Dr. Shashi Kant Dixit vs State Of U.P. And 3 Others
2022 Latest Caselaw 21354 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on: 01.12.2022
 
Delivered on: 16.12.2022
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 692 of 2022
 

 
Appellant :- Dr. Shashi Kant Dixit
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Appellant :- Jitendra Kumar Srivastava,Sr. Advocate
 
Counsel for Respondent :- C.S.C.,Dr. Pradeep Kumar Mishra
 

 
Hon'ble Manoj Misra,J.

Hon'ble Vikas Budhwar,J.

(Delivered by Vikas Budhwar,J.)

Heard Sri Gajendra Pratap Singh, learned Senior Counsel assisted by Sri Jitendra Kumar Srivastava for the appellant, Sri Radha Kant Ojha, learned Senior Counsel assisted by Sri Pradeep Kumar Mishra for respondent (writ petitioners) and learned Standing Counsel who appears for respondent nos. 1 and 2.

This intra-court appeal is against the judgment and order dated 20.10.2022 of the learned Single Judge dated 20.10.2022 in Writ- C No. 20203 of 2022 whereby the writ petition of the writ petitioners (i.e. respondent nos. 3 and 4) was allowed, the order dated 28.06.2002 passed by Assistant Registrar Firm Societies and Chits, Varanasi Mandal, Varanasi (i.e. respondent no. 2) was quashed with a direction to refer the matter to the prescribed authority for deciding the rival claims under Section 25 of the Societies Registration Act, 1860.

Before coming to the issues involved in this appeal, it will be apposite to give a brief description of the society in question and the various provisions governing its administration.

To begin with there is an association by the name of Shree Arya- Mahila Hitakarini Mahaparishad (The All - India Hindu Ladies' Association) (in short the Association) established in 1919 which has been registered under the provisions of the Societies Registration Act, 1860 (in short 1860 Act). The Association has its own Memorandum of Association (in short MOA). As per Clause- 2 thereof, the head quarters of the Association is located at Benaras with its office at Bharat Dharam Mahamandal Buildings, Jagatganj, Benaras. The Association has framed Rules and Regulations (in short the Rules) for better administration and for achieving the objects for which the Association had been established. As per Clause- 1 of the Rules and Regulations, Shree Arya-Mahila Hitkarini Mahila Parishad is the Association whose general body is known as All India Samarakshak Sabha (in short Sabha). The management as per Clause 28 of the Rules comprising of the Sabha, The All India Council (for short the Council) and Executive Committee (for short the Committee). Clause- 2 of the Rules of the Association provides for as many as seven types of members, namely (a) Distinguished Patrons, (b) Patrons, (c) Vice Patrons, (d) Life Members, (e) General Members, (f) Special Members and (g) Honorary Members.

