Omaxe Residency-I Resident ... vs V.C.Lucknow Development ...
2019 Latest Caselaw 526 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 24							         
 

 
Case :- MISC. SINGLE No. - 30978 of 2018
 

 
Petitioner :- Omaxe Residency-I Resident Welfare Association Thru.Secy.
 
Respondent :- V.C.Lucknow Development Authority U.P. Arartment Act.Lko&Ors
 
Counsel for Petitioner :- Prafulla Kumar Yadav,Diwakar Singh Kaushik,Sandeep Dixit
 
Counsel for Respondent :- C.S.C.,Anoop Kumar,Gaurav Mehrotra,Mukund Tewari,Puneet Chandra,Ratnesh Chandra,Tushar Mittal
 

 
Hon'ble Irshad Ali,J.

(C.M.A. No.20294/2019-Application for impleadment)

Reply to the objection and rejoinder affidavit filed by the opposite party to the impleadment application, today in Court, are taken on record.

Heard learned counsel for the parties on the impleadment application.

Taking into consideration, the reasons assigned in the affidavit filed in support of the application, reply to the impleadment application and its objection, this Court is of the opinion that respondent-Committee of Management, Omaxe Residency-I, Resident Welfare Association is a necessary party to be impleaded in the array of respondents.

In view of the above, the application is allowed.

Learned counsel for the petitioner is permitted to carry out necessary incorporation during the course of the day.

Order Date :- 6.3.2019

Gautam

Case :- MISC. SINGLE No. - 30978 of 2018

Petitioner :- Omaxe Residency-I Resident Welfare Association Thru.Secy.

Respondent :- V.C.Lucknow Development Authority U.P. Arartment Act.Lko&Ors

Counsel for Petitioner :- Prafulla Kumar Yadav,Diwakar Singh Kaushik,Sandeep Dixit

Counsel for Respondent :- C.S.C.,Anoop Kumar,Gaurav Mehrotra,Mukund Tewari,Puneet Chandra,Ratnesh Chandra,Tushar Mittal

Hon'ble Irshad Ali,J.

(C.M.A. No.26816/2019-Application for amendment)

Heard learned counsel for the parties.

The reasons assigned in the affidavit filed in support of the application are sufficient.

In view of the above, the application is allowed.

Learned counsel for the petitioner is permitted to carry out necessary incorporation during the course of the day.

 
Order Date :- 6.3.2019
 
Gautam
 
Court No. - 24							        A.F.R.
 

 
Case :- MISC. SINGLE No. - 30978 of 2018
 

 
Petitioner :- Omaxe Residency-I Resident Welfare Association Thru.Secy.
 
Respondent :- V.C.Lucknow Development Authority U.P. Arartment Act.Lko&Ors
 
Counsel for Petitioner :- Prafulla Kumar Yadav,Diwakar Singh Kaushik,Sandeep Dixit
 
Counsel for Respondent :- C.S.C.,Anoop Kumar,Gaurav Mehrotra,Mukund Tewari,Puneet Chandra,Ratnesh Chandra,Tushar Mittal
 

 
Hon'ble Irshad Ali,J.
 

1: Heard Sri Sandeep Dixit and Sri Diwakar Singh Kaushik, learned Advocates for the petitioner, Sri Mukund Tewari, learned Advocate on behalf of the respondent No.1, Sri Pankaj Patel, learned Standing counsel on behalf of the respondent No.2 and to Sri Gaurav Mehrotra, learned Advocate on behalf of the respondent No.5.

2: Factual matrix of the case is that there is a society registered under Societies Registration Act, 1860 under the name of Omaxe Residency-I Resident Welfare Association, Arjunganj, Gomtinagar Extension, Sector-7, Lucknow.

3: Initially the society was registered on 30.3.2017 and is valid till 29.3.2022. There is a registered bye-law prescribing to manage the affairs of the society inasmuch as holding of election of the Committee of Management managing the affairs. In the Memorandum of Association, at the time of registration of the society, a list of office bearers of the Committee of Management of the society was filed before the Deputy Registrar for its registration, wherein petitioner was shown to be elected Secretary of the Committee of Management of the society.

