The Court : Heard Sri M.A. Qadir, Senior Advocate assisted by Sri Shamim Ahmad, Advocate for the appellants, and Sri Ashok Khare, Senior Advocate assisted by Sri W.A. Siddiqui, for opposite party no. 4, Sri M.S. Pipersenia and Dr. Y.K. Srivastava, standing counsel, appearing for opposite party no. 1,2 and 3.
This special appeal is directed against the order and judgment dated 5.5.2010 passed by Hon'ble Single Judge in Civil Misc. W.P. No.21478 of 2010.
The writ petition was filed by Jamia Rizviya Merajul-Uloom, Chilmapur, District Gorakhpur, hereinafter referred to as 'the Society' through its Secretary/ Manager Mohd. Fakhruddin Khan son of Farzand Ali, and Mohd. Fakhruddin Khan, claiming himself to be the Secretary/ Manager, for setting aside the order dated 27.3.2010 passed by the Assistant Registrar, Firms, Societies and Chits, Gorakhpur, herein after referred to as 'the Assistant Registrar'. By this order, the Assistant Registrar did not approve the papers submitted by petitioner Mohd. Fakhruddin Khan and respondent no. 4 Karimullah Khan, regarding constitution of the Committee of Management of the Society and did direct that the election of the Committee of Management of the Society be held under Section 25(2) of the Societies Registration Act, 1860. From the list of forty five members of the general body of the Society after excluding Mohd. Fakhruddin Khan shown at serial no. 17 and has nominated District Minority Welfare Officer, Gorakhpur as the Election Officer for holding the election.
In nutshell the facts of the case are that the 'society' runs a Madarsa known as Jamia Razviya Merajul Uloom, chilmapur, Distirct Gorakhpur, which is a duly recognized Madrsa and is also in the list of grant-in-aid of the State Government. The term of the office bearers of the society is five years and it is renewed from time to time. The last renewal was made on the application dated 8.11.2006 submitted by Farzand Ali, the father of the petitioner No.2. Thus the certificate of renewal was granted on 15.11.2006 for a period of 5 years which is operative up to 7.8.2011.
According to the petitioner/ appellant after said election, certain developments, which had taken place, are; (i) member Mohd. Yusuf Khan @ Kanchhed was removed from the office of membership of the society for continued absence in three meetings as also held on 11.12.2006 and in his place the petitioner no. 2 was enrolled as member. (ii) Sri Karimullah Khan, the respondent No.4 was the Assistant Secretary of Society, however he had resigned which was accepted and in his place vide resolution of the society dated 25.3.2007, Shri Zafar Ahmad was elected as Assistant Secretary. (iii) Subsequently, on 20.5.2007, Shri Farzand Ali, the Secretary had also resigned from the Office of Secretary, and in his place Shri Zafar Ahmad was elected as Secretary. (iv) On 7.3.2008, Shri Zafar Ahmad Khan had also resigned from the office of Secretary which was accepted in Resolution dated 9.3.2008 and the petitioner No.2 Mohd. Fakhruddin Khan was elected as Manager/Secretary on 9.3.2008. (v) The petitioner No. 2 also sent a letter dated 18.3.2008 to the Assistant Registrar, Firms Societies and Chits communicating that he has been elected as Manager and for registration list of office bearers, on which the list of office bearers for the years 2007-08, 2008-09 was dully certified by the Assistant Registrar. Mohd. Fakhruddin Khan further sent papers to the District Minority Welfare Officer, who attested the signatures of Mohd. Fakhruddin Khan as Manager of Madarsa on 2.5.2008. Just after his becoming Manager, Karimullah Khan had been creating disturbance. Earlier Karimullah Khan got a complaint made by one temporary teacher Smt. Sharmila Begum before the District Magistrate and the District Magistrate had wrongly ceased the power of Mohd. Fakhruddin Khan by order dated 6.10.2008, the said order was stayed by this Court in Civil Misc. Writ Petition NO.55257 of 2008 filed by Committee of Management. The said writ petition is still pending.
