Heard Shri G.C. Verma, learned counsel representing the petitioners, learned Standing Counsel appearing for respondent nos.1, 2 and 3 and Shri Sandeep Dixit, learned counsel appearing for respondent nos.5 and 6.
The petitioners, alleging themselves to be life members of a Society know as Public Education Association, Ramganj, district Amethi, have instituted these proceedings under Article 226 of the Contitution of India impeaching the order dated 20.10.2015, passed by the Registrar Firms, Societies and Chits, Uttar Pradesh, Lucknow, whereby the application moved by the petitioners for transferring the proceedings from Deputy Registrar, Faizabad Region, Faizabad has been rejected.
The question/issue which has emerged in these proceedings during course of arguments is as to whether the Registrar is empowered to transfer the proceedings from one Deputy Registrar to other Deputy Registrar, in other words, whether the Registrar under the Societies Registration Act, 1860 (hereinafter referred to as ' the Act') is empowered to withdraw the proceedings pending under the Act from one Deputy Registrar or Additional Registrar or Joint Registrar or Assistant Registrar and transfer the same to any other Deputy Registrar, Additional Registrar, Joint Registrar Registrar or Assistant Registrar.
Learned counsel for the petitioners, apart from attacking the reasons indicated by the Registrar in the impugned order for rejecting the application presented by the petitioners seeking transfer of the proceedings from Deputy Registrar, Faizabad, has also vehemently argued that the Registrar being the highest Executive Officer in the State under the Act is legally empowered to transfer the proceedings from one Deputy Registrar to another Deputy Registrar in exercise of his general administrative and supervisory powers. His submission is that since under the scheme of the Act, there may be several Additional Registrars, Deputy Registrars or Assistant Registrars but the Registrar is one who has the jurisdiction over the entire State of Uttar Pradesh and as such he exercises supervisory and administrative control and powers which would include the authority/power to transfer the proceedings from Deputy Registrar/Additional Registrar/Joint Registrar/Assistant Registrar.
Refuting the aforesaid submissions made by the learned counsel for the petitioners, learned counsel appearing for the respondent nos. 5 and 6, Shri Sandeep Dixit has categorically submitted that the Registrar or the Deputy Registrar or Assistant Registrar or Joint Registrar or Additional Registrar exercise various functions and powers under the Act and since these powers and functions being exercised by these officers are co-extensive with those of the Registrar, as such merely because the Registrar is the Head of the Department, it cannot be said that he has the authority to withdraw the proceedings from the Deputy Registrar and to transfer the same to another Deputy Registrar. In support of his submission, he has taken the Court to the scheme of the Act and has emphatically submitted that under Section 21 of the Act the Registrar would mean the Deputy Registrar as well, on whom any of the powers of the Registrar under the Act are conferred by general or special order of the State Government. His submission, thus, is that since the Deputy Registrar discharges the functions and exercises the powers of the Registrar itself and such functions and powers are statutory in nature, it cannot be said that the Registrar is empowered to withdraw the proceedings from his departmental subordinates.
It is in the background of the aforesaid legal submissions that the issue regarding power of Registrar to transfer the proceedings from one Deputy Registrar to another Deputy Registrar has emerged which needs to be addressed in this case.
Before dealing with the said issue certain facts which have been gathered from the pleadings of the respective parties are to be narrated. Against the orders dated 31.03.2015 and 13.01.2014, passed by the Deputy Registrar, a Writ Petition bearing No.1932 (M/S) of 2015 was filed before this Court which was been finally decided on 08.09.2015, whereby the orders impugned in the said writ petition were quashed and the Deputy Registrar was directed to take decision afresh with a further direction that he shall take decision in the matter strictly adhering to the provisions of Section 4-B read with Section 15 of the Act and the bye laws of the Society. All the pleas were left open to the parties to be raised before the Deputy Registrar. The Court while deciding this writ petition on 08.09.2015 had fixed 23.09.2015, on which date, the parties were required to appear before the Deputy Registrar along with original documents which were in their possession in support of their claims.
