Hon'ble Pradeep Kumar Singh Baghel, J The petitioner, Committee of Management of a Society has preferred this writ petition for issuance of writ of certiorari to quash the order dated 23rd September, 2013 passed by the respondent no.2/ Assistant Registrar, Firms Societies and Chits, Varanasi (for short 'Assistant Registrar') and the consequential order passed by him dated 17.4.2013, registering the list of office bearers of the Society, and the order dated 6.6.2013 passed by the District Minority Welfare Officer, Chandauli, attesting the signature of respondent no.3 as the Secretary/Manager of the said Committee of Management. The Secretary and the Treasurer of the said Society have also joined the petitioner as petitioner no. 2 and 3.
The essential facts of the case are that Masdarul Uloom Education Society is a registered Society under the Societies Registration Act, 1860 (as amended in the State of U.P., Act No. 21 of 1860) (for short Act, 1860). The main object of the Society is to promote the education and establish educational institutions. In furtherance of said object it has established a Madarsa. The Society's affairs are managed by its bye-laws. It is stated that, the bye-laws were amended on 7.11.2003. It was again amended inserting Clause 7 (Ra). The last renewal of the Society Certificate was made on 24.12.2011.
It is stated that election of the office bearers was held on 20.11.2011 which was submitted in the office of the Assistant Register vide letter dated 21.5.2012. It is not disputed that prior to the year 2011 all the papers for renewal etc. and communication with the office of the Assistant Register was made by the petitioner no.2. The dispute arose when the respondent no.3 submitted an application on 8.3.2013 wherein he has shown himself to be elected as a Manager of the Society. Along with the said application he had also submitted a list of office bearers for the year 2012-13. He also submitted a resolution of the Committee of Management dated 10.2.2013 wherein it was resolved to accept the alleged resignation of petitioner no.2 and it was accepted on the same day and in his place vide same resolution the respondent no.3 Atiqur Rehman was allegedly elected as Secretary/Manager of the Society. On the same day it was also resolved to expel petitioner no.3 from the office of the Treasurer on the ground of his lack of interest in the Society's affairs. The respondent no.3 had also filed an application dated 15.4.2013 requesting the Assistant Registrar to register the list of office bearers of the year 2013-14. A copy of the said application has been brought on record as Annexure-11 to the writ petition.
It is stated that the office of the Assistant Registrar having received all these documents from the respondent no.3 issued notice dated 30.3.2013 to the petitioner no.2. A copy of the notice is annexed as Annexure-10 to the writ petition.
The grievance of the petitioner is that the Assistant Register without issuing a notice and without giving any opportunity to the petitioner registered the list of office bearers submitted by the respondent no.3/ Atiqur Rehman and a consequential order was also passed by the District Minority Welfare Officer, Chandauli.
The petitioner's case is that he was not aware about all the proceedings which has taken place in the office of the Assistant Registrar. The proceedings were conducted without his knowledge. He came to know about these proceedings for the first time when he received a communication dated 27.5.2013 from the office of the District Minority Welfare Officer, Chandauli. The petitioner after the knowledge of the said proceedings preferred an objection dated 3.6.2013 in the office of the Assistant Registrar against the registration of the list of the office bearers of the year 2013-14. He also submitted affidavit of eleven members of the Society denying any resignation on the part of the petitioner no.2 as also the election proceedings which were submitted by the respondent no.3. As mentioned earlier the petitioner had submitted a list of office bearers of the Society on 16.5.2012.
On the objection filed by the petitioner the respondent no.3 filed his reply on 26.6.2013. The Assistant Registrar on 28.6.2013 issued a notice calling upon the petitioners to appear before him on 20.7.2013. In response to the said notice the petitioner submitted a detailed objection dated 4.7.2013 along with an affidavit. Similar notice was sent by the Assistant Register to the respondent no.3 on 8.8.2013. The respondent no.3 sought ten days time to submit his objection. It is stated that the copy of the objection/documents filed by the respondent no. 3 was not made available to the petitioners inspite of the application made by the petitioners on 20.9.2013 and without providing the said material to the petitioners the Assistant Registrar has passed the impugned order on 23rd September, 2013. Thereafter on 17.4.2013 the list of office bearers for the year 2013-14 was registered by the Assistant Registrar in terms of Section 4 of the Act,1860. By the Amendment Application the petitioner has also challenged the subsequent consequential order dated 6.6.2013 passed by the District Minority Welfare Officer, Chandauli attesting the signatures of the respondent no. 3 and the order dated 17.4.2013 passed by the Assistant Registrar registering the list of office bearers.
