1. Heard Sri P.N. Sexena, learned Senior Counsel assisted by Sri Rajneesh Kumar Srivastava for the petitioners and Sri R.K. Ojha, learned Senior Counsel assisted by Sri Ratnakar Upadhyay for the respondent no. 3 and the learned standing counsel appearing for the respondent nos. 1 & 2.
2. The petitioners have challenged the order dated 7.3.2014 passed by the Prescribed Authority and have prayed for a mandamus to be issued to the Prescribed Authority to decide the Reference Petition No. 2 of 2011 on its merits.
3. The facts as could be gathered from the pleadings on record and the judgments of this Court in earlier rounds of litigation filed by either of the parties are being given in brief as follows:-
4. There is a Society by the name of Kisan National Education Trust which was initially registered on 20.11.1946. It runs an Intermediate College and also a Degree College in Pratapganj, Jaunpur.
5. The Kisan National Education Trust (herein after referred to as 'Kisan Samiti') had no elections conducted for past several years. Some of the members of Kisan Samiti approached the Assistant Registrar, Firms, Societies and Chits and in pursuance thereof, the Assistant Registrar passed an order on 13.10.2010 directing that the elections be held for which membership was determined on 20.1.2011. The Kisan Samiti approached this Court in Writ Petition No. 8181 of 2011. This Court initially granted an interim order to the effect that the elections may be held in pursuance of the impugned order dated 20.1.2011, but the result may not be declared.
6. In the order dated 20.1.2011, the Assistant Registrar had expressed his doubt with regard to the membership list submitted by rival parties to the dispute. Anil Kumar Upadhyay submitted his list on 28.10.2010 containing 46 names whereas Dr. Arun Kumar Upadhyay submitted another list on 27.7.2010.
7. The Assistant Registrar in the initial order dated 22.12.2010 had accepted the list of members as submitted by Anil Kumar Upadhyay and Arun Kumar Upadhyay and also the list as registered in the office of the Registrar and circulated of provisional membership list of 202 members inviting objections. Both Anil Kumar Upadhyay and Dr. Arun Kumar Upadhyay had filed objections.
8. In the objections of Arun Kumar Upadhyay dated 6.1.2011, the list submitted by the rival claimants was doubted on the ground that he had been looking after the work of the Society during the lifetime of Bateshwar Nath Upadhyay his father, who was the founder Manager since long. Shri Anil Kumar Upadhyay was never elected as President nor Jagdish Upadhyay elected as Secretary / Manager. Infact the membership of Jagdish Upadhyay had been terminated in 1974 by a resolution of the general body. Anil Kumar Upadhyay had submitted a completely fabricated list of 80 members.
9. On the other hand, Anil Kumar Upadhyay in his objections dated 6.1.2011 disputed the list submitted by Arun Kumar Upadhyay saying that only the list that was in existence during the lifetime of late Bateshwar Nath Upadhyay under his signature could be considered to be the valid list of membership and should be taken as the electoral college.
10. Ultimately in his order dated 20.1.2011, the Assistant Registrar discarded the list submitted by both Arun Kumar Upadhyay and Anil Kumar Upadhyay and accepted 51 members as their names had been mentioned in the list submitted by late Bateshwar Nath Upadhyay. Some of the members had in the meantime died, only the names of dead members were deleted. Only such names of dead members were accepted as were common in the lists submitted by both Dr. Arun Kumar Upadhyay and Anil Kumar Upadhyay.
11. The list of 46 members so approved contained the names of 5 sons of late Bateshwar Nath Upadhyay, namely Anand Kumar Upadhyay, Awani Kumar Upadhyay, Anil Kumar Upadhyay, Dr. Arun Kumar Upadhyay, Arvind Kumar Upadhyay and also the name of Badrinath Mishra - the respondent no. 3. An election programme was thereafter published.
12. The petitioners challenged the order dated 20.1.2011 in Writ Petition No. 8181 of 2011. The declaration of result was stayed by order dated 14.2.2011.
13. This Court considered the arguments raised by the petitioner - Arun Kumar Upadhyay and the respondent no. 3 - Anil Kumar Upadhyay therein and dismissed the Writ Petition on 26.3.2012.
