This writ petition questions the legality of the order dated 20th January, 2011 passed by the respondent no. 1 the Assistant Registrar, Firms, Societies and Chits, Varanasi finalising the electoral college list of members entitled to participate in the elections that were scheduled to be held under the orders of the Assistant Registrar dated 13.10.2010 for electing the office bearers of Kisan National Education Trust, Pratapganj, Jaunpur. It is undisputed between the parties that the elections had to be held by the Assistant Registrar as the earlier term of the office bearers had expired, and no elections had been held, as such it was obligatory on the part of the authority to hold elections under Sub Section (2) of Section 25 of the Societies Registration Act, 1860.
In order to proceed to hold the elections of the aforesaid society it was necessary to determine the electoral college for which the petitioners and the contesting respondent no. 3 were invited to submit the list of the members and also the evidence in support thereof. The impugned order rejects the membership list as submitted by the petitioners as also by the respondent no. 3 Anil Kumar Upadhyay (since deceased and now represented by Badri Prasad Mishra) and it directs to hold the elections on the basis of 51 life members who were enrolled and were existing at the time of the death of the undisputed Manager, Sri Bateshwar Nath Upadhyay.
The dispute has a chequered history and as such it is necessary to narrate the background in which the present dispute has arisen. This Court had entertained the writ petition and allowed the Assistant Registrar to proceed to hold the elections but the declaration of results was stayed vide order dated 14.2.2011. The matter had been heard earlier and the judgment was reserved but before the delivery of judgment, the matter was again listed for further hearing, and accordingly the matter has been heard on 23.3.2012 finally. Sri Gajendra Pratap, learned Senior Counsel has appeared on behalf of the petitioners and Sri R.K. Ojha has raised his submissions for the respondent no. 3 and the learned Standing Counsel for the respondent no. 1 and 2.
The Society was initially registered on 20.11.1946 and was renewed from time to time uptil 1990. The renewals were sought thereafter.
There is another society known as Sansthapak Mandal that manages a degree college which came to be registered in the year 1962. The existence of the Sansthapak Mandal is connected with the parent society, inasmuch as, the memorandum of the Sansthapak Mandal and the rules and regulations framed thereunder provide that if any vacancy of a member is caused in the Sansthapak Mandal due to death then it shall be filled in by any capable member of the family of Bateshwar Nath Upadhyay. This is contained in Clause - D of the said rules and regulations.
Further while prescribing the disqualification and end of tenure of membership of the members of the Sansthapak Mandal, the rules and regulations under Clause 4(G) provides that if a member of the Sansthapak Mandal resigns, then it shall be filled up by one of the life members of Kisan National Education Trust. Such a member can be co-opted in the Sansthapak Mandal by a 2/3rd majority of the Sansthapak Mandal. It is undisputed between the parties that it is only a member of the Kisan National Education Trust who can be co-opted in the Sansthapak Mandal in the case of resignation of a member. As noted above on the death of a member, the vacancy can be filled up by any capable member of the family as contained in Clause D.
The aforesaid fact is to be necessarily noted, inasmuch as, a dispute arose with regard to the office bearers of Sansthapak Mandal Society which manages the degree college set up by the society. Late Bateshwar Nath Upadhyay was the undisputed president of the said society and the dispute appears to have ensued between the respondent Anil Kumar Upadhyay and the petitioner Arun Kumar Upadhyay claiming descent from the same family. One Rudra Pal Pandey was stated to have been nominated as the Secretary after the death of Sri Bateshwar Nath Upadhyay. His succession to the said office of the Sansthapak Mandal became subject matter of dispute in several writ petitions and it travelled upto this Court finally in Writ Petition No. 10541 of 1990. It is not necessary to narrate the background of the said case as the judgment is already on record dated 17.3.2004.
The Assistant Registrar had passed an order on 29.1.1990 which was challenged therein. The Assistant Registrar had held that Anil Kumar Upadhyay came to be substituted in place of his father and therefore he became the President of the Sansthapak Mandal after Bateshwar Nath Upadhyay. The Assistant Registrar refused to refer any dispute being raised and therefore the present petitioners challenged the said order of the Assistant Registrar contending that they are the valid office bearers of Sansthapak Mandal and as such the matter ought to have been referred to the prescribed authority under Section 25 of the 1860 Act. This Court finding force in the argument of the petitioners allowed the writ petition and referred the entire dispute to the prescribed authority relating to the office bearers of Sansthapak Mandal Society only, with a further direction to maintain status quo with regard to the office of President of the Sansthapak Mandal till the matter is disposed of.
