Heard learned counsel for the petitioners, learned Standing Counsel appearing for the State and Sri H.G.S.Parihar, Senior Advocate assisted by Sri G.M. Kamil, learned counsel for respondent no.4.
A preliminary objection has been filed by respondent no.4 as to the maintainability of the writ petition stating therein that since petitioner no.2 is neither Manager nor Secretary of the committee of management of the society, as such he could not file this petition alleging himself to be the Secretary of the committee of management of the society. It has also been stated that no valid resolution of the committee of management of the society has been filed authorizing the petitioner no.2 to file this petition thus on these grounds, the petition is liable to be dismissed.
So far as the locus of the petitioner no.1 to institute these proceedings under Article 226 of the Constitution is concerned, the same will have no relevance for the reason that basic dispute raised by the petitioner no.2 is in respect of acceptance of his alleged resignation. The resignation accepted and acted upon by the society which has been recognized by the Deputy Registrar is the issue raised, hence the petitioner no.2 is entitled to institute this petition.
The objection regarding maintainability raised by learned counsel for the respondent no.4 is, thus, overruled.
Since this Court in the judgement to follow does not propose to adjudicate upon any factual aspect of the matter and the legal issue as to the jurisdiction of the Registrar/Deputy Registrar under Section 4 read with Section 25 (1) of the Societies Registration Act, 1860 (hereinafter referred to as ''Act') is to be considered, hence for deciding such an issue, no counter affidavit would be required. To this proposition, learned Standing Counsel as well as learned counsel for respondent no.4 do not object.
The petitioner no.2 indisputedly was working as Manager of the society known as "Darul Uloom Ahle Sunnat Gulshane Tayaba Bantheehwa Bhinga, District Shrawasti". On an application preferred by the petitioner dated 02.07.2015 containing the list of office bearers of the committee of management of the society for the year 2015-16, the same was registered/admitted by the Deputy Registrar, Faizabad Division, Faizabad vide his order dated 09.07.2015, which has been annexed at page 39 of the writ petition as part of annexure no.3. In the said list admitted by the Deputy Registrar on 09.07.2015, the petitioner is shown to be the Manager.
The controversy, however, arose on the alleged resignation dated 06.07.2015 said to have been submitted by the petitioner to the President of the society, a copy of which has been annexed at page 38 of the writ petition. The general body of the society is said to have met on 12.07.2015 after the alleged resignation submitted by the petitioner on 06.07.2015 and in his place one Sri Kamruddin Khan-respondent no.4 is said to have been elected. The said resolution dated 12.07.2015 recites that rest of the members of the committee of management shall remain that would mean that Sri Kamruddin Khan-respondent no.4 was elected for the remainder period of the term of committee of management. The respondent no.4 thereafter appears to have written a letter on 27.07.2015 informing the Deputy Registrar, Faizabad Division, Faizabad about the proceedings of the meetings of the general body of the society alleged to have been held on 12.07.2015 and on this said basis a new list of the committee of management of the society for the year 2015-16 was presented.
At this juncture, it is noticeable that merely a month ago i.e. 09.07.2015, a different list of the committee of management which comprised of the petitioner as Manager was admitted by the Deputy Registrar and as such at the time of admitting the list submitted by the respondent no.4 by means of the order dated 05.08.2015, the Deputy Registrar ought to have been cautious for which he has been adequately empowered under the proviso appended to Section 4 of the Act which requires presentation and admission of annual list of managing body of the society. Proviso appended to Section 4 of the Act prescribes that if the managing body of the society is elected after the last submission of the list, counter signatures of the old members shall, as far as possible, be obtained on the list and if the old office bearers do not countersign the list, the Registrar may, in his discretion, issue a public notice or notice to such persons as he thinks fit inviting objections. The discretion, thus, given to the Registrar under the proviso appended to Section 4 of the Act, in case the old office bearers do not countersign the list is to be exercised by the Registrar/Deputy Registrar depending on the circumstances which comes for his consideration. In a situation like the present case as presented where the Deputy Registrar passes an order dated 05.08.2015 admitting another list of the members of the committee of the management merely a month after he had already admitted a separate and distinct list of the members of the committee of the management on 09.07.2015, in my considered opinion, the Registrar was duty bound to have issued a public notice and also notice to at least the petitioner whose name was found missing in the list submitted by the respondent no.4 on the basis of alleged resignation and the proceeding of general body of the society which is said to have been held on 12.07.2015.
Admittedly, no such public notice or notice to the petitioner or for that matter notice to any of the members of the committee of management who were admitted vide order dated 09.07.2015 was issued.
The petitioner appears to have raised an objection before the Deputy Registrar on the list recognized/admitted by the Deputy Registrar by means of the letter dated 05.08.2015 which has led the Deputy Registrar to proceed afresh in the matter and pass the impugned order.