One Shaukat Ali Noori was the Head Master of the Madarsa, however, vide resolution dated 14.8.2009, passed by the committee of management, the said Head Master was suspended on the basis of preliminary inquiry pending departmental proceedings which has been communicated to him by the manager of the said Madarsa, vide letter dated 22.9.2009, and the same has also been published in the news papers. On 14.8.2009, the Principal/Manager was suspended and Kabir Ahmad, Karimullah Khan, Farzand Ali were removed from the membership of the Society. The said resolution was accorded by the respondent No.2 vide letter dated 22.9.2009.
It has further been alleged that on the other hand, Karimullah Khan, who had colluded with the suspended Head Master, filed an application with Assistant Registrar annexing therewith the resolution of alleged meeting dated 16.8.2009, on which the Assistant Registrar sent two notices dated 12.10.2009 and 14.10.2009 to the petitioners, to which Mohd. Fakhruddin Khan petitioner no. 1, had submitted detailed reply dated 26.10.2009.
Since Karimullah Khan had relied upon a Fatwa dated 6.7.2009 in its resolution dated 16.8.2009, issued by Mohd. Afzal Rizvi Marqazi Darul Ifta, 82, Saudagaran, Bareilly Sharif, after coming to know about said Fatwa, Mohd. Fakhruddin Khan had sent a letter dated 15.1.2010 to Mohd. Afzal Rizvi Marqazi Darul Ifta, 82, Saudagaran, Bareilly Sharif, who had given the Fatwa. On 4.11.2009, Mohd. Fakhruddin Khan had filed an application along with previous resolution and records. On 14.11.2009 and 15.12.2009, which was the date fixed, Fakhruddin Khan did not submit any reply on 15.12.2009. He submitted reply before the Respondent No.2 which was served on the petitioners on 30.12.2009. On 30.12.2009, the matter was adjourned for 16.2.2010 whereas, on 16.2.2010, the Presiding Officer was out of station therefore, the case was adjourned for 5.3.2010. On 30.12.2009, the case was adjourned for 28.1.2010 and on that day the matter was fixed for 5.3.2010 as Presiding Officer was out of station. On 5.3.2010, it was Friday, the petitioner No.2 remained present in the office of respondent No.2 from 10 A.M. to 12 P.M. However, he had gone to offer Friday prayer asking his Counsel to obtain date. The counsel remained watching the case, but neither case was called out nor hearing had taken place on 5.3.2010, and the learned respondent No.2 had reserved the orders without commencing the hearing ex parte. The findings contrary to these facts, in the impugned order are incorrect and are perverse. On 8.3.2010, the petitioners had submitted an application, to respondent No.2. Without affording opportunity of hearing to the petitioners by order dated 27.3.2010, the respondent No.2 had passed the impugned order. The respondent No.2 has made incorrect observations in the impugned order dated 27.3.2010; that Mohd. Fakhruddin Khan had resigned on 9.4.2008, Karimullah Khan had submitted complaint on 7.5.2009 or on 8.9.2009 in fact, the complaint was made by Karimullah Khan was on 5.9.2008. The petitioners have not been supplied any copy of complaint dated 7.5.2008 and 8.9.2008 nor copy had ever been supplied to the petitioners nor they are aware; that hearing of case had taken place on 4.3.2010.
The respondent No.2 has no right or authority to pass the impugned order as he has not given any opportunity of hearing to the petitioners before passing the impugned order. Thus the order dated 27.3.2010, passed by respondent No.2 is wholly without jurisdiction and is liable to be dismissed. He has wrongly directed the District Minority Welfare Officer to hold the election on the basis of list registered in 2006-07.
There are two main contentions of the learned counsel for the appellants Sri M.A. Qadir, firstly he argues that this was a case of election dispute and the Assistant Registrar should have referred the matter to the Prescribed Authority under Section 25 (2) of the Societies Registration Act, and secondly he argues that even if the Registrar had the power to decide the matter, he has decided it incorrectly and hence, the order of the Registrar as well as its part affirmation by Hon'ble Single Judge is also incorrect. For convenience Section 25 of the Societies Registration Act is being reproduced below :-
"25. Disputes 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.
