Shri Ishwar Lal Mittal And Ors. vs Shri Babu Ram Gupta And Ors.
2006 Latest Caselaw 2326 Del

JUDGMENT

Gita Mittal, J.

1. Three suits CS(OS) 1327, 1328 and 1329 of 2006 have been filed in this Court challenging the process for election which was initiated pursuant to a notice dated 9th June, 2006 issued by the election officer appointed by the managing committee of the Shri Aggarwal Dharamshala Trust (registered as a society). Challenge has been laid in these suits to this process principally on two grounds which are:

(i) that the executive committee of the Society had passed a resolution dated 27th May, 2006 whereby it had been decided that such persons who were enrolled as members up to 10th June, 2006 alone would be entitled to vote. There has been no finalisation of electoral list of valid members. Persons who have not paid the subscription fee on or before 10th June, 2006 have been co- opted into the list and notices for the conduct of elections have been issued to these persons.

(ii) in CS(OS) Nos. 1327 and 1328/2006, it has been objected that the elections have been called for posts which are not mentioned in the constitution/bye-laws of the Society and consequently the election process is invalid.

2. The plaintiffs in all the suits have made averments as to the manner in which large number of persons were inducted as members of the Shri Aggarwal Dharamshala Trust and have laid the following prayers in the three suits :- Prayers in CS(OS) No. 1327/2006

1. To pass a decree declaring the agenda dated 8.6.2006 issued by the defendant No. 4 for the General body meeting of Shri Aggarwal Dharamshala Trust (Regd.) scheduled to be held on 25.6.2006 as illegal, unlawful and in-effective.

2. To pass a decree of declaration that the Circular dated 9.6.2006 issued by the defendant No. 1 containing the election programme for the elections of the office bearers and members of the executive committee of Shri Aggarwal Dharamshala Trust (Regd.) is illegal, unlawful, in contravention of the provisions of the constitution of the society and contrary to the generally accepted principles of free and fair elections and so ineffective and in case the elections are held on 25.6.2006 as per the impugned circular dated 9.6.2006; then

3. To pass a decree of declaration that the elections of the officer bearers and members of the executive committee of the society held pursuant to the impugned circular dated 9.6.2006 issued by the defendant No. 1 are illegal, unlawful, in contravention of the provisions of the constitution of the society and so void ab initio.

4. To pass a decree of permanent injunction restraining the defendants, their agents, associates or employees from conducting/holding elections of the officer bearers and members of the executive committee of the defendant society wherein the polling is scheduled to be held on 25.6.2006 on the basis of circular dated 9.6.2006 issued by the defendant No. 1.

5. To pass a decree of mandatory injunction directing the respondents No. 2,3and4 to hold the elections of the office bearers and members of the executive committee of the society strictly in accordance with the constitution of the society and only after publishing/circulating the list of members including the plaintiffs of the society, who had acquired membership up to and inviting and considering objections on the said list.

6. to award cost of the suit in favor of the plaintiffs and against the defendants.

Pass any other/further order/s as may be deemed fit and proper in the facts and circumstances of the case.

Prayers in CS(OS) No. 1328/2006

(a) Declare that the plaintiffs are entitled to participate in the annual general meeting and election of Managing Committee and office bearers of defendant No. 1 and to direct the defendants to include the names of the plaintiffs in the list of members/ trustees in the annual General Body meeting to beheld on 25.6.2006 and/or any meetings thereof;

(b) restraint the defendants by way of permanent injunction from holding the Annual General Body meeting and elections of defendant No. 1 without including the names of the plaintiff in the list of members/trustees entitled to participate and vote in the annual general meeting and election of defendant No. 1.

(c) pass such other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

Prayers in CS(OS) No. 1329/2006

(a) declare that the appointment of defendant Nos. 32 to 263 as trustees of defendant No. 1 is totally wrong, unlawful and illegal and void ab-initio and that they have no right whatsoever to act or represent themselves as trustees of defendant No. 1 or to participate in the annual general body meeting of defendant No. 1 or the election of the members of the managing committee and office bearers of defendant No. 1 to be held on 25.6.2006 or to cast any vote therein;

(b) restrain the defendant Nos. 32 to 263 by way of permanent injunction from representing themselves or acting in any manner as trustees of defendant No. 1 and from participating or in any manner interfering in the annual general body meeting interfering in the annual general body meeting or the election of members of the managing committee and officer bearers of defendant No. 1 to be held on 25.6.2006 or to cast any vote therein;

(c) pass such other order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

3. These suits came to be listed before this Court on 23rd June, 2006. Along with the plaints, the plaintiffs in all the suits had sought interim relief in applications filed under Order 39 of the Code of Civil Procedure in the matter and stay of the elections. The following ex-parte order was recorded on 23rd June, 2006 in CS(OS) No. 1327/2006:

Issue summons to the defendants by ordinary process, registered A.D. and through approved courier.

Mr. G.N. Agarwal, Advocate accepts summons on behalf of defendant No. 2. Let reply be filed within four weeks. Rejoinder thereto, if any, be filed before the next date of hearing.

The matter shall be posted for admission/denial of the documents before the Joint Registrar on 11th September, 2006. The matter shall thereafter be posted before court on 14th November, 2006 for framing of issues.

IA No. 7145/2006

Notice for 3rd July, 2006.

Mr. G.N. Agarwal, Advocate accepts notice on behalf of defendant No. 2. By this suit, the plaintiffs have pointed out that the election to the Executive Committee of the defendant No. 1, which is a registered trust, were decided by the Executive Committee to be held on 25th June, 2006 and the defendant No. 31 was appointed as the Election Officer. However, the defendant No. 31 has proceeded in a matter in total violation of the bye-laws and the constitution of the trust. No electoral roll has been finalised and no objections have been invited from any of the trustees. It is also pointed out that as per courier receipt dated 10th June, 2006, the Election Officer has sent notice inviting nominations only of 1116 trustees while he has purported to publish an electoral list consisting of 1656 members (at page 20 of the paper book). It is further pointed out that the office of the defendant No. 1 has remained shut and despite repeated efforts, the plaintiffs have been unable to get the records relating to the electoral rolls. The plaintiffs has also placed reliance on a bank statement of an account of the Trust issued by the Sangli Bank Limited for the period from 1st May, 2006 to 22nd June, 2006. Perusal of this statement of account shows deposit of huge cash amounts on or before 12th June, 2006. It is contended that these deposits purport to be towards donations made by the persons who have been illegally inducted as trustees of the defendant No. 1. Mr. G.N. Agarwal, learned Counsel appearing for the defendant No. 2, submits that his client is the President of the Executive Committee and that the resolution had been passed by the Executive Committee on 27th May, 2006 to the effect that only persons who were enrolled as trustees up to 10th June, 2006 would be permitted to participate in the elections to the Executive Committee. Mr. V.P. Singh, learned senior counsel appearing for the plaintiffs in CS (OS) Nos. 1328-1329/2006 raising similar grievances. It has also been pointed out that the Election Officer Shri Babu Ram Gupta, defendant No. 31 (in CS (OS) No. 1329/2006) has issued a notice inviting nominations and also inviting elections which shall be conducted in respect of the posts which are not even notified under the constitution and bye-laws of the defendant No. 1. Mr. R.P.Bansal, learned Senior Advocate appearing for the plaintiffs has also drawn my attention to deposit slips of persons who have deposited the subscriptions and donations, submitted that these persons have not been notified as trustees of the defendant No. 1 by the defendant No. 31.

Having heard learned Counsel appearing for the parties and perused the plaint and the documents placed on record, it is evident that there has been no verification of even the electoral roll nor list of trustees who were eligible to participate in the election process, in terms of the decision of the Executive Council of the defendant No. 1 dated 27th May, 2006. Prima facie, it also appears that the nominations have been invited and the elections are proposed to be conducted for posts which are not contemplated and/or provided for in constitution and bye-laws of the defendant No. 1. From the electoral list purportedly prepared by defendant No. 31, it prima facie appears that large number of persons have been added after dispatch of the notices on 10th June, 2006.

In these circumstances, having heard learned Counsels and perused the plaint and documents, I am satisfied that the plaintiffs have made out a prima facie case for grant of ad interim injunction. The trust is concerned with huge amounts of moneys and undoubtedly its affairs in law require to be run by a family elected executive. Irreparable loss and damage shall result if the interim orders prayed for are not granted.

Accordingly, it is directed that the defendant No. 31 shall not proceed with the election process scheduled to be held on 25th June, 2006 till the next date of hearing without verification of the electoral rolls and its publication in terms of resolution dated 27th May, 2006.

This injunction order shall however be subject to the plaintiffs filing an undertaking by way of affidavit within three days undertaking that in the event of the court deciding against them in this application, they shall be liable to reimburse the Trust for the expenditure incurred on the issuance of the notices or any other amount incurred on the election process as well as cost resulting from the delay in the elections.

IA No. 7146/2006

This application has been filed by the plaintiffs seeking exemption from filing the court fee as well as exemption from filing English translation of the documents.

Let the requisites be filed within one week.

The application is disposed of in the above terms. Copy of this order be issued dusty to counsel for the parties under the signatures of the court master.

Similar order was passed in CS(OS) No. 1328/2006.

It is noteworthy that all three suits were being listed together.

Therefore orders have been passed from time to time upon hearing of the parties.

4. An application I.A. No. 7150/2006 has been filed in CS(OS) No. 1329/2006, wherein Shri Babu Ram Gupta, who had been appointed the election officer by the executive committee of the society was arrayed as as a party and represented before this Court, informed the court that the elections which were scheduled to be held on 25th June, 2006 were not held as the election officer erroneously read the order dated 23rd June, 2006 as prohibiting conduct of elections. At the same time, the parties were in dispute with regard to compliance with the resolution dated 27th May, 2006 which had been passed by the executive committee.

5. On 3rd July, 2006, all parties present had requested that elections to the executive committee of the society take place on 23rd July, 2006 subject to completion of the election process within this period. In this view of the matter, with the consent of all the parties and in order to obviate allegations and counter allegations, Mr. R.S. Chabra, retired Joint Registrar of this Court was appointed as a court observer. It was consequently directed thus:

It is pointed out by the Registry that the process fee was not filed. The plaintiffs shall pay costs of Rs. 5,000/-. The costs shall be paid in equal shares to the National Legal Aid Fund and NALSA and the Delhi High Court Legal Services Committee in equal share within a period of five days. Subject to proof of the deposit of costs being filed in the Registry, summons shall issue in terms of the order dated 23rd June, 2006, returnable before the Joint Registrar for admission/denial of the documents on 11th September, 2006. The matter shall be posted before court on 14th November, 2006 for framing of issues.

IA No. 7150/2006

Mr. Puneet Bhatnagar, Advocate accepts notice on behalf of defendant Nos. 1 and 9 and Mr. Sunil Mittal, Advocate accepts notice on behalf of defendant No. 31. Notice shall issue to other defendants upon the deposit of costs by the plaintiffs as directed in the suit. Reply be filed within six weeks.

Rejoinder thereto, if any, be filed before the next date of hearing.

Mr. Sunil Mittal, learned Counsel appearing for the defendant No. 31-Mr. Babu Ram Gupta, defendant No. 31 submits that the elections were not held on the 25th June, 2006 as the election officer read the order dated 23rd June, 2006 as prohibiting conduct of the election. This was obviously an incorrect position taken by him in as much as this Court had only directed that the elections should not be conducted without verification of the electoral rolls and its publication in terms of the resolution dated 27th May, 2006.

Learned Counsel appearing for the parties, however, are at dispute with regard to compliance with the resolution dated 27th May, 2006 which has till date not been produced before this Court by any of the parties. However, there is agreement that in order to obviate allegations and counter allegations, interests of justice merit that a court observer be appointed to ensure that there is a compliance with the direction contained in the order dated 23rd June, 2006.

Accordingly, Mr. R.S. Chhabra, retired Joint Registrar of this Court, is appointed as a court observer to effect verification of the electoral rolls and to ensure that the same is in compliance with the resolution dated 27th May, 2006 as well as to be an observer to the Annual General Meeting in order to conduct the elections of the Sri Aggarwal Dharamshala Trust. Complete records as required by the observer shall be produced before him by all the parties. Notice to the person, whose membership has been verified by the court observer, may be issued under the signatures of the defendant No. 31 under the observership of the court observer.

Both parties submit that the process of verification shall take one week and notice is required to be given under the bye-laws of the trust. Accordingly, both parties request that the election take place on the 23rd July, 2006 subject to the necessary process for conduct of elections being completed within this period. It is directed that the election shall be held on 23rd July, 2006. If, for any reasons, the process cannot be completed, liberty is given to the election officer and the court observer to fix an appropriate date.

In order to ensure the process of verification of the membership, the court observer shall be at liberty to call for all the documents from the parties as may be necessary. He shall also be facilitated with the necessary statement of accounts and bank records by the parties.

It is further submitted by the parties that work required to be put in by the observer is time consuming and considerable efforts shall be required to be made. They suggest that for the time being, he may be paid a sum of Rs. 50,000/- to be shared between the plaintiff and defendant No. 1. The fees shall be paid within a period of two days. The defendant No. 1 shall also be responsible for making payment of all the ancillary and incidental expenses which may include the conveyance charges.

IA No. 7158/2006

Mr. Rakesh Malhotra, Advocate accepts notice on behalf of plaintiffs. Let reply be filed within six weeks. Rejoinder thereto, if any, be filed before the next date of hearing.

Learned Counsel for the plaintiffs submit that the undertaking could not be filed as he was out of station and prays for condensation of delay. Delay in filing the same is condoned. The same may be filed in the Registry today itself.

List on 14th November, 2006.

Interim orders also made shall continue till further orders.

dusty to both parties.

