Hon'ble A.P. Sahi,J These three writ petitions relate to the claim of control over the Management and affairs of a registered society namely, Katra Education Society, registered under the Societies Registration Act, 1860. The society has established two institutions namely the Dwarika Prasad Girls Inter College which is an institution recognised under the U.P. Intermediate Education Act, 1921, and another institution namely, D.P. Girls English Medium School, affiliated to the Central Board of Secondary Education, New Delhi. The Management of the society is entrusted to an Executive Committee consisting of six office bearers and seven members as per the bye-laws that was admitted between the parties prior to the dispute arose.
The leading writ petition has been filed by the society through Pradeep Agrawal who claims himself to be the Secretary questioning the correctness of the order dated 23rd March, 2012 passed by the Assistant Registrar, Firms, Society and Chits whereby he accepted the documents filed by the respondent no. 2 Neeraj Agrawal to be valid for renewal and also accepted him as the Secretary of the society alongwith the other office bearers. The list of office bearers of Neeraj Agrawal was registered by the Assistant Registrar under Section 4 of 1860 Act which is being disputed by Pradeep Agrawal.
The second writ petition has been filed by Anand Agrawal, who is the father of Neeraj Agrawal, contending that in order to resolve all disputes a fresh Committee was constituted in the meeting of the General Body on 24th April, 2012, that is after the passing of the order of the Assistant Registrar referred to hereinabove. This fresh list of office bearers dated 24th April, 2012 was filed by the Assistant Registrar and Mr. Anand Agrawal has prayed for a mandamus to the Assistant Registrar to register the said list under Section 4 of the Societies Registration Act, 1860.
The third writ petition has been filed by Neeraj Agrawal assailing the orders dated 30.7.2012 and 21.9.2012 passed by the learned Commissioner Allahabad Division whereby the proceedings before the Assistant Registrar on account of the aforesaid dispute has been stayed in an appeal entertained by the learned Commissioner under Section 12-D (2) filed by Pradeep Agrawal. The challenge in the said writ petition is to the jurisdiction of the Commissioner to entertain such an appeal praying that no such proceedings are maintainable and the orders passed by the Commissioner deserve to be quashed.
Sri Ashok Khare, learned Senior Counsel has appeared for Neeraj Agrawal, Sri Ravi Kant, learned Senior Counsel has been heard on behalf of Sri Pradeep Agrawal and Sri Manish Goyal has been heard for Sri Anand Agrawal in all the three writ petitions.
A counter affidavit has been filed by Pradeep Agrawal through Sri Sharad Agrawal in the third writ petition i.e. writ petition no. 50453 of 2012 and a rejoinder to the same has also been filed by Sri Khare on behalf of the petitioner. Since the third writ petition relates to the jurisdiction of the Commissioner to entertain the appeal said to be pending before him, learned Standing Counsel was called upon to obtain instructions from the learned Commissioner about his jurisdiction to entertain such an appeal. The learned Standing Counsel has handed down the instructions in writing received from the learned Commissioner under his signatures stating that the appeal has been entertained and admitted with an interim order staying the proceedings before the Assistant Registrar and the operation of the order passed by him, treating it to be an appeal under Section 12-D(2) of the 1860 Act.
Apart from this, it has been pointed out by Sri Ashok Khare, learned Senior Counsel that Pradeep Agrawal alongwith Sri Sharad Agrwal has already filed Original Suit No. 836 of 2012 before the learned Civil Judge, Senior Division, Allahabad praying for an injunction against the defendant therein, namely, Neeraj Agrawal, not to interfere in the functioning of the office bearers of the society and the institutions managed by it.
Sri Ravi Kant, learned Senior Counsel for Pradeep Agrawal has informed the Court that Civil Suit No. 829 of 2012 has also been filed by Sri Neeraj Agrawal which fact has not been disputed by Sri Ashok Khare, learned Senior Counsel for Sri Neeraj Agrawal.
Sri Manish Goyal has handed over documents relating to the notice dated 6.4.2012 and 15th April, 2012 in support of the meeting held on 24.4.2012 and also the alleged confirmation proceedings of the said meeting dated 3rd May, 2012.
Having heard learned counsel for the parties and having perused the aforesaid records and the documents that have been placed, it would be appropriate to briefly narrate the background of the dispute that has given rise to this controversy.