14. This Court on the perusal of the records summoned by it came to a conclusion that the proceedings of the alleged meeting of the general body dated 20.2.1985 and 20.8.1985 were both fabricated.
15. This Court disapproved the proceedings of 20.2.1985 and 20.8.1985 and observed that such meetings were not preceded by register any agenda nor evidence was shown that the proceedings were carefully maintained. It expressed its disagreement with the Assistant Registrar that all the members had deposited their membership fee as the deposit of fees by new members allegedly inducted in 1985 was made after three years by opening a new bank account on 18.11.1988. The petitioners failed to prove the validity of enrollment of 47 persons as set up by them as members of Kisan National Education Trust on 20.8.1985.
16. This Court therefore vacated the interim order and dismissed the Writ Petition No. 8181 of 2011 with a further direction that the Assistant Registrar having held the elections on 15.2.2011, should now proceed to declare the result in order to enable the office bearers so elected to take charge and to allow them to function for the tenure as prescribed under the Bye-laws.
17. Aggrieved by the order passed by this Court on 26.3.2012, Dr. Arun Kumar Upadhyay approached the Division Bench in Special Appeal No. 728 of 2012.
18. The Division Bench did not set aside the order passed by learned Single Judge, or the order dated 20.1.2011 passed by the Assistant Registrar. It observed that elections had been held in pursuance of the impugned order dated 20.1.2011. It disposed of the Special Appeal by observing that in case there remained some subsisting dispute relating to membership, it was open for the appellants therein to approach the Prescribed Authority under Section 25 of the Societies Registration Act. In case such a dispute is raised through Reference or by filing of Civil Suit, the same should be decided by the Authority concerned without being influenced by any of the observations made by the Court in its order dated 26.3.2012 or the order dated 23.4.2012 passed by the Writ-Court and by the Appellate Court respectively.
19. The petitioners - Dr. Arun Kumar Upadhyay and others filed a Reference Petition No. 2 of 2011 before the Prescribed Authority under Section 25(1) of the Societies Registration Act. In the meantime, the result of election of the Committee of Management of the Society which had already been held in February 2011 was declared on 31.3.2012.
20. The District Inspector of Schools and the Assistant Registrar, Firms, Societies and Chits approved the Committee of Management headed by the respondent no. 3 as recognised office bearers of the Society.
21. The respondents had filed their objections with regard to maintainability of the Reference. The Prescribed Authority by its preliminary order dated 6.2.2013 held the Reference Petition to be maintainable. The respondent no. 3 approached this Court by filing Writ Petition No. 9695 of 2013 (Committee of Management Kisan National Education Trust Vs. Prescribed Authority). This Court dismissed the writ petition on 21.2.2013 by observing that the order of the Assistant Registrar recognising the Committee of Anil Kumar Upadhyay was subject to the Orders passed by the Prescribed Authority under Section 25(1) as the Division Bench in Special Appeal No. 728 of 2012 had permitted the petitioners to raise all objections with regard to membership as well, in respect of elections, by way of Reference Application under Section 25(1) of the Act. The Prescribed Authority was entitled to hear the dispute and also decide all issues with regard to the membership.
22. The Prescribed Authority was still seized of the matter when the respondents filed two applications on 21.2.2014 before the Prescribed Authority stating therein that since the tenure of the Committee of Management of the Society is three years and it had come to an end on 14.2.2014, the Reference Petition No. 2 of 2011 had become infructuous, and should be disposed of as such.
23. The petitioners filed their objections to the application dated 21.2.2014 citing therein judgment rendered by the Hon'ble Division Bench regarding the aggrieved persons approaching the Prescribed Authority. However, the Prescribed Authority without entering into the merits of the contentions raised by both the parties, by the order impugned dated 7.3.2014 dismissed the Reference Petition.
24. The learned counsel for the petitioners submitted that the Prescribed Authority in passing the impugned order had proceeded against the mandate of the judgment and order dated 24.3.2012 passed by the Division Bench in Special Appeal No. 728 of 2012. The Prescribed Authority misconstrued the dispute raised before it as the petitioners in the Reference Petition had raised both the objections with regard to the validity of the membership as well as with regard to election of the Committee of Management of the Society. The question of validity of membership had to be decided by the Prescribed Authority. It could not be said that only because elections were held after the term of office having expired, the lapse of time and holding of subsequent elections would make the dispute referred to it infructuous.
