Jugminder Singh vs State Of Haryana And Others
2022 Latest Caselaw 17150 P&H

LPA-683-2022 (O&M)                                             1


      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

114                                             LPA-683-2022 (O&M)
                                                Date of decision: 19.12.2022


Dr. Jugminder Singh

                                                               ..... Appellant

                     VS

State of Haryana & others

                                                               ..... Respondents

CORAM : HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
        HON'BLE MR. JUSTICE ALOK JAIN

Present :-   Mr.Vinod Ghai, Sr. Advocate,
             with Mr. Ravinder Malik (Ravi), Advocate,
             and Mr. Anil Mehta, Advocate,
             and Ms. Kanika Ahuja, Advocate,
             and Mr. Kirti Ahuja, Advocate
             for the appellant.

             Mr. Pravindra S. Chauhan, Sr. Addl. A.G. Haryana.

             Mr. Amit Jhanji, Sr. Advocate,
             with Mr. Vaibhav Narang, Advocate,
             and Mr. Siddharth Bhukkal, Advocate,
             and Mr. Rahul Bansal, Advocate,
             and Mr. Karan Bansal, Advocate,
             for respondents No. 5 to 8 and 10 to 14.
                            *****

ALOK JAIN, J. :

CM-1588-LPA-2022

Present application has been filed seeking leave to appeal by

the appellant.

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For the reasons stated in the application, the same is allowed as

prayed for.

Leave to appeal is granted.

LPA-683-2022

The instant Letters Patent Appeal has been filed by the

appellant-Dr. Jugminder Singh, who was the then Senior Joint Secretary of

the Handball Federation of India, which had been impleaded as proforma

respondent no. 14 in the present appeal, against the Judgment dated

09.08.2022 whereby the learned Single Judge has dismissed the writ

petition.

That the brief facts for ready reference relevant for decision of

this appeal are enumerated in the tabulated form as under: -

Handball Federation of India was registered under the Societies Registration Act, 1860.

29.03.2012 The Haryana Registration and Regulation of Societies Act, 2012 (hereinafter referred to as 'Act') came into force. 31.12.2013 Handball Federation of India was re-registered under the new Act.

30.07.2020 Handball Federation of India approached the District Registrar, Societies, Rohtak (Respondent No.4) regarding conducting the elections.

27.08.2020 Respondent no. 4 clearly directed the Handball Federation of India to work strictly as per provisions envisaged under Act, 2012 and Rules framed thereunder.

01.10.2020 Handball Federation of India appointed Mr. Deepak Kumar Shrivastava, District Judge (Retd.) as Returning Officer for / conducting the election on 01.10.2020.

02.10.2020

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06.10.2020 Returning Officer released the election schedule; and the final list of electoral college was issued and the Handball to Federation of India requested various authorities for 22.10.2020 deployment of observers for election to be conducted on 01.11.2020.

09.10.2020 In the integrum, one Mr. Shripal submitted a complaint to the respondent no. 4 on 14.09.2020 which was forwarded to Handball Federation of India, wherein the apprehension was raised that the election would not be conducted in an un- biased and clean manner and therefore Administrator or Head of the Committee be appointed.

13.10.2020 Handball Federation of India responded to the said letter and stated that the complainant was not a member of the Handball Federation of India and action be taken against him. 01.11.2020 Elections were held and all the members of the Executive Committee were declared elected unopposed.

28.11.2020 One Mr. S.M. Bali filed detailed complaint to the State Registrar, Firms & Societies, Haryana, Chandigarh and prayed for setting aside the elections.

14.12.2020 Letter written by Handball Federation of India intimating the new elected Governing Body and stated that the same could not be uploaded on the portal due to non-functioning or error on the website.

17.12.2020 The said letter dated 14.12.2020 alleged to have been submitted with the respondent no. 4 by hand.

05.01.2021 The Ministry of Youth Affairs and Sports objected to the appointment of one Mr. Anandeshwar Panday, who subsequently resigned on 08.01.2021.

27.09.2021 A petition under Section 39(10) of the Act was filed inter alia praying for appointment of Administrator to manage the affairs of the Society as there was no approved Governing Body to effectively handle the affairs of the Society as mandated under Section 33(5) of the Act, 2012.

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04.10.2021 Respondent no. 4 allowed the petition and held as under:-

"1. Handball Federation of India, Rohtak was registered with the office of the then Registrar of Societies, Haryana, Chandigarh vide Registration No. 44 of 1972-73 and thereafter registration of the said society was got done under HRRS Act, 2012 vide re- registration number HR-RTK-2013-00544 dated 31 December, 2013 by the respondent i.e. Sh. Surender Mohan Bali.

2. That Sh. Pritpal Singh Saluja has apprised this office that he had not submitted any letter dated 14.12.2020 regarding the election of federation which were held on 01.11.2020 alongwith the information regarding no newly elected Governing Body of the society.

3. Since, as per record available no approved Governing Body as per Section 33(5) is in operation of the Handball Federation of India, Rohtak and letter dated 14.12.2020 had been already refuted by the applicant of the said letter of having never been signed and vide letter dated 01.10.2021 of Sh. A Jaganmohan Rao who is incompetent to get the elections conducted, it has been revealed that elections for vacant post Governing Body are to be held on 10.10.2021 which depicts the fact that there is no valid and duly approved Governing Body on the society as required under the Act.

