This writ petition has been filed by Shri Hradyesh Kumar claiming himself to be the Manager of the Committee of Management of Shri Ram Ratan Vidyalya, District Mainpuri.
The Committee is of a registered society of the same name constituted under the Societies Registration Act, 1860 and which according to the petitioner has been renewed from time to time and the last renewal was made for a period of five years on 25th October, 2010, admittedly at the instance of the respondent no. 4, who was the then Manager.
The dispute arose on account of rival claims of elections set up by the petitioner no. 2 and the respondent no. 4. The undisputed facts between the parties is that on 30th September, 2008 the last elections were held in which one Shri Hakim Singh was elected as the President and the respondent no. 4 was elected as the Manager.
Thereafter, the petitioner alleges that the respondent no. 4 himself issued an agenda on 18.8.2011 for holding of a fresh elections that were held on 28.8.2011 in which the petitioner no. 2 came to be elected as Manager with some old office bearers and with some new members of the Committee of Management. It is also alleged by the petitioner that the said election, which was ratified by the General Body on 15th September, 2011, the same was submitted before the Deputy Registrar for registering the list of office bearers on 23.9.2011. The petitioner further relies on the affidavit of the respondent no. 4, which is alleged to have been filed along with an application by the petitioner before the Deputy Registrar indicating that the respondent no. 4 did not participate in the elections dated 28.8.2011 nor was he ever elected. The said affidavit, which is at page 62 of the paper book also recites that the respondent no. 4 was a special member, which he has seized to be such at present. Relying on these documents the petitioner prayed for the registration of the list of the office bearers, who had been allegedly elected on 28.8.2011.
The respondent no. 4 denied his own affidavit referred to herein above and further contended that no such proceedings had taken place either on 28.8.2011 or 15.9.2011 as claimed by the petitioner nor any agenda had been issued on the basis whereof such claim has been set up by the petitioner. To the contrary as recorded in the impugned order three vacancies had arisen on account of the death of two members, namely, Shri Anant Ram and Shri Subedar and on account of one vacancy another member Shri Gaya Prasad being untraceable. These vacancies in relation to the committee constituted on 30.9.2008 were filled up on 25.8.2011. The committee was accordingly reconstituted and the list of office bearers was submitted before the Deputy Registrar, Firms, Societies and Chits for being recorded under Section 4 of the 1860 Act. The Deputy Registrar on 16.9.2011 registered the said list and the said registration has nowhere been challenged by any person including the petitioner.
Accordingly, the said reconstituted committee which was already in effective control and which was undisputed, circulated an agenda on 24.9.2011 for holding of fresh elections which were held on 30.9.2011 and the papers were submitted before the Deputy Registrar on 4.2.2012. According to the respondent this election was held amongst all the members of the General Body, who were 100 in number in which Hakim Singh was elected as the President and the respondent no. 4 was re-elected as the Manager. On these facts that have been noted in the impugned order the Deputy Registrar proceeded to make an enquiry and has passed the impugned order on 29th March, 2012 accepting the claim of the respondent no. 4 and rejected the claim of the petitioner.
This matter proceeded after calling upon the learned counsel for the petitioner to file a supplementary affidavit as certain documents relating to the elections set up by the petitioner were not on the record. Two supplementary affidavits were filed, one dated 26th July, 2012 and the another dated 2nd August, 2012 on the basis whereof Shri T.P. Singh, learned Senior Counsel for the petitioners raised his submissions.
The contention is that the impugned order of the Deputy Registrar is without jurisdiction and he ought to have referred the matter to the Prescribed Authority as the dispute related to the elections of the office bearers of a society registered under the 1860 Act which can be gone into only under Sub-section (1) of Section 25 of the said Act by the Prescribed Authority. His second contention is that the impugned order is in violation of principles of natural justice as the respondent no. 4 was permitted to file his written arguments on 12th March and the petitioner was never informed of any date being fixed where after the impugned order was delivered on 29.3.2012 hence, the impugned order deserves to be set aside on this ground as well. The third submission of Shri Singh is on the merits of the case of the respondent no. 4 claiming that the elections set up by the respondent no. 4 is based on a 100 member electoral college out of which only 38 members were the old members, whereas the balance of the members appear to have been enrolled in 2011 about which information was given on 16.9.2011 to the Deputy Registrar. These members, who have been enrolled in September, 2011 could not have participated in the elections held on 30.9.2011 as according to Clause-6 of the bye-laws, no member who has not completed at least two years of membership can be allowed to participate in the elections and exercise his right of franchise. He therefore, submits that in view of this clear bar contained in the bye-laws, the members who were enrolled in 2011, could not have participated in the elections held on 30.9.2011 as set up by the respondent no. 4. Hence the entire elections of the respondent no. 4 are vitiated being materially affected on account of the participation of such alleged members.