A Supplementary Affidavit has been filed by the petitioners. It is stated that by means of resolution dated 25.2.2013 the general body has accepted the resignation of the petitioner no.2 and further by another resolution dated 28.2.2013, general body has amended Clause 4 (Sa). The petitioners has also brought on record the letter dated 8.2.2013, whereby the amendment in the bye-laws was submitted to the office of the Registrar. It is emphatically stated that Annexure-3 dated 8.2.2013, is a manufactured document bearing the forged signatures of the petitioner.
A counter affidavit has been filed by the respondent no.3 wherein it is stated that the petitioner no.2 has tendered his resignation which was accepted and the respondent no.3, was elected/nominated as Secretary/Manager, therefore, the Assistant Registrar has rightly rejected the representation of the petitioner no.2. It is also stated that the bye-laws of the Society was amended from time to time and it was amended by resolution of the general body dated 28.1.2013 under the signature of the petitioner no.2. A copy of the said amendment is part of record as Annexure- CA-1 to the counter affidavit. It is alleged that petitioner no.2 has submitted an amendment under his signature on 8.2.2013. It is further stated that in the counter affidavit that due to continuous illness the petitioner no.2 tendered his resignation before the President of the Society which was considered and accepted in the meeting of the general body dated 10.2.2013 by resolution no.2 and by the resolution no.3 of the same meeting the respondent no.3 Atiqur Rehman was elected/ nomination as Secretary/Manager of the Society and accordingly the list of office bearers for the year 2012-13 was submitted in the office of the Assistant Registrar. It is stated that a notice dated 30.3.2013 was issued by the office of the Assistant Registrar inviting objection from the outgoing office bearers but none of them including the petitioner no.2 had turned up nor they had filed any objections.
It is averred that the amendment in the bye-laws was made actually on 28.1.2013 and not on 28.2.2013 as mentioned in the impugned order. It is claimed that the copy of the proceedings of 28.1.2013 was submitted in the office of the Assistant Registrar on 28.2.2013 by the petitioner no.2 himself. It is stated that the petitioner no.2 instead of submitting a photostat copy of the proceedings submitted a typed copy and in the typed copy it appears that in place of 28.1.2013 it has been typed 28.2.2013. It is for this reason the order impugned in the impugned order incorrect date has been mentioned.
I have heard Sri Prabahakar Awasthi, learned counsel for the petitioner, and Sri G.K.Singh, learned Senior Advocate, assisted by Sri M.A.Ausaf, learned counsel for the respondent no.3, learned Standing Counsel for the State functionaries.
Learned counsel for the petitioner Sri Prabhakar Awasthi, submits that the Assistant Registrar had no jurisdiction to adjudicate election and continuance of the office bearers of the Society. He ought to have sent the matter to the Prescribed Authority under section 25 (1) of the Act, 1860. He further submits that at no point of time the petitioner no. 2 had tendered his resignation, the respondents have fabricated the resignation letter of the petitioner no.2 and it was accepted in the alleged meeting dated 10.2.2013 without his knowledge. The said meeting was not called in terms of the procedure provided in the bye-laws. He contended that in the meeting dated 10.2.2013 the respondent no.3 and his faction expelled the petitioner no. 3 who is the Treasurer of the Society on non-existent ground. The respondent no.3 has submitted the resolution along with the list of office bearers which has been registered by the Assistant Registrar ignoring the proviso of Section 4 of the Act, 1860 , which enjoins the Assistant Registrar to hear ex-office bearers whose name were in the list of the office bearers which was previously registered. He vehemently contended that the alleged notice dated 30.3.2013 was never served upon the petitioner no.2 and 3 and admittedly without hearing the petitioners the Assistant Registrar has registered the list of the office bearers under section 4 of the Act, 1860. He has placed reliance on the judgment of this Court passed in Gram Shiksha Sudhar Samiti, Junior High School, Sikandra, district Kanpur Dehat and Another v. Registrar, Firms, Societies and Chits, U.P. Lucknow and others reported 2010(7) ADJ 643; All India Council v. Assistant Registrar, Firms, Societies and Chits, Varanasi Region, Varanasi, AIR 1988 All 236 and Muslim Welfare Society, Machhlishahr, District Jaunpur and another v. The Assistant Registrar, Firms Societies and Chits, Varanasi and another, reported, 1991 AWC 1311, wherein it has been held that in the matter of election, doubt or continuance or dispute relating to the continuance of the office bearers shall be referred to the Prescribed Authority.
