(Oral) Heard learned counsel for the petitioner Sri Bagesh Kumar Shukla and Sri S.P. Singh for respondent no.5.
The petitioner is aggrieved by the order dated 8.12.2014 passed by the Deputy Registrar, Firms, Societies and Chits, Lucknow.
Sri Bagesh Kumar Shukla has submitted that the undisputed elections of the Committee of Management of Janta Higher Secondary School Samiti, Khadauwa Malihabad, Lucknow were last held on 17.2.2001 after which, the list of office bearers was registered with the office of the Deputy Registrar and renewal of the Society was also done. A copy of the list of members as registered in the office of the Deputy Registrar dated 24.5.2004 has bee filed as Annexure-3 to the writ petition. It has been submitted that such registration was valid for a period of five years i.e. upto 2006. The members as were existing on the date of such registration of list on 24.5.2004 ought to have been invited for holding the elections by the Deputy Registrar.
The respondent no.5 filed a writ petition before this Court numbered as Writ Petition No.2361 (MS) of 2006, which was disposed of with a direction that the Regional Level Committee shall decide the matter with regard to the election of Committee of Management of Inter College run under the same name i.e. Janta Higher Secondary School Samiti Khadauwa Malihabad, Lucknow. After the order was passed by this Court, the Regional Level Committee decided on 31.5.2007 that the petitioner was in actual control of the institution.
The respondent no.5 filed another writ petition, challenging the order passed by the Regional Level Committee, namely, Writ Petition No.7228 (MS) of 2012 and an interim order was granted by this Court, staying the impugned order. The respondent no.5 in the meantime, with the connivance of the District Inspector of Schools got an Authorized Controller appointed for the institution.
Since no elections were held, two writ petitions were filed; Writ Petition No.1663 (MS) of 2008 was filed by the petitioner and Writ Petition No.6844 (MS) of 2009 was filed by respondent no.5. An order was passed on 15.4.2008 by this Court, directing the Authorized Controller to hold elections of the Committee of Management of the Institution as per the Scheme of Administration. Again this Court passed an order on 10.12.2009, directing the District Inspector of Schools to refer the matter to the Regional Level Committee, which shall take a final decision on hearing the parties with regard to the validity of the elections held for the Committee of Management of the institution.
In pursuance of such orders, the dispute regarding Committee of Management of the institution was decided by the Regional Level Committee against the respondent no.5. The Regional Level Committee held that the last undisputed election of the Committee of Management of the institution was held on 26.8.2001, in which, Sri Ram Dutt Gupta was elected as President and Sri Ahibaran Prasad Sharma was elected as Manager and the signatures of such office bearers continued to be recognized for the next three years.
This Committee of Management before the end of its tenure on 25.8.2004 started the process for holding the elections of Committee of Management and asked for Supervisor/Observer from the office of District Inspector of Schools. The elections were thereafter held on 29.8.2004 and were sent to the office of District Inspector of Schools for recognition. The District Inspector of Schools sat over the matter for no reasons at all.
It has been submitted by the learned counsel for the petitioner that the membership of the General Body of the Samiti and that of the institution are the same, and the elections of 29.8.2004 being recognized by the Regional Level Committee on the basis of directions so issued by this Court in Writ Petition No.3964 (MS) of 2011, the membership list for holding the elections of the Committee of Management of the Society should not have been interfered with, by the Deputy Registrar.
It has been submitted that in the order impugned passed by the Deputy Registrar on 8.12.2014, the Deputy Registrar has held that as per the Bye-laws of the Society, the tenure of the Committee of Management of the Society is five years. Sri Ahibaran Prasad Sharma, who is the petitioner, had submitted that elections were held by him in 2014, whereas the undisputed elections after 2004 should have been held in 2009 and 2014, therefore, the elections proceedings submitted by Sri Ahibaran Prasad Sharma cannot be recognized.