4: In the writ petition, it has been stated that after registration of the society vide order dated 30.3.2017, the Committee of Management took charge on 1.7.2018. Under Clause 26 of the registered bye-laws of the society, it has been provided that the term of the office bearers of the Committee of Management is one year and they will continue to hold the office till the elected office bears assume the charge of the office.

5: A complaint was lodged by the members of the general body of the society before the Deputy Registrar on 10.7.2018 that the office bearers of the Committee of Management are illegally continuing. Their term has expired, therefore, an order be passed in exercise of power under Section 25 (2) for holding the fresh election of the Committee of Management.

6: On the complaint lodged, the Deputy Registrar passed an order on 10.7.2018, whereby direction was issued to the Joint Secretary of the Lucknow Development Authority (in short, "L.D.A.") to pass an order to hold the Committee of Management to be time barred and proceed further to hold election of the Committee of Management in exercise of power under Section 25 (2) of the Societies Registration Act, 1860.

7: In pursuance to the order passed by the Deputy Registrar, an election schedule was published notifying the election proposed to commence w.e.f. 29.10.2018 till 1.12.2018, the date of declaration of the election.

8: The petitioner, feeling aggrieved, has filed this petition challenging the order dated 10.10.2018, notifying the election contained as Annexure-1 and 2 to the writ petition.

9: Sri Gaurav Mehrotra, learned Advocate on the very first day, moved an application for impleadment and raised preliminary objection in regard to the maintainability of the writ petition, challenging the election process, on the ground that once the process of election has been started, the writ petition is not maintainable, the remedy available to the petitioner is to file a civil suit after completion of the election of the Committee of Management. He further pointed out that the election proceeding has been initiated in pursuance to an order passed by the Deputy Registrar on 10.7.2018, whereby direction was issued to the Joint Secretary of the L.D.A. to exercise his power holding the Committee of Management to be time barred and further proceeded to hold election. Thereafter, the petitioner has moved an application for amendment in the writ petition challenging the order of the Deputy Registrar dated 10.7.2018.

10: Assailing the order passed by the Deputy Registrar, the submission of learned counsel for the petitioner is that the Deputy Registrar while passing the order dated 10.7.2018 has exceeded his jurisdiction. The power provided under Section 25 (2) can only be exercised by the Deputy Registrar himself in holding that the Committee of Management has become time barred then to convene the meeting of the general body or authorize to a competent authority to convene the meeting to hold the election.

11: Submission of learned counsel for the petitioner is that here in the present case, the Deputy Registrar, in spite of exercising that power, has delegated it to the Joint Secretary of the L.D.A., therefore, the order being wholly without jurisdiction is not sustainable in law.

12: He next submitted that the election of the Committee of Management was scheduled to be held on the basis of an order which is wholly without jurisdiction, therefore, the election held in pursuance thereof cannot be termed to be valid election, therefore, the entire proceeding is not sustainable in law and is liable to be set aside.

13: He further submitted that the Committee of Management assumed charge on 1.7.2018, therefore, the Committee of Management will continue to hold the office till 30.6.2019, therefore, his submission is that even in case the Deputy Registrar proceeded to hold himself, that the Committee of Management has become time barred, the order cannot be passed holding a committee to be time barred, who has assumed the charge on 1.7.2018.

14: He next submitted that U.P. Apartment (Promotion of Construction, Ownership & Maintenance) Act, 2010 and the rules framed thereunder have overriding effect notwithstanding the registration of the Resident Welfare Association under the Societies Registration Act, 1860. He placed reliance upon a Division Bench judgment in the case of Grand Omaxe Apartment Owners Association Vs. New Okhla Industrial Development Authority and others passed in Civil Misc. Writ Petition No.39150 of 2015 and submitted that in view of the law laid down by the Division Bench in the aforesaid judgment, the power exercised by the Deputy Registrar is wholly illegal and cannot sustain for a minute.

