JUDGMENT Rakesh Tiwari, J.
1. Heard learned Counsel for the parties.
Sri Ram Shikha Samiti, Sarai Ganesh, Mau is an educational society, duly registered on 17.1.1968 under the Societies Registration Act, 1860 with 17 founder members having registration No. 1-18079.
2. The society has its memorandum of association and bye laws. It established an educational institution namely, Junior High School, Sarai Ganesh Mau, which was later on brought under the grant in aid in aid list by the State Government.
3. The U.P. Basic Education Act as well as the U.P. Basic Junior High School Payment of salaries of teachers and other employees Act, 1978 are applicable to the institution which is managed by an elected and recognized Committee of Management. The Committee of Management of the Institution as well as the Society is the same. Respondent No. 4 and the petitioner No. 1 both are said to be founder members of the society.
4. Petitioner No. 1 Rama Shankar Singh, who had been elected as Manager, instead of getting the registration of the society renewed time to time fraudulently and without knowledge of the members of the society, got a new society registered on 26.8.1983 in the identical name of the petitioners i.e. Sri Ram Shiksha Samiti, Sarai Ganesh, Mau with registration No. V-3136. Respondent No. 4 as well as other members of the society were kept in dark that the society is being renewed from time to time. The members in ignorance of the renewal were being asked to sign on the resolution over the proceedings of the society in these circumstances.
5. Thus a dispute arose between two rival groups regarding renewal of the registration of the society i.e. one led by respondent No. 1 Rama Shankar Singh and the other led by respondent No. 4 Awdhesh Singh.
6. In March, 2003 the members of the society registered on 17.1.1968 with the registration No. 1-18079 including respondent No. 4 come to know that the society has become unregistered for having not been renewed therefore an application submitted on 24.3.2003 for renewal of the society alongwith with requisite fee by respondent No. 4. After hearing the parties an order dated 11.8.2004 was passed by the Assistant Registrar on that application granting renewal to the earlier society registered in 1968 and the registration of the society surreptitiously registered by petitioner No. 1 in 1983 was cancelled.
7. The relevant part of the order of Assistant Registrar, for the sake of convenience is being quoted below:
mijksDr foosfpr fcUnqvks ls eS bl fu"d"kZ ij igqapk gWaw fd fnukad 26-8-1983 dks i=ka0 la0 oh0&3136 dk iathdj.k lks0vf/k0 1860 dh /kkjk 3 ¼2½ ¼d½ dk mYya?ku fd;k x;k gS] vr% i=ka0 la0 oh0 3136 ij iathd`r laLFkk dk iath;u vf/k0 dh /kkjk 12 ¼Mh½ ¼lh½ ds rgr rRdky izHkko ls fujLr fd;k tkrk gS A pwafd Jh vo/ks'k flag }kjk Hkh dwVjfpr ax ls i=ka0 la0 1&18079 dk uohuhdj.k djk;k x;k gS] ysfdu bl uohuhdj.k dks fujLr u dj cgky j[kk tkrk gS D;ksfd iwoZ lks0 uohuhdj.k laLFkk fgr esa fd;k x;k gS] fdUrq Jh vo/ks'k flag }kjk dwV jfpr dk;Zokgh;ka] iathd`r izcU/k lwph ,oa lnL;rk lwph esa xyr rF;ks ij vk/kkfjr gksus ds dkj.k dksbZ cy ugha feyrk gS ftls fujLr fd;k tkrk gS A mijksDr ls Li"V gS fd laLFkk esa fof/kekU; pquko ugh djk;s x;s gS] rFkk izcU/k lfefr dkykrhr gksdj dk;Z dj jgh gS ,oa laLFkk esa euekus ax ls lnL; cuk;s x;s gS] vr% laLFkkfgr esa laLFkkid lnL;ksa dks ekU;rk iznku djrs gq, funsZf'kr fd;k tkrk gS fd orZeku esa thfor laLFkkid lnL; cSBd vkgwr dj laLFkk dk pquko lEiUu djk;s rnkuqlkj cgqer o iathd`r fu;eksa ds vuqlkj laLFkk ds fjDr LFkkuks dh iwfrZ djsa vkSj p;fur desVh dks uohuhdj.k izek.ki= tks iwoZ iathd`r lkslkbVh dk gS p;fur desVh dks mi;ksx djus dk vkns'k fn;k tkrk gS A
8. From the above order of the Assistant Registrar it is apparent that he has recorded findings of facts that the respondent No. 4 had filed forged documents relating to Committee of Management and membership list of general body and that the term of Committee of Management had expired. After having recorded these findings by order dated 11.8.2004 directed that the election meeting be convened by the 17 founder members of the society alive at that time for holding elections of the society and elections be held according to the registered bye-laws of the society.
