Heard learned counsel for the petitioner, Sri R.K. Ojha in both the writ petitions, Sri P.N. Tripathi for the contesting respondent and learned Standing Counsel on behalf of the State.
The dispute relates to a society registered under the Societies Registration Act, 1960 and the same had already been agitated before this Court in view of the bone of contention between the parties in relation to electoral college of the society.
The background in which these two petitions have been filed assailing the order of the Assistant Registrar, whereby the elections of the Respondents has been accepted, is that undisputedly two advertisements were issued on 22.3.1987 and 3.6.1987 for enrolling fresh members. It is also undisputed that a resolution for enrolment of members was passed on 23th October, 1987.
The dispute is about the contents of the resolution. Learned counsel for the petitioner contends that 239 members were enrolled under the aforesaid resolution, whereas Sri P.N. Tripathi submits that the said resolution under which the enrollment is being claimed was interpolated as resolution No. 7 and was never passed. Only 45 members had been enrolled and not 239 as alleged.
One Mr. Amar Nath Srivastava approached this Court and filed Writ Petition No. 43799 of 1999 which was disposed of on 13th January, 1999 directing the Assistant Registrar to dispose of this dispute relating to membership enrollment. The Assistant Registrar passed an order on 5th June 1999 which according to the petitioners accepts the 239 members and which according to the respondents does not accept them as members. This decision was sought to be again contested by the respondents on the basis of the resolution dated 31st October, 1999 on the basis whereof it is alleged that the aforesaid resolution No.7 as presented by the petitioners, was an interpolation, and fraud had been practised, therefore, a request was made to the Assistant Registrar to pass an appropriate order. The respondents contend that such a request emanated from Mr. Gaya Prasad Sinha the then President of the Society who was admittedly the President, and through Sri Prem Shankar Srivastava who was the Secretary of the Society. It is the contention of the respondents that they were the out going office bearers and were in effective control and, therefore no such resolution had been either accepted or passed for enrolling 239 members. In essence the challenge is to the very enrolment of 239 members on the ground that the documents relied upon by the petitioners were manipulated. In between the respondents claim to have held fresh elections on 6th October, 2005. It is alleged that the said list of office bearers was accepted and again an order was passed by the Assistant Registrar on 18th October, 2005. The order of the Assistant Registrar rested his decision on the earlier decision dated 5th June, 1999 and again held that there were only 45 members in the General Body.
It appears that the matter was taken up before the Registrar who decided the same on 27th March, 2006, this time returning a finding in favour of the petitioners that there were 239 members of the General Body. This was assailed by the contesting respondents by filing a Writ Petition before the Lucknow Bench of this Court, being Writ Petition No. 2186 of 2006. There is no dispute that this writ petition was filed by the present Respondent Sri Prem Shanker Srivastava and an interim order was passed on Ist May, 2006 staying the operation of the order dated 27.3.2006. It appears that there was some dispute between the parties relating to the extension of the interim order whereupon the learned Single Judge of this Court on 23.3.2008 passed an order that the matter should be listed before the same Judge who had earlier passed the interim order.
The Writ Petition was, however, dismissed as withdrawn on 19th March, 2009. The order passed is quoted hereunder:
"Sri Manik Sinha, learned counsel for the petitioner states that the petitioner does not want to continue with this petition and wants to withdraw the same.
The prayer made is allowed.
The writ petition is dismissed as withdrawn"
In the mean time the respondents allege that before the writ petition was withdrawn, intervening elections had taken place on 12.10.2008. The Registrar accepted the said list of office bearers about which a dispute was raised and the Assistant Registrar passed an order on 13.11.2009 accepting the claim of the contesting respondent which is subject matter of dispute in Writ Petition No. 64747 of 2009.
The petitioners have challenged the said order on the ground that once the respondents had withdrawn their writ petition filed at the Lucknow Bench, then the order dated 27th March, 2006 revived and the impact of the said order could not have been looked into by the Assistant Registrar Firms, Societies and Chits as he could not have sat in appeal over the order of the Registrar. The contention of the petitioner is that if the order dated 27th March, 2006 is upheld then the only dispute which would survive before the Assistant Registrar would be relating to the subsequent elections of 2008 and 2011, and not in relation to the findings recorded in the order dated 27.3.2006.
During the pendency of the said writ petition the respondents appear to have again set up a fresh election on 9th October, 2011 which has been accepted by the Assistant Registrar and the objections filed by the petitioners have been rejected on 30.5.2012. This has given rise to the second Writ Petition No. 32728 of 2012.
