Janta Shiksha Prasar Samiti, Pipra Pratham, District Sant Kabir Nagar is a society registered under the Societies Registration Act and it runs a recognised and a aided Junior High School named as Janta Laghu Madhyamik Vidyalaya, Pipra Pratham, District Sant Kabir Nagar. The society and the Institution are managed by the Committee of Management constituted under bye-laws. The term of the Committee of Management is three years. Periodical elections upto 1983 were conducted. It is contended that petitioner no. 3 was regularly elected as Manager and his signatures were regularly attested by the Basic Shiksha Adhikari on various dates i.e. 17.9.1983, 21.2.1984, 17.8.1990, 23.11.1996 and 15.5.1997.
It seems that the registration of the society was renewed on the basis of papers submitted by the petitioner no. 3 as Manager on 29.8.1983. Renewal of the Society was questioned by one Prahland Singh before the Assistant Registrar, who vide his order dated 30.1.1984 recognised him as Manager and cancelled the registration of the Society granted on 29.8.1993 in exercise of power under Section 12 (D)(1) of the Act. This order was subject matter of challenge before this Court in Civil Misc Writ Petition No. 2182 of 1984 and this Court stayed the order dated 30.1.1984 passed by the Assistant Registrar. In a collateral proceedings said Prahaland Singh questioned the attestation of the signatures of petitioner no. 3 as Manager in Civil Misc Writ Petition No. 23655 of 1997. Both the aforesaid writ petitions were clubbed together by this Court and disposed of by a common judgement and order dated 16.9.1997. A direction was issued by this Court to Assistant Registrar as well as the Basic Shiksha Adhikari, Basti to pass fresh orders on the basis of facts and circumstances as they exist on that date.
Assistant Registrar, Firms, Societies and Chits after hearing the parties held that fresh election be held by invoking Section 25(2) of the Societies Registration Act on the basis of the electoral college consisting of members who were enrolled prior to dispute which had arisen in the year 1983. Direction clearly contemplates that those members who were enrolled up to 1983 would constitute the electoral colleges of the Society. On the basis of direction issued herein supra, a list of 118 members of the General Body enrolled up to to 1983 was finalised. Consequently direction was issued to hold the election on the basis of said electoral colleges. This order was questioned by Prahaland Singh in Civil Misc Writ Petition No. 27548 of 1998 challenging the order dated 2.4.1998 as also the order dated 12.8.1998 on the ground that the election can be held only by Assistant Registrar not by District Magistrate as nominated by him. This order was modified by the Assistant Registrar thereafter. Notification was issued by the Deputy District Magistrate on 3.11.1998 calling for the meeting of general body on 16.11.1998 for holding the election. This order was also challenged by Prahaland Singh in Civil Misc Writ Petition No. 37612 of 1998. Both these writ petitions i.e. Civil Misc Writ Petition No. 27548 of 1998 and 37612 of 1998 were heard and decided by judgement and order dated 10.7.2000.
This Court vide its order dated 10.7.2000 upheld the order dated 2.4.1998 as well as 12.8.1998 thereby dismissing the Civil Misc Writ Petition No. 27548 of 1998. Civil Misc Writ Petition No. 37612 of 1998 was allowed by directing the Assistant Registrar to call for the meeting of general body himself and fixed the election schedule. What clearly emerges from the aforesaid direction is that this Court in its order dated 10.7.2000 up held the order dated 2.4.1998 and also the order passed on 12.8.1998 thereby upholding the following things:-
a) That the election of the society be held under Section 25(2) of the Societies Registration Act;
b) That the said election shall be held for which electoral college of 118 members was finalised. Second part of the direction to hold the election some how got delayed and the petitioner continued to work as Manager on the strength of the interim direction passed by this Court in earlier writ petition.
It appears from the record that the Assistant Registrar in his communication dated 26.12.2002 sought legal opinion from the District Government Counsel (Civil) as to whether the election of the Committee of Management be held from amongst the living member of the general body existing at the time of registration of the society or on the basis of 118 members finalised by the Assistant Registrar vide order dated 12.8.1998. It was opined by the D.G.C. that it would be appropriate to hold the election from amongst the member existing at the time of initial registration of the society. Said legal opinion is dated 03.1.2003.
