C/M Dwapar Vidyapeeth Parishad ... vs State Of U.P. Thru. Secy. ...
2017 Latest Caselaw 4054 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 5
 
Case :- MISC. SINGLE No. - 21000 of 2017
 
Petitioner :- C/M Dwapar Vidyapeeth Parishad Thru. Surendra K Singh & Anr.
 
Respondent :- State Of U.P. Thru. Secy. Institutional Finance & Ors.
 
Counsel for Petitioner :- Virendra Mishra
 
Counsel for Respondent :- C.S.C.,Sanjay Kumar Singh
 
Hon'ble Devendra Kumar Upadhyaya,J.

Heard Sri Virendra Mishra, learned counsel for the petitioners, learned Standing Counsel representing the State-respondents and Sri M.B. Singh,learned counsel representing the respondent Nos. 6 and 7.

Under challenge in this writ petition is an order dated 17.08.2017, passed by the Prescribed Authority/Sub Divisional Officer, Sadar, Faizabad rejecting the claim of the petitioners in respect of election of the Executive Body of a Society, namely, Dwapar Vidyapeeth Parishad, Village Barayipara, Post Office Mayabazar, Pargana Amsin, Tehsil Sadar, District Faizabad and also rejecting the claim of the petitioners in respect of the electoral college/list of the members of the General Body of the Society determined by the Deputy Registrar, Firms, Societies and Chits, Faizabad Division, Faizabad by means of order dated 28.03.2014.

Dwapar Vidyapeeth Parishad, Village Barayipara, Post Office Mayabazar, Pargana Amsin, Tehsil Sadar, District Faizabad is a Society registered under the Societies Registration Act and it runs and manages two institutions, one of which is a Degree College and other is an Intermediate College.

The Deputy Registrar by means of order dated 28.03.2014 (Annexure No.14 to the writ petition) determined the final list of members of the General Body of the Society which according to the said order comprised of 13 members. On the basis of said determination of the electoral college/members of the General Body of the Society, the election schedule was also declared by means of order dated 28.03.2014 and in terms of the said election schedule the elections have also been held.

The petitioners, however, filed a Writ Petition No. 2263(MS) of 2014 challenging the validity of the order dated 28.03.2014 whereby the list of members of the General Body of the Society was finalized. This Court in the said writ petition passed an order on 15.04.2014 requiring the learned State Counsel to produce the record of the Society for its verification for the purpose of ascertaining as to whether the determination of the members of General Body of the Society has been done by the Deputy Registrar, vide his order dated 28.03.2014, correctly or not. However, the said writ petition was finally disposed of by means of order dated 07.07.2014 by observing that since the election of the Executive Body of the Society had been held, appropriate remedy available to the petitioners would be to approach the Prescribed Authority under Section 25 of the Societies Registration Act. The court while passing the said order dated 07.07.2014 further observed that apprehension of the petitioners that validity of the membership of the General Body of the Society may not be considered by the Prescribed Authority was unfounded as Prescribed Authority has all the powers to examine the validity of the membership. Accordingly, petitioners were given liberty to approach the Prescribed Authority under Section 25 of the Societies Registration Act and the Prescribed Authority was directed to examine all the contentions including challenge to validity of the election and voter's list. The order dated 07.07.2014 is being reproduced herein below:-

"Case :- MISC. SINGLE No. - 2263 of 2014

Petitioner :- C/M Dwapar Vidyapeeth Parishad Throu Its Secy./Mantri & Anr.

Respondent :- State Of U.P.Throu Its Secy.Institutional Finance And Ors.

Counsel for Petitioner :- Manish Kumar,Ajay Pratap Singh,M B Singh

Counsel for Respondent :- C.S.C.,Sanjay Kumar Singh,Vishnu Dev Shukla

Hon'ble Sudhir Kumar Saxena,J.

Heard learned counsel for the parties and perused the record.

By means of this writ petition, petitioner has challenged the order dated 28.03.2014 passed by the Deputy Registrar Firms, Societies and Chits, Faizabad Division, Faizabad issuing the final voter list and proclamation of election programme.

It is submitted by Sri M.V. Singh, learned counsel for the petitioner that election disputed by the petitioner has been held.

Since election has been held, appropriate remedy is available to the petitioner to approach Prescribed Authority under Section 25 of the Societies Registration Act. Apprehension that validity of the membership will not be considered by the prescribed authority is unfounded as prescribed Authority has all the powers to examine the validity of the members.

Petitioners are given liberty to approach prescribed authority under Section 25 of the Act, who will examine all the contentions including challenge to validity of the election and voter list.

Prescribed Authority will take a decision at the earliest.

Writ petition is disposed of, as above.