The society was registered in the year 1932. The founders of the society were undoubtedly the predecessors in interest and ancestors of the rival contending parties who have now entered into a dispute between themselves. There is an undisputed fact namely that the last undisputed elections with Mr. Pradeep Agrawal as Secretary was held on 12.11.2006. The society had been renewed uptil 10.10.2005. The dispute began after Pradeep Agrawal who was the then Secretary moved an application on 16.11.2010 before the Assistant Registrar, Firms, Societies and Chits for renewing the society as it was he, who had the custody of the original certificate.
It is at this stage that Neeraj Agrawal claimed that he has been elected as a Secretary in the elections held on 3rd October, 2010 and accordingly claimed renewal of the society alongwith his new list of office bearers vide application dated 20.12.2010. While objecting to the said claim of Neeraj Agrawal, Pradeep Agrawal set up a claim that fresh elections had been held on 8.11.2009 as the tenure of the Committee of Management is three years, and that fresh elections would now be due in November, 2012. He also claimed that the list of office bearers as tendered by him from time to time should be registered as the list of office bearers invoking Section 4 of the Societies Registration Act, 1860.
Neeraj Agrawal contested this claim of Pradeep Agrawal on the basis of the elections dated 3rd October, 2010 which he claims was held under the chairmanship of the Vice President of the Society, as the President and the Secretary had refused to hold the meeting of the General Body for holding of elections. He claims that in the elections held on 3rd of October, 2010 Dhir Lalit Agrawal was elected as the President, he himself (Neeraj Agrawal) was elected as Secretary and Mrs. Deepti Agrawal was elected as the Treasurer.
The Assistant Registrar on having received these documents relating to the claim of renewal, registration of list of office bearers and the rival elections set up by Pradeep Agrawal and Neeraj Agrawal, issued notices on 1.1.2011, 21.2.2011, 7.3.2011 and 24.3.2011.
Pradeep Agrawal himself and Sri Sharad Agrawal who claims himself to be the Manager of one of the institutions filed their objections in support of their claim, and on the other hand Neeraj Agrawal alongwith Dhir Lalit Agrawal filed his objections in relation to his claim as mentioned aforesaid.
The Assistant Registrar passed orders on 23rd March, 2012 whereby he held that Pradeep Agrawal had submitted documents which were not in accordance with the bye-laws, and therefore, no renewal can be granted on the basis of the said claim. The said claim was accordingly rejected. He simultaneously accepted all the documents filed by Neeraj Agrawal to be valid and while granting renewal to the society also accepted the resolution dated 3rd October, 2010 and registered the list of office bearers. It is this order which has been challenged by Pradeep Agrawal in writ petition No. 51808 of 2012 contending that the order is without jurisdiction and even on facts it is against the weight of evidence on record as well as ignoring the bye-laws of the society.
The dispute took another turn thereafter when it is alleged that the contending parties had not accepted the order of the Assistant Registrar to be correct and therefore a notice was circulated on 6th April, 2012 to resolve the dispute. Another proposal was made with regard to the amendments in the bye-laws of the society which was also made subject matter of discussion in the meeting that was held on 15th April, 2012. This meeting is said to have been attended by the members of the society where it was resolved to hold fresh elections and reconstitute the Executive Committee on 24th April, 2012. The amendment in the bye-laws that was proposed was approved with a resolution to hold the fresh elections in accordance with the amended bye-laws.
A notice is said to have been circulated on 16th April, 2012 as alleged by Sri Manish Goyal for holding the meeting on 24.4.2012 on which date all these proceedings were approved and a fresh Executive Committee was constituted on the basis of a consent between all the members who participated in the meeting held on 24.4.2012. The factum of the holding of the meeting and the reconstitution of the Committee of Management under the resolution dated 24.4.2012 has not been denied by either of the parties. There is however a dispute being raised by Sri Pradeep Agrawal with regard to the validity of these proceedings on account of Neeraj Agrawal backing out and resiling from fully implementing the said consent constitution.
Sri Pradeep Agrawal has not stated anything about these proceedings either in his writ petition or in the plaint of the Original Suit No. 836 of 2012. However, in the counter affidavit filed in writ petition No. 50453 of 2012, he has admitted in paragraphs 17 and 18, that on account of the intervention of some well-wishers of the family and some advise having been accepted, it was thought fit by the parties to put a quietus to the dispute. Accordingly an application was filed on the basis of the consent elections dated 24.4.2012. It is however stated that Neeraj Agrawal had altered his position and he was insisting on the acceptance of his list of office bearers that had been accepted by the Assistant Registrar on 23.3.2012, inspite of the fact that Neeraj Agrawal was a party to the consent elections dated 24.4.2012.
