C/M. Madarsa Furquania Society ... vs State Of U.P. Thru Its Secy. Min. Of ...
2019 Latest Caselaw 5433 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R
 
Court No. - 54
 

 
Case :- WRIT - C No. - 33315 of 2015
 
Petitioner :- C/M. Madarsa Furquania Society Thru Its Secy. And Another
 
Respondent :- State Of U.P. Thru Its Secy. Min. Of Self Fin. And 3 Ors.
 
Counsel for Petitioner :- Prabhakar Awasthi,O.P. Singh
 
Counsel for Respondent :- C.S.C.,S.M. Nazar Bokhari
 

 
Hon'ble Ajit Kumar,J.

1. Heard Sri Prabhakar Awasthi, learned counsel appearing for the petitioner and Sri S.M. Nazar Bokhari, learned counsel appearing for respondents no. 3 and 4 and learned Standing Counsel for respondents no. 1 and 2.

2. In compliance of the earlier order of this Court dated 20th May, 2019, the records have been produced from the office of Assistant Registrar Societies, Allahabad now Prayagraj and have been perused by me.

3. By means of the present petition under Article 226 of the Constitution of India, the petitioners have assailed the order passed by the Assistant Registrar Societies dated 25th February, 2015 whereby the list of the office bearers/ committee of management submitted by respondents no. 3 and 4 was directed to be registered under Sections 3 and 4 of the Societies Registration Act.

4. Briefly stated facts are that there is a registered society in the name of Madarsa Furquarina Society, Kurrah Sadat, Fatehpur bearing registration no. K-8471. The petitioner prior to 11.6.2005 was admittedly president of the society and according to the list registered with the Assistant Registrar Society he was one of the office bearers in the capacity of President, however, on 11.6.2005, it is stated that he resigned and also filed an affidavit to this effect before the Assistant Registrar Societies on 29.12.2005 stating that he had already submitted resignation from the post of President of the Society and had already communicated the same to the Registrar and that he has nothing to do with the post and the affairs of the management any further.

5. Consequently, a fresh list was submitted by the then Committee of Management of the Society to the Assistant Registrar Societies for registration of the list with new office bearer as President of the Society. The changed list of office bearers came to be registered by the Assistant Registrar Societies on 7th January, 2006. Thus, the new management continued to function and recognized thereafter and for a pretty long time there was never any dispute until the petitioner moved an application along with affidavit dated 23rd September, 2011 before the Assistant Registrar Societies that he had never resigned and continued to be the president of the Society and other team of management was bad.

6. This time he raised objection to set up a dispute, it appears, possibly because the renewal to the registration of the Society registered with changed name accorded by the Assistant Registrar Societies on 22.3.2005 on the paper submitted by the contesting respondent and now new election had become due in the year 2011. The Assistant Registrar Societies, accordingly issued notices to the contesting respondent no. 3 but when matter lingered on petitioner filed a writ petition before this Court bearing Writ C No. 38019 of 2013 in which a direction was issued that the Assistant Registrar will take appropriate decision on the paper submitted by the Secretary of the Society after taking into consideration the objection filed by the petitioner. It is pursuant to the above that the Assistant Registrar proceeded to consider the objection of the petitioner and ultimately passed the order impugned dated 25th February, 2015.

7. In the order impugned herein this petition, the Assistant Registrar has recorded three findings: A. The President Shamim Ahmad who was holding the post of President of the Society with Najeem Uddin Ahmad, respondent no.3, as duly elected manager of the Society, he resigned in the year 2006 but the manager continued and it is after the resignation of the petitioner Shamim Ahmad on 11.6.2005 one Riyaz Ahmad was elected as President of the Society and the annual list of office bearers of the Society 2005-2006 was registered on 7.1.2006 and that renewal to the same was granted in the year 2009. However, Shamim Ahmad never made any complaint prior to 23rd September, 2011; B. After submitting resignation from the post of the President of the Society, namely, Madarsa Furkania Society, the petitioner formed a new Society in the name of Minority Educational Society 26 Syed Bara, District Fatehpur and that was registered with the office of Assistant Registrar Societies vide registration no. 205 dated 7.9.2005 and the petitioner continued and the President of the said society since 2005-2006 on-wards; C. The entire act and conduct of the petitioner in submitting his resignation on 11.6.2005 and never making any objection in respect thereof until the year 2011 and forming society immediately in the year 2006 in a different name sufficiently demonstrated that the petitioner had voluntarily tendered resignation of the post of President of the Society and, therefore, the list of office bearers as set up by the petitioner for registration was not found to be genuine and was rejected and the list of office bearers of the contesting respondent no. 5 was directed to be registered.

8. Assailing the above findings the argument advanced by the learned counsel for the petitioners is that the petitioner no.2 at no point of time had ever submitted any resignation dated 11.6.2005 and that the affidavit which had been submitted before the Assistant Registrar bearing his signatures, were not his signatures but forged signatures. He contends that on coming to know about his alleged resignation letter, he had immediately approached the Assistant Registrar Societies on 24.5.2006 which was duly received in his office but he did not take any action and so he ultimately moved to his Court vide Writ Petition referred to hereinabove.