4. That in order dated 20.08.2021 it was also observed that the election of federation stated to be held on 01.11.2020 is suspicious and now it has been revealed that no such election has happened to be conducted."

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08.10.2021 CWP No. 20815 of 2021 filed by Handball Federation of India

came to be dismissed on the ground that an alternate remedy

was available 3to the petitioner.

14.10.2021 LPA No. 981 of 2021 against the order dated 08.10.2021 also

came to be disposed off with the direction to the State

Registrar of Societies, Haryana to consider the appeal and any

application for stay, which was to be decided within a period

of 10 days.

11.11.2021 The appeal came to be allowed by the State Registrar of

Societies, Haryana.

Appeal no. 449 of 2021 was filed before the Registrar General

of Societies against the order dated 11.11.2021. 25.11.2021 The appeal was filed and interim prayer was allowed where it

was held that as per record the list of newly elected

Governing Body of the society has not been uploaded on

portal nor the list of newly elected Governing Body was

submitted in physical form (manually) within 30 days to the

District Registrar. As far as letter dated 14.12.2020 is

concerned, it is just an intimation of holding of election and it

is not a valid document under Rule 19 of the HRRS Rules,

2012 being not submitted in prescribed Performa and is not

accompanied by the prescribed fee. Without commenting on

the merit of this case, the election of the Governing Body held

on 01.11.2020 cannot be considered as deemed approval on

the basis of letter dated 14.12.2020. So, order dated

11.11.2021 passed by the Ld. State Registrar of Societies,

Haryana is hereby stayed.

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05.07.2022 Appeal No. 449 of 2021 finally came to be decided by the

Registrar General of Societies and it was held as under:

"Thus in view of the above, I am of the opinion that the

District Registrar, Rohtak, after perusing the record and

after going through the provisions of the Act has rightly

exercised the power vested to him under Section 39(10)

of HRRS Act, 2012 and appointed Administrator in

society vide order dated 04.10.2021 as the affairs of the

Handball federation of India cannot be left unattended

or in the hands of person/persons who are not duly

approved under Section 33(5) of HRRS Act, 22012 in the

interest of Society and the game of Handball at large.

Therefore, the impugned order dated 11.11.2021 is

hereby set aside and the appeal is hereby allowed.

Further, District Registrar, Rohtak is hereby directed to

appoint an Administrator to conduct election of

Governing Body of the society and manage day to day

affairs of the society for the intervening period strictly as

per law. The pending applications, if any, also stand

dismissed."

Feeling aggrieved by the order dated 05.07.2022 passed by

respondent no. 2, the Handball Federation of India, through the present

appellant preferred a writ petition in the nature of certiorari seeking

quashing of the same.

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The learned Single Judge after recording detailed reasons

dismissed the writ petition on 09.08.2022.

Before the learned Senior Counsel for the appellant could open

the arguments, at the outset, learned Senior Counsel for the respondents has

submitted that in compliance of the order dated 09.08.2022, the fresh

election has already been conducted and new executive, is in place and the

Governing Body has been approved by the District Registrar.

Mr. Ghai, learned Senior Counsel appearing for the appellant

has opened his arguments by relying upon three dates i.e. 01.11.2020 (date

of election), 14.12.2020 (date of intimation) and 17.12.2020 (date of

receiving of the said information in the office of Registrar). Mr. Ghai has

relied upon provisions of Section 33, 39 & 40 read with Section 72 & 75 of

the Haryana Registration and Regulation of Societies Act, 2012 (hereinafter

referred to as 'Act, 2012').

Learned Senior Counsel for the appellant has vehemently

argued that the remedy of challenging the election lies under Section 40 of

the Act, 2012 whereas, the respondents have wrongly invoked and acted

under the provisions of Section 39(10) of the Act, 2012. It has been

submitted that once the election had taken place on 01.11.2020, thereafter

the only remedy available was under Section 40 & not under Section 39

(10). Therefore, the respondent authority has transgressed its powers.

Learned counsel for the appellant has stated that the Handball Federation of

India vide its letter dated 30.07.2020 had categorically sought the

information from the Registrar as to when the elections have to be

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conducted, to which the District Registrar of Societies, directed the

Handball Federation of India to strictly adhere to the provisions of the Act,

2012 and the Rules framed thereunder. The appellant submits that the

petition under 39(10) of the Act, 2012 which per se was not maintainable,

was allowed on surmises and conjectures. Mr. Ghai has further argued that

the said order is based on surmises and conjectures inasmuch as the fact that

Mr. Surinder Mohan Bali was expelled from the Federation and vide

Minutes of the Meeting dated 27.09.2020, he had been banned for six years.

The said factum was duly recorded by the Delhi High Court in its judgment

dated 23.10.2020. Learned counsel for the appellant has further stated that

in fact the petition under 39(10) filed by Kuldeep Singh and others was

defective from the very inception for the reason that Kuldeep Singh,

Gursharan Singh Gill and Paramveer were not even the members and;

secondly the respondents had been wrongly represented through Mr.

Surinder Mohan Bali, who had been barred for 6 years w.e.f. 27.09.2020.

