Counter affidavit filed on behalf of the opposite party no. 3 is taken on record.
Heard Shri Ripu Daman Shahi, learned counsel for the petitioners, learned Additional Chief Standing Counsel for the State and Shri P. S. Pandey, learned counsel for the opposite party no. 3.
At the outset Shri R.D. Shahi, learned counsel for the petitioner submits that even if the averments made in the counter affidavit are taken on its face value the dispute as decided by the Deputy Registrar was beyond the jurisdiction vested him under Section 4 and 25(2) of the Societies Registration Act, 1860, therefore, he would not file a rejoinder affidavit thereto, but, this should not be taken as an admission of any of the averments made in the counter affidavit filed in rebuttal to the writ petition.
The challenge herein is to an order dated 27.11.2018 passed by the Deputy Registrar by which he has recalled his earlier order accepting the list of Members of the governing body of the Society submitted by the petitioner herein on the ground that the said acceptance was obtained by misrepresentation and concealment of facts. This was done on the basis of a complaint submitted by Shri Gaurav Sharma i.e. the opposite party no. 3 herein to the effect that he had never resigned from the post of Secretary of the Society and resignation letter, if any, was forged and fabricated. An expert report was also submitted in this regard. The petitioners herein deny the assertion of the opposite party no. 3 in this regard.
The fact of the matter is that some election is said to have been held on 10.05.2018 wherein the petitioner no. 2 was elected as Secretary of the Society. Even prior to it, it is said by the petitioners that, the then Secretary i.e. opposite party no. 3 had resigned on account of certain irregularities committed by him, which were pointed out to him. Consequently, Shri Priya Kant the exiting Secretary was chosen as the Secretary to fill up the vacancy for the remaining term of the Committee of Management of the Society which expired on 13.05.2018 and prior to it i.e. on 10.05.2018 the elections were held. Based on this election a list of Office bearers was submitted in terms of Section 4 of the Act, 1860 before the Deputy Registrar which was accepted on 17.05.2018.
The contention of Shri P.S. Pandey, learned counsel for the opposite parties no. 3 and 4 is that the list of Office bearers submitted by the petitioner based on the alleged election held on 08.05.2018 did not bear the counter signatures of the old Office bearers, therefore, a public notice or notice to such persons as the Deputy Registrar thinks fit inviting the objections within the specified period was required to be issued which had not been issued, therefore, no objections could be filed by the private opposite parties or any other person and the order dated 17.05.2018 was passed accepting the list of the Office bearers submitted by the petitioners herein which was clearly illegal, therefore, a complaint was submitted by the opposite party no. 3 on 30.06.2018 pointing out the illegalities whereupon the impugned order has been passed recalling the order dated 17.05.2018 and while doing so the Committee of Management has been declared time barred directing the opposite party no. 3 to submit a list of valid Members of general body of the Society in terms of Section 4-B of the Act, 1860 within one month so that further proceedings under Section 25(2) may be taken for holding the elections.
The contention of Shri R.D. Shahi, learned counsel for the petitioners is two folds, firstly, once the list of Office bearers submitted by the petitioners was accepted by the Deputy Registrar in exercise of his power under Section 4 of the Act, 1860 then it was not open to him to review/ recall the same. The second submission is that none of the ingredients of Section 25(2) of the Act, 1860 were present, therefore, the order in this regard is bad. The third contention is that the dispute which has been decided touches upon the validity of the elections held on 10.05.2018 which was beyond the purview of the powers vested by the Act, 1860 upon the Deputy Registrar. At the most, if there was a genuine dispute, the matter could have been referred to the Prescribed Authority under Section 25(1).
Shri P.S. Pandey, learned counsel for the opposite parties no. 3 and 4 further submits that the order dated 17.05.2018 was obtained by fraud, therefore, it was nonest and the Deputy Registrar was well within his jurisdiction to recall the same as no person can be allowed to take undue advantage of fraudulent act. Secondly, he submits that the alleged resignation of the opposite parties no. 3 and 4 itself is fraudulent and forged and in this regards the expert opinion was submitted before the Deputy Registrar. Moreover, an F.I.R. was also lodged wherein after investigation the charge sheet has been filed and the summoning order has been issued to the petitioners. Thirdly, he says that the four Members of the Society who are said to have been elected in the election held on 10.05.2018 have given affidavit before the Deputy Registrar that their signatures, if any, on the election proceedings are forged. Fourthly, the submission of Shri P.S. Pandey is that even after the term of the Committee of Management expires if no order had been passed by the Deputy Registrar under Section 25(2) then the existing out going Committee of Management is empowered to hold the election, which was accordingly held on 29.10.2018, as such, the order to this extent is bad. He relies upon the decision of the Division Bench of this Court reported in 2017 (7) ADJ 311 (DB); Vinod Kumar Varshney and Ors. Vs. State of U.P. and Ors.
