JUDGMENT A.N. Varma, J.
1. Through the instant writ petition the petitioners have prayed for quashing of the order dated 28.8.2004 passed by opposite party No. 1, as contained in Annexure-1, whereby the election of the Chairman of Harbhaj Ram Kripa Devi Trust, held in the meeting of the trustees on 14.8.2003, has been set aside and It has been ordered that fresh elections be held. A further prayer has been made for issuance of a writ, order or direction in the nature of mandamus commanding the opposite parties not to give effect to the order dated 28.8.2004.
2. The circumstances in which the dispute in the present petition arises is as follows :-
One Harbhaj Ram, father of petitioner No. 2 and grandfather of petitioner No. 1 and opposite parties No. 2 and 3 had seven sons. He died intestate on 28.1.1959, his wife Smt. Kripa Devi having predeceased him. Upon the death of said Harbhaj Ram, his seven sons decided to establish a charitable trust in his memory. Accordingly a trust was created on 1.7.1959 through a registered deed in order to establish a charitable hospital under the name and style 'Shri Harbhaj Ram Kripa Devi Trust Hospital' which was subsequently established at Naka Hindola Lucknow in the year 1961. The said trust was registered as a charitable society and was called as Shri Harbhaj Ram Kripa Devi Trust. The society was registered on 15.10.1960 vide Registration No. 349/6-61 under the Societies Registration Act 1860 (to be hereinafter referred as 'the Act') which was renewed from time to time, the last renewal having been granted by the Registrar of Societies for a period of five years on 8.11.2000 with effect from 10.10.2000. The society also framed rules and regulations known as Rules and Regulations of Sri Harbhaj Ram Kripa Devi Trust (to be hereinafter referred to as the rules) registered with the Registrar of the Societies, a copy of which has been annexed alongwith the writ petition as Annexure-3.
The settlers and trustees of the trust, which was formed in 1959 were as follows :-
(1) Ram Narain (2) Ram Manohar (3) Shyam Sunder (4) Brij Bhushan (5) Deoki Nandan (6) Om Prakash (7) Vidya Sagar.
All sons of late Harbhaj Ram
3. Rule 4 of the rules provides that in case a vacancy occurs amongst the settlers and trustees the same shall be filled up from amongst the male lineal descendants of Shri Harbhaj Ram and as far as possible from amongst the male descendants of the trustees on whose account the vacancy was caused. Rule 5 prescribed that trustees may nominate other trustee or trustees at any time and his or their nomination may be for a fixed term not exceeding three years provided that he shall be eligible to be re-nominated. Rule 6 prescribed that the nomination of a new trustee shall be made by mutual consent of the trustees for the time being and in case of difference, by election held by the ballots. Rule 7 provided that Ram Narain shall be the Chairman of the Board of trustees during his life time and after him the trustees may elect from amongst themselves, Chairman to hold the office during his life time or for a specified period. It was further provided that the Chairman shall always be from amongst the trustees who were male lineal descendants of late Shri Harbhaj Ram. Rule 13 provided that in case number of trustees for the time being did not exceed 6, three trustees, and if exceeds 6, then five trustees shall form a quorum in the meeting both ordinary and annual. No business of the trust shall be transacted at a meeting of the trustees if the quorum is not complete. Rule 6 laid down that there shall be only life members of the Board of trustees whose names were mentioned in the rules. The strength of the trustees could be increased upto eleven in future if required. Rule 27 prescribed the duties of the chairman who was to act as the constitutional head of the trust and shall be vested with the power (a) to call an emergency meeting of the Board of trustees and (b) to preside over all the meetings of Board of trustees and all general meetings and shall also control and regulate the business of such meeting in the interest of the trust.
4. On 7.1.1991 Ram Narain the Chairman died. On 17.1.1991 Deoki Nandaii Gupta was elected the Chairman and Kanwal Kishore son of Ram Narain was elected trustee in his place. Ram Prakash and Desh Raj, though not the lineal descendants were elected as trustees for a period of three years. On 29.12.2001 the chairman Shri Deoki Nandan Gupta resigned and Vidya Sagar Gupta petitioner No. 2 was elected Chairman on 6.1.2002. On the same date, Tilak Ram Gupta riot a lineal descendant, and Arvind Kumar were elected as trustees.