9. He submits also that there was no resignation letter available on record of the case. He argued that affairs were not smooth in the then committee of management and they surreptitiously removed the petitioner from the post of the president by forging his resignation letter and fraudulently formed a new committee of management with the changed persons as the office bearers, particularly the office which the petitioner was holding.

10. Besides above, the petitioner also argues that the Assistant Registrar Societies in the first instance, should have kept his hands off the controversy in view of Section 25 (1) of the Societies Registration Act, 1860 which specifically deals with this aspect of the matter that whenever the question arises about the continuance of an office bearer or a dispute of election, the matter would necessarily be referred to the prescribed authority. Section 25 (1) runs as under:

"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-bearers 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 as it concerns such office-bearer has been materially affeced 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.

Explanation I.- A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person-

(I) induces, or attempts to induce, by fraud, international misrepresentation, coercion or threat of injury, any elector or give or refrain from giving a vote in favour of any candidate, or any person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at the election;

(ii) with a view to inducing any elector to give or refrain from giving a vote in favour of any candiate, or to inducing any person to stand or not to stand as, for to withdraw or not to withdraw from being a candidate at the election, as, or withdraw or not to wihdraw from being a candidate at the election, offers or gives any money, or valuable consideration, or any place or employment, or holds out any promise of individual advantage or profit to any person;

(iii) abets (within the meaning of the Indian Penal Code) the doing of any of the acts specifid in clauses (I) and (ii);

(iv) induces or attempts to induce a candidate or elector to believe that he or any person, in whom he is interested, will become or will be rendered any object of divine displeasure or spiritual censure;

(v) canvasses on grounds of caste, community, sect or religion;

(vi) commits such other practice as the State Government may prescribe to be a corrupt practise.

Explanation II- A promise of individual advantage or profit ot a person includes a promise for the benefit of the person himself or of any one in whom he is interested.

Explanation III- the State Government may prescribe the procedure for hearing and decision of doubts or disputes in respect of such elections and make provision in respect of any other matter relating to such elections for which insufficient provision exists in this Act or in the rules of the society]"

11. He therefore, argues that the Assistant Registrar, in the first instance, virtually exceeded his authority in passing the order impugned instead of referring the matter to the prescribed authority; and the second the argument advanced is that the Assistant Registrar has not complied with the order of this Court passed in Writ Petition No. 38019 of 2013 dated 17.7.2013 in its letter and spirit. He argues that specific directions were issued to the Assistant Registrar Societies to consider the objection of the petitioner and, therefore, the argument is that the order passed by the Assistant Registrar even otherwise cannot be sustained in law as he has failed to examine the objection of the petitioner in correct perspective qua the alleged resignation.

12. Per contra the argument advanced by the learned counsel appearing for the respondents no. 3 and 4 is that after the resignation letter was submitted by the petitioner in the year 2005 the new list of office bearers of the committee of management of the society came to be registered for the year 2005-2006 in January, 2006. List with changed office bearers is available on record and, therefore, if the petitioner had any objection or any intention to show that he continued to be office bearer or that his stand was that he never resigned, he would have immediately taken up the issue with the Assistant Registrar Societies and if no action, he could have approached the court of law.

13. He further submits that as far as the objection of the petitioner is concerned, which is alleged to have been submitted on 24th May, 2006, it does not find any mention in the affidavit sworn by petitioner no. 2 on 23rd September, 2011 on which, for the first time, notices were issued by the Assistant Registrar Societies on 20.10.2011. He submits that for a pretty long six years the petitioner had remained silent. He submits that since he did not participate in any of the meetings of the Society and did not discharge the function as office bearer of the Society and committee was, admittedly, continuing, it could safely be presumed that he had virtually abandoned the Society. Further as a sequel to above argument, it is submitted that the petitioner immediately had formed different society in the name of Minority Educational Society A26 Syed Bara District Fatehpur which came to be registered separately and specific plea to that effect has been taken in paragraph-5 of the counter affidavit that runs as under:

"5. That the contents of paragraphs nos. 5,6 and 7 of the writ petition are not admitted and hence denied. It is submitted that Madarsa Furquani Society Korra Sadat of which the deponent is manager since its formation was registered on 24.02.1989 in the office of opposite-party no. 2 Assistant Registrar Firms Chits and Societies, Allahabad and all the proceeding for the registration were done under the suprevision of petitioner no. 2 Shamim Ahmad Madney himself who is the elder brother of the deponent. There is the original signature of the Shamim Ahmad Madney on the memorandum of Association of the Society presented at the time of registration as the President of the Society.

Shamim Ahmad Madney after about 16 years from the formation of the Society resigned on 11.06.2005 as the President of the Society and informed the opposite-party no.2 vide an affidavit dated 29.12.2005. A true copy of the said affidavit is being filed herewith and marked as Annexure No. C.A.-1 to this affidavit.

The resignation of Shamim Ahmad Madney is also verified and confirmed by Suleman Ahmad Madney, a life member of the Society. A true copy of the affidavit dated 12.09.2013 of Suleman Ahmad Madney testifying the resignation of Shamim Ahmad Madney isbeing filed herewith and marked as Annexure No. C.A.-2 to this affidavit.