Having seen the aforesaid development in Neeraj Agrawal, Pradeep Agrawal approached the learned Commissioner with a petition described as an appeal, and the learned Commissioner passed orders staying the operation of the order dated 23.3.2012 of the Assistant Registrar and subsequently extended the same and has admitted the appeal for hearing. As noted above, these orders have been challenged by Neeraj Agrawal in writ petition No. 50453 of 2012 where parties have exchanged affidavits, and the written instructions of the learned Standing Counsel on behalf of the learned Commissioner has been received.
In the aforesaid background Anand Agrawal who has been shown to be elected as the President of the Society in the meeting held on 24.4.2012 has filed writ petition No. 51845 of 2012 for implementation of the said resolution and the registration of the list of office bearers elected therein by the Assistant Registrar under Section 4 of the 1860 Act.
The first writ petition has been filed assailing the order dated 23.3.2012 after the filing of the other two writ petitions, which order is subject matter of the appeal before the learned Commissioner.
Sri Ashok Khare, learned Senior Counsel for Neeraj Agrawal has advanced his submissions in writ petition no. 50453 of 2012 contending that the proceedings before the Commissioner are patently without jurisdiction and therefore they cannot be sustained. He submits that the order of the Assistant Registrar dated 23rd March, 2012 is an order granting renewal to the society and the same is not appealable under Section 12-D(2) of the 1860 Act. He therefore submits that the entire proceedings before the learned Commissioner are without jurisdiction.
Replying to the said submissions, Sri Ravi Kant, learned Senior Counsel contends that since the renewal was obtained on the basis of forged and manipulated documents filed by Neeraj Agrawal therefore the Commissioner while proceeding to consider this aspect of the matter can cancel and set aside the renewal obtained under Section 3-A of the Societies Registration Act, 1860 readwith the provisions referred to in the instructions sent by the Commissioner to the learned Standing Counsel who has placed the same before the Court. The learned Commissioner has justified the entertaining of the appeal arising out of the renewal of the society under Section 12-D(2) of the 1860 Act.
Having perused the provisions referred to by the learned counsel in support of their submissions, it is clear that the dispute arose out of non-renewal of the society after 10.10.2005. Two sets of documents were filed and the claim of renewal was made by the then Secretary Mr. Pradeep Agrawal who also admittedly furnished the original certificate at the time of renewal which was in his custody. This application for renewal was filed on 16.11.2010.
The petitioner - Neeraj Agrawal appears to have filed his application on 20th December, 2010 on the strength of an election dated 3rd October, 2010 claiming that he had been elected as a Secretary, as the erstwhile office bearers had not held any meeting for constitution of the Executive Committee the term whereof is only three years. In short the claim of Neeraj Agrawal was based on the strength of his fresh elections dated 3rd October, 2010 simultaneously praying for renewal of the society. The Assistant Registrar has delved into this question in the impugned order and has found that the elections as projected by Neeraj Agrawal were valid and on that basis he has accepted the documents filed by him, including his list of office bearers and has issued the renewal certificate of the society in his favour. This he purports to have done in the exercise of powers under Section 4 read with the provisions of Section 3-A of the Societies Registration Act, 1860.
The Assistant Registrar in fact had not exercised any power of the cancellation of the registration of the society under Section 12-D(1) of the 1860 Act. The order dated 23rd March, 2012 was therefore not an order by any stretch of imagination under sub-section (1) of Section 12-D so as to entertain an appeal under sub-section (2) thereof. The Court is unable to find any justification for entertaining such an appeal by the learned Commissioner under Section 12-D(2) readwith Rule 14 of the Uttar Pradesh Societies Registration Rules, 1976.