Broken into its basic components, the Section has following ingredients :-
(a)There is a prescribed authority, which can summarily decide;
( i ) any doubt or dispute in respect of the election, ( ii) continuance in office of an office- bearers of such society.
THIS CAN BE DONE;
(iii) on a reference made by the Registrar or
(iv) on a reference made by one fourth of the members of a Society registered in U.P.
While stressing on point no. 1 learned counsel for the appellants has taken a ground in the appeal that four case laws were referred by him, which have not been looked into by the learned Single Judge at all. These judgments, he argues, lay down that the Registrar should refer the case of election dispute to the Prescribed Authority. In this regard the first case referred by the learned counsel for the appellants is 1988 UPLBEC- 515 Urwa Bazar Educational Society, Gorakhpur and another vs. Assistant Registrar, Firms, societies and Units, Division, Gorakhpur and others. On careful examination of the facts of aforesaid case, it appears that the rival claims of the parties were pending before the Assistant Registrar for renewal of the registration of the Society. The list with regard to the election held on 29.1.1986 had not got resolved. The District Inspector of Schools was not vested with the power either under the U.P. Intermediate Education Act or the Regulations framed thereunder, to pass any order recognizing the committee till dispute was legally settled. District Inspector of Schools, Gorakhpur having this fact in mind, and in view of the ameliorating the plight of the employees and teachers passed an order on 29.3.1986 purporting to be under Section 5(1) of the Payment of Salaries Act, 1971. Simultaneously, the District Inspector of Schools passed a fresh order on 17.4.1986 recognizing one committee with Narsingh Prasad Singh as Manager. This was the dispute in the writ petition.
It is very clear from the facts of the above mentioned case that the recognition of one of the rival committees could not have been decided by the Registrar. It involved the determination of the question as to which of the committee of which persons named above, have been duly elected. The Assistant Registrar proceeded to decide this dispute and renewed the registration of the society, of which Khirodhi Singh was the Manager. This was not within the domain or competence of the Assistant Registrar. It should have been referred to the Prescribed Authority and hence the order was quashed. Therefore, it is abundantly clear that the facts of the case are entirely different from the facts of the present dispute, hence this case law was definitely not a good authority to decide the controversy in the present writ petition, hence the learned Single Judge rightly ignored it.
The second case referred to by Mr. Qadir is of 1981 UPLBEC- 308 Vijai Narain Singh vs. Registrars, Firms, Societies and Chits Registration, U.P. Lucknow and others. This is again reiteration that the election dispute should be referred to prescribed authority. Nobody can dispute this law but the facts of the present case are otherwise, hence this case law is also not applicable.
The third case law is 1987 UPLBEC- 989 Committee of Management, Gramothan Shiksha Parishad Gramothan Junior High School Barwala District Muzaffarnagar and another vs. Zila Basic Shiksha Adhikari, Muzaffarnagar and another. Para-5 of the judgement is quoted below :
"The dispute between the parties is which election is valid the one held on 10.2.1986 at which respondent Santosh Kumar has been elected as Manager or the one held on 23.2.1986, at which the petitioner was elected as Manager ? The provisions contained in Section 25 of the Societies Registration Act, 1860 (hereinafter referred to as the Act), cover disputes regarding the election before the Assistant Registrar and in such circumstances it was incumbent upon the Assistant Registrar to refer the dispute between the parties to the Prescribed Authority under Section 25(1) of the Act. Instead of doing what he was required to do under the law, the Assistant Registrar has in his order dated 22/24.5.1986 observed that it was open to the petitioner to invoke the jurisdiction of the Prescribed Authority along with 1/4th member of the Society under Section 25(1) of the Act. This approach of the Assistant Registrar was obviously not proper and this is well proved by the series of litigations referred to above."
It is again obvious that there was clear election dispute in this case and hence should have been referred to prescribed authority by the Registrar but the facts of the case are not applicable in the present case.