Order Date:-7.7.2014"

It appears that pursuant to the said order dated 07.07.2014, passed by this Court in Writ Petition No. 2263(MS) of 2014, the petitioners made an application before the Prescribed Authority/Sub Divisional Officer, Sadar, Faizabad on 01.10.2014. The said application moved by the petitioners purportedly under Section 25(1) of the Societies Registration Act is on record as Annexure No.17 to the writ petition, wherein there are two applicants, namely, (1) Committee of Management, Dwapar Vidyapeeth Parishad, Village Barayipara, Post Office Mayabazar, District Faizabad through its Mantri/Sachiv, Sri Surendra Kumar Singh and (2) Surendra Kumar Singh, S/o Late Vishwanath Singh, R/o Village Barayipara, Post Mayabazar, District Faizabad. In the said application, the prayer made was that the order dated 28.03.2014, passed by the Deputy Registrar, Firms, Societies and Chits whereby the list of members of the Society was finalized, be set aside.

Respondent No.7 filed an objection to the said application moved by the petitioners before the Prescribed Authority stating therein that the application moved by the petitioners is not maintainable for the reason that it is not in accordance with the provisions contained in Section 25(1) of the Societies Registration Act which clearly prescribes that the Prescribed Authority shall hear and decide any dispute or doubt in respect of the election or continuance in office of an office bearers of a Society and will pass such orders in respect thereof as it deems fit only in case there is a reference to the said effect made to the Prescribed Authority by the Registrar or by at least one-fourth members of the Society and further that since in the instant case there is neither any reference made by the Registrar nor the application has been moved by one-fourth members of the Society, as such the application itself would not be maintainable. It was categorically stated in the said objection that the application under Section 25(1) of the Societies Registration Act has been preferred only by an individual-Surendra Kumar Singh and on this count alone the Prescribed Authority may not proceed any further with the matter.

The Prescribed Authority while passing the impugned order on 17.08.2017 has held that the application moved by the petitioners was not maintainable for the reason that it was not in terms of the prescriptions available in Section 25(1) of the Societies Registration Act. The Prescribed Authority has recited in the impugned order that cognizance of any matter under Section 25(1) of the Societies Registration Act can be taken by the Prescribed Authority either on a reference which can be made to it by the Registrar or by at least one-fourth members of the Society and not otherwise. The impugned order further recites that no resolution by one-fourth members of the Society has been presented challenging the election of the Executive Body of the Society or the order dated 28.03.2014 passed by the Deputy Registrar, as such the application moved by the petitioners was not maintainable.

It is also relevant to observe that it is not that the Prescribed Authority has not noticed the order dated 07.07.2014, passed by this Court in Writ Petition No. 2263(MS) of 2014; rather reference of the said order passed by this Court has been made and submission of the petitioners that the application under Section 25(1) of the Societies Registration Act would be maintainable in the light of the direction issued by this Court in its order dated 07.07.2014, has also been taken into consideration.

It has been submitted by learned counsel for the petitioners that in view of the direction of this Court contained in the order dated 07.07.2014, the Prescribed Authority was competent to have proceeded with the application moved by the petitioners without insisting upon the availability of reference either by the Registrar or by one-fourth members of the Society. He has also stated that the petitioners had not challenged the election of the Executive Body of the Society which was held pursuant to the order of the Deputy Registrar dated 28.03.2014; rather the petitioners had challenged only the list of the members of the General Body of the Society finalized by the Deputy Registrar vide his order dated 28.03.2014. He has further stated that the matter ought to have been decided by the Prescribed Authority at least in so far as the grievance of the petitioners in respect of the list of the members of the General Body of the Society is concerned for the reason that there was no challenge before him in respect of the election of the Executive Body of the Society, without insisting upon there being a reference either by the Registrar or by one-fourth members of the Society. He has also drawn attention of this Court to the order dated 07.07.2014, passed by this Court in Writ Petition No. 2263(MS) of 2014 and has submitted that the said order was passed in the presence of Sri M.B. Singh, learned counsel representing the private respondents and at that time no such plea was raised by the private respondents as regards non-maintainability of the proceedings under Section 25(1) of the Societies Registration Act at the instance of the petitioners alone without there being any reference either by the Registrar or one-fourth members of the Society and hence, it is now not open to the private respondents to submit that the Prescribed Authority lacked jurisdiction under Section 25(1) of the Societies Registration Act to proceed with the application moved by the petitioner pursuant to the order dated 07.07.2014, passed by this Court on the grounds mentioned therein. Sri Mishra has empathetically submitted that the Court while passing the order dated 07.07.2014 had allayed the apprehension expressed by the petitioners that the validity of the membership will not be considered by the Prescribed Authority and further that the Court observed that such an apprehension was unfounded as the Prescribed Authority possesses all the powers to examine the validity of the list of members of the Society. Sri Virendra Mishra has very strongly argued that since in this case this Court while passing the order dated 07.07.2014 had given liberty to the petitioners to approach the Prescribed Authority under Section 25 of the Societies Registration Act with the direction to him to examine all the contentions including challenge to validity of the election and voter's list, as such the approach by the Prescribed Authority while passing the impugned order declining to entertain the application moved by the petitioners under Section 25(1) of the Societies Registration Act is against the mandate of this Court embodied in its order dated 07.07.2014 and as a matter of fact, once this Court had directed the Prescribed Authority to entertain the application of the petitioners under Section 25(1) of the Societies Registration Act, he was under mandatory duty to have decided the application on its merit without insisting upon the availability before him of a reference either from the Registrar or from one-fourth members of the Society.