Learned counsel for the appellant has further argued that in

compliance to the provisions of Section 33, the proviso comes into play and

since the result of elections were duly intimated on 14.12.2020 and which

was not rejected by the District Registrar therefore the deeming fiction of it

being approved, comes into play. It has further been argued that the District

Registrar was duty bound to record the reasons in case of rejection. As

regards the delay, it has been submitted that the same is only an irregularity

and not an illegality and curable under Section 75 of the Act, 2012.

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The next contention raised by Mr. Ghai is that District

Registrar of Societies on 20.08.2021 had intimated the State Registrar of

Societies that the issue of election could not be decided by the office as no

election has been submitted to this office by Handball Federation of India

and moreover after election, the appeal lies with the Registrar under Section

40 and if the complainant (Dr. S.M. Bali) is aggrieved, he was permitted to

avail the said remedy. Subsequent thereto, Petition no. 34 of 2021 came to

be filed by five other persons under Section 39(10) of the Act, 2012 in

which the Handball Federation of India was wrongly sought to be

represented by Dr. S.M. Bali. Learned counsel for the appellant has further

contended that Handball Federation of India initiated the process of

elections and sought the deputation of observer by the Registrar of

Societies. However, on the representation/complaint which was filed by one

Mr. Shripal, claiming himself to be a member of Handball Federation of

India, to the District Registrar, it was submitted that the Handball

Federation of India through communication dated 13.10.2020 categorically

recorded that the individual Mr. Shripal was not a member of the Handball

Federation of India and hence his representation/complaint deserves to be

negated. Learned counsel for the appellant has further submitted that even

for the sake of argument, it is taken that the intimation qua the constitution

of Governing Body was not done within 30 days as prescribed under

Section 33(5), the same could be compounded by imposition of the penalties

as prescribed under Section 72 of the Act under which, if a society fails to

comply with any of the requirement of the Act, could be penalized by

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imposition of fine and after condoning the delay under Section 75 of the

Act, 2012.

Learned Senior Counsel for the appellant has summarized his

arguments as under:-

i. Once the election was held on 01.11.2020, no petition

under Section 39(10) of the Act, 2012 could be

entertained and the only remedy was invocation of

Section 40 of the Act, 2012.

ii. The non-compliance of the provisions of Section 33 are

not fatal as the letter intimating the result of election was

submitted on 14.12.2020 and hence the delay was

compoundable by invocation of Section 72 & 75 of the

Act, 2012.

iii. The learned Single Judge has erred in law and on fact in

giving a definite finding qua the veracity of the letter

dated 14.12.2020 only on the ground that it was a

coloured photocopy.

It has been prayed that the present appeal be allowed and

consequently the writ petition be also allowed and the order dated

05.07.2022 and all actions taken subsequent thereto be set aside which have

been done by relying upon the fact that the wrong provision has been

invoked and duly elected office bearers have been thrown out without

giving them any opportunity of hearing and hence even the principles of

natural justice have not been complied.

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Per contra Mr. Jhanji appearing for respondent no. 5 to 14 has

opened his arguments by submitting that no valid election ever took place

and hence, Section 40 would not be attracted. It has been argued that

maximum term of the Governing Body of the society could be three years as

per the provisions contain under Section 33(3) of the Act, 2012 and

therefore after the re-registration of Society in December, 2013, the

elections were to be conducted in the year 2016 & 2019. He further

contends that Section 33(3) has to be read with Rule 19 for its correct

application and appreciation.

It is contended that although the alleged elections were held on

01.11.2020 but that by itself will not entitle any vested right as the list of

newly elected Governing Body was never submitted by the appellant in the

manner as prescribed under the Act and Rule, and was never approved. He

has vehemently argued that the signatory of the purported letter dated

14.12.2020 Sh. Pritpal Singh Saluja has also denied his signatures and

therefore the same cannot be presumed to be the list of elected office

bearers and in any case the same was beyond the prescribed period of 30

days. Hence the Governing Body never came into existence for the precise

reason being non-compliance of the provisions of Section 33. The said letter

is also disputed as the same is not in conformity of Form 17-A which had to

be filled being requirement under law. In the absence of non-compliance of

the mandatory provisions, the Governing Body never came into being as the

constitution of the Governing Body could be validated only on approval by

the competent authority.

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Mr. Jhanji, Sr. Advocate has summarized his arguments as

under:-

Since no legally compliant elections were ever held, therefore

Section 40 of the Act, will not come into play. Admittedly the tenure of

Governing Body is 3 years, which had expired and the Governing Body had

become functus officio therefore the entire process as alleged by the

appellant was defective. More so even after the alleged election on

01.11.2020, the non-compliance of Section 33(5) has rendered the entire

process void ab initio. Therefore, the provisions of Section 39(10) of the

Act, 2012 were rightly invoked and the order dated 05.07.2022 was legally

passed. He has further submitted that fresh election has been held and

proper compliance and constitution of new Governing Body has taken

place. He has further submitted that even for the sake of arguments, it is

taken that the subsequent election are void, he relies upon the judgment of

2011 (3) SCC 363 - Krishnadevi Malchand Kamathia and others Vs.

Bombay Environmental Action Group and others to submit that even if an

order is void, the party has to approach the appropriate forum. He submits

that in the absence of any subsequent challenge to the election held and

validly complied, by which the Governing Body has been constituted now,

no relief can be granted to the appellant.

