Lal Chand Singh, Member J.J. ... vs State Of U.P. And 2 Others
2017 Latest Caselaw 4619 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 33
 
										
 
Case :- WRIT - C No. - 43742 of 2017
 

 
Petitioner :- Lal Chand Singh, Member J.J. Shiksha Sadan And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Prabhakar Awasthi
 
Counsel for Respondent :- C.S.C., Mahesh Kumar Dubey
 

 
Hon'ble Manoj Misra, J.

Heard Sri Prabhakar Awasthi, learned counsel for the petitioners; learned Standing Counsel for the respondents 1 and 2; and Sri H.N. Singh, learned senior counsel assisted by Sri Mahesh Kumar Dubey, for the respondent no.3. With the consent of learned counsel for the parties this petition is being disposed of finally at the fresh stage itself.

To elucidate the controversy and the issues involved in the matter, a brief narration of the facts including the rival contentions would be apposite.

A dispute in respect of management of an institution named Janta Janardan Shiksha Sadan Inter College, Tilaon, Mirzapur (in short institution) came before this Court and was examined in several writ petitions, namely, Writ C No. 31497 of 2011; Writ C No. 49756 of 2016; and Writ C No. 7494 of 2011, which were all decided by a common judgment and order dated 08.11.2016. While disposing of the said writ petitions, the court, upon noticing that no election of the committee of management of the institution was held since 2004 and the term of the committee was three years, directed appointment of an authorized controller in the institution with a direction to hold fresh election after determining the electoral college. It was further provided that the electoral college would be determined after inviting objections from the parties concerned.

According to the petitioners, pursuant to the direction given by the Writ Court, the authorized controller finalized the electoral college on 24.03.2017 and, thereafter, held election on 09.04.2017 in which the committee headed by the petitioner as manager thereof was elected for the institution.

Per contra, Sri H.N. Singh, who has appeared on behalf of the third respondent, has submitted that the petitioner has not disclosed full facts. It his case that the election set up by the petitioners was invalid because there was no proper determination of the electoral college and, otherwise also, the holding of election was stayed by the District Inspector of Schools, vide order dated 07th April, 2017; and, in furtherance thereof and in the light of communication dated 20th April, 2017 of the Joint Director, on 22nd July, 2017 a new authorized controller, namely, the Deputy Principal, Government Inter College, Mirzapur was appointed with request to hold fresh election. It has been submitted by him that aggrieved by the direction to hold fresh election, the petitioners had filed Writ C No. 25100 of 2017, which was disposed of by order dated 02.08.2017 after hearing both sides.

Sri H.N. Singh passed on a copy of the order dated 02.08.2017 passed in Writ C No.25100 of 2017, which has been taken on record.

A perusal whereof reveals that this Court while disposing of Writ C No. 25100 of 2017 had observed that the issues raised before it were disputed questions of fact and therefore it was not appropriate that those issues be gone into by a writ court at the first instance and, accordingly, the writ petition was disposed of with a direction to the Regional Level Committee, Mirzapur to decide as to whether the election held on 09th April, 2017 was held by a duly determined electoral college and whether they were held as per the Scheme of Administration. While disposing of the said writ petition, the Court further clarified that all contentions raised by rival parties were open for consideration by the Regional Level Committee. It was also provided that pending decision on the issues, the affairs of the committee of management would be managed by the authorized controller and such management would abide the decision of the Regional Level Committee.

The learned counsel for the petitioners has submitted that the cause of action for this petition has arisen because, in the meantime, on the request of the authorized controller, the Assistant Registrar, Firms, Societies and Chits, Varanasi (in short Assistant Registrar), by his letter dated 19.06.2017 written to the authorized controller, has certified that the unregistered list of members of the general body of the Society for the year 2015-2016 sent for verification tallies with the Society's record available in his office.

