JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. This writ petition has been filed challenging the order dated 26.2.2001 passed by the Assistant Registrar, Firms, Societies & Chits, Azamgarh Region, Azamgarh (respondent No. 1) whereby certificate of renewal of the Society has been granted on the basis of the yearly list for 2000-2001 in exercise of powers under Section 3-A of the Societies Registration Act, 1860 (in short the Act). By the order dated 26.2.2001 Sri Iltaf (respondent No. 2) is held to be the Secretary of the Society and the list of office bearers for the year 2000-2001 submitted by respondent No. 2 is held to be valid. By the aforesaid order the election held on 7.10.2000 alleged to have been conducted by petitioner No. 3 has been held to be illegal and has been cancelled.
3. Sub-section (4) of Section 3-A of the Act is reproduced as under: -
"(4) Every application for renewal of the certificate shall be accompanied by a list of members of the managing body elected after the registration of the society or after the renewal of certificate of registration and also the certificate sought to be renewed unless dispensed with by the Registrar on the ground of its loss or destruction of any other sufficient cause."
4. Brief facts of the case are that Adare Madarsa, Ziaul-ul-um, Gontha, District Mau is a society registered under the Societies Registration Act, 1860. It is not in dispute that the said society was registered in the year 1962 and was renewed from time to time. It is also admitted to the parties that the Society was last renewed w.e.f. 10.10.1995 for a period of five years. Thus, it is not in dispute that the Society was renewed up to 10.10.2000. After 1995 the annual list sent by the managing body was registered by the office of Assistant Registrar in exercise of powers under Section 4 of the Act. It appears that there was some dispute between the petitioners and respondent No. 2 with regard to the annual list for the year 1998-99 which was decided by the Assistant Registrar vide order dated 28.8.1998. The order was challenged by one Ishtiyak Ahmad by means of Writ Petition No. 522 of 1999 which was pending at the time of filing of the present writ petition. The aforesaid writ petition has since been dismissed as withdrawn on 20.3.2003.
5. In October 2000 a controversy arose regarding renewal of the Society when petitioner No. 3 as the Secretary of the Society submitted papers of proceedings of election held on 7.10.2000 and other relevant papers along with the application for renewal of the Society.
6. Respondent No. 2 also applied for renewal of the Society along with a list of office bearers for the year 2000-2001.
7. It is submitted by the counsel for the petitioners that respondent No. 2, Iltaf, neither alleged nor filed any document to establish that election of the Society was held as claimed by him and he only prayed for renewal of the Society on the basis of the list of office bearers for the year 2000-01. It is further submitted that in the counter affidavit filed by respondent No. 2 a plea has been taken to the effect that the petitioners concealed the fact that against the impugned order dated 26.2.2001 they had already filed an appeal before the Commissioner which has been dismissed on 16.3.2001 holding that appeal was not maintainable in law against the order dated 26.2.2001. He submits that in these circumstances the petitioners have no other alternative remedy but to file the present writ petition challenging the impugned order dated 26.2.2001. It is further submitted that non-mentioning/disclosing in the writ petition the facts and circumstances in which the Commissioner held that the order dated 26.2.2001 was not appealable cannot be said to be any concealment of fact.
8. It is also submitted that in the counter affidavit much emphasis has been placed on the resignations submitted by some of the members of the Society and also on the fact that some new members have been inducted. It is stated that although the Assistant Registrar has relied upon the version of respondent No. 2 but in so far as the facts of the present writ petition are concerned it makes no difference, as the petitioners are not challenging the annual list of any year.
9. The submissions of the petitioners against the impugned order dated 26.2.2001 passed by the Assistant Registrar are as under: -
(i) Even if the election held by petitioner No. 3 was illegal as held by the Assistant Registrar the renewal of certificate of the registration cannot be granted in favour of respondent No. 2 in the absence of any election of the managing body. Since respondent No. 2 neither alleged nor submitted any papers regarding the election of the managing body after the last renewal of registration, the renewal cannot be granted on the basis of annual list submitted by respondent No. 2.