It has been averred by the petitioners that in compliance of the order dated 08.09.2015, the petitioners moved an application before the Deputy Registrar on 21.09.2015. The said application has been annexed as annexure no.8 to the writ petition which was duly received in the office of Deputy Registrar, Faizabad Region, Faizabad. It has further been stated by the learned counsel for the petitioners that on 21.09.2015 the Deputy Registrar, Faizabad Region, Faizabad uttered certain words against this Court and further told the petitioners that he was impleaded by name in the earlier writ petition and contempt proceedings have also been instituted by the petitioners wherein notices have also been issued against him, as such he is not going to change the earlier order and further that if he alters his earlier order, it will be assumed that he had passed the earlier order unlawfully and that allegations levelled against the Deputy Registrar by the petitioners would be established. Submission by the learned counsel for the petitioners further is that as ordered by this Court in its order dated 08.09.2015, though they again appeared before the Deputy Registrar on 23.09.2015 but the Deputy Registrar was absent in the office on the said date and as such the officer present in his office fixed 29.09.2015 as the next date.
The petitioners have further stated in the writ petition that they gathered an impression that the Deputy Registrar, Faizabad Region, Faizabad will not do justice in the matter. The said impression, it has been stated, is based on the utterances made by the Deputy Registrar on 21.09.2015. In these circumstances, it has been stated, the petitioners preferred an application on 24.09.2015 before the Registrar seeking transfer of the proceedings pending before the Deputy Registrar, Faizabad to some other Deputy Registrar. In the said application dated 24.09.2015 moved by the petitioners before the Registrar, the petitioners reiterated the utterances allegedly made by the Deputy Registrar on 21.09.2015. It has further been stated in the said application that on 23.09.2015 the opposite parties had appeared in the office of the Deputy Registrar and got their statements recorded, though on 23.09.2015 the Deputy Registrar himself was not present. The sum and substance of the application dated 24.09.2015 is that the Deputy Registrar appears to be bear grudge against the petitioners for the reason that in the earlier writ petition he was impleaded in his personal capacity and also because of the fact that in contempt petition notices were issued against him and as such the petitioners did not have any hope of justice from the Deputy Registrar.
The Registrar, in the meantime, was on election duty and the work of the Registrar was being looked after by another Deputy Registrar in the office of the Registrar, who on 12.10.2015 passed an order restraining the Deputy Registrar, Faizabad to take any decision in the proceedings pending before him till disposal of transfer application. The submission made by the learned counsel for the petitioners is that the said order restraining the Deputy Registrar was passed on 12.10.2015 keeping in view the directions issued by this Court in Writ Petition No.5784 (M/S) of 2015, whereby this Court had directed the Registrar that it would be open to the Registrar to transfer the proceedings without being influenced by any observations of this Court, if there were compelling circumstances and the Registrar was satisfied that the ends of justice required transferring the proceedings.
The Registrar thereafter has passed the impugned order on 20.10.2015 after coming back from the election duty.
The submission on the part of the petitioners, as has been advanced by learned counsel, is that the utterances made by the Deputy Registrar on 21.09.2015 form the basis of seeking transfer of the proceedings from him and the Registrar while dealing with the issues raised by the petitioners has not correctly appreciated the same and has rejected the application seeking transfer illegally. It has also been averred by the learned counsel for the petitioners that the reasons given by the Registrar while rejecting the application seeking transfer are not tenable and further that in any case keeping in view the fact that the petitioners have lost any hope or expectation that justice will be done by the Deputy Registrar before whom the proceedings are pending, the Registrar ought to have transferred the case either to some other Deputy Registrar or he could have heard and decided the matter himself.
The foremost question which needs to be decided in this case, as has been observed above, is as to whether under the Act the Registrar is empowered or authorized to transfer the proceedings pending before the Deputy Registrar. The submission on merit regarding grounds for seeking transfer of the proceedings from Deputy Registrar, Faizabad Region, Faizabad needs to be considered only once this Court comes to the conclusion that the Registrar is vested with such a power.
