B.V.Ravikumar And 14 Others vs Devireddy Mallikarjuna Reddy And ...
2022 Latest Caselaw 5267 AP

              THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI


                Civil Revision Petition No.116 of 2018

ORDER:

This revision petition, under Article 227 of the Constitution of

India, is preferred against the order, dated 10.10.2017, passed in

S.R.O.P.No.588 of 2011 on the file of the Court of Principal District

Judge, SPSR Nellore District.

2. Heard Sri Sivaprasad Reddy Venati, learned counsel for the

revision petitioner and Sri M.Vishnu Vardhan Reddy, learned counsel

for the respondents. The parties shall hereinafter be referred to as

arrayed in the petition before the trial Court for the purpose of

convenience and clarity.

3. The facts that lead to filing of this revision petition, in brief, are

as follows:

The 1st respondent, the Nellore Reading Room and Maclines

Library, is a society registered under the provisions of Societies

Registration Act, 1860, in the year 1911, popularly known as Maclines

Club (hereinafter referred to as 'the society'). The aims and objects of

the society is to provide (i) current news papers and magazines; (ii)

providing a library; (iii) providing for indoor and outdoor games and

sports; and, (iv) any such other measures keeping with a true spirit of

progressive development. The petitioner joined in the society paying

necessary charges for ordinary membership and his name is enlisted in

the club member list at serial No.174. The affairs of the society shall

be managed by the Executive Committee consisting of 11 members

elected from among the life and ordinary members for a period of two

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years. The members once elected are eligible for re-election. The

committee shall elect from among its members, (i) President and (ii)

Secretary, and (iii) Treasurer. The Executive Committee shall be

custodian of the properties of the institution and it shall manage every

affair connected to the society. While so, the petitioner came to know

that one Sunkara Ravindranath Reddy, was appointed as caretaker to

look after the affairs of the society by resolution, dated 27.06.2010, of

the General Body meeting of the society. According to the petitioner,

the appointment of caretaker is illegal. It is contended that even after

assuming charge, the caretaker did not take any steps to conduct

elections to the society. The caretaker is misusing the powers and

misappropriating the amount of the society. It is further contended

that unless there is regular election and regular elective body, the

affairs of the society will not be functioned properly. The caretaker

who is influenced by political leaders is not caring members of the club

and acting as per his whims and fancies. Thus, after exchange of

several notices, the petitioner filed petition under Section 23 of the

Societies Registration Act, 2001, to declare the resolution, dated

27.06.2010, as well as the memberships given by the caretaker as null

and void.

3(b) The 1st respondent filed counter affidavit mainly contending that

the affairs of the society went on smoothly till the year 1992 when a

section of members, to derive political mileage, stalled the election

proceeding by instituting civil suits in O.S.No.317 of 1992 and 422 of

1992 on the file of the Court of Junior Civil Judge, Nellore. In view of

the interim orders passed therein, the society failed to carry out its

functions till the year 1999. Though the suits were decreed in favour

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of the society, the rival group preferred appeals in A.S.No.70 of 1990

and 71 of 1999. Those appeals were also dismissed confirming the

judgment of the trial Court. Once again, the rival group preferred a

second appeal before the High Court and finally, it was withdrawn on

26.02.2010. Thus, the regular affairs and functions of the society

received a deadly halt during the period from 1992 to 2010 for the

aforesaid reasons. In view of the above state of affairs, regular

election process could not be undertaken. Having regard to the state

of affairs of the society, none of the members favoured immediate

election of office bearers and the General Body, by its resolution,

dated 27.06.2010, had unanimously resolved to appoint the present

caretaker by assigning him all the powers of a regular committee. The

General Body also appointed 11 members including the caretaker to

assist the caretaker and to continue to govern the affairs of the society

till duly elected office bearers take charge. There is no cause of action

to file the present petition. When an alternative remedy is available

under the bye-laws of the society, the petitioner, who is a single

ordinary member, cannot invoke the jurisdiction of this Court by filing

the present petition. Exchange of letters between the parties never

culminated into any dispute before filing the petition. The petition is

premature one. The petition is liable to be dismissed.

3(c) The 1st respondent also filed additional counter. In the

additional counter, several details regarding the election of office

bearers, updation of records of the society have been narrated. In

summing up the contentions, it is urged that as per the bye-laws of

the society, appointment of caretaker is not in dispute and the petition

is liable to be dismissed with exemplary costs.

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3(d) The averments in the counter filed by the 2nd respondent are

mainly on the aspect of quorum to convene the General Body Meeting

of the society and other details. It is finally urged that there are no

tenable grounds to allow the petition and hence, it is prayed to dismiss

the petition.

3(e) The petitioner filed rejoinder to the additional counter filed by

the 1st respondent. While reiterating the averments made in the

original petition, various other allegations have been levelled against

the caretaker/1st respondent and his attitude. It is finally prayed to

allow the petition.

4. Basing on the above pleadings, the following issues were settled

for trial:

1. Whether Nellore Reading Room and Maclines Library/1st respondent is properly sued in the petition?

2. Whether the petition questioning the resolution dated 27.06.2010 of Nellore Reading Room and Maclines Library/1st respondent, made in the general body meeting is maintainable under Section 23 of Societies Registration Act,2001?

3. Whether the resolution dated 27.6.2010 made in general body meeting, appointing Sunkara Ravindranath Reddy as caretaker of Nellore Reading Room and Maclines Library/1st respondent is null and void? If so, whether the memberships given thereafter also are null and void?

4. Whether Sunkara Ravindranath Reddy - caretaker of Nellore Reading Room and Maclines Library/1st respondent, misappropriated its funds?