(ii) In the order impugned passed by the Assistant Registrar, there is no mention that any election was held or submitted by respondent No. 2, as such naturally there could be no finding by the Assistant Registrar regarding any election alleged to have been held by respondent No. 2.
(iii) The Assistant Registrar has no authority in law to grant renewal of certificate of registration to any society without the election of the managing body after renewal of the certificate. Since there is no allegation that after the year 1995 there was any election by respondent No. 2 prior to the submission of application for renewal, the Assistant Registrar has no jurisdiction or authority in law to grant renewal of the certificate of registration to the body represented by respondent No. 2.
10. The counsel for the respondents submits that the earlier Writ Petition No. 522 of 1999 filed by the petitioners challenging the order dated 28.9.1998 passed by respondent No. 1 accepting the list of office bearers submitted by Iltaf for the year 1998-99 has been subsequently dismissed as withdrawn. No interim order was granted at any point of time and the order dated 28.9.1998 has become final. He further submits that the petitioners have no locus standi to file the present writ petition, as they are not even the members of the Society. Appeal No. 46 of 2001 filed by the petitioners against the impugned order dated 26.2.2001 has been dismissed by order dated 16.3.2001 which fact has been concealed by the petitioners. The rival claims of both the parties have already been settled by respondent No. 1 by means of orders dated 28.9.1998 and 26.2.2001. The signatures of respondent No. 2 have been attested by the District Minority Welfare Officer as the Secretary and he is in actual physical control of the institution. The learned counsel for the respondents has placed reliance upon the decisions rendered in Committee of Management Kishan Shiksha Sudan, Banksahi District Basti and Anr. v. Assistant Registrar, Gorakhpur Region, Gorakhpur and Anr., 1995 (II) U.P.L.B.E.C. 1242 (D.B.); Committee of Management Anjuman Islamia Mariyadih Allahabad and Anr. v. Assistant Registrar, Chits and Funds Allahabad and Ors., 1998 (II) U.P.L.B.E.C. 1000; and Sri Ram Laxmi Narain Marvadi Hospital, Godaulia Varanasi and Ors. v. Assistant Registrar Firms, Societies and Chits and Ors., 2000 (III) U.P.L.B.E.C. 2063 in support of his case.
11. In the aforesaid cases it has been held that the scope of Sections 4 and 5 of the Societies Registration Act, 1860 is entirely different and if there is any dispute or doubt, whether person seeking election is a member of Socieity, the Registrar has jurisdiction to decide that question but has no jurisdictin to decide the claim of rival committees of management regarding validity of the elections held by them and such the dispute has to be referred to the Prescribed Authority. In the instant case no elelction was held by respondent No. 2 and there is no question of validity of elections of rival committees involved, hence the validity of the elections has already been settled by orders dated 28.9.1998 and 26.2.2001 as stated above. The case cited by the counsel for the respondents are clearly distinguishable on facts and law and are not applicable.
12. From the facts narrated above and deducible from the contention of the parties, the net result is that the election dated 7.10.2000 alleged to have been held by petitioner No. 3 has been held to be illegal by the Assistant Registrar. There is neither any other election nor even any allegation of any election of any other body. The renewal of the Society has been granted by the Assistant Registrar on the basis of annual list of the officers which apparently is illegal. Thus, the Society has become unregistered society within the meaning of Sub-section (5) of Section 3-A and the only remedy now available is of holding a fresh election of the Society.
13. Sub-section (2) of Section 25 of the Act provides that where any election of office bearers of the Society has not been held within the time specified, i.e., within 5 years, the Registrar may call meeting of general body of the Society for electing the office bearers. Except the Registrar no other person can now hold elections of the Society.
14. In view of the facts and circumstances of the case, the impugned order dated 26.2.2001 deserves to be set aside and it is expedient in the interest of justice that the Registrar may be directed to hold election of the Society in accordance with law in exercise of powers under sub-section (2) of Section 25 of the Act.
15. For the reasons stated above, the writ petition is allowed and the impugned order is set aside/quashed. The Registrar is directed to hold fresh election of the Society within a period of two months from the date of production of a certified copy of this order before it by the petitioners.