After hearing counsel for the parties, the short issue involved

are twofold;

(i) Whether the petition under Section 39(10) was

maintainable or not?;

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(ii) Whether the result of the elections held on 01.11.2020

could be brought into force by applying the proviso to

Section 33(5) read with Section 72 & 75 of the Act,

2012?

Before dealing with the above issues, it is pertinent to

reproduce Sections 33, 39, 40, 72 & 75 of the Haryana Registration and

Regulation of Societies Act, 2012 as under: -

"33. Governing Body. - (1) The members of the General Body or the Collegium, as the case may be, shall elect the Governing Body (by whatever name called), consisting of not less than three and not exceeding 21 members. The office-bearers shall comprise of the President, Secretary and Treasurer as a minimum, and other office-bearers, as prescribed under the Bye-laws.

(2) The Society shall file the list of the elected office-bearers with the District Registrar within a period of thirty days of holding of the elections for the Governing Body in the manner, as prescribed.

(3) The tenure of the Governing Body shall not exceed three years. The matters pertaining to re-election of any office- bearer shall be regulated in accordance with the Bye-laws. (4) Every Society shall maintain a register showing the names, addresses and occupation of the persons appointed or elected as office-bearers and shall file with the District Registrar, -

(i) a copy of the register within a period of thirty days from the date of appointment or election of the office-bearers;

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(ii) a notice of every change in the office-bearer within a period of thirty days, from the date of such change; and

(iii) the details of the office-bearers alongwith the annual return in the manner, as prescribed under the rules.

(5) The constitution of the Governing Body, appointed or elected for the first time or thereafter, shall be valid only upon approval thereof by the District Registrar and its tenure shall commence from the date of its approval.

39. Elections and settlement of disputes. - (1) Elections shall be first held for the constitution of the Collegium from within the electoral colleges determined therefor, wherever applicable, and thereafter for the Governing Body by the Collegium.

(2) The process of elections of the Collegium of a Society shall be commenced, in so far as possible, three months prior to the due date so that the newly elected Governing Body is in place on or before the due date.

(3) On the day the elections of a Society are notified, the Governing Body or the adhoc body or the Administrator, as the case may be, shall publish the list of members entitled to vote. Such list of members shall be made available to a member on demand, on payment of such fee, as may be prescribed by the Society in its Bye-laws.

(4) Any person or group of persons, if aggrieved with the list of members published under sub-section (3) above on account of non-inclusion or wrongful inclusion of any member, may file a petition with the District Registrar stating the specific grounds of challenge within a period of fifteen days of publication of the list of members. The District Registrar may, where the number of members is very large and for reasons to

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be recorded, accept the petition within an extended period of seven days.

(5) The District Registrar may, if he has reasons to suspect the bonafides of any such petition, require the petitioners to deposit such amount, as prescribed, as a surety against any abuse of sub-section (4) above. The amount deposited by the petitioners shall be refunded forthwith if the petition succeeds but shall be liable to be forfeited, if such petition is found to have been made without any merits.

(6) Where a petition is filed before the District Registrar under subsection (4) above, the District Registrar shall, after fulfilment of the condition specified under sub-section (5), immediately hold the election process in abeyance and proceed to conduct an inquiry by himself or by an officer appointed by him, in this behalf, for determining the list of eligible members. (7) The District Registrar may, for the purpose of his inquiry, refer to the annual return of members filed by the Governing Body in his office and consult any or all the relevant records of the Society. The District Registrar shall enjoy all the powers vested in him under Chapter XII of the Act for holding the inquiry. Any such inquiry shall be conducted in the open and completed in a summary manner. (8) Upon completion of the inquiry under sub-section (6) above, the District Registrar shall determine the list of members eligible to vote, make it public and set the process of election in motion. Where the initial list of members published under sub-section (3) above is found to be defective during the inquiry, the election of the Collegium or the Governing Body, as the case may be, shall be conducted by the District Registrar under his direct supervision and control after settling the dispute as per the provisions of the Act. (9) Where elections of the Governing Body are held by the members of the General Body, without requirement of a

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Collegium, any challenge to the list of members of the General Body shall be settled by the District Registrar in the same manner, as specified above.

(10) Where the elections of the Governing Body are not held by the due date, for whatsoever reasons, the District Registrar may constitute an adhoc Committee or appoint an Administrator to manage the affairs of the Society, immediately upon the expiry of the due date, for the intervening period and for conducting the elections of the Governing Body. (11) A Society may approach the District Registrar for appointment of the returning officer and/or an observer for conducting the elections of the Collegium or the Governing Body, as the case may be, whereupon the District Registrar shall order the appointment of the returning officer and/or an observer within seven working days of the receipt of such request from the Governing Body or the adhoc Committee or the Administrator, as the case may be.

(12) The returning officer appointed by the District Registrar shall ensure a minimum notice of fifteen days to all the members, served individually where possible, or though a public notice, at the expense of the Society, for the information of the members.

(13) The returning officer and/or the observer, wherever appointed, shall complete the process of elections, and submit a report thereof to the District Registrar, whereupon the duly elected Governing Body shall be placed in charge of the affairs of the Society and the appointment of any adhoc Committee or the Administrator shall cease to continue forthwith. (14) The District Registrar may fix the remuneration or honorarium for the person appointed as the Administrator, the returning officer, the observer or member of adhoc Committee in the manner and at the rates prescribed from time to time.

