1.This writ petition under Section 226 of the Constitution of India has been filed challenging order dated 01.11.2011 passed by Deputy Registrar, Faizabad Division, Faizabad rejecting petitioners' application to proceed under Section 13-A of the Societies Registration Act, 1860 [as applicable to the State of Uttar Pradesh] (hereinafter referred to as 'the Act) and approving the resolutions dated 19.06.2009 and 10.08.2009, whereby petitioner no. 2 was expelled. Petitioners have also challenged the resolution dated 10.08.2009 on the ground that petitioner no. 2 has been expelled, without giving any opportunity of hearing etc.
2.Briefly stated petitioners' case is that, Nirmal Singh ( petitioner No. 2 ) was founder member of the general body of society and was duly elected to the post of Manager and Treasurer of the Society in the election held on 22.08.2004. In the election held on 20.12.2008, petitioner no. 2 was again elected as Manager and Treasurer for the next term. Private respondent no. 4 (Ram Ratan Lal Rajgarhia) and his son want to capture the property of Mani Mandir Sewa Nyas Samiti, a registered society and eye hospital being run by the Society. Strength of general body in the society is twelve. Society is also running a hospital at Ayodhya, District- Faizabad namely, Ayodhya Eye Hospital. Petitioner no. 2 was also Manager and Treasurer of the Eye Hospital. Sri Ram Ratan Lal Rajgarhia is very influential person. His son Ashok Rajgarhia took Rs. 7,00,000/- from the eye hospital illegally.
3.By non-speaking and unauthorized order dated 19.06.2009, Sri Ram Ratan Lal Rajgarhia removed petitioner no. 2 from the post of Manager and Treasurer of the Society. Said order is against the bye-laws of the society.
4.An FIR was lodged against Nirmal Singh (petitioner no. 2) and he was removed from the Society in collusion with the Deputy Registrar, Firms, Societies and Chits, Faizabad. Resolution dated 10.08.2009 has been passed expelling petitioner no. 2, without providing opportunity of hearing or show cause notice, as such, same is non est in the eyes of law. Sri Ram Ratan Lal Rajgarhia lodged an FIR against petitioner no. 2 under Sections 409, 467, 468, 419 & 420 IPC in which petitioner no. 2 was bailed out. Petitioner no. 2 has improved the hospital by his hard work and labour as a result, eye hospital has become very famous in the area, under the President-ship of Late Smt. Chandra Mani Devi. New President of the eye hospital is trying to capture the same and harm petitioner no. 2. Order removing petitioner no. 2 is illegal and violative of principles of natural justice etc.
5.Deputy Registrar, Firms, Societies and Chits, Faizabad did not afford proper opportunity of hearing to petitioner no. 2 and decided the matter, without considering explanation and reply of petitioner no. 2. Petitioner no. 2 was appointed as Manager, ever since its inception. Term of the society is now five years as such it would come to an end on 20.12.2013 as such petitioner no. 2 is entitled to work as the duly elected Manager and Treasurer of the Society till new election takes place.
6.Counter affidavit has been filed on behalf of respondents in which case set up is that Nimal Singh (petitioner no. 2) was expelled from the society on 10.08.2009 as he was found involved in embezzlement and other financial irregularities. After his expulsion, one Sri Satish Kumar was enrolled as member of the Society. List of members of the society was submitted before the Deputy Registrar. Full opportunity of hearing was given to Nirmal Singh before his removal. Above decision of expulsion has not been challenged by petitioner no. 2. He filed W.P. No. 8801 (MB) of 2009 for quashing the FIR, which was turned down by this Court holding that commission of cognizable offence is made out. This petition was dismissed on 09.09.2009. He submitted two lists of members before the Deputy Registrar, showing fourteen members of the society. There were only seven members of the general body. Petitioner no. 2 has tried to introduce new persons as members of the society. One Ramoj Kumar, whose name was included in the list, has dis-owned his membership. Since Sri Nirmal Singh has submitted a fake list answering respondent represented before Deputy Registrar. Deputy Registrar, issued show cause notice to petitioner no. 2 to submit his reply. Deputy Registrar has passed the impugned order after considering the entire material on record.
7.In the rejoinder affidavit, allegations made in writ petition were reiterated. It was stated that Deputy Registrar has decided the dispute of Office Bearer which he cannot do in view of Section 25 of the Act.
8.I have heard Sri Pt. S. Chandra, learned counsel for the petitioner, Sri I.D.Shukla & Sri S.K.Mehrotra for opposite parties.