25. Sri P.N. Saxena, learned Senior Counsel arguing on behalf of the petitioners submitted that reliance was wrongly placed upon a judgment rendered by this Court in Committee of Management, Shiksha Pracharini Sangh Vs. Prescribed Authority / Sub Divisional Magistrate 2005 (1) AWC 588 by the Prescribed Authority.
26. The Prescribed Authority wrongly held that during the pendency of the said Reference subsequent elections were conducted and Reference was with regard to the Committee of Management elected in February 2011 following the order of the Assistant Registrar dated 20.1.2011. The said Committee of Management had finished its term and a new Committee of Management had been elected and the subsequent elections had not been challenged in the Reference and were even approved by the competent Authority. The Prescribed Authority was duty bound to decide on merits and he could not dismiss the Reference as having become infructuous.
27. Sri P.N. Saxena placed reliance upon a judgment passed by the Division Bench in Committee of Management, Raghubar Dayal Pathak Inter College, Etawah Vs. Committee of Management, Sri Raghubar Dayal Pathak Inter College, Etawah 2006 (4) ESC 2819.
28. A counter affidavit has been filed on behalf of Sudhir Kumar Upadhyay son of late Anil Kumar Upadhyay along with an application for impleadment as proposed respondent no. 4. In the said counter affidavit, certain preliminary objections as to the maintainability of the writ petition have also been raised.
29. It has been submitted that the writ petition was initially filed by Kisan National Education Trust with Dr. Arun Kumar Upadhyay as petitioner no. 2. Petitioner No. 2 - Dr. Arun Kumar Upadhyay died on 5.7.2015. No substitution was carried out and the writ petition in so far as Dr. Arun Kumar Upadhyay was concerned had abated.
30. The objection however cannot now be considered as by an order dated 29.3.2017, this Court had allowed the substitution application moved by the petitioners and the petitioner no. 1 has now been substituted as Kisan National Education Trust through its new Secretary - Vinay Kumar Upadhyay and the petitioner no. 2 has been substituted by petitioner no. 2/1 - Vinay Kumar Upadhyay son of late Dr. Arun Kumar Upadhyay.
31. It has been submitted by the respondents that with regard to petitioner no. 1 - Kisan National Education Trust, Jaunpur, as per its own Bye-laws, only the Secretary of the Committee of Management could file the writ petition. After 1989, there was no election held of the Committee of Management as was observed in the order of the Assistant Registrar dated 13.10.2010. The order dated 13.10.2010 had attained finality and it had not been challenged by any person.
32. It has further been argued by the respondents that a tentative / provisional membership list was proposed by the Assistant Registrar on 22.12.2010 and after considering objections, the final list was published on 20.1.2011. The petitioners had filed Writ Petition No. 8181 of 2011 challenging the said order of the Assistant Registrar and initially an interim order was granted that elections be held, but result may not be declared. The Election to the Committee of Management of the Society was held on 15.2.2011 and Dr. Arun Kumar Upadhyay had also contested the elections. Later on, the writ petition was dismissed on 26.3.2012.
33. After dismissal of writ petition, the result of the election held on 15.2.2011 of the Committee of Management of the Society was declared on 31.3.2012 and Dr. Arun Kumar Upadhyay was defeated by Awani Kumar Upadhyay who got elected as Secretary / Manager. The Committee of Management headed by Awani Kumar Upadhyay as Secretary was duly registered under Section 4 of the Societies Registration Act by the office of the Assistant Registrar.
34. Later on, when the term of such Committee of Management was expiring, a fresh election was held on 4.2.2014 and Sudhir Kumar Upadhyay was elected as Secretary. The list of members of the Committee of Management was registered by the Assistant Registrar under Section 4.
35. Again a fresh election was held on 1.2.2017 and Sudhir Kumar Upadhyay was elected as Secretary. The list of member of the Committee of Management was also registered under Section 4.