Rights of different classes of members are provided in Clauses 12 to 27 of the Rules. Clause- 22 of the Rules of the Association provides for removal of the members of Association including a trustee in case they are found acting contrary to the interest of the Association. For the said purpose, a resolution by a majority of 3/4th of the members of the Council, present and voting, either in person or by proxy, at a special meeting of the Council, specially called for the purpose, is required. Clause-23 authorizes the Council to annul the removal or annul it subject to such conditions as it may think it to impose. Clause- 28 provides that the term of the Sabha, Council and Executive Committee shall be five years. The composition of the Sabha shall be of Distinguished Patrons, Patrons and Life Members of the Association. The management of the affairs of the Association shall vest in the Executive Committee of the Association subject to the general control and supervision of the Council of the Association. Moreover, all the properties of the Association shall vest in the trustees. The committee shall manage the different department of Association through different sub-committees appointed for the said purpose. Such sub-committees may consist of persons who are not members of the Executive Committee or of the Association. Clause- 29 provides that the meeting of the Sabha shall be held at least once in every five years or whenever considered necessary by the Chief Secretary, Joint Chief Secretary or on the request of at least seven members of Sabha in writing to the Chief Secretary to call the meeting. Clause- 30 provides that the notice of the meeting of Sabha shall be issued by the Chief Secretary or Joint Secretary or General Secretary, three weeks before the date fixed for the meeting. Clause- 31 provides for the quorum of the meeting of the Sabha which shall be twenty five, minimum seven to be present in person and the rest by Proxy. Clause- 33 provides that the affairs of the Association shall vest with the Council subject to the general control of the Sabha. Council shall consist of not less than 21 persons and not more than 31 persons. Clause- 35 provides that the member of the Council shall be elected every five years by the Sabha at its meeting specially called for the said purpose either at Varanasi, the head quarter or at any other place in India considered suitable by General President, Chief Secretary or General Secretary. Clause-37 provides that the Sabha shall consist of (a) One General President (b) Two Joint General Presidents (c) One Chief Secretary and (d) One Joint Chief Secretary. As per Clause- 38, the office bearers shall be elected by Sabha at its meeting once in every five years. Clause- 42 provides that the office bearers of the Council shall be: (a) President, (b) Two Vice Presidents, (c) One General Secretary and (d) One Joint General Secretary. Clause- 43 provides that the office bearers shall be elected by the Council from among its member so elected at the first meeting. Clause- 49 provides that the meeting of the Council shall be held at least once every year and also whenever the Chief Secretary or the Executive Committee think necessary and also whenever any five member of the Council desire to call such a meeting. The notice of the meeting may be issued by the Chief Secretary or the Joint Secretary or any office bearer of the Executive Committee. Fourteen days notice of the meeting is to be given to the members of the Council.

As per Clause - 53, the quorum of the meeting of the Council shall be eleven, five members of the Council to be present in person and rest by Proxy.

Clause- 54 provides that Committee shall consist of not less than 11 and not more than 21 members and their term shall be five years. Clause- 55 provides that two-third members of the Committee shall be elected by the Council at its first meeting in every five years and remaining one-third shall be co-opted by the members so chosen. Clause- 56 provides that the office bearers of the Committee shall be: (a) President; (b) Two Vice Presidents; (c) One Secretary; (d) One Joint Secretary; and (e) One or more Departmental Secretaries. Clause-57 provides that the office bearers of the Committee shall be elected by and from the members of the Executive Committee. Clause- 59 provides that the General Secretary, and in his or her absence the Joint General Secretary shall be authorized to receive, deposit or draw money from Banks under her or his signature. They are also authorized to represent the Association in all the matters of importance and to exercise the power of general control over the offices and all departments of the Association. Not only this, they are to represent the Association in Courts of law, either personally or through secretaries authorized by it. Clause- 61 provides for the meeting of the Executive Committee, which is to be held at least six times in a year and also whenever considered necessary by the General Secretary and also whenever any five members of the Executive Committee request the General Secretary to call the meeting.

For the sake of convenience, Clause- 2 of the Memorandum of Association (in short MOA) and relevant provisions of the Rules and Regulations, referred to above, are quoted hereinbelow:-

"Memorandum of Association

(2) The Head Quarters of the Arya Mahila Hitkarini Mahaparishad will be located at Benares and the office at the Bharat Dharm Mahamandal Buildings, Jagatganj, Benares."

"RULES AND REGULATIONS OF SHREE ARYA MAHILA HITAKARINI MAHAPARISHAD

DEFINITION

1. In these Rules, unless otherwise excluded by or repugnant to or Inconsistent with the subject or the context.

(a) The Association shall mean 'SHREE ARYA MAHILA HITAKARINI MAHAPARISHAD'.

(b) "Members" shall include various kinds of patrons and members of the Association.

(c) "Sabha" shall mean the All India Samarakshak Sabha.

(d) "Council" shall mean the All India Council of the Association.

(e) "Committee" shall mean the Executive Committee of the Association.

(f) .........................

(g) ........................"

(23) "The Council shall have power to annul the removal or annul it subject to such conditions as it may think it to impose."