Under the scheme of the Act, the Registrar exercises various statutory functions including the functions and duties assigned to him under Sections 4-A, 4-B, 18, 19, 22, 24 and 25 of the Act. The word 'Registrar' has been defined in Section 21 of the Act to mean a person appointed as such by the State Government. Section 21 in its application to the State of U.P. further provides that a person appointed as Registrar will include an Additional Registrar, a Joint Registrar, Deputy Registrar or Assistant Registrar, on whom all or any of the powers of the Registrar under the Act are conferred by general or special order of the State Government.
Section 21 of the Act is quoted below:-
"21. In this Act, the word "Registrar" means a person appointed as such by the State Government, and includes an Additional Registrar, a Joint Registrar, Deputy Registrar, or Assistant Registrar, on whom all or any of the powers of the Registrar under this Act are conferred by general or special order of the State Government."
Perusal of Section 21 of the Act reveals that apart from the Registrar appointed by the State Government to discharge the functions and duties under the Act, an Additional Registrar or a Joint Registrar or a Deputy Registrar or an Assistant Registrar will also discharge the functions and duties under the Act subject to the condition that these officers are conferred powers of Registrar under the Act by a general or special order of the State Government. Thus, to empower the officers subordinate to Registrar in administrative hierarchy for the purposes of discharging the functions under the Act, conferment of powers of the Registrar by the State Government, by a general or special order is necessary. To run and manage the affairs of the department, the Joint Registrar/Deputy Registrar/Additional Registrar/Assistant Registrar are subordinate to the Registrar, however, in case any function under the Act is conferred by the State Government on these officers, then for the purposes of discharging that function under the Act, these officers cannot be termed to be subordinate to the Registrar for the reason that the Act itself empowers the State Government for conferment of the functions of Registrar on these officers.
So far as the Registrar is concerned, the Legislature itself by enacting the Act has vested certain authority and power in him, however, it is the Legislature itself which has empowered the State Government for conferring the functions of Registrar to an Additional Registrar or a Joint Registrar or a Deputy Registrar or an Assistant Registrar. The Additional Registrar or other such officers who are administratively subordinate to the Registrar, thus, can not exercise any of the functions assigned to the Registrar under the Act merely because they are appointed in the department to hold such posts. They will have their jurisdiction or power vested in them to exercise the functions of Registrar under the Act only and only when the State Government confers such power or authority on these officers by a general or special order. Once conferment by the State Government by a general or special order is made on these officers to discharge the functions and powers of Registrar under the Act, these officers no more remain subordinate to the Registrar so far as discharge of statutory functions under the Act is concerned. Once conferment by the State Government has been made upon these officers, the powers and functions to be exercised by the Additional Registrar/Joint Registrar/Deputy Registrar/Assistant Registrar become co-extensive with the powers and functions of the Registrar. Thus, these subordinate officers, in so far as the statutory functions under the Act as conferred by the State Government are concerned, cannot be termed to be subordinate to the Registrar. The proceedings relating to a Society are drawn and conducted by the Deputy Registrars and such officers under the Act only when the State Government confers such powers on these officers and they conduct their authority and proceedings under the Act and not administratively.
The proceedings which in the present case are pending consideration and for decision before the Deputy Registrar are statutory in nature and they are to be decided as per the requirement and in terms of the provisions contained in Sections 4-B and 15 of the Act. Thus, the Deputy Registrar while dealing with the proceedings in question between the parties in this case is not acting in his capacity as an ordinary administrative officer, rather he has to consider and decide the matter statutorily.
Submission of learned counsel for the petitioner that since there is only one Registrar in the State of Uttar Pradesh and all the Deputy Registrars are his subordinate, as such the Registrar will have ample power, authority and jurisdiction to transfer the proceedings, in my considered opinion, is not tenable for the reason that the nature of proceedings, as observed above, are not administrative in their terms, rather the same are statutory in nature as the proceedings are to be decided as per the requirement of the Act. It may be true that the Registrar in certain administrative matters may exercise certain powers over the Deputy Registrars, however, when it comes to the proceedings under the Act, it cannot be said that the Registrar will have supervisory jurisdiction or power. I may reiterate that the Deputy Registrar and such other officers as are mentioned in Section 21 of the Act are conferred with the powers of the Registrar under the Act by the State Government and once such conferment is in existence, they have the same authority which is at par with that of the Registrar under the Act, in other words, the powers of the Deputy Registrar are co-extensive with those of the Registrar.