Learned Standing Counsel, on the other hand, has opposed the writ petition and has submitted that the Prescribed Authority under Section 25(1) of the Societies Registration Act could not have proceeded with the application preferred by the petitioners in absence of there being a reference either from the Registrar or from one-fourth members of the Society and further that there is no illegality in the impugned order passed by the Prescribed Authority which is in tune with the prescriptions available under Section 25(1) of the Societies Registration Act.

Sri M.B.Singh, learned counsel representing some of the private respondents has also supported the submissions made by the learned Standing Counsel and has stated that merely because this Court while passing the order dated 07.07.2014 had granted liberty to the petitioners to approach the Prescribed Authority under Section 25(1) of the Societies Registration Act, it would not mean that the requirement of Section 25(1) of the Societies Registration Act of there being a reference either from the Registrar or from one-fourth members of the Society, would be waived off.

I have considered the submissions made by learned counsel appearing for the respective parties and have perused the record of the writ petition.

The question which falls for consideration of this Court in this case is as to whether in the wake of the order dated 07.07.2014, passed by this Court in Writ Petition No. 2263(MS) of 2014, the Prescribed Authority was competent to proceed with the application preferred by the petitioners purportedly under Section 25(1) of the Societies Registration Act in absence of there being a reference either from the Registrar, Firms, Societies and Chits or from one-fourth members of the Society. The relevant portion of Section 25(1) of the Societies Registration Act is quoted herein below:-

"25. Dispute regarding election of office-bearers.-(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:

Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied-

(a) that any corrupt practice has been committed by such office-bearer; or

(b) that the nomination of any candidate has been improperly rejected; or

(c) that the result of the election in so far it concerns such office-bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with the provisions of any rules of the society."

The expression "Prescribed Authority" has been defined in the explanation appended to Sub-section (3) of Section 25 of the Societies Registration Act to mean an officer or court authorized in this behalf by the State Government by notification to be published in the Official Gazette. The State Government by means of notification published in the Official Gazette dated 28.08.1975 has authorized the Sub Divisional Officers within their respective jurisdictions to act as ''Prescribed Authority'. The Prescribed Authority is, thus, a creation of the Societies Registration Act for the purposes of exercising his jurisdiction under Section 25(1) of the Societies Registration Act. Any statutory authority created under an enactment or Legislation has to act within the four-corners or bounds of the enactment or the Legislation under which it is created. Such statutory authority is empowered to exercise his jurisdiction only in accordance with the provisions contained in the Act or the Legislation which confers such jurisdiction. Accordingly, the Prescribed Authority being creation of the Societies Registration Act is also empowered to exercise his jurisdiction only in accordance with the provisions contained in Societies Registration Act, more specifically Section 25 of the said Act and not otherwise.

It is the Statute or the Legislation which confers the nature of jurisdiction to be exercised by a statutory authority. In any circumstance, such a statutory authority conferred with certain statutory functions cannot be permitted to go beyond the prescriptions available in the Statute. Accordingly, the Prescribed Authority under Section 25 of the Societies Registration Act is also bound by the statutory prescriptions available therein.

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.

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.