Sri Bagesh Kumar Shukla has submitted that while finding the Committee of Management to have become time barred, the Deputy Registrar could have exercised his power under Section 25(2) of the Act and should have issued a tentative membership list, inviting objections before fixing a date for election to be held in accordance with the Bye-laws of the Society. However, this was not done. The list of members submitted by Sri Mithila Bux Tiwari was accepted as the correct list of members without examining the Cash Book, the Membership Register and the Receipt Book as is provided under Section 4(B) of the Societies Registration Act.
Learned counsel for the petitioner has further submitted that the order of the Deputy Registrar is dated 8.12.2014 and by the time the said order was passed, the Amendment to the Societies Registration Act had been incorporated by the Legislature by addition of Section 4(B) of the Act and the Deputy Registrar was duty bound to first find out as to who are the members of the Society in question for deciding who have been validly inducted in the Society by payment of requisite membership fee, he should have looked into the factors as mentioned under Section 4(B) of the Act. After such decision, a tentative list of members should have been issued, inviting objections and thereafter on finalization of the membership, elections could have been held.
By the order impugned, the Deputy Registrar has straightaway accepted the membership list submitted by respondent no.5 through his letter dated 17.9.2014. A direction has further been issued to the Sub Divisional Magistrate, Malihabad, Lucknow to hold the elections.
It has been submitted by the learned counsel for respondent no.5 Sri S.P. Singh that when the writ petition was filed, no interim order was granted. This Court while hearing the matter on 26.10.2017 was apprised that no interim order was granted and yet no elections were held by the Sub Divisional Magistrate, Malihabad, Lucknow. This Court, therefore, on 26.10.2017, passed an order, directing the matter to be listed on 2.11.2017 to enable the learned Standing Counsel to seek instructions as to why pursuant to the impugned order dated 8.12.2014 passed by the Deputy Registrar, elections of the Committee of Management of the Society in question had not taken place, though no interim order was passed by this Court or any other Court, staying the operation of the order dated 8.12.2014.
It has been submitted by the learned counsel for respondent no.5 that in pursuance of such order being passed, the Deputy Registrar directed such elections to be held by the Sub Divisional Magistrate, Malihabad, Lucknow on the basis of list of membership submitted by the respondent no.5 through his letter dated 28.1.2016.
Learned counsel for respondent no.5 has produced before this Court a letter dated 25.1.2019 issued from the office of the Deputy Registrar to the Sub Divisional Magistrate, Malihabad, Lucknow, which is kept on record. In this letter, the Deputy Registrar had informed the Sub Divisional Magistrate, Malihabad, Lucknow that his objections sent through his Letter no.68814 dated 14.9.2016, saying that he sought legal opinion from the office of the Chief Standing Counsel, High Court, Lucknow and that it was not appropriate to hold elections during the pendency of the writ petition, were incorrect view of Court's order dated 26.10.2017. It further directed that Sri Mithila Bux Tiwari by his letter dated 31.10.2018 had informed of the order dated 26.10.2017 and had submitted a membership list on the basis of which, elections should be held. On the basis of this letter dated 25.1.2019, the Sub Divisional Magistrate, Malihabad, Lucknow has held elections on 27.7.2019 and the writ petition has become infructuous.
This Court is not convinced with the argument raised by the learned counsel for respondent no.5.
Learned counsel for the petitioner has brought to the notice of this Court a judgment rendered by a coordinate Bench of this Court dated 4.4.2013 in Writ Petition Nos.2208 (MS) of 2013: Mukhtar Ahmad Ansari vs. State of U.P. and others and 2247 (MS) of 2013: Mustaq Ahmad vs. State of U.P. and others, wherein this Court has observed that even if the Committee of Management held by the Deputy Registrar had become time barred, the Deputy Registrar could not have directed for holding of elections on the basis of the list of members of General Body of the year 2009-10 only on the ground that no dispute was there with regard to the elections held in 2009. The Deputy Registrar should have first decided a valid voter list for holding of elections by inviting objections while issuing a tentative voter list, and thereafter on finalization of valid voter list, the Deputy Registrar should have held the elections on the basis of final membership so declared.