15: In support of submission, learned counsel for the petitioner placed reliance on certain judgments which are as follows:

(i) Harish Chandra Gupta Vs. Registrar Firms, Societies and Chits and others; 1990 AWC 1246

(ii) Dharm Raj Singh Vs. State of U.P. and others; Special Appeal No.246 of 2013

(iii) Dayal Chand Jain Vs. Assistant Registrar Firms, Societies and Chits, Allahabad and others; 2008 (2) UPLBEC 1921

16: His next submission is that the Deputy Registrar does not have power to transfer the proceeding from one Deputy Registrar to another Deputy Registrar, even Registrar cannot do this. On the point, he placed reliance in the case of Jai Bahadur Singh Vs. State of U.P. and others; 2016 (2) ADJ 270.

17: Sri Gaurav Mehrotra, learned Advocate appearing on behalf of the newly impleaded respondent No.5 submitted that by means of the present writ petition, the petitioner has challenged the process of election initiated by publishing it intimating his members of the general body of the society to participate in the election. The writ petition against an election process is not maintainable.

18: Sri Gaurav Mehrotra, learned Advocate next submitted that in regard to the order passed on 10.7.2018, the petitioner was aware of, in spite of that, he acquiesced in the matter and did not come forward to challenge the same, therefore, the same cannot be challenged by way of amendment application after raising preliminary objection on the said ground. He further submitted that the Deputy Registrar in exercising power under Section 25 (2) has not committed error in law. Actually, the order is not happily worded, but it means that the Deputy Registrar has held that the committee has become time barred, therefore, he directed to the Joint Secretary of the L.D.A. to hold the elections, therefore, the order is a just and valid order and is not liable to be interfered by this Court.

19: He further submitted that the Committee of Management of the society cannot be permitted to continue for indefinite period. If the term of the committee has expired, then in view of the Full Bench and Division Bench judgment of this Court, the election should be held within a reasonable period, thus, his submission is that there is no illegality in holding the election of the Committee of Management, if the petitioner is aggrieved by the election he has remedy to approach the civil court for declaration of his right.

20: He next submitted that once the election held has been duly recognized by the Deputy Registrar and the first meeting of Committee of Management has been held, the petitioner has not chosen to challenge the order of recognition granted in favour of the newly impleaded respondent No.5, then the writ petition deserves to be dismissed on this ground alone.

21: He next pointed out that in the reply of the impleadment application in paragraph 25, the petitioner has stated that it is the letter issued by the Deputy Registrar and it is not in the form of order impugned, there is no requirement to challenge the same before this Court, thus, his submission is that this clearly demonstrates that the petitioner deliberately acquiesced in the matter therefore, the petitioner cannot be granted liberty to challenge the same.

22: In support of his submission, Sri Gaurav Mehrotra, learned Advocate relied upon the following judgments:

(i) Union of India Vs. Ibrahim Uddin & another

(2012) 8 SCC 148

(ii) Vijay Kumar Talwar Vs. Commissioner of Income Tax

(2011) 1 SCC 673

(iii) P.H. Pandian Vs. P. Veldurai & another

(2013) 14 SCC 685

(iv) Mundrika Singh Yadav Vs. Shiv Bachan Yadav & others

(2005) 12 SCC 211

(v) Kashi Nath Mishra Vs. Vikramaditya Pandey & others

(1998) 8 SCC 735

23: Sri Mukund Tewari, learned Advocate appearing on behalf of the L.D.A. submitted that the writ petition is liable to be dismissed on the ground that the petitioner has not impleaded the necessary party in the writ petition, therefore, the same should be dismissed for non-joinder of necessary party. In support of his submission, he has pointed out that the election has been held and a committee has been duly elected by its members which has been accorded recognition, therefore, the petitioner would have engaged the necessary party in the writ petition and to challenge the order of recognition to the election held in pursuance to the order of the Deputy Registrar dated 10.7.2018.

24: Sri Mukund Tewari, learned Advocate next submitted that while challenging the election schedule the petitioner had not challenged the order passed by the Deputy Registrar on 10.7.2018 and 10.8.2018, therefore, by means of amendment application, the same cannot be challenged. Once the election has been held and has been accorded recognition, the petitioner has remedy to challenge the same by filing a civil suit before the competent court of law. He placed reliance upon Section 25 (2) and pointed out that while passing the order on 10.7.2018, power given under Section 25 (2) of the Societies Registration Act, 1860, the order dated 10.7.2018 was passed. The Deputy Registrar has held that the committee has become time barred, therefore, directed to hold election of the Committee of Management of the society by publishing the election schedule and by sending the agenda notices to its members, thus, his submission is that the order does not suffer from any infirmity or illegality and is a just and valid order.