36. It is apparent from the subsequent developments that the writ petition challenging the election of 2011 having been dismissed by this Court on 26.3.2012 and subsequent elections held on 4.2.2014 and 1.2.2017 being recognised, the dispute raised by the Reference Petition No. 2 of 2011 before the Prescribed Authority for all practical purposes had become infructuous. The subsequent elections were not challenged. The writ-court in Writ Petition No. 8181 of 2011 had upheld the finding of the Assistant Registrar in his order dated 20.1.2011 finalising a list of 46 members.
37. It has also been submitted that even otherwise, the proceedings before the Prescribed Authority are of summary nature and if the petitioners had any grievance, they could approach the competent Court by filing Civil Suit.
38. A rejoinder affidavit has been filed by the petitioners wherein they have reiterated their contentions with regard to the observations made by the Division Bench of this Court in Special Appeal No. 728 of 2012 where the Division Bench had observed that while deciding the Reference the Prescribed Authority shall not be influenced by any observations made by the writ-court in the judgment and order dated 26.3.2012 in Writ Petition No. 8181 of 2011.
39. It has also been submitted that holding of subsequent elections and registration of membership list under Section 4 would not detract from the decision on merits to be rendered in Reference Petition No. 2 of 2011, had it not been wrongly dismissed by the Prescribed Authority in the order impugned.
40. Sri R.K. Ojha, learned Senior Counsel assisted by Sri Ratnakar Upadhyay appearing for the contesting respondents has relied upon the language of Section 25(1) of the Societies Registration Act which he read out in Court to submit that the Prescribed Authority under Section 25(1) can look into a dispute only regarding the elections and continuance of office bearers and can only incidentally look into the dispute of membership of electoral college to hold such elections as invalid on the ground that the elections had been materially affected by improper reception, refusal or rejection of any vote or acceptance of any vote which is void.
41. In this case the Reference Petition had only challenged the election held in pursuance of the order dated 20.01.2011, result of which was declared on 15.02.2011. Subsequently, fresh elections were held on 14.02.2014 and now during the pendency of the writ petition another election has been held on 01.02.2017. Such elections have been recognised and Committees of Management have been duly registered by the Competent Authority under the Act. This Court may not look into an infructuous dispute now at this belated stage. He has also argued that the Prescribed Authority has rightly relied upon the judgment rendered in Committee of Management of Shiksha Pracharini Sangh Vs. Prescribed Authorty/Sub Divisional Magistrate (supra) wherein this Court had found, on the basis of the judgment rendered by the Hon'ble Supreme Court in Qamar Rashid Khan Vs. Committee of Management, Azamgarh Muslim Educational Society and others; JT 2001 (10) SC 50, that where legality of fresh elections have not been challenged and the tenure of original Committee of Management had expired, it was not necessary to look into the dispute at all and the appeals were dismissed as having become infructuous.
42. It has been argued by Shri Ojha that the Division Bench had not directed the petitioners to approach the Prescribed Authority. It had given liberty to the petitioners to either approach Prescribed Authority for challenging the elections on the basis of invalid membership, or to file a Civil Suit before a competent Civil Court to get the membership determined. It was the petitioners who chose to file a Reference under Section 25(1) before the Prescribed Authority and the Prescribed Authority is bound by the statutory provisions under the Act and he can not go beyond the same. The petitioners chose a forum of limited jurisdiction and therefore, the order passed by the Prescribed Authority may not be interfered with by this Court at this stage.
43. I have considered the arguments of Shir P.N. Saxena and Shri R.K. Ojha. In Committee of Management, Shiksha Pracharini Sangh Vs. Prescribed Authority / Sub Divisional Magistrate 2005 (1) AWC 588, a learned Single Judge of this Court was considering a dispute raised by the Manager of the Society challenging the order passed by the Prescribed Authority dated 6.4.2004 in proceedings under Section 25(1) of the Act. The Prescribed Authority had refused to proceed with a Reference made by the Assistant Registrar on the ground that it had become redundant because of the expiry of the term of Committee of Management which was elected in the year 1910 & 1991. It had disagreed with the arguments raised by the learned counsel for the writ petitioners that they had also challenged the validity of the subsequent elections of the years 1993, 1997, 2000 & 2003.
44. This Court observed that the initial Reference made by the Assistant Registrar had remained pending for 14 years and during this period no list of office bearers was ever registered under Section 4 of the Act and no effort was also made to get the right for Managing the affairs of the Society adjudicated under Section 25(1) of the Act on the basis of subsequent elections held.