9. Pursuant to the aforesaid order of Assistant Registrar two rival sets of elections is claimed to have been held. One set of election was held on 26.8.2004 in which a committee, with respondent No. 4 Awadesh Singh as manager, was said to have been elected. The other set of election was held on 21.9.2004 in which a committee, with petitioner No. 1 Rama Shankar Singh as manager is claimed to have been elected. The papers of the aforesaid two sets of elections were submitted before the Assistant Registrar for registration.
10. The order dated 11.8.2004 has been become final between the parties and in the admitted facts that the Committee of management has become time barred or Kala Teet, therefore the elections were required to hold under Section 25(2) of the society Act, but as both the parties submitted their elections a dispute regarding election and Committee of Management arose in the society. In the circumstances a reference dated 29.9.2004 was made to the Prescribed Authority for deciding the dispute by the Assistant Registrar regard to Office bearers of the Committee of Management. The Prescribed Authority thereafter decided the reference of election dispute by its order dated 21.12.2005 holding the elections of the petitioners dated 21.9.2004 as valid and that of the elections of respondent No. 4 dated 26.8.2004 as invalid.
11. Respondent No. 4 challenged the order dated 21.12.2005 passed by the Prescribed Authority (S.D.M) in writ petition No. 4765 of 2006. The petitioner also challenged the order by means of writ petition No. 42489 of 2004 and both petitions were connected together for hearing. The writ petition No. 4765 of 2006 of the respondent was allowed and that of the petition was dismissed vide order and judgment dated 1.5.2007 passed by this Court remitting back to be decided the matter a fresh before the Prescribed authority formulating three questions for decision as to whether:
(i) Meeting for the elections has been convened by a person competent to convene the meeting.
(ii) Elections have been held from the valid members of the General Body
(iii) Elections have been held accordance with the registered bye-laws of the society.
12. The Prescribed Authority (SDM) after hearing the parties found that neither petitioner No. 1 nor the respondent No. 4 have held their alleged elections in conformity with law or the directions issued by this Court. The Prescribed Authority by its order dated 27.10.2007 set aside both the elections alleged to be held by the parties directing for fresh election to be held under supervision of an observer. He also sent the entire paper before the Assistant Registrar Firm, Chits and Societies Azamgarh for this purpose.
13. It is submitted by the counsel for the petitioners that once the High Court by its order dated 1.5.2007, had remanded the matter directing the Prescribed Authority to decide the election dispute in the light of the observations made in its remand order then it was not open for the authority to decide the matter in a manner contrary to the directions and observations of the High Court contained in the said remand order. It is stated that the prescribed Authority therefore committed an illegality and failed to decide the dispute strictly in consonance with the observations made in the said judgment and order of this Court quoted above.
14. It is further submitted by the counsel for the petitioner that though the Prescribed Authority in the impugned order has quoted the aforesaid three issues for decision formulated by the High Court and has also stated therein that he has been directed by the High Court to given decision on the aforesaid three issues but unfortunately, the authority while deciding the legality of the petitioners' election has not taken into consideration the aforesaid three basic issues; that while deciding the dispute he has based his conclusions on an earlier order of Assistant Registrar dated 11.8.2004, recording a finding that the petitioners' election was invalid because it was not held from amongst the founder members of the society as ordered by Assistant Registrar in his order dated 11.8.2004.