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40. Settlement of disputes arising from election of Collegium or Governing Body and its office-bearers. - (1) The Registrar, on a reference made to him by the District Registrar or by at least one-fourth of the members of the General Body or the Collegium, as the case may be, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of any elected member or office bearer to the Collegium or Governing Body, as the case may be, and may pass such orders in respect thereof, as he deems appropriate:

Provided that the election of any or all the members of the Collegium or the office-bearers of the Governing Body shall be set aside where the Registrar is satisfied,

(i) that any corrupt practice has been committed by such office-bearer (s); or

(ii) that the nomination of any candidate has been improperly rejected; or

(iii) that the result of the election, in so far as it concerns such office-bearer, has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote which is void or does not comply with the provisions of any Bye-law. Explanation I. - A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or through any other person-

(i) induces or attempts to induce, by fraud, intentional misrepresentation, coercion or threat of injury to any elector to give or to refrain from giving a vote in favour of any candidate, or any person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at the election;

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(ii) with a view to inducing any elector to give or to refrain from giving a vote in favour of any candidate, or to induce any person to stand or not to stand as, or to withdraw or not to withdraw from being a candidate at the election, offers or gives any money, or valuable consideration, or any place or employment, or holds out any promise of individual advantage or profit to any person;

(iii) abets the doing of any of the acts specified in clauses (i) and (ii);

(iv) induces or attempts to induce a candidate or elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure;

(v) canvasses on grounds of caste, community, sect or religion;

(vi) commits such other practice as the Government may prescribe to be a corrupt practice.

Explanation II. - A promise of individual advantage or profit to a person includes a promise for the benefit of the person himself, or for anyone in whom he is interested. (2) The Government may, prescribe the procedure for hearing and deciding of doubts or disputes in respect of such elections and make provision in respect of any other matter relating to such elections, for which insufficient provision exists in the Act or in the rules framed thereunder. (3) Where by an order made under sub-section (1), an election to the Collegium or the Governing Body is set aside or an office-bearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of office- bearer of a Society has not been held within the time and in accordance with the Bye-laws, he may cause a meeting of the General Body or Collegium, as the case may be, convened for electing such office-bearer or office-bearers, and such meeting

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shall be presided over and conducted by the District Registrar or by any officer authorized by the Registrar in this behalf, and the provisions of the Bye-laws relating to meetings and elections shall apply to such meeting and election with necessary modifications.

(4) Where a meeting of the General Body or the Collegium, as the case may be, is convened on the orders of the Registrar under sub-section (3), no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office-bearer of the Society.

72. Penalties for non-compliance. - If a Society fails to comply with any of the requirements of the Act or contravenes any of the provisions thereof, then the Society in default shall be punishable with fine, as may be prescribed, which may extend to two thousand rupees, and in case of a continuing default or contravention, with fine which may extend to one hundred rupees for every day during which the default or contravention continues.

75. Power of District Registrar to condone delay in certain cases. - The District Registrar may, upon an application in writing by any Society and on sufficient cause being shown, allow further time to such Society to comply with any of the provisions of the Act on payment of such late fees, as may be prescribed:

Provided that the extended period so allowed shall not be more than the time permissible under the Act or the rules made thereunder for any such compliance.

A co-joint reading of Sections 33, 39 & 40 under Chapter-VII

& VIII of the Act, 2012, clearly lays down certain important features for

decision of the present appeal.

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Section 33(3) of the Act, 2012, relates to the tenure of the

Governing Body which uses the word "shall not exceed three years". A

bare perusal of the provision shows that it is a negative embargo in as much

as the words used are "shall not exceed", leaving no doubt or liberty to an

authority to either extend the said time or otherwise. Consequently, it can be

safely presumed that on the expiry of three years, the Governing Body shall

become functus officio. Coupled with the provisions under Chapter VIII of

the Act, 2012, especially Section 39(10) clearly records that where the

elections of the Governing Body are not held by the due date for

whatsoever reasons, the District Registrar may constitute an ad hoc

Committee or appoint an Administrator for managing the affairs of the

Society and convening the election of the Governing Body. The mandate of

law is absolutely crystal clear and specifically deals with the election of the

Governing Body. After the expiry of three years from the date of validation

of the Governing Body, all the election proceedings have to be conducted

by the District Registrar or an Administrator appointed by the District

Registrar in terms of Section 39(10) of the Act, 2012.

Section 40 of the Act, 2012 deals with the Settlement of

Disputes arising from elections of Collegium or Governing Body or its

office bearers. A perusal of the same shows that the power to set aside the

election has been given to the Registrar Societies, but on a reference made

by the District Registrar or by at least one fourth of the members of the

General Body. However, in the present case, the admitted position is that

the alleged elections held on 01.11.2020 were beyond the period of three

years of its initial appointment of Governing Body or at the best from its re-

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registration done on 31.12.2013 which validated the Governing Body for

the first time. However, once the term of three years elapsed, the Governing

Body was functus officio as on the date of the alleged election. Moreso, the

District Registrar had already been approached on 09.10.2020 for

appointment of an Administrator. Therefore, the petition by invoking

Section 39(10) of the Act, 2012, which was filed on 27.09.2021 for

appointment of an Administrator coupled with the prayer for convening the

election of the Governing Body was maintainable.

