB) and in Gyanodaya Association Sansaripur and another Vs. State of U.P. and others, 2015 (8) ADJ 155 (LB) does not lay down the correct law.

We hold that the decision of the learned Single Judge in Committee of Management, Vidyawati Higher Secondary School, Shahpur, Sarain, Azamgarh (supra) lays down the correct law and we approve the same. We further approve the decision of the learned Single Judge also in Prabandh Karini Samitee and another Vs. State of U.P. and others, 2007 (8) ADJ 147. We are also of the opinion that the decision of the Division Bench in Committee of Management, Adarsh Shiksha Niketan, Renukoot Vs. The Assistant Registrar, Firm, Societies and Chits, Varanasi and others, 2000 (2) UPLBEC 1600 stands impliedly overruled in view of the decision of the Full Bench in Committee of Management, Dadar Ashram Trust Society (supra).

The questions referred by the learned Single Judge are answered accordingly.

Registry is directed to place the papers of the case before the learned Single Judge for further orders.

 
Date: 31.5.2017
 
Bhaskar
 
                     (Rajul Bhargava, J.)      (Tarun Agarwala, J.)