The reason for the resignation of the Suleman Ahmad Madney on 11.06.2005 is that on 28.07.2005 he formed a separate Society in the name of Minority Educational Society A 26 Syedwara, District Fatehpur of which Shamim Ahmad Madney is the President. He was no more interested in the functioning of the present Society and was only interested in creating hindrances in its peaceful working in running the educational institution governed by the present Society of which the depondent and opposite-party no. 2 are the manager and President respectively. In all respect Mr. Shamim Ahmad Madney had abandoned the post of President of the present Society by resigning on 11.06.2005 and informing the opposite-party no.2 by his affidavit on 28.2.2005. A true copy of the memorandum of association of the education society formed by Mr. Shamim Ahmad Madney is already annexed as Annexure No. 1 to the writ petition.

And after the resignation and abandonment of Shamim Ahmad Madney from the post of President of the present Society in which the deponent was elected as manager and opposite party no. 4 as President alongwith other members. A list of the managing body of the present society of the year 2005-2006 and the list of succeeding years i.e. 2005-2006 is being filed herewith and marked as Annexure No. C.A. -3 to this affidavit. And a list of managing body of the new society established by Shri Shamim Ahmad Madney from 2005-2006 onwards is being filed as C.A. 3-A to this affidavit.

Ever since the formation of new Managing Committee in the year 2005-2006 with the depondent as manager, opposite- party no. 4 as President and Mr. Mohiuddin as member Secreatry, the registration of the Society was renewed from year to year till the present latest renewal. The Society continuously and efficiently dong its work and running the educational insitution property and without any complaint from the educational authorities. True copies of renewal certificate till date are being filed herewith and marked as Annexure No. C.A.-4 to this affidavit.

The averments in the answering paragraph no. 5 of the writ petition and contrary to what is said above are all false and denied and are made to gain sympathy of the Court.

It is further submitted that the deponent never received any such notices as mentioned in paragraph no. 6 of the writ petition. The said notices if any had no legal value as the same were issued by Shamim Ahmad Madney who had resigned from the Society on 11.06.2005 about 9 years ago and had formed a separate society on 28.07. 2005 as its President as stated above. These notices if any were only to create confusion and are prepared subsequently to harass the deponent committee and hamper the working of the society."

14. It has been further argued that since the petitioner never denied specifically in his affidavit that the earlier affidavit submitted by him in the year 2005 was forged and was fabricated or that his signatures were forged, it was not open for him, after six years, to take this plea, inasmuch as, in case if the petitioner was of the opinion that his signatures had been forged and fraud had been committed, he should have resorted to the penal provisions under the Indian Penal Code, 1850 to initiate criminal proceedings against the alleged fraud under the Code of Criminal Procedure, 1973.

15. Having heard learned counsels for the parties and their arguments across the bar and having perused the records, what I find is that the Assistant Registrar Societies while dealing with the issue raised in the objection of the petitioner has considered many aspects of the matter like the conduct of the petitioner in not pursuing the matter from 2006 to 2011; second the continued conduct and approach of the petitioner in forming a different society and continuing as its office bearer in the same district and his reluctance towards the affairs of the present society which would go to demonstrate that the petitioner was more interested in the society which he had later on formed and also the issues regarding validity of his resignation letter.

16. Insofar as the question of merits of the resignation of the petitioner is concerned, the Assistant Registrar has considered also this aspect of the matter and has found the resignation letter of the petitioner to be available on record a perusal of which, according to him, has sufficiently demonstrated that it was submitted before the office.

17. The question for consideration before this Court is now as to whether the findings returned by the Assistant Registrar Societies are perverse, in the first instance, and secondly as to whether the issue as was raised before him, could have been examined by him or not in view of Section 25(1) of the Societies Registration Act, 1860.

18. Before I begin to examine the issues so as to test the findings on the touchstone of Section 25 (1) of the Act, 1860 and documents available on records, it is necessary to discuss certain glaring facts emerging from the original records of the case produced before me which unfortunately have not found mention in the pleadings raised by either of the parties. It appears that litigants have not appropriately briefed their respective counsels and particularly the petitioner which shows that he not only deliberately tried to reopen the issue in the year 2011 for the first time, but had the intention to disrupt the working of the earlier society to nurture his own subsequent society. The concealment of material facts as are available in the form of documents in the records conveys a well founded impression that in case records were not summoned, it would have entailed serious miscarriage of justice.

19. Original record shows that the Society was initially formed in the name of, Madarsa Furkania Chak Kutra Sadad District Fatehpur with registration no. K-8471 with seven persons committee of management including four persons as office bearers. Shamim Ahmad s/o Syed Ahmad as President, Nazim Uddin Ahmad s/o Sir Aziz Ahmad as Manager/ Secretary, Tufail s/o Sir Syed Ahmad as vice president, Irfan Ahmad s/o Aziz Ahmad as member, Mohinuddin s/o Aziz Ahmad as members, Mizauddin s/o Aziz Ahmad as member, Sohail s/o Tufail Ahmad as members. This society continued to be registered as such and its registration continued to be renewed until the year 2002 when the name of Society was changed to Indian Minority Educational Society (Bhartiya Alpsankhyak Sikshan Samity) and the papers were forwarded to re-register the Society with the changed name with same seven members committee of management including four office bearers as quoted above and of course bearing the signature of Shamim Ahmad also as President of the Society. Name was changed and registered as such and the registration certificate was issued on 21st August, 2002. In the year 2005 again the name of the Society was changed and it was re-named as Madarsa Furquarina Society, Kurrah Sadat, Fatehpur and list of office bearers along with the amendment was submitted to the Assistant Registrar Societies on 17.2.2005 with the request for renewal as well. This minutes of the meeting that was forwarded along with covering letter to the Assistant Registrar Societies also carried the signatures of Shamim Ahmad, namely the petitioner no. 2 as President and so the Society came to be renamed under the order of the Assistant Registrar Societies by issuing necessary certificate dated 22nd March, 2005 and the renewal was also accorded to registration of the Society as such in the same date. These two documents are also available on records.