Coming to the own elections of the petitioner, Shri Singh has taken the Court through the agenda dated 18.8.2011 and the proceedings dated 28.8.2011 to contend that the casual vacancies were filled up and the elections were accordingly held on 28.8.2011 which have been ratified on 15.9.2011 by a resolution of the General Body.
With regard to the claim of the elections of the respondent no. 4 Shri Singh has also further invited the attention of the Court to the agenda as claimed to have been set up by the respondent no. 4 contained in the supplementary affidavit dated 2.8.2012 according to which the agenda dated 24.9.2011 was only for consideration of holding of elections in future and not for holding of elections on 30.9.2011. He therefore, submits that since there was no such agenda for holding of elections, the claim of the respondent no. 4 deserves to be rejected.
Shri K. Ajeet, learned counsel for the caveator, respondent no. 4 submits that the agenda as set up by the petitioner dated 18.8.2011 and the proceedings dated 28.8.2011 are all forged and manipulated. He further submits that once the casual vacancies had been filled up on 25.8.2011 and the list was accordingly registered by the Deputy Registrar on 16.9.2011 then without there being any challenge raised to the same there was no occasion to fill up the same casual vacancies by the petitioner on 28.8.2011 vide resolution no. 3. He therefore, contends that this resolution has been manufactured overlooking this aspect of the matter and, therefore, the entire resolution dated 28.8.2011 is a manipulated document and no elections had been held on the said date.
He further submits that the issue relating to 100 members which has been raised before this Court was never challenged before the Deputy Registrar in spite of the fact that the documents of the answering respondent had been brought on record and have been noted in the impugned order. He further submits that this aspect was not even touched in the writ petition and as an after thought has been raised through the supplementary affidavit, subsequently filed. He therefore, contends that the issue of membership of the 100 members on the basis whereof the election of the respondent no. 4 was held having not been raised or challenged before the Deputy Registrar, cannot be permitted to be raised for the first time before this Court, that too even through a supplementary affidavit after the filing of the writ petition. He therefore, contends that the documents which are to be relied on, are self explanatory as being manipulated. He has further contended that there is no provision in the bye-laws for ratification of the elections of the Committee of Management by the General Body as claimed by the petitioner. He further submits that the supplementary affidavit dated 2.8.2012 in paragraph no. 6 narrates that three members had seized to be members on account of non-deposit of their membership fee and the membership of the respondent no. 4 was not extended, as such it is alleged that only 34 members participated. It is urged that no proof or material was furnished before the Deputy Registrar about the status of membership of the respondent no. 4. Secondly one Awadhesh Singh is alleged to have seized to be a member as per the aforesaid averments in paragraph no. 6 of the supplementary affidavit. Surprisingly, enough the same Awadhesh Singh has been shown to have signed the proceedings of the General Body dated 15.9.2011 whereby the elections dated 28.8.2011 are alleged to have been ratified. He therefore, submits that if Awadhesh Singh seized to be a member, then it is not understandable as to how he has signed the proceedings dated 15.9.2011 which apparently reflects the said proceedings to be a rank forgery. He therefore, contends that all the documents which have been set up appear to have been manufactured and the filling up of the casual vacancies and the simultaneous constitution of the Committee of Management by the petitioner on the same date clearly indicates that the documents have been manipulated.
He further submits that the agenda was alleged to have been issued on 18th August but the same appears to have been dispatched under the postal certificate dated 22nd August and therefore, the meeting was not held after the expiry of the period as provided for in the bye-laws.
He further contends that there is no averment as to why Hakim Singh, who is shown to be the President elected by the petitioner had not attended any meeting as claimed by the petitioner even though he has been shown to have been elected as President in the petitioner's Committee as well. Shri K. Ajeet further submits that the same is also reflected from the resolution set up where the Vice President, Harish Chand is said to have chaired the meetings without any mention about the absence of the President of the Committee of Management, namely, Hakim Singh. He therefore, contends that it is clear that Shri Hakim Singh is the President of the Committee of the petitioner and answering respondent, and his absence in the documents of the petitioner, therefore, further establishes the concoction of the papers by the petitioner.
Replying by the aforesaid submissions, Shri T.P. Singh, learned Senior Advocate contends that all this exercise of faking papers by the respondent no. 4 was done as the respondent no. 4 wanted some person related to him to be appointed in the institution and, therefore, initially he opted out of the elections and it is for this reason that he also tendered an affidavit before the Deputy Registrar. Later on when he failed to get the said person appointed he concocted his own elections to set up a dispute and manufactured the documents which have now come to the notice of the petitioner and have been questioned before this Court.
I have also heard the learned Standing Counsel for the respondent nos. 1, 2 and 3.
Having heard learned counsel for the parties and having perused the impugned order the question of jurisdiction has also to be tested on the ground of any bona fide dispute being raised by the parties.
