Notices on behalf of opposite parties 1& 2 have been accepted by Mr. M.B. Singh, learned Advocate. Mr. R.B.S. Rathore, learned Advocate put in appearance on behalf of opposite party no. 3 by filing his 'Vakalatnama', the same is taken on record.
Petitioners have challenged the order dated 4th of June, 2010 passed by opposite party no. 1 i.e. Registrar, Firm, Societies & Chits, Lucknow as also the notification dated 8th of June, 2010 issued by the Deputy Registrar, Faizabad, whereby schedule of election has been notified pursuant to the order passed by the Registrar being without jurisdiction in the light of the decision rendered by this Court in the case of Fahim Ahmad and Another Vs. The State of U.P. and Others (2006(24)LCD 1078), the relevant paragraph 31 is reproduced hereinunder:-
31. The State Government by the notifications dated 20th July, 1981, 7th January, 1982, 31st July, 1985, 24th January, 1987, 6th of July, 1991 followed by another notification dated 29th of October, 1991 has delegated the work of Registrar to the Deputy Registrar or Assistant Registrar of the respective regions or districts. In view of the delegation of power by the State Government in pursuance to the power conferred by Section 21 of the Societies Registration Act, the Deputy Registrar or the Assistant Registrar of the regions or districts or as the case may be, have got power to discharge all the statutory duties provided under the Societies Registration Act. Once the State Government has delegated the power to the Deputy Registrar or the Assistant Registrar of the respective regions or the districts then the registrar, Firms, Societies and Chits, U.P., Lucknow has got no jurisdiction to interfere with the discharge of statutory duties by the Deputy Registrar or the Assistant Registrar while proceeding with the controversy. The supervisory power vested in the Registrar does not seem to include to pass an order staying the election process or to summon the record and usurp the power of the Deputy Registrar or the Assistant Registrar. Of course, in case, it is brought into the notice of the Registrar relating to some malpractice, fraud or the corrupt practice by the Deputy Registrar, then in such situation, Registrar, Firms, Societies and Chits may transfer the proceeding to some other Deputy Registrar or the Assistant Registrar having the jurisdiction to discharge duties under Section 21 of the Societies Registration Act.
Corollary to that the Registrar does not have got jurisdiction to rescind or modify the order passed by the Deputy Registrar or the Assistant Registrar while discharging the statutory duties. The Registrar does not possess the appellate power under the Act to rescind the decision taken by the Deputy Registrar or the Assistant Registrar as the case may be.
It is a settled law that the power of appeal or review or revision are the statutory powers and in the absence of any specific provision under the Act or Statute. The authorities have got no jurisdiction to exercise such powers.'' Learned counsel for the petitioners submit that under the order passed by this Court on 15th of October, 2009 in Writ Petition No. 5694(M/S) of 2009, whereby the direction was issued to the Registrar, Firm, Societies and Chits, U.P., Lucknow to pass an appropriate order on the petitioners' representation, which was made before the Registrar to call upon the record and either to adjudicate upon the case himself or to place before the other Deputy Registrar, but instead of place the matter before the Deputy Registrar, he has adjudicated upon the case. Accordingly he submits that the order is without jurisdiction and the same is unsustainable, whereas Mr. Rathore, learned counsel for the opposite party no. 3 raised objection against the maintainability of the writ petition itself in the light of the decisions rendered by the Division Bench in the case of Umesh Chandra and Another Vs. Mahila Vidyalaya Society, Aminabad, Lucknow and Others (2006(24)LCD 1373), relevant paragraph 47 of which is reproduced hereinunder:
47. In a case reported in (2001) 8 SCC 509, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and another v. State of Maharashtra and others, the Apex Court held that the preparation of electoral roll is the part of election process and in case there is any illegality in preparation of such electoral roll that can be challenged after declaration of result in accordance to law. In view of above, in case the finding recorded by Hon'ble Single Judge is sustained and not set aside then being a pronouncement of this Court, the membership dispute of the person concerned shall attain finality and it shall not be open for the parties to challenge either the outcome of election through a petition in accordance to law or by filing a regular suit to install claim for membership by the aggrieved persons. While deciding the issue it was not open for the Hon'ble Single Judge to record a finding relating to the membership issue which was disputed question of fact and could not have been adjudcated under the extraordinary remedy of Article 226 of the Constitution of India. He further submits that the writ petition deserves to be dismissed at this stage as the schedule of election has already been notified and the dispute of membership can be adjudicated upon in the election petition if filed either of the parties.
However, in the light of the decision rendered in the case of Faheem Ahmad (Supra), I am of the view that the matter requires afresh decision by the Deputy Registrar himself to whom the power to decide such a dispute has been delegated and since the question against the integrity of the Deputy Registrar, Firm, Societies & Chits, U.P., Faizabad was raised earlier. I feel it appropriate to issue direction to the Registrar, Firm, Societies & Chits, Lucknow to place the matter before the Deputy Registrar, Lucknow, who is competent enough to decide the dispute for its decision on merit. In view of the aforesaid decision the orders impugned treating without jurisdiction is being quashed and a direction is issued to the opposite party no. 1 to act upon as aforesaid. It is further directed that the Deputy Registrar to whom the matter is entrusted shall proceed with the case and decide the same on merit expeditiously after providing opportunity of hearing to the parties concerned within 2 months. The parties are directed to place this order before the opposite party no. 1 at an early date for proceeding the same. It is further observed that the Deputy Registrar shall decide the matter afresh without being influenced with the observation made by the Registrar in the order impugned.
In the aforesaid term writ petition is disposed of finally. Order Date :- 16.6.2010 Amit