C/M Shree Gandhi Dharamashala ... vs The Deputy Registrar Firms ...
2019 Latest Caselaw 6261 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 1
 

 
Case :- SPECIAL APPEAL No. - 116 of 2018
 

 
Appellant :- C/M Shree Gandhi Dharamashala Samiti Throu Secy.& Anr.
 
Respondent :- The Deputy Registrar Firms Societies & Chits Lko.And Ors.
 
Counsel for Appellant :- Pt. S. Chandra
 
Counsel for Respondent :- C.S.C.,Dileep Kumar Mishra,Sameer Kalia
 

 
Hon'ble Pankaj Kumar Jaiswal,J.

Hon'ble Jaspreet Singh,J.

1. Heard Pt. S. Chandra, learned counsel for the appellants, Sri Dileep Kumar Mishra, learned counsel for the respondent no. 3, Sri Sameer Kalia, learned counsel for the respondent no. 2 and Sri Manish Mishra, learned Standing Counsel for the State respondents.

2. This intra-court appeal has been filed by the writ petitioners against the order dated 07.03.2018 passed by the learned Writ Court, whereby learned Writ Court has disposed of the writ petition observing that in terms of the order passed on 16.02.2018 the election, which was scheduled to be held on 17.02.2018, was held and out of 48 persons permitted by the learned Writ Court to participate in the election, only 11 persons including the present appellant turned up and they had elected as office bearers. The result of the election has been declared and after declaration of the result, the Committee of Management was constituted and disposed of the writ petition.

3. The appellants have challenged the order dated 27.01.2018 passed by the respondent no.1 and also prayed for issuance of writ of mandamus directing the respondents not to create any hinderance in the peaceful functioning of the Committee of Management.

4. On 16.02.2018 learned Writ Court, after hearing the learned counsel for the parties, passed a detailed order, which reads as under:

"Heard Pt. S. Chandra, learned counsel for the petitioner, Sri Manjeev Shukla, learned Addl.C.S.C. for the State and Sri Sameer Kalia for opposite party no. 2.

Sri Dilip Kumar Misra has filed an application for impleadment seeking impleadment of one Krishna Kumar Agarwal and the same is hereby allowed.

Let Krishna Kumar Agarwal be impleaded as an opposite party no. 3 during the course of the day.

The society known as Sri Gandhi Dharamshala Prabandh Samiti, Raebareli being a society registered under the Societies Registration Act, 1860 on 2.2.53, has a peculiar history in the light of its memorandum of association and by-laws.

The documents placed before this Court indicate that at the initial stage a society of the aforesaid name, with the object to provide staying accommodation to pilgrims, marriage parties and travellers free of cost except for nominal incidental charges, was formed by as many as 16 persons out of whom 7 persons were the office bearers and the rest were registered as members. Out of these 16 persons, none is said to be alive as on date.

Now looking at the rules and constitution of Sri Gandhi Dharamshala Prabandh Samiti, Raebareli, it is gathered that the original by-laws postulate a complete procedure of membership and Rule II (b) provides the Deputy Commissioner, the Sub Divisional Magistrate and Nazul Officer to be the deemed ex-officio members of the society. Any member of public having sound mind and not being minor as per the mandate of rules is provided to be eligible to seek membership on payment of admission fee and subscription in terms of Rules III and IV. As per the rules, only valid members are eligible to be office bearers.

In the background of the aforesaid scheme envisaged under the rules of the society, the elections appear to have been carried out for the last about 65 years.

This Court having regard to the documents placed by the parties as well as learned Addl. Chief Standing Counsel, noticed a peculiar fact as regards the composition of Committee of Management constituted from time to time from amongst the representatives of 48 donors. A total number of 48 donors including Ex. Prime Minister of India Smt. Indira Gandhi through their representatives, are stated to be the real members of the society but the said membership when tested within the scope of relevant rules, the issue becomes a bi-faceted question of facts and law.

