Heard Sri Dhruva Narayan, learned counsel for the petitioner, Sri Ashok Khare, learned senior counsel for the respondent Nos. 1 and 2 and learned standing counsel for the respondent Nos. 3 to 5.
The petitioner claims himself to be a trustee of the society, namely, Vidya Bal Mandli, Meerut. According to the petitioner, the bye-laws as existing prior to the impugned amendments categorically provided for the constitution of the board of management in terms of the bye-laws, copy whereof is annexure-2 to the writ petition.
According to the petitioner the very constitution of the board of management under Clause-7 of the bye-laws is invalid and not in accordance with the same and, therefore, an illegally constituted board of management has no authority to propose any amendment or take any action on behalf of the society. Sri Dhruva Narayan has taken the court through Clause-7 read with Clause-5 of the bye-laws to contend that there are four categories of members and these four categories, in proportion to their ratio as defined under Clause-7 are entitled to be included for the purpose of constituting the board of management. It has been stated by the petitioner in paragraph 5 to 8 of the writ petition that the board of management firstly lacks representation of the respective categories and further the board, which is currently functioning, having not been constituted lawfully, is not entitled to carry out the amendments.
It is for this purpose that objections were raised by the petitioner before the Registrar Firms, Societies and Chits, Lucknow who vide order dated 15th November, 2011 directed the Assistant Registrar, Saharanpur to make an inquiry into the said allegations and to submit a report within one month.
The Deputy Registrar thereafter appears to have issued a notice on 3rd December, 2011 calling upon the Secretary of the society to provide the relevant information as contained therein. While issuing the said notice, the Assistant Registrar simultaneously directed the respective bankers of the petitioner society not to allow the operation of the accounts till the said inquiry is completed.
The respondent Nos. 1 and 2 assailed the said action of the Deputy Registrar in Writ Petition No.73581 of 2011 and this Court passed the following interim order on 19.12.2011:
"By the order dated 15.11.2011, the Registrar Firms Societies & Chits, U.P., Lucknow has asked the Assistant Registrar Firms Societies & Chits Railway Road, Saharanpur to produce the inquiry report within one month. While issuing the notice to the petitioners in respect of making inquiry vide letter dated 3.12.2011 the Assistant Registrar Firms Societies & Chits Railway Road, Saharanpur has stopped the operation of the bank accounts in Punjab National Bank Branch E.K. Road, Meerut of Vidya Bal Mandli, Meerut and others.
Learned counsel for the petitioners submitted that while making the inquiry the Assistant Registrar Firms Societies & Chits Railway Road, Saharanpur has no jurisdiction to stop the operation of the bank accounts.
The submission of the learned counsel for the petitioners has substance.
Learned Standing Counsel appears on behalf of respondent nos. 1 to 3. Issue notice to respondent no.4. All the respondents may file counter affidavit within four weeks. Rejoinder affidavit may be filed within two weeks thereafter.
List thereafter.
Till the next date of listing, the operation of the direction of the Assistant Registrar Firms Societies & Chits Railway Road, Saharanpur stopping the operation of the bank accounts of Vidya Bal Mandli, Society, Vidya College of Engineering School of Business, Vidya Institute of Fashion Techonology, Vidya Institute of Creative Teaching, Vidya Institute of Training and Development, Vidya Institute School of Business and Vidya Global School shall remain stayed. The Assistant Registrar Firms Societies & Chits Railway Road, Saharanpur is directed to proceed and make inquiry as desired by the Registrar Firms Societies & Chits, U.P., Lucknow and submit the same within the stipulated period."
The said writ petition was, however, dismissed as withdrawn on 13th July, 2012 which order is quoted hereinafter:
"This application if for withdrawing the Writ Petition. There is no objection against this application by the learned counsel for the opposite party.
The application is allowed.
The Writ Petition is dismissed as withdrawn."
The Deputy Registrar submitted a report which is annexure-8 to the writ petition whereafter the matter was pending and in between the respondents appear to have moved the impugned amendments on 6th July, 2012. The Deputy Registrar Firms, Societies and Chits, Meerut vide order dated 9th July, 2012 has accepted the said amendments on record which is under challenge before this Court. Sri Dhruva Narayana states that this order is in violation of principles of natural justice without putting the petitioner to notice who had earlier filed the objections. He contends that the Deputy Registrar has acted malafidely and without authority in law in proceeding to accept the said amendments.