It is the apprehension of the petitioners that since under the scheme of administration of the institution the general body of the institution and that of the Society is same, therefore, on the basis of the letter dated 19.06.2017, the Regional Level Committee may, without determining the validity of the electoral college from which the election dated 09.04.2017 was held, take a decision against the petitioners.

It has been submitted by the learned counsel for the petitioners that under Section 4-B of the Societies Registration Act, 1860 (in short the Act), the Registrar has to examine the correctness of the list of members of the general body of the Society with reference to the register of members of the general body; minutes book; cash book, receipt book of membership fee; and bank passbook of the Society. It has been submitted that if such power is not exercised in the manner provided, mere taking on record a list of members, while registering the list of office bearers of the society, would not ipso facto amount to determination of the general body of the Society.

It is thus the prayer of the petitioners that since no exercise as contemplated by sub-section (1) of section 4-B of the Act has been undertaken, the verification of the list of members of the Society for the year 2015-2016 be quashed and a direction be issued to the Assistant Registrar to determine the general body of the Society and finalize the list of members under section 4-B of the Act. In the alternative it has been orally prayed that the Regional Level Committee should be directed to adjudicate the validity of electoral college for the election dated 09.04.2017 on the basis of the evidence produced by the parties before it and not by taking verification letter dated 19.06.2017 as determination of the general body of the Society under section 4-B of the Act.

In response to the aforesaid contention of the learned counsel for the petitioners, Sri H.N. Singh, learned senior counsel, who represents the respondent no.3, submitted that as no dispute had been raised at the time of registration of the lists of office bearers of the Society for the year 2015-2016 and 2016-2017, there is no occasion now to carry out an exercise to determine the general body and therefore even the unregistered list of members of the general body of the Society supplied along with list of office bearers of the Society, which stood registered, could be taken as conclusive evidence of the members comprising the general body of the Society. Hence, the Regional Level Committee is legally bound to accept the same and the prayer of the petitioner is misconceived.

I have considered the rival submissions of the learned counsel for the parties.

To appreciate the rival submissions, it would be useful to reproduce Section 4-B of the Societies Registration Act, 1860, as inserted by UP Act No.23 of 2013, which reads as follows:

(1) At the time of registration/ renewal of a society, list of members of General Body of that society shall be filed with the Registrar mentioning the name, father's name, address and occupation of the members. The Registrar shall examine the correctness of the list of members of the General Body of such society on the basis of the register of members of the General Body and minutes book thereof, cash book, receipt book of membership fee and bank pass book of the society.

(2) If there is any change in the list of members of the General Body of the society referred to in sub-section (1), on account of induction, removal, registration or death of any member, a modified list of members of General Body, shall be filed with the Registrar, within one month from the date of change.

(3) The list of members of the General Body to be filed with the Registrar under this section shall be signed by two office bearers and two executive members of the society.

A perusal of the provisions of sub-section (1) of section 4-B of the Societies Registration Act, 1860, as applicable in the State of U.P., would reveal that sub-section (1) of section 4-B is in two parts. The first part casts a duty upon the person seeking registration or renewal of the society to submit a list of members of the General Body of the society with specified details. The second part casts an obligation on the Registrar to examine the correctness of the list of members of such society. The use of the word "such" before "society" is of significance because it qualifies the society to which it applies. That is, the society whose registration or renewal is sought. In other words, the Registrar is under a statutory obligation to carry out an exercise contemplated by the second part of sub-section (1) of section 4-B of the Act only when the list of members of the General Body of the society is submitted either at the time of registration or at the time of renewal of the society. In other situations such as at the time of registration of annual list of office bearers of the society under section 4 of the Act the Registrar though not obligated to determine the correctness of the list of members of the General Body of the society but has power to do so and may do so while registering the list of office bearers of the society as and when occasion arises, particularly where there appears a dispute. But whether such exercise as contemplated by section 4-B has been carried out or not is a question of fact which needs to be ascertained before treating the list of members coming from the Registrar's office as a list finalized under section 4-B of the Act.