Sri Bagesh Kumar Shukla has also pointed out that only because the elections were held on 27.7.2019 on the basis of membership list submitted by respondent no.5 without its verification as per Section 4(B) of the Societies Registration Act, the dispute raised in the writ petition could not be said to have become infructuous.
Learned counsel for the petitioner has pointed out a judgment rendered by a Division Bench of this Court in the case of Committee of Management, Gangadin Ram Kumar Inter College, Jaunpur vs. Deputy Director of Education, Vth Region, Varanasi and others, (2006) 3 UPLBEC 2862.
The controversy involved in the aforesaid case related to the elections of the Committee of Management of an Inter College. There was a dispute regarding the elections setup by two persons. The District Inspector of Schools had referred the matter to the Deputy Director of Education under Section 16-A(7) of the U.P. Intermediate Education Act. The Deputy Director of Education refused to recognize the elections and appointed an Authorized Controller under the Scheme of Administration to conduct fresh elections to be held on the basis of a valid list of members of the Society. The Authorized Controller accepted the list submitted by one of the members and proceeded to hold elections. However, when the signatures of the elected Manager were recognized by the District Inspector of Schools and the Authorized Controller was withdrawn by the Joint Director of Education, two writ petitions were filed, challenging the said election proceedings. The Hon'ble Single Judge, after summoning the records relating to the original elections proceedings, recorded his observation in the order sheet on 24.11.1994. Both the writ petitions were thereafter heard and allowed vide judgment and order dated 22.10.1997. The Hon'ble Single Judge quashed the election proceedings and directed the District Inspector of Schools to pass an order of single operation of accounts and directed the Deputy Director of Education to appoint an officer of proven honesty of the rank of District Inspector of Schools as Authorized Controller to hold the elections within four months. Two appeals were filed against the said order. In one of the appeals, it was claimed that when the judgment was reserved in the aforesaid two petitions on 24.11.1994, an unopposed election was held on 4.6.1996 by the Committee of Management, headed by one of the claimants, therefore, by the time, the judgment was actually delivered in the aforesaid writ petitions, the situation had changed and both the writ petitions should have been dismissed as infructuous.
However, the Division Bench in aforecited judgment observed that the writ petition cannot be said to have become infructuous merely because before the delivery of judgment, the office bearers elected on 21.6.1993 had setup an election by themselves on 18.6.1996. The elections dated 18.6.1996 had not been held by the Authorized Controller, who alone was competent under the judgment of this Court dated 2.2.1993. The Committee of Management, which came into existence on 21.6.1993 had been held to be invalidly constituted and the elections had been quashed by this Court. If the elections that were held subsequently of the same Committee of Management were allowed to continue, it would amount to perpetuating an illegality.
On merits of the case, Sri S.P. Singh has relied upon the counter affidavit filed by him on 29.8.2017. It has been submitted that there are two Committees of Management; one is constituted under the provisions of Societies Registration Act for the Society and another is constituted under the provisions of the Scheme of Administration for the Inter College, whose tenure is three years. The judgment of this Court passed on 17.5.2016 in Writ Petition No.2361 (MS) of 2006 was in relation to the Committee of Management of the College. The Committee of Management of the Society has a tenure of five years and under the Bye-laws of the Society, such elections ought to have been held before the expiry of the tenure of five years by the incumbent Committee of Management. The elections have not been held after 2004 by the petitioner. However, such elections have been held by respondent no.5 and unless the elections held by respondent no.5 in 2004 are challenged by the petitioner, no relief can be granted by this Court in this writ petition. The members that have been recognized by the Deputy Registrar in his impugned order, have been inducted by respondent no.5 as it was the incumbent Committee of Management. The Deputy Registrar, after hearing the parties, has passed a speaking order, which should not be interfered in this writ petition.
