JUDGMENT S.K. Phaujdar, J.
1. The present petition is directed against an order dated 4.2.1999 as per Annexure-8 to the writ petition. The order was recorded by respondent No. 1 concerning the list of the managing body of a society registered under the Societies Registration Act On short, the Act). The petitioner prayed for quashing the aforesaid order with a further direction for a writ of mandamus upon respondent No. 1 to make a reference of the matter under Section 25 of the Societies Registration Act. Respondent No. 2 had filed a caveat and was heard on the very first day of the presentation of the petition and he filed his counter-affidavit. The petitioner filed a rejoinder-affidavit and all concerned were heard.
2. According to the petitioner, a society named as Varanasi Kala Pratishthan is a society registered under the Act and the petitioner is the secretary thereof. The society has its own bye-laws and the object of the society is to promote silk business by obtaining financial assistance from Khadi Gram Udyog Commission. The erstwhile secretary of the society had resigned on health grounds and after acceptance of the resignation by the society, the petitioner was appointed its secretary by an unanimous resolution dated 10.11.97. The petitioner was also a member of the society. He wrote a letter to the Khadi Gram Udyog Commission informing certain irregularities in the society and requesting them to get the accounts of the society audited. An audit was done and a lot of financial irregularities committed by the erstwhile secretary was detected. Accordingly, a police case was started against Aqbal Singh. Membership fee for each year was Rs. 10 and the life members and "sadbhavi" members had to deposit the fees every year for continuation of the membership. The election of the society was held in 1994 and was again scheduled in 1997.
3. On 17.8.98 the petitioner wrote a letter to the Assistant Registrar of Societies for registration of the names of life members and ordinary members and a list thereof was appended to that letter. The election for the sangarakshak mandal, i.e., the managing body, was fixed on 5.9.1998 and it was duly notified in a local newspaper. As per the schedule, a meeting was held on 5.9.98 and the members of the managing body were elected. A copy of the proceeding dated 5.9.98 was send to the Assistant Registrar of Societies with a request to register the list of the members of the managing body. The letter and the list were duly received and petitioner was informed by a letter dated 23.9.98 that the list had been registered. The office of the Assistant Registrar, Societies, also issued a certified copy of the list of the managing body for the year 1998-99.
4. It is the further case of the petitioner that on 19.9.1999 the petitioner received an information that the list of the managing body for the year 1998-99 submitted by the petitioner and already registered in the office of the Assistant Registrar, Societies, had been cancelled by him and instead thereof a list submitted by the present respondent was recognised. The petitioner approached the office of respondent No. 1 and obtained a certified copy of the order dated 4.2.99 whereby the list submitted by the petitioner was cancelled. This letter dated 4.2.99 forms Annexure-8 to the writ petition and is the subject-matter of the present writ petition. The petitioner contended that the order was absolutely arbitrary, illegal and against the principles of natural justice and was without jurisdiction as well. It was contended that no notice was given to the petitioner before cancellation and he was not afforded any opportunity although allegations of fraud was levelled against him. It was further contended that the Assistant Registrar had not given any reason for such cancellation and had acted upon the opinion of the District Government Advocate only.
5. In his counter-affidavit, respondent No. 2 submitted that the order dated 4.2.99 was fully justified as the list submitted by Chandra Shekhar Damle was obtained by fraud and in any case only the civil courts at Varanasi could decide the disputes as per the bye-laws and the writ court had no jurisdiction in the matter. It was further stated that the petitioner was never elected the secretary of the concerned society and he had no locus standi to send any letter to the Assistant Registrar in connection with the affairs of the society. It was contended that in exercise of the powers under Sections 3 and 4 of the Societies Registration Act the respondent No. 1 had every authority to cancel any order if it was obtained fraudulently.
6. In a rejoinder-affidavit, the petitioner denied the averments made by respondent No. 2 and reiterated his submissions made in the writ petition. A copy of an order in Crl. Misc. Writ Petition No. 3242 of 1998. Aqbal Singh v. State of U. P., recorded by a Division Bench of this High Court on 29.1.1999 was also annexed to the rejoinder-affidavit. This order Indicated that the Division Bench had declined to quash the F.I.R. against Aqbal Singh in Case Crime No. 81 of 1998 of P.S. Chet Ganj, District Varanasi. Interim order staying the arrest was also recalled but the petitioner was given the liberty to surrender before the Court below and to move for bail and in that event his prayer was directed to be considered expeditiously.