6. In order to enable expeditious process of membership verification, the court observer was given liberty to call for documents from the parties as were deemed necessary by him. The parties were directed to facilitate the membership verification process with the necessary documents including he statement of accounts and bank records of the parties.

7. The three suits were listed from time to time and several applications came to be filed.

8. It also appears that pursuant to the orders passed by this Court, the court observer had conducted several proceedings and an interim report dated 28th July, 2006 and a report dated 20th September, 2006 were filed by him. This resulted in objections by some of the defendants and other persons whose membership had been invalidated by the court observer. These objections were registered as IAs 10964 and 10965/2006 in CS(OS) 1327/2006; IAs 10843/2006 and 10960/2006 in CS(OS) 1328/2006 and IAs 10844/2006, 10847/2006, 10959/2006 and 12571/2006 in CS(OS) 1329/2006.

The elections were then stated to be scheduled on 1st October, 2006. All parties were agreed that elections were being unreasonably delayed and that it would be in the interest of justice if an election officer was appointed by this Court. Accordingly, with the consent of all parties, Hon'ble Mr.Justice K.Ramamurthy (Retired) was appointed as an Election Officer. Further directions issued by this Court on 28th September, 2006 were to the following effect:

CS (OS) Nos. 1327, 1328 and 1329/2006

1. It has been pointed out that the learned observer has filed a report dated 20th September, 2006 wherein a finding has been returned with regard to the membership of the members of the defendant No. 1 Trust. Along with the report, the learned observer has enclosed as List 'A', a list containing 1102 persons whose membership of the Trust was undisputed. Two further lists have also been enclosed as List 'B' and 'C'. So far as List 'B' is concerned, only the membership of two persons has been found to be valid. Out of the various persons named in List 'C', membership of only 12 persons has been found to be valid. The report also mentions two further lists of members as Lists 'X' and 'Y'. These lists, however, have not been enclosed with the report placed before this Court. The learned observer has held that these persons named in Lists 'X' and 'Y' were not validly inducted as members of the Trust.

2. Mr. V.K. Jhanji, learned senior counsel appearing for the plaintiffs in CS (OS) No. 1329/2006 has drawn my attention to the proceedings dated 8th September, 2006 of the observer. All the parties who are present before this Court today in the suits listed today were present in these proceedings except the persons mentioned in the List/Annexure 'X'. The proceedings noted the presence of Mr. Babu Ram Gupta, Election Officer as well. The learned observer in these proceedings has noted thus:

CS (OS) No. 1327-1329/2006

Present: Mr. B.K. Sood for the Trust with Mr. Puneet Bhatnagar

Mr. Rakesh Mahajan for the plaintiff in Suit No. 1327/2006

Mr. Sunil Kumar Singh for Counsel for the plaintiff in Suit No. 1328/2006

Mr. Babu Ram Gupta, Election Officer

It is stated by counsel for the plaintiff in Suit No. 1328/2006 that he does not want to say anything in rebuttal to the arguments/documents submitted by the Trust on 6.9.2006 relating to alleged payments by cheque by some of the persons whose names have been included in the List of new members filed by them.

It is agreed by all that the election may be held on 1st October, 2006.

It is suggested by the parties and the Election Officer that notice may issue to the Trustees/members on 20th September, 2006.

Two registers of members have been shown. The same have been returned. Keeping in view the date of the election, Election Officer is requested to give his views by 12th September, 2006 to enable me to complete the verification of List in the light of views of the Election Officer, well in time.

3. Learned Counsels appearing before this Court today have pointed out that despite the elections having been scheduled for 1st October, 2006, no steps whatsoever have been taken by the Election Officer.

4. In the meantime, I.A. No. 10847/2006 on behalf of defendant Nos. 1 and 9; I.A. No. 10959/2006 on behalf of defendant Nos. 1, 9, 6 and 15; and I.A. No. 10844/2006 in CS (OS) No. 1329/2006 on behalf of the plaintiff have been filed whereby objections have been made to the report of the learned observer. An objection has been raised that the records relied upon by the learned observer have not been enclosed with the report.

5. Having regard to the nature of the objections, it would be in the interest of justice if an opportunity is given to the learned observer to make a further report in respect of the contentions raised by the parties and the copies of these objections filed before the court are made available to the learned observer. The learned observer shall also file copy of such record which has been relied upon by him for consideration prior to making of the reports before this Court. The applicants shall make available copies of their objections to the learned observer during the course of the day. The learned observer may consider the objections and file his further report, if any, within a period of one week from today.

6. In the meantime, however, looked at from any angle, what is being postponed is the conduct of the elections. Several suits have been filed objecting to the conduct of the elections before this Court raising objections inter alia, to the manner in which the notice of elections had been issued by the Election Officer. The proceedings dated 8th September, 2006 point out that the schedule of the elections had been agreed to by all the parties including Election Officer. Yet no steps appear to have been taken in this regard. It is further evident from the objections and the contentions of the parties who are present before this Court that there is a lot of acrimony between the parties. All the parties appearing today before this Court, including the Trust, which is duly represented are agreed that it would be in the interest of justice if a Retired Judge of this Court is appointed as an Election Officer in place of Shri Babu Ram Gupta so that the work of the Trust is not impeded in any manner whatsoever.

Accordingly, with the consent of all the parties, I hereby appoint Mr. K.Ramamurty, Retired Judge of this Court as Election Officer in the case.

7. A direction shall issue to Shri Babu Ram Gupta to hand over all records of the Trust and the process of the elections which has been conducted by him so far to Mr. Justice K. Ramamoorthy, who is appointed as Election Officer today within a period of one week from today.

8. The court observer who was appointed by this Court on the 3rd July, 2006 shall facilitate Mr. Justice K. Ramamoorthy in the election process. Parties are agreed that the Election Officer shall be paid a fees of Rs. 2 lakhs for the conduct of these elections. The court observer shall be paid a further sum of Rs. 75,000/- towards the work done. The payment of the fees shall be made by the defendant No. 1 Trust. The defendant No. 1 Trust shall also be liable for bearing all expenses of travel, all administrative, incidental and ancillary expenses which are required to be incurred for the purpose of conducting elections by the Election Officer and the court observer.

9. Liberty is given to the court observer to take the assistance of any stenographer or administrative staff for the purpose of conducting elections and its proceedings. Such a staff shall be paid a sum of Rs. 10,000/- by the defendant No. 1 Trust. The observer shall intimate the name of such person to Mr. B.K. Sood, learned Counsel appearing for the Trust.

10. Having regard to the nature of the objections which have been filed to the report of the learned observer and in order to obviate any delay in the conduct of the elections, in my view, it would be in the interest of justice that pending these objections, the elections process be initiated and voting take place.

However, undoubtedly, the objectors deserve to be heard prior to their being denied an opportunity to participate in the elections. It is certainly not possible to arrive at such a finding today since further observations have been called for from the court observer.

In this view of the matter, pending further observations and the objections which are pending before this Court, it is directed that for the purpose of elections, the Election Officer and Observer shall prepare a separate list of voters containing the names of the members who have been mentioned in the List 'X' and 'Y'. The notice in respect of elections shall also be issued to these persons as well. However, separate ballot boxes shall be utilized for the votes of the persons mentioned in Lists 'X' and 'Y'.

Needless to say, this process would also require separate ballot boxes in respect of the persons whose membership have been found to be valid which would include the persons mentioned in List 'A' containing 1102 persons, two persons mentioned in List 'B' and 12 persons mentioned in List 'C'.

So far as members whose names are mentioned in List 'X' and 'Y' are concerned, a separate voting area shall be maintained and the votes of these persons shall be permitted to cast in separate ballot boxes which shall be kept sealed.

It is made clear that there shall be no identification marks on the votes of any kind identifying these members as those mentioned in List 'X' and 'Y'.

11. All the sealed ballot boxes shall be kept under the custody and control of the Election Officer at such place as he may deem appropriate. In case any further charges for the purpose of preservation of these ballot boxes or their storage are required to be incurred by the Election Officer, he may intimate the same to the defendant No. 1/Trust which shall make payment thereof immediately.

Needless to say, the results of the elections shall be declared upon adjudication of the objections raised by the parties.

Liberty is given to the learned Election Officer to settle a schedule for the elections. Having regard to the fact that the elections have already been delayed, it is expected that the process shall be completed within a period of six weeks from today.

It is made clear that the permission granted to the members whose names are appearing in the List 'X' and 'Y' to vote by the order passed today is no adjudication on the validity of their membership. The same shall not create any equity or rights in these persons to claim in respect of the membership of the defendant No. 1 Trust.

The payments shall be made to the Election Officer and the observer within one week.

I.A. Nos. 7145, 7923, 7925, 10117, 10963, 10964 and 10965/2006 in CS (OS) No. 1327/2006;

I.A. Nos. 7147, 7159, 10842, 10843 and 10960/2006 in CS (OS) No. 1328/2006;

I.A. Nos. 7150, 7158, 10127, 10128, 10844, 10845, 10846, 10847/2006 and 10959/2006 in CS (OS) No. 1329/2006

The parties shall place before this Court a list of dates and propositions along with a chart setting out a comparison of the various Trust Deeds relied upon by them; the resolutions of the Trust in seratium. List on 9th October, 2006.

Liberty is given to the counsels for the parties to facilitate pagination of the file in the registry.

dusty.

9. The matter thereafter remained pending for hearing of the applications and objections to the reports of the observer. The court observer has filed a third report dated 9th October, 2006 before this Court pursuant to the directions which were made on 28th September, 2006 taking a final view in the matter.

10. In view of the request made by all parties, these applications and all objections have been taken for hearing and detailed arguments addressed.

11. So far as the undisputed facts of the case are concerned, Shri Aggarwal Dharamshala Trust (Registered) was registered as a society under the Societies Registration Act, 1860. The Society was functioning in terms of its constitution and bye laws.

It is the admitted case of all parties that the constitution pursuant to which the society was registered provided that any person who made a donation/'chanda' of Rs. 501/- or more could become a member. It is also undisputed that this constitution did not provide for running of a school or an academic institution in the objects of the society.

12. On or around the 21st July, 1986 a Montessori(Pre-Nursery School) was set up by the society from the premises of the mandir. This school was started with about 32 students. In the year 1988, this school was granted recognition by the Government of Delhi. It has been orally submitted on behalf of the society by Mr. B.K. Sood, learned Counsel that this school was granted affiliation to the Central Board of Secondary Education in the year 1992. I may note that there is no document in support of these submissions placed by either side before this Court till the time the matter was reserved for judgment.

13. It appears that in 1988, the society applied to the Delhi Development Authority (DDA) for allotment of land to it for setting up a school. The DDA in consultation with the Government of NCT of Delhi, approved and allotted land for setting up a school in 1994 and they were also allotted four acres of land in Pitam Pura, Delhi in the year 1995.

14. It is an undisputed position that the Society was functioning as per its Constitution and Bye Laws. None of the parties before this Court has made any allegation that the functioning of the Society was in any manner in violation of the bye laws.

15. Now comes the area on which there is divergence between the stand taken by the plaintiffs on the one hand; and the Society and Shri Om Prakash Gupta, its General Secretary on the other.

16. The plaintiffs have contended that in the year 1994, the constitution and the bye-laws of the Society were amended by a decision of the general body. Thereby the minimum donation/'chanda' pursuant to which a person could be inducted as a member of the Society was increased from Rs. 501/- to a minimum of Rs. 2100/- and the objects and bye-laws were expanded to include running of an educational institution.

17. Thereafter according to the plaintiffs, after the allotment of the land, in order to provide for the funds required for building a school, the minimum donation/'chanda' required to be paid for acquiring the membership of the Society was further increased from over Rs. 2100/- to over Rs. 51,000/- and that a resolution to this effect was passed in the general body meeting of 1996.

It has been argued on behalf of the plaintiffs that the constitution was also amended to provide for additional posts in the executive committee.

Mr. R.P. Bansal, learned senior counsel Along with Mr.Rakesh Mahajan for the plaintiffs in CS(OS) No. 1327/2006, Mr. V.K. Jhanjhi, learned senior counsel for the plaintiffs in CS(OS) No. 1329/2006, Mr. Vineet Malhotra, Advocate for the plaintiffs in CS(OS) No. 1329/2006 and Mr. Deepak Sabharwal, Advocate for the plaintiffs in CS(OS) No. 1328/2006 have contended that elections to the managing committee have to abide by these bye laws and no deviation is permissible.

18. It is these basic contentions on which the parties are at variance. Before this Court, Mr. B.K. Sood, learned Counsel appearing for the society has taken a stand that the constitution and bye laws of the Society were never amended and that any person who had made payment of Rs. 501/- or more was entitled to become a member of the Society. It has been stated that no records of the Society after 1998 are available with the Society and there is no resolution of the general body meeting since 1972 available with the Society. The suits are stated to be malafide and at the instance of Mr. Ramphal Gupta, who was the general secretary of the Society from 1998-2002 and is now the outgoing president of the Society from 2002-2006. Contradictions in the cases set up by the plaintiffs have been pointed out. It has been urged that plaintiffs in the plaints in suit Nos. 1327/2006 and 1328/2006 have pleaded that the membership fee was to the tune of Rs. 5100/- and it has further been pointed out that the plaintiffs have claimed that there were more than 1700 members of the defendant No. 1-Society.

19. On behalf of the defendant No. 1, strong reliance is placed on a photocopy of a document which has been put forth as the only constitution which binds the defendant No. 1 and prescribes minimum `chanda'/donation of Rs. 501/-. It has been contended that this document was certified by some government departments on 16th May, 1972. Reliance has been placed on bye-law No. 2 of this document which provides the constitution and composition of the managing committee of the trust; bye law No. 18 which defines the functions of the office bearers and bye-law No. 25 which provides that amendment of the constitution could take place by a - (three fourth) majority of the members who were present.