(28) "There shall be an All India Samrakshak Sabha, The All India council and the executive committee the tenure of which shall be five years. The All India Samrakshak Sabha shall consist of distinguished Patrons, Patrons, and Life members of the Association. The management of the affairs of the Association shall vest in the Executive Committee of the Association subject to the general control and supervision of the all India Council of the Association. All the properties of the Association shall vest in the trustees, except such cash money as may be released by the Trustees to meet the recurring expenses of the Association. The executive Committee shall manage the different departments of the Association through different subcommittees appointed for the purpose. Such sub committees may consist of persons who are not members of the executive committee or members of the Association."

(29) "The meeting of the Samrakshak Sabha shall be held at least once in every five years or whenever considered necessary by the Chief Secretary, joint Chief Secretary or on the request of at least seven members of the Samrakshak Sabha in writing to the Chief Secretary to call the meeting."

(30) "The notice of the meeting of the Samrakshak Sabha shall be issued by the Chief Secretary or joint Chief Secretary or General Secretary, three weeks before the date fixed for the meeting."

(35) "The member of the All India Council other than the disciple of Bhagwan Maharshi Swami Gyananandji Maharaj, the representative of Sri Bharat Dharm Mahamandal, and Shree mahamaya Trust shall be elected every five years by the All India Samrakshak Sabha at its meeting specially called for the purpose either at Varanasi, the head quarter or at any other place in India considered suitable by the General president, Chief Secretary or General Secretary."

(49) "The meeting of the All India Council shall be held at least once every years and also whenever the Chief Secretary of the Executive Committee think necessary and also whenever any five member of the All India Council desire to call such a meeting. The notice of the meeting may be issued by the Chief Secretary or the Joint Chief Secretary or any office-bearer of the Executive Committee. Fourteen days notice of the meeting will be given to the members of the Council."

(59) "The General Secretary, and in his or her absence the joint General Secretary shall be authorised to receive, deposit or draw money from Banks under her or his signature. She or he shall represent the Association in all matters of importance and shall exercise the power of general control over the offices and all departments of the Association. She or he will represent the Association in courts of law, either personally or through secretaries authorised by her or him."

(61) "The meeting of the Executive Committee shall be held at least six times in the year and also whenever considered necessary by the General Secretary and also whenever any five members of the Executive Committee request the General Secretary to call the meeting. The notice of the meeting shall be issued by the General Secretary or the Joint General Secretary or Departmental Secretaries. Three days notice of the meeting shall ordinarily be given to the members but in cases of urgency 24 hours notice will be sufficient."