7. In the instant case, the real points at Issue before the Court are the following :
1. Whether the petitioner should have been given an opportunity of hearing before cancellation of the list of members submitted by him :
2. Whether it was within the competence of the Assistant Registrar, Societies, to cancel the list of members ; and
3. Whether it was a proper case for making a reference under Section 25 of the Societies Registration Act.
8. On the first point, a reference may be made to a decision of the Supreme Court in the case of Gulzar Singh v. S.D.M. and another, (1999) 3 SCC 107. The principle of audi alterem partem was explained in this decision. Gulzar Singh was granted a Scheduled Caste certificate. Subsequently the same was cancelled upon a factual finding that he was a Christian. This cancellation order was made without affording any opportunity to Gulzar Singh to show cause or to have him heard. The order of cancellation was, however, upheld by the High Court and only thereafter the Supreme Court was approached. The Supreme Court found from the facts on record that prior to the cancellation of the Schedule Caste certificate by the impugned order dated 3.6.97, no show cause notice was issued to the appellant. It was observed that it could not be denied that with the issuance of the Scheduled Caste certificate, certain rights accrued to the appellant and that if this certificate was to be cancelled on the basis of some enquiry, which had been conducted by the department, it was incumbent on the department, keeping in view the principles of natural justice, to issue a show cause notice to the appellant requiring him to explain as to why the certificate would not be cancelled. The Supreme Court held that the principles of natural Justice were violated and the order of the High Court was set aside and the impugned order of cancellation was quashed, leaving it open to the respondents to take action in accordance with law. In the case at our hand, the list submitted by the petitioner was duly registered and the impugned order dated 4.2.1999 Indicates that there were certain allegations of fraud in submission of the list and the order makes it further clear that no opportunity of hearing was given to the petitioner before cancelling the list submitted by him although it was registered earlier. This was certainly a violation of principles of audi alterem partem and in this light itself the order in question cannot be sustained.
9. The provisions in the Societies Registration Act. 1860, may now be looked into. Section 3A speaks of renewal of certificate of registration and it states that a certificate of registration issued under Section 3 would remain in force for five years from the date of issue and the society so registered would have a right to make an application to the Registrar within one month of the expiration of the above period and on payment of the requisite fee to get the certificate of registration renewed for a period of five years at a time. Section 4 requires submission of annual list of the managing body to the Registrar and as per amendment made in Uttar Pradesh a proviso to this section states that 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. It further provides that if the old office-bearers did not countersign the list, the Registrar would have a right, in his discretion to issue a public notice or notice to such persons as he thought fit inviting objections within the specified period and would decide all objections received within the said period. No doubt, this proviso gives a semblance of power to the Registrar to make an enquiry before accepting a list of the members of the managing body elected after the last submission of the list but the very fact that the list submitted by the petitioner had been registered (i.e.. accepted) had closed the chapter for the Registrar so far proviso to Section 4 is concerned. If at all under any stretch of interpretation, it is thought that the Registrar could re-open the matter, certainly he was required to issue a public notice or at least a notice to the person, list submitted by whom has once been accepted. The Registrar, It is felt, had not acted under Section 4 of the Act.
10. Section 12D of the Act empowers the Registrar to cancel the registration of a society under certain circumstances and one of the clauses is that the registration or the certificate of renewal if obtained by misrepresentation or fraud could be cancelled. This power is to be exercised in respect of registration of the society itself and not the acceptance or recognition or registration of the list of the members of the managing body. In this connection, a decision of the Allahabad High Court in the case of Committee of Management. Baba Saheb Dr. Bhim Rao Ambedkar Primary Pathshala. Azamgarh v.
Assistant Registrar, may be referred to. This decision stands reported in (1996) 2 UPLBEC 684. It was held herein that Section 12D of the Act dealt with the cancellation of registration and did not deal with any question of cancellation of registration of the list of the members of the governing body or officebearers. But in exercise of powers under Section 12D. the Registrar had actually cancelled the list and not the registration of the society and, as such, the impugned order was without jurisdiction so far it decided the question of election and eligibility of the persons to continue in office as office-bearers.
11. Section 25 of the Act is also relevant in this connection. It speaks of disputes regarding election of office-bearers and states that the prescribed authority may, on a reference made to it by the Registrar or by at least 1/4th members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of an election or continuance in office of an office-bearer of such society and may pass such orders in respect thereof as it deems fit. One of the grounds for setting aside the election of an office-bearer is commission of corrupt practice. In the absence of any definition of the term corrupt practice, it could always be stated that fraud in the holding of an election or submission of the so-called list of elected members would certainly be a corrupt practice affecting election of an office-bearer or even continuance of the office bearers or members. The power under Section 25 is to be exercised not by the Registrar but by the prescribed authority who could be approached through a reference of the Registrar or though a petition by 1/4th of the members of the society. In the instant case, the impugned order dated 4.2.1999 indicates that Sri Damle had submitted a list without the consent of Raghu Nath Kaul, the President of the society and basically it was a question touching the election of the members as per the list. The Registrar should have made a reference to the prescribed authority had he been satisfied about the prima facie truth of the allegation.
12. In the absence of the text of the bye-laws, which have not been produced by either of the parties, it is not possible to give any decision if the civil court only could have the jurisdiction in the matter to the exclusion of any other forum.
13. In view of what has been discussed above. It is found that the order dated 4.2.1999 is bad, firstly, because of violation of the principles of natural justice and. secondly, because of the non-compliance of the provisions of Section 25 and in any case it can be taken to be an order under the proviso to Section 4 or under Section 12D of the Act.
14. In view of the above, the order dated 4.2.1999 recorded by the respondent No. 1 stands quashed. It will be open for the respondent No. 1, however, to proceed according to law.