A right of appeal is a statutory right and is available for the purpose for which such an appeal is provided for. The entire object of the provision of an appeal therefore is to provide a forum for challenging an order relating to the cancellation of the registration of the society. The Court is unable to find any logic, reason or any provision of law that may support the entertaining of the appeal by the learned Commissioner and the passing of the impugned orders by him. The Commissioner has acted in a manner which can only be described as proceedings coram-non-judice. The right of appeal is clearly confined and limited to the cancellation of a registration under Section 12-D(1) and it nowhere provides for an appellate forum in relation to the dispute of the office bearers of a society or the registration of the list of office bearers under Section 4 of the 1860. Thus, the Commissioner for reasons best known to him has undertaken upon himself a task which he is otherwise not enjoined in law to perform. The orders dated 30th July, 2012 and 21st September, 2012 are all without authority and hereby quashed. Writ Petition No. 50453 of 2012 is accordingly allowed.
Coming to the other two writ petitions it would be appropriate to deal with writ petition No. 51808 of 2012 that assails the order dated 23rd March, 2012. For this, it would be appropriate to traverse the claim of either side. Pradeep Agrawal who is the petitioner in writ petition No. 51808 of 2012 assailing the said order, submits that there is no dispute with regard to the elections held on 12th November, 2006 in which he was elected as the Secretary, and one Anil Agrawal was the President. He however submits that fresh elections were held on 8.11.2009 in which Anil Agrawal was elected as President and he was elected as the Secretary. It is to be noticed that the application for renewal that was moved by Sri Pradeep Agrawal on 16.11.2010 did indicate the list of office bearers from 2006 to 2010, but the affidavit filed in support thereof did not indicate or made any mention about the holding of elections on 8.11.2009. A copy of the affidavit in support of the application for renewal is Annexure 1 to the writ petition. It appears that after the dispute had arisen before the Assistant Registrar and the matter was being contested that Pradeep Agrawal filed an application on 29.8.2011 claiming that elections had been held by him on 8.11.2009 in which he was elected as the Secretary of the society. This is evident from Annexure 9 to the writ petition no. 51808 of 2012.
The proceedings dated 12.11.2006 have been brought on record alongwith the alleged elections dated 8.11.2009. Having perused the same there does not appear to be any document further to support the holding of the meeting on 8.11.2009 for the elections as projected by Sri Pradeep Agrawal where he has been shown to have been elected as Secretary. The contesting opposite party Neeraj Agrawal has nowhere been indicated as holding any office nor his father Anand Agrawal appears to have been given any berth in the said elections.
It is however to be noted that in the undispute elections dated 12.11.2006 also, these persons have not been shown to be any office bearer, and it is Pradeep Agrawal who is shown as Secretary and one Mr. Subhash Godboley has been shown to have been elected as the Vice President.
On the other hand Neeraj Agrawal set up his elections dated 3rd October, 2010 which he claims to have been held under the presidentship of the Vice President. The proceedings dated 3rd October, 2010 which have been brought on record nowhere indicate as to who was the Vice President said to have chaired the said meeting. The proceedings which have been filed by Sri Neeraj Agrawal contained in Annexure 2 to the writ petition No. 50453 of 2012 indicate that 40 out of 74 members of the General Body had attended the meeting under the chairmanship of the Vice President. Mr. Sanjay Agrawal was elected as the Vice President in the said elections. It appears that Mr. Godboley was the Vice President prior to that. There is no endorsement by Mr. Godboley about the said proceedings and there are only four signatories to the said documents which have been filed before the Assistant Registrar. It is on record that during the contest before the Assistant Registrar, Mr. Godboley had filed his affidavit which were part of the objections of Sri Pradeep Agrawal that he has neither chaired any such meeting nor any such election was held on 3.10.2010.
Sri Ravi Kant contends that this fact was clearly stated in paragraph 17 of the objections filed, copy whereof is Annexure 7 to the writ petition No. 51808 of 2012. He submits that this aspect was completely overlooked by the Assistant Registrar and therefore the order dated 23rd March, 2012 is perverse.
He further contends that the meeting dated 3rd October, 2010 is projected by Neeraj Agrawal to be in accordance with the bye-laws which is absolutely incorrect. He also submits that it was not held in accordance with the Bye-law Nos. 12 and 13 readwith Bye-law No. 14 which prescribe the mode of calling of meetings.
He further urges that a meeting of the society could have been called on a requisition made by 10 members of the society. He submits that even this requisition was not tendered nor is there any evidence to indicate that any such meeting was held on a requisition of 10 members as per Bye-law No. 15. He contends that this aspect has also been ignored by the Assistant Registrar and therefore the order is invalid.