The Prescribed Authority on 2.4.2005, in a dispute relating to Sansthapak Mandal, came to the conclusion that Rudra Pal Pandey had been rightly elected as Secretary as he had been a member of the Kisan National Education Trust Society. It was held that by virtue of being a member of the aforesaid society Rudra Pal Pandey had been rightly co-opted in the Sansthapak Mandal Society.
The dispute raised by the respondent Anil Kumar Upadhyay before the prescribed authority was that it is only a member of the family who could be co-opted on the death of a member, and as such Rudra Pal Pandey could never have been elected as a Secretary of the Sansthapak Mandal. However, while dealing with this issue an observation was made by the Prescribed Authority that Rudra Pal Pandey was validly co-opted as a member of the Sansthapak Mandalas he was a member of the Kisan National Education Trust Society.
Before proceeding further and in the aforesaid background it needs to be repeated that the present dispute does not relate to the Sansthapak Mandal Society but to the election of the office bearers of Kisan National Education Trust Society. The dispute, therefore, is confined to the validity of the electoral college and Kisan National Education Trust Society.
The order of the Prescribed Authority dated 2.4.2005 which has been referred to hereinabove, is therefore, in relation to the Sansthapak Mandal and its office bearers.
Sri Gajendra Pratap, learned Senior Counsel for the petitioners urges that the order of the Prescribed Authority dated 2nd April, 2005 passed in the dispute relating to Sansthapak Mandal Society operates as res-judicata in relation to the present dispute and certainly the principles of constructive res-judicata are also attracted. He further submits that the respondent has acquiesced to the said decision and therefore it will amount to acquiescing to the membership which is presently in dispute as it ought to have been raised at that moment. He further submits that this membership and its enrollment is of the year 1985 which was never objected to and remained undisputed till 1989 according to the impugned order itself. In such a situation, this conduct of the respondent in not assailing the said membership also amounts to an acquiescence on the part of the respondent, hence, the Assistant Registrar has committed a manifest error by reopening the said issue and recording a finding thereon. He further contends that the respondent no. 3 never pleaded absence of knowledge of the enrollment of the members presently in dispute and therefore it can be presumed that inspite of having knowledge of the said enrollment, no challenge was raised to it till 1989.
He further contends that the impugned order records a finding that since the membership fee was deposited in 1988, therefore, the enrollment is doubtful. This finding according to Sri Gajendra Pratap is based on surmises and conjectures, inasmuch as, even presuming that the deposit was made in fact in 1988 the membership cannot be invalidated on account of a subsequent deposit.
He contends that this dispute of enrollment of membership as claimed by the petitioner should be construed in the light of the order of the Prescribed Authority where the petitioner no. 3 Rudra Pal Pandey has been accepted as a member of the Kisan National Education Trust. He, as a natural corollary to that, contends that the other 46 members enrolled with Rudra Pal Pandey should also be treated to have been validly enrolled as members which aspect has eben completely overlooked by the Assistant Registrar, hence, the impugned order is vitiated.
The thrust of the submission of Sri Gajendra Pratap therefore is that in fact no such dispute of the membership of 47 members could have been put to scrutiny and it should be deemed to have been accepted with the order of the Prescribed Authority dated 2nd April, 2005 making a declaration to that effect.
It is in the aforesaid background that he has advanced his submissions of acquiescence and constructive res-judicata. Accordingly, he urges that the discarding of the 47 members as set up by the petitioners by the Assistant Registrar is a perversity writ large on account of the non-consideration of relevant material and therefore the impugned order deserves to be quashed.
