Allahabad High Court
C/M Janta Prasar Samiti And Another vs State Of U.P. And 3 Ors. on 18 March, 2025
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:38360
AFR
Court No. - 32
Case :- WRIT - C No. - 16710 of 2015
Petitioner :- C/M Janta Prasar Samiti And Another
Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Yogish Kumar Saxena
Counsel for Respondent :- C.S.C.,Vineet Kumar Singh
Hon'ble Saral Srivastava,J.
1. Heard Sri Y.K. Saxena, learned counsel for the petitioners, learned Standing Counsels for the State, and Sri H.N. Singh, learned Senior Counsel assisted by Sri Abhishek Dwivedi, learned counsel for the respondent.
2. The petitioners through the present writ petition have assailed the order dated 16.02.2015 passed by respondent no.2-Sub-Divisional Magistrate-Derapur, Kanpur Dehat whereby the Prescribed Authority has rejected the claim of petitioners for continuing as Manager of the Society namely Sri Janta Prasar Samiti Sadaramau Manepur, Post Jhinjak, District Kanpur Dehat.
3. There is a society registered in the name of Sri Janta Prasar Samiti Sadaramau Manepur, Post Jhinjak, District Kanpur Dehat (hereafter referred to as 'Society') under the provisions of U.P. Societies Registration Act, 1860. According to Clause 8(ख) of the bye-laws of the Society, the senior most successor of life long Manager Sri Harishchandra Singh shall be nominated as Manager of the Society.
4. It appears that during the life long of Harishchandra Singh, the petitioner who was the fifth son of Harishchandra Singh, was appointed as Manager of the Society and he continued to work as Manager till the demise of Harishchandra Singh who died on 11.03.2009.
5. After the death of Harishchandra Singh, respondent no.4-Arvind Kumar Singh who is the second son and the senior most successor of late Harishchandra Singh, claimed his right to be appointed as Manager on 09.06.2009 on the ground that under the bye-laws of the Society, he being the senior most legal heir/successor of late Harishchandra Singh is entitled to be appointed as Manager.
6. The claim of respondent no.4 was contested by the petitioner on the ground that an addition after the word 'Or (अथवा)' has been made in the main Clause 8(ख) of the bye-laws of the Society by adding "or the persons Sri Abhishek Kumar Singh, Smt. Uma Singh and Sri Virendra Singh Bhadauria who have been inducted as life members of the Society may appoint any person as Manager of the Society who has shown devotion, sincerity, and dedication in carrying out the objects of the Society." Accordingly, the petitioner claimed that he had been appointed as Manager on the basis of the aforesaid addition in Clause 8(ख) in the bye-laws of the Society.
7. According to the petitioner, after the addition in Clause 8(ख) of the bye-laws of the Society, the petitioner was elected as Manager on 28.02.2006 and the list of office bearers was registered for the year 2005-06 on 28.02.2006. Consequently, he pleaded that his appointment as Manager is valid and is in accordance with the bye-laws of the Society.
8. The objection of respondent no.4 against the appointment of the petitioner was rejected by the Sub-Registrar vide order dated 06.11.2009. Respondent no.4 preferred a Writ Petition No.70071/2009 challenging the order of Sub-Registrar dated 06.11.2009 which was allowed by this Court by judgment and order dated 02.04.2013 permitting respondent no.4 to approach the Prescribed Authority. This Court further directed the Prescribed Authority to decide the claim of the parties in the light of the observation made in the judgment and order dated 02.04.2013 in Writ Petition No.70071/2009.
9. The record further reveals that against the judgment of this Court dated 02.04.2013, the petitioner preferred Special Appeal No.672/2013 which remains pending, and in the meantime, the Prescribed Authority decided the application of respondent no.4 in compliance with the judgment and order of this Court dated 02.04.2013 in Writ Petition No.70071/2009.