5. That on account of the resignation of Deoki Nandan, another meeting was held on 28.12.2001 in which a parallel Committee of Management was elected and a petition was presented by Shri Deoki Nandan Gupta before the Deputy Registrar to recognize the said Committee of Management elected in the meeting held on 28.12.2001. Though Deoki Nandan Gupta had resigned from the office of the chairman, still he claimed himself to be the chairman in the petition. The dispute was resolved before opposite party No. 1 by the two rival Committees of Management through a compromise entered into between the parties on 18.1.2003 and following came to be treated as settlers and trustees :
6. Persons shown at serial Nos. 1, 2 and 4 being settler-trustees and Nos. 3, 5, 6 and 7 being male lineal descendants of late Harbhaj Ram and the 8th being the nominated trustee and not a lineal descendants of Harbhaj Ram. A copy of the compromise dated 23.1.2003 which was arrived at between the parties, has been filed alongwith the writ petition as Annexure-6. Shri Deoki Nandan Gupta the Chairman died on 16.6.2003. A notice was issued to hold an emergency meeting on 20.6.2003 for (a) to pay homage to Deoki Nandan Gupta, (b) to elect new Chairman and (c) any other matter. In the meeting held on 20.6.2003 all the trustees were present. Opposite party No. 2 endorsed that the election should not be held. Consequently only homage was paid to the deceased. Vide Annexure-8 a notice was issued to hold meeting to elect the Chairman and Vice-Chairman. The meeting dated 6.8.2003 was postponed as quorum was not complete. On 10.8.2003 notice was issued for holding meeting on 14.8.2003 to elect the Chairman and Vice Chairman, if required, and new trustees. The notice was served on all the seven trustees including opposite parities No. 2 and 3. On the back of the said notice a suggestion was endorsed by the opposite parties that first steps should be taken to fill the vacancy caused by the death of the late Deoki Nandan Gupta and then the meeting should be convened to elect the Chairman.
7. On 12.8.2003 Desh Raj Gupta resigned. The meeting was held on 14.8.2003 at the trust building at 12.15 p.m. Following trustees were present.
(1) V. S. Gupta (2) Vinod Kumar Gupta (3) Ramesh Agarwal Since the quorum as provided under Rule 13 was complete, therefore, through unanimous resolution :
(a) V. S. Gupta (petitioner No. 2) was elected as Chairman of the trust for life in place of his father Deoki Nandan Gupta.
(b) Vipin Kumar (opposite party No. 5) was taken as a trustee in place of his father Shri D. N. Gupta.
(c) Tilak Raj Gupta (petitioner No. 4) and Arbind Gupta (petitioner No. 5) were elected as trustees for three years.
8. On 8.6.2004 the opposite parties No. 2 and 3 moved an application before the opposite party No. 1 to set aside the elections held in the meeting dated 14.8.2003. In reply thereto the petitioners No. 1 and 2 filed objections on 12.7.2004. Vide order dated 28.8.2004, a copy of which has been filed along with writ petition as Annexure-1 and which has been impugned in the petition, the election of the petitioner No. 2 as Chairman of the trust and also the proceeding dated 14.8.2003 as well as all subsequent proceedings nominating opposite parties No. 5 and 6 as the trustees of the trust has been set aside.
9. I have heard the learned counsel for the petitioners, Shri B. C. Agarwal, assisted by Sri I. B. Singh as well as the learned senior advocate, Shri Umesh Chandra, assisted by Sri Hira Lal Srivastava.
10. Counter affidavit and rejoinder affidavits have been exchanged on both the sides and with the consent of the parties the matter is being finally disposed of at the admission stage.
