1. This writ petition is directed against the order passed by the Deputy Registrar, Firms, Societies & Chits, Agra (for short, "the Registrar") dated 21 April 2006, whereby he has directed Sub Divisional Magistrate, Sadar, Firozabad to hold the fresh election of the office bearers of the Society under Section 25(2) of the Societies Registration Act, 1860 (Act No. 21 of 1860).
2. The essential facts are; the petitioner no. 1, Islamia School Firozabad Association, is a Society registered under the provisions of the Act No. 21 of 1860. The Society has established an educational Institution, Islamiya Inter College in Firozabad (for short, "the Institution"). The renewal of certificate of the Society has been made from time to time. The Intermediate College is recognized by the Board of High School and Intermediate Education. Its affairs are governed by the provisions of U.P. Intermediate Education Act, 1921 (U.P. Act No. II of 1921) and by an approved Scheme of Administration. The general body of the Society elects the office bearers of the Committee of Management for the Institution. The election of the Society was held on 14 September 2002. Its term is five years. In the said election the petitioner no. 2 was elected as Secretary and Syed Naved Mukarram was elected as President.
3. It appears that the President of the Society Syed Naved Mukarram made a complaint to the Registrar. Taking cognizance of the said complaint the Registrar issued a notice dated 10.11.2005 to the concerned parties and the matter was heard on 21.01.2006, 20.02.2006 and 12.04.2006. Thereafter the 18 April 2006 was fixed for submission of the evidence/ documents. Before the Registrar some of the members had filed their personal affidavits that no election was held on 14 September 2002. It was also contended before the Registrar that the proper notice was not sent to all the members, and in the election which was held on 14 September 2002 the notice was sent under UPC and out of 191 members 60 members have participated in the election. The Registrar also doubted the date of the notice, which was sent to the members and on this ground he directed to the Sub Divisional Magistrate, Sadar, Firozabad to hold the fresh election of the Committee of Management.
4. A counter affidavit has been filed by the respondent nos. 1 and 2. It is stated that the petitioner being the Secretary/ Manager of the Society had moved an application for renewal of Society for further five years. It is further stated that the President of the Society Syed Naved Mukarram had made a complaint to the Registrar, who was elected in the election dated 14 September 2002. Therefore, the dispute with regard to the election of the Committee of Management cannot be decided by the Registrar. Paragraph-5 of the counter affidavit reads as under;
"5. That the contents of the Paragraph No. 11 of the counter affidavit are denied and in reply thereof it is submitted that the complaint was filed by Syed Naved Mukarram, not by the Deputy Registrar. It is to further submit that Syed Naved Mukarram was himself elected as President of the Society in the election dated 14th September, 2002."
5. Sri Ashok Khare, learned Senior Advocate submits that the Registrar has no jurisdiction under Section 25(1) of the Societies Registration Act, 1860 (Act No. 21 of 1860) to decide the dispute of the office bearers of a Society. He further submits that the findings recorded by the Registrar that the last election was held in the year 1998 is also illegal as the election was held in the year 1997. He further submits that the petitioners had filed a detailed objection before the Registrar, which has been brought on the record as annexure-9 to the writ petition. But the same has not been considered by him.
6. Sri Khare has placed reliance of on a judgement of this Court in the case of Committee of Management, Anjuman Kherul Almin Allahganj and another v. State of U.P. and others, 2014 (1) ADJ 44 (DB); and Gram Shiksha Sudhar Samiti, Junior High School, Sikandra, District Kanpur Dehat and another v. Registrar, Firms, Societies and Chits, U.P. Lucknow and others, Special Appeal No. 1089 of 2010, decided on 13th July, 2010.
7. Sri R.K. Ojha, learned Senior Advocate submits that the Registrar is not a post office. He can determine the validity of election. He is not bound to refer frivolous disputes to the Prescribed Authority. The bye-laws of the Society provides a detail procedure for election. He further submits that the notices were sent through UPC (Under Postal Certificate), which cannot be treated to be a valid notice.
8. Sri Ojha has placed reliance on a judgements of Committee of Management, Kisan Shiksha Sadan, Banksahi, District Basti and another v. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and another, 1995 (2) UPLBEC 1242; and Kranti Kumar Chaturvedi and another v. District Inspector of Schools, Kanpur Dehat and others, 1995 (3) ESC 166.
9. I have considered the rival submissions of the respective parties and perused the record.
10. At the time of moving of this writ petition, this Court on 05 May 2006 after hearing both the learned Counsel for the parties had stayed the operation of the impugned order passed by the Registrar on 21 April 2006. The undisputed election of the Society is stated to be held on 15 September 1997. In the said election it is stated that petitioner no. 2 was elected as Secretary and Syed Naved Mukarram was elected as President. This fact has not been denied in the counter affidavit by Syed Naved Mukarram, who has filed his counter affidavit in the writ petition. The term of the office bearers was five years.