10. The Prescribed Authority by the impugned order held that the addition or amendment in Sub-Clause (ख) of Clause 8 of the bye-laws of the Society could not be made because of Clause 10 of the bye-laws of the Society. He further held that for the said reason, the petitioner has no right to continue as Manager. He further recorded in the order that the petitioner neither submitted any objection nor replied to the objection of the respondent. Accordingly, he concluded that the petitioner cannot continue as Manager.
11. Challenging the aforesaid order, learned counsel for the petitioners has submitted that the Prescribed Authority has erred in law in holding that there cannot be any amendment in Clause 8(ख) of the bye-laws of the Society inasmuch as the incorporation in Clause 8(ख) of the bye-laws of the Society is only an alternative mode for providing appointment of Manager, in a contingency if there is no senior legal heir or successor of late Harishchandra Singh. Accordingly, he submits that the finding returned by the Prescribed Authority that there can be no amendment in Clause 8(ख) of the bye-laws of the Society is perverse and based upon the misrepresentation of Clause 10 of the bye-laws of the Society.
12. He further submits that this Court while remanding the matter has directed the Prescribed Authority to decide the issue as to whether respondent no.4 has waived his right to continue as Manager, but the Prescribed Authority has failed to return any finding on the said issue. In such view of the fact, the impugned order cannot be sustained in law.
13. Per-contra, Sri H.N. Singh, learned Senior Counsel for the respondent contends that it is evident from Clause 10 of the bye-laws of the Society that no amendment in Clause 8 (क)(ख)(ग) can be made. It is submitted that the petitioner might have some case in case Clause 10 of the bye-laws of the Society had been amended in accordance with bye laws of the Society by deleting in Clause-10 that "no amendment in Clause 8 (क)(ख)(ग) in the bye-laws of the Society can be made", only thereafter any amendment in Clause (क)(ख)(ग) could be made.
14. It is submitted that since under the bye-laws of the Society, it is categorically stated in Clause 10 of bye-laws of the Society that no amendment in Clause 8 (क)(ख)(ग) can be made, therefore, neither any amendment nor any addition in Clause 8 (क)(ख)(ग) could be made because of rider put by Clause 10 of the bye laws of the Society. Therefore, the amendment in the bye-laws of Clause 8 (ख) is per se illegal and is void given rider of Clause 10 of the bye-laws of the Society. Accordingly, it is contended that in such view of the fact, the petitioner has no right to continue as Manager of the Society and the question of waving his client's right to be appointed as Manager by respondent no.4 does not arise.
15. He further submits that it is not the case where respondent no.4 has waived his right inasmuch as it was only late Harishchandra Singh, who could work as Manager, and only after his death, respondent no.4 could be appointed as Manager under the bye-laws of the Society. In the instant case, the petitioner immediately after the death of Harishchandra Singh raised an objection and claimed appointment to the post of Manager. Therefore, there was no waiver of the right on the part of the petitioner in claiming the post of Manager of the Society.
16. Heard Sri Y.K. Saxena, learned counsel for the petitioners, and Sri H.N. Singh, learned Senior Counsel for the respondent, and perused the record.