A perusal of the provisions of Section 72 & 75 of the Act,

2012, deals with the penalty for non-compliance and power of the District

Registrar to condone delay in certain cases. That the proviso to Section 75

of the Act, 2012, needs to be emphasized and is reproduced again: -

"Provided that the extended period so allowed shall not be more than the time permissible under the Act or the rules made thereunder for any such compliance."

A perusal of the same makes it clear that the extent to which

the delay can be condoned cannot be more than the time permissible under

the Act or the Rules as the case may be. An illustration would further clarify

i.e. for example, the limitation to do any act or comply with any Rule is

thirty days then the maximum period which can be condoned cannot exceed

thirty days thereafter. In the present case, since the mere initiation of the

election process by the Governing Body which culminated the elections

held on 01.11.2020 was beyond the powers of the alleged Governing Body

which was functus officio. Moreso, there is nothing on record to show that

there was any validation or re-validation of the said Governing Body took

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place after its initial re-registration on 31.12.2013. Therefore, the relaxation

of condonation of delay under Section 75 of the Act, coupled with the

power to impose penalty under Section 72 of the Act, 2012, for non-

compliance will not come to the rescue of the appellants.

In light of the above provisions of law and the facts of the case,

the Issue No. (i) is answered in negative for the reason that the Federation

was re-registered under the provisions of Act, 2012 on 31.12.2013. By

virtue of Section 33(3), the tenure of Governing Body could not exceed

three years and the constitution of the Governing Body appointed or elected

for the first time or thereafter shall be valid only upon approval thereof by

the District Registrar and its tenure shall commence from the date of its

approval.

The Federation did not convene any election for seven years

and it is only in the year 2020 that the appellant sought guidance/direction

from the Registrar with respect to conducting of election. It is pertinent to

mention here that the District Registrar of Societies, Rohtak vide letter

dated 27.08.2020 directed the appellant, to work strictly as per the

provisions envisaged in Act, 2012 and Rules framed thereunder.

Subsequent thereto, the Federation started the process by

appointing Returning Officer and requested the statutory authorities viz

-International Handball Federation, India Olympic Federation, Asian

Handball Federation and District Registrar of Societies, Rohtak for

appointment of observers. However, a complaint dated 09.10.2020 was

submitted by one Mr. Shri Pal Singh wherein strong apprehension of

misconduct of election was stated and it was requested that the election be

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held under supervision of District Registrar of Societies. This complaint was

replied by the Handball Federation of India and subsequently after release

of final electoral college, the election was held on 01.11.2020. It is

interesting to note here that all the executive members of committee were

elected unopposed. The said elected members failed to comply with the

provision of Section 33(5) and did not submit the constitution of Governing

Body for its approval with the District Registrar within the stipulated period

of 30 days. The only intimation which has come on record is a letter dated

14.12.2020 allegedly submitted by one Sh. Pritpal Singh Saluja which was

denied by the signatory and with specific averment that no such letter was

ever in existence. The original of this letter has never seen the light of the

day and only a coloured photocopy was produced. In fact, the said signatory

has gone on affidavit to deny the existence of the same.

In the above backdrop the provisions of Section 39(10) which

relates to a situation where the election of the Governing Body are not held

by the due date for whatsoever reason, the District Registrar may constitute

an ad hoc committee or appoint Administrator to manage the affairs of the

society immediately on expiry of the due date, for the intervening period

and for conducting the elections of the Governing Body, it is a positive case

of the respondents that since there was no approval sought and/or granted

by the District Registrar qua the constitution of the Governing Body, the

same never came into existence and hence Section 39(10) was attracted

which we find to be the correct position in law.

Accordingly, it is held that the petition under Section 39(10)

was the only remedy available in absence of legally valid Governing Body

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of the society having been constituted. In the present case, the Governing

Body had lost its powers on the expiry of three years from the date of re-

registration and thereafter there was no approval and validation of the

Governing Body after the alleged election held on 01.11.2020.

Section 39(10) and Section 40 of the Act, 2012, clearly

distinguish the two situations i.e. election and settlement dispute and;

settlement of disputes arising from election from Collegium or the

Governing Body and its office bearers. Section 39 deals with situation with

regard to the process of election and sub-section 10 clearly states that where

the elections of the Governing Body are not held by the due date, for

whatsoever reasons, the District Registrar may constitute an ad hoc

Committee or appoint an Administrator to manage the affairs of the Society,

immediately upon the expiry of the due date, for the intervening period and

for conducting the elections of the Governing Body. Since there was no

valid Governing Body in place at the time of filing of the complaint or the

petition, therefore the provisions of Section 39(10) were rightly applied and

adjudicated upon in the order dated 05.07.2022 vide which the District

Registrar, Rohtak was directed to appoint an Administrator to conduct the

elections of the Governing Body and also to manage the day to day affairs.

The argument of the appellant qua non-application of Section

39(10) has no consequence for the reason that the said petition under

Section 39(10) was filed on 27.09.2021 only and there was no reason for the

said complainant for not making Sh. Surinder Mohan Bali as a respondent.