Armed with the aforesaid legal opinion, Assistant Registrar vide his order dated 8.1.2003 ordered holding of the election from amongst 12 members of the general body who initially constituted the society and were alive. On the basis of the said order election of the Committee of Management was held and Prahaland Singh was shown elected as Manager and Vikramjeet Singh as President. Appointment of Prahaland Singh as Manager was questioned by the petitioner in Civil Misc Writ Petition No. 21072 of 2003 before this Court and this Court vide interim order dated 2.7.2003 passed an order of Status-quo. The writ petition was dismissed as having become infructuous on the ground that three years term had expired. The petitioner was given option to approach the Court when fresh cause of action arise.
It appears that an application was moved by Prahaland Singh before the Assistant Registrar along with alleged election proceedings dated 25.10.2006 and a copy of the judgement and order dated 30.11.2006 and sought renewal of the registration of the petitioners' society. Notices were issued to both the parties by the Assistant Registrar and objections were filed by the petitioners that the election be held on the basis of list of 118 members which has been affirmed by this Court.
It seems that Prahaland Singh had died in the meantime and in his place respondent no. 6 claims that he had been nominated in place of Prahaland Singh as Manager to which objections were filed by the petitioners. Signatures of respondent no. 6 were attested by the Assistant Registrar vide order dated 30.5.2009. It is this order which is subject matter of challenge before this Court.
Case set out by the petitioner is that the Society was constituted in the year 1973 and initial strength of its member was 12. Election of the Society was held from time to time till 1983.There was no dispute raised in respect of the members registered from 1973 to 1983 nor to the election of the Managing Committee. Dispute emanated from 1983 when renewal sought by the petitioner was questioned by Prahaland Singh.
Dispute that has been raised is in respect of the strength of the electoral college of the society. Petitioner contends that the issue with respect to the strength of the electoral college was set at rest by this Court vide order dated 10.7.2000 affirming the order of the Assistant Registrar passed on 2.4.1998 as well as 12.8.1998. Assistant Registrar oblivious to the direction of this Court passed in the year 2000 has passed an order holding that the electoral college of the society was 12 which was based upon the legal opinion sought by him from the DGC (Civil). Any election held on the basis of the said electoral college is contrary to direction passed by this Court which affirmed the order of Assistant Registrar dated 16.8.1998. All the consequential act based upon such electoral college would be non est in the eyes of law. It is under these circumstances that the subsequent election which are impugned in this writ petition are required to be declared as null and void.
On the other hand stand of the respondents is that renewal of the society on 29.8.1983 was wrongly granted by playing fraud and the same was recalled by order dated 30.1.1984 by the Assistant Registrar. Assistant Registrar vide his order dated 2.4.1998 did not set aside the issue of members in terms of the aforesaid direction. The direction was to file list of members of the Society who are registered up to 1983. List of members who constituted electoral college of the society after 1983 has wrongly been calculated by the Assistant Registrar in his order dated 16.8.1998.
Positive case of the respondents is that all those members who were enlisted up to 1983 were to be recognised as the members of the Society. The order passed by Assistant Registrar on the basis of the advise given by the DGC (Civil) holding that the strength of the members was 12 was correct as according to the respondents the list of members affirmed on 12.8.1998 was not in consonance with the direction issued by Assistant Registrar on 2.4.1998. It is further stated in reply that the order passed on 8.1.2003 holding that 12 members constitute the electoral college and consequently election held on 1.2.2003 has not been set aside by the Court as such the present writ petition cannot be sustained.
Heard learned counsel for the parties and perused the material on record.
The controversy in this writ petiiton is within a very narrow compass. It relates to power of Assistant Registrar under Section 4 of the Registration Act in accepting the list of members of the governing body submitted by the rival parties.
Question that arise for consideration is as to whether the Assistant Registrar has power to adjudicate upon the dispute raised by the rival parties in accepting the list of members or is he only required to record a prima facie view in accepting the list submitted by one of the parties to the dispute.
There is no dispute that the Assistant Registrar cannot adjudicate upon the dispute between the parties where two rival list of general body is submitted. He may record prima facie view accepting one list leaving other party to establish his claim in the competent court or forum. This view has been up held by Hon'ble Apex Court in the case of A.P. Aboobaker Musaliar Vs District Registrar (G) Kozhikode and others, (2004) 11 SCC 247 wherein it has been held that acceptance of a list by the Registrar in preference to the other will only be tentative and it is always open to the aggrieved parties to take steps to establish their claim in a competent civil court.
