Court No. - 34
Case :- WRIT - C No. - 23815 of 2020 Petitioner :- C/M Ansar Girls Inter College And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sheikh Obaidullah,Radha Kant Ojha (Senior Adv) Counsel for Respondent :- C.S.C.,Jitendra Singh
Hon'ble Yashwant Varma,J.
The Court has heard Sri R.K. Ojha learned senior counsel in support of the petition and Sri Ashok Khare learned senior counsel appearing for the contesting respondents. Learned Standing counsel has appeared for the State respondents.
The petitioners challenge the validity of an order dated 24 September 2020 according recognition to elections to the managing body of the petitioner society stated to have been held on 4 August 2019 and papers in respect of which were presented by the fourth respondent. The petitioners had set up a case of elections allegedly convened and conducted on 22 August 2019. Curiously, the petitioner no. 2 was shown elected as the President in the elections set up by the fourth respondent. However, in the elections claimed to have been held by the petitioner no. 2, he was shown elected as the Secretary. The Assistant Registrar upon a consideration of the rival claims has proceeded to accord recognition to the elections conducted by the fourth respondent.
While doing so, the Assistant Registrar also observes that none of the parties before it had sought reference of a dispute as envisaged under Section 25(1) of the 1860 Act. This observation assumes significance since the Court would have to consider whether the mere failure of parties to seek referral of a dispute under Section 25(1) would sufficiently empower or confer jurisdiction and authority upon the Assistant Registrar to decide an election dispute on merits bearing in mind the nature of the power which otherwise stands conferred upon him.
Upon noticing the relevant provisions of the 1860 Act this Court in Committee of Management Subhash Chandra Bose Smarak Vidyalaya Isipur and Another Vs. State of U.P. and others1 explained the nature of the power conferred upon the Assistant Registrar as follows:-
“Before the Court it is not disputed that where a serious or substantial dispute with regard to election or continuance of an office bearer or member of a Society arises, it is incumbent upon the Assistant Registrar to refer the matter for the consideration of the Prescribed Authority in terms of the provisions made in Section 25 of the Act. The forum created in terms of Section 25 in facts deals specifically with such disputes and issues. Viewed in that sense the Assistant Registrar has a limited role to play while registering a list of office bearers that may be submitted before him for registration. The role and the jurisdiction assigned to the Assistant Registrar in this regard stands duly enumerated in Sections 4, 4A and 4B of the Act. However, and as is well settled, the Assistant Registrar is not envisaged to act as a mere rubber stamp liable to accept and register all or any returns that may be presented before him. While registering a list, it is incumbent upon the Assistant Registrar to summarily scrutinise the documents submitted in order to examine their veracity and to ensure a compliance with the statutory requirements placed by the Act and the Byelaws of the society. The limited jurisdiction which stands conferred upon the Registrar at this juncture also does not require him to undertake a detailed or in depth enquiry or enter the arena of a definitive adjudication.
Notwithstanding the limited scope of the jurisdiction which the Assistant Registrar has been recognised to wield at this stage, the Courts have also taken the consistent view that in a case where forgery or fabrication is alleged or where it be found ex facie that the documents are not compliant with the statutory requirements placed under the Act, he would be well within his right to refuse to register the returns upon being duly satisfied in that regard. Fraud and fabrication as has been repeatedly said unravel the most solemn of acts. Viewed in that sense the Assistant Registrar theoretically and in principle must be held empowered to examine such allegations albeit bearing in mind the constraints of the summary character of the jurisdiction which is otherwise conferred upon him.”
Bearing in mind the nature of the jurisdiction which is liable to be exercised by the Assistant Registrar at a stage where two rival claims of elections are laid and as explained in the decision aforenoted, the Court is of the considered view that the authority committed a serious illegality in proceeding to adjudge the validity of the rival elections which were set up 1 Writ C No. 12711 of 2020 decided on 25 November 2020 by respective parties.
The Court notes that the petitioner no. 2 had alleged that his signatures on documents filed by the fourth respondent had been forged and that no elections at all took place on 4 August 2019. It has also come on the record that the said petitioner had also lodged a First Information Report in connection with the alleged forgery committed by the fourth respondent. Although a closure report had been submitted by the police authorities with reference to that report, it is admitted that the petitioner no. 2 has filed a protest petition which is still pending consideration before the competent court. The Assistant Registrar has also taken note of certain affidavits filed by some members who have sided with the version set up by the fourth respondent in order to arrive at the conclusion that the version as set up by the fourth respondent merited acceptance. This he chose to do even though he himself had recorded that in light of the pendency of the criminal proceedings before the competent court, no definitive finding with respect to the veracity of signatures appearing on the rival sets of documents should be returned or recorded.
In the considered view of this Court it is in these very situations and where a serious and substantial dispute is raised that the Assistant Registrar must desist from proceeding to evaluate the authenticity and reliability of rival claims. In such a situation the statute commands him to stay his hands, refrain from entering into an adjudication on merits and refer parties to the Prescribed Authority in accordance with the provisions made in Section 25 of the Act.
More importantly, the reference to the Prescribed Authority cannot be made dependent upon one of the rival claimants lodging such a request. It is for the Assistant Registrar himself to consider whether a substantial dispute does in fact exist which warrants reference being made to the Prescribed Authority. Such a reference cannot depend upon consent or acquiescence of competing claimants. If the substance of the dispute which is raised before the Assistant Registrar is neither superficial nor ex facie specious or incredulous and it is found that the rival claims require serious consideration, the Assistant Registrar is mandated to refer parties to the Prescribed Authority.
In the facts of the present case, a serious dispute was shown to exist in light of the competing claims which were set up by respective parties. The Assistant Registrar was thus clearly obliged to refer parties under Section 25(1) of the Act. The Assistant Registrar in failing to do so and proceeding to decide the controversy himself has clearly committed a manifest illegality.
Upon the Court arriving at this conclusion Sri Khare, learned senior counsel, submitted that rather than keeping the petition pending and calling for affidavits, the ends of justice would merit the matter being remitted to the Prescribed Authority for consideration in light of the provisions made in Section 25 of the Act.
Accordingly for reasons aforenoted, the instant writ petition is allowed. The impugned order dated 24 September 2020 is hereby quashed. The Assistant Registrar is hereby directed to refer the rival claims of the petitioners and the fourth respondent for the decision of the Prescribed Authority in accordance with the provisions made in Section 25 of the Act.
Order Date :- 5.1.2021 Vivek Kr.
(Yashwant Varma, J.)