There is a categorical statement by Mr. B.K. Sood, learned Counsel on behalf of the defendant No. 1 that there is no resolution, however, passed by the society whereby its constitution was ever legally amended.

20. It is necessary at this stage to notice the submissions made on behalf of defendant No. 1 with regard to the different amounts purporting to be receipts from different persons when they were inducted as members and acknowledgements wherein different amounts have been shown as the subscription fees. Two receipts dated 19th April, 1997 reflect the amounts of Rs. 2100/- and Rs. 1100/- as the subscription fee while a receipt of 29th June, 1997 was pointed out as reflecting Rs. 5100/- as the subscription. Two other receipts both for the sum of Rs. 5100/- dated 16th July, 1997 and 21st July, 1997 have been pointed out.

21. According to Mr. B.K. Sood, as per the balance sheet of the Society, up to 31st March, 2001, the amount reflected as against the capital account shows that the new membership fee balance was Rs. 10,000/- and further that the balance sheet reflects subscription of Rs. 5100/- received from the eight members which totals Rs. 40,800/- Another figure in the balance sheet of Rs. 25,500/- has been urged to be the subscription fee of five members of Rs. 5100/- each.

Learned Counsel has urged that up to 31st March, 2004, there were no new members.

22. Four persons have been at the centre of a strong controversy. Ms. Vanita, Mr. Lokesh Gupta, Mr. Vinod Kumar Goel and Mr. Amit Kumar are stated to have deposited Rs. 5100/- on 8th June, 2006. According to the defendant No. 1, these persons are all related to Mr. Ramphal Gupta, the outgoing president and they have been reflected as valid members in the three suits filed by the plaintiffs. Mr. Sood, learned Counsel has drawn my attention to the bank statement relating to the account of Shri Amit Kumar Gupta wherein an amount of Rs. 40,000/- has been received by him on 19th June, 2000 from M/s. Banarasi Das Om Prakash. As per the bank statement of his account, according to Mr. Sood, Mr. Amit Kumar Gupta has issued several cheques on 19th June, 2006 on behalf of several persons of the amount of Rs. 5100/- all in favor of the society. Based on these documents, relating to Mr. Amit Gupta, it has been contended by Mr. B.K. Sood, learned Counsel, that even according to the plaintiffs, the only subscription which a person was required to pay in order to become a valid member was an amount of over Rs. 501/- and for this reason Mr. Amit Kumar Gupta has issued the cheques of Rs. 5100/- on account of the subscription fee of different persons. It has been urged that the stipulation in the constitution of 1996 requiring persons to pay an amount of Rs. 51000/- as subscription fee was never implemented.

23. Learned Counsel for the defendants and objectors have also pointed out that one Shri Nathu Ram who was the vice president of the society has filed an affidavit dated 21st August, 2006 before the observer deposing that by a resolution passed in 1996, the subscription was enhanced to Rs. 51000/- and other amendments were also carried out to the bye laws of the society. In order to falsify this deposition of Shri Nathu Ram, the defendants and objectors have drawn my attention to a receipt dated 27th September, 1998 issued by Mr. Nathu Ram Goyal to Mr. Shiv Kumar purporting to be towards his subscription for membership of an amount of only Rs. 5100/-.

For the above reasons, the defendants and objectors have also faulted the affidavit of Mr. Amit Kumar Garg to the same effect which was deposed on 21st August, 2006.

24. So far as the other ground relating to the posts for which the elections have been called, it has been urged that elections to such posts are being held since 1996 and that such posts have been mentioned in the balance sheets and accounts of the defendant No. 1 and consequently cannot be faulted.

25. It is necessary to note the vigorous arguments urged by the defendant with regard to malafides on the part of Mr. Ramphal Gupta, outgoing president and by the plaintiffs against Mr. Om Prakash, general secretary of the society to the effect that large number of persons have been enrolled as members between 8th to 12th June, 2006 in order to subvert the elections. According to Mr. Sood, learned Counsel for the Trust (society) and Mr. Om Prakash Gupta, the general secretary, the outgoing president Mr. Ramphal Gupta had removed the records of the society from its offices and police complaints in this behalf have been necessitated. For this reason, it is pointed out that so far as members who have been inducted by Mr. Om Prakash, general secretary, the receipts have been issued which receipts ran from serial Nos. 1 to 60. The receipts from serial Nos. 61 to 310 show payment of cash amounts on 9th and 10th June, 2006 and have been issued by the treasurer. However the receipts which have been produced on behalf of the plaintiffs commenced from serial numbers 350 and run to serial No. 1100 which have been signed by Shri Ramphal Gupta on 16th June, 2006.

26. The counsels for the defendants and the objectors have contended that the observer, in considering the validity and invalidity of the membership of the different persons, has ignored certain very important facts and documents and consequently the rejection by the observer of persons who have been placed in the lists termed as list 'X' is invalid. The plaintiffs in CS(OS) Nos. 1327 and 1328/2006 have also disputed the invalidity of persons placed in list 'Y'.

27. Learned Counsel for the defendant No. 1 has submitted that the persons whose names are mentioned in list X had made payments of the subscription fee of Rs. 5100/- in cash on or before 10th June, 2006. It has been submitted that their names have been invalidated on the ground that these amounts were not deposited in the accounts of the society on or before the 10th June, 2006 and were deposited only on 12th June, 2006. Learned Counsel has contended that these persons had deposited the amounts before the deadline and were issued receipts for their payments which were on or before the 10th of June, 2006. Yet, the observer has erred in failing to note that 9th June, 2006 was a Friday while 10th June, 2006 was a Saturday. The account of the society wherein the subscriptions are deposited is with the Sangli Bank. It has been contended that the amounts could not be deposited for the reason that the Sangli Bank was closed on 11th June, 2006.

The other account of the society in the State Bank of India, Karol Bagh, Delhi is stated to be a saving bank account wherein, according to counsel for the defendant No. 1, the amount received on account of subscription is never deposited.

28. The other material document which is contended to have been ignored by the observer is stated to be the bye-laws and constitution of the society which were provided to him by the defendant No. 1. It is submitted that this purported to be a copy of the bye-law which was made available by the income tax authorities with whom the same was deposited by the society in the year 2003 as per a certificate given by an official of the income tax authorities. Mr. B.K. Sood, learned Counsel has vehemently contended that the bye-laws relied upon by the observer as having been given to the CBSE were never given by the defendant No. 1 but were made available to the CBSE by the school and hence do not bind the society.

29. From the consideration of the submissions made by both parties, the core issues which arise for consideration in the instant matter to my mind are:

(i) What is the constitution and the applicable bye laws of Shri Aggarwal Dharamshala Trust ?

(ii) What would be the donations/subscription fee that a person would be required to deposit to entitle him/her to membership of the society and what are the conditions which would govern valid membership of the defendant No. 1 society ?

(iii) What are the posts in the managing committee of the society which are prescribed under the constitution and bye laws to which elections can be held?

(iv) Who are the valid members of the society in terms of the constitution/bye laws and the resolution dated 27th May, 2006 eligible to vote in the elections and whether the persons whose names figure in lists X and Y are entitled to vote in this election ?

30. Adjudication in the present matter on these issues has been primarily necessitated on account of the categorical statement on behalf of the defendant No. 1-society that no records are available in respect of the minutes of the annual general meetings other than minutes of three meetings which were produced before the court observer. In the written statement dated 30th August, 2006, filed in CS(OS) No. 1327/2006 which has been filed by the defendant - society and defendant No. 4 Shri Om Prakash Gupta, general secretary it has been categorically stated thus:

4. It is submitted that as per the record of Rules and Bye-laws of defendant No. 2 as available with defendant No. 4, it is apparent that legitimate subscription for becoming the Trustees of defendant No. 2 Trust is only Rs. 501/- inasmuch as no record is available (by way of amendment of the Rules and Bye-laws of the Trust Deed in General Body Meeting of defendant No. 2) whereby subscription mentioned in the said Rules and Bye-laws, which was adopted in the year 1972, was ever revised thereafter in accordance with Rules and Bye- laws of the Trust Deed. In so far as the posts of the Managing committee as referred to in paragraph 7 of the plaint is concerned, it is submitted that for about last eight years, elections to the posts of Senior Vice President, three Secretaries and Organising Secretary has been held, and the same also find mentions in the audited Balance Sheets of the Trust for the year 2000 onwards till date. Elections to these posts have been held unopposed, as per minutes of General Body Meeting, for the years 1998, 2002 and 2004, available with the Trust presently and various persons have been functioning on these posts.

Because of said facts, elections to these posts were scheduled. In the light of these facts, the present suit is misconceived and is liable to be rejected.

31. Shri Om Prakash Gupta, general secretary of the society has also filed an affidavit dated 12th July, 2006 before the observer, copy whereof has been placed before this Court as well, wherein he has deposed thus:

I say that the original Trust Deed of Sh. Aggarwal Dharamshala Trust (Regd.) is not presently available with us. However, a copy of the same in Hindi has filed by the plaintiff in CS(OS) No. 1327/2006 and in Hindi and its English translated copy filed by the plaintiffs in CS(OS) No. 1329/2006 being copy of Memorandum, Rules and Bye-Laws are enclosed herewith. The contents of the document has been explained to me in vernacular.

The bye laws which were so filed by Mr. Om Prakash Gupta, before the observer were one copy of the bye- laws which included the changes made to the bye-laws wherein the minimum required donation was increased to Rs. 2100/- while the second bye law required a minimum donation of Rs. 51000/-

32. Pursuant to the orders passed by this Court, the court observer has filed reports stating that it has conducted detailed proceedings for verification of electoral rolls held on 02.08.2006, 04.08.2006, 07.08.2006, 10.08.2006, 11.08.2006, 12.08.2006, 17.08.2006, 18.08.2006, 21.08.2006, 22.08.2006, 23.08.2006, 25.08.2006, 28.08.2006, 31.08.2006, 04.09.2006, 06.09.2006 and 08.09.2006. The court observer was permitted liberty to inspect and call for all records as are necessary.

33. It has been pointed out that the society has placed only the current cash book; bank deposits slips only for the period 27th May, 2006 to 15th June, 2006; copies of some bank statements; minute books in original containing the resolution dated 27th May, 2006; copies of statement of accounts of the Sangli Bank Limited and the State Bank of India, Padam Singh Road; cash deposits slips in original dated 12th June, 2006 of the Sangli Bank Ltd. and certain other documents before the observer on 12th July, 2006. These documents have been placed before the observer on 12th July, 2006, 17th June, 2006, 21st August, 2006, 25th August, 2006 and 6th September, 2006.

34. In order to ascertain as to whether the constitution and bye laws of the society were ever amended or changed, it was necessary to peruse the minutes books of the trust. However, the only minute books which have been produced before the observer contain minutes of three meetings only. The society produced minutes of the meetings held on 31st May, 1998; 30th June, 2001 and 27th June, 2004 and none other.

35. Computerised ledger accounts of the members were produced and scrutinised by the observer and also membership receipts issued to persons who were stated to have paid by cash their respective subscription on 9th and 10th June, 2006 were produced before the observer.

The plaintiffs in the suits also produced similar documents before the observer which have all been placed before this Court.

36. It appears that so far as the list of members was concerned, four lists of members/trustees came to be filed before the observer. On 10th August, 2006 all the parties to these suits drew up a list containing names of 1102 persons whose membership was undisputed. This list of undisputed members was approved and signed by all the parties.

The society had submitted names of additional 262 members. Out of these, names of 12 persons were cleared by all the parties as undisputed who were also included in the list of undisputed members/trustees. Out of these Smt. Sunehari Devi is stated to have expired.

On 12th August, 2006, a list of two members which was filed on behalf of the plaintiffs in CS(OS) No. 1327/2006 was approved by the parties.

From the above, therefore, 1102 persons were approved on 10th August, 2006; two persons out of the names put up by the plaintiff in Suit No. 1327/2006 and the names of 12 persons stated on behalf of the society were approved as members, bringing the total of persons who would form part of the undisputed list of members to 1116.

There is no dispute even before this Court to the list of these 1116 members.

37. It is noteworthy that the election officer Sh. Babu Ram had sent notices initially to only 1116 persons by a courier receipt of M/s Packways bearing invoice No. 897 dated 10th June, 2006.

38. So far as the list of persons who are to be found in the list of disputed members is concerned, the society had put forth a list of 250 such members while the plaintiffs in Suit No. 1328/2006 had set up a list of 311 such members. Since the observer, for the purposes of convenience had marked the list of such persons proposed by the society as list X and the list of members proposed by the plaintiff in CS(OS) No. 1328/2006 as list Y, the same are being so referred to in the present order as well.

39. List X (proposed by the society) consists of 250 persons who are stated to have paid subscription of Rs. 5100/- each in cash on 9th and 10th June, 2006.

List Y consists of 311 persons who have paid subscription of Rs. 5100/- each by cheque on 9th June, 2006.

40. Before addressing the issue as to whether these persons were validly enrolled as members of the society, it is necessary to consider the material placed before the observer and before this Court by the parties as to which was the constitution/bye-laws which binds the functioning of the society.

41. I have heard learned Counsels at great length and carefully perused the record.

The first issue which requires to be considered is what is the constitution and applicable bye laws applicable to Shri Aggarwal Dharmshala Trust?

42. A significant factor which would govern decision in the present matter is the fact that none of the parties to the present litigation has contended that the society was not functioning in accordance with its constitution and bye laws. There is also no allegation of financial mismanagement against the society, its managing committee or against any of its members. It is also to be borne in mind that the society has taken a posture that it was not possessed of any of the relevant record relating to the decisions taken in the various meetings of the society including the general body meetings which are required to be held as per the bye laws of the society. A prime facie conclusion at this stage therefore has to be drawn from the circumstantial evidence placed by the parties before this Court.