15. It is urged that the Prescribed Authority has miserably failed to follow the observations/orders and directions contained in the High Courts remand order dated 1.5.2007 and has not decided the case in the light of the observation made therein ; that by following the earlier order of Assistant Registrar dated 11.8.2004, which stood completely eclipsed or superseded by the by the subsequent order of the High Court dated 1.5.2007, the Assistant Registrar has committed an illegality on face of record and in the teeth of judgment dated 1.5.2007 aforesaid and as such the impugned order is liable to be set aside.
16. It is stated that even otherwise Clause 6(ii) the bye laws of the society appended as annexure No. 2 to the writ petition provided that the managing committee has to be elected from amongst the members of general body of the society as such the managing committee of the society has to be elected from amongst the general body of the society and not from the founder members of the society. It is submitted that the Prescribed Authority has committed a manifest illegality and error apparent on the face of he record in having mis-read and/or misconstrued the order of Assistant Registrar dated 11.8.2004, in as much as the Assistant Registrar by the order said order had not ordered that election of the committee be held from amongst the founder members. He had only ordered that the election meeting would be convened by the founder members and the election would be held in accordance with the bye-laws of the society.
17. The last submission by the counsel for the petitioner is that if the election of the managing committee is ordered to be held from amongst the founder members and not from the members of general body of the society then the committee cannot be elected, formed and constituted in view of Clause 6(ii) of the bye-laws of the society which provides that there has to be minimum 13 members on the committee, whereas there are 11 live members today. Reference in this regard is made to the counter affidavit wherein a list of founder members of the society as issued by the Assistant Registrar under his order dated 2.2.2008 has been appended which shows that only 17 members. It is stated that out of those 17 members only 11 are alive today and 6 of them are now dead hence the managing committee cannot be elected and formed from these 11 living founder members for the reason that according to the bye-laws of the society, the committee must consist of minimum 13 members. Reference has also been made in this regard to the averments made in the rejoinder affidavit and it is prayed that in the facts and circumstances stated above the impugned order of Prescribed Authority suffers from an error of law apparent on the face of the record and deserves to be quashed.
18. After hearing the learned Counsel for the parties and on perusal of record, it appears that the Assistant Registrar Firms, Societies and Chits, Azamgarh had issued notice to both the parties directing them to furnish all the original documents pertaining to their claims and making of members including receipts. The parties were heard and it was found that none of the members have been properly made a member. Hence the Assistant Registrar by order dated 2.2.2008 decided that the electoral college would be elected by the founder members of the society. Consequently, the election process was notified in a daily news paper dated 3.2.2008.
19. The petitioner has also not challenged the order passed by the Assistant Registrar dated 2.2.2008 and the writ petition has been filed challenging the impugned order dated 27.10.2007 after expiry of the limitation, as such writ petition suffers from latches. The orders dated 11.8.2004 and 2.2.2008 passed by the Assistant Registrar Firms, Societies and Chits, Azamgarh have attained its finality. The finding of facts have been recorded by the Assistant Registrar after verifying all the original record submitted by the parties that neither new members have been made according to bye-laws nor their fees have been deposited as such it was only founder members, who were at the time of registration are not disputed members can decide the electoral college and notify the election.
20. The order dated 11.8.2004 clearly shows that founder members were alive at present and they can convene a meeting and hold the election for filling up the post by election process.
In the instant case, there is a dispute that out of 17 members 11 members are alive, hence Committee of Management cannot be elected and formed.
In my opinion the alive founder members of the Committee of Management should hold meeting and start the election process for filling up the post including the enrolling of members.
There is no illegality or infirmity in the order impugned.
The writ petition is accordingly dismissed.