It may also be noticed that the State Government by a notification dated 20.07.1981 has established three regional offices in addition to the office of Registrar at Lucknow. These regional offices have been set up at Varanasi, Bareilly and Meerut. The said notification further states that the functions being discharged by the Registrar pertaining the districts falling in the Divisions mentioned in the said notification will be discharged by the offices mentioned in the said notification. The State Government by means of another notification dated 07.01.1982 issued under Section 21 of the Act conferred the powers of Registrar on all the Deputy Registrars and Assistant Registrars. The said notification dated 07.01.1982 is quoted below:
"lkslkbVh jftLVªhdj.k vf/kfu;e 1860 ¼vf/kfu;e la[;k 21 lu 1860½ dh /kkjk 21 ds v/khu 'kfDr dk iz;ksx djds jkT;iky jftLVªkj] QeZ vkSj lkslkbVh] mRrj izns'k ds laxBu ds leLr mi jftLVªkj vkSj lgk;d jftLVªkj dks mi;ZqDr vf/kfu;e ds v/khu jftLVªkj dh leLr 'kfDr;ksa iz;ksx iznku djrs gS] ftudk iz;ksx os viuh&viuh vf/kdkfjrk ds {ks= ds Hkhrj djsxsaA"
By means of another notification dated 31.07.1985, apart from Varanasi, Bareilly and Meerut, regional offices at Kanpur, Agra and Gorakhpur as well were established and the territorial jurisdiction was, thus, distributed. According to said notification, the Registrar at the headquarter at Lucknow was to exercise his jurisdiction on all the districts of Lucknow and Faizabad Divisons, that is to say the Registrar at Lucknow was to exercise his jurisdiction on all the disputes relating to the Societies Registration Act arising in all the districts of Lucknow and Faizabad Divisions. The said jurisdiction of the regional offices was altered by a notification dated 24.01.1987. By means of another notification dated 29.10.1991, the territorial jurisdiction of regional offices was further altered and determined, according to which, the regional office of the department at Faizabad is to exercise the jurisdiction relating to all the districts of Faizabad Division. There was some discrepancy in the english version of the notification dated 07.01.1982 which was rectified by another notification dated 28.07.1994 which reads as under:
"In exercise of the powers under Section 21 of the Societies Registration Act, 1860 (Act no.XXI of 1860) the Governor is pleased to confer on all the Deputy Registrars and Assistant Registrars of the organization of the Registrar of firms and Societies, Uttar Pradesh, all the powers of the Registrar under the aforesaid Act to be exercised within the area of their respective jurisdiction."
On the basis of the occurrence of the words 'buds v/khuLFk {ks=h; dk;kZy;ksa dk dk;Z{ks= fuEukuqlkj fu/kkZfjr djus dh lg'kZ Lohd`fr iznku djrs gS' in the notification dated 29.10.1991, it has been submitted by the learned counsel for the petitioners that all the regional offices are subordinate to the office of Registrar and hence, the officers working in the regional offices will be subordinate to the Registrar as well.
The aforesaid submission of learned counsel for the petitioners may be true but only in respect of and in regard to the general administrative powers which are exercised by the Registrar while working as the Head of the Department, however, the said submission cannot be taken to be correct in so far as the statutory functions under the Act, as conferred by the State Government on these officers including the Deputy Registrar under Section 21, are concerned. The distinction between the statutory functions under the Act and general administrative functions are to be kept in mind while dealing with the submissions being advanced by the learned counsel for the petitioners. There are various functions assigned to the Registrar as Head of the Department in his organization. He will have all the authority and power to exercise his administrative control over the Deputy Registrars. However, unless and untill the Legislature while enacting the Act vests an express authority in the Registrar to transfer the proceedings being drawn and continued under the Act by the Deputy Registrar, in my considered opinion, the Registrar will have no source of power or authority backed by the legislation to withdraw the proceedings from one Deputy Registrar and transfer the same to some other Deputy Registrar.