43. By the orders passed on 21st July, 2007, the learned observer was permitted to take into consideration not only the records produced by the parties but also to collect information and material from the banks and other concerned authorities. I find from the reports placed before this Court, and as is also admitted by all parties before the court, that the observer put in substantial effort and has closely examined the available records relating to the parties with the various authorities.

44. It is noteworthy that the bye laws prescribing the minimum amount of Rs. 501/- or more for enrollment as member; the memorandum and bye-laws providing Rs. 2100/- or more as the subscription fee/donation and the memorandum and bye- laws providing Rs. 51000/- as the membership fee all contain a clause 25 which permits amendments/alterations/extension/abridgment of the bye laws by deletion of the clauses contained therein by a majority of - (three fourths) of the members present and voting in the general body meeting.

45. With the letter dated 17th July, 2006 to the court observer addressed by Shri Om Prakash Gupta, had produced two minute books, one containing the minutes of a meeting of the general body held on 31st May, 1998 while the other contained minutes of two meetings held on 30th June, 2002 and 27th June, 2004 respectively. The admitted position is that initially meetings were held annually while since 1998, the meetings of the general body are being held biennially. No minutes for the meeting held in 1996 or for any other date were produced.

The present case is concerned with the minutes of the meetings which would have been held in the years 1995 or 1996 which are of extreme significance. However, undoubtedly, either the same have been deliberately not produced and withheld from the observer and from this Court or are genuinely not available with the society. It was stated on behalf of the society before this Court that there was no other record of meetings of the general body available.

46. It is interesting to notice the plight of the record of this society even with the prime statutory official body which would be concerned with the present matter. There is no dispute that the society was registered with the Registrar of Societies in accordance with law. The society has stated that it has no formal record of the memorandum and bye laws which were approved by the Registrar of Societies and which govern its functioning either at the inception or thereafter. No certificate of registration of the society has also been produced. The learned observer has arrived at a conclusion that the society was formed in April, 1957 from the memorandum and bye-laws wherein the fee of Rs. 501/- or more has been prescribed.

47. Mr. B.K. Sood, learned Counsel for the society has placed reliance on a letter dated 21st July, 2006 wherein the Registrar has noticed thus:

With reference to letter dated 14.7.2006 received from Shri Aggarwal Dharamshala Trust regarding supply of certified copies of the Memorandum of association and Rules and regulation of Trust. In this regard it is informed that the said file of the society is missing since long back before 1982. In this regards a letter dated 05/11/1982 was also issued from the office of the Registrar to provide necessary documents for the reconstruction of the file of the society, whose reply is still awaited. Hence we do not have any copy of the Memorandum of association, Rules and regulation nor any resolution passed by the Trust.

There is also no record available with regard to the follow up of this communication. Another letter dated 4th August, 2006 placed before this Court only reiterates the position taken in the earlier letter by the Registrar of the Societies.

Therefore, no record with regard to the registration or the memorandum and bye-laws of the society either at the inception or with regard to any amendments thereof is available with the Registrar of Societies.

48. In the absence of the original record with the authorities, it becomes necessary to examine the circumstantial evidence which would shed some light as to which would be the bye laws according to which the society has been functioning, so as to correctly appreciate the factual situation, it becomes necessary to examine some of the material contents of the available bye laws. The three areas on which the parties have placed reliance and which are necessary to be considered for the purposes of adjudication of the issues in the present matter are firstly, the 'chanda'/donation fee which has been provided; secondly, the posts to which elections are to be held; and thirdly, the periodicity of the meetings. It would be useful to set the provisions which have been provided in the three bye laws along side.

Bye-law providing donation of Rs. 2100/-

Bye-law providing donation of Rs. 51000/-

Aim and object of the Trust would be

3 (a). to construct one Dharamshala and to manage and take care of the same. This Dharamshala would specially be for the use of Aggarwal Caste - for stay of Barats, Social Festivals and for other Objects of the Trust. Dharamshala would be available for persons of other castes if it is available and permission from the Trust Officers has been taken for the same.

b. To establish such organisation or organisations manage and run the same properly whereby persons from Aggarwal castes are benefited and are given, general industrial, sculpture, character building and physical education.

c. To establish and to manage a public dispensary.

d. To give donations to such persons and organisation of Aggarwal caste, who are eligible for the same and to render the assistance to needy persons. Aim and object of the Trust would be

3(a). to construct one Dharamshala and to manage and take care of the same. This Dharamshala would be for the use for persons of all castes - for stay of Barats, Social Functions and for other objects of the Trust.

b...

c...

d. to give donations to such persons and organisation who are eligible for such donation and to render assistance to needy persons.

Aim and object of the Trust would be

3(a). to construct one Dharamshala and to manage and take care of the same. This Dharamshala would be for the use for persons of all castes - for stay of Barats, Social Functions and for other objects of the Trust.

b...

c...

d.

5...

assistance to needy persons.

e. to establish a library and reading room and to manage f. to arrange for discourse of Shrimad Bhagvad Gita and or other Hindu religious books, to arrange for discourse and speeches etc.

g. to establish a temple.

h. to accept gifts of money, property, donations or in any other mode.

i. to take such steps as maybe required for upliftment persons of Aggarwal Castes and to promote the same.

j. to take all urgent legal work which maybe necessary for the object for which Trust has been established.

Rules and Bye-Laws

1. the persons who fulfill the following conditions can become the life trustees of the trust:

a) The founders who have subscribed donation of Rs. 100/- or more

b) The person who donates a lump sum amount of Rs. 501/- or more with a

e...

f. to arrange for discourse, speeches etc. of Shrimad Bhagvad Gita and or other religious books.

g...

h. to take such steps as maybe required for upliftment of persons of all the castes.

i...

j...

k...

ows :occupation are as foll

4. The members of the executive committee of the trust and their address and i to v....

Rules and Bye-laws

1. The persons who fulfill the following conditions can become the life trustees of the trust:

a) The founders who have subscribed donation of Rs. 100/- or more

b) The person who donates a lump sum amount of Rs. 2100/- or more with a desire to become a trustee.

e...

f.

g...

h. to take such steps as maybe required for upliftment of persons of all the castes.

i...

j. to establish a public school and a community hall.

4. The members of the executive committee of the Trust and their address and occupation are as follows:

i. to v...

Rules and Bye-laws.

1. The persons who fulfill the following conditions can become the life trustees of the trust:

a) The founders who have subscribed donation of Rs. 100/- or more

b) The person who donates a lump sum amount of Rs. 51000/- or more with a desire to become a trustee.

c) It is essential for a trustee that he should be Aggarwal by caste and should have good health and moral character. He should be minimum 18 years of age.

desire to become a Trustee

c. It is essential for a trustee that he should be Aggarwal by caste and should have good health and moral character. He should be minimum 21 years of age.

d...

2. Trust will have a managing committee.

a. the managing committee of the trust will have the following office bearers:

i) President

ii) Four vice presidents

iii) secretary

iv) Two deputy secretaries

v) Treasurer

vi) members

The managing committee will have minimum 12 and maximum 21 members including the abovementioned office bearers.

b) The office bearers and members of the managing committee will be elected in the annual general body meeting of the trust and will remain in office for one year.

3. After one year the trustee e

c) It is essential for a trustee that he shouldbe Aggarwal by caste and should have good health and moral character. He should be minimum 21 years of age.

d)...

2. Trust will have a managing committee.

ii) Four vice presidents.

iii) Secretary

a) the managing committee of the trust will have the following office bearers:

i) President

iv) Two deputy secretaries

v) treasurer

vi) members

The managing committee will have minimum 12 and maximum 21 members Including the abovementioned office bearers.

b). The office bearers and members of the managing committee will be elected in the annual general body meeting of the trust and will remain in office for two years.

d)...

2. Trust will have a managing committee.

a. the managing committee of the trust will have the following office bearers:

i) President

ii) Senior Vice President

iii) Four Vice presidents

iv) General secretary

v) Three secretaries

vi) One organising secretary

vii) Treasurer

viii) Members

The managing committee will have minimum 12 and maximum 21 members including the abovementioned office bearers.

b) the office bearers and members of the managing committee will be elected in the annual general body meeting of the trust and will remain in office for two years.

3. After every two years the Trustee (members of the trust will elect the office bearers and members of the managing committee as provided in Rule (2).

The meeting called for this purpose will be called forcefully declared hereby (members of the trust) will elect the office bearers and members of the managing committee as provided in Rule (2). The meeting called for this purpose will be called 'Annual General Meeting'.

4 to 13a,b,c...

14 to 16a,b,c,d,e,f...

17. without prejudice to the legally conferred rights of the general body, it is forcefully declared hereby that the rights of the managing committee will be as follows:

a to j...

k. To open account/accounts in the name of the trust in any scheduled bank or banks on the terms and conditions as deemed proper. Such account will be operated by two out of the three office bearers mentioned below i) President, ii) Secretary iii) Cashier, in which presence of Cashier is essential.

l...

m...

18. The function, rights and duties of the office bearers of the trust will be as follow:

3. After every two years the trustee(members of the trust will elect the office bearers and members of the managing committee as provided in Rule (2). The meeting called for this purpose will be called ``'Annual General Meeting'.

4 to 13a,b,c,d...

14 to 16a,b,c,d,e,f...

17. Without prejudice to the legally conferred rights of the general body, it is forcefully declared hereby that the rights of the managing committee will be as follows:

a to j...

k. To open account/accounts in the name of the trust in any scheduled bank or banks on the terms and conditions as deemed proper. Such account will be operated by the two out of the three office bearers mentioned below i) President, ii) Secretary iii) Cashier/treasurer

l...

m...

18. The function, rights and duties of the office bearers of the trust will be as follow:

1) President - a) to c)...

'Annual General Meeting'.

4 to 11...

12 to 13a,b,c,d...

14 to 16a,b,c,d,e,f.

17. Without prejudice to the legally conferred rights of the general body, it is that the rights of the managing committee will be as follows:

a to j...

k. To open account/accounts in the name of the trust in any scheduled bank or banks on the terms and conditions as deemed proper. Such account will be operated by the two out of the three office bearers mentioned below

i) President,

ii) General Secretary iii)Treasurer, in which presence of Treasurer is essential.

l to m...

18. The function, rights and duties of the office bearers of the trust will be as follows:

1) President a to c...

2. Vice president-

In the absence of the President the senior vice president shall discharge all the duties of the President issue receipts in the name of

1) President - (a) to (c)

2. Vice President....

3. Secretary a to f...

4. Deputy Secretary....

5. Cashier a) He will receive and deposit the amount and issue receipts in the name of trust.

b)...

c)...

d)..

e) The cashier will not keep with more than an amount of Rs. 25/- by way of advance amount

f) For current expenses, the cashier will not give to the secretary more than Rs. 20/-

g) ...

25. If ? of the members present in the meeting of general body are in favor of amending, changing, altering or deleting any of the rules and bye-laws, the same is permissible.

2. Vice president....

3. Secretary a to f...

4. Deputy Secretary...

a) He will receive and deposit the amount and issue receipts in the name of trust.

b) He will keep account of the trust.

c to d...

e) The cashier will not keep with him more than an amount of Rs. 25/- byway of advance amount.

f) For current expenses the cashier will not give to the secretary more than Rs. 20/-

g...

19 to 24 ...

25. If ? of the members present in the meeting of general body are in favor of amending, changing, altering or deleting any of the rules and bye-laws, the same is permissible.

26 to 27...

and shall carry out all the work as the representative of President.

3. General Secretary a to f...

4. Secretary.

a) He will receive and deposit the amount and trust.

b) He will keep account of the trust.

c) to d)...

e) The cashier will keep some money in way of advance amount.

f) For current expenses the cashier will give money to the General Secretary as per requirement for payment of current/running expenses.

g).

19 to 24...

25. If ? of the members present in the meeting of general body are in favor of amending, changing, altering or deleting any of the rules and bye-laws, the same is permissible.

26 to 27...

49. Mr. B.K. Sood, learned Counsel appearing for the society while asserting that the bye laws providing the donation of Rs. 501/- or more are in vogue, does not dispute the existence of the posts which have been detailed and mentioned only in the bye-laws which provide for the minimum donation of Rs. 51000/- in order to become a member of the society. It is not disputed that the only bye laws which provide for the post of general secretary are those which provide the subscription fee of Rs. 51000/-. It is noteworthy Shri Om Prakash Gupta, the General Secretary of the society is contesting all the three suits as the competent person on its behalf and has filed all pleadings on behalf of the society in the suits.

50. So far as the bye laws which provide for the subscription of Rs. 2100/- are concerned, it is neither the plaintiffs nor the defendant's case that they are applicable or in vogue. From the foregoing, it is evident that the same were never implemented inasmuch as the constitution of the executive committee is not as per these bye laws. The parties have also not relied on payments by any person of an amount of Rs. 2100/- in order to be enrolled as members of the society.

51. There is yet another important circumstance which discredits these documents. The society has itself placed a copy of the letter dated 1st August, 2006 from the Corporation Bank, Pitampura enclosing the account opening form whereby the society opened a bank account of the Maharaja Aggarsain Adarsh Public School on 9th April, 2003. The society has also placed a copy of the letter dated 9th August, 2006 from Corporation Bank, Karol Bagh enclosing the account opening form of this school on 6th April, 2003. However I find that before the observer, the society has placed a copy of a letter dated 1st August, 2006 addressed to the General Secretary from the manager of the Corporation Bank, Pitampura, New Delhi enclosing a copy of the account opening form of the Maharaja Aggarsain Adarsh Public School and copy of the bye laws which contained the stipulation as to the minimum donation of Rs. 501/- The society has also placed a copy of a letter dated 9th August, 2006 from the Corporation Bank, Karol Bagh, New Delhi.