Learned counsel for the respondent Sri G.K.Singh, learned Senior Court submits that the resolution dated 28.1.2013 passed by the committee of management was signed by the petitioner no.2 and it was submitted by him. He further submits that the petitioner no.2 had resigned due to his indifferent health and the said resignation has been rightly accepted by the general body in its meeting dated 10.2.2013 and by resolution No. 3 of the same meeting the respondent no.3 was elected/nominated as Secretary/Manager of the Society and accordingly a list of office bearers for the year 2012-13 was submitted in the office of the Assistant Registrar which has been registered by the Assistant Registrar after a notice dated 30.3.2013 was issued to outgoing office bearer but none of them including the petitioner no.2 had turned up nor they had filed any objection, therefore the list for the year 1012-13 submitted by the respondent no.3 was rightly registered by the Assistant Registrar under section 4 of the Act, 1860.
Sri Singh has laid much emphasis on the fact that the amendment of the bye-laws was made by the resolution of the general body dated 28.1.1993 and it was submitted under the signature of the petitioner no.2. He has taken the Court to the various documents to establish that in fact the date 28.2.2013 was the date when the amendment dated 28.1.2013 was submitted in the office of the Assistant Registrar by the petitioner no. 2 himself. It was argued that he instead of submitting the photostat of the proceedings submitted a typed copy and in the typed copy it appears in place of 28.1.2013 , 28.2.2013 was inadvertently typed and for the said reason in the impugned order the Assistant Registrar has mentioned incorrect date. Thus the petitioner is trying to take advantage of the aforesaid typing mistake. No other submission was made by learned counsel for the parties.
I have considered the rival submissions of learned counsel for the parties and have perused the record.
There is no dispute that the petitioner no. 2 was the Secretary of the Society and the petitioner no.3 was a Treasurer. In the last registered list of office bearers their name figures as such. Section 4 of the Act, 1860, enjoins the Assistant Registrar/Deputy Registrar (herein after referred as Registrar) to register the list of office bearers every year. A proviso has been inserted vide U.P.Act No. 11 of 1984 which reads as under :-
"Provided that if the managing body is elected after the last admission of the list, the counter signature of the old members, shall, as far as possible, be obtained on the list. If the old office-bearers do not counter-sign, the list , the Registrar may, in his discretion, issue a public notice or notice to such persons as he thinks fit inviting objections within a specified period and shall decide all objections received within the said period."
From a simple reading of the said proviso it is manifest that a duty is cast upon the Assistant Registrar to decide all objections received by him. Thus it is a statutory duty to decide the objection filed by the aggrieved persons. It is not disputed that the Assistant Registrar exercises the said power to recognize office bearers to whom he will deal administratively. But he has to act fairly. The thin line of the distinction between the administrative decision and the quasi judicial decision is now almost blurred. The shift now is to fair procedure in the administrative action. The distinction of the administrative function and the quasi judicial function was considered in A.K.Karipak v. Union of India, (1969), 2 SCC 262 in the following terms:-
"The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the rule of law pervades over the entire field of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision. In recent years the concept of quasi judicial power has been undergoing a radical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power."
Recently the Supreme Court in the Automotive Tyre Manufacturers Association v. Designated Authority , (2011) 2 SCC 258, has considered the principles laid down in the A.K. Kraipak v. Union of India (supra). The relevant paragraph of the said judgment reads as under:-
"65...More often than not, it is not easy to draw a line demarcating an administrative decision from a quasi judicial decision. Nevertheless, the aid of both a quasi judicial function as well as an administrative function is to arrive at a just decision. In A.K.Karipak v. Union of India this Court had observed that the dividing line between an administrative power and a quasi judicial power is quite thin and is being gradually obliterated. For determination whether a power is an administrative power or a quasi judicial power, regard must be had to :
(i)the nature of the power conferred;
(ii)the person or persons on whom it is conferred;
(iii)the framework of the law conferring that power;
(iv)the consequences ensuring from the exercise of that power; and
(v)the manner in which that power is expected to be exercised."
In view of the aforesaid principles it can be safely held that the Assistant Register while deciding the objection under section 4 of the Act,1860 has to act in a quasi judicial manner and a fair procedure has to be followed by him while exercising the said power. Under the Scheme of the Societies Registration Act, 1860, the Registrar plays a pivotal role as all the power has been conferred under the said Act upon the Registrar by Section 25(1) as amended in State of U.P. He refers the matter to the Prescribed Authority in respect of the dispute of the election or continuance of the office bearers.
The Supreme Court in the case of Illachi Devi (D) by L.R.s v. Jain Society, Protection of Orphans India 2003 SCW 4824 (AIR 2003 SC 3397) has unde4rined the importance of role of the Society registered under the Societies Registration Act, 1860. The Court observed as under:-
" 50..... before parting, however, we may add that growing needs of the country in this field of law appears to have not received sufficient attention of the Parliament. Existing law is required to be suitably amended to meet the requirement of changing scenario.