By the impugned order based on analysis of the evidence which was led by the parties before the Deputy Registrar, the Deputy Registrar has concluded that the factum of resignation having been submitted by the petitioner is established and accordingly he has further held that the meeting of the general body of the society was held on 12.07.2015 which had occasioned to furnish another list of the members of the committee of management and as such has recognized the list so furnished by the respondent no.4.
The question at this juncture is as to whether in a situation where the resignation of an office-bearer or a member of the committee of management of the society is in dispute, the Deputy Registrar/Registrar has jurisdiction and authority to determine the said issue exercising his powers under Section 4 of the Act or he, in such a situation, has to refer the matter for its resolution to the Prescribed Authority under Section 25 (1) of the Act.
Section 4 of the Act requires every society once in a year or on or before the fourteenth day succeeding the day on which annual general body of the society is held to furnish a list with the Registrar/Deputy Registrar of the names, addresses and occupations of the members of the governing body of the society by whichever name it is called which is entrusted with the management of the affairs of the society. Thus, it is the duty of the society to furnish and submit the annual list of members of the managing body to the Registrar who is expected to register/admit the same for his record.
The proviso appended to Section 4 envisages a situation where there might arise some dispute as to the membership of the governing body and in such a situation, the Registrar has been vested with the authority in his discretion to issue a public notice or a notice to such persons as he thinks fit inviting objections for the purposes of resolution of the dispute relating to the list presented for the same.
The registration or admission of list presented under Section 4 of the Act is, thus, a requirement created by the statute itself and that needs to be observed and followed by the Registrar. The purpose of admission/registration of such a list by the Registrar/Deputy Registrar appears to be maintenance of record of the committee of management of the societies which are under the supervision of the Registrar/Deputy Registrar.
Section 25 (1) of the Act provides a statutory forum in the form of prescribed authority in respect of disputes regarding election of office-bearers. Section 25 (1) is extracted herein below:-
25. Dispute regarding election of office-bearers-(1) The prescribed authority may, on a reference made to it by the Registrar or by at least one-fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office-bearer of such society, and may pass such orders in respect thereof as it deems fit :
Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied-
(a) that any corrupt practice has been committed by such officebearer ; or
(b) that the nomination of any candidate has been Improperly rejected ; or
(c) that the result of the election in so far it concerns such office-bearer has been materially affected by the improper acceptance of any nomination or by the Improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with the provisions of any rules of the society.
Explanation I.--A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person-
(i) includes, or attempts to induce, by fraud intentional misrepresentation, coercion or threat of injury, any elector to give or to refrain from giving a vote in favour of any candidate, or any person to stand or not to stand as, or to withdraw or not withdraw from being a candidate at the election ;
(ii) with a view to inducting any elector to give or to refrain from giving a vote in favour of any candidate, or to inducing any person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at the election, offers or gives any money, or valuable consideration, or any place of employment, or holds out any promise of individual advantage or profit to any person ;
(iii) abates (within the meaning of the Indian Penal Code) the doing of any of the acts specified in clauses (i) and (ii) ;
(iv) induces or attempts to induce a candidate or elector to believe that he, or any person in whom he is Interested, will become or will be rendered an object of divine displeasure or spiritual censure ;
(v) canvasses on grounds of caste, community, sect or religion ;
(vi) commits such other practice as the State Government may prescribe to be a corrupt practice.
Explanation II.--A 'promise of individual advantage or profit to a person' includes a promise for the benefit of the person himself, or of any one in whom he is interested.
Explanation III.--The State Government may prescribe the procedure for hearing and decision of doubts or disputes in respect of such elections and making provision in respect of any other matter relating to such elections for which insufficient provision exists in this Act or in the rules of the society.
A perusal of the aforequoted provisions of Section 25 (1), without any ambiguity or uncertainty, establishes that on a reference made to the Prescribed Authority by the Registrar which will include the Deputy Registrar as well or by at least one-fourth of the members of the society, the Prescribed Authority shall hear and decide any doubt or dispute in respect of two situations; (1) election or (2) continuance in office of an office-bearer of such society. Thus, Section 25 (1) of the Act can be invoked at the instance of the Registrar/Deputy Registrar himself or at the instance of one-fourth members of the society.
It is further noticeable that this provision can be invoked in two situations; (1) where any doubt or dispute has arisen in respect of election of office-bearers or (2) their continuance in office. The doubt or dispute relating to continuance in office of an office-bearer can arise in a case where election of the committee of management is being doubted or disputed. However, it can also arise in a situation where the election of the committee of management is not in dispute, such as in the case of resignation by an office-bearer of the committee of management or his death and consequent upon resignation or death nomination of election of another office-bearers in place of the person who resigns or is dead for the remainder period of the committee of management. These are only two illustrative situations where continuance in office of an office-bearer may be doubted or disputed even without doubting the elections. There may be other situations where such an occasion may arise.