11. In the fresh election, which is stated to be held on 14 September 2002, it is averred that the petitioner no. 2 and Syed Naved Mukarram were again elected as Secretary and President respectively. The dispute arose on a complaint made by the President Syed Naved Mukarram to the Registrar that the election held on 14 September 2002, wherein he was elected as President, was illegal. The Registrar taking cognizance of the said complaint had issued notice to the petitioner, who had filed a detail representation on 17 April 2006. A copy of the said representation is on the record as annexure-9 to the writ petition. The said representation runs into five pages and alongwith it several documentary evidences are enclosed.
12. The Registrar, without adverting to the objections filed by the petitioners, has set aside the election dated 14 September 2002. From the perusal of the complaint made by Syed Naved Mukarram it is evident that he has raised the dispute with regard to the office bearers of the Society. The Registrar, while registering the list of the office bearers on administrative side, can prima facie satisfy and consider the validity of the election but in the instant case the Registrar has not exercised his power under Section 4 of the Act No. 21 of 1860 but he has proceeded on the basis of the complaint made by one of the office bearers of the Society with regard to the validity of election.
13. The jurisdiction of the Registrar / Deputy Registrar/ Assistant Registrar under Sections 4 and 25(1) of the Act No. 21 of 1860 has been considered by this Court in a series of decisions. The Section 25(1), as applicable in State of U.P., reads as under;
"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-bearers 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 office- bearer; 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) induces, or attempts to induce, by fraud, international misrepresentation, coercion or thereat 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 to withdraw from being, a candidate at the election;
(ii) with a view to inducing any elector to give or 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 or employment, or holds out any promise of individual advantage or profit to any person;
(iii) abets (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 make 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."
14. The dispute, in respect of the election or continuance in the office of an office bearer or any doubt with respect to the same, the matter may be referred by the Registrar or by at least one-fourth of the members of a society to the Prescribed Authority, who shall hear it and decide in summary manner. The said view has been taken by this Court consistently in the case of Vijai Narain Singh v. Registrar, Firms, Societies and Chits Registration, U.P. Lucknow and others, 1981 UPLBEC 308; All India Council and another v. Assistant Registrar, Firms, Societies and Chits, Varanasi Region, Varanasi and another, AIR 1988 All. 236; and Committee of Management, Church City Junior High School and another v. State of U.P. and others, (2012) 4 UPLBEC 3151. The aforesaid cases have been consistently followed up to the year 1995.
15. The first divergent view was taken by a Division Bench of this Court in the case of Committee of Management, Kisan Shiksha Sadan, Banksahi, District Basti and another v. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and another, 1995 (2) UPLBEC 1242, and thereafter in the case of Shiksha Parishad, Nagwa and another v. Dy. Registrar, Firms, Societies and Chits, Faizabad and another, 1998 (32) ALR 360.
16. A Division Bench in Kisan Shiksha Sadan, Banksahi (Supra) took a view that if there is a dispute of the membership or the complaint made to the Registrar shows that a person, who has raised the dispute is not member, in the said event the Registrar can decide the dispute himself and there is no need to refer the matter to the Prescribed Authority. This view has been followed in several cases on similar facts. In the case of C/M Gyan Bharti Shiksha Sadan and another v. State Of U.P. Thru Secy. and Others, Writ-C No. - 15676 of 2012, this Court has analysed the divergent view taken by the Division Bench on this issue. The Court after considering the large number of judgements of this Court came to hold as under;
"A close look at the scheme of the Societies Registration Act, as applicable in the State of Uttar Pradesh, makes it manifest that the Registrar has been given wide power, such as, under Section 3A of the Societies Registration Act for renewal of certificate of registration; under Section 4 to register the annual list of the Managing body; under Section 4A (U.P. amendment) intimation to the Registrar regarding the change etc. in rules; under Section 12-A power to approve change the name of the Society; under Section 12-B in respect of change of name and object of the Society; and, under Section 12-D power to cancel registration in the certain circumstances. Under Section 22 the Registrar is empowered to call for information, and under Section 23 he can direct the society to furnish its account or copy of the statement of receipts and expenditure for any particular year duly audited by the Chartered Accountant. Section 24 also empowers the Registrar in directing the investigation of affairs of the Society and under Section 25 he has power to refer the dispute of the election or for continuance of the office-bearers to the Prescribed Authority.
The powers conferred under the aforesaid sections clearly demonstrate that the Registrar is the principal Executive Officer to exercise his power in respect of the affairs of the Society. Thus, his power under Section 4 cannot be divested only on the ground that some frivolous dispute is raised in respect of the election or continuance of the office-bearers. If there is a dispute of two parallel groups of the society, the Registrar can always examine whether the persons of rival group, who have raised the dispute, are member of the society or not. He can record his prima facie satisfaction in this regard. If he is satisfied that the dispute is genuine and it is a dispute inter se between the members of the society, then he can refer the dispute to the Prescribed Authority. But merely on the basis of fake documents if election has been set up and the matter is referred to the Prescribed Authority, it can cause serious prejudice to the institution established by the Society and the Society itself."