25: Sri Mukund Tewari, learned Advocate for the L.D.A., in support of his submission, placed reliance upon a judgment of this Court rendered in the case of Resident Welfare Association Vs. State of U.P. and others passed in Writ-C No.42123 of 2015, decided on 16.10.2015.

26: Learned Standing counsel appearing on behalf of the respondent No.2 submitted that although the order is not happily worded, but intention of the Deputy Registrar is that the Committee of Management has become time barred, therefore, the order dated 10.7.2018 is just and valid order and does not suffer from any infirmity or illegality. If the petitioner is aggrieved of holding of election and recognition, he has remedy to approach the competent civil court for its redressal, thus, he submits that the writ petition challenging the election schedule and the order of the Deputy Registrar is liable to be dismissed on the ground that the petitioner has an alternative remedy to approach the civil court to challenge the same.

27: Learned Standing counsel further pointed out that in spite of repeated letters sent to the office of the Deputy Registrar on 23.10.2018, 17.11.2018 and 19.1.2019, nobody turned up to file the counter affidavit in the matter, therefore, he is not able to make proper submission to support the order of the Deputy Registrar dated 10.7.2018.

28: After having heard the rival contentions of the learned counsel for the parties, I perused the material on record and the law report relied upon.

29: To resolve the controversy, provisions of Section 25 (1) and Section 25 (2) are relevant to be taken into consideration, thus, the same is quoted below:

"25. Power to make rules.--

(1) The Government may make rules for carrying out the purposes of the Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may prescribe--

(a) the maintenance of the register of societies and other books, if any, by the Registrar;

(b) the forms under which the Registrar shall issue certificates of registration of a society, change of name, etc;

(c) the forms and notices under which every society shall intimate the Registrar regarding the amendment to its memorandum or rules and regulations, and;

(d) any other matter which is to be or may be prescribed."

30: In regard to the first submission advanced by learned counsel for the petitioner Sri Sandeep Dixit that the power exercised by the Deputy Registrar in passing the order dated 10.7.2018 is wholly without jurisdiction, this Court proceeded to examine the order dated 10.7.2018 in the light of the provisions contained under Section 25 (2) exercised by the Deputy Registrar.

31: On perusal of the order, it is evident on the face of it that this is not an order passed in exercise of power under Section 25 (2), it is a letter to the Joint Secretary, L.D.A. to pass an appropriate order holding the Committee of Management to be time barred and then to hold election. On perusal of Section 25 (2) of the Societies Registration Act, 1860, it is evident on the face of it that the intent of Section 25 (2) is that the powers shall be exercised by the Deputy Registrar alone on coming at conclusion that the term of the Committee of Management has expired. The Deputy Registrar does not have power to delegate it to the Joint Secretary, L.D.A. to pass an order holding the Committee of Management to be time barred and then to proceed election of the Committee of Management, therefore, the preliminary objection raised by Sri Gaurav Mehrotra, learned Advocate and other Advocates appearing on behalf of the respondents that once the election schedule has been published, the writ petition cannot be maintained is concerned, this Court is of the opinion that it is a serious concern of this Court that while examining the preliminary issue, the order under which the election proceeding has been initiated, is to be taken into consideration. On perusal of the provisions referred hereinabove and the order impugned dated 10.7.2018, it is crystal clear that the power exercised by the Deputy Registrar under Section 25 (2) was wholly without jurisdiction, he cannot delegate his power to the Joint Secretary, L.D.A. to exercise the power given to the Deputy Registrar under Section 25 (2), therefore, the submission advanced by Sri Gaurav Mehrotra, learned Advocate on the point of maintainability of the writ petition that the election process started cannot be interfered in the writ petition appears to be baseless and cannot be accepted.

32: It is recorded that the election process was initiated on the basis of an order which was wholly without jurisdiction, therefore, the submission advanced by Sri Sandeep Dixit, learned Advocate has force in law and the argument advanced by Sri Gaurav Mehrotra, learned Advocate and other counsel for the respondents fall down.