54..... A Society registered under the Societies Registration Act in the changed scenario play an important role in society. They discharge various functions which are beneficial to the society. They run educational and other institutions. They sometimes work in public interest and act in aid of State functions. They have their own accountability. They sometimes incur liability. Public Interest Litigations filed by Societies are galore."
In the case in hand this Court had summoned the original records from the office of the Assistant Registrar. From perusal of the original records it transpires that a Photostat copy of the notice dated 30.3.2013 is on the record which is alleged to have been sent to the petitioner no.2 but the said notice has not been sent under the Registered Cover and there is noting on the record to demonstrate that the said notice has been served upon the petitioner no.2. If an officer exercises a quasi judicial function it is incumbent upon him that his order and the proceeding must conform to the principles of natural justice. Before proceeding further he ought to have been satisfied himself whether the notice was properly served upon the person concerned or not and he ought to have made effort to send the proper notice before proceeding in the matter. From perusal of the original record it does not appear that any such effort has been made by the Assistant Registrar. Sending a notice is not an empty formality. Its objective is to conduct the proceeding in fair manner.
In the counter affidavit also only a bald statement has been made that the notice was sent from the office of the Assistant Registrar dated 30.3.2013. In view of the said facts I am of the view that the order of the Registrar suffers from the violation of natural justice.
As regards the submission of learned counsel for the petitioner Sri Prabhakar Awasthi that the Registrar has no power to decide the matter in respect of election of the office bearers or continuance of the office bearers, I find there is substance in his submission. Reference may be made to the decision of this Court in Vijay Narain Singh v. Registrar Firms, Societies and Chits Registration, U.P. Lucknow and others, 1981 UPLBEC 308, it has been consistently held by a series of the decisions of the Court that the Registrar himself has no jurisdiction to hear or decide any doubt or dispute in respect of election or continuance of any office bearers of such Society.
This view has been reiterated by recent Division Bench in the case of Committee of Management, Anjuman Kherul Almin Allahganj and another v. State of U.P. And others reported (2014(1) ADJ 44 (DB). The relevant part of the judgment for the present dispute reads as under:-
"12. In the present case, a list was submitted by the third respondent, of office bearers under Section 4 for 2013-14. The list was objected too. The Deputy Registrar had conflicting claims between the appellants on the one hand and the third respondent on the other hand. Hence when an application for taking on record the names of the office bearers was filed an an objection to the validity of the elected office bearers was placed before him, the Registrar ought to have referred the dispute to the Prescribed Authority under Section 25(1). In entertaining the dispute himself and going into merits of the rival claims, the Deputy Registrar has clearly transgressed his jurisdiction. The jurisdiction to decide any doubt or dispute in respect of an election of the office bearers of the Society lies with the Prescribed Authority and the Registrar ought to have made a reference to the Prescribed Authority."
Bearing the aforesaid principles in mind the facts of this case can be examined.
It is a common ground that the petitioner no.2 was the Secretary/Manager of the Society and the petitioner no. 3 was the Treasurer. The dispute arose on 10.2.2013 when it is alleged that the petitioner no.2 has voluntarily resigned from the office of the Secretary/Manager and his undated resignation letter was considered in the said meeting and it was said to be unanimously accepted. By the same resolution the petitioner no.3 was expelled from the office of the Treasurer on the ground that he was not taking interest in the affairs of the Society. Further it was also resolved to elect the respondent in place of petitioner no.2. The said resolution was forwarded to the office of the Register under the cover of a a letter signed by the newly elected Secretary requesting the Registrar to registered the list of office bearers. The Registrar as mentioned above sent the notice on 30.3.2013 to the petitioner no.2, who has seriously disputed the service of the said notice upon him. Moreover , later on he had filed a detailed objections before the Assistant Registrar inter alia on the ground that that his alleged undated resignation letter is a fabricated and manufactured document.
He has categorically denied that he had submitted any such resignation letter. In view of the said objection raised by the petitioner no.2, it is manifest that a doubt was raised in respect of his resignation and his continuance as the office bearer of the Society. This fact clearly attracted the ingredients of Section 5(1) of the Act, 1860, which provides that the dispute with regard to election, doubt or continuance of office bearers shall be referred to the Prescribed Authority.