9.It appears that Nirmal Singh has moved an application before the Deputy Registrar on 22.03.2010, requesting him to proceed against the society under Section 25 (2) read with Section 13-A of the Societies Registration Act on the ground that term of the society has expired and no valid election has been held after 20.12.1998. It is further stated that since number of members of the society and Office Bearers has been reduced to less than seven as such society deserves to be dissolved in view of Section 13-A of the Act. It has been further stated that no legal election has been held after 20.12.1998. Consequently, society became illegal as such, resolution passed by society was not legal. Moreover, the number of members have been reduced to four as two members have died and Sri Raj Kumar Kakraniya has left the membership, which attracts Section 13-A of the Act. It is further mentioned in the complaint that term of society is only five years. Society was registered on 20.12.1993. Its term came to an end on 19.12.1998 as such election should have been held before 19.12.2003 but election was held on 18.08.1999 and 22.08.2004 as such, the society became non- functional and Office Bearers were not left with any power to enroll or remove any member and all the resolutions passed after 19.12.1998 should be treated as illegal.
10.This stand taken in the application is contrary to the stand taken in the writ petition. In the writ petition, it is stated that tenure of the Committee of Management was four years and now it has become five years. Petitioner claims to be elected in election duly held on 22.08.2004 as well as on 20.12.1998 (paras- 3 & 4 of the writ petition), while in the application moved before Deputy Registrar on 22.03.2010, petitioner no. 2 states that all the elections held after 19.12.1998 are illegal. Paras 3 and 4 of the writ petition show that term of the society was four years while in the representation it refers to term of five years (para-14 of the writ petition). Petitioner has filed the copy of bye-laws along with writ petition which have been annexed as Annexure no. 11. According to bye-laws, there were seven members in the Society/Management. They were Smt. Chandra Mani Devi Rajgarhia, Sri Narendra Kumar Rajgarhia, Sri Kripa Shankar Ramayani, Sri Nirmal Singh, Sri Raj Kumar Kakraniya, Sri Krishna Kumar Patodiya and Sri Ram Ratan lal Rajgarhiya. Smt. Chandra Mani Devi Rajgarhia was Life President. Sri Nirmal Singh was Manager and Treasurer.
11.Bye-laws show that there will only be Life Members, who will be Patrons and with the majority new members can be enrolled as Patrons. Clause 6 talks of removal of membership, according to which, Management can, by majority, remove the members and Clause 9 defines the term of the Committee of Management which is five years. It is thus apparent that by majority, a member can be removed. Copy of the resolution dated 10.08.2009 has been filed with this writ petition as Annexure no. 6, which shows that Sri Nirmal Singh was expelled as member of the Society with immediate effect and necessary action was to be taken against him who is found involved in embezzlement and other acts of crime.
12.Petitioner no. 2 seems to be aggrieved by this resolution, which has been challenged on various grounds. Minutes of the meeting of Sri Mani Mandir Sewa Nyas Samiti dated 10.08.2009 show that it was attended by Sri R.L. Rajgarhia, Sri Narendra Rajgarhia, Sri Ashok Kumar Rajgarhia, Sri Vijay Shanker Chaturvediji & Sri Ashok Kumar Jhajharia and in the same meeting Sri Satish Kumar was elected as new member. Other resolution was also passed, apart from expelling Nirmal Singh. This resolution is signed by all the five members of the society, who were present. Copy of resolution, which is not disputed shows that five members have resolved to expel Nirmal Singh which was a majority.
13.Sri Nirmal Singh stated in his representation that Sri Narendra Rajgarhia, Sri Shailendra Mohan Pratap Mishra, Sri Vijay Shankar Chaturvedi, Sri Ashok Kumar Rajgarhia, Sri Ashok Kumar Jhajharia and Sri Satish Kumar are neither founder members nor Patrons of the society as such they cannot be elected to the Management. Similarly, society having become defunct, it has no right to include or expel any member. It has already been observed that petitioner no. 2 himself has claimed his election as Manager in the year 2004 and 2008. Thus, it is not open to him to say that society has become defunct on the ground that no election has been held after 1998.
