JUDGMENT D.P. Singh, J.
1. Heard counsel for the parties.
2. These four writ petitions are connected together and deal with the elections of a Committee of Management of Bal Shiksha Mandir, Kasya, a registered Society running an unaided but recognized junior high school.
3. Writ petition No. 32183 of 2002 has been filed through Sri Gauri Shankar, the alleged Manager of the Committee of Management challenging an order of the Assistant Registrar dated 11.6.2002 registering the list of office bearers submitted by Sri Sarvesh Kumar Singh. During the pendency of this petition a withdrawal application was filed by the said Gauri Shankar for withdrawing the writ petition but an impleadment application of one Jai Govind, claiming to be newly elected Manager has also been filed against which Sri Sarvesh Kumar has filed objection and his own impleadment.
4. The second writ petition No. 30806 of 2003 is directed against an order dated 26.6.2003 passed by the Assistant Registrar, Firms, Societies and Chits holding that the election of the Society conducted by the respondent was valid and the one conducted by the petitioner, Sarvesh Kumar was invalid and he has been directed by the said order to return the registration/renewal certificate.
5. The third writ petition No. 12778 of 2003 has been filed through Sri Jai Govind against an order dated 28.2.2003 whereby the Assistant Registrar has refused to decide his claim of election dated 15.12.2002 in view of the pendency of the earlier writ petition. However, in view of an interim order dated 21.5.2004, the claim has since been decided which is subject matter of writ petition No. 30806 of 2003 and thus for all practical purposes this petition has become infructuous.
6. The fourth writ petition No. 21482 of 2004 has been filed by Sri Sarvesh Kumar challenging the consequential action of the Assistant Registrar in furtherance of the impugned order dated 26.6.2004 which is subject matter of writ petition No. 30806 of 2003.
7. The counsel for the parties agree that the decision in writ petition No. 30806 of 2003 would substantially decide all the writ petitions and as such it should be treated as the leading petition.
8. It is undisputed that the term of the Committee of Management according to the bye-laws is five years and admittedly undisputed elections of the Committee of Management were held in 1995 wherein Ram Sri Adhar was elected the President and Sri Gauri Shankar was elected the Manager. The term expired in the year 2000 but no steps were taken for holding elections, however, it is alleged that an agenda dated 16.7.2001 was issued by Sri Ram Adhar notifying the election meeting of the general body for 24.7.2001. In pursuance whereof, it is further alleged that, Sri Ram Adhar was re-elected as the President while the petitioner, Sarvesh Kumar was elected as the Manager and the papers of this election were submitted to the Assistant Registrar for filing the list of the members and office bearers and for issuing a renewal certificate of registration. But since no objections were filed, renewal certificate dated 16.10.2001 was issued renewing the registration of the Society for five years with effect from 3.11.2000. However, a representation was filed by Sri Gauri Shankar which was rejected by the Assistant Registrar vide his order dated 11.6.2002 which was subjected to challenge in writ petition No. 32183 of 2002 where an interim order was passed on 8.8.2001 to the effect that whichever party is in effective control, would manage the affairs. It is alleged that in pursuance of the decision of the Committee, Gauri Shankar filed a withdrawal application in writ petition No. 32183 of 2002 which is still pending. In the meantime, the Assistant Registrar passed an order dated 28.2.2003 intimating Sri Jai Govind that further proceedings in regard to his application cannot go on in view of the pendency of the writ petition and after this Court had asked him to decide the disputed question of fact, the present impugned order has been passed.
9. Learned counsel for the petitioner has urged that the Assistant Registrar has exceeded its jurisdiction in deciding the rival claims of elections purportedly exercising powers under Section 3 and 4 of the Act though such a dispute lay in the exclusive domain of the Prescribed Authority under Section 25(1). It is further contended that by couching the relief in the operative portion, the Assistant Registrar cannot arrogate the jurisdiction of the Prescribed Authority.
10. Section 3 provides for Registration of a Society and payment of registration fee. Section 3A provides for renewal of registration and refusal thereof. Section 4 requires filing of the annual list of managing body of the Society and if new elections are held, if possible, the list is to be countersigned by the outgoing members. If the old members do not sign, Registrar can invite objections from them and decide the same. Section 25 provides summary resolution of the election dispute on the grounds mentioned therein.
11. Before we consider the arguments raised on behalf of the petitioners, it would be worthwhile to examine the law relating to the power and jurisdiction of the Assistant Registrar under Section 3, 3-A and 4 and the power of the Prescribed Authority under Section 25 of the Act.
12. A Division Bench of this Court in the case of Vijai Narayan Singh v. Registrar, Firms, Societies and Chits [1981 U.P.L.B.E.C. 308] after examining the provision of Section 25, held "It is, thus, apparent that the Registrar himself had no jurisdiction to hear and decide any doubt or dispute in respect of election and continuance of office bearer of such a Society. His decision that the respondent No. 5 continues to be the Manager-cum-Secretary or that the petitioner was not duly elected was wholly without jurisdiction. He was in law bound to refer the dispute to the Prescribed Authority"
13. A Single Judge of this Court in the case of Khapraha Educational Society v.Assistant Registrar and Ors. [ 1993 ESC 201], while dealing with the area of operation of Section 4 and 25, it found that the court should see what is the real dispute even though the Registrar may not have overtly framed any issue with regard to the election dispute, it held "....It may be so, but is always open for the Court to lift the veil and see what is the real dispute which had to be decided. As already observed by me, it is apparent that the dispute was not confined to the respective lists submitted by the parties but touched an election dispute and raised doubts about membership of certain persons and thus the situation clearly attracted the provisions of Section 25(1) of the Act".