20. It appears that present petitioner being not happy with the changed name and with an intention to form a new Society in the earlier name voluntarily tendered his resignation on 11.6.2005 which is also available on record. A letter which was written by Assistant Registrar Societies to the Manager on 29th July, 2005 asking him to supply a new list of office bearer of the year 2005-20006 along with the letter of resignation of the President and his notary affidavit shows that matter of resignation had been duly communicated to the Assistant Registrar. In reply to the aforesaid letter vide letter dated 6.1.2006 the requisite papers were filed including the election proceedings dated 15th September, 2005 along with the letter of resignation of the petitioner dated 11.6.2005 and notary affidavit. This covering letter dated 6.1.2006 is available on record along with affidavit and other requisite papers. The Assistant Registrar Societies, accordingly, registered the new list of office bearers on 7.1.2006 and communicated the same to the Manager vide letter dated 10.1.2006. These two documents are also available on record.

21. After close scrutiny of the records produced before me, I find that the letter dated 24.5.2006 upon which much emphasis has been placed by the petitioner was in fact not written by the petitioner himself but by one Jalaluddin in the capacity of life member. The contents of the letter do raise objection to the alleged resignation and dispute the signatures on the affidavit allegedly submitted by Shamim Ahmad, namely the petitioner but the petitioner himself is not signatory to the said letter nor, do I find any document to indicate that petitioner ever wrote subsequently any letter in support of the letter of Jalaluddin until 23rd September, 2011 when for the first time he questioned his signatures.

22. There is one more document available on record dated 30th March, 2009 in which the Manager of the present Society, the third respondent Nazimuddin Ahmad, had written to the Assistant Registrar, raising objection to the registration of new Societies in the name of Minority Educational Society with Registration No. 519/2005-6 certificate of which was issued on 7.9.2005 and raised objection that petitioner no.2 cannot remain member of two Societies at the same time and requested for an enquiry. However, there is no further document to show as to whether any enquiry was held. But the petitioners in this case particularly the petitioner no. 2 has not disputed forming of a new society.

23. Now I proceed to examine the issues raised before this Court in the light of the documents that I have had the opportunity to peruse and have gone through, available in the original records of the file which has been produced before me.

24. Coming to the first question whether resignation in question was voluntarily given by petitioner no.2, it is necessary to discuss the contents of the affidavit filed in support of the objections dated 23rd September, 2011 of which notice was taken by the Assistant Registrar Societies. From the perusal of the affidavit, as has been quoted herein-above, I find that there is no mention of any objection being raised and filed before the Assistant Registrar Societies on 24.5.2006, Annexure-4 to the writ petition, which is a photo copy of the objection dated 24.5.2006, allegedly submitted by the petitioner no. 1. The petitioner no. 1 is the committee of management and the objection which has been filed and which is available on record is by a life member of the Society, Jalaluddin though he now claims to be the manager of the society. This Court fails to understand as to why the petitioner no. 2 Shamim Ahmad shied away from filing any objection to the alleged resignation , which he says now in the year 2011, for the first time, was never signed by him. Objection by proxy was raised, and it can safely be concluded that the petitioner no.2 himself was never interested in contesting the same and that is why in support of such letter he never wrote any letter to the Assistant Registrar Societies in between the year 2006 and 2011 nor, did he file any affidavit in support of such letter of Jalaluddin. The letter filed by Jalaluddin is reproduced as under:

"lsok esa]

lgk;d jftLVkj

QUM lkslkbVh jftLVkj

bykgkckn

egksn;]

fuosnu gS fd laLFkk enjlk Qqjdkfu;k pd dksjh lknkr tuin Qrsgiqj dk iaftdj.k fnukad 25-3-89 dks fd;k x;k Fkk rc ls 'kehe vgen v/;{k laLFkk dh izcU/k dkj.kh lfer es pys vk jgs FksA eSus fnukad 24-5-2006 dks laLFkk dk fufj{k.k fu;ekuqlkj fd;k x;k ftles ;g ik;k fd uteqn~nhu vgen izca/kd }kjk 'kehe vgen v/;{k dks fnukad [email protected] [email protected] 2006 dh dk;Zokgh }kjk R;kx i= ds ek/;e ls gVk fn;k x;k gSA 'kehe vgen dk QksVks ;qDr gYQ ukek vukiRrh ds lEca/k es yxk gS mDr ds lEca/k es vki dks voxr djkuk gS] fd 'kehe vgen }kjk dHkh Hkh dksbZ R;kx i= ugh fn;k x;k gSA 'kiFk i= ij fd;s x;s gLrk{kj iw.kZr;k QthZ gSA ,oe dk;Zokgh fnukad 01-01-2006 QthZ #i ls cukbZ xbZ gSA laLFkk ds fdlh Hkh lnL; dks bldh lwpuk ugh gSA vr% egksn; ls vuqjks/k gS] fd uteqn~nhu izca/kd dh dk;Zokgh dks fujLr djrs gq, nks"kh O;fDr ds f[kykQ dkuwuh dk;Zokgh djus dh d`ik djsaA

g0 tykyqn~nhu

24-05-06"