Sri Ravi Kant then contends that if it was a dispute with regard to the elections set up by the rival parties then the Assistant Registrar had no jurisdiction to entertain this dispute and it was squarely covered by the provisions of sub-section (1) of Section 25 of the 1860 Act according to which the matter ought to have been referred to the Prescribed Authority for decision.
He has further raised an oral submission that the said meeting appears to have allowed the participation of 31 new members who have never been enrolled in accordance with the bye-laws nor any subscription has been deposited, and therefore the participation of such new members either in the meeting held on 3rd October, 2010 or even thereafter in any of the meetings as alleged by Neeraj Agrawal would vitiate the same.
Sri Khare has however defended the said proceedings but he submits that in the changed circumstances if the meeting held on 24.4.2012 for reconstitution of the Committee of Management is accepted then the said issue of the elections dated 3rd October, 2010 would become irrelevant. He however submits that the order dated 23rd March, 2012 had not been assailed before any forum earlier and the challenge to the same at this stage is a complete afterthought. He submits that the order dated 23rd March, 2012 is a fait accompli and if the proceedings dated 24th April, 2012 are not accepted then the order dated 23rd March, 2012 survives which does not suffer from any legal infirmity and therefore deserves no interference by this Court.
He further submits that Pradeep Agrawal has already filed Civil Suit No. 836 of 2012 and having availed of this remedy the present writ petition cannot be entertained.
Replying to the said submissions Sri Ravi Kant submits that the consent proceedings dated 24th April, 2012 are not in accordance with the bye-laws and the General Body cannot by itself assume a power to constitute the Committee of Management which can only be done through elections under the bye-laws as provided therein. He contends that there is no such procedure for accepting a consent Committee of Management virtually through a compromise and therefore enforcement of the list of office bearers under such a compromise in supercession of validly held elections in 2009 is unacceptable. He contends the Court will not enforce an unlawful agreement inasmuch as, if the meeting dated 24.4.2012 is not accordance with the bye-laws then it cannot be supported under any provision of the Societies Registration Act, 1860.
He further submits that the order dated 23rd March, 2012 violates Section 3-A(4) of the Societies Registration Act which mandates that the renewal shall be granted on the production of the original certificate only. He submits that it was Pradeep Agrawal who tendered the original certificate and therefore any claim of renewal by Neeraj Agrawal, who did not possess the original certificate nor was it provided by him, ought to have been rejected. He submits that the Assistant Registrar travelled into the validity of the list of office bearers of 2006 which was not even disputed nor was there any challenge to the elections dated 8.11.2009.
There was no document to support the requisition of any meeting dated 3rd October, 2010. Inspite of these glaring deficiencies and facts on record the Assistant Registrar has proceeded to pass the impugned order which deserves to be quashed.
Replying to the aforesaid contentions Sri Ashok Khare submits that the holding of fresh elections on 24th April, 2012 through the General Body is not a constitution of a Committee by compromise but it is a valid resolution by the General Body which is unanimous in nature. He submits that there is no bar or prohibition in the bye-laws restraining the General Body or prohibiting it from reconstituting the Committee of Management through such a procedure as the General Body will be presumed to have all such residuary powers. He submits that if the proceedings dated 24th April, 2012 are not being accepted then in that event there is no infirmity in the order dated 23rd March, 2012 for this Court to set aside the same. He further contends that if the compromise has been entered into on 24th April, 2012 then the said resolution will be deemed to have superseded all earlier proceedings, including the order of the Assistant Registrar in so far as it relates to the registration of list of office bearers only. The order would survive even otherwise as it grants renewal to the society. He has on oral instructions stated that the contention that new members have been enrolled is absolutely incorrect.
Sri Manish Goyal, while advancing his submissions for enforcing the resolution dated 24.4.2012 through writ petition No. 51845 of 2012 filed by Sri Anand Agrawal contends that the order of the Assistant Registrar dated 23.3.2012 is inoperative, and therefore the Assistant Registrar had the power to entertain a fresh resolution for which he should exercise his powers under Section 4 and register the list of office bearers as elected on 24.4.2012. Needless to mention at this stage that Anand Agrawal is the father of Neeraj Agrawal who is the other contestant referred to hereinabove who is clearly proposing to support the Committee constituted on 24.4.2012.
It has been pointed out and even admitted by Sri Ashok Khare that a suit has also been filed by Sri Neeraj Agrawal before the Civil Court.