Replying to the aforesaid submissions Sri R.K. Ojha contends that there are two distinct societies and merely because Rudra Pal Pandey was accepted as an office bearer of Sansthapak Mandal the same does not amount to validating the membership of all the 47 members. He submits that the issue of 47 members was neither raised nor decided by the Prescribed Authority in the order dated 2.4.2005 and as such there is no occasion to press into service the argument of constructive res-judicata. He further contends that there is no acquiescence even if there was knowledge of the alleged enrollment, inasmuch as, the said enrollment is the outcome of a fake and manipulated proceedings register that was prepared and a finding to that effect has been recorded by the Assistant Registrar on the basis of material adduced on record. He submits that all the proceedings and the documents filed by the petitioner after 10th January, 1985 have been found to be manipulated being without any agenda, and on the basis of an absolutely illegal resolution alleged to have been passed on 8.8.1985. He submits that it is for this reason that the Assistant Registrar has concluded that the documents filed by the petitioners are not the original proceedings and have been conveniently prepared to suit their own purpose.
Learned Standing Counsel on the other hand contends that the order of the Assistant Registrar is fully justified as he has rejected the membership set up by both the parties and has rightly proceeded to get the elections held on the basis of the undisputed life membership of the electoral college of the society. He further contends that the order of the Prescribed Authority in the matter of Sansthapak Mandal dated 2.4.2005 will not operate as res-judicata nor will it be an impediment in the passage of the Assistant Registrar to decide the electoral college afresh for holding elections after the expiry of the tenure of the erstwhile office bearers of Kisan National Education Trust.
Having heard learned counsel for the parties the contention of Sri Gajendra Pratap for the petitioners that the issue of membership of Kisan National Education Trust Society had already been decided vide order dated 2.4.2005 cannot be accepted for the reason that the proceedings dated 20.8.1985, when 47 members including Rudra Pal Pandey are alleged to have been enrolled, was not in issue before the Prescribed Authority. This is evident from the four issues which were framed before the Prescribed Authority and which only related to the election of Arun Kumar Upadhyay and Anil Kumar Upadhyay after the death of Bateshwar Nath Upadhyay in Sansthapak Mandal Society which is a different society.
Apart from this while recording that Rudra Pal Pandey was validly elected as Secretary of the Sansthapak Mandal, the Prescribed Authority assumed him to be a member of Kisan National Education Trust. The Prescribed Authority did not make any enquiry into the validity of the resolution dated 20.8.1985 nor was it contested before the Prescribed Authority that the said resolution was invalid. It appears that the respondent no. 3 Anil Kumar Upadhyay had disputed the claim of Rudra Pal Pandey as Secretary of Sansthapak Mandal Society on the ground that he was not a member of the family and therefore he could not have been elected as the Secretary of the Sansthapak Mandal .
The submission of the learned counsel for the respondent Sri R.K. Ojha appears to be correct that if the bye-laws of Sansthapak Mandal are seen, then in the case of death of a member it is only a member of the family who can be included whereas the question of co-option from the Kisan National Education Trust arises only on the contingency of resignation. There is nothing on record to indicate the validity of the enrollment of Rudra Pal Pandey in Kisan National Education Trust put to debate. To the contrary, the stand taken in the writ petition is that Rudra Pal Pandey was inducted as a member under the resolution dated 20.8.1985 on payment of a membership fee. Thus, before the Prescribed Authority there was no issue relating to the basic enrollment of Rudra Pal Pandey and hence the argument of res-judicata or constructive res-judicta has no legs to stand.
Again there was no occasion for such an issue to have been raised for the other 46 members, inasmuch as, the other 46 members were nowhere concerned with the co-option in Sansthapak Mandal Society. Thus, there cannot be any acquiescence or any principle of res-judicata to be applied in respect of these 46 members other than the Rudra Pal Pandey being alien to the controversy of Sansthapak Mandal. The Prescribed Authority while deciding the dispute of office bearers of Sansthapak Mandal on 2nd April, 2005 did not even remotely touch the dispute relating to the electoral college of Kisan National Education Trust.