Sri H.G.S. Parihar, Senior Advocate assisted by Sri G.M.Kamil, learned counsel appearing on behalf of respondent no.4 has, however, submitted that the doubt or dispute in respect of continuance in office of an office-bearer of the society can arise only if such a doubt or dispute in respect of the election precedes. His submission is, thus, that in case the election of the committee of management of the society is not found to have been held lawfully, continuance in office of the said elected members would be doubtful and disputed and Section 25 (1) of the Act envisages a reference to be made to the Prescribed Authority only in such a situation and not in any other situation arising otherwise. In support of his submission, he has taken the Court to the provisions contained in the proviso and Explanations I,II and III appended to Section 25 (1) of the Act and has stated that there are grounds available to the Prescribed Authority for setting-aside the election which are enumerated in the proviso appended to Section 25 (1) of the Act and as such in case the Prescribed Authority is held to be entitled and empowered to decide a doubt or dispute in relation to continuance in office of an office-bearer without making any decision regarding election of the committee of management, the proviso and Explanations I, II and III will be rendered otiose.
I am afraid, I cannot agree with the submissions made by learned Senior Advocate in this regard.
The proviso and the Explanations available therein appended to Section 25 (1) of the Act will be put to service by the Prescribed Authority while deciding the question regarding doubt or dispute in relation to elections. The said provision will have no application in case the Prescribed Authority is called upon to decide a dispute or doubt in respect of continuance in office of an office-bearer of the society.
As observed above, Section 25 (1) of the Act encompasses in its fold two situations where the Prescribed Authority can be called upon by way of making reference as per the prescriptions available under Section 25 (1) of the Act to decide the dispute in a summary manner and the two situations are; (1) in case of dispute and doubt relating to election and (2) in case of dispute or doubt in respect of continuance in office of an office-bearer of the society.
Submission of learned counsel for the respondent no.4 is that rest of the provision of Section 25 (1) of the Act will be rendered otiose in case the power of the Prescribed Authority is not confined to decide the election dispute and resultant continuance in office of an office-bearer of the society, the rest of the provision shall be rendered otiose does not hold water for the reasons aforesaid.
For resolving a dispute or doubt in respect of continuance in office of an office-bearer of the society, recourse need not be taken to proviso and Explanations appended to Section 25 (1) of the Act. Such a dispute has to be decided on the basis of evidence which may be led by the parties for and against continuance in office of an office-bearer of the society. In such a situation, the Prescribed Authority will not be called upon to declare continuance in office of an office-bearer of the society only on the grounds which are found in the proviso appended to Section 25 (1) of the Act.
If the facts of the present case are tested on the touchstone of aforesaid legal proposition, I have no hesitation to hold that the matter ought to have been referred by the Deputy Registrar, Faizabad Division, Faizabad to the Prescribed Authority as a dispute in relation to continuance in office of the petitioner as also that of respondent no.4 as Manager had arisen on the objection filed by the petitioner. The Deputy Registrar himself could not have decided the said dispute; rather he ought to have referred the matter to the Prescribed Authority in terms of Section 25 of the Act. The aforesaid conclusion is supported by the view taken by this Court in various cases, such as in the cases of Sarrafa Committee, Panchayati Dharamkanta,Mathura vs. State of U.P. and others, reported in 2011 (3) AWC 2409, Gram Shiksha Sudhar Samiti, Junior High School, Sikandra District Kanpur Dehat and another vs. Registrar, Firms Societies and Chits, U.P. Lucknow and others, reported in (2010) 3 UPLBEC 2522, Abhay Grasth Gramin Jan Sangathan Kusmikhalan and another vs. Assistant Registrar, Firms Societies and Chits, Varanasi Region, Varanasi and another, reported in (1990) 1 UPLBEC 480, Maha Narayan Pandey and others vs. Registrar, Chit Funds, Firms and Societies, U.P. Lucknow and others, reported in 1984 ALL. L.J. 583 and Vijai Narain Singh vs. Registrar, Firms Societies and Chits Registration, U.P. Lucknow and others, reported in (1981) UPLBEC 308.
For the discussions made and reasons given above, the writ petition deserves to be allowed, which is hereby allowed and the impugned order dated 07.10.2016 passed by the Deputy Registrar, Firms, Societies and Chits, Faizabad is hereby quashed. The Deputy Registrar is directed to refer the entire dispute to the Prescribed Authority within a week from the date he receives a certified copy of this order. The Prescribed Authority thereafter will decide the dispute in terms of Section 25 (1) of the Societies Registration Act within two months. It is also directed that the Prescribed Authority while deciding the matter shall provide opportunity of hearing to all concerned including the petitioner no.2 and respondent no.4.
There will be no order as to costs.
Order Date :- 5.12.2016 Renu/-