According to the writ petitioners last undisputed election of the Council was held in the year 2017 in which petitioner no. 2 Satya Narayan Pandey was elected as President/Chairman of the Council followed by Dr. K.P. Agarwal and Gulabadhar Singh Mishra as Vice President(s), Dr. Shashikant Dixit (appellant herein) as General Secretary, Vinod Kumar Pandey as Joint Secretary along with other office bearers. Similarly, office bearers of the Committee as also the Sabha were elected. The election proceedings pertaining to the year 2017 has been annexed as annexure- 2 to the writ and reference whereof has been given in paragraph no. 17 of the petition. According to the writ petitioner, in the year 2017 the elections were conducted on the basis of Electoral College comprising of 784 members. It is the case of the writ petitioner that the matter pertaining to the determination of the Electoral College was subject matter of reference before the prescribed authority which came to be rejected by the prescribed authority on 08.05.2022 affirming the Electoral College of 784 general body members. As the last elections were held in the year 2017 and they were due in the year 2022, so, as per the writ petitioner, certain members of the general body sent a letter to the Chief Secretary/General Secretary of the Association for preparation of Electoral College. On 26.10.2021 the second writ petitioner, who claims himself to be the President of the Council, corresponded with the appellant, who was the then General Secretary of the Association, for taking appropriate steps for determining the Electoral College. It appears that on 27.10.2021 the appellant herein published a list comprising 891 members of the general body, thereby determining the Electoral College. As, according to the second writ petitioner, the said list was neither accurate nor the members reflected therein were enrolled as per the Rules and the Regulations, the second writ petitioner preferred his objection on 11.11.2021. On the said objection, one Hari Narayan Pandey, Joint Chief Secretary fixed 29.11.2021 as the date for convening a meeting to resolve the issues. Appellant herein, on 16.11.2021, wrote a letter to Sri Hari Narayan Pandey, Joint Chief Secretary of the Association for cancelling the meeting proposed to be held on 29.11.2021 and fixing 03.12.2021 as the date of meeting. An agenda was also published by the appellant on 18.11.2021, fixing 03.12.2021 for the meeting. As per the writ petitioners, meeting was convened on 03.12.2021; out of existing 28 members, 21 members participated along with six proxy members and one of the members did not have the notice of the agenda. Therein, according to the writ petitioners, it was resolved to provide ten days time to file objection against enrolment of the members; and for the purposes of conducting elections five member committee was constituted. According to the writ petitioner, the aforesaid tentative decision was neither incorporated nor was the part of the proceedings. Writ petitioners further assert that as the appellant while holding the office of the General Secretary/Chief Secretary of the Association was committing certain acts which were detrimental to the aims and objects of the Association and despite being requested to convene the meeting for resolving the issues did not convene the meeting, it was decided on 21.01.2022, to hold a meeting on 04.02.2022. As per the writ petitioners, on 25.01.2022 Sri Vinod Kumar Pandey, Joint General Secretary of the Association published an agenda for the meeting of the Executive Committee on 29.01.2022. According to the writ petitioner, on 29.01.2022 a meeting of the Committee was convened wherein amongst other resolutions, a resolution was passed deprecating the acts of the appellant while holding the office of General Secretary/Chief Secretary of the Association. It was also resolved that the appellant be removed from the office of Chief Secretary of the Association and in his place Sri Hari Narayan Pandey be elected as Chief Secretary and one Vinod Kumar Pandey as Joint General Secretary. In the meantime, it appears that the appellant herein issued an agenda, as the Chief Secretary of the Association, to convene a meeting for holding elections on 18.02.2022 at 03:00 p.m. in the precincts of Arya Mahila P.G. Chetganj, Varanasi. As per the writ petitioner consequent to the letter dated 21.01.2022 proposing to hold a meeting of the Executive Committee on 04.02.2022 a meeting was held and it was resolved that instead of removing the appellant from the office of the General Secretary/Chief Secretary of the Association his powers may be seized and as the election program was already notified on 23.01.2022 by the appellant, to avoid inconvenience, only the venue earlier fixed, i.e. Arya Mahila P.G. College, Varanasi be shifted to the Head Office at Varanasi. It was further resolved that a corrigendum be published notifying the change. Record reveals that a publication with regard to the change was made in the daily newspaper Dainik Jagran on 08.02.2022. According to the writ petitioner, a general notice was also published in daily newspaper Hindustan and Dainik Jagran on 17.02.2022. Writ petitioner further claims that on 18.02.2022 elections were held of the office bearers of the Sabha of the Association in which 112 members appeared in person and 142 participated through proxy thereby, a total of 254 members participated in the said election; wherein, Sri Satya Narayan Pandey was elected as President. The papers pertaining to the election held on 18.02.2022 was transmitted to the respondent no. 2. Thereafter, as per the writ petitioners on 05.03.2022 the election of the Council was held and the papers relating thereto, were transmitted to the respondent no. 2 on 14.03.2022. Likewise, in the election of the Executive Committee, the office bearers got elected and the papers were forwarded to the respondent no. 2. Record further reveals that the appellants herein also staked a claim by setting up parallel elections of the same date at the previously notified place. As rival claims of being elected office bearers surfaced and were transmitted to the respondent no. 2 for according recognition, the respondent no. 2 issued notices to the rival factions. After hearing the rival factions, the Assistant Registrar Firm Societies and Chits, Varanasi Mandal, Varanasi proceeded to pass the order dated 28.06.2022, recognizing the elections of the Appellant faction.

Challenging the order dated 28.06.2022 passed by the Assistant Registrar, the writ petitioner filed Writ- C No. 20203 of 2022. The learned Single Judge after hearing the learned counsel for parties, reserved the judgment on 09.09.2022 by leaving it open to the counsel for the parties to provide written submissions within one week. The counsel for the writ petitioner as well as the counsel for the appellants filed their written submissions in the writ proceeding which are part of the paper book of the present appeal. Interestingly, the learned counsel for the appellant did not file any counter affidavit to the writ petition.