11. The learned counsel for the petitioners, Sri B. C. Agarwal vehemently argued that the opposite party No. 1 had no jurisdiction to set aside the election of petitioner No. 2 elected as Chairman in the meeting dated 14.8.2003. According to him a dispute with regard to an election of office bearer of a society or his continuance in the office can only be decided by the prescribed authority in exercise of powers under Section 25(1) of the Act. His argument further was that opposite party No. 1 also did not possess any jurisdiction under the Act to decide the validity or otherwise of the election of any trustee. According to him it committed a manifest illegality in setting aside the election of Tilak Raj Gupta and Arvind Gupta as trustees of the trust. As per his submission the election of a duly elected Chairman cannot be annulled by taking recourse to the provision to the Sections 1 and 13B(b) of the Act. He further submitted that there was absolutely no illegality in convening the meeting dated 14.8.2003 as the same was after due notice to all the trustees and on the said date the quorum being complete as provided under Rule 13 and the proceedings held on 14.8.2003 being within the four corners of the rules, the opposite party No. 1 fell in grave error in setting aside the same.
12. He further submitted that the opposite party No. 1 acted in excess of jurisdiction vested in it by law by nominating Vipin Kumar and Anil Kumar as trustees in place of Deoki Nandan Gupta and Om Prakash Gupta, which function is vested with the trustees under the rules.
13. Shri Agarwal further submitted that in meeting dated 2.1.2004 Tilak Raj Gupta and Arvind Kumar Gupta who have been appointed as trustees on 14.8.2003 for a period of three years, raised objections on the appointment of Vijay Agarwal as a trustee. No objection was taken by anyone on the question of election of petitioner No. 2 as Chairman on 14.8.2003. Thereafter on 30.5.2004 another meeting was held at the hospital under the chairmanship of the petitioner No. 2, wherein all the members were present and despite objections having been raised by Vipin Gupta, a decision was taken by majority that the meeting held on 14.8.2003 was in order and thus the minutes of the last meeting were passed with the majority. In this backdrop there was absolutely no occasion for the opposite parties to have raised an objection before the opposite party No. 1 with regard to the validity of the meeting dated 14.8.2003 and for the opposite party No. 1 to pass an order impugned in the writ petition.
14. Sri Agarwal in support of his arguments placed reliance upon Punjab University, Chandigarh v. Vijay Singh Lamba, ; Ramchandra Keshav Adke v. Govind-Jott Chavare and Ors., ; All India Council and Anr. v. Assistant Registrar, Firms, Societies and Chits, Varanasi and Anr., .
15. In opposition Sri Umesh Chandra, senior advocate submitted that the meeting dated 14.8.2003 was absolutely illegal and de-hors the rules. As per his submission since the number of trustees having been reduced to 6, Deoki Nandan Gupta having died on 16.6.2003 and Des Raj Gupta having resigned on 12.8.2003, there was no society in existence, as contemplated under Section 1 of the Act, therefore, any business transacted or deliberated in the meeting dated 14.8.2003 was a nullity. According to him the power has been exercised by the opposite party No. 1 under Section 13(B), therefore, the opposite party No. 1 was perfectly justified in taking a decision on the application preferred by the opposite parties No. 4 and 5. As per his argument there is absolutely no illegality in the order passed by opposite party No, 1 setting aside the election of the petitioner No. 2 which was not in consonance with the rules. His submission further was that first the vacancy caused on account of the death of Deoki Nandan Gupta and that of Des Raj Gupta by resignation, ought to have been filled and number of trustees ought to have been brought to one prescribed under the rules, thereafter any business could have been transacted. He also made allegations of mala fide and misutilisation of funds of the trust against the petitioner No. 2 who usurped the office of chairman with an evil design to further misappropriate and misutilise the funds of the trust. As per his version in the larger interest of the trust, all the trustees should be allowed to function. According to him it is not an election dispute, but rather the validity of the meeting dated 14.8.2003 with regard to which the opposite party No. 1 adjudicated upon. In support of his argument he placed reliance upon Committee of Management Shri Sat Sansthan, Sri Sirdi Sai Baba Mandir, Agra and Ors. v. Deputy Registrar, Firms, Societies and Chits, Agra and Anr., 2001 (1) AWC 468 : 2000 (3) HVD 493.
