Heard Sri Raghvendra Singh, Senior Advocate appearing for the petitioners, learned Standing Counsel for the State-respondents and Sri G.M.Kamil, learned counsel appearing for the respondent Nos. 4 and 6 to 27.
By means of this petition filed under Article 226 of the Constitution of India, the petitioners have challenged the order dated 03.06.2008, passed by the Deputy Registrar, Firms, Societies & Chits, Faizabad Region, Faizabad whereby the electoral college for conducting elections of the executive body of the Society named as Madarsha Islamiya Sadarul Uloom, Bargaon, District Gonda was tentatively finalized. The petitioners have further challenged the order dated 03.07.2008, passed by the Deputy Registrar, Faizabad finalizing the electoral college comprising of 38 members of the said Society for the purpose of conducting elections of the executive body of the Society. By the impugned order, the District Minority Welfare Officer, Gonda was nominated to conduct the elections.
The sheet anchor of the argument of learned counsel for the petitioners is that once the Deputy Registrar by means of order dated 09.08.2005 had finalized the list of members of the general body of the Society, it was not open for him to have re-opened the matter again on the application moved by one Sri Mohd. Nasir-ullah Khan and further that the Deputy Registrar under Sub-section (2) of Section 25 of the Societies Registration Act functions as quasi-judicial authority and hence unless the Act under which the Deputy Registrar functions empowers him to review his order, it was legally impermissible for the Deputy Registrar to have reviewed the order dated 09.08.2005 and thus the impugned action on the part of the Deputy Registrar vitiates both the impugned orders passed by him subsequently on 03.06.2008 and 03.07.2008 which have been annexed as Annexure Nos. 2 and 1 respectively to the writ petition.
It has further been contended by the learned counsel for the petitioners that the Deputy Registrar while passing the impugned orders has not recorded any finding of any fraud and mis-representation and as such the very process of reopening the issue which stood concluded by his earlier order dated 09.08.2005 cannot be permitted to be sustained. Learned counsel for the petitioners thus argues that it was not open to Sri Mohd. Nasir-ullah Khan to have denied the letter dated 30.06.2005 written by the District Minority Welfare Officer, Gonda annexing therewith a list of 41 members of the general body of the Society for the reason that the said list was submitted at the time when the proceedings for single hand operation of the accounts was initiated. He has also stated that in fact a list of 41 members of the general body of the Society was submitted by the District Minority Welfare Officer by means of order dated 03.06.2008 not on his own or on the asking of the petitioners or contesting members of the Society, but on the letter dated 27.06.2008 written by the Deputy Registrar himself. In this view, submission is that the impugned orders having been been passed by the Deputy Registrar without any authority are required to be quashed.
On the other hand, learned Standing Counsel representing the State-respondents has submitted that the impugned orders in fact cannot be said to have culminated on initiation of any exercise of review by the Deputy Registrar; rather the facts and circumstances of the case justify the Deputy Registrar to have passed the impugned orders for the reason that the assertion made by Sri Mohd. Nasir-ullah Khan in his application dated 20.08.2005 was that the office of the Deputy Registrar has been mis-led by one Dr. Layaq Ali and Afaq Warsi who have played fraud and further that Mohd. Nasir-ullah Khan in the said application has stated that he had never submitted any such document in the office of the District Minority Welfare Officer, Gonda nor was any such document ever demanded by the District Minority Welfare Officer, Gonda. His submission is, thus, that the application dated 20.08.2005 was moved for cancellation of the order dated 09.08.2005 on the ground that the order was obtained by playing fraud and mis-representation and office of the Deputy Registrar was mis-led and as such initiation of the proceedings on the said application dated 28.08.2005 cannot be said to be an exercise of review of the order dated 09.08.2005.
Adopting the arguments advanced by the learned Standing Counsel, Sri G.M. Kamil, learned counsel representing the private-respondents has contended that in fact the impugned order dated 03.06.2008, in the facts and circumstances of the case, would not amount to reviewing the earlier order dated 09.08.2005 and all authorities who are exercise either administrative or quasi judicial or even judicial powers can take into account any application of the nature as was moved by Sri Mohd. Nasir-ullah Khan. His submission is that in fact if any order is obtained by playing fraud or mis-representation, the authority concerned enjoys intrinsic and inbuilt authority to correct his orders.