14. A Division Bench of this Court in the case of Committee of Management Kishan Shiksha Sadan v. Assistant Registrar [1995 (2) U.P.L.B.E.C. 1242], while considering the power of the Registrar under Section 4 and the requirement of Section 25, has held as follows "It is also attracted when a party challenges the legality or otherwise of the election of particular set of office bearers of the Society on the grounds enumerated in Section 25 of the Act"
15. Another Division Bench in the case of Shiksha Parishad Nagwa, Ballia v. Deputy Registrar [1998 (1) E.S.C. 367] after considering the scope of Section 3, 4 and 25 it held " In view of the above, we are of the considered view that so far as the registration or renewal of certificate of registration of the Societies is concerned, it can be done only by the Registrar and the Prescribed Authority has nothing to do with it."
16. A Single Judge of our Court in Shambhu Kumar Tripathi v.Assistant Registrar while considering the power of the Registrar with regard to renewal or registering the list of the office bearers, held that the Registrar "could incidentally examine whether the list of members of the managing body submitted alongwith application for renewal of the certificate of registration as required by sub-Section (4) was genuine or not. Exercise of such incidental or ancillary power may, in a given case, be considered necessary for effectuating jurisdiction vested in the Assistant Registrar under Section 3A of the Act."
17. Thus, broadly it can be summarized that if it is pure and simple election dispute or doubt about it, the Registrar even when exercising power under Section 3 or 4, has to refer it to Prescribed Authority for decision under Section 25 in case the challenge is on the grounds mentioned therein. But, if one fourth members want it, he has no option but to refer it. Merely because operative portion simply registers the list, it would not prevent the court from examining what is the real dispute. However, the Registrar for its own administrative functions can at his level find out the genuineness of the list of office bearers or whether the person was actually a member or not because he cannot be a mere rubber stamp but can incidentally examine the authenticity of the elections. Thus, it would have to be examined whether there was a bonafide dispute which had to be referred to Prescribed Authority or whether it was namesake dispute only for the purpose of ousting the jurisdiction of the Registrar.
18. Sri Ram Adhar is the founder President of the Society and admittedly he was the outgoing President. Sri Sarvesh Kumar contended that by election notice dated 16.7.2001 signed and issued by Ram Adhar, the election meeting was fixed for 24.7.2001 when Ram Adhar was elected as President while he was elected as Manager. Sri Sarvesh Kumar has not challenged the authority of Ram Adhar for issuing the election notice. Sri Ram Adhar had set up a case that Sarvesh Kumar was not even a member of the Society, but certain documents relating to renewal were lost at the shop of Sarvesh Kumar who misutilized it to get a fraudulent renewal on the basis of election dated 24.7.2001. He has further averred that he neither signed or issued the election notice dated 16.7.2001 nor any elections were held on 24.7.2001 and all his signatures were forged and fabricated by Sarvesh Kumar. He also produced the entire record of the Society in original and appeared before the Assistant Registrar alongwith Jai Singh, Jagannath Pratap Rao, Ganesh Prasad, Swami Nath Prasad, Suresh Prasad Gupta, the members and office bearers, in person. It would be crucial to note that Sarvesh Kumar did not produce any record in original before the Assistant Registrar or any member or office bearer, except of course, Sri Gauri Shankar, who had earlier been removed for hobnobbing with Sarvesh Kumar. All the alleged notarial affidavits were denied by Ram Adhar and Ors. in person before Assistant Registrar.
19. After perusing the documents and after hearing all, the Assistant Registrar has recorded a finding that the very basis of the case of Sarvesh Kumar, the election notice and the election itself were forged and fraudulent. If the Assistant Registrar has found that the very foundation of the claim of Sarvesh Kumar was standing on forged documents and fraudulent actions, can it still be said that there was some doubt in his mind about the claim of Sarvesh Kumar? or, can it be said that since it involved an election/the Registrar had to close his eyes and just rubber stamp it to refer it to Prescribed Authority in spite of the findings? Once the Assistant Registrar found the proceedings of election of Sarvesh Kumar was the outcome of fraud, he rightly did not refer it to Prescribed Authority as there was neither any doubt or bonafide election dispute. Action on fraud neither has any limitation nor attaches any finality. Any order or action based on fraud is liable to be set aside by the said authority under its inherent power at any time. Such action or order for all purposes is non est. Thus, such action or order is nullity, apart from being liable to be quashed even in collateral proceedings, would also render all consequential action or order 'stillborn.' The petitioner has been unable to successfully challenge the findings recorded by the Assistant Registrar.
20. In spite of these findings, the petitioner is still not remediless. He can approach the Assistant Registrar alongwith one fourth members of the Society and get a reference made to the prescribed authority.
21. For the reasons given hereinabove and on the facts and circumstances as noted, I do not find that this is a fit case for interference under Article 226 of the Constitution of India. Rejected.