45. This Court observed that the Prescribed Authority had rightly held that no purpose would be served in deciding legality or otherwise of the elections pleaded by the parties in view of the fact that the term of elected office bearers had expired long ago.
46. This Court referred to a judgment rendered by Hon'ble Supreme Court in Qamar Rashid Khan Vs. Committee of Management, Azamgarh Muslim Educational Society & others 1999 (4) AWC 3279 and quoted the observations made by the Hon'ble Supreme Court as follows:-
"In these appeals, we are not concerned with the legality of the fresh elections, if any that has been held and if there has been an election, the legality of the same had to be assailed in appropriate forum by the party concerned. Since the period of tenure is already over, it is not necessary for us to examine the correctness of the conclusion arrived at by the Division Bench of Allahabad High Court. In our view, the appeals have become infructuous."
(emphasis supplied)
47. This Court observed that the right if any claimed by the petitioners on the basis of subsequent elections has to be established by the petitioners only through filing a regular Civil Suit before the appropriate forum.
48. In Shiv Murti Verma Vs. State of U.P. & others 2011 (3) ADJ 755, a Coordinate Bench of this Court was considering a similar controversy where dispute arose with regard to election of 2003. Later on, the periodical elections were held in 2006 and again in 2009. The petitioner submitted before the Court that subsequent elections would be dependent upon the decision of the dispute with regard to election of the year 2003, and therefore this Court should intervene in the matter.
49. This Court relied upon judgment rendered by the Hon'ble Supreme Court in Nagri Pracharini Sabha Vs. Vth Additional District and Session Judge, Varanasi & others 1991 Sup. (2) SCC 36, paragraph 5, where it was held that Authority need not enter into an infructuous dispute as it would be a futile exercise, as the elections are periodical. The elections set up by the respondents in the aforesaid case in 2006 were never challenged nor the elections of 2009 challenged.
50. This Court rejected the argument that if elections of 2003 are set aside, there elections held in 2006 and 2009 automatically vanished.
51. This Court observed that later elections having not been challenged, there was no occasion to further investigate the dispute.
52. Learned counsel for the petitioner has relied upon a judgment rendered by Division Bench of this Court in Committee of Management, Raghubar Dayal Pathak Inter College, Etawah Vs. Committee of Management, Sri Raghubar Dayal Pathak Inter College, Etawah 2006 (4) ESC 2819. The Division Bench of this Court was considering the pleas raised by the appellant that subsequent orders passed by the Authorities dated 21.6.2005 and 22.6.2005, recognising subsequent elections, had not been set aside by the writ-court and therefore the appellant had a right to manage the institution and the writ-court should not have appointed an Authorised Controller and directed to hold fresh elections.
53. This Court rejected the arguments by observing thus:-
"The Hon'ble Single Judge has found that the alleged election held in the year 1999 by which the appellant Committee of Management was elected and the subsequent election held in the year 2002 were not valid and thus, set aside the same and directed the Joint Director of Education to appoint an independent officer of the Education Department for holding fresh election of the Committee of Management within fifteen days from the date of production of certified copy of the order of the Hon'ble Single Judge. It has further been provided in the order under Appeal that the election officer, so appointed by the Joint Director of Education, shall publish a tentative list of the members and thereafter he shall decide those objections by a speaking order within four weeks thereafter and conduct the election of the Committee of Management in accordance with the approved Scheme of Administration.
We are of the view that in the facts of the case and also in view of the fact that the elections held in the year 1999 & 2002 were found to be invalid, the Hon'ble Single Judge is right in directing to hold fresh election by an independent agency."
(emphasis supplied)
54. This Court observed that the elections of the year 1999 & 2002 having been found to be invalid, all subsequent actions or orders were also illegal.
55. It is no doubt true that the 2011 elections were under challenge before this Court in Writ Petition No. 8181 of 2011, this Court dismissed the writ petition. The Committee of Management elected in the year 2011 election was in control over the Society. In the Special Appeal filed by the petitioners, the Hon'ble Division Bench merely observed that it was open for the appellants to approach the Prescribed Authority or the Civil Court with regard to the grievance relating to the said election on the ground that membership of the electoral college had not been properly determined.