The learned Single Judge vide impugned judgment and order dated 20.10.2022 allowed the writ petition, quashed the order of the Assistant Registrar dated 28.06.2022 and issued a direction to refer the matter to the prescribed authority for adjudication under Section 25 of the 1860 Act, as applicable in the State of U.P.

Sri Gajendra Pratap Singh, learned Senior Counsel for the appellant, inter alia, submitted;-

(a) Notice dated 25.1.2022 fixing 29.1.2022, for convening meeting of the General Body of the Association does not conform to Rule 30 of the Rules of the Association, as three weeks notice prior to holding the meeting is a necessary requirement. Hence, the meeting held on 04.02.2022 as set up by the rival group, pursuant to the notice dated 21.1.2022, is in the teeth of the notice period provided under Rule 30 of the Rules of the Association.

(b) Joint Chief Secretary was not empowered to issue notices on 21.1.2022 and 25.1.2022, as the power to issue notice for convening the meeting solely vests in the Chief Secretary of the Association.

(c) Once an election programme has been notified and published, then there is no provision to alter the same.

(d) Change in venue of the elections amounts to a fresh notice of the elections, thus, three weeks notice as provided under Rule 30 of the Rules of the Association, was necessary.

(e) The writ petition was not properly constituted, in as much as, all the returned office bearers accepted by the Assistant Registrar by the order impugned, were not impleaded as opposite party. This vitiated the proceedings before the learned Single Judge. In support of the above submissions, decisions of the Apex Court in Avtar Singh Hit Vs. Delhi Sikh Gurdwara Management Committee and others: (2006) 8 SCC 487 and I. Nelson and another Vs. Kallayam Pastorate and others: (2006) 11 SCC 624 were relied upon.

(f) The very basis of the judgment and the order of the learned Single Judge under challenge proceeds upon the premise that neither there is any procedure nor any provision for holding the election, when, in fact, there are several provisions not only contemplate holding of election but also providing for its procedure. Thus, the judgement of the learned Single Judge is unsustainable in the eyes of law.

(g) The learned Single Judge fell in error in issuing directions for referring the dispute before the prescribed authority since the dispute raised by the writ petitioner was not a bonafide dispute, but based upon bogus elections.

(h) Once the list of office bearers stood approved on 19.07.2021 under Section 4 of the Societies Registration Act then, in view of the Societies Registration (Uttar Pradesh Amendment Act 2021), the writ petitioner had a remedy to prefer an appeal before the Commissioner, Varanasi Division Varanasi. Consequently, writ petition was liable to be dismissed on the ground of existence of alternative, efficacious remedy.

(i) Once a finding had been returned by the Assistant Registrar in the order impugned that the entire proceedings of no confidence and seizing of the powers of the appellant were illegal then the writ petition was liable to be dismissed without even entering into the other issues.

Sri Radha Kant Ojha, learned Senior Counsel, who appears for the writ petitioners, in rebuttal, has made the following submissions:-

(a) Since there was no material or substantial change in the election programme already fixed vide agenda dated 23.1.2022, barring change in the venue, a fresh three weeks notice of the meeting for holding elections was not required under Rule 30 of the Rules of the Association.

(b) Joint Chief Secretary is equally empowered to issue notice and publish an agenda for convening the meeting, thus, there is no inherent defect.

(c) Any change in the election programme through corrigendum would relate back to the date of publication of the original program.

(d) There can be no possible objection to issuance of corrigendum for altering the venue as the altered venue is none other than the one already fixed by Rule 35 of the Rules of the Association.

(e) In view of Rule 59 of the Rules of the Association, there was no need to implead all the returned office bearers particularly when the elections proceedings was not under challenge.

(f) As there existed a bonafide election dispute raised by the parties, the learned Single Judge was not in error in directing for reference of the dispute to the Prescribed Authority under Section 25(1) of Societies Registration Act, 1860.