It is apparent from a perusal of the order impugned that the Deputy Registrar while holding that the erstwhile Committee of Management had become time barred as it had not held the elections of the Society for long time, simultaneously accepted the membership list submitted by respondent no.5. No objections were invited. No examination under Section 4(B) of the Act was made by the Deputy Registrar regarding the valid membership list, which would then become the voter list for the forthcoming elections.
A Division Bench of this Court in the case of Harish Chandra Gupta vs. U.P. Cooperative Registrar Firms and Chits, 1990 (8) LCD 321, has observed as follows:
"From the scheme of S. 25(2) it appears that the occasion for Registrar to nominate an officer arises only when he decides, after calling the meeting, that the meeting shall not be presided over by him but by some one else. Accordingly the role of the nominee arises only after the meeting has already been called. The essential function of calling the meeting, therefore, has to be performed by the Registrar himself. Once it is held that the Registrar himself has to call the meeting and this function cannot be delegated by him, the next question would be as to who has to finalise the list of voters or members of the Society.
7. For calling meeting of the general body the Registrar will have to fix a date for the meeting and intimate that date to the members of the Society. Without this the calling of meeting will not be complete. For issuing notice to the members, the Registrar must have a valid list of voters or members of the Society. Without such a list it will not be possible for him to give intimation of the date of meeting fixed by him. It is apparent that if any dispute arises regarding the membership of the Society it will have to be decided before the notices are issued. Thus the, function of finalising the list is implicit in the function of calling the meeting of the general body. From this it flows that the nominee of the Registrar is not competent to take any decision regarding the list of members, if any dispute in that regard arises. In fact from the scheme of Section 25 it appears that the settlement of dispute of that nature must precede the calling of the meeting."
In other words, it has been held that once the Deputy Registrar exercised his power under Section 25(2) of the Act, he is duty bound to first determine a tentative voter list. Notices are issued to all the members whose names find place in the tentative voter list. Objections are invited, then alone a final membership list is determined. After determination of final voter list, a date has to be fixed by the Deputy Registrar for holding the elections and a meeting of the General Body has to be called, by the Deputy Registrar himself. If for some reasons, the Deputy Registrar cannot hold the elections on the particular date as fixed by him, he may appoint a delegate i.e. a responsible officer, who may conduct the elections.
The Deputy Registrar in the order impugned has straightaway finalized the list of voters as submitted by respondent no.5 and directed the Sub Divisional Magistrate, Malihabad, Lucknow to hold the elections. No tentative list has been circulated. No objections have been invited. No final voter list has been notified thereafter. No election programme has also been declared by the Deputy Registrar.
The duty of the Deputy Registrar is to first fix the date and publish the election programme and then ask an officer to conduct such elections in accordance with the Bye-laws of the Society.
The order impugned dated 8.12.2014 is set aside, however, only to the extent that it accepts the membership list submitted by respondent no.5 by his letter dated 28.1.2016 and directs the Sub Divisional Magistrate, Malihabad, Lucknow to hold the elections thereafter.
Since this Court has set aside the order of the Deputy Registrar only on the ground that the terms of Section 25(2) have not been followed by the Deputy Registrar in finalizing the voter list and fixing an election programme and on the ground that the Deputy Registrar has found the earlier Committee of Management to have become time barred, it is directed that the Deputy Registrar shall now finalize the membership of the General Body, taking into account the factors given in Section 4(B) of the Societies Registration Act. He shall invite objections on the tentative list issued thereafter and finalize the voter list within three months from the date, a certified copy of this order is produced before him. The elections of the Committee of Management shall be held thereafter within a period of one month, by the Deputy Registrar or by any other person authorized by him, on the date fixed by the Deputy Registrar.
The writ petition is allowed.
Order Date :- 30.7.2019 Sachin