52. From these letters, it appears that the accounts which were opened by the society were both of the Maharaja Aggarsain Adarsh Public School. Along with the letters of the managers, the bye laws providing the donation of of Rs. 501/- were enclosed as having been submitted by the society. These documents were filed with the letter dated 21st August, 2006 before the observer on behalf of the society and Shri Om Prakash Gupta its General Secretary.

53. It is also further pertinent to note that the bye laws which have been made available by the two branches of the Corporation Bank and the income tax authorities do not provide for the post of the General Secretary.

54. Along with the letter dated 21st August, 2006, Shri Om Prakash Gupta general secretary had also placed before the observer a copy of a note dated 2nd August, 2006 of Shri M.L. Khanna, Income Tax Officer (Exemption)_ enclosing a copy of the constitution and bye laws which were stated to have been filed on 17th July, 2003 during the course of scrutiny/assessment proceedings. Interestingly, the bye laws which have been made available by the income tax officer are the bye laws which provide the donation of Rs. 2100/- which are admittedly not the bye laws of the society which have been implemented or which govern its functioning.

55. A half hearted explanation has been given by learned Counsel appearing for the society and Shri Om Prakash Gupta, the general secretary that elections to the various posts, which are not mentioned in the bye laws providing the minimum donation of Rs. 501/-, are being held because these posts are mentioned in the balance sheets. This certainly cannot be accepted more so when all the posts to which elections are held are functional posts.

56. It is thus evident that the true, correct and complete disclosure of facts and documents has not been made before this Court. Shri Om Prakash Gupta who is representing the society in these proceedings, is its General Secretary since 2002. There is no explanation with regard to the location or existence of the records which have not been produced. Strangely minutes of three meetings alone have been produced. On 12th of July, 2006, Om Prakash Gupta has sworn and filed an affidavit before the Observer that the original bye laws are not available. He enclosed the bye laws filed by the plaintiffs in CS(OS) No. 1327/2006 and 1329/2006. He does not refer to any other bye laws certified by any person or authority being available nor to any bye laws filed with the income tax authorities or with the two branches of the Corporation Bank even though, if they were so filed, he would have known about the same. There is no mention of copies of these bye laws even in the written statement filed by the defendants.

57. The defendant No. 1 has also tendered no explanation as to how one bye law was submitted, if it was so done, to the branches of the Corporation Bank on the one hand in April, 2003 and barely two months later, a different bye law was submitted by the society itself with the income tax authorities.

58. It appears that the plaintiff in CS(OS) No. 1327/06 placed a letter dated 22nd August, 2006 from the general secretary of the Central Board of Secondary Education enclosing a photocopy of the bye-laws of the society. As the society questioned the authenticity of this letter, the learned observer inspected the record of the Maharaja Aggarsain School admittedly run by the society as was available in the records maintained by the Central Board of Secondary Education. From the report dated 20th September, 2006 submitted by the observer, it appears that Along with letter dated 25th July, 2005 the following documents were submitted to the Central Board of Secondary Education by the society:

(i) Affidavit that the school had a non-proprietary character. The bye- laws were submitted to establish that the school had such non-proprietary character.

(ii) Recognition by Directorate of Education

(iii) Permission for science stream

(iv) Number of class rooms and their sizes.

(v) List of EPF employees

(vi) Staff statement

(vii) Terms of appointment of Principal

Copy of the bye laws of the defendant No. 1 which was available on the record of the Central Board of Secondary Education provides payment of Rs. 51000/- or more as donation/subscription for membership of the society.

59. A vague assertion has been made on behalf of the society before this Court to the effect that the society has not sent the record to the CBSE and that the school had done so. This contention loses force in view of the bank accounts of the school opened with two aforenoted branches of the Corporation Bank by the society. Such a submission is clearly misconceived having regard to the scheme of the Delhi School Education Act, 1972 apart from the facts which have been placed before this Court. The documents submitted to the Board also are clearly indicative of the fact that the society was running the school.

60. It is also an admitted position that the school was commenced by the society and land was allotted to the society for such purpose by the DDA. The bye laws which provide the subscription of Rs. 501/- do not permit the society to run a school. Such aim and objection is to be found only in the bye-laws wherein the minimum donation of Rs. 2100/- or 51000/- is provided.

The bye laws which provide for the minimum donation of Rs. 2100/- have not admittedly been given effect to.

Therefore the only bye laws under which the society could run a school are the bye laws which provide the donation of Rs. 51000/-

61. The observer has inspected the record of the society and the school with the Central Board of Secondary Education and has made a reference to the letter dated 15th June, 1987 of the society whereby it had sent a copy of the bye laws providing donation of Rs. 501/- The observer has also placed before this Court the fact that by a letter dated 25th July, 2005, the society had sent a copy of the bye laws providing the minimum donation of Rs. 51000/-

62. My attention has been drawn to a printed document which has been captioned by the society as'`Do Varshon Ka Aia Vayay Evam Kaarya Ka Vivran'`(Report of Income and Expenditure for the last two years) and circulated. This purports to be the Report for the expenditure incurred by the society for the period 1st April, 1996 to 31st March, 1998. Description of the Managing Committee and the members has been printed in this document. All the posts which have been mentioned are the posts which are to be found in the bye- laws providing donation of Rs. 51,000/-. Similarly, the plaintiffs have placed before this Court a similar report purporting to be for the period 1st April, 1998 to 31st March, 2000; a third document for the period 1st April, 2000 to 31st March, 2002; and a fourth document purporting to be for the period 1st April, 2002 to 31st March, 2004 wherein the same position subsists.

63. My attention has been drawn by Mr.V.K.Jhanji, learned Senior Counsel appearing on behalf of the plaintiffs in S. No. 1329/2006 to the minutes of the General Body Meeting of the Members dated 31st May, 1998, 30th June, 2002 and 27th June, 2004 and 27th May, 2006 which were placed by Mr. Om Prakash Gupta, General Secretary before the observer and have been filed before this Court as well. From a perusal of the minutes dated 31st May, 1998, I find that these minutes dated 31st May, 1998 refer to production of the budget for the years 1st April, 1996 to 31st March, 1998. The minutes noticed that the statement of the General Secretary to the effect that in the case of any concern by any member with regard to the accounts, he could ask for the same and that all records are available with the Executive Committee. The minutes also record that the President of the society had requested that the election process be commenced. These minutes refer to Sub-rule 'ka' i.e. (a) of Rule 2 of the bye-laws and noticed that the elections were being conducted in accordance with the provisions of the bye-laws for the period 1998-2000. It is important to note that the functionaries who are mentioned against different posts in these minutes are all those posts which are to be found only in the bye-laws providing for the donation of Rs. 51,000/-.

The two year tenure of office i.e. biennial elections is also as per these bye laws.

The bye laws which stipulate the minimum donation/chanda of Rs. 501/- have provided an annual tenure only apart from the variance in the posts.

64. The minutes dated 30th June, 2002 also refer to biennial General Body Meeting for the years 2000-2002 and the report for this period which was read by the General Secretary. The tenure of office of the Executive Committee was also two years.

These minutes have also recorded the inauguration of the School in March 2002. I find that the minutes dated 27th June, 2004 also bring out the same position.

65. So far as the Minutes dated 27th May, 2006 are concerned, apart from reiterating the aforenoticed position with regard to the two year tenure of the Executive Committee, these minutes specifically recorded that only such persons who became trustees up to 30th June, 2006, would be entitled to vote in the ensuring elections. The election officers were also named while a schedule of the elections was also approved in this meeting. It had been approved that the nominations would be filled in on 17th and 18th June, 2006 from 10.00am to 12.00noon at the Dharamshala run by the society. The forms would be scrutinised on 19th June, 2006 while the nominations could be withdrawn on 20th June, 2006.

66. There is no dispute to any of these minutes which have been produced on record by the society. It is admitted position that the society was holding a biennial General Meeting which was provided in the bye-laws stipulating the donation of Rs. 51,000/- as against the annual meeting proposed in the bye laws stipulating the minimum donation of Rs. 501/-

It is also an admitted position that only such biennial meetings have taken place since 1996.

67. From this discussion, the irresistible conclusion which emerges from these minutes is that meetings of the society and its affairs were and are being conducted and the Executive Committee was constituted as per the requirement of the Bye laws providing the minimum donation of Rs. 51,000/- This prima facie conclusion is also corroborated by certain admitted fact which I propose to notice hereafter.

68. It appears that the society has issued a notice dated 8th June, 2006 informing its members of the General Body Meeting which was proposed to be held on 25th June, 2006 at 10.00 am in Shree Aggarwal Dharamshala Bhawan. At the item mentioned at sl. No. 4 of this notice, the members were notified that the election for the office bearer of the Managing Committee for the next two years would take place on this date.

69. Both parties have placed reliance on notice dated 9th June, 2006 issued by Shri Babu Ram Gupta, Election Officer whereby the Election Officer had notified the members of the decision of the Managing Committee dated 27th May, 2006 appointing him as an election officer to conduct the elections for the next two years (i.e. for the period 2006-08). This election officer who has been arrayed as defendant No. 1 in CS(OS) No. 1327/2006 had notified the members that the General Body Meeting would be held on 25th June, 2006 when elections to the posts of the Managing Committee in accordance with Rule 2 sub-rule ``ka'` (i.e. sub-rule 'a') of the Byelaws would be held. The posts which were notified by the Election Officer in the notice dated 9th June, 2006 included the following:

(i) President, (ii) Senior Vice President (iii) Four vice presidents (iv) General Secretary (v) Three secretaries (vi) one organizing secretary (vii) Treasurer (viii) Members

These posts which have been mentioned only in Rule 2 of sub-rule 'ka' i.e. Sub-rule (a) of the bye-laws requiring the minimum donation of Rs. 51,000/- The Election Officer had also notified a biennial Election which was also as per the same bye-laws and not as per the bye-laws of providing the minimum donation of Rs. 501/-.

70. The plaintiffs in S. No. 1329/2006 have placed reliance on the affidavit of Shri Nathu Ram who had submitted that he was the Secretary in 1996 and that the bye-laws were amended in 1996. According to him, one of the amendments was increase of the minimum subscription and donation to Rs. 51000/-.

The plaintiffs in this suit have also placed reliance on an affidavit of Mr. Bhagwan Dass, Trustee since 1980 who was a Secretary in the year 1996-1998. Shri Bhagwan Dass has deposed that the General Body Meeting of the society was conducted on 26th May, 1996 wherein it had been decided to increase posts of the Managing Committee and the minimum donation required to become a member of the society was also increased to Rs. 51,000/-.

71. So far as the challenge to these affidavits is concerned, the defendants have not challenged them on the ground that there was no meeting in the year 1996 or that the rules and bye-laws providing minimum donation of Rs. 51000/- never existed or were incorrect. The only submission is that the minutes for this meeting are not available with the defendants.

Prima facie, and without any thing more it is not possible to accept the contention that the amendment of the rules and bye-laws were never affected and implemented and that the rules and bye-laws providing the subscription of Rs. 51000/- ought not to be accepted. If this was the position, then the very documents on which the society and the General Secretary are relying, including the notice calling the elections to posts mentioned in such bye-laws, as also such action taken by the society and the records maintained by it after 1996 would require to be faulted and rejected. In such eventuality, all acts of Shri Om Prakash Gupta, General Secretary also would have to held to be without jurisdiction and authority of law since no such post exists in the other bye laws. Even the running of the school would be rendered illegal as the other bye law (Rs.501/-) does not permit such activity.

72. Interestingly, Shri Om Parkash Gupta is a Trustee since 1990 and the General Secretary of the society since 2002. He was elected to this post because such posts are mentioned in the bye-laws providing the minimum donation of Rs. 51000/-. No objection with regard to the non-availability of the record has been raised at any time prior hitherto. He has also never made any objection that the affairs of the society were being wrongly conducted and not in pursuance of bye-laws which apply to the society.

It is also noteworthy that the outgoing President Shri Ramphal Gupta has been the Secretary of the society since 1982 to 2002. He has been the President of the society from 2002 to 2006. It is unfortunate that such a situation has come to be created on account of the manner in which these two persons have conducted the affairs of the society.

73. In support of the submission that the amendments were given effect to, one Shri Madan Lal Gupta has filed an affidavit deposed on 28th of August, 2006 which has been placed before this Court also. An invitation card issued by the defendant No. 1 - society in the year 1994 has been produced by him. This invitation card was issued to invite members of the society to a function which was scheduled on 20th October, 1994 in the Dharamshala run by the society. The invitation has been issued on behalf of the Managing Committee whose designations and names have been mentioned therein. These designations and posts are to be found in the bye-laws which provide the minimum donation of Rs. 501/-.

Shri Madan Lal Gupta has also produced the booklets printed by the society reflecting its biennial performance from 1st April, 1996 to 2002 as noticed hereinabove. These documents would support the fact that the Bye-laws were amended after 1994 in terms of not only the subscription fee but also in terms of the posts of managing committee and the tenure for which they would hold office.

From a consideration of the above, thus, it would have to be held that prima facie, the society is conducting its affairs as per the bye laws providing the minimum donation/chanda of Rs. 51000/-

74. The second issue which requires to be considered is what would be the donations/subscription fee that a person would be required to deposit to entitle him/her to membership of the society and what are the conditions which would govern valid membership of the defendant No. 1 society?

75. Mr. B.K. Sood, learned Counsel appearing for the plaintiff has submitted that balance sheets of the society up to 31st March, 2001 had been filed before the observer and before this Court which has been signed by all the office bearers of the managing committee. According to him, the capital account reflects membership fee of Rs. 10,000/- an an amount of Rs. 2,14,200/- as the current year amount. According to learned Counsel the break up of this amount Rs. 2,14,200/- has been mentioned in Annexure A to the observer's report dated 9th October, 2000. It is submitted that the list shown as Annexure A would show that persons have been making payment of Rs. 5100/- only towards the donation, which entitles them to become members.