The import of judgement is that Registrar has got the power to find out as to which of the list he is to accept that has been filed before him. He is required to draw only prima facie view. However, while recording his prima facie view the same cannot be done arbitrarily. Prima facie view has to be supported either by any Court order or which was being followed for a large number of years or on the basis of the list filed without intervention of the Court during previous years. Even while recording prima facie view it does not have choice to select any one without there being any basis. Applying this principle in the present case, Assistant Registrar vide his order dated 2.4.1998 ordered that all those members who were enlisted on 1973 up to 1983 would constitute the electoral college of the Institution. The exercise undertaken by the Assistant Registrar culminated in passing of the order dated 12.8.1998 in which strength of the member was shown as 118. This view was affirmed by this Court in its order dated 10.7.2000. The order passed by the Assistant Registrar on 3.1.2003 showing the strength of the electoral college as 12 based upon an opinion given by the D.G.C. (Civil) is directly in contravention of the order passed by this Court. There was absolutely no justification for the Assistant Registrar to draw his prima facie conclusion on the basis of opinion given by DGC (Civil) while ignoring directions passed by the Court.
Second ground taken by the learned Counsel for the respondents is that the order dated 8.1.2003 passed by Assistant Registrar had assumed finality. The writ petition filed by the petitioners questioning the election made on the basis of electoral college finalised on the basis of the order dated 8.1.2003 stands dismissed. The order continues to hold good as on today. It is not in dispute that the writ petition was filed by the petitioners questioning the constitution of managing Committee and the same stands dismissed as withdrawn. Since the order dated 8.1.2003 has not been set aside as on today the same cannot be questioned in this writ petition.
The electoral college of 12 members was finalised on the basis of opinion given by the DGC which was directly in contravention of the order passed by this Court. As already stated herin-supra the Court had affirmed the decision of the Assistant Registrar passed on 12.8.1996 affirming the list of 118 members. Ignoring this direction Assistant Registrar finalised the list of 12 members. Exercise undertaken by Assistant Registrar in holding that the electoral college of the Committee was 12 was in direct conflict with the findings recorded in this behalf by his predecessor and affirmed by this Court. The decision of the Assistant Registrar would for all practical purpose be non est in the eyes of law. The order of this Court had assumed finality. Any decision based upon void order need not be specifically challenged. It shall always be deemed to be non existent. It is necessary to state as to what was held by this Court vide its order dated 10.7.2000 affirming the list of 118 members.
This Court vide order dated 10.7.2000 passed in Civil Misc Writ Petition No. 27548 of 1998 has observed as under:-
"That eleven members are common in both the list and there are 118 members list which have been made available by parties for the purpose of election and the Assistant Registrar Exercises it powers conferred to him under Clause 2 of Section 25 of the Societies Registration Act. This Court found no illegality or impropriety in the order passed by the Assistant Registrar, Firms, Societies and Chits, Varanasi dated 2.4.1998 as he has acted in accordance with the directions of this Court dated 16.9.1997 and the G.O. Dated 16.2.1990....."
"The Assistant Registrar, Firms, Societies and Chits Gorakhpur has consequently passed order as this Court has held that the order dated 2.4.1998 passed by the Assistant Registrar, Firms, Societies and Chits, Varanasi as valid, the consequential order passed by the Assistant Registrar, Firms, Societies and Chits Gorakhpur cannot be said to be illegal or improper........."
"In view of the above mentioned facts and circumstances the writ petition No. 27548 of 1998 has no force and is liable to be dismissed."
After the findings recorded by this Court there should have been no doubt left in the mind of the Assistant Registrar that the electoral college consisting of 118 members was required to be recognised.
For some unknown reasons he has tried to reopen the issue of membership by referring it for legal opinion to D.G.C. (Civil) based upon legal advise so tendered the list of 12 members was affirmed as electoral college for constituting the managing committee of the Society. This view has been taken on the basis of a perverted opinion given by the DGC at the cost of ignoring the order passed by the Court. If any prima facie view was permissible it had to be based upon direction issued by this Court in the year 2000 mentioned herein supra.
In view of above, impugned order dated 30.5.2009 is quashed. I also declare that the order dated 3.1.2003 is non est in the eyes of law and any consequent decision taken in pursuance to that shall be deemed to be void. I also direct the respondents to hold afresh election of the society based upon electoral college of 118 members as affirmed by this Court vide its order dated 10.7.2000 within a period of four months from the date of production of certified copy of this order.
In the result, the writ petition is allowed.
Order Date :- 15th May, 2012.
RKS/