17. Before dealing with the controversy, it would be apt to reproduce unamended Clause 8(अ) of the Society:-
"(8) प्रबन्धकारिणी समितिः-
(अ) गठनः-
(क) प्रबन्धक पद पर वर्तमान पदासीन व्यक्ति आजीवन प्रबन्धक रहेगा और भविष्य में प्रबन्धक पद पर कोई निर्वाचन नही होगा।
(ख) वर्तमान प्रबन्धक का पद रिक्त होने की दशा त्याग पत्र/मृत्यु से / में उसका वैधानिक ज्येष्ठ उत्तराधिकारी ही वैध प्रबन्धक माना जायेगा जिसकी स्थिति एवं शक्ति पूर्णतया (8-क) के अनुसार होगी।"
18. It would also be apposite to reproduce amended Clause 8 of the bye-laws of the Society:
"8- प्रबन्धकारिणी समितिः-
(अ) गठनः-
(क) प्रन्धक पद पर वर्तमान पदासीन व्यक्ति आजीवन प्रबन्धक रहेगा और भविष्य में प्रबन्धक पद पर कोई निर्वाचन नही होगा।
(ख) वर्तमान प्रबन्धक का पद रिक्त होने की दशा त्याग पत्र या मृत्यु से / में उसका वैधानिक ज्येष्ठ उत्तराधिकारी ही वैध प्रबन्धक माना जायेगा जिसकी स्थिति एवं शक्ति पूर्णतया 8-क के अनुसार होगी अथवा समिति ने सर्व सम्मति से श्री अभिषेक कुमार सिंह श्रीमती उमा सिंह तथा श्री वीरेन्द्र सिंह भदौरिया को उनके संस्था के प्रति अटूट श्रद्धा, निष्ठा एवं भवन मरम्मत में विशेष आर्थिक योगदान एवं महत्वपूर्ण कार्यों के आधार पर आजीवन विशिष्ठ सदस्य बनाया है भविष्य में यदि यह तीनों सदस्य अन्य किसी व्यक्ति को उसके संस्था के प्रति विशेष योगदान पर बहुमत या सर्व सम्मति से आजीवन विशिष्ठ सदस्य बनाना चाहेगें तो बना सकेंगे। यही आजीवन विशिष्ट सदस्य भविष्य में प्रबन्धक का पद रिक्त होने की दशा में अपने में से बहुमत या सर्व सम्मति से प्रबन्धक चुनेगे और इस प्रकार चुना हुआ व्यक्ति ही प्रबन्धक होगा, शेष प्रबन्ध समिति का चुनाव यथास्थिति के अनुसार संपन्न होगा।"
19. Clause 10 of the bye laws of the Society reads as under:
"संस्था के नियमों व विनियमों में संशोधन साधारण सभा के 2/3 सदस्यो के बहुमत से किया जा सकेगा परन्तु धारा-8,क,ख,ग पर इसका कोई प्रभाव नही पड़ सकेगा।"
20. According to the unamended Clause 8 (अ)(क) of the bye-laws of the Society, the person appointed as Manager shall continue to be Manager for the life and no election of the Manager shall take place.
21. According to the unamended Clause 8 (अ)(ख), on the vacancy of the Manager by way of resignation/death, the senior most legal heir of the Manager shall be appointed as Manager, and he shall exercise all the powers and carry on all the duties of the Manager.
22. There is an addition/amendment in Clause 8(ख) and by addition, another mode of appointment of Manager is provided that "the three persons namely Abhishek Kumar Singh, Smt. Uma Singh and Sri Virendra Singh Bhadauria who have been inducted life members of the Society can also nominate/appoint a person as Manager who has shown allegiance, sincerity, and dedication in carrying out the work and object of the Society."
23. According to the petitioner, the addition in Clause 8 (अ)(ख) has been made only to provide an alternative mode to fill up the vacancy of Manager in case no senior most legal heir of the Manager is available or in case he refuses to accept the post of Manager. Therefore, this is not an amendment and only an addition which provides to fill up the vacancy in a particular contingency.
24. At this stage, it would be apt to refer to Clause 10 of the bye-laws of the Society which has already been extracted above, which states that amendment in the bye-laws of the Society can be made only by 2/3 Members of the General Body of the Society by majority. However, this clause will not affect Clause 8 (क)(ख)(ग) of the bye-laws of the Society.
25. At this stage, it would be apt to refer to the earlier judgment of this Court whereby this Court vide judgment and order dated 02.04.2013 permitted respondent no.4 to file an application before the Prescribed Authority to decide the dispute which reads as under:
"The aforesaid aspect of the matter has completely been ignored by the Deputy Registrar while passing the order impugned. Further the issue as to whether resolution had been passed in any valid meeting of the general body convened for the purpose has also not been finally adjudicated. Merely because amendments have been signed by certain office bearers cannot ipso facto lead to a conclusion that a valid meeting of the general body has taken place. It had to be examined as to whether agenda for such meeting was circulated in accordance with the bye-laws among members and that a valid meeting for the purpose did take place frog amongst the valid members. A finding had to be returned as to Whether any valid amendment has been made in Class 8 (kha) as well as could the Clause B (kha) be amended in view of Clause 10.