The aforesaid background, therefore makes it clear that the dispute of the list of office bearers as projected by either side was the subject matter of consideration before the Assistant Registrar, Firms, Societies and Chits when he was proceeding to consider renewal of the society while passing the order dated 23rd March, 2012. In the opinion of the Court, the Assistant Registrar had no jurisdiction to accept or reject the claim of office bearers while granting renewal to a society. At the best he could have renewed the society and while doing so he ought to have taken notice of the production of the original certificate as well. The Assistant Registrar did not do so as no reasoning has been given by him in the impugned order. Even assuming for the sake of arguments that he could have exercised his powers for registering the list of office bearers under section 4, the moment he was faced with two rival sets of elections, he ought to have referred the matter to the Prescribed Authority under Section 25(1) of the 1860 Act in view of the clear law laid down on this subject in the case of All India Council and Anr. v. Asstt. Registrar Firms Societies and Chits, Varanasi Region, Varanasi and Anr. reported in AIR 1988 Allahabad Pg. 236. The Division Bench of this Court has held that the scope of Section 4 and Section 25 are distinct and they operate in different fields. What is included in Section 25 cannot be subject matter of Section 4 of the 1860 Act.
In the instant case there were two sets of elections and two sets of office bearers with Pradeep Agrawal as the earlier officer bearer are on one side and Neeraj Agrawal claiming himself to be elected as a new Secretary on 3rd October, 2010 on the other. This therefore was a clear dispute of the election of office bearers which was not within the jurisdiction of the Assistant Registrar, Firms, Societies and Chits, and therefore the order dated 23rd March, 2012 is also unsustainable in the eyes of law for want of jurisdiction to the extent of the dispute of office bearers. The order therefore to that extent is set aside without disturbing the renewal of the society.
The argument that has been advanced on behalf of Anand Agrawal father of Neeraj Agrawal appears to be that once the fresh Committee has been constituted on 24th April, 2004, the order dated 23rd March, 2012 had become inoperative. I am unable to agree, inasmuch as, the elections set up by Neeraj Agrawal dated 3rd October, 2010 had been accepted in the said order. As pointed out hereinabove, the Assistant Registrar did not even care to attend to the circumstances of the validity of the meeting dated 3rd October, 2010 for which evidence had been filed by Pradeep Agrawal to contend that the meeting appears to have been concocted. It was clearly stated that Mr. Godboley who was the then admitted Vice President had not chaired the meeting dated 3rd October, 2010 and had also filed his affidavit. This aspect has been completely ignored by the Assistant Registrar which vitiates his order on merits relating to the elections dated 3rd October, 2010. To the Court it appears that it is in order to avoid this dispute, that all the parties came to the table, and set up a resolution dated 24th April, 2012 so as to take away the effect of the acceptance of the list of office bearers by the Assistant Registrar in the order dated 23.3.2012. This is also evident from the notices that were issued for convening the meeting dated 24.4.2012 and the resolution passed therein. Even though the parties appear to have abandoned all rights and claims on the basis of the order Assistant Registrar, Neeraj Agrawal appears to have filed his objections on 23rd April, 2012 reasserting his rights and which is on record. It is for this reason also that it was necessary to adjudicate the correctness or otherwise of the order dated 23.3.2012 as Neeraj Agrawal has been probating and approbating his stand back and forth which appears to be the reason for Pradeep Agrawal to challenge the order dated 23.3.2012.
In the aforesaid circumstances, it is necessary to clarify the position on facts and law, which impels this Court to interfere with the order dated 23.3.2012 and declare it to be without jurisdiction so far as it relates to the elections and continuance of the office bearers of the society. Accordingly, the writ petition No. 51808 of 2012 is allowed to the aforesaid extent.
Coming to the third writ petition filed by Anand Agrawal, this is for a mandamus to direct the Assistant Registrar to implement the consent elections dated 24.4.2012 which have not yet been dealt with and the Assistant Registrar had only issued notices calling upon the parties to indicate their options. Before the Assistant Registrar could apply his mind under Section 4 of the Act to the proceedings dated 24th April, 2012 the Commissioner intervened and passed the orders which have been quashed in the order relating to the writ petition No. 50453 of 2012.
The Assistant Registrar had not proceeded to apply his mind to the aforesaid claim of the parties.