Apart from this, such an issue may have been or could have been raised but the same was absolutely unnecessary for at least the other 46 members who form a majority of the electoral college as proposed by the petitioners. The reason is simple that the reference before the Prescribed Authority arose out of the judgment of the High Court dated 17.3.2004 which also does not enlist an issue for deciding the validity of the resolution dated 20.8.1985 and the enrollment of 47 members as claimed by the petitioners. The only issues that were referred were in relation to the fact as to whether Anil Kumar Upadhyay could be nominated as President or Sansthapak Mandal and as to which of the bye-laws of the said society were genuine. The same would govern the fresh elections of that society that were set up in 1990. All these issues, therefore did not concern the dispute of the electoral college of Kisan National Education Trust.
For all the aforesaid reasons, the argument that the membership was not disputed till 1989 is of no avail as neither did any occasion arise for such a dispute nor such a dispute was ever decided. The observation made by the Prescribed Authority about one sole member Rudra Pal Pandey is on the basis of an assumption and not on the basis of any adjudication. Consequently, the argument of Sri Gajednra Pratap on this score has to be rejected.
Coming to the issue of the validity of the enrollment of the members on 20.8.1985, I have carefully perused the proceedings dated 20.2.1985 followed by the proceedings dated 20.8.1985 as relied upon by the petitioner. These proceedings have been brought on record as Annexure 11 to the writ petition. The proceedings dated 20.2.1985 allegedly authorize Dr. Arun Kumar Upadhyay the petitioner no. 2 as the Secretary of the society to enroll new members within six months. According to the document on record this resolution was passed by the general body of the society in the presence of the then 37 members under the chairmanship of one Durga Prasad Pandey.
The proceeding dated 20.2.1985 is followed by the recording of the proceedings dated 20.8.1985 also of the general body and it names the 47 persons who were enrolled as members on that date and also bears their signatures. The resolution is recorded on the next page whereafter the proceedings book records the resolution dated 20.6.1988.
The proceedings dated 20.8.1985 nowhere indicate the signatures or even the names of the members of the general body who were present on that date to accept the 47 persons as members. The recording of the 47 names and their signatures was therefore absolutely irrelevant, inasmuch as, these persons were enrolled members on the same day. The proceeding book therefore does not incorporate the names or the signatures of the then existing members of the general body as was recorded on the preceding date of 20.2.1985.
The said proceeding therefore dated 20.8.1985 has no valid existence as it is not supported by either the names or the signatures of any of the then existing members of the general body. The names and signatures of those who were enrolled on the same date cannot be construed to be the membership of the body for the purpose of that meeting. Sri Gajendra Pratap on this issue was unable to substantiate by any evidence the validity of the said resolution dated 20.8.1985.
It is for this reason, that the Assistant Registrar considered this matter threadbare and also recorded that such meetings were not proceeded by any agenda nor any evidence was shown to that effect and therefore the proceedings book produced by the petitioners appears to be all manipulated and manufactured to suit the convenience of the petitioners. I am in full agreement with the finding so recorded by the Assistant Registrar and this finding of fact is based on the evidence brought on record by the petitioners themselves.
The said membership of 47 persons as recorded on 20.8.1985 also indicates that all the members had deposited their membership fee. The Assistant Registrar has rightly cast a doubt about the deposit of the membership fee after three years and the opening of a new bank account on 18th November, 1988. The petitioners have been unable to afford any reasonable or cogent explanation as to why this membership fee had not been deposited for three years and as to how the said membership fee came to be handled and in whose custody it remained for three years. In my opinion also, this circumstance was also taken genuinely to be a reason for the doubt and suspicion expressed by the Assistant Registrar for discarding the said claim of the petitioners.
Thus, on all counts, it is evident that the petitioners failed to prove the validity of the enrollment of 47 persons as set up by them as members of Kisan National Education Trust on 20.8.1985 and hence no fault can be found with the impugned order of the Assistant Registrar.
This Court had passed an interim order on the eve of the elections that were scheduled to be held on 15th February, 2011. According to the interim order the results were not declared.
In the circumstances the election results had not been announced and the office bearers had not taken over charge, thus, there is no need to order any fresh elections to be held as the said elections which were held on 15th February, 2011 had remained unannounced. The Assistant Registrar shall now proceed to declare the results in order to enable the office bearers so elected to take charge so as to allow them to function for the tenure as prescribed under the bye-laws.
The writ petition is dismissed and the interim order dated 14.2.2011 is discharged.
Dt. 26.3.2012 Sahu