33: It is further recorded that once the basis of initiation of proceeding of election is gone, the validity of the election held in pursuance thereof cannot be termed to be valid election. The order impugned dated 10.7.2018 shall be read as it is worded. On its perusal, it is evident on the face of it that it is not an order in exercise of power under Section 25 (2), it is a direction to the Joint Secretary, L.D.A. to exercise power under Section 25 (2), which cannot be done by the Deputy Registrar in exercise of power under Section 25 (2), therefore, the order cannot be held to be valid order, thus, the election process started in pursuance thereof cannot be validated in the eyes of law.

34: In the case of Harish Chandra Gupta (Supra), the challenge was that in exercise of power under Section 25 (2) of the Societies Registration Act, 1860, the election schedule was published without deciding the authenticity of authentic voter list, wherein this Court has held that in exercise of power under Section 25, if the dispute has been decided by the prescribed authority and the election has been set aside or an office bearer is held no longer to continue in office or where the Registrar is satisfied that any election of office bearer of the society has not been held within the time specified in the rules of the society, he may call meeting of the general body of the society for electing such office bearer or office bearers and such meeting shall be prescribed over and to be conducted by the Registrar or by any officer authorised by him in this behalf. While considering the issue that to which extent the Registrar can delegate his functions, this Court recorded that the power under Section 25 (2) can be exercised when (i) an election has been set aside or an office bearer has been held disentitled to hold office in proceeding under Section 25 (1) and (2) when the Registrar is satisfied that the time specified under the rules of the society for holding election has expired and no election has been held. First part of the order fairly stipulates that it is the prescribed authority and the Registrar to exercise their power to hold the election as invalid in exercise of power under Section 25 (1) and second, the Registrar has to record his own satisfaction that the Committee of Management has become time barred.

35: In regard to the convening of meeting to hold election, the Registrar has been empowered to delegate his power to convene the meeting and not otherwise.

36: In the case of Dharm Raj Singh (Supra), this Court on the basis of facts of the case has recorded that once the election program has been published by the outgoing Committee of Management within the time and due to some reason, it is postponed then the Committee of Management cannot be termed to be time barred and has been debarred from holding the elections and held that invoking the provisions of Section 25 (2) in the aforesaid circumstances cannot be justified in any manner.

37: In the case of Dayal Chand Jain (Supra), the power of Assistant Registrar exercised under Section 25 (2) was under consideration and this Court after examining the material on record and the rules of the bye-laws, has held that the election was held without calling any meeting as prescribed under the aforesaid provision. This Court found that exercise of power is contrary to law and the same was quashed with the direction to the Assistant Registrar to announce fresh program in accordance with the bye-laws of the society keeping in view the observations made in the judgment.

38: The last judgment which was relied upon by the learned counsel for the petitioner in the case of Jai Bahadur Singh (Supra) is in regard to the delegation of power from one Deputy Registrar or Additional Registrar or Joint Registrar or Assistant Registrar and transfer the same to any other Deputy Registrar, Additional Registrar, Joint Registrar Registrar or Assistant Registrar, wherein this Court has held that the Registrar does not have power to delegate jurisdiction of one Assistant Registrar to another Deputy Registrar.

39: In the case relied upon by Sri Gaurav Mehrotra, learned Advocate of Union of India Vs Ibrahim Uddin (Supra), the issue involved was that a suit for declaration was filed without seeking possession, wherein adducing of additional evidence whether it is admissible is the discretion of the appellate court to allow production of the additional evidence wherein, it has been held that it can be done in exceptional circumstances.

40: In the case of Vijay Kumar Talwar (Supra), the dispute was that there was a partnership in the firm named and styled as M/s Des Raj Tilak Raj, having its business at Delhi with the branch at Kolkata, the said partnership was dissolved w.e.f. 1.4.1982. As per the dissolution deed, the assessee took over the business of the Kolkata branch of the erstwhile firm. Thereafter, from 21.10.1982 the assessee started a proprietary concern by the name of M/s Des Raj Vijay Kumar. A search took place on 27.5.1983 at the assessee's premises during which certain incriminating documents were recovered and seized. During the course of assessment proceeding for the assessment year 1983-84 for which the previous year ended on 31.3.1983 the Assessing Officer examined seized the record. One of the registers so examined, revealed cash receipts of Rs.3,49,991/- in the name of 15 persons most of which were purportedly received from April 1982 to October 1982. Thereafter, assessment was made by the Income Tax Department. Aggrieved by the assessment, appeal was filed before the Commissioner of Income Tax, New Delhi which was dismissed.