I have given my anxious consideration to the arguments advanced by the learned counsel representing the respective parties. I have also perused the record of this petition.
It is not in dispute that earlier Writ Petition No. 3022(MS) of 2005 filed by Sri Mohd. Nasir-ullah Khan was dismissed by this court by means of its order dated 20.05.2005 finding that amendments made in the Rules of the Society in 1990 are not lawful and further that since the elections of the Committee of Management of the Society were not held within three years period, as such the Committee of Management of the Society had become barred by time.
The matter at hand, in my opinion, should thus proceed on this basic premise that executive body of the Society had become barred by time and as such in terms of the provisions under Section 25(2) of the Societies Registration Act, it was incumbent upon the Registrar/Deputy Registrar to call a meeting of the general body of such Society for electing such office bearer or office bearers and such meeting was to be presided over and be conducted by the Registrar or by any other officer authorized by him. Sub-section (2) of Section 25 of the aforesaid Act requires the Deputy Registrar or Registrar, as the case may be, to conduct the elections of the executive body of the Society where the executive body has out lived the term of its office. The provision contained in Sub-section (2) of Section 25 of the Act use the expression "he may call meeting of the general body of such society for electing such office-bearer or office-bearers".
Thus, the basic function of the Deputy Registrar/Registrar under Sub-Section (2) of Section 25 of the Act is that in case the executive body of a Society has become barred by time, he may call the meeting of the general body and get the elections conducted. However, for the purpose of determining as to who will be the persons to be allowed to participate in the elections after being called upon to attend the meeting of the general body of the Society, the Deputy Registrar/Registrar sometimes has to take recourse to finalization of the list of members of the general body which forms the electoral college for the elections of the office bearers. In case of dispute, of course, Registrar/Deputy Registrar has to determine the membership and the electoral college before the elections are held in the meeting to be presided over either by him or by an officer authorized by him in that behalf. The proceedings, however, for determining the electoral college or the list of the members of the general body of a Society for the purpose of convening meeting for electing the office bearers can at the best be said to be a proceeding which is though quasi judicial but summary in nature. Any order passed under Sub-section (2) of Section 25 of the Societies Registration Act is always open to challenge before the regular Civil Court of competent jurisdiction. In such a situation where the nature of proceedings to be drawn by the Deputy Registrar/Registrar under Sub-Section (2) of Section 25 of the Act for the purpose of determination of electoral college is summary, the strict legal principle that any quasi judicial authority does not exercise and cannot exercise power of review has to be viewed with some flexibility. In any case, every authority empowered to exercise judicial, quasi judicial and administrative powers is inherently vested with the authority to have a re-look over the orders passed or on the decision taken by such authority in case the order appears to have been passed on misrepresentation or in a situation where the authority appears to have been misled.
If the facts of the present case are examined and scrutinized on the anvil of the aforesaid legal proposition what is required to be examined is the nature of the allegation made by Sri Nasir-ullah Khan in his application dated 20.08.2005 which has been annexed as Annexure CA-1 to the counter affidavit filed by the State-authorities. In the said application which became basis of initiating the proceedings which have resulted in passing of the impugned orders, it was submitted by Sri Mohd. Nasir-ullah Khan that the Deputy Registrar on 15.06.2005 had required Sri Mohd. Nasir-ullah Khan and Dr. Layaq Ali to submit a list of members of the general body and original documents such as proceedings register, membership register, agenda register, counter foil of the membership receipts and bank pass-book etc. and in compliance thereof Sri Mohd. Nasir-ullah Khan had submitted all the original documents in the office of Deputy Registrar on 29.06.2005 whereas Dr. Layaq Ali did not submit any original documents. Mohd. Nasir-ullah Khan further stated that by passing the order dated 09.08.2005 whereby the list of members of the general body of the society was finalized, the Deputy Registrar has not made a mention of original documents submitted by him. It was contended in the said application by Sri Mohd. Nasir-ullah Khan that Dr. Layaq Ali and Sri Aafaq Ahmad Warsi have misled the office of the Deputy Registrar under conspiracy stating that the membership register of the general body of the Society was submitted in the office of District Minority Welfare Officer, Gonda whereas the fact was that he never submitted any such document or register in the office of District Minority Welfare Officer, Gonda, neither any such documents i.e. membership register was ever required by the office of District Minority Welfare Officer, Gonda to be resubmitted. Thus, he has stated that the office of Deputy Registrar was misled under some fraud and mis-representation in as much as no original document relating to membership of the general body of the society was ever submitted in the office of District Minority Welfare Officer, Gonda.