Unless an exercise as contemplated by Section 4-B has been undertaken and a conscious determination in respect of correctness of the list of members is made by the Registrar, the list of members of the society taken or submitted at the time of registering the list of office bearers of the society, and particularly not at the time of registration or renewal of the society, cannot be taken as a determination, much less conclusive, of the general body of the society. Therefore, the contention of the learned counsel for the respondent no.3 that once the list of office bearers of the society is registered, without any dispute, the list of members of the society submitted along with it would be conclusive evidence of the constitution of the general body of the society for all practical purposes, is not acceptable.

From the record of the case, it appears, while remitting the matter to the Regional Level Committee, vide order dated 02.08.2017 passed in Writ C No. 25100 of 2017, this Court had left it open to the Regional Level Committee to ascertain whether the election held on 09th April, 2017 was from a duly determined electoral college or not. Even prior to that the direction given by this Court dated 08.11.2016 in Writ C No. 31497 of 2017, connected with other petitions, required the authorized controller to determine the electoral college.

Under the circumstances, the correctness of the electoral college has to be determined. Whether such determination was validly made by the authorized controller while holding election dated 09.04.2017 is a question of fact which needs to be ascertained by the Regional Level Committee pursuant to the order dated 02.08.2017 passed in Writ C No.25100 of 2017.

Whether there had been a determination of the electoral college at the level of the Registrar, in exercise of power conferred by Section 4-B of the Societies Registration Act, 1860, is an issue which can be considered by the Regional Level Committee. But mere registration of the list of office bearers of the Society, in absence of a conscious determination as regards the correctness of the list of members of the general body of the Society as contemplated by sub-section (1) of section 4-B of the Act, 1860, would not, ipso facto, amount to a determination. Therefore what is crucial to determine is whether a determination as contemplated by section 4-B of the Act has taken place or not. If such determination has not taken place, the Regional Level Committee would have to determine whether the electoral college determined by the authorized controller for the purpose of holding election was validly determined or not and for that end it will have to take evidence from both sides and decide the issue on the weight of evidence led before it as also upon consideration of the provisions of the scheme of administration. But if there had been a determination as contemplated by sub-section (1) of section 4-B of the Societies Registration Act, 1860, then such determination would be binding on the Regional Level Committee unless such determination is set at naught by appropriate court or forum, provided, of course, the general body of the society and of the institution is one and the same, as is the admitted case here.

As, in the instant case, parties are at variance as to whether there has been a determination of the members of the General Body of the society as contemplated by section 4-B of the Act and the issue is being examined by the Regional Level Committee, pursuant to the direction of this court given in Writ C No.25100 of 2017, this Court considers it appropriate to dispose of this petition by requiring the Regional Level Committee to examine whether there had been a determination of the general body as contemplated by section 4-B of Act or not. If yes, then it shall accept it and decide the issue before it accordingly. But if it comes to the conclusion that there is no such determination as contemplated by Section 4-B of the Act, it shall carry out its own exercise to test the validity of determination of the general body made by the authorized controller in the light of the observations made herein above.

Since the impugned letter dated 19.06.2017 sent by the Assistant Registrar, Varanasi to the Authorized Controller is not an order but a mere letter giving certain information it can only be treated as a piece of material/ evidence which may be considered by the Regional Level Committee, in the light of the observations made herein above, therefore, under the circumstances, this Court does not find any good reason to quash the same. Hence, the prayer made to quash the same is rejected.

The prayer of the petitioners that a direction be issued to the Assistant Registrar to carry out an exercise contemplated under section 4-B of the Act need not be addressed, at this stage, particularly, when the matter is already under consideration of the Regional Level Committee. More so, because, ordinarily, the exercise contemplated by section 4-B of the Act is to be undertaken at the time of registration or renewal of the society.

With the aforesaid observations and directions, the writ petition stands disposed of.

Order Date :- 19.9.2017

Sunil Kr Tiwari