25. From bare reading of the above letter I find that the contents of the letter of Jalaluddin do contain recital to the effect that the affidavit of Shamim Ahmad was never signed by Shamim Ahmad and his signatures were forged and the alleged committee dated 1.1.2006 had been fraudulently formed but at the same time here it is necessary to go through the contents of affidavit dated 29.12.2005 and 23.9.2011 to arrive at a right conclusion. The affidavits dated 29.12.2005 and 23.9.2011 of Shamim Ahmad are reproduced here-under:

"le{k& jftLVªkj]

QkElZ lkslkbVht ,.M fpV~l mRrj&izns'k]

bykgkcknA

gyQukek feutkfuc 'kehe vgen iq= Jh lbZn vgen fuoklh xzke pd dqjkZ lknkr] tuin QrsgiqjA

;g fd eS 'kehe vgen mijksDr ogyQ c;ku o rLnhd djrk gwWA

nQk&1& ;g fd 'kiFkdrkZ mijksDr fnukad 11-06-2005 dks enjlk Qqjdkfu;k lkslkbVht xzke pd dksjkZlknkr ftyk Qrsgiqj ds desVh ls v/;{k in ls R;kx i= LosPNk ls ns jgk gwWA

nQk&2& ;g fd 'kiFkdrkZ mijksDr fnukad 11-6-05 dh R;kx i= dh lwpuk izcU/[email protected]=h dks Hkh fyf[kr :i ls ns fn;k gSA

nQk&3& ;g fd 'kiFkdrkZ mijksDr viuh ethZ ls LosPNk ls R;kx i= ns jgk gSA eq>s fdlh rjg dh vkifRr ugha gSA

nQk&4& ;g fd mDr desVh dk jftLVsª'ku uEcj&[email protected]&89 o Qkby la[;k ds0&8471 gSA

nQk&5& ;g fd eS 'kiFkdrkZ mijksDr ogyQ- c;ku o rLnhd djrk gwW fd 'kiFk i= dh nQk 1] 2] 3] 4 esjs bYe ls lgh o lp gS] dksbZ ckr ugha fNik;h x;h gS] lp cksyus esa bZ'oj esjh enn djsA

ceqdke dpgjh vgkrk] QrsgiqjA

fnukad& 29-12-05 g0 viBuh;"

"le{k]

lgk;d fuca/kd]

QkElZ lkslk;Vht ,oa fpaV~l]

bykgkcknA

'kiFki= feu tkfuc lS;n 'kehe vgen enuh iq= Jh lS;n lbZn vgen enuh] fuoklh pd dqjkZ rknkr gqeok] Qrsgiqj] ogYQ fuEu c;ku djrk gwW fd&%

1& ;g fd 'kiFkdrkZ iathd`r laLFkk ^*enjlk Qqjdkfu;k lkslk;Vh&[email protected] pd dqjkZ lknkr tuin Qrsgiqj dk loZ lEefr ls fuokZfpr jgk gSA

2& ;g fd 'kiFkdrkZ dks fcuk fdlh lwpuk ds voS/k rjhds ls mDr laLFkk dks izca/k lfefr ls fnukad 11-6-2005 dks gVk fn;k x;k gSA

3& ;g fd 'kiFkdrkZ dks mDr izca/k lfefr ls gVk;s tkus dh u gh dksbZ lwpuk nh xbZ rFkk dk;kZy; ls izLrqr vukifRr 'kiFk i= esa 'kiFkdrkZ ds fd;s x;s gLrk{kj gh lgh gSA

4& ;g fd 'kiFkdrkZ dks mDr izca/k lfefr dh fdlh Hkh cSBd esa u gh gVk;s tkus dk izLrko ikfjr fd;k x;k gS rFkk 'kiFkdrkZ ds uke ls dk;kZy; esa izLrqr 'kiFk&i= dh /kkjk 5 2 es mYysf[kr rF; gh lgh gS] D;ksa fd 'kiFkdrkZ }kjk ,slh dksbZ Hkh lwpuk izca/[email protected]=h dks ugha nh xbZ gSA

5& ;g fd vr% mijksDr rF;ksa dks n`f"Vxr j[krs gq, iwoZ esa izLrqr la'kksf/kr lwph izca/k lfefr rFkk lwph ifjorZu laca/kh leLr dk;kZokgh fujLr fd;k tkuk U;k;fgr esa gksxkA

eSa 'kiFkdrkZ cgyQ ;g rlnhd djrk gwW fd 'kiFk i= dh /kkjk mijksDr 1 yxk;r 5 esjh futh tkudkjh esa lR; o lgh gS] blesa u dqN >wB gS rFkk u gh dqN fNik;k x;k gSA"

fn0 & 23-9-2011 g0 viBuh;