The arguments of the learned counsel for the appellant also fall flat for the

reasons that the said petition was duly contested in which Mr. Surinder

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Mohan Bali clarified about the stand and subsequently, there was due

representation on behalf of the Handball Federation of India. In the light of

the above, the said question is answered against the appellant

Now coming to Issue No. (ii), where by the appellant has

submitted that the proviso to Section 33(5) read with Section 72 & 75 of the

Act, 2012 should have been applied and accordingly the said elections held

on 01.11.2020 and the list of Governing Body should be considered to be

validated on expiry of 30 days from the date when it was submitted to the

District Registrar and no objection was raised is also negated.

That Rule 19 of the Haryana Registration and Regulation of

Societies Rules, 2012 deals with the filing the copy of Register of Govern-

ing Body, which reads as under:

Rule 19. Filing the copy of Register of Governing Body. -

(1) Every Society shall maintain a register showing the names, addresses and occupations of the persons appointed/ elected as the office-bearers/members of the Governing Body in Form No. XVII and shall file a list of elected office bearers/ members of Governing Body with the District Registrar within a period of thirty days from the date of appointment or election of office bearers as required under clause (i) of sub section (4) of section 33 of the Act.

(2) Every change in the members of the Governing Body shall be filed with District Registrar in Form XVII-A within thirty days from the date of such change as required under clause (ii) of sub section (4) of section 33. (3) Every Society shall file an annual return of updated list of office bearers/ members of the Governing Body with the District Registrar, separately showing inclusions and

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deletions, if any, during the preceding financial year in Form XVII-B, within sixty days of close of the financial year in compliance with the provision contained in clause (iii) of sub section (4) of section 33 of the Act."

A perusal of the above Rule read with Chapter VII of the Act,

2012 deals with the General Body, Collegium and the Governing Body qua

its constitution, meetings etc. Section 33 specifically deals with the

Governing Body and prescribes the composition of office bearers which

shall comprise of the President, Secretary and Treasure as minimum and

other office bearers. Section 33(2) mandatorily requires that the society

shall file the list of elected office bearers with the District Registrar within a

period of 30 days of holding of the election for the Governing Body in the

manner, as prescribed. Form 17 & Form 17-A relates to the said

compliance in prescribed format. However, admittedly the same has not

been done. By virtue of Section 33(5), the constitution of the Governing

Body appointed or elected for the first time or thereafter, will be valid only

after approval from the District Registrar and the legislature in order to

clarify this position has stated that the tenure of the Governing Body shall

commence from the date of approval.

The argument of the counsel for the appellant that the letter

dated 14.12.2020, though was filed after the requisite period of thirty days

but the District Registrar should have exercised its power under Section 75

of the Act for condoning the same. The said argument cannot be applied in

the present case for the simple reason that the entire process started by the

Governing Body to convene the election was done after three years by

taking the starting date to be the date of re-registration. There is nothing on

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record to show that the said Governing Body was ever re-elected and the

provisions of Section 33(5) were complied with.

It is imperative to read Section 33(5) at this stage for the reason

that the Governing Body shall be valid only upon approval thereof by the

District Registrar. As regards the proviso to Section 33(5) which creates a

deeming fiction of deemed approval on expiry of thirty days would only

come into play when the initial submission of list is done within the

prescribed time. Presuming for the sake of argument, the delay is condoned

for submission of the list of the office bearers for constituting the Governing

Body, even then since the entire process stands vitiated for the reason that

the Governing Body became functus officio on the expiry of three years

from the date of initial validation, the said proviso shall not come to the

rescue in favour of the appellants.

The argument of the counsel for the appellant, to the extent that

the non-compliance cannot be fatal and the same is only any irregularity

which can be compounded by invoking Sections 72 & 75 relating to

imposition of penalty and condonation of delay respectively, deserves to be

negated for the simple reason that once the constitution of the Governing

Body was not having any legal validity on expiry of three years nor

approved till date, the provisions of continuation of delay and invoking the

penalty clause would not be attracted. The statutory requirement in a

prescribed format makes it mandatory and in the absence of the same, the

deeming fiction of the constitution of Governing Body being sought to be

approved after expiry of 30 days of its filing cannot come to the rescue of

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the appellant for the reason, that no such letter was ever submitted by

appellant.

It is a settled law that where the word "subject to approval" are

used in the enactment, the effect of these words is to introduce a condition

which is indicative of the fact that something will come into force and have

a legal and valid force only upon approval by the competent authority. The

Hon'ble Supreme Court of India in the judgment rendered in 2009 (10) SCC

514 - Padubidri Damodar Shenoy Vs. Indian Airlines Limited & Anr. has

held as under: -

"27. The aforesaid decisions of this Court do provide some guidance but the controversy in hand has to be decided in the light of the words used in proviso appended to Regulation 12. The key words therein are that voluntary retirement under clause (b) 'shall be subject to approval' of the competent authority. In 'Principles of Statutory Interpretation' (Seventh Edition, 1999), Justice G.P. Singh has quoted words of Lord Macmillan in Madras & Southern Maharatta Rly. Co. Ltd. v. Bezwada Municipality, AIR 1944 Privy Council 71 which read thus:

"The proper function of a proviso is to except and to deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case."