(g) There is no requirement to challenge the findings recorded in the order impugned relating to either no confidence motion, expulsion or seizing of the powers of the appellant as the said issue is severable from the rival claims set up by the parties for recognizing their elections.

Learned Standing Counsel, who appears for respondent nos. 1 and 2, though did not challenge the judgment and the order of learned Single Judge, but argued that the order passed by the respondent no. 2, Assistant Registrar did not require any interference.

We have heard the learned counsel for the parties at length and have perused the record carefully.

Before embarking upon an inquiry into the legality of the judgment and order of the learned Single Judge, we must be bear in mind that the learned Single Judge has taken note of the circumstance that there existed two rival factions staking their claim for recognition of their elections alleged to have been conducted by them therefore, in view of the provisions of Section 25 (1) of the Societies Registration Act, 1860, the matter ought to be referred to the prescribed authority.

Parties before us are in agreement that their exists Memorandum of Association as well as the Rules and the Regulations, provisions whereof have been quoted above and the entire dispute so raised by the parties is governed by it. Basically, dispute raised by the parties before us, rests upon the inter play between Clauses 30 and 49 of the Rules and Regulations. As noticed earlier both the provisions provides for the procedure and the modalities fixed for convening the meeting. The writ petitioner claims that for holding of the meetings Clause 49 applies, whereas according to appellant herein the meeting is to be guided by the provisions contained under Rule 30. A redeeming feature exists that as per Rule 30 notice of the meeting of the Sabha shall be issued by General Secretary or Joint Chief Secretary or General Secretary, three weeks before the date fixed for meeting. Similarly Clause 49 provides that a meeting of the Council shall be held at least once a year whenever Chief Secretary of the Committee thinks necessary and the notice of the meeting may be issued by Chief Secretary or Joint Chief Secretary or any office bearer of Executive Committee before fourteen days of the meeting which is to be given to the members of the Council. The basic dispute is that, according to the learned counsel for the appellant Dr. Shashikant Dixit, who claims himself to be the Chief Secretary of the Association, is stated to have issued an agenda on 23.01.2022 convening meeting of the Sabha on 18.02.2022 at 03:00 p.m. at Arya Kanya P.G. College, Chetganj, Varanasi regarding (a) confirmation of the minutes of the last meeting, (b) election of the office bearers of Sanrakshak Sabha, (c) election of the members of All India Council, (d) any other matter with permission of Chair. As per the appellant, the agenda had already been published on 23.01.2022, convening the meeting on 18.02.2022 at a specified place and time for holding the elections. The other side case is that on 25.01.2022 one Vinod Kumar Pandey, Joint General Secretary of the Association issued an agenda fixing 29.01.2022 at 02:30 p.m. for meeting at the Head Office of the Association situate at Vani Mandir. It has also come on record that on 29.01.2022 the Executive Committee meeting convened was attended by as many as 15 members wherein amongst other resolutions it was resolved to pass a no confidence motion for expulsion of the appellant from the office of Chief Secretary of the Sabha and of the Council and to replace him by Vinod Kumar Pandey for the remaining period. Further it has come on record that another meeting of the All India Council was held on 04.02.2022 wherein it was resolved that in place of expulsion of the appellant from the office held by him, his power would be seized. Thus, looking to the fact that the election program had already been notified earlier, only the venue was changed, further, in consonance with the resolution so passed, the change in the venue of the elections was published on 08.02.2022 in Dainik Jagran, followed by Hindustan on 17.02.2022. It has been argued on behalf of the appellant that these changes were unauthorized and illegal.

