Hon'ble A.P. Sahi, J Heard Sri Prem Chand Pandey, learned counsel for the petitioners, Sri K.S. Tiwari for Respondent Nos. 4 and 5 and learned Standing Counsel for Respondent Nos.1, 2 and 3.
The petitioners contend that they had moved a memorandum of association along with an application for registration of a Society in relation to Shri Shanker Parwati Hanuman Ji Mandir, Village - Saipur, Post Birawn Baragaon, District Varanasi. For the same temple, the respondent Nos. 4 and 5 also appear to have moved before the Assistant Registrar for registration of the Society basing their claim on different grounds. The Assistant Registrar was seized of both the applications. The provision for registration as applicable under the Societies Registration Act, 1860, is Section-3 and the procedure to be followed for registration of a new Society has been prescribed through an amendment brought about in the State of U.P. and captioned as Section 3 (1) of the said Act quoted herein below:-
"3. (1) Upon such memorandum and certified copy being filed along with particulars of the address of the Society's office which shall be in registered address, by the Secretary of the Society on behalf of the persons subscribing to the memorandum, the Registrar shall certify under his hand that the Society is registered under this Act. There shall be paid to the Registrar for every such registration a fee of one thousand or such smaller fee as the State Government may notify in respect of any class of Societies:
Provided that the State Government may, by notification in the Official Gazette, increase from time to time the fee payable under this sub-section:
Provided that the Registrar may, in his discretion, issue public notice or issue notices to such persons as he thinks fit inviting objections, if any, against the proposed registration and consider all objections that may be received by him before registering the Society."
The Assistant Registrar appears to have proceeded to call for a report from the Sub-Divisional Magistrate and making the said report a basis, proceeded to grant registration in favour of respondent Nos. 4 and 5. The Certificate has been issued on 29.1.2011.
The short and precise contention on behalf of the petitioners is that the said procedure violates Sub-section (1) of Section 3 of the 1860 Act as applicable in the State of Uttar Pradesh, and quoted herein above, inasmuch as the objections which were filed by the petitioners to the claim of Respondent Nos. 4 and 5 remained unattended and no reasons have been given for not accepting or rejecting the objections filed by the petitioners.
Sri K.S. Tiwari, learned counsel for Respondent Nos. 4 and 5, has not been able to point out or produce any document which may indicate an application of mind by the Assistant Registrar to the objections raised by the petitioners which were admittedly moved before the Assistant Registrar and the documents filed by the petitioners were pending consideration. Sri Tiwari, therefore, contends that the objections as raised by the petitioners can be looked into by the Assistant Registrar in terms of the provisions aforesaid.
Sri Tiwari, however, submits that as a matter of fact, the Assistant Registrar will be presumed to have gone through the objections and also has rightly relied upon the report of the Sub-Divisional Magistrate for granting registration which would amount to a satisfaction in favour of the answering respondent. For this, he relies on a Division Bench judgment of this Court in the case of Digambar Jain Panchayat Vs. State of U.P., 1998 LBESR (1) 1096. He further contends that as a matter of fact this is a pure question of title involving disputed questions of fact and, therefore, the petitioners should file a Civil Suit seeking a declaration to that effect and in such a situation, it is not necessary to interfere at this stage. He further contends that the entire claim of the petitioner is founded on a basis which has no legs to stand and, therefore, the Assistant Registrar has acted well within his jurisdiction to proceed to grant an order of registration in favour of the respondents.
In rejoinder, Sri Pandey submits that if the Assistant Registrar was of the opinion that there was a dispute which requires to be resolved then the provisions of Section 3 (B) of the Act are attracted and the Assistant Registrar ought to have made a reference to the State Government for deciding the said rival claim of registration of the Society. Sri Tiwari disputes this proposition and contends that the said provisions are nowhere attracted.
Having heard learned counsel for the parties, the admitted position is that no orders have been passed by the Assistant Registrar on the objections raised by the petitioners. Learned Standing Counsel submits that this can be done by the Assistant Registrar in view of the provisions contained in Sub-section (1) of Section 3 and the proviso contained therein. Accordingly, the Court is of the clear opinion that the Assistant Registrar has failed to discharge his obligation as per the provisions of sub-section (1) of Section 3 and he has not taken care to decide the objections raised by the petitioner. This, therefore, amounts to a failure to perform duties as enjoined on the Assistant Registrar under the aforesaid provision. The petitioner is, therefore, entitled for issuance of a writ as the authority has failed to discharge its duties.
The decision relied on by the learned counsel for the respondents in Digambar Jain's case (supra) proceeded on the premise that the contesting party therein had already filed a civil suit. Such is not the case here. The said decision also does not say that the Assistant Registrar has not to apply his mind and pass an order or that a satisfaction can be presumed merely on filing of papers. The aforesaid Division Bench judgment, therefore, does not come to the aid of the respondent to that extent.
Accordingly, the writ petition is allowed. The registration as granted to Respondent Nos. 4 and 5, cannot be sustained till such objections are decided in terms of the provisions of Section 3 (1). Accordingly, the Assistant Registrar, Firms, Societies & Chits, Varanasi, is directed to decide the said objections including that of reference by passing a reasoned order so as to reflect his application of mind and thereafter the registration, which has been granted, shall follow suit. The same shall not enure any advantage to the Respondent Nos. 4 and 5 till such decision is taken which may be done as expeditiously as possible but not later than three months from today.
Dt. 23.2.2011 Irshad