14.Sri Nirmal Singh himself has certified twelve members of the society for the years 2008 and 2009, which contain the names of Sri Ram Ratan Lal Rajgarhia, Sri Narendra Kumar Rajgarhia, Sri Shailendra Mohan Pratap Mishra, Sri Nirmal Singh, Sri Anjani Kumar Garg, Sri Vijay Shankar Chaturvedi, Sri Raghunandan Singh, Sri Ramoj Kumar Chaturvedi, Sri Rakesh Singh, Smt. Anita Singh, Sri Vijay Pratap Singh & Sri Ramji Gupta. This list is contained in Annexure no. 5. Thus, Nirmal Singh was taking contrary stand before the Deputy Registrar. This list contains the names of Sri Shailendra Mohan Pratap Mishra and Sri Vijay Shankar Chaturvedi as members while his representation before Deputy Registrar shows that these were neither members nor Patrons of the Society. These stands are clearly contradictory to each other. Nirmal Singh has himself authored the minutes of the meeting dated 20.12.2008, which has been duly certified by Deputy Registrar. However in his representation, he denies the validity of the election dated 20.12.2008, although, he himself was allegedly elected therein.
15.Pt. S. Chandra, learned counsel for the petitioner has attacked the resolution dated 10.08.2009 on the ground that the word 'were' was used instead of 'are', which shows that proceedings were manipulated later on. In the minutes, it is observed that 'following members were present' in the meeting and it was also observed that Hon'ble President was on Chair. In the last paragraph, it is observed that Hon'ble Chairman Sri Ram Ratan Lal Rajgarhia expressed his special thanks. In view of the words used in the minutes alone, it cannot be said that proceedings were manipulated later on.
16.Next submission of Sri Chandra is that Society is situated at Ayodhya, hospital is located at Ayodhya but the meeting is said to have been held at Noida, which shows that proceedings have been fabricated. In the bye-laws, no specific place of meeting has been mentioned as such meeting can be held at the place convenient to members. What is required is the meeting of members, not the place.
17.Sri Chandra further submitted that neither any notice was given nor any opportunity of hearing was given before expelling petitioner no. 2. Petitioner no. 2 was not an employee but he was Office Bearer in the Committee of Management. Procedure prescribed for removal is that by majority, a member can be removed which has been followed. There is no mention in the bye-laws that before removing any member, an opportunity is required to be given. Although, in the counter affidavit it is stated that notice was given but in the absence of stipulation in the bye-laws, requirement of notice cannot be a ground to assail the impugned order.
18. It is further submitted that a sum of Rs. 7,00,000/- was taken by Ashok Kumar Rajgarhia, son of Sri Ram Ratan Lal Rajgarhia, which assertion has been denied in the counter affidavit alleging that for negotiating sale of plot, money was taken, as deed relating to purchase of the above plot did not materialize, amount of Rs. 7,00,000/- was returned through demand draft in favour of society along with letter dated 20.07.2005, long back.
19.Last submission of Sri Chandra is that by impugned order, Deputy Registrar has held that petitioner no. 2 has rightly been removed, which authority was not available to Deputy Registrar. He has relied upon various judgments. Reference may be made to the cases of All India Council and Anr. vs. Assistant Registrar, Firms, Societies and Chits, Varanasi Region, Varanasi and Anr [AIR 1988 Allahabad 236], Abhay Grasth Gramin jan Sanngathan Kusmikhalan and Anr vs. Assistant Registrar, Firms, Societies and Chits, Varanasi Region, Varanasi and Anr [(1990) 1 UPLBEC 480] and Vijai Narain Singh vs. Registrar, Firms, Societies and Chits Registration, U.P., Lucknow and Ors.[1981 UPLBEC 308]. It has been held in these decisions that Deputy Registrar has no jurisdiction to decide the dispute of office and he has to refer the matter to Prescribed Authority under Section 25 of the Act.
20.In the latest decision given in the case of Gram Shiksha Sudhar Samiti, Junior High School, Sikandra, District Kanpur Dehat and Anr. vs. Registrar, Firms, Societies and Chits, U.P., Lucknow and Ors.[(2010) 3 UPLBEC 2522], a Division Bench of this Court has held that the question which can be gone into under Section 25 of the Act cannot be gone into under the proviso to Section 4 of the Act. There cannot be any quarrel with the proposition that once a dispute has been raised regarding continuance of the office bearer, Registrar ought to have referred the matter to the Prescribed Authority; but is registrar bound to refer every matter under Section 25 and can he be treated as a Post Office ?