So far case no. 4 (1995) 2 UPLBEC- 1242 Committee of Management, Kisan Shiksha Sadan, Banksahi, District Basti and another vs. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and another. it has been laid down in para- 3 of the judgment as follows :-
"Having regard to the provisions of the Act, we see force in the submission of the learned counsel for the Respondents. Section 4 of the Act provides that a list of members of the managing body of a society shall be filed with the Registrar. That list is maintained by the Registrar for the purpose of performing his administrative functions as a Registrar. Section 25 of the Act provides that whenever any doubt or dispute is raised regarding the election of members of a managing body of a Society, the Registrar may refer such doubt or dispute to the Prescribed Authority for his decision. But when one fourth members of the Society raise a doubt or dispute relating to the election of the members of managing body or Society, the matter automatically goes to the Prescribed Authority for decision and in such a case the Registrar does not come into the picture. In exercising this power whether to refer or not any doubt or dispute relating to the election of members of the managing body of a Society to the Prescribed Authority, the Registrar has to apply his mind to the facts of the case and take a decision. In taking such a decision, the Registrar will be quite justified to take into account all the relevant circumstances, as he has done in the present case. If an objection is raised about the membership of a person. In our view, it is the duty of the Registrar, for his own administrative purpose, to enquire into whether the person concerned is a member of the Society or not. If the Registrar comes to the conclusion that such a person is not a member of the Society then he under no obligation to refer the dispute or doubt relating to his election to the Prescribed Authority for decision. In the present case, the Registrar has applied his mind to the facts of the case to find out whether the second appellant herein or was not a member of the Shiksha Sadan. He found that he was not even a member of a Society. It is a pure question of facts. If any person feels aggrieved by such a decision, the proper course to him is to approach the Civil Court and seek appropriate relief. The Registrar is bound by the decision of the Civil Court and his decision will be subject to the decree passed by the Civil Court."
The ratio of this judgment is that where there is a dispute of primary membership of a person for the Society or a complaint is received that a member is not a valid member of the Society, then the Registrar, who under Section 4 of the Act maintains the list of the members, can take cognizance and apply his mind to the facts and declare whether a person is the valid member or not. It appears that the present case is more likely to fall under Section 4 rather than 25 of the Act. The Registrar has simply declared that Fakhruddin Khan is not a valid member of the Committee of Management, hence his appointment as the Secretary/ Manager of the Committee of Management, could also not be approved. The Registrar, in his order, has simply decided the membership issue and not the election dispute. Hence the first contention of the learned counsel for the appellants fails to the extent that the Registrar was under obligation to send the matter to the Prescribed Authority. The Registrar was fully competent to decide the membership issue which he has decided vide his order dated 27.3.2010.
The question, which remains to be decided now is whether the decision of the Registrar is valid or not and whether the Registrar has proceeded in accordance with law or not. There are two relevant dates; one is 14.8.2009 and the other 16.8.2009. The contention of the counsel for opposite party led by Karimullah Khan is that no meeting took place on 14.8.2009. The meeting has been shown only on papers and it has been back dated. The contention of the petitioners- appellants is that the meeting held on 16.8.2009 was not legally tenable as the members who are said to have voted in the meeting, were already ousted by the resolution dated 14.8. 2009. One important thing about the meeting held on 14.8.2009 is that it was sent to the Registrar office with unreasonable delay and it has reached the office on 4.11.2009 It is the petitioner/appellant case that on 14.8.2009, the Committee of Management of the Society passed a resolution removing Karimullah Khan, Kabir Ahmad and Farzand Ali, as members of the general body of the Society. The said resolution was approved by the Assistant Registrar on 22.9.2009. On the other hand, it has been alleged that the Committee of Management of the Society vide a resolution dated 16.8.2009 Mohd. Fhakhruddin Khan was removed from the membership of the general body as well as office bearer of the Committee of Management of the Society, since he had been enrolled in contravention of clause 12 of bylaws of the Society and Fatwa had been issued on 6.7.2009 to this effect by Mohd. Afzal Rizvi Marqazi Darul Ifta, 82, Saudagaran, Bareilly Sharif, Bareily.