28. In the aforesaid book, author has also quoted the

opinion of Lord Macnaghten in Local Govt. Board vs. South

Stoneham Union, (1909) AC 57, p.62 as follows:

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"The proviso may be a qualification of the preceding enactment which is expressed in terms too general to be quite accurate".

29. In the case of Shah Bhoraj Kuverji Oil Mills and

Ginning Factory v. Subhash Chandra Yograj Sinha, AIR

1961 Supreme Court 1596 this Court held, "...as a general

rule, a proviso is added to an enactment to qualify or create an

exception to what is in the enactment..."

30. In the case of CIT, Mysore etc. v. Indo Mercantile Bank

Ltd., AIR 1959 Supreme Court 713 this court observed:

"The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main enactment. Ordinarily it is foreign to the proper function of proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment".

31. In A.N. Sehgal & Ors., upon which reliance has been

placed by the learned counsel for the appellant, this Court

stated as follows:

"14. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which

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would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms.

15. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect."

32. The use of the word 'shall' in the proviso, prima facie leads to an inference that provision is imperative. There is nothing in the context to suggest that it is merely directory. It is followed by the words, 'subject to approval'. The effect of the use of words 'subject to' is to introduce a condition. The expression, "shall be subject to approval" is indicative of its intendment that the voluntary retirement applied by the employees covered by clause (b) is effective only upon approval by the competent authority. The effect of these words is to introduce a condition and thereby make voluntary retirement applied by employees covered by category (b) conditional upon its approval by the competent authority. There is nothing to indicate in Regulation 12 that if employer decides to withhold approval of voluntary retirement, such

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refusal of approval must be communicated to the petitioner during the period of notice. True it is that notice of three months for voluntary retirement given by an employee covered by clause (b) remains valid even if no communication is received within notice period but it becomes effective only on its approval by the competent authority. As a matter of fact, this seems to have been understood by both the parties. The appellant issued a notice of voluntary retirement under Regulation 12 (b) on September 30, 2005. The notice period was to expire on December 31, 2005. It is an admitted position that the competent authority neither gave approval nor indicated disapproval to the appellant within the notice period of three months. The employee never treated that there has been cessation of employment on expiry of three months notice period inasmuch as he continued to attend his duties after December 31, 2005 until June 30, 2006. It is only by his letter dated June 8, 2006 that the appellant requested the respondent to relieve him in terms of his notice dated September 30, 2005 by June 30, 2006 and he stopped attending work from July 1, 2006. The letter dated June 8, 2006 does not make any material difference as the fact of the matter is that after expiry of notice period, the appellant continued to attend his duties for many months thereafter. By the letter dated September 15, 2006 the respondent communicated to the appellant that his application for voluntary retirement under Service Regulation 12(b) has not been acceded to by the competent authority. Since the notice for voluntary retirement by an employee who has not attained 55 years but has completed 20 years of continuous service, under proviso appended to Regulation 12

(b), is subject to approval by the competent authority and that approval was not granted, the voluntary retirement of the respondent never came into effect."

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Another argument raised by learned counsel for the appellant is

that the District Registrar should have exercised powers under Section 72 to

impose penalty for the non-compliance after invoking Section 75 of the Act

which empowers the District Registrar to condone the delay.

Having heard the learned Senior Counsels for the parties and

with their able assistance, we are of the view that the argument raised by the

appellant qua non-applicability of Section 39(10) is negated for the reason

detailed herein above and more so, by virtue of Section 33(3), the

Governing Body lost its power and identity on expiry of three years and

therefore the entire exercise done for convening the election on 01.11.2020

was void ab initio and nonest in the eyes of law. It is further held that the

deeming fiction enshrined in the proviso to Section 33(5) whereby the

Governing Body is deemed to be proved in case no objection is raised for a

period of 30 days will also not come into the rescue of the appellant for the

reason that there was no legal force in the Governing Body to have

convened the election on 01.11.2020 and apply to the District Registrar for

approval of the same. The authorities below have rightly applied the

provisions of Section 39(10) in present circumstances and provisions of

Section 40 are not attracted for the reason detailed herein above. It is further

held that provisions of Section 72 and 75 could not be invoked due to the

fact that there was no legally working Governing Body which could have

sought the condonation of delay subject to imposition of penalty. The

Governing Body has lost its legal sanctity on expiry of three years of its

constitution and re-registration of the society which was done in the year

2013. Therefore, the elections at first instance could not have been held

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without compliance of Section 39(10) and hence the respondents have

rightly invoked the said provision which culminated into the order dated

05.07.2022. Therefore, the order passed by the learned Single Judge

directing of holding fresh election in accordance with law is absolutely legal

and valid. More so, it is admitted position that the fresh election has been

held and the District Registrar have approved the newly constituted

Governing Body in accordance with law.

Hence, we are of the considered view that the order dated

05.07.2022 passed by the Authority below and order dated 09.08.2022

passed by the Learned Single Judge does not call for any interference and

the instant appeal deserve to be dismissed.

Ordered accordingly.

(AUGUSTINE GEORGE MASIH)                                        (ALOK JAIN)
        JUDGE                                                      JUDGE



19.12.2022
neenu

Whether speaking/reasoned :   Yes/No
Whether Reportable :          Yes/No




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