Dealing with the first argument that there is an inherent defect in the notice for convening the meeting on 29.01.2022, it would be apt to bear in mind that the election programme was notified by the appellant fixing 18.02.2022. It is not in dispute that convening a meeting is a step towards holding the elections. Clause 30 of the Rules of the Association provides for a three weeks notice for convening the meeting. Parties are in agreement that the election date so fixed by the appellant for holding the election remained unaltered. However, it is the venue which got changed. Now a question would arises whether holding a meeting on 04.02.2022 to change the venue would amount to materially and substantially altering the election program. The answer to the same finds place in Rule 35 of the Rules of the Association wherein, it is provided that in case election is held at Varanasi, then it should be at the Headquarters at Varanasi. Headquarters is specified in Clause 2 of the MOA, which is, at Bharat Dharam Mahamandal Building, Jagatganj, Benaras. Admittedly, the venue of the elections so notified by the appellant was at Arya Kanya P.G. College, Chetganj, Varanasi which was not a place specified in MOA for conducting elections. It is also not in dispute that allegations were levelled regarding the possibility of manipulation. Thus, in the opinion of the Court, mere change in the election venue would not partake the character of materially altering the election programme as to require issuance and publication of fresh election programme by giving three weeks notice.

Now, another facet of the matter is, whether the Joint Chief Secretary was empowered to convene the meeting. The answer to the said issue finds place in Rule 30 of the Rules of the Association whereby co-extensive power vests with the Chief Secretary, Joint Chief Secretary or General Secretary to convene a meeting. Admittedly, in the present case, the notice dated 25.1.2022 was issued by the Joint General Secretary. Pursuant to that, in the meeting of Council on 04.02.2022 as many as 13 members appeared in person and three through proxy and a resolution was passed for change of the election venue and the same was notified and published in widely circulated newspapers under the joint signatures of the Joint Chief Secretaries.

We have perused the notification published in the newspapers on 08.02.2022 and we find that there is only a change in the venue of the elections of different bodies of the Association. In our opinion, once the Joint Chief Secretary was authorized to issue notice/agenda and convene the meeting, then, prima facie, there appears to be no inherent defect in the notice/agenda.

Basically, the purpose of issuance of corrigendum is to rectify the errors, which in fact do not alter the parent notification. Rather, it is to keep it in line with the rules and the regulations. Since the election programme has not been disturbed, the proceedings were in terms of the original notification barring the change in the venue and time of the meeting. Consequently, the issuance of the corrigendum does not appear, prima facie, to be illegal or improper. More so, there cannot be any possible objection to the change in the venue which is in conformity with the MOA.

Sri Ojha, learned Senior Counsel relied on the judgment in Civil Misc. Writ Petition (Tax) No.426 of 2011 Polyplex Corp. N. Ltd. Vs. Union of India to contend that the corrigendum relates back to the date of the original notification, hence, no inherent error was committed. There is no quarrel to the said proposition, as corrigendum is issued just to rectify a defect.

It has come on record that in furtherance of the agenda published on 23.1.2022, elections were held on 18.2.2022 of the Sabha wherein 112 members appeared in person, 142 through proxy, totalling to 254 members. Elections of the Council was held on 05.03.2022 and on 11.03.2022, the election of the Committee was held through co-option.

The objection of the learned counsel for the appellant that the writ petition itself was not maintainable in absence of impleading all the office bearers is not only misconceived but also misplaced as in the writ petition there was no challenge laid to the elections, but to order dated 28.6.2022 passed by respondent no. 2 on the ground of jurisdictional error, in as much as once there were rival claims the Assistant Registrar was not competent to adjudicate the dispute. Rather, he ought to have referred the matter to the prescribed authority in terms of Section 25 (1) of the Societies Registration Act, 1860.

We have gone through the judgments cited by the learned Senior Counsel who appears for the appellant and we find that in Avtar Singh's (supra) the elections were challenged in the writ proceedings without impleading the office bearers and the Hon'ble Apex Court held that non-impleadment of the newly elected office-bearers was fatal and no relief could be granted in those circumstances. Similarly, so far as I.Nelson' (supra) is concerned, the same deals with setting aside of elections in writ proceedings without impleading the office bearers. According to us, the said judgments are distinguishable on fact, particularly, when in the case at hand, there has been no challenge laid to the elections, but to an order whereby, despite existence of two rival factions staking their claim for recognition of their respective election, the matter was not referred before the prescribed authority in terms of Section 25 (1) of the Societies Registration Act.