Main argument of Mr. Qadir, learned senior counsel for the petitioners/ appellants is that when Karimullah Khan had been removed as member of the general body of the Society, in the meeting held on 14.8.2009, he could not have participated in the meeting of the Committee of Management held on 16.8.2009, nor he could had been elected as Secretary/ Manager of the Committee of Management of the Society. The decision taken in this meeting, is of no consequence since quorum was not complete, if the member who had been removed on 4.8.2009 are excluded. His further argument is that Fhakhruddin Khan remains a loyal Sunni as required and his membership is not in contravention of the rule- 12 of the bylaws of the Society. He could not have been removed on that ground and the Registrar has committed manifest error, in excluding his name from its membership. Further, the Registrar should not have relied upon the Fatwa issued on 7.2.2010 without giving any opportunity to Mohd. Fhakhruddin, to file his reply that in fact he had never agreed to abide by Fatwa as has been mentioned in the impugned order.
Hon'ble Single Judge has dealt with each and every argument of learned Senior Advocate. Hon'ble Single Judge has given finding that the Registrar had not simply acted upon the Fatwa. Initially the Fatwa was issued on 6.7. 2009 by Bareily Sharif, on the basis of which the Committee of Management on 16.8.2009 removed Mohd. Fhakhruddin Khan from the membership of the general body and consequently from the post of Secretary/ Manager. Later on 7.2.2010 a categorical Fatwa was given that Mohd. Fhakhruddin was not a loyal member of Sunnat Jamat, hence the Registrar has only acted on the basis of the resolution dated 16.8.2009, which was in fact supported by Fatwa. The action of the Registrar is based on the resolution of the the Committee of Management rather than the Fatwa. The Fatwa has been used by the Registrar in order to clarify his mind about requirement of clause 12 of the bylaws. In order to see whether resolution passed by the Committee of Management on 16.8.2009 was inconsonance with the spirit of clause 12, the Registrar has relied upon the Fatwa. It is a religious matter, a Fatwa by the religious Institution only helped the Registrar to reach to the conclusion that the resolution dated 16.8.2009 removing the name of Mohd. Fhakhruddin Khan was actually in consonance with the spirit of the bylaws. Further the Assistant Registrar has issued notice to both the parties on 12.10.2009 to appear before him and file their evidence. It has also been observed by Hon'ble Single Judge, that the Fatwa dated 7.2.2010 was issued with the consent of both the parties. It appears that all the aspect has been considered by Hon'ble Single Judge while dealing with the matter. So far resolution dated 14.8.2009 is concerned, no satisfactory reply has been given by the petitioners- appellants about the delay in communicating the same to the Assistant Registrar. Moreover, it is also not clear as to what was the occasion for Mohd. Fhakhruddin Khan to pass resolution dated 14.8.2009 and expel the three members. The reasoning given by Hon'ble Single Judge that the resolution dated 14.8.2009 appears to be back-dated, although is not based on any factual evidence, but leads to a most satisfactory and logical conclusion that the resolution was forged and back-dated to nullify the effect of resolution dated 16.8.2009.
Thus, after hearing respective arguments of both the learned senior Advocates, going through the case laws cited and perusing the documents annexed, we come to a definite conclusion that there was no election dispute. The matter before the Registrar was simply a dispute of membership which could very well be decided by the Registrar on the basis of powers vested to him under the Act. There was no material before the Registrar to refer the case to the Prescribed Authority under Section 25 of the Act. The Registrar had decided that the appellant was not a valid member of the Society as he was granted membership in contravention of Rule 12 of the Bylaws. In reaching to this conclusion, he has given notice to the appellant. All the arguments have been dealt with satisfactorily by Hon'ble Single Judge. We are in complete agreement with the view drawn by him.
The appeal is misconceived and devoid of merit. It is accordingly dismissed. However, without imposing any costs.