Sri R.K. Ojha, learned counsel for the petitioner in this writ petition has raised the same submissions contending that the same reason has been given by the Assistant Registrar in accepting the claim of the respondents which is untenable inasmuch as once the order dated 27th March, 2006 revives then there is no occasion for the Assistant Registrar to treat the said order as non-est or over ride the same in any manner. He contends that the Registrar has concurrent powers under the provisions of 1860 Act and he is not denuded of his authority in proceeding to pass an order. The order dated 27.3.2006 therefore does not suffer from any legal infirmity. Even otherwise the respondent Prem Shankar Srivastava himself challenged the said order and withdrew his writ petition without any condition, as such he will be presumed to have abandoned his claim in terms of the principles laid down under Order XXIII Rule 1 (4) of the Civil Procedure Code.
Sri P.N. Tripathi, learned counsel for the contesting respondent contends that the petitioners were not even the members in the list of 634 members that had been earlier set up, and even otherwise the list of 239 members is a fake list about which a first information report was lodged and three members including, Amar Nath Srivastava were proposed to be charge sheeted, but since Amar Nath Srivastava died only two of his associates were charge sheeted, and the said criminal case is pending before the Criminal Court. He further contends that the withdrawal of the writ petition before the Lucknow Bench does not allow the Assistant Registrar to delve into any such dispute as the subsequent elections have been validly held and accepted by the Assistant Registrar and, therefore, the Assistant Registrar was right in his conclusion that the impact of the earlier order dated 27.3.2006 has become non-est. He submits that the Registrar had no authority or jurisdiction to sit as a coordinate authority and review the order passed by the Assistant Registrar in favour of the answering respondents and, therefore, the order dated 27.3.2006 being without jurisdiction, no estoppal will operate against the answering respondent in respect thereof. He, therefore, submits that the impugned order does not suffer from any infirmity and hence the writ petition deserves to be dismissed.
Sri Tripathi further contends that so far as the alleged enrolment of 239 members is concerned, the earlier out going President and the answering respondent who was the Manager, have categorically filed affidavits, and the Assistant Registrar was, therefore, fully justified in concluding that no such enrolment has taken place. The entire exercise on the basis whereof the petitioners have staked their false claim has no legs to stand. He further submits that any subsequent elections as claimed by the petitioner is of no consequence as it has been held on the basis of a list which is fake and it was held during the effective control of the answering respondents who have continued to control the society through out this period.
Learned Standing Counsel contends that the Assistant Registrar has passed an order after considering all the material on record and in view of the findings so recorded. The claim of the petitioners, therefore, deserves to be rejected.
Having heard learned counsel for the parties the Assistant Registrar in the orders impugned in both the writ petitions has clearly based its reasoning upon the order dated 27.3.2006. In the opinion of the Court the said order was under challenge in Writ Petition No. 21581 of 2006 which was dismissed as withdrawn by the Respondent himself unconditionally on 19th March, 2009.
In the aforesaid circumstances the principles of abandonment as enshrined under Order XXIII are clearly attracted. I am supported in my view by the Division Bench judgment of this Court reported in 1992 (2) AWC Page 857 Regional Manager Vs. Pradeep Goel.
The contesting respondent was fully aware of the impact of the order dated 27.3.2006 and, therefore, it will be presumed that having full knowledge of the same he unconditionally chose to withdraw the said writ petition. The order dated 27th March, 2006, therefore, revived. Apart from this, the holding of the subsequent elections would not take away the impact of the withdrawal of the the said writ petition inasmuch as, that was the voluntary choice of the respondent Prem Shankar Srivastava on the basis of any legal advice given to him. Once the order dated 27th March 2006 stands then the Assistant Registrar could not have proceeded to assess the matter by treating the said order to be either redundant, otiose or even otherwise non- est. The Assistant Registrar could not have sat in appeal over the order dated 27.3.2006 that was passed by a coordinate authority. Any challenge raised to the order does not survive after the withdrawal of the writ petition before the Lucknow Bench. The interim order passed therein dissolved and merged into the order of dismissal as withdrawn.
In the aforesaid circumstances I am of the opinion that the Assistant Registrar is required to decide the issue without treating the order dated 27.3.2006 to have become redundant. Accordingly, the impugned order dated 13.11.2009 and 3.5.2012 are both quashed. The writ petitions are allowed. The matter is remitted back to the Assistant Registrar to decide the matter again in accordance with the observations made hereinabove within three months from the date of production of a certified copy of this order.
Order Date :- 8.8.2012 Manish