As to whether the contents of the application dated 20.08.2005 were correct or not are not the yardstick which could be said to be available before the Deputy Registrar to exercise his intrinsic and inherent powers for initiating proceedings on the said application. It is primarily the nature of allegations contained in the application dated 20.08.2005 which would, in the instant case, give an authority and jurisdiction to the Deputy Registrar to proceed on the said application. As is apparent from bare perusal of the application dated 20.08.2005, the allegation by Sri Mohd. Nasir-ullah Khan was that Dr. Layaq Ali and Aafaq Ahmad Warsi have played fraud and and mis-representation and have, thus, misled the Deputy Registrar in as much as though Sri Mohd. Nasir-ullah Khan did not submit any document in the office of District Minority Welfare Officer, Gonda, however, the same appears to have been produced at the time of passing of the order dated 09.08.2005. The contents and allegation of the said application are, thus, if construed, would mean that Mohd. Nasir-ullah Khan prayed the order dated 09.08.2005 to be set aside on two grounds; one of said two grounds construed allegations of mis-representation and fraud.
On the aforesaid analysis of the contents of the application dated 20.08.2005 and also taking into account the well settled principle of law that every authority has got intrinsic and inherent powers to have a re-look over its decisions taken earlier, on the ground of mis-representation and fraud, I have no hesitation to hold that the Deputy Registrar while passing the order dated 03.06.2008 and 03.07.2008 has not acted without jurisdiction.
Having held that the impugned orders are not without jurisdiction, the Court now proceeds to consider the merit of the said orders.
The order dated 09.08.2005, passed by the Deputy Registrar recites that Dr. Layaq Ali and Aafaq Ahmad Warsi had submitted before the Deputy Registrar that the list of the members of the general body of the Society submitted by Sri Mohd. Nasir-ullah Khan was not correct and in fact the register of the general body members is available in the office of District Minority Welfare Officer, Gonda which was furnished earlier at the time when the proceedings for single hand operation of the accounts were going on. The order further recites in the said background that Dr. Layaq Ali and Aafaq Ahmad Warsi made a request that list of the general body members and the register be summoned from the office of District Minority Welfare Officer, Gonda. The order dated 09.08.2005 further recites that vide office letter dated 27.06.2005, the District Minority Welfare Officer was requested to submit the list of members of the general body and all other documents related to the Society within ten days, so as to facilitate the elections of the Society under Section 25(2) of the Societies Registration Act. The said order further states that in pursuance of the letter dated 27.06.2005, the District Minority Welfare Officer, Gonda submitted with his letter dated 30.06.2005, the list of members of general body of the Society comprising of 41 persons and the membership register of the Society wherein the number of general body members recorded is 56. After making several other recitals, the Deputy Registrar proceeded to pass order dated 09.08.2005 solely on the basis of the information furnished by the District Minority Welfare Officer, Gonda by means of letter dated 30.06.2005.
The order dated 09.08.2005 does not take into account or consider the evidence adduced by Sri Mohd. Nasir-ullah Khan though it appears that in response to the notice/order dated 15.06.2005, he had submitted various original documents, vide his letter dated 29.06.2005, such as agenda register, proceedings register, membership register, membership receipts, counter foil receipts and bank statement. The Deputy Registrar has, thus, clearly failed to take into account or discussed or analyzed the aforesaid documentary evidence adduced by Sri Mohd. Nasir-ullah Khan while passing the order dated 09.08.2005 and has based his order solely on the information provided to him by the office of District Minority Welfare Officer by means of letter dated 30.06.2005, veracity whereof has been doubted by Sri Mohd. Nasir-ullah Khan.