26. From a bare reading of the aforesaid document dated 23.9.2011 sworn by petitioner no. 2 Shamim Ahmad, I find that there is no recital to the effect that signatures on the affidavit in support of the resignation letter were forged nor, do I find any recital to the effect that his resignation letter was forged. Whereas on the contrary, in the affidavit dated 23rd September, 2011 he has stated vide paragraph-3 that his signatures on the no objection filed in the office of Assistant Registrar is correct. The affidavit dated 29.12.2005 is in fact an affidavit of no objection with regard to the resignation that he tendered from the post of President of the Society. Thus, it is a fact clearly borne out from the records that neither the petitioner no. 2 himself filed any objection to his resignation letter dated 11.6.2005 prior to 23rd September, 2011 nor, did he even make a whisper about the alleged resignation letter and the affidavit dated 11.6.2005 and 29.12.2005 to be forged nor, he stated anywhere in the entire affidavit filed on 23rd September, 2011 that those very documents were fraudulent documents.

27. Since the petitioner no.2 himself never pursued the matter against the alleged voluntary resignation and in fact he had formed a separate Society which he does not dispute in rejoinder affidavit, in reply to para-5 of the counter affidavit, it goes without saying that he himself never questioned the resignation letter, instead, continued to function as a President or office bearer of the new Society in the name of Minority Educational Society as I have referred to herein-above. Various documents seen in the original records which go on to show that the present Society was renamed and the name of the present Society was changed from Indian Minority Educational Society in the year 2002 and was renamed as present society in the year 2005. The petitioner no. 2 voluntarily disassociated himself from the Society in question forming a new Society in the name of Minority Educational Society.

28. Paragraph-5 of the counter affidavit has been replied vide paragraph-4 of the rejoinder affidavit thus:

"That the contents of paragraph no.5 of the counter affidavit is not admitted as stated and therefore are denid. Answering depondent reiterates and reaffirms the statement of fact mentioned in paragraph no. 5,6 & 7 of the writ petition is correct. Depondent stands by his statement made in the writ petition that as of now the alleged resignation letter dated 11.06.2005 of the petitioner no. 2 has neither been shown to him or exist on record in the office of Assistant Registrar. Time and again the resignation letter is trying to be justify on the basis of alleged resignation of petitioner no.2, once this fact remains undisputed that no such resignation letter exist then entire dispute essentially has to be resolved in favour of petitioner no.1 and 2. There is no question of resigning from the society as petitioner is very much the President of the Committee of Management. All the contentions to the contrary are baseless hence denied to then knell."

29. From bare reading of the aforesaid pleadings, it is clear that the petitioners have deliberately avoided to reply the contents regarding forming of a new Society by the petitioner no. 2 and this silence amounts to admission of the contents that have stood undenied.

30. In view of the above findings of the Assistant Registrar Societies to the effect that the petitioner had voluntarily tendered his resignation and did not contest the same for the pretty long time from 2006 to 2011, nor there is any objection to that effect filed by the petitioner Shamim Ahmad available on record, appears to be correct and cannot be termed to be perverse and are hereby upheald.

31. Coming to the second question whether the Assistant Registrar Societies should have referred the matter in issue to the prescribed authority under Section 25(1) of the Societies Registration Act, instead of deciding the same, I would like to first discuss as to whether the dispute regarding continuance in office is genuine or not. If it is genuine it shall have bearing upon the subsequent elections going to the root of the validity thereof, I would be holding that matter did deserve reference, however, in case if it is found that dispute is not genuine, and I find that the dispute cannot be clothed with genunity and the dispute being relevant only with reference to a particular point of time having no bearing on the issue of elections, a reference would not be necessary as it would be only a mere academic issue.

32. Learned counsel for the petitioner has placed heavy reliance upon the judgment of this Court in the case of Shri Sarveshwari Samooh and another Vs. State of U.P. and others 2005 (3) ESC (All) 2006 in which vide paragraph-15 it is held thus:

"Even otherwise, in the opinion of the Court there is a serious dispute between the parties with regard to the fact as to whether the petitioner has rendered his resignation from the office of President of the registered society and therefore, lost all rights to constitute the office bearer. As a necessary corollary, which follows is as to whetehr Baba Sambahv Ram was appointed as the president and, as such, is entitled to constitute his office bearers as per the elections dated 14th July, 2003. In the opinion of the Court the dispute necessarily pertains to continuance of office bearers of he registered society. Such a dispute can be subject matter of adjudication under Section 25 (1) of the Societies Registration Act, 1860 and the Assistant Registrar or the Registrar has no jurisdiction to decide such a dispute. The legal position has been settled in that regard by this Court in the judgment of Committee of Management, Shaoul Uloom Educational Society, Karmaini, Azamgarh and another v. Commissioner, Azamgarh Division Azamgarh and others, 2005 (1) AWC 580."

33. There are no two opinions about the legal position held in the above judgment but the question is, as to whether in the given facts and circumstances of the case, the aforesaid principle of law would be attracted or not and whether any reference, if is technically made, would only be a futile to exercise and would be more academic than substantial.