Having heard the learned counsel for the parties and perused the records what comes out is that as per proviso to Section 4 of the Act, 1860 if the managing body is elected after the last submission 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. Now, this exercise is to be undertaken with regard to the list of the Office bearers of the governing body of the Society submitted under Section 4 of the Act, 1860. It is the admitted case of the parties that no notice whatsoever was issued under proviso to Section 4 which was clearly attracted, as the petitioners had submitted a list on the basis of an election allegedly held on 10.05.2018, although, the opposite parties no. 3 and 4 herein deny any such election having been held and they have held their own election on 29.10.2018.
Be that as it may, as it is the petitioners who had submitted the list of Office bearers under Section 4 based on the alleged election dated 10.05.2018, then, necessarily the list should have been counter signed by the old/ out going Office bearers which admittedly was not so, therefore, the least that was required to be done by the Deputy Registrar was to issue public notice or such notice as has been mentioned in the proviso to Section 4 inviting the objections and to take a decision for accepting the list only thereafter considering the objections, if any, which has not be done in the matter. This was not done, so, the earlier order of the Deputy Registrar dated 17.05.2018 was clearly not tenable. The Deputy Registrar however has cancelled this order on other grounds, nevertheless as the said order was apparently not sustainable in law, therefore, it can not be allowed to operate.
But there is some merit in the contention of Shri R.D. Shahi that while passing the impugned order the Deputy Registrar has decided the validity of the continuance of opposite parties no. 3 and 4 as Office bearers of the Society and the resignation allegedly submitted by them, which according to him did not fall within his domain and if the Deputy Registrar found that there was some genuine dispute in this regard, then, the appropriate course was to refer the matter to the Prescribed Authority under Section 25(1).
As, the exercise to be conducted under Section 4 is an administrative inquiry for administrative purposes as has been held by this Court the case of Christ Church McConaghy School Society, Lucknow and another Vs. Registrar Firms, Societies and Chits, Lucknow and Ors.; Writ Petition No. 406(M/S) of 2015 decided on 28.05.2015 and as the Deputy Registrar can not decide an election dispute or the issue of continuance of an Office bearer though he can hold a limited inquiry to decide whether he should accept the list(s) of Office bearers submitted under Section 4 and in this context can even form a prima facie opinion as to the validity of the list by going into irrefutable factual aspects, as also whether an election was held as per law and the bye-laws of the Society etc. and also as to whether the dispute, if any, raised is a genuine dispute or sham dispute and based thereon can accept or decline to accept such list and/or refer the matter to the Prescribed Authority under Section 25(1) or he can accept a list or any of the two or more lists submitted before him for justifiable reasons as mentioned by the Supreme Court in the case of A.P. Aboobaker Musaliar Vs. Deputy Registrar reported in (2004) 11 SCC 247, leaving it for the aggrieved party to either raise a dispute before the Prescribed Authority under Section 25(1) or the Civil Court, as the case may be, as the acceptance of such list by the Deputy Registrar does not attach any finality to it in view of the scope of Section 4 and the nature of the proceedings which are administrative and summery. Thus, it is the approach of the Deputy Registrar and the tenure of his order which are important in determining whether he has exceeded his jurisdiction under Section 4.
When examined in the light of the above the Court finds that the Deputy Registrar has veritably annulled the alleged election held on 10.05.2018 and has also conclusively held the alleged resignation to be fabricated, instead of recording his prima facie opinion taking into consideration the relevant aspects including the pleas raised by the opposite parties as discussed in his order, with regard to acceptance or otherwise of the list(s) of Office bearers submitted before him.
This apart, the Court also finds that the observation of the Deputy Registrar that the term of the Committee of Management having expired on 13.05.2018 the same had become time barred, consequently, no election could be held subsequently by the out going Committee of Managing, represented by private opposite parties herein also does not appear to be correct in view of the Division Bench judgment in Vinod Kumar Varshney's case (supra).
In view of the above, while the earlier order dated 17.05.2018 passed by the Deputy Registrar can not be allowed to operate for the reasons already discussed earlier, the impugned order dated 27.11.2008 can also not be sustained. The same is accordingly quashed with a direction to the Deputy Registrar to take a fresh decision in the light of the observations made hereinabove. While taking such decision he shall take into consideration the acceptance or otherwise of both the lists submitted by the rival parties which obviously would be subject to regular proceedings before the Civil Court or before the Prescribed Authority, as the case may be.
As this Court has quashed the impugned order dated 27.11.2018 for the reasons mentioned hereinabove it also quashes the order dated 17.05.2018 as by this order it should not have revive and illegal order which was issued without any notice under the proviso to under Section 4 of the Act, 1860.
With the aforesaid observations/ directions, the writ petition is disposed of.