The petition questions the legality of the order dated 31st December, 2010 passed by the Registrar, Firms, Societies and Chits, Lucknow whereby he has treated the election proceedings as set up by the petitioners to be highly disputed and has concluded that since the tenure of the Committee of Management has already expired, therefore, the Assistant Registrar, Firms, Societies and Chits, Azamgarh should hold the elections under the provisions of sub-section (2) of Section 25 of the Societies Registration Act, 1860 (hereinafter referred to as 'the 1860 Act'). The Registrar has further directed that the elected Committee shall accordingly proceed to consider passing of any appropriate amendments in the procedure relating to the enrollment of members of the general body.
Sri H.N. Singh, learned counsel for the petitioners submits that the Society namely Lal Bahadur Shastri Purva Madhyamic Vidyalaya is a society registered under the 1860 Act and also runs a Junior High School imparting education up to Class-VIII. He submits that the Registrar has travelled beyond his jurisdiction to have passed the impugned order, inasmuch as, the very issue relating to his own jurisdiction was a moot question which the Registrar has found to be in favour of the petitioners, yet he has proceeded to decide the claim on merits which renders the impugned order invalid. Sri Singh submits that this Court while passing the order on 23rd March, 2009 in Writ Petition No. 32933 of 2003 had not conferred any such jurisdiction on the Registrar nor in law any such jurisdiction could have been conferred which the Registrar otherwise did not possess under the 1860 Act, hence the impugned order is vitiated.
It is further contended that since only a doubt had been expressed about the elections set up by the petitioners in the previous years, the same could not have been a ground to discard the same and hold that the tenure of the earlier elected Committee had come to an end.
Sri R.K. Ojha, learned counsel for the respondent no. 5, on the other hand, submits that with regard to the same set of dispute the educational authorities had adjudicated the claim and an order was passed on 15th September, 2009 by the Assistant Director of Education (Basic) for holding of fresh elections from amongst those members, who were existing prior to the dispute that began in the year 1998-99. This order is under challenge in Writ Petition 54549 of 2009 where a stay order was passed on 23.10.2009 in favour of the petitioners and, therefore, this writ petition should also be heard along with the said writ petition. It has also been pointed out by Sri Ojha that another order was passed by the Basic Education Officer on 16th January, 2010 against the petitioners where after Writ Petition No. 5382 of 2010 was filed and the operation of the said order was stayed, which writ petition is also pending, hence all the matters should be heard together.
Advancing his submission on the merits of the claim, Sri R.K. Ojha submits that the impugned order does not require any interference, inasmuch as, it is an outcome of the order passed by this Court on 23rd March, 2009 in Writ Petition No. 32933 of 2003 and, therefore, the same cannot be termed to be without jurisdiction even though during the course of his submissions, he conceded that otherwise the Registrar has no power to review. Sri Ojha further submits that he does not propose to file any counter affidavit on behalf of the respondent no. 5 and the learned Standing Counsel for the respondent nos. 1 to 4 has also submitted that no counter affidavit is proposed to be filed on behalf of the said respondents.
Learned counsel for the parties have agreed for the final disposal of the writ petition at this stage.
The Society runs a Junior High School and the dispute arose after the elections were held on 10.10.1999. The office-bearers of the Society were elected and the list of the office-bearers was filed with the Assistant Registrar which came to be registered on 16.03.2000 with the petitioner-Brajbhan Yadav as Manager. The petitioners contend that the elections were be held on 09.10.2002, 09.10.2005 and 09.10.2008 on an interval of three years as per the bye-laws. An objection was filed before the Assistant Registrar by Kuber Nath Yadav-respondent no. 5 against the list of office-bearers that was registered on 16.03.2000 but the same came to be rejected on 7th June, 2000. This order dated 7th June, 2000 categorically records that the claim of Kuber Nath Yadav is absolutely unfounded, inasmuch as, he neither appeared before the Assistant Registrar nor did he file any evidence in support of his alleged membership or the resolutions on which reliance was being placed. The Assistant Registrar, however, observed that in the event, the respondent no. 5 wants to further agitate the dispute, it is open to him to approach the Prescribed Authority with the aid of one fourth members of the general body. The registration of the list of office-bearers on 16.03.2000 was upheld.
The respondent no. 5-Kuber Nath Yadav appears to have approached the Registrar at Lucknow, who without putting the petitioners to notice or any opportunity straightway proceeded to set aside the order dated 07.06.2000 after three years, vide order dated 18th July, 2003. The Basic Education Officer consequently passed an order stopping the operation of the accounts of the institution through the petitioners.
On coming to know of the same, the petitioners challenged the order of the Registrar dated 18th July, 2003 in Writ Petition No. 32933 of 2003 where the operation of the order was stayed and ultimately the order passed by the Registrar dated 18th July, 2003 and the order passed by the Basic Education Officer dated 24th July, 2003 were quashed and the writ petition was allowed leaving it open to the authority concerned to pass fresh orders in accordance with law after hearing the concerned parties. Copy of the judgment is annexure 11 to the writ petition.
The Assistant Director of Education (Basic), in between, had appointed an authorized controller on 14.02.2008, which was also assailed by the petitioners in Writ Petition No. 13168 of 2008 and the same was allowed on the ground of violation of principles of natural justice. A special appeal being Special Appeal No. 1754 of 2008 was filed by Kuber Nath Yadav assailing the same and the judgment was upheld leaving it open to the concerned authority to take a fresh decision in accordance with law. The Assistant Director of Education (Basic) proceeded to decide the same, vide order dated 15.09.2009, which was also challenged by the petitioners in Writ Petition No. 54549 of 2009 and the operation of the said order was stayed. The interim order still continues to be in operation.
