JUDGMENT S.U. Khan, J.
1. Through this writ petition election and management dispute of executive body of a society known by the name of Prayag Sangeet Samiti, Allahabad is sought to be resolved.
2. Prayag Sangeet Samiti, Allahabad (hereinafter referred to as the Samiti) is a registered society which has been formed for, and is, Imparting courses in Indian Classical Music, awarding diploma with degrees for the same, which are recognised by various institutions and Universities including U.G.C. It has been alleged in the writ petition that it has about 1200 centers in India and examination centers in England, U.S.A. and Nepal.
3. Samiti was transformed into a formal society through registration under Societies Registration Act in the year 1972. Annexure-1 to the writ petition is memorandum of association and rules and regulations of Samiti 1972. According to Chapter III of rules and regulations of Samiti, President, two Vice-Presidents, Secretary, Joint Secretary and Treasurer shall be the office bearers of the Samiti and according to Chapter IV thereof the executive committee of Samiti shall consist of all the office bearers of the Samiti and eight elected members. According to Chapter III, Rule 3, office bearers of the Samiti shall be elected after every three years by a majority vote from amongst the life members of the Samiti at a general meeting specially called for the purpose in the month of March and the term of office bearers shall be from the date of their election till the next election of the office bearers. According to Chapter III, Rule 4, in the event of death, etc. of an office bearer, the executive committee shall have the power to fill the vacancy by electing any member qualified to be elected as a office bearer at its meeting specially called for the purpose, provided always that any motion for election shall not be considered unless 2/3 members of the executive committee are present. It is undisputed that the last election of office bearers of Samiti/executive committee and members of executive committee was held in August, 1997 in which Late Sri K. B. Asthana Ex-Chief Justice of Allahabad High Court was elected as President, Sri S. S. Tiwari, Senior Advocate of this Court and Sri D. C. Jain were elected as Vice-Presidents. Sri J. N. Chaturvedi, advocate of this Court/petitioner was elected as Secretary, Sri Arun Kumar was elected as Joint Secretary and Sri A. Narain was elected as Treasurer of the Samiti. The President, Sri K. B. Asthana Ex-Chief Justice of Allahabad High Court died in the year 1998, thereafter it appears that no formal meeting of executive committee of the Samiti to fill the vacancy of President by election in terms of Chapter III, Rule 4, was held. In terms of Chapter III Rule 7 (iii), in the absence of President, one of the Vice-Presidents authorized by the executive committee shall exercise all the powers and perform all the duties of the President. There is nothing on record to show that executive committee made any such authorization in favour of any of the two Vice-Presidents however, from the material brought on record it is clear that if not de jure then at least de facto Sri S. S. Tiwari one of the Vice-Presidents acted as President after the death of Late Hon'ble Mr. Justice K. B. Asthana and that until August, 2003 every one accepted the said position, and no one questioned the authority of Sri S. S. Tiwari to act as President.
4. Even though under Chapter III, Rule 3, election is to be held after every three years meaning thereby that the life of executive committee is for three years however, the proviso to the said rule provides that the term of office bearers will be till the next election of office bearers. By virtue of the said proviso all the office bearers and members elected in 1997 unnecessarily prolonged their tenure for which every one of them was responsible. This is not a healthy practice. The scope of the said proviso is that if due to unavoidable circumstances elections are not held for a short period after becoming due then old committee shall continue so that their may not be a void. The said proviso cannot be unduly stretched to indefinitely prolong the term of the committee. It is hoped that in future elections will regularly be held after every three years. It appears that differences started among the office bearers and members of the executive committee of the Samiti at the end of sixth year from their election. It is not clear as to how much time the ice berg of the controversy took for reaching the surface from the bottom however, it came above the surface and became visible for the first time on 31.8.2003 when few office bearers and members of the executive committee sent a requisition addressed to President/Secretary of the Samiti for a meeting to consider the holding of elections.