76. It now becomes necessary to deal with the extensive contentions raised on both sides on this question. While the stand of the plaintiffs in CS(OS) No. 1327-1328/06 in their plaints is that an amount of Rs. 5100/- was required to be paid to become a member, the plaintiffs in Suit No. 1329/2006 had clearly submitted that an amount of Rs. 51,000/- was required to be paid.

In the written statement filed by the defendants, they have specifically submitted that an amount of Rs. 5100/- was required to be paid in order to become a valid member. However, in the oral submissions addressed before this Court, it has been urged at great length that a person is required to give a donation of only an amount of Rs. 501/- or more in order to become a valid member in terms of the memorandum and bye-laws so provided.

It is also the contention of the defendants that merely because some persons have paid Rs. 51000/-, would not permit any conclusion to be drawn to the effect that the subscription fee was Rs. 51000/-.

77. So far as payment of Rs. 5100/- are concerned, this position has to be examined against the detailed submissions addressed by Mr. Vineet Malhotra, learned Counsel for the plaintiffs in CS(OS) No. 1329/2006 to the effect that payments were being made not only by cheques but by cash as well. It has been submitted that the persons who became members in the past, paid a sum of Rs. 51000/- by making payments of Rs. 46000/- and another payment of around Rs. 5000/- or Rs. 5100/- taking the total to an amount of over Rs. 51000/- The bank statements placed on record show payments by the same person of two amounts i.e. of Rs. 5100/- by cheque and Rs. 46000/- by cash.

78. The admitted position is that cash books for only the current period have been produced. On the other hand, the plaintiffs in some of the matters have filed certain documents purporting to be the extracts of cash books for different periods.

No challenge to these cash books was laid on behalf of the society on the ground that they were not authentic. It was urged on behalf of the society and the general secretary that the production of these extracts would show that records of the society were available with the plaintiffs who had been set up by Mr. Ramphal Gupta, the outgoing president.

Be that as it may, what is established from such conduct is the fact that both sides are not placing the true and complete records before this Court. A concerted effort has been made to keep the complete records from the court observer also who was directed to ascertain the correct position.

79. However, from the partial records which have been placed before this Court, I find that they support the submission that there are several persons who have deposited Rs. 51000/- and have been enrolled as members. In this behalf, my attention has been drawn to documents filed by Shri Om Prakash Gupta with his letter dated 17th July, 2006 before the court observer. These documents include the receipt No. 000003 dated 19th April, 1997 whereby Mr. Lalit Kumar (trustee No. 1037) has been enrolled as a member. A receipt issued by him shows a deposit towards subscription for the sum of Rs.11000/- which has been placed before this Court. At the same time, Mr. Om Prakash Gupta, the General Secretary has placed an extract of the cash register which shows payment of Rs. 40,000/- by cash by the same Shri Lalit Kumar on 17th May, 1997. Hundi bearing No. 951 to 990 have been issued towards this payment of Shri Lalit Kumar by the society.

Similarly Shri Vinod Kumar, trustee No. 1075 paid a sum of Rs. 5000/- vide receipt No. 00051 dated 1st April, 2002. He also paid the amount of Rs. 46,000/- in cash in respect of which hundi Nos. 12311 to 12335 and hundi Nos. 151 to 14176 have been issued to him. These hundi numbers have been mentioned on the back side of the receipt dated 1st April, 2002.

80. The plaintiffs have placed reliance also on the submissions made by Shri Dinesh Kumar Aggarwal, trustee No. 1090 who paid an amount of Rs. 51000/- vide a cheque dated 23rd August, 2005. This amount stands credited in the account of the society in the Sangli Bank. Mr. Ravinder Nath, bearing membership No. 1068 again paid an amount of Rs.51000/- towards the subscription and donation by a cheque which was cleared in the Sangli Bank account of the society on 27th July, 2005.

Again Mr. Raj Gopal Gupta who has obtained membership of the society on behalf of Ishwar Raj Public Charitable society, having membership No. 1089 after paying a total sum of Rs.51000/- by way of two cheques bearing Nos. 142813 and 142814 both dated 9th November, 2002 for the amount of Rs.5100/- and Rs.46000/- respectively. These cheques were cleared and are credited in the account of the society in the Sangli Bank on 15th November, 2002.

81. Mr. Rajesh Mahajan, learned Counsel for the plaintiffs in CS(OS) No. 1327/2006 has pointed out that the extract of the cash book which has been produced by Shri Om Prakash Gupta, general secretary reflects an amount of Rs.2,45,000/- having been received between 6th June, 2006 to 8th June, 2006. According to him, this amount is the membership fee in respect of four members at the rate of Rs.51000/-

Mr. Mahajan, learned Counsel further points out that despite the receipt of this amount in the cash book, only an amount of Rs.2,00,000/- was deposited in the Sangli Bank on 8th June, 2006 as per the available bank statements.

82. Perusal of annexure A as has been filed Along with observer's report dated 9th October, 2000 shows that it contains a list which has been produced by the society through Shri Om Prakash Gupta, its general secretary. This contains a list of some persons who have made payment of Rs. 5100/- and also includes two persons Smt. Nirmal Gupta and Shri Ravinder Nath who have paid Rs. 51000/- as back as on 25th July, 2000 and one person, Shri Vijay Kumar who paid this amount on 28th July, 2000.

There is no explanation however from the side of the society or the secretary as to the issuance of the hundis and records thereafter. The same is simply brushed aside with the submission that the records of the society are not available. Certainly they cannot dispute the documents which they have produced.

83. Mr. Vineet Malhotra, learned Counsel appearing for the plaintiffs in CS(OS) No. 1329/2006 have pointed out the following instances of persons having either deposited the full amount of Rs. 51000/- by cheque or part amount by cheque and the balance by cash to bring the total to Rs. 51000/- Documents in support of these instances have been placed before this Court. Inter alia, these include the following:

(i) Two persons have paid Rs. 51000/- by cheque as per entries dated 26th July, 2000 and 29th July, 2000 in the bank account of the society with the Sangli Bank Ltd.

(ii) On 15th February, 2001 in the same bank account, an amount of Rs. 46,000/- is deposited in cash and amount of Rs. 5100/- by cheque.

(iii) Similarly, on 14th November, 2002 and 15th November, 2002 there are two entries of deposit of Rs. 46000/- in cash and Rs. 5100/- by cheque.

(iv) Again on 12th December, 2002, an amount of Rs. 46000/- has been deposited in cash and on 13th December, 2002 an amount of Rs. 5100/- has been deposited by cheque.

(v) The statement of account of the bank further reflects cash payments of Rs. 40000/- and Rs. 46000/- on 13th April, 2005 and 15th April, 2005 respectively.

At the same time, on these dates, the receipt book shows payments of Rs. 11000/- and Rs. 5100/-, thereby bringing the total payment to Rs. 51000/- each.

84. However from the bank accounts as well as the cash registers of the society which have been produced, the extract of the cash register produced by the society as also the balance sheet, it is evident that large scale transactions have been conducted in cash. It is also an admitted position that the complete records have not been placed before this Court. There can also be no dispute that even from the scanty and selective records placed before this Court, there is evidence of several persons having paid Rs. 51000/- to the society having been thereafter enrolled as members after 1996. In the light of the incomplete records available to this Court, it would not be proper to rely on the payments of lesser amounts by person so as to draw a conclusion that these persons did not pay any other amount and hence subscription fee was a lesser amount. Looked at from any angle, however, it is not possible from only the records of payments, to draw a conclusion as to the constitution which is binding on the society and other aspects require a closer look.

85. Certain further arguments have been raised by the parties pointing out that the receipt book of the society is in cash while cash book extracts relied upon by the defendants are in Hindi and in some other hand writing. The plaintiffs have challenged the cash books produced by the defendants also on the ground that Shri Sheel K. Gupta who was responsible for writing the account books had not been available for the last six months; that the book which were produced were fraudulent and manipulated; that each page of the book was in a different hand writing and that the book was not signed by anyone. The plaintiffs have pointed out that Shri Sheel K. Gupta used to write the books only in English while the books produced by the defendants have been written in Hindi. These objections require evidence and hence are not being commented upon at this stage. It would be open to both parties to establish their respective contentions in accordance with law.

86. Mr. B.K. Sood, learned Counsel for the defendant has carefully taken me through all the plaints to point out that it was a case of the plaintiff in CS(OS) Nos. 1327/2006 and 1328/2006 to the effect that the membership fee is of Rs.5100/- Learned Counsel for the society has been at pains to point out the payments actually effected, as reflected in the accounts of the society, show only an amount of Rs. 5100/- being paid as subscription fee. There is not a single receipt pointed out to this Court wherein payments have been made of Rs. 501/-

87. This court is required to take a primafacie view on the basis of the entirety of pleadings and documents as is produced before the court and would not be influenced by only the pleadings of either the plaintiff or the defendant. In the light of what has been noticed hereinabove, I find no material in support of the contention either on behalf of the plaintiffs in CS(OS) No. 1327/2006 and 1328/2006 to the effect that subscription fee was Rs. 5100/- or that on behalf of the society and Mr. Om Prakash Gupta, general secretary to the effect that the same was only Rs. 501/- to entitle a person to membership of the society.

88. Before drawing conclusions in the matter, it is imperative to deal with the third bye law placed before this Court. This bye law prescribed a minimum chanda/donation of Rs. 2100/-. I find that there is no instance of any person paying Rs. 2100/- relied upon by either parties to become a member. The parties to these proceedings have submitted that the society has not acted upon and is not functioning as per these bye laws. Therefore these bye laws are not relevant for the purpose of the present adjudication.

This also renders wholly specious the objection urged on behalf of the society that the court observer has ignored the copy of the bye law made available by the income tax office. This bye law stipulates the minimum chanda/donation of Rs. 2100/- and has been rejected by the parties to these cases before this Court.

89. So far as the allegations and counter allegations of removal of documents, concealment, interpolation of serial numbers etc. is concerned, the same only supports the view which I have taken. Undoubtedly, the parties will prove their respective contentions in their evidence on trial.

In the light of material being placed before this Court of payments of large amounts in cash by several persons, the statement of accounts from the bank alone would also not be sufficient to draw a conclusion.

I have therefore no hesitation in holding that the accounts or cash books selectively produced before this Court, by themselves are no proof of the bye laws of the society. Certainly, there is sufficient material to show that several persons who have made payment of Rs. 51000/- since 1997 have been co- opted as members.

90. I may notice that irrespective of the pleadings in the plaint, in the oral submissions which were addressed before this Court at great length, learned senior counsel for the plaintiffs in all the three suits were unanimous in their submissions that the minimum donation required to be entitled to membership of the society was Rs. 51000/-

91. I find that it is not the defendant's case or the General Secretary's case before this Court that no meeting took place in 1996. The case put up is that the minutes of such meeting are not available. Prima facie, therefore, from the conduct of the society and the manner in which its functioning is being conducted as also from the records which are available and have been produced, it would appear that the society has acted upon the memorandum and bye-laws of 1996. There is no dispute to the fact that power to amend the memorandum and bye-laws exists in the Memorandum and bye-laws. There are also affidavit of persons who were office bearers and members in 1996 to the effect that the same were amended. Several instances have been reflected from the accounts of the society as produced by it before the Observer and this Court to the effect that the same person has paid an amount of Rs. 5100/- by cheque and the balance of Rs. 46000/- by cash bringing the total paid by the person to Rs. 51000/- to support the contentions that donation of Rs. 51000/- was required to be paid in order to become a member.

92. I also find that the bye-laws of providing donation of Rs. 501/- and those providing Rs. 2100/- as a minimum donation, provide that the Cashier shall retain not more than Rs. 25/- as an imprest amount and shall not give more than Rs. 20/- to the Secretary for the current expenditure. Such rule is not to be found in the bye-laws which provide the subscription of Rs. 51,000/-. The cash book produced by the society before the Observer and filed before this Court has been scrutinised. This cash book does not contain any entries for such imprest amount in it, clearly evidencing the fact that the society was not acting as per any bye-law other than the one which provides for the donation of a minimum of Rs. 51000/- to be entitled to membership.

93. From the above, the position which emerges and admittedly subsists is that:

(i) All the three bye laws contain a provision permitting amendment of the bye laws. There is some material in the nature of an affidavit deposed on 21st August, 2006 of Shri Nathu Ram who was a member of the society and office bearer at the relevant time which would indicate that the bye laws were amended in 1996. Shri Nathu Ram has annexed a copy of the minutes of the meeting held in 1996 during which, inter alia, the membership fee was enhanced from Rs. 2100/- to Rs. 51000/-, the eligibility age for membership was reduced from 21 years to 18 years and the posts of the managing committee were increased to their current position.

An affidavit dated 28th August, 2006 has also been deposed by Shri Bhagwan Das who is a member since 1980 and was a secretary of the society from 1996 to 1998. Shri Bhagwan Das has submitted that a meeting of the General Body was held on 26th May, 1996 in which the resolution filed by Shri Nathu Ram was passed. He has affirmed that the same is the ``true resolution'` of the society. Shri Bhagwan Dass has deposed that he was personally present in this meeting.

(ii) The establishment and management of the school is not one of the aims and objects of the bye laws which prescribes the donation of Rs. 501/- or more. It is however an aim and object in the bye laws prescribing the donation of Rs. 2100/- and Rs. 51000/- or more.