The District Basic Education Officer passed an order on 14.10.2009 handing over charge to the Deputy Basic Education Officer as Prabandh Sanchalak for holding the elections of the Manager. By this time, Writ Petition No. 32933 of 2003 had been allowed on 23rd March, 2009 and the order passed by the Assistant Director of Education (Basic) had already been stayed in Writ Petition No. 54549 of 2009. Accordingly, the District Basic Education Officer recalled the order dated 14.10.2009 and pass an order for single operation on 16.01.2010. Aggrieved, the petitioners filed Writ Petition No. 5382 of 2010 in which the order of single operation dated 16.01.2010 was stayed.
In the aforesaid background of the chequered history of this litigation, that the Registrar has proceeded to pass the impugned order Sri Ojha submits that the Registrar has passed the order on the intimation of the Assistant Registrar, Firms, Societies and Chits, Azamgarh dated 29.01.2010 keeping in view the judgment of the High Court dated 23rd March, 2009.
The first issue is with regard to the jurisdiction of the Registrar to decide such a dispute. The order of the Registrar dated 18th July, 2003, proceeded to set aside the order dated 07.06.2000. This, in the opinion of the Court, was an order without jurisdiction even though it was ultimately quashed only on the ground of violation of principles of natural justice. The Registrar had no power to sit in appeal over the order of the Assistant Registrar dated 07.06.2000 that too even on the asking of the respondents against whom a finding had been returned that he had been unable to place any document pertaining to his status of either a member or office-bearer of the society. The Registrar, therefore, acted patently without jurisdiction in proceeding to pass the order dated 24th July, 2003 which came to be quashed by this Court, vide order dated 23rd March, 2009, in Writ Petition No. 32933 of 2003 leaving it open to the authority to pass an order in accordance with law, which does not amount to conferring any jurisdiction on the Registrar which otherwise he did not possess.
Sri R.K. Ojha has failed to point out any provision or any principle of administrative law so as to attract the principle of review to enable the Registrar to set aside the order dated 07.06.2000. It is not the case of the authorities that the order dated 07.06.2000 was an outcome of any fraud or misrepresentation before the authority. The order dated 07.06.2000 had not even been challenged for almost three years and on an application before the Registrar after the expiry of the earlier tenure of the Committee of Management such an application was not entertainable before the Registrar. This Court, therefore, vide judgment dated 23rd March, 2009, did not reopen any issue and the same, even otherwise, could not have been done as the subsequent elections had admittedly been held in between.
The Registrar, even otherwise, has not entered into the validity of the subsequent elections treating them to be disputed for which there appears to be no legal foundation. The subsequent elections, which were held, have not been declared to be invalid so far.
Sri Ojha submits that these elections had not been accepted by the Assistant Registrar and the list of office-bearers so submitted by the petitioners as claimed by them, has not been registered by the Assistant Registrar. He, therefore, contends that the same does not amount to acceptance of the said elections and hence, the term having expired fresh elections have to be held by the Assistant Registrar, Firms, Societies and Chits.
The aforesaid argument of Sri R.K. Ojha has to be noted only for being rejected, inasmuch as, merely because the said elections were disputed, the same did not automatically become invalid. There is no adjudication about the validity of the subsequent elections by any authority. So far as, the respondent no. 5 is concerned, his claim was decided by the Assistant Registrar on 7th June, 2000 itself. In such a situation, the respondent no. 5 cannot be permitted to say that the elections of the petitioners that were held subsequently, were automatically invalid.
Apart from the aforesaid reasons it is noteworthy to record that the High Court, even otherwise, could not in law confer any jurisdiction which the Registrar did not possess. Reference in this regard may be had to the Division Bench decision of this Court in the case of Udit Narain Kshetriya High School Padrauna Deoria through its Secretary, Sri Ram Pratap Narain Singh and others Vs. District Magistrate, Deoria reported in 1993 (2) ACJ 1293.
The Registrar has further proceeded to direct the Assistant Registrar to decide the dispute of membership and then to hold elections and a further direction has been issued in future to the elected Committee to define some procedure with regard to the enrollment of membership. In the opinion of the Court, such a direction was totally beyond the powers of the Registrar in the given circumstances of the present case. In the absence of any finding about the validity of the elections as claimed by the petitioners in between there was no occasion to direct the Assistant Registrar to hold fresh elections or decide the dispute of membership. The Registrar, even otherwise, could not have called upon a future Committee of Management to carry out amendments for enrollment of members, inasmuch as, the same would amount to interfering with the affairs of the Society relating to the right to freedom of association and the right of the Society to confer an authority for the purpose of enrollment of members. The order dated 31st September, 2010 is, therefore, unsustainable on all counts and is hereby quashed.
Sri R.K. Ojha vehemently urged that a direction should be issued to the Assistant Registrar to refer the dispute pertaining to the validity of the subsequent elections to the Prescribed Authority. The said request of the respondent no. 5 cannot be entertained in a writ petition that has been filed by a opposite party that too even in the background of the order dated 07.06.2000 where the respondent no. 5 has been given an opportunity to approach the Prescribed Authority with one fourth members in case he has any grievance against the elections of the office-bearers. The situation has not changed and the respondent no. 5 can still approach the authority if in law he has a bona fide and genuine dispute to be complained of.
The writ petition is accordingly allowed. No order as to costs.
Dt. 28.01.2011 Akv