Coming to the next argument of the learned counsel for the appellant that there existed no bonafide dispute so as to refer the matter to the prescribed authority under Section 25(1) of the Societies Registration Act, this Court finds that on one hand appellant has set up his election on 18.2.2022 and on the other hand, the writ petitioner has also set up its election on 18.02.2022. Thus, there appears to be two rival claims. The claim set up by the writ petitioner does not appear to be completely bogus as the meeting to hold the elections was convened by a person authorized by the Rules and the election program was duly published. In our opinion, the Assistant Registrar was under an obligation to refer the dispute to the prescribed authority.

No doubt, only a bonafide dispute need be referred to the prescribed authority and the Registrar cannot act as a mere post office, but once a dispute is raised, coming up with a stand that the claim is as per the bye-laws and rules and regulations, supported by necessary documents and evidences, then the matter is required to be referred to the prescribed authority. A Division Bench of this Court in the case of Shailendra Singh and others vs. State of U.P. reported in (2017) 3 UPLBEC 2035 in paragraph 24 has held as under:-

" 24. 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 under Section 25 he has the authority to refer the dispute pertaining to election and continuance of office bearers and, accordingly, even if some frivolous dispute is raised in respect of the election or continuance of the office-bearers, the same should be mandatorily referred. 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 as to who has the authority to convene the meeting and hold elections; persons who have participated are valid members of society; elections have been held as per bye-laws of society and 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."

We, accordingly, hold that the learned Single Judge was not in error in issuing directions for a reference of the dispute to the prescribed authority.

Much emphasis has been laid upon by the learned Senior Counsel, appearing for the appellant, that the judgment and the order of the learned Single Judge is unsustainable as the learned Single Judge has proceeded with the assumption that there is no provision or procedure for holding the elections despite there being specific provisions for holding the elections. Though, at first blush, the argument appears attractive but the same is not to be accepted, in as much as the aforesaid observation has to be understood in the context it was made. What the learned Single Judge perhaps meant was that there was no specific procedure for election, rather there were general procedure for holding a meeting. We may clarify that the provisions for holding a meeting coupled with provisions relating to term of the office-bearers itself implies that the concept of holding of elections is in built in the Bye-laws/Rules. The phrases that "there is neither any provision nor procedure for conducting elections" used in the judgment under challenge would have no material bearing on the merits of the judgment, as parties are in agreement that there exists provisions for conducting elections which rival parties claim to have followed.

The objection of learned Senior Counsel, appearing for the appellant that since there has been no challenge to the findings recorded in the order of the Registrar dated 28.6.2022 that no confidence motion for expulsion / seizing of the powers of the appellant were illegal, therefore, the petition was liable to be dismissed is concerned, the same is of no avail to the appellant, in asmuch as, the issue of expulsion / seizing of powers pursuant to the meeting dated 29.1.2022/ 04.2.2022 is an altogether different issue., Besides this being just one of the resolutions amongst many, one of them being regarding change in the venue of the elections. Both the issues are severable. Thus, non-challenge to the said findings will not weaken the case of the writ petitioner, as the writ petitioner had challenged the order dated 28.6.2022 principally on the ground that the matter was liable to be referred to the prescribed authority in the wake of rival claims.

The objection regarding the existence of an alternative remedy, by way of an appeal against the order dated 19.07.2022, approving the list of the office bearers under Section 4 of the Society Registration Act, 1860, in the wake of the amendments, is also not liable to be entertained as the writ petition itself was filed by the writ petitioner on 16.07.2022 when there existed no order approving the list under Section 4 of the Societies Registration Act.. Merely because the list has been approved will not be a ground to dismiss the writ petition when the main order under challenge is liable to be quashed. More over, existence of alternate remedy is not an absolute bar in entertaining the writ petition, particularly, when no objection was raised by the appellant before the writ court at the appropriate stage.

No other point has been raised by learned counsel for the appellant.

In view of the discussion above, we are of the considered view that the judgment and the order passed by the learned Single Judge needs no interference. The special appeal is dismissed.

Order Date :- 16.12.2022

Nisha