Learned counsel Sri Sameer Kalia and Sri Dilip Kumar Misra on the one hand contend that they have been the representatives of donors and have throughout constituted the Committee of Management and have also been in actual control of the affairs of the society and thus, the petitioner who is not a member of the society, would not be within his rights to maintain a writ petition before this Court for the nature of relief sought in the present writ petition.

On the contrary, the petitioner has urged that he was inducted as a member of the society by its Committee of Management validly approved under an order passed by the Prescribed Authority on 20.5.98 and thus, his membership being unquestionable like the membership of representatives of the donors, therefore, unless the membership of the society is finalised in accordance with law, no election could be held on the strength of the impugned order passed by the Deputy Registrar, as contained in Annexure-1 to this writ petition.

Prima facie, when the membership of the petitioner vis-a-vis the rival claimants is tested within the scope of rules under which the society is governed, none of the two, unless established on the basis of cogent material, can be treated to be the members of the society for any purpose whatsoever.

The issue of membership is thus bound to be considered within the ambit of Section 4 and 4-B of Societies Registration Act, 1860 read with relevant by-laws. Before entering into such an exercise, it would be proper for this Court to call upon the Deputy Registrar to place before this Court the original by-laws of the society alongwith respective lists of membership recognised up to passing of the order by the Prescribed Authority on 20.5.98. The Deputy Registrar shall also explain specifically as to the manner in which he has dealt with the record submitted by Surya Kumar Bajpai as mentioned in Annexure-20 to the writ petition.

It is not in dispute that the election of the Committee of Management of the society from amongst the members of aforesaid description is scheduled on 17th Feb. 2018. In the interest of justice, the election is permitted to be held, subject to the participation of the petitioner no. 2 as well as opposite party. no 2 and the newly impleaded opposite party no. 3 alongwith other members named in the list set out in the impugned order but the result of election shall not be declared without leave of the Court. The election proceedings submitted before the Deputy Registrar shall be forwarded to this Court in a sealed cover before the next date of listing. The petitioner no. 2 may also be permitted to file his nomination provided all other conditions are fulfilled.

List this matter on 6.3.2018.

Sri Manjeev Shukla, learned Addl. C.S.C. shall communicate the order passed today to the Deputy Registrar who shall comply with the same without insisting for a certified copy thereof, pending its availability."

5. Pursuant to the aforesaid order, the appellant no. 2 participated in the election, which was held on 17.02.2018. The result of the election was declared and same was perused by the learned Writ Court, thereafter, the writ petition was disposed of on 07.03.2018 by passing following order:

"Heard learned counsel for the parties.

The result of election, which was scheduled to be held on 17.2.2018 was placed before this Court in a sealed envelop and the same was opened during the court proceedings today.

In the election proceedings held on 17.2.2018, out of 48 persons permitted by this Court to participate in the election, only, 11 persons turned up and they have accordingly elected their office bearers. The result of the election is detailed by the Deputy Registrar in his order dated 17.2.2018 and the photocopy of the same is taken on record.

There does not appear to be any complaint against the election held on 17.2.2018 as on date but it is left open to petitioner no. 2 or any other aggrieved person to file an objection against the election so held and the Deputy Registrar while entertaining any such objection will simultaneously undertake an exercise of satisfying himself about the bona fides of membership of such a person as per bye-laws and the provisions of Societies Registration Act, 1860.

In absence of any complaint against the election held on 17.2.2018, the membership of the society from amongst 47+1 persons mentioned in the order passed by this Court on 16.2.2018 shall attain finality from amongst those who are alive. The list of surviving members and the constitution of committee of management based on the election held on 17.2.2018 be accordingly recognized by the Deputy Registrar for all purposes.

The committee of management constituted as per order dated 17.2.2018 shall assume the charge of actual affairs of the society subject to the outcome of any proceedings as permitted hereinabove.

Insofar as the membership of the society is concerned, the impugned order passed by the Deputy Registrar shall stand modified in terms of this order to the extent that the list of surviving members would also include petitioner no. 2. The list of members presently alive including petition no. 2 shall remain operative till all disputes relating to the election held on 17.2.2018, raised if any, are settled and the same may not be altered till then.