It is also noticeable that while passing the order dated 09.08.2005, the Deputy Registrar has not found any evidence said to have been adduced or which could have been adduced by Dr. Layaq Ali in support of the list of 56 members of the general body. It appears that except the letter dated 30.06.2005 written by the District Minority Welfare Officer, Dr. Layaq Ali did not have any other material to establish the case set up by him.
The assertions made by Sri Mohd. Nasir-ullah Khan before the Deputy Registrar which finds recorded in the order dated 03.06.2008 are that the last elections of the executive body of the Society was held on the basis of 30 members list of the general body and further that under the registered bye-laws of the Society it is the manager who is empowered to induct new members and in case any such member was inducted by him, he would have submitted the said list. He has also submitted before the Deputy Registrar that the list submitted from the office of the District Minority Welfare Officer is a result of forgery which does not bear his signature.
The Deputy Registrar after considering the entire matter and taking into account the evidence led by Sri Mohd. Nasir-ullah including the list of members, membership register and receipt book etc. has tentatively prepared the list of general body of the Society and issued the same by order dated 03.06.2008 which comprises of 86 tentative members. While passing the order dated 03.06.2008 and issuing a tentative list, the objections were invited to be submitted within 15 days and thereafter Deputy Registrar passed the order on 03.07.2008 finalizing the list of 38 members of the Society.
The issue which requires consideration to judge the validity of the order dated 03.06.2008 is as to whether the letter dated 30.06.2005 which is said to have been issued by the office of District Minority Welfare Officer which contained certain information, was genuine or not.
Counter affidavit filed on behalf of respondent No.4 contains two crucial documents, namely, Annexure CA-3 and Annexure CA-4 which are the applications moved by one Mohd. Shafi and Sri Zuber Ahmad under Right to Information Act seeking certain information from the Public Information Officer/ District Minority Welfare Officer, Gonda. The information sought by Mohd. Shafi in his application dated 08.09.2008 is that he be informed as to who had furnished the list of 41 members of the general body of the Society in the office of District Minority Welfare Officer and further that receipt of the said documents be provided to him. Various other queries were also made by Mohd. Safi in application dated 08.09.2008, in reply thereof, District Minority Welfare Officer, who appears to be Public Information Officer as well, has given reply on 09.02.2009 stating therein that in his office there is no documentary proof available as to who had submitted the list of 41 members of the general body of the Society and the so called membership register.
In the reply submitted by the District Minority Welfare Officer on 18.07.2009 to the application submitted by Sri Zuber Ahmad under Right to Information Act, it has been stated that in the office of Deputy Registrar, Firms, Societies and Chits, Faizabad, no list of general body or executive body of the Society, known as Madarsha Islamiya Sadarul Uloom, Bargaon, District Gonda was ever sent by his office as no documentary proof is available in his office as to when and by whom any such list was submitted in the office of District Minority Welfare Officer. Reply given by the District Minority Welfare Officer under the Right to Information Act, vide his letter dated 18.07.2009 is extracted herein below:-