56. The petitioners thereafter filed a Reference Petition No. 2 of 2011 before the Prescribed Authority / Sub Divisional Magistrate, Machhalishahar, Jaunpur. In the Reference Petition, a copy of which has been filed as Annexure 3 to the writ petition, the array of parties show that there were 26 petitioners and 19 respondents. Dr. Arun Kumar Upadhyay and Arvind Kumar Upadhyay both sons of Bateshwar Nath Upadhyay were on one side and two other sons of Bateshwar Nath Upadhyay, Anand Kumar Upadhyay and Awani Kumar Upadhyay were on the other side in the array of parties. Besides other persons had also been arrayed either for the plaintiffs or for the defendants.
57. The allegations as made out in the Reference Petition related to the validity of members inducted in 1985 and 1988 by the plaintiffs, Dr. Arun Kumar Upadhyay & others and also to the validity of the membership list submitted by Anil Kumar Upadhyay. The submission was that 67 members list submitted by Dr. Arun Kumar Upadhyay was valid whereas the list of members determined by the Assistant Registrar by his order dated 20.1.2011 was invalid.
58. There was also an allegation that in the original 45 members list submitted under the signature of Bateshwar Nath Upadhyay - the erstwhile undisputed Manager of the Society, at-least 19 names of validly inducted members had been removed illegally and 19 forged entries were made, most of these members were related to each other. If the membership list submitted by late Bateshwar Nath Upadhyay is taken to be valid list, then also at-least 19 out of these 47 members had died in the meantime.
59. The relief claimed in the said Reference Petition No. 2 of 2011 was for declaration of result dated 15.2.2011 as invalid and for a direction to the Assistant Registrar to first determine a valid membership list of the general body which was to constitute the electoral college and to hold fresh election thereafter.
60. The allegations regarding the list of 47 members determined by the Assistant Registrar containing the names of 19 strangers had to be decided on merits by the Prescribed Authority, after considering all evidence to be led by either of the parties. Such dispute had not become infructuous as any subsequent elections held during the pendency of the Reference by the Committee of Management allegedly elected on 5.2.2011 would become void, the moment it was declared by the Prescribed Authority that the electoral college determined by the Assistant Registrar by his order dated 20.1.2011 was wrongly determined.
61. The language of Section 25(1) of the Societies Registration Act which was referred to by the learned Senior Counsel, Sri R.K. Ojha repeatedly during the course of argument is being quoted herein below:-
"25.Dispute regarding election of office bearers.-(1) The Prescribed Authority may, on a reference made to it by the Registrar or by at least one-fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office bearers of such society, and may pass such order in respect thereof as it deems fit:-
[Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied-]
(a) that any corrupt practice has been committed by such office bearer ; or
(b) that the nomination of any candidate has been Improperly rejected ; or
(c) that the result of the election in so far it concerns such office-bearer has been materially affected by the improper acceptance of any nomination or by the Improper reception, refusal or rejection of any vote or the reception of any vote which is void or by any non-compliance with the provisions of any rules of the society.
Explanation I--A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person-
(i) includes, or attempts to induce, by fraud intentional misrepresentation, coercion or threat of injury, any elector to give or to refrain from giving a vote in favour of any candidate, or any person to stand or not to stand as, or to withdraw or not withdraw from being a candidate at the election ;
(ii) with a view to inducting any elector to give or to refrain from giving a vote in favour of any candidate, or to inducing any person to stand or not to stand as, or to withdraw or not to withdraw from being, a candidate at the election, offers or gives any money, or valuable consideration, or any place of employment, or holds out any promise of individual advantage or profit to any person ;
(iii) abates (within the meaning of the Indian Penal Code) the doing of any of the acts specified in clauses (i) and (ii) ;
(iv) induces or attempts to induce a candidate or elector to believe that he, or any person in whom he is Interested, will become or will be rendered an object of divine displeasure or spiritual censure ;
(v) canvasses on grounds of caste, community, sect or religion ;
(vi) commits such other practice as the State Government may prescribe to be a corrupt practice.
Explanation II--A 'promise of individual advantage or profit to a person' includes a promise for the benefit of the person himself, or of any one in whom he is interested.