34. So far as the elections of the committee of management are concerned, the power vested with the general body of the Society. It is factually admitted to the parties that in the present case while the petitioner no. 2 was holding the post of President in the year 2005, Najmuddin Ahmad, respondent no. 3 was the Manager/ Secretary and Tufail Ahmad was the Vice-President. Except for the petitioner no. 2 nobody else resigned from the committee of management and the meetings that were held to fill up the vacancy, on account of the resignation, to hold the election for the casual vacancy was presided over by Tufail Ahmad and the elections were held in which Tufail Ahmad was again elected as vice-president and Riyaz Ahmad was elected as President.

35. Meetings were held and conducted by the general body of the Society and was not disputed by any members of the Society at any point of time except by the petitioner no. 2 in the year 2011. Even Jalaluddin who claims to be new Manager, and had filed objections on 24.5.2006, did not file any further objection nor, any objection was filed to the registration of the list of office bearers on 7.1.2006 nor, any writ petition was preferred before the High Court.

36. Section 25 (1) of the Societies Registration Act also provides that ¼ members of the Society may make a reference before the prescribed authority against the election but even that was not done and, as a matter of fact, till 23rd September, 2011 the committee of management of the Society remained undisputed and even the renewal granted to the Society on the basis of papers forwarded by the third and fourth respondents was never disputed. None of the members of the committee of management except Shamim Ahmad, who had resigned from the post of President filed any affidavit or application before the Assistant Registrar in support of the claim set up by Shamim Ahmad.

37. A person who had resigned in the year 2005 and since he had done it voluntarily and has formed a new Society remained silent about the affairs of the present Society for nearly five years and all of a sudden put up an objection on 23rd September, 2011, possibly because new elections had become due. The petitioner set up a claim also on a new committee of management of which he sought registration under Section 4A of the Societies Registration Act, failed to provide any details as to how he held the election and what happened to the committee of management of the respondent that continued to be registered. He also has failed to demonstrate as to how he could convene the meeting of the Society when none of the office bearers of the existing committee of management stood up by his side. He only claimed that he continued to be the President and so he enjoyed all the powers.

38. The Court fails to understand as to when the petitioner no. 2 had himself resigned and a new committee of management had been registered with fourth respondent as the President in his place and he himself does not dispute the position of the third respondent, as far as the existing committee of management is concerned, how can he set up a claim to have continuance as the office bearer of the Society in question. Thus the claim set up by the petitioner does not have any traces of genuineness and, therefore, no reference was required under Section 25 (1) of the Societies Registration Act and the Assistant Registrar did not fell in error in doing so.

39. The Assistant Registrar Societies is not necessarily required to refer the dispute in every case to the prescribed authority. He being a executive officer can always exercise his power in respect of the affairs of the Society and if the dispute is frivolous, as I have found also in the present case, he is under no obligation to refer the matter to the prescribed authority.

40. The Apex Court in the case of Committee of Management, Gyan Bharti Shiksha Sadan Karvi and another v. State of U.P. and others, 2015 (1) ALJ 165, vide paragraphs 30 to 34 of the judgment has held thus:

"30. A close look at the scheme of the Societies Registration Act, as applicable in the State of Uttar Pradesh, makes it manifest that the Registrar has been given wide power, such as, under Section 3A of the Societies Registration Act for renewal of certificate of registration; under Section 4 to register the annual list of the Managing body; under Section 4A (U.P. amendment) intimation to the Registrar regarding the change etc. in rules; under Section 12-A power to approve change the name of the Society; under Section 12-B in respect of change of name and object of the Society; and, under Section 12-D power to cancel registration in the certain circumstances. Under Section 22 the Registrar is empowered to call for information, and under Section 23 he can direct the society to furnish its account or copy of the statement of receipts and expenditure for any particular year duly audited by the Chartered Accountant. Section 24 also empowers the Registrar in directing the investigation of affairs of the Society and under Section 25 he has power to refer the dispute of the election or for continuance of the office-bearers to the Prescribed Authority.

31. The powers conferred under the aforesaid Sections clearly demonstrate that the Registrar is the principal Executive Officer to exercise his power in respect of the affairs of the Society. Thus, his power under Section 4 cannot be divested only on the ground that some frivolous dispute is raised in respect of the election or continuance of the office-bearers. If there is a dispute of two parallel groups of the society, the Registrar can always examine whether the persons of rival group, who have raised the dispute, are member of the society or not. He can record his prima facie satisfaction in this regard. If he is satisfied that the dispute is genuine and it is a dispute inter se between the members of the society, then he can refer the dispute to the Prescribed Authority. But merely on lite basis of fake documents if election has been set up and the matter is referred to the Prescribed Authority, it can cause serious prejudice to the institution established by the Society and the Society itself.

32. In the State of Uttar Pradesh, under Section 25 of the Societies Registration Act the State Government has notified the Sub-Divisional Magistrates/Sub-Divisional Officers as the Prescribed Authority. As has been observed, the Sub-Divisional Magistrates/Sub-Divisional Officers are the Executive Officers and apart from the administrative work, they also hold the revenue Courts under the provisions of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and similar other functions under different statutes. In a district the number of the Sub-Divisional Magistrates is limited. Therefore, generally the Prescribed Authority takes considerable long time to decide the dispute of the office-bearers of the Society. In large number of cases it is found that the dispute becomes infructuous as the term of the office-bearers of the society is normally 3-5 years. This Court is also burdened with large number of writ petitions seeking direction to the Prescribed Authority to decide the dispute expeditiously.

