Heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Prashant Kumar, for the petitioners; learned Standing Counsel for the respondent no.1 to 3; and Sri G.K. Singh, learned Senior Counsel assisted by Sri Daya Shankar Singh, for the respondent no.4.
The contesting respondent no.4 has filed a short counter affidavit to which a rejoinder affidavit has been filed by the petitioners and the learned counsel for the parties are in agreement that in view of the nature of the order that is being passed, the writ petition may be finally decided, at this stage itself.
Briefly stated the facts of the case are that there is a registered society by the name of Saltanat Bahadur Educational Trust, Sri Krishna Nagar, Badlapur, Jaunpur. Under the Bye-laws of the Society, the term of the office bearers of the Society is one year. The last undisputed election of the office bearers of the Society was held on 25.05.2012 in which the petitioner no.3 was elected as the President and the respondent no.4 was elected as the General Manager. The office bearers were also registered under Section 4 of the Societies Registration Act. As the term of the office bearers was of one year, two sets of elections, alleged to have been held on 19.05.2013, were set up before the Assistant Registrar with different set of office bearers, one by the petitioners and the other by the respondent no.4. The general body of the Society, in both sets of election, set up by rival claimants, was common except to the extent of 57 members which, according to the respondent no.4, were inducted on the basis of resolution of the Board of Trustees dated 02.09.2012, which was approved by the general body by a Resolution dated 30.09.2012. It is the induction of these 57 members which is bone of contention between the petitioners and the respondent no.4.
The claim of the petitioners is that according to the case of the respondent no.4 these 57 members had been inducted in the year 2008, but such induction did not find favour with the Assistant Registrar who, by his order dated 31.08.2010 in exercise of power under Section 25 (2) of the Societies Registration Act, had determined the strength of the general body to be of 125 alive members out of a total of 201 members and in that list of 125 alive members, the names of those 57 members, alleged to have been inducted in the year 2008, did not find mention. It is the case of the petitioners that, subsequently, to justify the induction of those 57 members and further to justify their participation in the election dated 19.05.2013, set up by the respondent no.4, the respondent no.4, along with his application for registering the alleged newly elected office bearers, filed a copy of the Resolution dated 02.09.2012 of the Board of Trustees to suggest that the induction of those 57 members was approved by the Board of Trustees.
It is the case of the petitioners that under Clause-5 of the Bye-laws of the Society, induction of new members is required to be proposed and seconded in a meeting of the Trustees (which means the general body), but, in the instant case, the induction of those 57 new members were not made through a meeting of the Trustees and instead, as alleged, it was on the basis of resolution of the Board of Trustees and, therefore, they were not valid members and, as such, the elections set up by the respondent no.4 with the participation of those additional 57 new members was not legally valid.
The Assistant Registrar, Varanasi, by the order impugned, accepted the induction of 57 new members to the general body of the Society and, thereafter, approved the elections set up by the respondent no.4 and disapproved the elections set up by the petitioners.
Challenging the order passed by the Assistant Registrar, the learned counsel for the petitioners submitted that from the application submitted by the respondent no.4 before the Assistant Registrar, it was clear that the Resolution dated 02.09.2012, on the basis of which induction of new members was set up, was of the Board of Trustees and not of the Trustees i.e. the general body, therefore, the induction of those 57 new members was not legally valid, inasmuch as, it was not in accordance with Clause-5 of the registered Bye-laws of the Society.
On the above submission of the learned counsel for the petitioners, by order 22.08.2014 this Court required the Standing Counsel to seek instructions as to whether there was any resolution of the general body of the Society available on record in the office of the Assistant Registrar denoting existence of a resolution of the general body with regards to the induction of 57 new members.
Pursuant to the order dated 22.08.2014, on 28.08.2014 the learned Standing Counsel produced written instructions obtained from the Assistant Registrar concerned. According to the instructions received from the Assistant Registrar the minutes of the meeting dated 30.09.2012 of the general body were there on record at the time of passing the impugned order which disclosed that the induction of 57 new members was approved by the general body of the society.