Coming to the claim of the petitioner apparently the respondent no. 4 has denied issuing any agenda on 18.8.2011. Not only this the casual vacancies on account of the death of two members and the un-traceability of the third member, the respondent no. 4 had categorically set up a case before the Deputy Registrar, and which has been accepted, that the casual vacancies had already been filled up on 25.8.2011 and the Deputy Registrar had accepted the said list of office bearers on 16.9.2011 and registered the same. This was never challenged by the petitioner nor is it under challenge before this Court. In the circumstances, it is the said Committee which continued to be in control as it remains unchallenged. The attempt to show that the petitioner had filled up the casual vacancies on 28.8.2011 does not therefore, inspire confidence at all, inasmuch as once the casual vacancies had been filled up and remained unchallenged, then there was no occasion to have filled up the same vacancies after a gap of three days by the petitioner.. Shri T.P. Singh has been unable to explain the same.
Shri Singh, however, contends that even if the reconstituted Committee is accepted, then it makes no difference as the tenure of the erstwhile Committee had come to an end and this dispute did not arise at all. I am unable to agree for the simple reason that the claim of the petitioner is founded on the resolution dated 28.8.2011 which recites and includes the filling up of the said three casual vacancies as well. Thus the expiry of the earlier tenure has no bearing on the issue and the genuineness of the resolution dated 28.8.2011 becomes absolutely doubtful. It is this resolution, which has also reconstituted the new Committee of the petitioner and, therefore, if part of the said resolution appears to be manipulated then the said document has rightly been discarded which reflects adversely upon the non bona fide claim of the petitioner.
Apart from this as pointed out by Shri K. Ajeet, if Shri Awadhesh Singh had seized to be a member according to the recital in paragraph no. 6 of the supplementary affidavit dated 2.8.2012, then it is not understandable as to why and in what capacity did he sign the proceedings of the General Body dated 15.9.2011. This again casts a serious doubt on the said proceedings of the General Body and even otherwise Shri Singh has been unable to point out any provision under by bye-laws which may require ratification of the General Body of a previously held election. On this ground as well the documents filed by the petitioner and which have been considered by the Deputy Registrar do not indicate any bona fide claim of the petitioner.
Apart from this, it is difficult to believe that the petitioner was unaware about the list of 100 members as claimed by the respondents. The objections relating to the said membership was not raised by the petitioner before the Deputy Registrar and has been sought to be explained for the fist time through the supplementary affidavit.
The ground of providing no opportunity of hearing to the petitioner has been stated in a sweeping manner in paragraph no. 10 of the supplementary affidavit dated 2.8.2012, whereas the impugned order categorically records that the dates were fixed and opportunity was afforded to the petitioner. Shri Singh, learned counsel for the petitioner insisted that the petitioner had no knowledge about the proceedings dated 12.3.2012 and the date fixed.
From the facts narrated in the order of the Deputy Registrar, it appears that the objections filed by the petitioner were taken into account and that the representative of Shri Hradyesh Kumar, namely, Shri Ajay Gupta filed his written submission on 18.2.2012 and the affidavits of Shri Harish Chand and Shri Satya Dev were filed in support of his claim. In the aforesaid circumstances, if the Deputy Registrar has rejected the claim of the petitioner as not being acceptable then in the aforesaid background as indicated above, this Court is not inclined to interfere at the instance of the petitioner, who has been unable to bona fidely establish the validity of his elections dated 28.8.2011. There is no violation of principles of natural justice and the claim of the petitioner has been considered by the Deputy Registrar. It is also relevant to mention that in view of the law laid down by this Court in 1995 U.P.L.B.E.C. (2) Page 1242 by a Division Bench of this Court, the Registrar/Deputy Registrar is not obliged to refer a dispute if it is not bona fide for decision under Section 25 of the Societies Registration Act.
Apart from all these facts the impugned order is of March, 2012, which has now been assailed after more than four and half months before this Court. On facts also the petitioner had failed to establish as to how the respondent Shri Ram Ratan was a special member and he seized to be as such when Shri Ram Ratan has himself denied the documents as relied upon by the petitioner. In the aforesaid circumstances the submission which has now been advance through the supplementary affidavit for the first time before this Court cannot be entertained.
There is, however, one aspect of the matter which can be raised if the same is advanced by the genuine members of the General Body relating to the elections of the respondent no. 4. The election of the respondent no. 4 has been held from amongst 100 members, whose participation is being challenged on the ground of Clause-6 of the bye-laws as referred to herein above. Shri K. Ajeet in his oral submission states that the members were enrolled in 2009 and not in 2011 as alleged by the petitioner. Since this fact was not raised by the petitioner before the Deputy Registrar, therefore, I am not inclined to investigate this issue but at the same time if 1/4th of the valid members of the society raise this issue on the basis of cogent material then the Prescribed Authority in terms of Section 25(1) of the 1860 Act can investigate the validity of the elections of the respondent no. 4 without prejudice to the rights of the parties. The writ petition is disposed of as this Court is not inclined to exercise its discretion in view of the facts and circumstances of the case at the instance of the petitioner.
Order Date :- 3/9/2012 S.Prakash