33. After the judgment of Unnikrishnan, J.P. and others v. State of A.P., (1993) 1 SCC 645, the role of the societies have grown manifold. Now all the professional colleges can be established only by a society. The Supreme Court in the case of Illachi Devi (D) by L.Rs. and others v. Jain Society, Protection of Orphans India and others, AIR 2003 SC 3397, has underlined the requirement of change in the Societies Registration Act by the Parliament in the following words:

"53. Before parting, however, we may add that growing needs of the country in this field of law appears to have not received sufficient attention of the Parliament. Existing law is required to be suitably amended to meet the requirement of changing scenario.

54. A Society registered under the Societies Registration Act in the changed scenario play an important role in society. They discharge various functions which are beneficial to the society. They run educational and other institutions. They sometimes work in public interest and act in aid of State functions. They have their own accountability. They sometimes incur liability. Public Interest Litigations filed by Societies are galore."

34. Regard may be had to the fact that in the Societies Registration Act Section 25 has been inserted by the Uttar Pradesh Amendment. There is no corresponding Section in other States. Thus, the dispute of the office-bearers are decided under Section 4 of the Societies Registration Act by the Registrar on the basis of prima facie satisfaction, as he has to deal with them for performing his administrative functions under the various provisions of the Act, as detailed above. The aggrieved parties are left open to adopt the other remedies available to them such as civil suit. "

41. Thus, if in the prima facie satisfaction of the Assistant Registrar the dispute if not found to be genuine, he need not refer the same and he has rightly done so in the present case.

42. Besides above, it is necessary to discuss in this case also as to whether a dispute of continuance of office-bearers as referred under Section 25 (1) of the Societies Registration Act vide U.P. amendment means necessary reference in those cases where a dispute is raised after the term of the committee of management is over in respect of office-bearer who has not been subsequently elected. The term and expression continuance in office as office-bearer of such society are only taken to be in reference to the term in continuance of office-bearer who is removed from his office in mid-term and approaches for reference through the Registrar and similarly if any dispute about resignation arises that can also be referred to while the term is in continuance. The word 'continuance' is referable to the term going on and controversy relating thereto. If dispute, therefore, is raised while the term is continuing it needed adjudication under Section 25 (1) of the Act, 1860 and no dispute can be permitted to be raised after the term is over.

43. There is a justification in my above interpretation to the provision because election can always be a question of challenge before the prescribed authority so if an election has been held of an office-bearer that can also be questioned but where the term has run out of an office-bearer and subsequently elections have been held and have come to be recognized and those elections were never challenged, in my considered opinion, a person cannot ask for a reference to decide an issue of resignation or removal from office of committee of management that was prior to the one continuing under the unchallenged election. This is also not the intendment of the legislature while incorporating the aforesaid provision and if it is interpreted otherwise, then it would be leading to an endless controversy and dispute.

44. In the present case neither ¼ members have made any reference to the prescribed authority nor, the petitioner no. 2 himself raised any objection before the Assistant Registrar Societies during continuance of the term of the erstwhile committee of management of which he was, admittedly, an office bearer prior to his resignation.

45. Another argument has also been advanced before this Court that that answer to the issue, if in affirmative, in favour of the petitioner, it would be rendering all the subsequent elections bad and, therefore, reference was needed in the case.

46. In the case of Shri Sarveshwari Samooh and another Vs. State of U.P. and others 2005 (3) ESC (All) 2006, relied upon by learned counsel for the petitioners the aggrieved person was continuing in office while the new list of the office bearer was presented for registration and the question arose whether the claim set up was genuine or not and whether the President had resigned on 29 September, 1997 whereas the petitioner claimed to have latter on delegated the power of the President of the Society and, therefore, any election held on the strength of such letter and a new committee of management was held to be bad.

47. In this case there was no such objection ever filed for whole term of the committee of management from January,2006 to January 2011. Even from the perusal of the bye-laws, it is clear that the power vests with the Society to elect the office bearer of the Society and Vice-President who can always preside over the meeting in the absence of the President. The membership of the Society is not disputed as such nor, the existing committee of management, at the relevant point of time was questioned. The committee of management as duly elected by the general members of the Society came to be recognized.

48. The question whether the petitioner if not resigned and would have been elected again, would hardly have any relevance in the present context. The petitioner's membership is not in issue as he happened to be as a life member as the life member he can again be elected as office bearer. Therefore, in my considered opinion a reference in this case would be only an academic one and would not have any bearing, as far as the subsequent elections are concerned, and also shall not go to the root of validity of the subsequent elections. The argument therefore, of the learned counsel for the petitioner that in this case reference would necessarily required to be made, is rejected.

49. In view of the above, I do not find any good ground to interfere with the order passed by the Assistant Registrar.

50. Records are handed over to the learned Standing Counsel.

51. Writ petition fails and is, accordingly, dismissed with no order as to costs.

Order Date :- 3.7.2019/Nadeem Ahmad