The learned counsel for the petitioner disputed existence of such resolution and claimed that it must have subsequently been placed on record. In reference to the dispute with regards to the existence of the above resolution on record, the contesting parties have exchanged short affidavits.
According to the short counter affidavit of the respondent no.4, the original records pertaining to the Society including the copy of the proceedings dated 30.09.2012, on the basis of which the induction of 57 new members had been approved by the general body, were submitted in the office of the Assistant Registrar on 02.07.2014.
In reply to the aforesaid affidavit of the respondent no.4, a short rejoinder affidavit has been filed on behalf of the petitioners stating specifically that 02.07.2014 was the last date for hearing before the Assistant Registrar and the documents, if any, filed by the respondent no.4 were never served on the petitioners and since those documents, if at all they were filed, were alleged to be filed on the last date of hearing, the petitioners did not have sufficient opportunity to rebut those documents. The petitioners have also challenged the existence of the resolution dated 30.09.2012 of the general body in which the induction of 57 new members was allegedly approved. It is thus the submission of the learned counsel for the petitioners that the impugned order passed by the Assistant Registrar suffers from infraction of the principles of natural justice as reliance has been placed on a document which was neither served on the petitioners nor any opportunity was given to the petitioner to rebut the same, inasmuch as, it was filed on the last date of hearing.
Sri G.K. Singh, learned counsel for the respondent no.4, submitted that there is no procedure prescribed which may require a party producing a document before the Assistant Registrar to supply a copy of the same to the other side. It has been submitted that it was for the other side to have made a demand for those documents or to have applied for a copy of those documents and to challenge its existence. It has been submitted that since the petitioners have themselves not demanded for copy of those documents in the proceedings before the Assistant Registrar, therefore, the order passed by the Assistant Registrar cannot be said to suffer from violation of principles of nature justice.
Having considered the submissions of the learned counsel for the parties as also on perusal of the affidavits, this Court finds that the main dispute between the rival claimants was with regards to the induction of 57 new members in the general body of the Society. The basis of induction of the 57 new members in the Society is the alleged resolution dated 30.09.2012 passed by the general body of the Society. As it is not in dispute that the alleged resolution dated 30.09.2012 was brought on record in the proceedings before the Assistant Registrar on the last date of hearing of the proceedings and it is also not claimed that the copy of the said document was supplied to the other side before its filing in the office of the Assistant Registrar, this Court is of the view that any reliance placed on that document would have vitiated the principles of the natural justice, inasmuch as, it is well settled in law that an adverse material must always be made known to the affected party, before it is relied against him, so as to enable the affected party to have an opportunity to rebut the same. Since the Assistant Registrar has proceeded to record its satisfaction by placing reliance on those documents, which were submitted before him on the last date of hearing, without supplying copy of the same to the other side, this Court is of the view that the order of the Assistant Registrar dated 08.08.2014 stands vitiated and the same deserves to be set aside and is, accordingly, set aside. However, as admittedly, the term of the Committee of Management of the Society is one year and the last election, as set up by the rival claimants, is of 19.05.2013, the term of the office-bearers having already expired, no useful purpose would be served by remitting the election dispute back to the Assistant Registrar for deciding it afresh, particularly, in view of the provisions of Section 25 (2) of the Societies Registration Act.
In view of the above, this writ petition is disposed of with a direction to the Assistant Registrar, Varanasi to hold fresh elections of the office bearers of the concerned society, under Section 25 (2) of the Societies Registration Act, preferably, within a period of two months from the date of production of a certified copy of this order. Before holding the said elections, he would publish a tentative list of members of the Society and invite objections to the same. After inviting objections to the tentative list, he would determine the general body / electoral college and, thereafter, hold the elections. While determining the electoral college, he would apply his mind, afresh, on the validity or otherwise of the induction of 57 new members to the general body of the Society without being influenced by its earlier order dated 08.08.2014, which has already been set aside by this order.
Order Date :- 6.9.2014 AKShukla/-