Replying to the aforesaid submissions Sri Khare submits that the issue relating to the complaint made by the petitioner is basically founded on the alleged unlawful constitution of the board of management and, therefore, this can only be looked into by the Prescribed Authority under Section 25 of the Societies Registration Act as the Deputy Registrar has no power to dissolve the committee of management. He further submits that even otherwise seriously disputed questions of fact have been raised and, therefore, the petitioner should be relegated to the remedy of a suit. He further submits that there is no occasion for the petitioner to raise a challenge now, inasmuch as the petitioner himself is a member of the same Board of Trustee, and he did not raise any dispute relating to the constitution of the board of management for almost three years after its constitution in 2008. He, therefore, submits that since the petitioner is not on even terms with any of the other members he has now generated this dispute to dissolve the committee. He further submits that so far as the constitution of the board of management is concerned there being no other member apart from the existing members, it is not possible even otherwise to constitute a different committee of management from such category of members who have not been enrolled as alleged by the petitioner.
Sri Dhruva Narayana in rejoinder submits that if the constitution itself is invalid, then in that event the Registrar would be justified in rejecting any action including amendments as proposed by the respondents and, therefore, he submits that in the background of the case and the status of the existing members it is evident that if this committee is allowed to continue then the aims and objects of the society would never be fulfilled.
Learned Standing Counsel has also submitted that the Deputy Registrar has found the complaints to be not worth accepting and, therefore, the order does not deserve any interference.
Having heard learned counsel for the parties, it is true that the Registrar while making an inquiry has wide powers under Section 24 of the Societies Registration Act, 1860 and, therefore, in the event there are any irregularities, the same can be examined under the aforesaid powers conferred on the Registrar.
However, an inquiry on that score if undertaken, cannot spill over and usurp the powers specifically conferred under the act on the Prescribed Authority. In other words what can be looked into under Section 25 of the Act would stand precluded from being adjudicated under Section 24 of the Act. In the opinion of the Court the validity of the amendments and any objections relating to the functioning to the board of management would be directly dependent upon the valid constitution or otherwise of the board of management. In such circumstances, in the opinion of the Court, it is the Prescribed Authority under Section 25 of the Societies Registration Act who will have to determine the validity and status of the board of management. according to the bye-laws of the society read with the provisions of the 1860 Act. The words used by the legislature in Section 25, to my mind, are clear that any doubt or dispute with regard to elections or continuance of the office bearers have to be adjudicated by the Prescribed Authority.
Sri Dhruva Narayana submits that this is not a dispute relating to the elections, and the constitution ex-facie does not conform to the bye-laws. It is ultra vires to the bye-laws itself and, therefore, the issue of continuance does not arise.
I am unable to agree inasmuch as if the forum has been created by the legislature then the dispute touching continuance or valid constitution should be allowed to be adjudicated by the forum so provided under Section 25 of the Act. I have already taken this view in a recant decision reported in 2012 (8) ADJ Page 385 (Paragraph Nos. 25 to 28) Christ Church College Society Vs. State of U.P. following the decision in the case of All India Council Vs. State AIR 1986 Alld. 236. The Apex Court in the case of K.S. Saini Vs. Delhi High Court reported in 2012 Volume 4 SCC Page 307 paragraph 23 has ruled as under:
"23. When a statute gives a right and provides a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act. When an Act creates a right or obligation and enforces the performance thereof in a specified manner, "that performance cannot be enforced in any other manner". Thus for enforcement of a right/obligation under statute, the only remedy available to the person aggrieved is to get adjudication of rights under the said Act. (See Doe d. Bishop of Rochester v. Bridges, B & AD p. 859, Barrachlough v. Brown, Premier Automobiles Ltd. V. Kamlekar Shantaram Wadke and Sushil Kumar Mehta v. Gobind Ram Bohra.)"
The said ratio of the decision of the Apex Court leaves no room for doubt that if a remedy is provided for adjudication of a dispute then the statute will be presumed to have created a right or otherwise for the redressal of such a dispute under the statute itself and the aggrieved party has to avail that remedy.
In the circumstances I find that Section 25 is clearly attracted so far as the primary dispute raised by the petitioner is concerned and I am supported in my view by a Division Bench Judgment of this Court in the case of Vijai Naraian Singh Vs. Registrar Firms, Societies and Chits Registration, U.P. Lucknow and others reported in 1981 UPLBEC Page 308 which has been followed in several other decisions thereafter.
Apart from this, the petitioner happens to be a member of the same body and he has come up after 3-1/2 years of the constitution of the body which was created in 2008. The petitioner was very much part of the same at the time of its creation. The petitioner did not raise any objection at that point of time for reasons best known to him. Even assuming that the arguments of Sri Dhruva Narayana have force, I am not inclined to entertain this petition because of the above and accordingly relegate the petitioner to the alternative remedy for the redressal of his grievances. The said remedy is speedy and efficacious.
The prescribed authority in the event is apprised of this order along with an application, he shall proceed to summon the records from the office of the Deputy Registrar concerned and thereafter proceed to decide the dispute in accordance with law in the light of the observations made hereinabove preferably within a period of three months thereafter.
The writ petition is accordingly disposed of.
Order Date :- 6.9.2012 Manish