17. From the perusal of the aforesaid judgments, the principle which can be discernible from the said judgment says that while registering the list under Section 4 of the Act, 1860 the Registrar can look into the validity of the elections also because the Registrar has to deal administratively the person whom he is going to recognize as an office bearer.
18. Applying the aforesaid principles in the present case the Court finds that the Registrar has proceeded on the complaint made by the President dated 07 October 2005. The said complaint was in respect of the validity of election, which was alleged to have been held on 14 September, 2002. From the complaint and the contention raised before the Registrar it is evident that the main grievance of the complainant was that the procedure laid down in the bye-laws for holding the elections was not followed thus the entire election was liable to be set aside. The Section 25(1) of the Act No. 21 of 1860 provides that the Prescribed Authority has power to decide in a summary manner about doubt or dispute in respect of election or continuance in the office of office bearers of said Society.
19. Admittedly, Syed Naved Mukarram has raised the dispute in his complaint in respect of the election of the Society. He was admittedly elected President of the Society, so he was not a rank outsider. His membership was not in dispute. Thus the Registrar had no jurisdiction to adjudicate such dispute which clearly falls under the jurisdiction of Prescribed Authority in terms of Section 25(1) of the Act, 1860. Such a dispute can be decided either by a reference made by the Registrar or by at least one-fourth members of the Society.
20. The Registrar has further held that the election was vitiated on the ground that the proper notice was not given to the members and he has also recorded a finding about the signatures of some of the members on the minutes book. He has analysed the various affidavits filed by the parties and concluded that the election was illegal on several grounds.
21. From the findings recorded by the Registrar it is demonstrably established that he has travelled beyond his jurisdiction as the jurisdiction clearly falls with the Prescribed Authority in terms of Section 25(1) of the Act No. 21 of 1860 as applicable in the State of U.P. Thus the Registrar has exceeded his jurisdiction. It was not a frivolous dispute. As stated above Deputy Registrar was not called upon to examine the membership of the persons, who had raised the dispute. Concededly, in C/M Kisan Shiksha Sadan (supra), the Division Bench opined that the Deputy Registrar can examine the validity of membership of the persons, who raised the dispute or those alleged office bearers and not the validity of election held by valid members.
22. In a recent judgement, a Division Bench in the case of Committee of Management, Anjuman Kherul Almin Allahganj and another v. State of U.P. and others, 2014(1) ADJ 44 (DB), had occasioned to consider the jurisdiction of the Registrar under Section 4 and 25(1) of the Act No. 21 of 1860. The Court expressed its view in the following term;
"12. In the present case, a list was submitted by the third respondent, of office bearers under Section 4 for 2013-14. The list was objected too. The Deputy Registrar had conflicting claims between the appellants on the one hand and the third respondent on the other hand. Hence when an application for taking on record the names of the officer bearers was filed and an objection to the validity of the elected office bearers was placed before him, the Registrar ought to have referred the dispute to the Prescribed Authority under Section 25(1). In entertaining the dispute himself and going into merits of the rival claims, the Deputy Registrar has clearly transgressed his jurisdiction. The jurisdiction to decide any doubt or dispute in respect of an election of the office bearers of the Society lies with the Prescribed Authority and the Registrar ought to have made a reference to the Prescribed Authority."
23. In the facts of the present case, the Deputy Registrar has illegally invoked his power under Section 25(2) of the Act No. 21 of 1860. In my view the condition precedent for invoking the power under Section 25(2) is that the term of the Committee of Management must have come to an end. The Registrar in the said event can call a meeting of the general body and take a decision for holding the fresh election. No such meeting was called in terms of Section 25(2) of the Act No. 21 of 1860 and he has directed the Sub-Divisional Magistrate to hold the election. The State Government has notified the Sub-Divisional Magistrate to be Prescribed Authority in the State of U.P.. In the event a reference is made by one-fourth members, the Prescribed Authority hears the dispute of the election or a reference made by the Registrar, therefore, the Sub-Divisional Magistrate, who is the Prescribed Authority under Section 25(1) could not have been directed to hold the election of the Society because he will hear the dispute of the same election. There is no document on the record to indicate that the Sub-Divisional Magistrate, Sadar, Firozabad is not the Prescribed Authority in the present case.
24. Therefore, for the reasons stated hereinabove, I am of the view that the impugned order passed by the Deputy Registrar-respondent no. 2 dated 21.04.2006 is unsustainable and is liable to be set aside. It is accordingly set aside. The respondent no. 2 may pass fresh order in light of law mentioned above, after hearing the parties, expeditiously, but not later than two months from the date of communication of the order.
25. Thus, the writ petition is allowed.
26. No order as to costs.
Order Date :-20.5.2014 DS/-
Hon'ble Pradeep Kumar Singh Baghel,J.
The writ petition is allowed.
For order, see my order of the date passed on the separate sheets (ten pages).
Order Date :- 20.5.2014 DS/-