(iii) On the 21st July, 1986, the society commenced running a montessori school with about 32 students in the premises of Mandir which was recognised by the Delhi Government and which was affiliated to the Central Board of Secondary Education in around 1992. Land for building the school was allotted in 1994 and possession received from the Delhi Development Authority in 1995. The society has established and is running the Maharaja Aggarsain Public School at Pitam Pura. The plaintiffs have claimed that with effect from 1996, the donation which was required to be given in order to become a member of the society was enhanced to Rs. 51000/- as funds were needed for construction of the building. There is no allegation by the defendants that the funds of the society are being utilised for a purpose other than the aims and object stipulated in the bye laws.

(iv) It is an admitted position that in the bye laws the donation/chanda fee was prescribed as Rs. 501/-, clause 2(kha) i.e. clause 2(b) provide the tenure of the office bearers as one year i.e. elections are to be held annually. It is the bye laws which provide that the minimum of donation of Rs. 2100/- and Rs. 51000/- which contain clause 2(kha) which stipulates a tenure of two years of the executive committee.

(v) The admitted position is that the elections to the posts are being held since 1998 biennially. If the amendment had been effected in the year 1996, it is obvious that the next election would require to be held in 1998. This could only be if the affairs of the society were governed by the bye laws which provide the minimum donation/'chanda' of either Rs. 2100/- or Rs. 51000/-

(vi) It is also an admitted fact that after 1996, the first election was held in 1998 and that elections are since being held for the posts of (a) President (b) Senior vice president (c) Four Vice presidents (d) General secretary (e) Three secretaries (f) Organising secretary (g) Treasurer (h) Members.

Elections are since being held to these posts. There is no dispute that the posts of Senior Vice president, four Vice presidents, General Secretary, three Secretaries, one Organising secretary and treasurer and members were provided only in the bye laws which provide the minimum donation of Rs. 51000/- and more.

(vii) The bye laws also stipulate the functions to be perform by the office bearers. The functions of Senior Vice President, Four Vice Presidents, General Secretary, Organising Secretary and Treasurer who are functioning in the Managing Committee are not provided in the bye laws providing the minimum donation of Rs. 501/-

These posts and functionaries have been in existence admittedly since 1998.

(viii) Furthermore, only the bye laws providing for Rs. 501/- as minimum donation include posts of two Assistant Secretaries/upmantries which are admittedly not in existence. No elections to any such post are being held after 1996.

(ix) So far as the bye laws providing the donation of Rs. 2100/- or more are concerned, they also do not provide for the posts of the Senior Vice President, General Secretary, an Organising Secretary and consequently, also does not provide for functions to be performed by such functionaries.

(x) The post of General Secretary is not mentioned in either of the bye- law prescribing the minimum subscription of Rs. 501/- or that prescribing Rs. 2100/-. His functions are also not provided for this reason in the other two bye-laws. It is a fact that it is the General Secretary who is conducting all the affairs of the society including the signing of the pleadings and defense of the society in all three suits.

(xi) The only three minutes of the meetings of the General Body held from 1998 dated 31st May, 1998, 30th June, 2002 and 27th June, 2004 which have been produced before the Observer and before this Court show that the elections were biennial and for the posts mentioned in these bye laws;

(xii) It is an admitted position that elections are being conduct biennially in terms of the memorandum and bye-laws providing the minimum donation of Rs. 51000/-;

(xiii) The society had, with letter dated 15th June, 1987 sent a copy of the bye-laws with the subscription of Rs. 501/- or more to the Central Board of Secondary Education. By a subsequent letter dated 25th July, 2005 it had sent the bye laws with the subscription of Rs. 51,000/- or more which would give rise to a clear presumption that this was the bye-laws which were being effectuated.

(xiv) The proceedings of the General Body meeting dated 27th May, 2006 also refer to biennial election as per clause 2(a) of the bye laws to be found only in the bye laws providing for a minimum donation of Rs. 51000/-

(xv) The notice dated 8th and 9th of June, 2006, refers to elections to the posts mentioned in Rule 2 sub-rule ka i.e. Rule 2(a) of the bye-laws. The posts which have been mentioned in the notice appear only in Rule 2 Sub-rule (ka) of the bye-laws which provides minimum donation of Rs. 51,000/-.

(xvi) The General Secretary with his letter dated 12th July, 2006 has produced before the learned Observer only the bye-laws which contains the subscription of Rs. 51,000/- or more. By the subsequent letter of 17th July, 2006, he has purported to place before the learned Observer noting of the Income-tax Officer enclosing bye-laws which provides the subscription of Rs. 2100/-. It is however an admitted position even on behalf of the General Secretary that bye-laws containing the subscription of Rs. 2100/- have never been acted upon and that the posts to which elections are held are not contained in the bye laws providing the donation of Rs. 2100/-.

(xvii) These suits pertain to a challenge actions taken by the Election Officer pursuant to the Resolution dated 27th May, 2006 and the notice dated 5th June, 2006.

On the other hand, the defendants, including the society and Shri Om Parkash Gupta, its General Secretary, have strongly defended the action of the Election Officer as being correct and as per the bye-laws.

(xviii) As per the report dated 20th July, 2006 filed by the observer, in the inspection conducted by him of the record of the society in the office of the Registrar of Societies, the file was reported to have been lost in 1982 and that the Registrar had addressed a letter dated 3rd November, 1982 requesting the society to make available copies of the record for reconstruction. Nothing was done by the society despite reminders. The observer has noticed in his report that the file of society, contained two copies of the Trust Deed which contained the clause ``kha'` and which required a person to pay a sum of Rs. 51000/-

(xix) On the 25th of July, 2005, the society has submitted the bye laws providing the minimum donation of Rs. 51000/- with the Central Board of Secondary Education.

94. Thus, there can be no conclusion other than the fact that the society is conducting all its affairs and is implementing the bye-laws which provide for the minimum donation of Rs. 51,000/- and none other. The posts, the tenure and the manner in which the elections are to be governed as well as the functions to be performed by the functionaries/office bearers of the Managing Committee are thus to be determined by these bye-laws.

95. In the light of the above, it has to be held that the reliance placed on behalf of the defendants on the bye-laws providing the donation of Rs. 501/- or more is misconceived and an afterthought which has been asserted to support the malafide conduct in effecting large scale induction as members of persons who had not paid the donation/chanda in terms of such bye laws.

96. In this behalf, it is evident that such a plea had not been conceived even at the time of filing written statement by the defendants. No such plea as is orally urged has been set out in the written statement.

97. The third question which requires to be considered is what are the posts in the executive/managing committee of the society which are prescribed under the constitution and bye laws to which elections can be held?

98. So far as posts in the Managing Committee for which elections must be held, I have found that the bye laws which provide the minimum subscription of Rs. 51000/- are those which govern the functioning of the society.

99. The society is conducting elections to all posts provided in Rule 2(ka) i.e. Rule 2(a) of these bye laws. Even at present, elections to these posts stand notified. There is no challenge by the defendants to the calling of elections to all these posts. The plaintiffs in CS(OS) No. 1327/2006 have not pressed any objection to the conduct of elections to these posts. Consequently, I have no hesitation in holding that elections have to be held to the posts in the managing as provided in Sub-rule 'ka' of Rule 2 of the Bye laws providing the minimum chanda/donation of Rs. 51000/-

100. The last issue which requires to be considered is who are the valid members of the society in terms of the constitution/bye laws and the resolution dated 27th May, 2006 who are eligible to vote in the elections?

101. The admitted position between the parties is that by the resolution dated 27th May, 2006 it was decided that persons who were members till 10th of June, 2006 were valid members who would be entitled to vote in the ensuing elections. It now becomes necessary to consider the substantial submissions made before this Court by persons who are stating that they have made payment of subscription fee on or before 10th June, 2006 and consequently are required to be admitted as valid members of the society. It has been contended that such payments were in terms of the resolution of the General Body Meeting of the Managing Committee on 27th of May, 2006 and the amount having left their hands, was in the custody of the society.

102. As noticed hereinabove, list X consists of 561 persons, who are stated to have paid subscription in cash to the General Secretary on 9th and 10th June, 2006. Receipts of these persons bear the signatures of Shri Om Parkash Gupta, the General Secretary. From the documents placed before this Court, it appears that in this manner, an amount of Rs. 7,14,000/- was collected in cash on 9th June, 2006. Thereafter, a sum of Rs. 5,61,000/- is stated to have been collected in cash on the 10th of June, 2006 by Shri Om Parkash Gupta, General Secretary.

103. It is an admitted position that the society was maintaining two bank accounts, one in the Sangli Bank Ltd. in its Karol Bagh branch and the other in the State Bank of India, also in its Karol Bagh branch. The State Bank of India has given a certificate dated 20th August, 2006 to the effect that this branch where the society was maintaining an account, is open seven days of the week and that it was open for transactions on the 9th, 10th and 11th of June, 2006 with effect from 10.00 am to 4.00 pm.

So far as the Sangli Bank is concerned, a certificate has been filed to the effect that it was actually open on the 9th and 10th June, 2006.

The admitted position is that still, no amount received towards the claimed subscription fee was deposited in either of these bank accounts either on the 9th or the 10th or 11th of June, 2006.

104. The explanation tendered on behalf of the society and the General Secretary, who is stated to have been holding this huge cash amount, is that as per the practice followed in the society, no amount towards donation or subscription fee is deposited in the account of the society in the State Bank of India account.

It has been submitted that the amount could not be deposited in the account in the Sangli Bank on these dates as 9th of June, 2006 was a Friday and 10th of June, 2006 was a Saturday. The Bank is stated to have been closed on Sunday, the 11th of June, 2006. For this reason, it is stated on behalf of Mr. Om Parkash Gupta, that these amounts were deposited only on the 12th June, 2006.

105. Examination of the deposit slips whereby the amounts have been deposited on 12th of July, 2006 shows that the total amount of over Rs. 12 lacs which was allegedly collected from the list X members has not been deposited by one deposit slip. On 12th of June, 2006, three deposit slips for the amount of Rs. 2,50,000/- each were deposited while an amount of Rs. 5,10,000/- has been separately deposited by a fourth deposit slip in the account of the society.

These deposit slips are not in seriatum and bear the numbers 278, 317, 318 and 351. There is no explanation as to why the huge amount of Rs. 7,14,000/- which was stated to have been collected in cash on the 9th June, 2006, if it was actually so received by the General Secretary towards the donation fee, was not deposited on the 9th itself or even 10th of June, 2006. The Sangli Bank was admittedly open on 9th and 10th June, 2006. This renders the receipt of the amounts in cash actually on either 9th June, 2006 or 10th June, 2006 highly suspicious. I also do not find any force in the submission that amounts could not have been deposited in the State Bank of India. The persons concerned were dealing with the affairs of a society and certainly there is no warrant for holding such huge amounts in cash in their hands. This factor assumes further importance in the light of the prohibition as contained in the resolution dated 27th May, 2006 that it is only such persons validly enrolled up to 10th June, 2006 who alone would be entitled to vote in the ensuing elections.

106. The plaintiffs have pointed out the instance of one Shri Shankar Lal who is mentioned in the list of old members at serial No. 1113 as Trustee No. 554. This very person is shown by the defendant as having made payment of subscription in cash between 9th and 10th of June, 2006 to the society and is mentioned in list 'X'. This certainly lends suspicion to the list 'X' relied upon by the defendants.

107. Long arguments have also been addressed on the submission that Shri Om Prakash Gupta was holding the post of general secretary. As per the constitution providing the subscription of Rs. 501/- relied upon by the defendant society, such posts did not exist. So far as the constitution providing the donation of Rs. 51000/- which provide for such posts is concerned, as per the functions assigned to him and noticed hereinabove, the general secretary had no authority to receive money or to issue receipts in respect thereof. It has been pointed out that only the secretary was authorised to receive money on behalf of the society. For this reason as well, assuming that such amount was held to be the amount which would enable a person to become a member of the society, the receipt of money by Shri Om Prakash Gupta, general secretary cannot be held to be a valid deposit binding the society.

108. The validity of the claimed membership of these persons who have paid the cash amounts on 9th and 10th June, 2006, assuming that the same was actually paid and would bind the society, requires to be examined from yet another angle. The admitted position on behalf of all the parties is that membership to the society entails a valid application form which is to be filled up by the proposed member giving his or her full particulars. This application form requires an introduction and a certification by a Member of the society to the effect that the introducer knew the applicant and believed that the applicant would abide by the rules of the society. The full particulars and details of the introducer were required to be mentioned in the given columns on the form. The applicant could become a member only if the proposal for his membership was accepted by the Managing Committee.

109. In this behalf it becomes necessary to refer to certain observations made by the Court Observer in the report dated 9th October, 2006. A reference is contained therein to the statement of the General Secretary of the society to the effect that ``at the time of enrollment of members, only membership forms and required subscription amount is received by the Trust'`. The court observer has stated that he has scrutinised the forms of all the persons mentioned in list X who are stated to have made payments in cash and that such scrutiny was effected in the presence of all the parties. It has been noticed that the columns containing the details of the trustees recommending/introducing the applicant were incomplete in respect of majority of the applicants in the list. It has further been noticed that application of all members included in the list X were not approved by the managing committee and bore the signatures of the general secretary alone. I find that the court observer has noticed several further discrepancies in the application forms of these persons. It has been noticed that in various forms, the name of the applicant differs from the name of the person who has put his signatures. In some of the forms the name of the applicant differs from the name of the persons who has put his signatures in the column meant for such signatures; the forms do not contain the amounts required to be paid by membership fee despite special provision for the same; in a large number of forms the name of the applicant has not been mentioned despited their being a specific column for this purpose. Several forms do not contain the date as to when they were submitted. The plaintiffs have pointed out other discrepancies including the fact that the forms are filled up in different ink, pen and writing.