5. Opening part of the para 22 of the writ petition reads as "that a few office bearers and members of the executive committee, who too thus have been the recipient of the benefit of non-holding of elections filed the first salvo on 31.8.2003............... The use of the word 'too' is quite potent and suggestive, candidly admitting that the petitioner who was Secretary and other office bearers and members, all, were unnecessarily prolonging the election and in the process were recipient of the benefit. The petitioner being Secretary can neither absolve himself of his liability to hold prompt elections nor he can plead mitigating or extenuating circumstances for the same. Under Chapter III, Rule 7 (iv), it is the duty of the Secretary who is the Chief Executive Officer of the Samiti to convene the meetings of the general body and the executive committee. By virtue of Rule 3 of the said Chapter, office bearers are to be elected after every three years by a general meeting specially called for the purpose of election in the month of March. There is nothing on record to show that petitioner as Secretary after the death of the President ever tried to convene the meeting of the executive committee for authorizing any of the Vice-Presidents to exercise powers and perform duties of the President as required by Rule 7 (iii) or for filling up the vacancy of President by election under Chapter III, Rule 4.
6. In pursuance of requisition-dated 31.8.2003 (Annexure-2 to the writ petition) respondent No. 4 Sri S. S. Tiwari wrote a letter to the petitioner/Secretary on 1.9.2003 (Annexure-3 to the writ petition) describing himself as President of the Samiti. Regarding Annexure-3, it is mentioned in para 23 of the writ petition that Sri S. S. Tiwari stalling himself as President of the Samiti wrote the said letter. The petitioner in response through letter dated 6.9.2003 indicated that only Secretary or President could convene the meeting and as Sri S, S. Tiwari was not a President hence he could not direct the petitioner to convene the meeting. In the said letter the petitioner asserted that Sri S. S. Tiwari was not the President. The request in the said letter dated 6.9.2003 was that Sri S. S. Tiwari should take trouble to inform Sri J. N. Chaturvedi that under which provision he acquired right to issue direction to Sri J. N. Chaturvedi and how he (Sri S. S. Tiwari) declared himself to be a President of the Samiti. In my opinion, the controversy raised in the said letter dated 6.9.2003 was quite unnecessary. The requisition was addressed to Secretary also (Officiating President/Secretary). The petitioner as Secretary should have convened the meeting for election on the requisition addressed to him, and copy whereof was also sent by respondent No. 4 to him. On 12.10.2003 the petitioner again wrote a letter to respondent No. 4 complaining about an order of respondent. No. 4 dated 11.10.2003 regarding an employee of the Samiti in his capacity as President. Annexure-7 to the writ petition is an intimation sent by respondent No. 4 as Officiating President of the Samiti notifying therein that the meeting of executive committee shall be convened on 15.11.2003 for fixing dates for election of members and office bearers of new executive committee. The petitioner on 3.11.2003 again wrote a letter to respondent No. 4 that respondent No. 4 not being President could not convene the meeting. In the meeting of executive committee of the society held on 15.11.2003, it was resolved that election for electing office bearers and members of executive committee shall be held on 29.11.2003 and notice to that effect was circulated on 17.11.2003 (Annexure-9 to the writ petition). Thereafter petitioner moved, an application before Assistant Registrar, Firms, Societies and Chits, Allahabad requesting that the Assistant Registrar must enlighten/direct (Nirdeshit) the petitioner as to whether Sri S. S. Tiwari who was only Vice-President was authorized under the rules to hold the meeting of executive committee and to fix the date for election of the new executive committee or not. The said application is Annexure-10 to the writ petition. On the said application Assistant Registrar passed an order on 24.11.2003 addressed to Sri S. S. Tiwari/Vice-President of the Samiti. In the said order, it is mentioned that Sri J. N. Chaturvedi in pursuance of the letter issued by the Assistant Registrar dated 6.9.2003 has indicated that the Secretary will hold