"1- fMIVh jftLVªkj QElZ lkslkbVht ,oa fpVl QsStkckn ds dk;kZy; esa enjlk ln:y mywe jsyos efLtn cM++xkao xks.Mk uked laLFkk ds izcU/k [email protected]/kkj.k lHkk dh dksbZ lwph bl dk;kZy; }kjk izsf"kr ugha dh xbZ gSA D;ksafd esjs dk;kZy; esa dc vkSj fdlds }kjk dksbZ lwph izsf"kr dh xbZ gS ,slk dksbZ lk{; miyC/k ugha gSA esjs rFkk esjs iwokZf/kdkfj;ksa }kjk izcU/k lfefr dh dksbZ lwph rS;kj ugh dh xbZ gS D;ksafd fdlh laLFkk ds izcU/k lfefr dh lwph rS;kj djuk esjs vf/kdkj {ks= esa ugha gSA ;fn QElZ lkslkbVht QsStkckn dk;kZy; esa dksbZ lwph fdlh ds }kjk izLrqr dh x;h gS rks mldk dksbZ lk{;@vfHkys[k bl dk;kZy; esa miyC/k ugha gSA rnuqlkj Nk;kizfr fn;k tkuk lEHko ugha gSA 2- rRdkyhu ftyk vYila[;d dY;k.k vf/kdkjh xks.Mk }kjk dksbZ 41 O;fDr;ksa dh dksbZ lwph laLFkk dk lnL; cukus gsrq fuosnu fd;k x;k ;k lnL; cuk;k x;k gS] dk dksbZ lk{; bl dk;kZy; esa miyC/k ugha gSA ;gkWa ;g fy[kuk vlaxr u gksxk fd ftyk vYila[;d dY;k.k vf/kdkjh xks.Mk dks fdlh laLFkk dk fdlh O;fDr dks lnL; cukus dk vf/kdkj ugha gSA 3- esjs dk;kZy; esa fcUnq la[;k&03 ls lEcfU/kr dksbZ Hkh lk{;@vfHkys[k miyC/k ugha gSA lwph ij eks0 ul:Yykg [kkWa HkwrowoZ izcU/kd ds gLrk{kj ekStwn gSa vFkok ugha Li"V djuk lEHko ugha gSA 4- bl dk;kZy; esa dksbZ lk{;@vfHkys[k miyC/k ugha gS rFkk esjs }kjk fMIVh jftLVªkj dk;kZy; ls dksbZ vfHkys[k ugha ekWaxk x;k gS vkSj u gh Hkfo"; esa ekaxk tk;sxk D;ksafd dksbZ fooj.k bl dk;kZy; esa miyC/k u gksus ds dkj.k fLFkfr Li"V ugha gks ik jgh gSA ftyk vYila[;d dY;k.k vf/kdkjh] xks.Mk"
In view of the aforesaid reply given by the District Minority Welfare Officer under the Right to Information Act, the letter dated 30.06.2008 and the information and material attached therewith becomes doubtful. It is also noticeable that it has categorically been noticed by the Deputy Registrar that except for material made available allegedly by the District Minority Welfare Officer, vide his letter dated 30.06.2008. There is no other material which could be said to have been submitted by Dr. Layaq Ali to establish the list of 56 members of the general body of the Society. Thus, in absence of any material in respect of the case of Dr. Layaq Ali being available before the Deputy Registrar, Faizabad, and also for the reasons as discussed above, the Deputy Registrar has passed the order dated 03.07.2008 finalizing the list of the general body of the Society. I do not see any reason or ground to interfere in the impugned orders passed by the Deputy Registrar.
Sri Raghvendra Singh, learned Senior Advocate at this juncture submits that the impugned orders were passed without issuing notices to the petitioners or those whose names have been struck off from the membership of the Society and as such the orders being in violation of the principles of nature justice are not sustainable.
The aforesaid submission of learned counsel for the petitioners is misconceived for the reason that by order dated 03.06.2008 only the tentative list of 86 members of the general body of the Society was issued requiring all concerned to file objections to the said tentative list. The order dated 03.06.2008 further provided that the list of members of the general body of the Society shall be finalized only on disposal of the objections. The order dated 03.06.2008 only provides the tentative list of members and in the process of finalizing an electoral college for the purpose of elections, any interested person will have right to file objection to the tentative voters' list (in the present case the tentative list of members of the general body). Since opportunity to all concerned was provided to file objections against the tentative list in terms of the order dated 03.06.2008 and it is only thereafter that the list has been finalized by the order dated 03.07.2008, submission of learned counsel for the petitioners cannot be accepted for the simple reason that if the petitioners or for that matter any other person had any objection against the tentative list, he could have availed the opportunity of filing the same.
For the reasons disclosed above, the Court is unable to agree with the submissions made by learned counsel for the petitioners. The writ petition is, thus, dismissed.
It is also relevant to observe while parting with the case that the last election of the executive body of the Society had taken place long ago and thus, the Deputy Registrar had conducted the exercise of finalizing the electoral college for the purpose of conducting elections by passing the impugned orders taking into account that in the order dated 20.05.2005, passed by this court in Writ Petition No. 3022(MS) of 2005, it has already been held that the Committee of Management of the Society has become barred by time. Accordingly, it is directed that the elections of the executive body of the society shall be held pursuant to the order dated 03.07.2008 expeditiously say, within a period of six weeks from the date of production of certified copy of this judgment.
No orders as to costs.
Order Date :- 13.12.2016 Sanjay