From the impugned order it is evident that the Registrar has venture to determine highly disputed question of fact himself and has recorded finding about the resignation and the amendment in the bye-laws as well as expulsion of the petitioner no.3 from the office of the Treasurer. In my considered view the Registrar has travelled beyond his jurisdiction under section 4 of the Act, 1860. In view of the long line of decisions of this Court, he ought to have keep his hands off once a serious dispute was raised regarding the resignation and expulsion of two office bearers of the Society.
It is true that in some of the case this Court has taken the view that the Registrar is not a Post Office to send frivolous dispute to the Prescribed Authority and he can decide the matter himself. Reference may be made to such judgment passed in the case of Committee of Management, Kisan Shiksha Sadan, Banksahi, district Basti and another v. Assistant Registrar, Firms Societies and Chits, Gorakhpur Region, Gorakhpur and another ,1995 (2) UPLBEC 1242; Kranti Kumar Chaturvedi and another v. District Inspector of Schools, Kanpur Dehat and others, 1995 (3) ESC 166.
In the present case having regards to the facts it cannot be said that there was a frivolous dispute. Indisputably, the petitioner no.2 was the Secretary of the Society and petitioner 3 was the Treasurer. Thus it was not a case where on the basis of fake election a frivolous dispute was tried to be raised. It was also not the case that they were not the member of the Society and rank outsider. Thus in any view of the matter this was a bonafide dispute of two office bearers.
The extract of paragraph 8 of the judgment passed by Lucknow Bench of this Court in the case of Maha Narayan Pandey v. Registrar, Chit Funds, Firms & Societies, reported 1984, All LJ 583, which is relevant for the present dispute reads as under:-
"PARA 8........................Implicit in his alleged removal from the membership of the Society was his removal from the office of the Agriculture Secretary. Therefore, one of the questions that arose and which has been decided by the Registrar was whether Bharath Singh could continue to hold office of the Agriculture Secretary. In view of the finding recorded by the Registrar, Bharath Singh continues to hold that office. Again there was dispute as to whether petitioner No. 1 continued to hold office of the Manager or the said office had devolved upon opposite party No. 2 on the basis of the alleged nomination made by petitioner No. 1. This dispute became necessary to be decided in view of the new list of the office bearers submitted to the Registrar by opposite party No. 2. The new list could be accepted or rejected only after recording finding on the disputed question mentioned hereinbefore. In other words, point No. 4 formulated by the Registrar required determination of the question whether petitioner No. 1 continued to hold office of the Manager or he ceased to hold that office. This question was clearly covered by sub-sec. (1) of S. 25. The Registrar, of course, held that it was not necessary to decide the question of resignation, but if he had entered into the factual controversy raised in this regard by the parties, it would have involved determination of the question whether petitioner No. 1 continued to hold office of the Manager or ceased to hold the office by resigning from the office and nominating opposite party No. 2 as his successor. This question was also necessary to be decided as even after amendment of the Rules petitioner No. 1 would continue to hold the office till fresh elections took place, unless he resigned. In view of the discussion herein the Registrar proceeded to decide a part of the dispute which did not fall within his jurisdiction. Reference under sub-sec. (1) of S. 25 could be made by one-fourth of the members of the society as well as by the Registrar. In the present case no reference was made to the prescribed Authority by the members of the Society. But once it came to the notice of the Registrar that a dispute which could be decided by the prescribed Authority alone had arisen between the parties; he should have referred the matter to the Prescribed Authority instead of assuming jurisdiction in himself to decide the said dispute."
(emphasis supplied) The dispute in the above mentioned judgment was only in respect of one office bearer of the Secretary of the Society. The Court took the view that the Registrar had no jurisdiction to decide such dispute.
After careful consideration of the matter, I am of the view that the Registrar has exceeded his jurisdiction by deciding the dispute of the office bearers of the Society. The order impugned dated 23.9.2013 is liable to be set aside.
Accordingly, order dated 23.9.2013 passed by Assistant Registrar, Firms, Societies and Chits, Varanasi is set aside.
Writ petition is allowed.
The Assistant Registrar, Firms Societies and Chits, Varanasi is, directed to send the papers to the Prescribed Authority within three weeks from the date of communication of this order. The Prescribed Authority shall make endeavor to decide the dispute as expeditiously as possible, preferably within six weeks from the date of receipt of the reference by the office of the Registrar.
Till decision is taken by the Prescribed Authority, status quo as on today shall be maintained.
The records of the office of the Assistant Registrar, Firms Societies and Chits, Varanasi relating to dispute in this petition were produced before this Court by the learned Standing Counsel of this Court. The said record in sealed cover is handed over to him for sending the records back to the office of the Assistant Registrar, Firms Societies and Chits, Varanasi.
Order Dated :28.5.2014 ssm