Explanation III--The State Government may prescribe the procedure for hearing and decision of doubts or disputes in respect of such elections and making provision in respect of any other matter relating to such elections for which insufficient provision exists in this Act or in the rules of the society.
(emphasis supplied)
62. It is apparent that wrong reception of any vote which is void or improper, refusal or rejection of a valid vote could materially affect the result of the election and such elections could be set aside if any doubt or dispute is raised in respect of the said election or continuance in office of the office bearers of the Society. In this case improper rejection of a valid vote or improper reception of a invalid vote could be a valid ground for setting aside an election and for the said purpose, the determination of electoral college was an incidental or ancillary issue which needed to be decided by the Prescribed Authority, while deciding any doubt or dispute in respect of any election.
63. However, the proceedings before the Prescribed Authority are summary in nature as regards deciding a dispute regarding membership. This Court has held in several of its decisions that a Regular Civil Suit before a competent Civil Court alone would redress any alleged grievance of an aggrieved party with regards to membership disputes.
64. In Vidur Sewa Ashram & 7 others Vs. State of U.P. & 4 other reported in 2018 (5) ADJ 717, a Coordinate Bench of this Court was considering the question whether membership of the general body of a society could be decided by the Prescribed Authority incidentally to the dispute relating to elections.
65. This Court considered the provisions of Section 25(1) of the Societies Registration Act and also the provisions of Section 25(2) and also Section 4(B) of the Act. It considered the judgment rendered by this Court in Sita Ram Rai & others Vs. Assistant Registrar, Firms, Societies & chits, Gorakhpur 2003 (5) EWC 4159 and Vindhya Vasini Vs. Prescribed Authority & others 2002 AWC 1623 and observed that in Sita Ram Rai's case, it has been held that election disputes, if any, including validity of members entitled to vote can be decided by the Prescribed Authority under Section 25(1) of the Act. In Vindhyawasni case, it was held that the decision relating to number of members of general body entitled to participate in election is incidental for deciding the doubt about the validity of elections under sub section 1 of Section 25 of the Act, and therefore can be decided by the Prescribed Authority.
66. This Court further observed in paragraphs 33 to 40 of the judgment as under:-
"33. A perusal of sub-section (1) of Section 25 of the Act, 1860 would reveal that the Prescribed Authority derives its power to hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office-bearer of society:(a) on a reference made to it by the Registrar or; (b) on a reference made to it by at least one-fourth of the members of such society registered in Uttar Pradesh.
34. Section 15 of the Act, 1850 defines member. Sub-section (1) of Section 15 of the Act provides that for the purposes of this Act a member of a society shall be a person who having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations It also defines disqualified members by providing that in all proceedings under this Act no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months. Sub-section (2) of Section 15 of the Act, 1860 provides that every society shall maintain a register of members giving such particular, as may be prescribed. However, Section 15 does not confer power on the Registrar or any other authority to decide any issue in respect of membership. In Shiv Kumar Singh Vs. State of U.P., 2004 (5) ESC 493, this Court has held that the Assistant Registrar is not authorised to decide any dispute with regards to membership of the general body under Section 15 of the Act, 1860.
35. Section 4-B has been inserted in Act, 1860 by U.P. Act No. 23 of 2013 with effect from 9.10.2013. Section 4-B of the Act, 1860 provides that at the time of registration / renewal of a society, list of members of general body of that society shall be filed with the Registrar mentioning the name, father's name, address and occupation of the members. The Registrar is enjoined upon to examine the correctness of the list of members of the general body of such society on the basis of the register of members of the general body and minutes book thereof, cash book, receipt book of membership fee and bank pass book of the society. Sub-section (2) of Section 4-B provides that if there is any change in the list of members of the general body of the society on account of induction, removal, registration or death of any member, a modified list of members of general body, shall be filed with the Registrar.
36. Section 4-B though does not specifically empower a Registrar to adjudicate membership dispute but membership issue can be incidentally decided while examining correctness of the list of members submitted. However, even this Section does not attach finality to the order of the Registrar. Therefore it is open to an aggrieved party to invoke civil court's jurisdiction in respect of membership claim.