Even otherwise on simple reading of amended Clause 8 (kha), this Court finds that said clause is in two parts, (a) which declares that senior-most legal heir of the present manager would automatically be treated to be manager, if the earlier manager tenders his resignation or expires, thereafter there is the other clause starting from the word "अथवा" (b) which confers a power upon three persons named, namely, Abhishek Kumar Singh, Smt. Uma Singh and Virendra Singh Bhadauriya to elect a new manager in case of vacancy from among themselves.
In the opinion of the Court for harmonizing the two clauses it is but necessary to hold that it is only when the senior-most legal heir of outgoing manager becomes incapacitated or otherwise refuse act as the secretary/manager then that three persons mentioned in the Clause can exercise their power to elect the manager from among themselves. The first preference for being treated to be manager is therefore, with the senior-most legal heir of the outgoing manager.
In the facts of the case it is not in dispute that eldest son of Harish Chandra Singh namely, Ashok Kumar had expired during his life time. Petitioner is the second eldest son of Harish Chandra Singh, the earlier manager/secretary. Therefore, he has a preferential right to be treated as the manager after the resignation/death of Harish Chandra Singh in terms of the amended clause also.
However, the question remains as to whether the petitioner had waived his right in view of respondent no.4 being elected as the manager in 2006 and thereafter the list of office bearers being registered, with respondent no.4, as the manager under Section 4 of Act, 1860.
For determining the said issue, it is but necessary to examine amongst others as to whether respondent no.4 ever exercised powers of the manager/secretary of the society subsequent to his alleged election as manager in 2006 or not, which requires consideration of the relevant documents of the society and the accounts etc. maintained in that respect. Waiver of a right is essentially an issue of fact which is to be culled out from the evidence to be produced by the parties and their conduct.
In the totality of the facts on record this Court is of the opinion that the present writ petition be disposed of by permitting the petitioner to file a reference petition under Section 25 (1) of the Societies Registration Act, 1860 before the Prescribed Authority within two weeks from today, along with a certified copy of this order challenging the order of acceptance of respondent no.3 as the manager/secretary of the society and his continuance as such. If such petition is filed, the Prescribed Authority shall enter into the dispute and shall decide the same in light of the observations made above, preferably within two months from the date of receipt of the reference petition after affording opportunity of hearing to the petitioner and respondent nos. 3 to 5 and after examining the original records of the society. He shall pass a reasoned speaking order. Order Impugned passed by the Deputy Registrar shall abide by the orders to be passed by the Prescribed Authority as indicated above. All consequential action shall be taken Immediately thereafter in terms of the order passed by the Prescribed Authority as indicated above.
With the aforesaid direction/observations, the present writ petition is disposed of."
26. The extracted portion of the judgment of this Court reveals that this Court has permitted the petitioner to submit an application before the Prescribed Authority with a direction to the Prescribed Authority to decide the issue as to whether any valid amendment has been made in Clause 8(ख) of the bye-laws of the Society as well as could the Clause 8(ख) be amended in view of Clause 10. This Court further directed the Prescribed Authority to return the finding as to whether the petitioner in the writ petition (respondent no.4 in the present writ petition) had waived his right in view of respondent no.4 (petitioner no.2 in the present writ petition) being elected as Manager in the year 2006 and thereafter, the list of office bearers being registered with respondent no.4 under the provisions of U.P. Societies Registration Act, 1860.
27. Now the Court proceeds to analyse in the present case as to whether the Prescribed Authority while deciding the application of respondent no.4 returned the finding on the aforesaid two issues or not.
28. So far as the question as to whether the amendment could be made in Clause 8(ख) of the bye-laws of the Society in view of Clause 10 is concerned, the impugned order reveals that a finding has been returned by the Prescribed Authority on the issue. Though the finding may not be elaborate, but the Prescribed Authority recorded a finding that no amendment could be made in Clause 8(ख) of the bye-laws of the Society.