the election in March, 2004, according to the registered rules. In the said order it is not mentioned as on what date the petitioner Sri J. N. Chaturvedi gave the intimation to the Assistant Registrar however, it is mentioned that along with his letter, Sri J. N. Chaturvedi annexed the letter written by Sri S. S. Tiwari to him dated 1.9.2003 and 29.10.2003 and notice sent by him dated 17.11.2003 notifying the election date of 29.11.2003. The Assistant Registrar directed respondent No. 4 Sri S. S. Tiwari to send the copies of resolution of general body in which he might have been appointed as President and of his reply, which might have been sent to the Secretary in reply to his letters. Through the said letter Sri S. S. Tiwari was directed to give his reply within two weeks and was restrained from conducting any election proceedings against the registered rules and it was further directed that failure on the part of Sri S. S. Tiwari would be treated as violation of rules registered under Societies Registration Act of 1860 for which he would be solely liable. This order is Annexure-11 to the writ petition. The petitioner on 25.11.2003 wrote a letter to life members of the society indicating that by virtue of order of Assistant Registrar dated 24.11.2003 Sri S. S. Tiwari was not authorized to hold election on 29.11.2003. Against order dated 24.11.2003, a representation/appeal was filed before Registrar. The Registrar passed the order on 27.11.2003 mentioning therein that Assistant Registrar had himself on 1.9.2002 had issued directions for holding elections hence order passed by him on 24.11.2003 stopping the process of election was not correct. Consequently order dated 24.11.2003 passed by Assistant Registrar was stayed until further orders and it was directed that any dispute regarding election would be decided after the election. Copy of order passed by Registrar dated 27.11.2003 is Annexure-13 to the writ petition. Thereafter election was held on 29.11.2003 and Annexure-15 to the writ petition is an intimation issued by Sri Ajai Kumar newly elected Secretary to the effect that new committee was elected on 29.11.2003. The names of office bearers and members of the said new committee were given in the said intimation.
7. Through this writ petition order of the Registrar dated 27.11.2003 notice of the respondent No. 4 Sri S. S. Tiwari in his capacity as officiating President intimating that in view of order of Registrar dated 27.11.2003, meeting for election will be held as scheduled on 29.11.2003 and intimation dated 29.11.2003 given by newly elected Secretary Sri Ajai Kumar regarding result of election and declaring the names of elected office bearers and members of the Samiti Annexures-13, 14 and 15 respectively have been challenged.
8. The first point argued by learned counsel for the petitioner is that Registrar had no power to entertain any appeal or representation against order of Assistant Registrar and set aside or stay the order passed by Assistant Registrar. On the other hand learned counsel for the respondent has argued that Registrar under general supervisory powers has got jurisdiction to annul illegal order passed by Assistant Registrar. In the alternative it has been argued that as the order of Assistant Registrar was also illegal and without jurisdiction, hence, in exercise of writ Jurisdiction order of Registrar shall not be set aside as it would amount to restore another illegal order.
9. In this petition four points are to be decided :
(1) Whether order of Registrar dated 27.11.2003 is legal and within jurisdiction?
(2) Whether election of Samiti can be held only in March?
(3) Whether Sri S. S. Tiwari had authority to convene meeting for holding the election and to hold the election?
(4) Whether order of Assistant Registrar dated 24.11.2003 is illegal and without jurisdiction?
10. Point No. 1.--In my opinion under Section 21 of Societies Registration Act read with notification dated 7.1.1982 the word Registrar includes Assistant Registrar, hence while passing any order. Assistant Registrar acts as Registrar. The Registrar, therefore, cannot exercise appellate jurisdiction against orders of Assistant Registrar. Learned counsel for the petitioner has placed reliance upon AIR 1963 SC 1503 ; 1997 (7) SCC 37 and 1998 (7) SCC 162 to contend that after delegation of power, the delegating authority cannot exercise appellate or revisional jurisdiction against order passed by delegated authority.