With this clarification, the election proceedings held on 17.2.2018 are held to be final for all purposes and the same shall abide by any order that may be passed by the competent authority in respect of any dispute having a bearing on the election held on 17.2.2018.

The record placed before this Court be returned to Sri Manjeev Shukla, learned Additional Chief Standing Counsel in a sealed cover who shall hand over the same to the officials concerned for the same being kept in the office of Deputy Registrar.

It shall be open to any of the members of the society to obtain a copy of the election proceedings or any information in relation thereto on complying with the requisite procedure.

The petition is accordingly disposed of."

6. Learned counsel for the appellants has submitted that in the last election of the Society which was held on 02.10.2015 for a period of five years, the appellant no.2 was elected as Prabandh Mantri. It is also submitted that once full-fledged election took place and the appellant elected as President of the Scoeity and there was no dispute before the Deputy Registrar regarding earlier election of the Society nor there was any dispute regarding membership, which was already decided by the order dated 01.06.2016 of the Deputy Registrar, then, the learned Writ Court, instead of deciding the matter on merit, erred in law in disposing of the matter.

7. Per contra, Sri Dileep Kumar Mishra, learned counsel for the respondent has submitted that the order dated 27.01.2018 passed by the Registrar was impugned in the writ petition along with the election proceedings. The writ petition was filed on 06.02.2018, thereafter, on 16.02.2018 an interim order was passed and pursuant to the order dated 16.02.2018 passed by the learned Writ Court, the appellant no.2 participated in the election and thereafter result was declared on 17.02.2018. After declaration of result no application for amendment was filed nor appellant challenged the election before the writ court by filing an application for amendment and now he cannot raise such an objection at this stage. As the matter is rendered infructuous, therefore, learned Writ Court has rightly disposed of the writ petition. If the appellant no. 2 is aggrieved with the said election then he has to take recourse under Section 25(2) of Societies Registration Act, 1860 challenging the same. He has drawn our attention to paragraph no. 26 of the judgment passed in the matter of Fahim Ahmad and others Vs. State of U.P. and others, reported in 2008 (26) LCD 1109, wherein it has been held that once election is notified with then ordinarily High Court should not interfere under extraordinary jurisdiction under Article 226 of the Constitution of India. The paragraph no. 26 of the said judgment, which is relevant, reads as under:

"In view of the law declared by Hon'ble the Supreme Court in Pundlik V. State of Maharashtra(Supra), we find that the writ court was justified to hold that once election process commences and is notified with that ordinarily High Court should not interfere under Extraordinary Jurisdiction under Article 226 of the Constitution of India. Hon'ble the Single Judge has also rightly held that the question relating to faulty electoral roll is not a ground for interference, specially when breach of any statutory provision or rule has not been complained of in the preparation of the said electoral roll."

8. Pt. S. Chandra, learned counsel for the appellants has relied upon judgments in the matter of Gram Shiksha Sudhar Samiti, Junior High School, Sikandra District Kanpur Dehat and another Vs. Registrar, Firms, Societies and Chits, U.P., Lucknow and others, reported in 2010 (3) UPLBEC 2522, Vijai Narain Singh Vs. Registrar Firms, Societies and Chits Registration, U.P., Lucknow and others, reported in 1981 UPLBEC 308, C/M Madarsa Ahle Sunnat Faizan-e-Hasmat Samiti and another Vs. State of U.P. and others, reported in 2017 (35) LCD 264 and Kalabharati Advertising Vs. Hemant Vimalnath Narichanla and others, reported in 2010 (9) SCC 437 and has submitted that the Deputy Registrar has no power to curtail the term of elected body nor he has any power to decide the election dispute.

9. We have gone through the decisions cited by the learned counsel for the appellants. In the present facts and circumstances of the case, said judgments are distinguishable, therefore, same will not be applicable in the present case.

10. For the above-mentioned reasons the appeal has no merit and is, accordingly, dismissed.

Order Date :- 1.8.2019

Ashish

(Jaspreet Singh, J.) (Pankaj Kumar Jaiswal, J.)