37. Section 3-A of the Act, 1860 deals with renewal of registration, whereas Section 4 of the Act deals with filing of annual list of office bearers of the society. The said provisions though do not specifically confer power on the Registrar to deal with membership issues but by judicial pronouncement it has been settled that membership issue can be incidentally looked into and decided by the Registrar in exercise of his powers under the said provisions. However, any such adjudication made by the Registrar has not been conferred finality either by the statute or by judicial pronouncement.
38. Sub-section (2) of the Section 25 of the Act, 1860 provides that where by an order made under sub-section (1), an election is set aside or an office-bearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of office-bearer of a society has not been held within the time specified in the rules of that society, he may call a meeting of the general body of such society for electing such office bearer or office-bearers, and such meeting shall be presided over and be conducted by the Registrar or by any officer authorised by him in this behalf. Sub-section (3) of Section 25 of the Act, 1860 provides that where a meeting is called by the Registrar under sub-section (2), no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office-bearer of the society.
39. It is well settled that the Registrar for the purpose of calling meeting of the general body of a society for electing its office-bearers, under sub-section (2) of Section 25 of the Act, 1860, is incidentally empowered to decide membership disputes for the purpose of determining the electoral college to hold the meeting. However, again, neither the Act, 1860 nor judicial pronouncements attach finality to such determination.
40. Section 25 of the Act, 1860, as inserted in the State of U.P., creates a forum for settlement of disputes pertaining to election of office-bearers of a society as also in respect of their continuance, in a summary manner. To effectively settle the dispute, clause (c) of the proviso to sub-section (1) of Section 25 of the Act, 1860, empower the Prescribed Authority to assess whether the result of the election has been materially affected by the improper acceptance or rejection of any nomination or by the improper reception of any votes which is void, which implies that the Prescribed Authority has power to decide issue as regards membership of the society. Whether a reference is with the strength of one-fourth of the members or not becomes a jurisdictional fact, which has to be necessarily determined by the Prescribed Authority. While determining the existence of jurisdiction fact, the Prescribed Authority can arrive at its own conclusion in respect of membership of the society. Such conclusion can be arrived at on the basis of the evidence / material placed before it keeping in mind the relevant parameters including the bye-laws / rules of the society and the documents of the nature mentioned in Section 4-B of the Act, 1860. As no finality has been provided to the incidental determination of membership by the Registrar in exercise of his power to hold an election meeting under Section 25(2) of the Act, notwithstanding any such determination of the issue made by the Registrar, the Prescribed Authority, while exercising its power under Section 25(1) of the Act, can determine the electoral college / general body of the society for the purpose of ascertaining whether the reference application is maintainable."
(emphasis supplied)
67. Now the question arises "whether in determining the doubt or dispute regarding elections under Section 25(1)(c), the summary power exercised by the Prescribed Authority to determine the membership would also effect subsequent elections held on the basis of the same electoral college?"
68. It is settled law that the Prescribed Authority is deciding a dispute only in a summary manner, it is findings are subject to Civil Suit and also amenable to scrutiny of writ jurisdiction.
69. The Hon'ble Division Bench in its judgment and order dated 23.4.2012 had given liberty to the petitioners to approach either the Prescribed Authority or the Civil Court. The Prescribed Authority could consider the validity of election dated 15.2.2011 alone and decide the dispute or doubt raised with respect to the same and consider the issue of membership only incidentally.
70. The relief clause as framed by the petitioners in the Reference Petition only was with respect to quashing of the election dated 15.2.2011, although the grounds taken for claiming this relief was that membership of the electoral college had been wrongly determined. This relief could not have been granted by the Prescribed Authority without setting aside subsequent election also held by the Committee of Management in 2014, as it was on the basis of the same list. The elections of 2014 has not been challenged. The Prescribed Authority therefore rightly came to the conclusion that a Reference had become infructuous.
71. The order of the Prescribed Authority does not suffer from any legal or factual infirmity for this Court to show its interference under extra-ordinary jurisdiction under Article 226 of the Constitution.
72. The writ petition is dismissed. No order as to costs.
73. However it shall be open for the petitioner to challenge the membership of the general body by filing a regular Civil Suit before the competent Civil Court.
Order Date :- 14.9.2018 Arif