5. During trial, on behalf of the petitioner, PWs1 to 3 were

examined and exhibits A1 to A7 were marked. On behalf of the

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respondents, RWs 1 to 5 were examined and exhibits B1 to B29 were

marked.

6. On a consideration of the entire evidence, both oral and

documentary, and upon hearing the counsel for the parties, the trial

Court allowed the petition declaring the appointment of Sunkara

Ravindranath Reddy as caretaker as null and void. Consequently, the

memberships for Nellore Reading Room and Maclines Library,

Nellore/1st respondent, issued by Sunkara Ravindranath Reddy after

27.6.2010 are also held null and void by the trial Court.

7. Aggrieved thereby, the present revision is preferred by the

revision petitioners/third parties. In the grounds of revision, it is

mainly contended that if the order impugned is allowed to continue, it

would occasion in failure of justice, as the members have been

admitted in the society in accordance with the procedure prescribed

under the bye-laws and they are paying annual subscription regularly;

that the members who were given membership after 27.06.2010 were

not made as parties to the petition; that the trial Court went wrong in

going beyond the scope of relief prayed in the petition by holding that

since the resolution, dated 27.06.2010, is per se illegal, the

subsequent proceedings made in pursuance of the said resolution also

becomes illegal and non est; that the trial Court, without framing an

issue, with regard to the validity of the membership admitted after the

resolution, dated 27.06.2010, granting relief without reasons is illegal

and unjustified; and that the trial Court erroneously declared as illegal

and non est the 1st resolution, dated 27.06.2010 which is no longer

existed with passing of the 2nd resolution dated 10.10.2010.

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8. The petitioners mainly challenged the impugned order on the

ground that they were not given an opportunity of hearing, yet, an

order adverse to their interests has been passed by the Court below

against the principles of natural justice. It is also further contended

that even if the appointment of caretaker is declared to be illegal,

since there is no allegation that the petitioners do not qualify for being

taken as members of the Society, the membership of the petitioners

cannot be cancelled and in this regard, reliance was placed on the

decision of the Supreme Court in Swati Ulhas Kerkar and others v.

Sanjay Walavalkar and others1.

9. Since the respondents before the Court below have not

challenged the impugned order, it is not required to go into the issue

whether the appointment of caretaker is valid or not. Since the

members are aggrieved by the impugned order, it is now to be seen

whether the impugned order affecting the interests of the revision

petitioners is sustainable or not.

10. It is fundamental principle of law that the person likely to be

effected by the order should be heard.

11. Here, it is a case where the said principle is flagrantly violated

and this ground alone is sufficient to set aside the order to the extent

of declaring that the membership of the petitioners issued by the

caretaker after 27.06.2010 as null and void.

12. Further, it is pertinent to refer the decision of the Supreme Court

relied on by the petitioner at paragraphs 37, 38 and 40, which read as

under:

AIR 2021 SC 3166

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"37. Before we dwell upon the core issue involved in this appeal, it is apposite to examine the preliminary objection raised by Respondent No. 1 regarding maintainability of the appeal at the instance of these Appellants. According to Respondent No. 1, the question whether the Appellants have been legally and properly admitted as members or not is a lis between the existing members and the Managing Committee, to which the Appellants herein are strangers and have no locus in that regard. This argument, in our opinion, is tenuous and cannot be sustained. For, the real question posed at the instance of these Appellants is whether they had a right to be considered for being admitted as members of the Society and further whether the order of the Registrar results in dismembering them despite they being validly admitted as members at the relevant point of time vide decision of the then Managing Committee dated 17.09.2017.

Indeed, it is open to the existing members to object to any new person being admitted as member of the Society by the outgoing Managing Committee and that would be a lis between the existing members and the outgoing Managing Committee. That, however, does not denude the Appellants of cause of action, who desired to be admitted as members of the Society being eligible in all respects, to be considered for such admission. Similarly, if a person has been dismembered by the Society including on account of direction issued by the competent authority, such a person will have independent remedy to assail that decision. In either case, therefore, being affected by such non-consideration or by virtue of dismembering, the aggrieved person would be competent to pursue remedy before the concerned forum for redressal of his grievance and for enforcement of his legal rights.

38. In the present case, the Appellants were admitted by the then Managing Committee to be members of the Society, but they have been subsequently dismembered only because of the order passed by the Registrar having become final. Further, they were made party to the proceedings before the Registrar, who had set aside the decisions of the then

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Managing Committee, dated 17.09.2017. Thus understood, the objection regarding maintainability of challenge to the decision of the Registrar and of the High Court by such affected persons (Appellants herein) cannot be countenanced.

40. ... ........Their right to be considered for being admitted as members of the Society cannot be linked to the acts of commission and omission of the office bearers of the then Managing Committee. Neither the Registrar nor the High Court has dismembered the Appellants on the ground of being ineligible in any manner or because it has been established that they were the henchmen of the office bearers of the then Managing Committee. ........"

13. In view of the above precedential guidance also, the petitioners

could make out their case that their membership has been erroneously

declared as null and void.

14. For all these reasons, the impugned order to the extent indicated

above is liable to be set aside.

15. In the result, the Civil Revision Petition is allowed setting aside

the order, dated 10.10.2017, passed in S.R.O.P.No.588 of 2011,

passed by the Principal District Judge, Nellore, to the extent of

declaring that the memberships of the petitioners, issued by the

caretaker after 27.06.2010, as null and void.

There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.

____________________ B. S. BHANUMATHI, J 18-08-2022 RAR