11. Point No. 2. --Learned counsel for the petitioner has stated that according to the rules, election could be held only in the month of March and in no other month. When the period of three years has already expired, then restriction of March does not apply after three years. Election should have been held thereafter as promptly as possible, irrespective of the month of the year.
12. Point No. 3.--The Vice-President acting as President on the death of President cannot be said to be a complete usurper of power. Even in the absence of any rule or regulation on the death of President, it is the Vice-president who by virtue of being Vice-President becomes authorized to act as President. The other Vice-President has never raised any objection. Apart from petitioner no other office bearer or member ever raised any objections against working of respondent No. 4 as President of the Society. In fact even the petitioner till August, 2003 did not raise any objection. If election is being conducted by an authority which cannot be said to be a total usurper of power, then any irregularity in the assumption or exercise of power cannot render such exercise wholly without jurisdiction. It is almost admitted by the petitioner that respondent No. 4 was working as de facto President. In such situation unless by some express proceedings or order, respondent No. 4 is either removed from the post of President of Samiti or declared to be incompetent to exercise such powers, all actions taken by him are to be treated as valid. In this regard reference may be made to AIR 1981 SC 1473.
13. Point No. 4.--As far as the order of Assistant Registrar dated 24.11.2003 is concerned, firstly it did not prohibit holding of elections all together, it only directed that no election proceedings should be held against the registered rules. Under Section 24 of Societies Registration Act, it is provided that if the Registrar is of opinion that there is apprehension that the affairs of a society registered under this Act are being so conducted as to defeat the objects of the society or that the society or its governing body by whatever name called or any officer thereof in actual effective control is guilty of mismanaging its affairs, Registrar may inspect or investigate the affairs of the society and after such inspection or investigation give such direction to the society or to its governing body or any officer thereof for removal of defects and in the event of default, action may be taken under Section 12D or Section 13B of the Act. Learned counsel for the petitioner has argued that the powers exercised by the Registrar are quasi-judicial, hence has got power to issue interim orders, in my opinion, powers exercised under Section 24 are purely administrative in nature, hence Registrar cannot be held to be authorized to issue interim directions. Under Section 24 (5) of the Act, directions may be issued only on conclusion of enquiry.
14. In election, interference is not called for until conclusion of the election, it is only after the conclusion of the election that any aggrieved party is authorized to challenge the election. In this regard, reference may be made to a constitutional bench authority of this Court in AIR 1978 SC 851. Under Societies Registration Act by virtue of Section 25 doubt or dispute in respect of the election or continuance in the office of the office bearers may be heard and decided by Prescribed Authority, There is no provision under Societies Registration Act under which any authority is empowered to short circuit the process of election unless election is being conducted by a total usurper of the power. I therefore, hold that the order passed by the Assistant Registrar was illegal and without Jurisdiction.
15. In view of the above discussion, it is held that both the orders passed by Assistant Registrar as well as Registrar are illegal and without Jurisdiction. The order passed by the Registrar dated 27.11.2003 staying the operation of order passed by Assistant Registrar dated 15.11.2003 cannot be set aside in exercise of writ jurisdiction as it would amount to restoring another illegal and without Jurisdiction order i.e., order of Assistant Registrar dated 15.11.2003.
16. The election of executive committee of a registered society cannot be challenged through writ petition under Article 226 of the Constitution of India. The rules of the society do not have statutory force. Even otherwise disputed question of facts are bound to be involved in proceedings challenging the election and writ Jurisdiction is not suitable forum for deciding such dispute. Under Section 25 of Societies Registration Act detailed procedure has been prescribed for challenging the election. Apart from that, any person aggrieved has got remedy of filing a suit challenging the said election.
17. The writ petition is, therefore, dismissed. However, petitioner is at liberty to challenge the election either under the forum provided under Section 25 of Societies Registration Act or through civil suit, on any of the grounds not decided in this judgment.