21.In the case of Committee of Management, Kisan Shiksha Sadan, Banksahi, District Basti and Anr. vs. Assistant Registrar, Firms, Societies and Chits, Gorakhpur Region, Gorakhpur and Anr. [(1995) 2 UPLBEC 1242], this very question was considered. Reference may be made to Para-3 of the case, relevant part whereof is being reproduced below:-
"Section 4 of the Act provides that a list of members of the managing body of a Society shall be filed with the Registrar. That list is maintained by the Registrar for the purpose of performing his administrative functions as a Registrar. Section 25 of the Act provides that whenever any doubt or dispute is raised regarding the election of members of a managing body of a Society, the Registrar may refer such doubt or dispute to the Prescribed Authority for his decision. But when one fourth members of the society raise a doubt or dispute relating to the election of the members of managing body or society, the matter automatically goes to the Prescribed Authority for decision and in such a case the Registrar does not come into the picture. In exercising this power whether to refer or not any doubt or dispute relating to the election of members of the managing body of a Society to the Prescribed Authority. The Registrar has to apply his mind to the facts of the case and take a decision. In taking such a decision, the Registrar will be quite justified to take into account all the relevant circumstances, as he has done in the present case. If an objection is raised about the membership of a person. In our view, it is the duty of the Registrar, for his own administrative purpose, to enquire into whether the person concerned is a member of the society or not. If the Registrar comes to the conclusion that such a person is not a member of the Society then he is under no obligation to refer the dispute or doubt relating to his election to the Prescribed Authority for decision."
(emphasis supplied)
22.Admittedly, petitioner no. 2 is not a member of the society as his case is that he has been expelled on 10.08.2009. Section 25 (1) of the Act itself puts a restriction on frivolous reference. Power can be invoked by at least one-fourth members of the society. Can it be said that if a person is not competent to invoke jurisdiction of Prescribed Authority under section 25 (1), he can cause the same to be invoked by adopting the route of Registrar ? Registrar is not bound to refer all the disputes raised before it to the Prescribed Authority. He has to satisfy that the person raising dispute has locus i.e. sufficient interest in the society. Expelled member cannot cause the reference. First, he has to get his expulsion removed. Any stranger or non-member cannot invoke the jurisdiction under Section 25(1) of the Act. A stranger cannot be allowed to meddle with the affairs of the Society, except permitted by law. As such, Registrar is duty bound to hold limited enquiry before making references whether dispute is bona fide and person raising it has any locus or specific interest in the affairs of the Society. For this purpose, Registrar can examine the bye-laws and the procedure assailed. It is after this enquiry, if he is satisfied that there is a dispute pertaining to election or continuance of Office Bearers, requiring adjudication, reference under Section 25 (1) will be made.
23.As demonstrated above, petitioner no. 2 has moved an application before the Deputy Registrar invoking dissolution of Society under Section 13-A read with Section 25 (2) of the Act. Section 25 (2) of the Act enables Registrar to call for a meeting of the general body of society for electing office bearers. Registrar will have recourse to this Section if some order has been passed by Prescribed Authority under Section 25 (1) or where the Registrar is satisfied that election of office bearer of society has not been held within the time specified under the Bye-laws.
24.In representation filed by petitioner, it is mentioned that he was invoking the authority of Registrar to Act under section 25 (2) read with Section 13-A of the Act. He did not claim any reference under Section 25 (1) of the Act as such Registrar was fully justified in deciding his application and holding that such an application was not maintainable.
25.Registrar has further held that petitioner no. 2 has placed two lists of members pertaining to the same year which have different names. Consequently, those lists cannot be treated to be valid as has been shown above. Petitioner no. 2 was removed by majority, he had no locus to claim a reference under Section 25 (1) of the Act. Registrar was fully justified in not making reference, firstly, because petitioner no. 2 did not remain member of the society, secondly, he did not claim the reference under Section 25 (1) of the Act.
26.While disposing the application moved by petitioner no. 2 and considering the renewal of the society, Deputy Registrar has considered the entire material and has given his reasons for arriving at the findings. On the request of stranger, reference cannot be made. Registrar has a duty to see whether dispute regarding continuance of office bearer is bona fide or not and for this purpose he has a right to hold limited enquiry. Resolution expelling him dated 10.08.2009 has not been challenged before civil court nor it has been set aside by any forum. As a result whereof, petitioner no. 2 did not remain a member of the society. In writ jurisdiction, resolution of a society cannot be challenged unless violation of statutory provision is established.
27.During course of argument, learned counsel for the respondents placed before the Court the certified copy of list issued by Deputy Registrar after fresh election which is not relevant for the present controversy. No other point has been raised.
28.In view of the above discussions, writ petition is devoid of merits and is accordingly dismissed.
Order Date :- 2nd September, 2014 Nitesh