As noted hereinabove, the factum of the holding of the meeting on 24.4.2012 has not been disputed nor could it be disputed as indicated hereinabove. The only dispute raised by Sri Ravi Kant is about the validity of the resolution adopted on the ground that it does not conform to the bye-laws of the society, and therefore, it is not a compromise resolution which can be legally enforced.
In my opinion, this plea on equities should not be entertained in the exercise of jurisdiction under Article 226 when the factum of participation is not being denied. The convening of the meeting dated 24.4.2012 is therefore accepted. The only question is as to who were the valid members entitled to participate in the said meeting and also the power of the General Body to reconstitute the Committee of Management on the basis of a consent which is being alleged to be unanimous. To my mind, this issue involves the participation of the valid members in the meeting held on 24.4.2012 as also the residuary powers of the General Body as urged by Sri Khare to constitute such a Committee.
Sri Goyal has pointed out that the meeting was validly convened and everything having been done by the consent of the parties, the resolution dated 24.4.2012 deserves to be accepted by the Assistant Registrar for enlisting the list of office bearers.
This Court would have authorised the Assistant Registrar to have gone into this question namely the participation of the members of the General Body in the meeting held on 24.4.2012 and the validity thereof together with the authority of the General Body to reconstitute the Committee of Management in such circumstances, but what the court finds is that the elections dated 8.10.2009 as set up by Pradeep Agrawal were not accepted and the same appears to have been set up after the dispute had been raised by Neeraj Agrawal about his elections dated 3rd October, 2010. This has been pointed out above that the claim of fresh elections have been set up by Pradeep Agrawal only in November, 2011 and was not part of his application of renewal which he had moved on 16.11.2010. The elections of Neeraj Agrawal do not appear to be valid as indicated above as the meeting itself was neither in accordance with the bye-laws nor it was presided over by the Vice President as claimed by him.
Thus both the elections set up by the rival parties do not inspire confidence. The tenure of the Committee of Management is only three years and the undisputed elections were of 2006. Thus there is no validly elected Committee of Management after 2006.
The elections of both parties being invalid, and the tenure of the 2006 elections having came to an end, the Assistant Registrar had to hold elections under sub-section (2) of Section 25 of the 1860 Act. The question of holding elections on 24.4.2012 by consent therefore does not arise as elections have to be held by the Assistant Registrar in the circumstances indicated above. Once it is established that none of them had been validly elected, the question of seeking a mandatory injunction from the Civil Court also does not arise.
The Court would also like to put on record that all the contesting parties belong to a family of repute and they can avoid litigation if they intend to honestly run the society, and not wrestle among themselves for dominance. This nature of dispute tempts parties to indulge in paper transactions that leads to a situation as was subject matter of dispute in Allahabad High School Society, Allahabad Vs. State of U.P. and others reported in 2011 (6) SCC Pg. 118, followed by criminal prosecution. Lawyers and Doctors are required to be engaged in extremely necessary and unavoidable situations and not for settling scores of a charitable society.
In my opinion, instead of allowing the Assistant Registrar to involve the contesting parties in a fresh round of litigation it would be appropriate that the Assistant Registrar is directed to hold fresh elections within two months from today.
The prayer made by Sri Anand Agrawal, therefore, to implement the resolution dated 24.4.2012 is declined in so far as it relates to the registration of the list of office bearers dated 24.4.2012 with a direction to the Assistant Registrar to determine the electoral college with the assistance of the rival parties and considering their objections in relation thereto within one month from today.
The parties shall file their respective papers and an opportunity of hearing shall be given by the Assistant Registrar to determine the status of the valid members of the society who are enrolled and entitled to participate in the elections of the Executive Committee of the society. Upon determination of such electoral college, the Assistant Registrar shall fix a date for the elections of the Executive Committee which shall be held in the premises of D.P. Girls Inter College, preferably on a Sunday so as not to disturb the educational activity of the institution within the time as directed hereinabove and the Executive Committee so elected shall be registered with the Assistant Registrar.
There is one fact to be noted about the amendments that have been made in the bye-laws including the tenure which has now been extended to five years. The amendments would be placed for ratification before the newly elected committee to be then placed on record of the Assistant Registrar. The tenure of the newly elected committee shall be in accordance with the same.
All writ petitions stand disposed of accordingly subject to the directions contained hereinabove.
Order Date: 15.10.2012 Sahu