29. The Prescribed Authority has not returned any finding on the issue whether respondent no.4 has waived his right to continue as Manager of the Society.
30. This Court could have remitted the matter in the absence of any finding returned by the Prescribed Authority on the issue whether respondent no.4 has waived his right or not. In the present case, the dispute has been pending for long and the main question for consideration in the present case is whether any valid amendment or addition could be made in Clause 8 (ख) of the bye laws of the Society in view of Clause 10 of the bye-laws Society. In case the answer to the said question is 'affirmative', this Court is of the view that no further finding with respect to the question whether respondent no.4 has waived his right needs to be recorded by the Prescribed Authority, and if the answer of the said question is in 'negative' then it is a case of remand.
31. In the instant case, this Court has already extracted Clause 10 of the bye laws of the Society which stipulates that any amendment in the bye-laws can be made by 2/3 Members of the Society on a majority basis. However, this clause would not affect Clause 8 (क)(ख)(ग) of the bye-laws of the Society. Clause 10 is specific and unambiguous and stipulates that the said Clause of the bye-laws of the Society would not affect Clause 8 (क)(ख)(ग) of the bye-laws of the Society which means that Clause 10 puts rider on the power of the General Body of the Society to amend Clause 8 (क)(ख)(ग) of the bye-laws of the Society. Once a specific rider is put by Clause 10 of the bye-laws of the Society, this Court is of the view that no amendment or addition in Clause 8(क) could be made by the General Body of the Committee of Management exercising the power under Clause 10 of the bye-laws of the Society. Any addition or amendment in Clause 8(क)(ख)(ग) of the bye-laws of the Society could be made only after the amendment in Clause 10 in accordance with bye-laws of the Society by removing the rider placed by Clause 10 in the bye-laws of the Society that "it would not affect or impact Clause 8 (क)(ख)(ग) of the bye-laws of the Society."
32. In the instant case, there is nothing on record to indicate that any amendment in Clause 10 of the bye-laws of the Society has been made and the rider put by Clause 10 that it would not affect Clause 8 (क)(ख)(ग) of the bye laws of the Society has been removed.
33. This Court is of the view that no amendment in Clause 8 (क)(ख)(ग) can be made so long as the rider stipulated in Clause 10 of the bye laws of the Society that it would not affect Clause 8 (क)(ख)(ग) of the bye laws of the Society remains in existence. In such view of the fact, this Court is of the view that the amendment/addition in Clause 8 (ख) of the bye-laws of the Society could not be made by the Committee of the Management or General Body of the Society in the exercise of power in Clause 10 of the bye laws of the Society. Therefore, an addition/amendment in Clause 8 (ख) of the bye laws of the Society is per se illegal and against the spirit of the bye-laws of the Society. Thus, the argument of the learned counsel for the respondent with regard to the fact that it is only an addition to meet out certain exigencies in Clause 8(ख) does not stand to merit and is rejected.
34. Since this Court has held that no amendment/addition in Clause 8 (ख) could be made by the Committee of Management or General Body of the Society in the exercise of power in Clause 10 of the bye-laws of the Society therefore, the amendment/addition in Clause 8(ख) is invalid, and it is only the original clause that remains in existence. Therefore, it is only respondent no.4 who could be appointed as Manager being the senior most legal heir of the Manager.
35. Since the petitioner has been claiming his appointment by virtue of amendment in Clause 8 (ख) and that has been declared by this Court to be invalid, therefore, the appointment of the petitioner as Manager was against bye laws of the Society. In such view of fact, the question of waiver of the right of respondent no.4 does not arise.
36. At this juncture, it is also pertinent to note that under the bye-laws of the Society, the right of respondent no.4 to be appointed as Manager accrues only after the death of Harishchandra Singh. Therefore, in such view of the fact, there was no waiver of the right by the respondent no.4 for being appointed as Manager as respondent no.4 claimed his right to be appointed as Manager immediately after the death of Harishchandra Singh.
37. Thus, for the reasons given above, the writ petition lacks merit and is dismissed without any order as to costs.
Order Date:-18.3.2025
Mohit