110. Some of these application forms which have been filed on court record have been brought to my attention. I find that the observations made by the court observer in rejecting the membership of such persons are certainly borne out by the application form placed before me. The comparison of some of the forms to which attention has been drawn by Mr. B.K. Sood, learned Counsel for the defendants as well as by Mr. Vineet Malhotra, learned Counsel appearing for some of the plaintiffs would show that these application forms are in the same handwriting. These facts indicate the concerted effort to somehow or the other enroll members to support respective candidatures and groups for the purposes of voting and elections.

111. So far as persons whose names appear in list X are concerned, I find that there is nothing before this Court to support the submission that persons who are mentioned in list X submitted the application forms or made the payments; that the application forms were proposed or that the applicants were introduced by members of the society. The admitted position is that the proposal of such persons for membership was never approved by the managing committee. They were introduced by and their membership approved by only the outgoing General Secretary. The bank records produced before this Court show that no amount has been received from the persons whose names appear in list X before the cut off date of 10th June, 2006.

I therefore have no hesitation in holding that such persons cannot be held to be valid members of the society who could be held to be entitled to vote in the elections of the society being conducted pursuant to the resolution dated 27th May, 2006.

112. At this stage, it is necessary to examine the position with regard to the persons whose names have been mentioned in what has been termed as list Y. These are persons who are stated to have made payments by cheques. Receipts to these persons have been issued by Mr. Ramphal Gupta, the outgoing president of the society. As noticed above, the president had no authority under any bye laws of the society, to accept money or to issue cheques.

113. No application of these persons were produced for scrutiny before the court observer on the plea to the effect that such applications were actually given to the society and that Shri Om Prakash Gupta, the general secretary was withholding their production. Needless to say this allegation is denied on behalf of the society.

114. Mr. B.K. Sood, learned Counsel for the society has placed strong reliance on the deposit of Rs. 5100/- by Shri Vinod Kumar Goel, Mr. Lokesh Gupta, Smt. Vineeta and Shri Amit Kumar on 8th June, 2006. It has been submitted that Shri Amit Kumar Gupta is the son of Shri Bishan Swaroop who is the plaintiff in CS(OS) No. 1329/2006. It is pointed out that not only have these persons paid only Rs. 5,100/- and are claiming membership of the society, but the bank statement of Shri Amit Gupta between 19th and 20th June, 2006 reflects several debit entries of Rs. 5100/-each in favor of the society. It is contended that the donation/subscription fee members has been deposited by cheques issued by Mr. Amit Kumar Gupta. Based on these submissions, it is asserted that the subscription fee was not Rs. 51000/- but any amount over Rs. 501/- as per the first constitution and bye law.

115. A further submission is made by Mr. Sood, learned Counsel for the society and Shri Om Prakash Gupta, general secretary to the effect that an amount of Rs. 40,000/- was credited on 19th June, 2006 to the account of Shri Amit Gupta from the bank account of M/s Banarasi Das Om Prakash and that before this date Shri Amit Gupta only had an amount of Rs. 6803/- in his bank account. It is contended that therefore the receipts which are relied upon by the plaintiffs claiming deposit of cheques with the society and membership before 10th June, 2006 is falsified by this fact alone inasmuch as the account wherefrom the deposit were issued did not even have the balance from which the cheques could have been creditted to the society on these dates. There is certainly force in the submission therefore that these payments have been effected only after the cut off date of 10th June, 2006. Mr. Sood, learned Counsel for the society has pointed out that several of the cheques were dishonoured by the banks on their presentation.

116. On the other hand, the plaintiffs have placed reliance on four affidavits which have been filed by Shri Vinod Gupta, Lokesh Gupta, Vineeta Gupta and Amit Kumar Gupta to the effect that they had only paid Rs. 5100/- through Mr. Bishan Swaroop to Mr. Satish Chandra Gupta on account of the membership fee and that Mr. Satish Chandra Gupta had issued receipts for smaller amounts bearing different dates totalling Rs. 51000/-

117. Having carefully perused the entire record placed before me in the three suits and the three reports filed by the observer, I find that persons mentioned in list Y are only placing reliance on receipts purportedly issued by the outgoing president. Certainly no payment from these persons has reached the accounts of the society by or before the 10th of June, 2006 in terms of the resolution dated 27th May, 2006. Prima facie, there is no proof of submission of any application form for membership by these persons or that their names were recommended by any member of the society. The President who has issued the receipts to these persons had no authority under any of the Bye laws to accept payments or to issue receipts.

118. It is also an admitted position that the names of the persons in list X and list Y have not been approved by the Managing Committee as required. Such approval was mandatory to enable an applicant to be validly enrolled.

I therefore have no hesitation in holding that the persons whose names appear in list X and Y have not been enrolled as members of the society.

119. There is also no dispute that the resolution dated 27th May, 2006 was passed by the managing committee whereby it had been resolved that only persons who had paid the amounts towards the subscription on or before 10th June, 2006 would be eligible to vote in the ensuing elections. From the above, it has to be held that the persons whose names are mentioned in list X and Y have not made payment before 10th June, 2006. In any case their membership has not been approved by the managing committee as is required by the procedure prescribed. Consequently, the persons whose names have been mentioned in list X and Y cannot be permitted to vote in the ensuing elections.

120. The position noticed hereinabove by me is also supported by the record of Shri Babu Ram, the election officer. It is an admitted position on both sides that notices were issued to 1116 members through a courier receipt dated 10th June, 2006. Both sides are agreed this was the valid list of members who were actually entitled to vote. These notices were issued through the courier who was being regularly used of the society for the last several years. The persons mentioned in list X or list Y were not part of these 1116 members. There is no explanation as to why further packages were sent through another courier M/s News Express who was not a regular courier service used by the society on 10th June, 2006. Through such courier service, 244 packages on the one hand and six further packages were sent.

From this fact also, it is apparent that the number of valid members of the society in terms of the resolution dated 27th May, 2006 was only 1116 and nothing further. For all these reasons, it has to be held that the persons whose names are in list X and Y are not entitled to vote in the election.

121. The several applications have been filed in the three suits would required to be disposed in the light of above discussions. For the reasons of convenience, the applications are enumerated and dealt with case wise hereafter.

I.A. Nos. 7145/2006, 7953/2006, 10963/2006, 10964/2006, 10965/2006, 7925/2006 and 10962/2006 in CS (OS) No. 1327/2006

IA No. 7953/2006

This application has been filed by the plaintiff in CS(OS) No. 1327/2006 seeking a prayer that the defendant No. 1 Shri Baburam Gupta not be permitted to act as election officer of the society. By the order dated 3rd July, 2006, this Court had appointed a court observer and by an order dated 28th September, 2006, Hon'ble Mr. Justice(Retired) K. Ramamurty of this Court was appointed as election officer. The election process has been concluded in terms of the orders passed by this Court. Consequently, this application is rendered infructuous and is dismissed.

IA No. 7145/2006

This application has been filed by the plaintiffs in CS(OS) No. 1327/2006 seeking an injunction prohibiting the defendants from holding elections of the office bearers and members of the executive committee of the society. In view of the subsequent orders passed in the suit as noticed above, this application has been rendered infructuous and is dismissed.

IA No. 10963/2006

This application has been filed by the defendant Nos. 2 and 4 seeking an injunction against the election officer and the court observer from proceeding with the elections without including the list which was submitted by the society. In view of the findings recorded hereinabove on these lists, this application is dismissed.

IA Nos. 10964/2006 and 10965/2006

These applications have been filed by defendant No. 2 and Shri Om Prakash Gupta, defendant No. 4 to the report dated 20th September, 2006 submitted by the court observer. In view of the discussion hereinabove, I find no merit in these applications which are dismissed.

IA No. 7925/2006 and 10962/2006

These applications have been filed by the plaintiffs seeking appointment of a commissioner and administrator to run the affairs of the society. Inasmuch as applications have been held under orders of the court and result thereof is yet to be declared, these applications are dismissed. The plaintiffs shall be at liberty to seek appropriate relief at any later stage in accordance with law in respect of the prayers made herein.

I.A. Nos. 7147/2006, 7159/2006, 10842/2006, 10843/2006 and 10960/2006 in CS (OS) No. 1328/2006

IA No. 7147/2006

This application has been filed by the plaintiff under Order 39 Rule 1 and 2 seeking an injunction from holding the annual general meeting and elections of the society without including the names of the plaintiffs. In view of the foregoing discussion and the observations herein contained, I find no merit in this application and the same is dismissed.

IA Nos. 10842/2006 and 7159/2006

IA No. 10842/2006 has been filed by defendant Nos. 1 and 9 under Order 39 Rule 1 and 2 praying for an injunction restraining the election officer and the court observer from proceeding with the elections by excluding persons in list Y submitted by the society from voting. IA No. 7159/2006 has been filed by the defendant No. 1 under Order 39 Rule 4 of the CPC seeking modification of the order dated 23rd June, 2006. In view of the orders passed by this Court as noticed hereinabove and the observations herein contained, these applications are dismissed.

IA Nos. 10843/2006 and 10960/2006

By these applications, the defendant Nos. 1, 6, 9 and 15 have made objections to the report of the court observer dated 20th September, 2006. In view of the observations and the detailed reasoning recorded hereinabove, I find no merit in these applications and the same are dismissed.

I.A. Nos. 7150/2006, 7158/2006, 7926/2006, 10844/2006, 10845/2006, 10846/2006 10847/2006 and 10959/2006 in CS (OS) No. 1329/2006

IA No. 7150/2006

This application has been filed by plaintiffs under Order 39 Rule 1 and 2 of the CPC seeking an injunction restraining the defendant Nos. 32-263 from representing themselves or acting in any manner as trustees from the defendant No. 1 and from participating in the annual general body meeting or the election of the members. In view of the above discussion and the reports filed by the court observer which are being accepted by this Court, the participation by these defendants would require to abide by the findings returned by the court observer in respect of the membership.

This application is disposed of in the above terms.

IA No. 7158/2006

This application has been filed by the defendant No. 1 under Order 39 Rule 4 of the CPC seeking vacation of the stay order dated 23rd June, 2006 and directions with regard to the elections. In view of the orders passed after the filing of this application as noticed hereinabove, this application is rendered infructuous and is dismissed.

IA No. 7926/2006

This application has been filed by defendant No. 1 seeking directions for holding of the elections of the society. In view of the orders already passed in the matter, this application is rendered infructuous and is accordingly dismissed.

IA No. 10844/2006, 10847/2006 and 10959/2006

This application has been filed by defendant Nos. 187, 195-201m 204-207, 209-216, 240-250 and 261-263 raising objections to the report of the court observer dated 20th September, 2006.

Similarly IA No. 10847/2006 has been filed by defendant Nos. 1-9 and IA No. 10959/2006 has been filed on behalf of the society, defendant Nos. 6, 9 and 15 raising objections to the report of the court observer dated 20th September, 2006.

In view of the above discussion, I find no merit in these applications and the same are dismissed.

IA No. 10845 and 10846/2006

IA No. 10845/2006 has been filed by the defendant Nos. 187, 195-201, 204- 207, 209-216, 240-250 and 261-263 under Order 39 Rule 1 and 2 of the CPC. IA No. 10846/2006 has been filed by defendant Nos. 1 and 9 under Order 39 Rule 1 and 2 of the CPC. By these applications, the applicants have sought stay of the report of the court observer dated 20th September, 2006 and a stay of holding of the elections without disposing of the objections.

The objections to the report have been dismissed.

For the reasons recorded hereinabove, I find no merit in these application and the same are dismissed.

122. The matter however does not rest here. Certain directions had been issued on 17th November, 2006 with regard to conduct of the elections. On this date, it was directed thus:

CS(OS) Nos. 1327, 1328, 1329/2006

Learned Counsel present in these matters submit that elections of the trust are scheduled and urgent directions are required pending adjudication in the applications.

Counsel for all parties are agreed that so far as the voting which is to take place pursuant to the orders passed by this Court on 28th September, 2006 is concerned, it would be appropriate that apart from the voters in the undisputed list, so far as the votes of voters who are in list X and Y are concerned they should be kept in separate ballot boxes.

Accordingly, it is directed that the votes of the voters in list X and list Y shall be cast and kept in separate ballot boxes which may be marked with the alphabets X and Y for purposes of identification. Separate voting area may be earmarked for the three category of voters i.e. the voters in the undisputed list; voters in category X and those in category Y. As already directed, the identification of the voter should not be discernible from the ballot paper in any manner.

All ballot boxes shall be preserved in terms of the directions already given on 28th September, 2006. Counting of votes would abide by the adjudication in the applications which are being heard and reserved for judgment.

The matter shall be taken up for further hearing in the applications today itself.

Copy of this order be given to counsel for the parties under signatures of the Court Master.

Therefore the position that exists today is that voting has taken place and the votes cast by persons whose names appear in list X and Y have been kept separately.

Several applications including the various objections to the report of the learned observer have been rejected.

Accordingly, I hereby direct the election officer and observer to proceed with the counting of the votes. The ballot boxes containing the votes of persons whose names are in list X and Y shall not be opened or counted. These ballot boxes however shall be preserved subject to further orders by this Court.

123. The counting shall take place in the presence of the candidates or their authorised representatives at such place, time and manner to be appointed by the learned election officer. The result of the election be declared upon completion of the counting.

The ballots shall be sealed after counting and preserved till further orders.

124. During the course of hearing an apprehension had been expressed on behalf of some of the parties that some of the candidates may have been nominated by persons whose names are appearing in list X or lixt Y. Needless to say in the light of the foregoing discussion, such persons cannot be held to have been validly proposed or nominated. The candidates were aware that the validity of the membership of the persons whose names have been mentioned in list X and list Y had not been accepted. On the contrary the validity of their membership stood rejected by the observer and no interim orders had been passed in favor of such persons in the present proceedings. Consequently, such candidates can not plead any prejudice or claim any equity in their favor based on the outcome of the present adjudication.

It is ordered accordingly.