A close scrutiny of the scheme of the Act does not leave any room of doubt that the Legislature has not vested any authority on the Registrar to transfer the proceedings under the Act from one Deputy Registrar to the other Deputy Registrar. The Registrar may only exercise certain control over the Deputy Registrars administratively such as issuing certain instructions and circulars for the guidance of the Deputy Registrars or taking departmental action in case he receives any complaint.
Assuming that the Registrar, being the highest authority in the department/in his organization, is vested with the power to transfer the statutory proceedings under the Act from one Deputy Registrar to the other Deputy Registrar, it will amount to vesting an authority in the Registrar which the Legislature never intended to vest in him.
Learned counsel for the petitioners has, however, relied upon a Division Bench judgment of this Court in the case of Fahim Ahmad and others vs. State of U.P. and others, reported in [2008 (26) LCD 1109].
Having perused the aforesaid judgment of the Division Bench of this Court, I am of the opinion that the said judgment does not have any application in this case so far as the determination of the issue as to whether the Registrar has been vested with the authority to transfer the proceedings from one Deputy Registrar to another Deputy Registrar is concerned. In the said case, dealing with the powers and authority of the Registrar under the Act, it has been held that the powers of Registrar are also exercisable by the Assistant Registrars or the Deputy Registrars, however, it does not entitle the Registrar to issue any direction to the Deputy Registrar or Assistant Registrar and further that if such a power is assumed by the Registrar, it would be akin to the revisional powers against the decision of the Assistant Registrars or the Deputy Registrars. It has clearly been held in this judgment that once conferment of powers under Section 21 of the Act is made on the Deputy Registrar or the Assistant Registrar, these, officers would function and discharge their duties as Registrar and hence, the Registrar will have no power to interfere with the orders passed by the Assistant Registrar.
Further, I may also note that Section 21 of the Act empowers the State Government to confer the powers on the Deputy Registrar by a general or special order. Such a power vested in the State Government would include, while issuing the general or special order for conferring the power, power to restrict or limit the territorial jurisdiction over which such Deputy Registrar would exercise the statutory functions of the Registrar. It is in consonance with the authority vested in the State Government by Section 21 of the Act that while conferring the statutory functions and powers on the Deputy Registrars of various regions the State Government has limited their jurisdiction which has been confined to the territories falling the districts which are comprised in a particular Division.
Accordingly, if the Deputy Registrar of Division "X" has been conferred with the powers of Registrar by the State Government to exercise the statutory functions within the district falling in Division "X", unless and until the State Government makes conferment of functions of Registrar on a Deputy Registrar of another Division, the Deputy Registrar of the other Division will have no jurisdiction to draw, hear and decide the proceedings under the Act arising in the districts falling in Division "X". In case, it is assumed that the Registrar can transfer the proceedings under the Act from one Deputy Registrar haveing a different territorial jurisdiction to the other Deputy Registrar who is having a different territorial jurisdiction, the same would amount to vesting the powers in the Registrar to make conferment of the powers under the Act which, otherwise, is available only to the State Government. It is, thus, clear that in case the submission being advanced by the learned counsel for the petitioners is accepted, then the Registrar would exercise the powers of conferment under Section 21 of the Act which the Legislature has vested in the State Government. It is the State Government under Section 21 of the Act which is conferer of the power and not the Registrar. Accepting the arguments being raised by the learned counsel for the petitioners would also amount to reading in the Act certain powers in the Registrar which the Legislature has specifically vested only and only in the State Government.
Shri Verma, learned counsel representing the petitioners has thereafter relied on yet another judgment of Hon'ble Single Judge, reported in [2006 (24) LCD 1078], Fahim Ahmad and another vs. State of U.P. and others, and has argued with full force that Hon'ble Single Judge in the said case has clearly held that the Registrar may transfer the proceedings to some Deputy Registrar or Assistant Registrar having jurisdiction to discharge the duties under Section 21 of the Societies Registration Act under certain situations.