If the submission of learned counsel for the petitioner based on the order dated 07.07.2014, passed by this Court in Writ Petition No. 2263(MS) of 2014 is examined in the light of what has been discussed herein above, what emerges is that the petitioners were given liberty to invoke Section 25(1) of the Societies Registration Act, however, that would not mean that the manner of invoking Section 25(1) of the Societies Registration Act prescribed therein would stand revoked . In the circumstances of the case, in compliance of the order dated 07.07.2014, it is not that the petitioners could not have approached the Prescribed Authority under Section 25(1) of the Societies Registration Act, however, they were given liberty to approach the Prescribed Authority invoking jurisdiction under Section 25(1) of the Societies Registration Act only in accordance with the manner prescribed therein. In such a situation, for ensuring appropriate compliance of the order passed by this Court on 07.07.2014, the petitioners had two courses available to them, (1) the petitioners could have garnered support of one-fourth members of the Society and would have approached the Prescribed Authority by making an application jointly by at least one-fourth members of the Society seeking redressal of the grievance, if any, and (2) the petitioners could have approached the Registrar by making application requesting him to make a reference under Section 25(1) of the Societies Registration Act to the Prescribed Authority in view of the observations and directions contained in the order dated 07.07.2014, passed by this Court. Had the petitioners taken recourse to either of the aforesaid two courses available to them, the same would have conferred jurisdiction on the Sub Divisional Officer concerned to exercise his jurisdiction as Prescribed Authority under Section 25(1) of the Societies Registration Act. However, petitioners, instead of taking recourse to the aforesaid two modes available to them for invoking Section 25(1) of the Societies Registration Act made a simple application which is contained in Annexure No.17 to the writ petition, which appears to have signed only by the petitioner No.2.

As observed above, the assumption of jurisdiction by the Sub Divisional Officer to exercise his functions as Prescribed Authority under Section 25(1) of the Societies Registration Act is dependent on either there being a reference by the Registrar or one-fourth members of the Society concerned. Thus, either a reference by the Registrar or a reference by at least one-fourth members of the Society is sine qua non for any Sub Divisional Officer to proceed under Section 25 (1) of the Societies Registration Act and non-fulfillment of either of these two conditions would not confer any jurisdiction on a Sub Divisional Officer to act and discharge his statutory functions under Section 25(1) of the Societies Registration Act.

So far as the submission of learned counsel for the petitioners that the petitioners while making application pursuant to the order passed by this Court on 07.07.2014 did not challenge the election of the Executive Body of the Society; rather they only challenged the validity of the list of members of the Society finalized, vide order dated 28.03.2014, passed by the Deputy Registrar, is concerned, it may be stated that the Prescribed Authority is not bereft of jurisdiction to determine the validity of the list of members of the Society or electoral college, however, such determination of the validity of the list of the members of the Society cannot be done by the Prescribed Authority in seclusion or singularly, without dwelling upon the issue relating to doubt or dispute in respect of the election or continuance in office of an office-bearer of the Society. In other words, while examining the doubt or dispute in respect of an election or continuance in office of an office-bearer of the Society, the Prescribed Authority can go into the validity of the list of the members of the Society as well because it is these members only who form the electoral college for the purpose of election of the office-bearers of the Executive Body of the Society.

The order dated 07.07.2014, passed by this Court, in my humble opinion, cannot be construed to mean a direction issued to the Prescribed Authority to determine the validity of the list of members of the Society alone without determination of doubt or dispute in respect of election. This view of the Court being expressed here is fortified by the order dated 07.07.2014, passed by the Court in Writ Petition No. 2263(MS) of 2014 itself for the reason that the Court found appropriate remedy available to the petitioners to approach the Prescribed Authority under Section 25(1) of the Societies Registration Act only after noticing that the election had been held by that time.

It is in the background of the fact that since the election was already held that the Court while passing the order dated 07.07.2014 observed that appropriate remedy available to the petitioners would be to approach the Prescribed Authority under Section 25(1) of the Societies Registration Act. Accordingly, the clarification given in the order dated 07.07.2014 regarding jurisdiction of the Prescribed Authority to examine the validity of the list of the members of the Society has to be understood in the context of such examination permissible by the Prescribed Authority while he considers and decides doubts or disputes in respect of election or continuance in office of an office-bearers of a Society.

Sri Mishra, learned counsel for the petitioners has lastly submitted that in case it is held that the petition preferred by the petitioners under Section 25(1) of the Societies Registration Act pursuant to the order passed by this Court dated 07.07.2014 was not maintainable, that would create a situation where the petitioners would be remedy-less so far as the validity of the order dated 28.03.2014 whereby the list of members of the Society was finalized is concerned. It may be stated that the said submission of the learned counsel for the petitioners does not hold any ground for the reason that validity of list of the members of the Society finalized, vide order dated 28.03.2014 by the Deputy Registrar or for that matter even validity of election, can always be subjected to challenge by the petitioners by filing Civil Suit before the Court of competent jurisdiction.

For the reasons discussed above, the Court does not find any illegality in the impugned order dated 17.08.2017, passed by the Prescribed Authority/Sub Divisional Officer, Sadar, Faizabad, as is contained in Annexure No.1 to the writ petition. The writ petition being devoid of merit is hereby dismissed.

However, notwithstanding the dismissal of this writ petition, it is always open to the petitioners to take recourse to an appropriate remedy which may be available to them under law including invoking the remedy of reference under Section 25(1) of the Societies Registration Act in terms of the provisions thereof.

Costs made easy.

Order Date :- 7.9.2017

Sanjay