41: The question was that whether the question of law involving in the case can be decided without foundation in the pleadings wherein the Hon'ble Supreme Court held that after there is a question of law arising from the order of tribunal, there should be pleadings to challenge the same.

42: In the case of P.H. Pandian (Supra), the matter was regarding fresh elections of Tamil Nadu Legislative Assembly. The appellant was a candidate from 220, Charenmahadevi assembly constituency of Tamil Nadu Legislative Assembly at the elections held in 1996, he had represented that constituency according to averments made in the election petition, for four consecutive terms between 1977-1991. In the election held on 27.4.1996, he lost to respondent No.1. He filed election petition challenging the election of the return candidate, respondent No.1 mainly on two grounds, firstly, that the respondent was a government contractor who had a subsisting contract with the panchayat union and the State Government and was, therefore, disqualified to be chosen as a member of the Assembly under Section 9-A of the Representation of the People Act, 1951 and secondly, the returned candidate had incurred or authorised expenditure in excess of the limits prescribed under the Act and had, thus, committed a corrupt practice under Section 123 (6) of the Act, wherein after considering the material on record, the Hon'ble Supreme Court declined to consider on the ground that fresh elections have already took place and the exercise of examining the challenge basis of Section 9-A of the Act would only be now of a academic interest..

43: In the case of Mundrika Singh (Supra), issue was that the term of the legislative assembly was over, fresh elections were held, therefore, the relief claimed was declined by the Supreme Court.

44: Likewise, in the case of Kashi Nath Mishra (Supra), the election petition was dismissed in challenge of an election of the second respondent to the array of parties and U.P. Legislative Assembly through Ballia constituency.

45: In regard to the judgment relied upon by Sri Gaurav Mehrotra, learned Advocate, once the very basis of the impugned order dated 10.7.2018 has been held to be wholly without jurisdiction, the judgments relied upon are distinguishable in nature and are not applicable to the present facts and circumstances of the case.

46: Sri Mukund Tewari, learned Advocate placed reliance upon a judgment in the case of Resident Welfare Association (Supra), wherein the issue was in regard to ensuring free and fair elections in accordance with the prescribed model bye-laws, wherein this Court after examining the case with the election/ constitution of the Board of Management has recorded that it shall be held under the supervision of the competent authority or the officer nominated by him in this behalf.

47: On examination of the judgments relied upon by the learned counsel for the parties, this Court is of the view that once very basis of holding an election is based on illegal order, the consequential proceedings cannot be sustained in the eyes of law.

48: The ratio of the judgment relied upon by the learned counsel for the respondent Sri Gaurav Mehrotra does not attract to the present facts and circumstances of the case. Herein, a simple controversy is involved that whether the Deputy Registrar has exercised his power under Section 25 (2) in consonance with the provisions contained therein or not. The order impugned clearly demonstrates that the Deputy Registrar in utter disregard of the provisions contained under Section 25 (2) has exercised his power.

49: In view of the above, the impugned orders dated 10.7.2018 and 10.10.2018 being wholly without jurisdiction and being contrary to the provisions contained under Section 25 (2) is hereby set aside. The elections held in pursuance to an illegal order are also set aside and all consequential proceedings are declared to be null and void and the Committee of Management prior to passing of the impugned order shall continue to manage the affairs of the society till the next election is held in accordance with the bye-laws of the society.

50: The Committee of Management is directed to hold the election of the Committee of Management afresh amongst the valid members of the general body of society within a period of 2 months from the date of production of certified copy of this order.

51: With the aforesaid direction, the writ petition succeeds and is allowed with the cost of Rs.25,000/-, which is payable by the Deputy Registrar from his salary to the Mediation Centre of this Court.

Order Date :- 6.3.2019

Gautam