For appropriate appreciation of the aforesaid judgment, I may refer to the issue involved in the said case as has been enumerated by Hon'ble Single Judge and the issue was- "whether the Registrar, Firms, Societies and Chits, U.P. Lucknow has got power to interfere with the election process or with the decision taken by the Deputy Registrar of the regions to hold the election ?" Thus, the issue as to whether the Registrar has been vested with the authority or power to transfer the proceedings from Deputy Registrar was not the subject matter of discussion in the said judgment. In para 31 of the aforesaid judgment in the case of Fahim Ahmad and another (supra), it has been held that once the State Government has conferred powers of Registrar on the Deputy Registrars or the Assistant Registrars of the respective regions or the districts then the Registrar has got no jurisdiction to interfere with discharge of the statutory duties by the Deputy Registrar or the Assistant Registrar. Hon'ble Single Judge has further held that "the supervisory power vested in the Registrar does not seem to include to pass an order staying the election process or to summon the record and usurp the power of the Deputy Registrar or the Assistant Registrar."
However, in a passing reference, Hon'ble Single Judge in the said case has also said, "of course, in case, it is brought into the notice of the Registrar relating to some malpractice, fraud or the corrupt practice by the Deputy Registrar, then in such situation, Registrar, Firms, Societies and Chits may transfer the proceedings to some other Deputy Registrar or the Assistant Registrar having the jurisdiction to discharge duties under Section 21 of the Societies Registration Act."
With all respect at my command, I may only notice that the observations in the aforementioned judgment of Hon'ble Single Judge made in regard to power of the Registrar for transferring the proceedings, can, at the most, be said to be obiter dictum. From a complete reading of the said judgment, it is clear that the issue relating to authority and power of the Registrar to transfer the proceedings from one Deputy Registrar to other Deputy Registrar did not, at all, engage the attention of Hon'ble Single Judge. The issue which was dealt with in the said judgment has already been mentioned above. This opinion of Hon'ble Single Judge or his Lordship's view or reflection in the judgment has been expressed incidentally or collaterally. As to whether the Registrar has the power of transferring the proceedings was not an issue between the parties even indirectly, what to say the issue being directly involved in the case for determination of the cause therein. Such an opinion or the view rendered by the Court can be turmed as an expression made "by the way" and hence, it can, at the most, be turmed otiber dictum and thus, it does not form part of Ratio Decidendi.
It has long been settled that "a decision by a Court is only an authority for what it actually decides. What is of essence is the ratio and not every observation made by the Court in a judgment."
On a close scrutiny of the scheme and the provisions of the Act as well as the notifications issued under Section 21 of the Act and also for the reasons given and discussions made above, I am not persuaded by the argument based on the said judgment as has been advanced by the learned counsel representing the petitioners.
To find that the Deputy Registrar while acting under the Act and exercising his statutory functions and powers does not act as an authority subordinate to the authority of Registrar, reference can be made to a judgment of this Court in the case of Literacy House Staff Welfare Association and another vs. Registrar, Firms Societies & Chits, U.P. and others, reported in [2006 (24) LCD 1439].
In the light of the examination of respective arguments put forth by the learned counsel appearing for the parties made above, I am unable to agree with the proposition propounded by the learned counsel for the petitioners that the Registrar is empowered to transfer the proceedings from one Deputy Registrar to another Deputy Registrar.
Since for the reasons given in the foregoing paragraphs, it has been concluded by the Court that the Registrar lacks jurisdiction or power to transfer the proceedings from the Deputy Registrar hence, any discussion or observation on the merits of the grounds taken by the petitioners seeking transfer of the proceedings from Deputy Registrar, Faizabad Region, Faizabad to some other Deputy Registrar is, in my opinion, not needed.
In the result, the writ petition fails, which is hereby dismissed.
There will be no order as to costs.
Order Date :-18.01.2016 akhilesh/-