Sections 1, 13A and 13B of the Act are reproduced hereinunder :
"1. Societies formed by memorandum of association and registration.-Any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in Section 20 of this Act, may, by subscribing their names to a memorandum of association, and filing the same with the (Registrar) form themselves into a society under this Act.
13A. Power of Registrar to apply for dissolution.-(1) Where in the opinion of Registrar, there are reasonable grounds to believe in respect of a society registered under this Act that any of the grounds mentioned in clauses (a) to (e) of sub-section (1) of Section 13B exist he shall send to the society, a notice calling upon it to show cause within such time as may be specified in the notice why the society be riot dissolved.
1. If on or before the date specified in the notice or within such extended period as the Registrar may allow the society fails to show any cause or if the cause shown is considered by the Registrar to be unsatisfactory, the Registrar may move the Court referred to in Section 13 for making an order for the dissolution of the society.
13B. Dissolution by Court.- (1) On the application of the Registrar under Section 13A or under Section 24 or on an application made by not less than one-tenth of the members of a society registered under this Act, the Court referred to in Section 13 may make an order for the dissolution of the society on any of the following grounds, namely-
(a) that the society has contravened any provision of this Act or of any other law for the time being in force and it is just and equitable that the society should be dissolved ;
(b) that the number of the members of the society is reduced below seven ;
(c) that the society has ceased to function for more than three years preceding the date of such application ;
(d) that the society is unable to pay its debts or meet its liabilities ; or
(e) that the registration of the society has been cancelled under Section 12D on the ground that its activities or proposed activities have been or are or will be opposed to public policy.
(2) Without prejudice to the provisions of sub-section (1) or of Section 12D, the Court may, on an application of the District Magistrate on this behalf, make an order for the dissolution of a society on the ground that the activities of the society constitute a public nuisance or are otherwise opposed to public policy.
(3) When an order for the dissolution of a society is made under sub-section (1) or subsection (2), all necessary steps for the disposal and the settlement of the property of the society, its claims and liabilities and any other adjustment of its affairs shall take place in manner as the Court may direct."
As would appear from the perusal of the provisions quoted hereinabove, it is abundantly clear that Section 1 relates to the formation of a society. It postulates that any 7 or more persons associated for any literary, scientific or... form themselves into a society under this Act. It nowhere contemplates that at any point of time if members of the society are reduced to below 7, the existence of the said society would come to an end. For formation of a society 7 or more persons are required. Section 13A lays down the circumstances in which the Registrar, after a notice to the aggrieved party, to show cause may move the Court for dissolution of the society. Section 13B lays down that on the application of the Registrar under Section 13A, the Court may make an order for dissolution of the society.
16. In the case at hand there is nothing on record to indicate that there were reasonable grounds in the opinion of the Registrar that any of the grounds mentioned in sub-clauses (a) to (e) of clause (1) of Section 13-B existed, nor a notice was sent calling upon the petitioners to show cause as to why the society be not dissolved. More so the dissolution of the society under Section 13B has not been done by the Court, but rather by the opposite party No. 1 in exercise of powers under Section 13B which power he admittedly does not possess.
17. The opposite party No. 1 also in exercise of power under Sections 13A and 13B did not have any power to nominate opposite parties No. 5 and 6 as trustees which power is vested with the trustees under Rules 5 and 6.
18. In the Punjab University (supra) while interpreting the word 'quorum', the Apex Court observed as follows :
"Quorum denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful. It is generally left to committee themselves to fix the quorum for their meetings and perhaps, if the syndicate had not fixed the quorum, it might have been competent to the Standing Committee itself to devise its day-to-day procedure including the fixation of quorum."
In para 8 it further held as follows :
"By the quorum, a minimum number of members of the committee must be present in order that its proceedings may be lawful but that does not mean that more than the minimum are denied an opportunity to participate in the deliberations and the decisions of the committee. Whenever a committee is scheduled to meet, due notice of the meeting has to go to all the members of the committee and it is left to each individual member, whether or not to attend a particular meeting. Every member has thus the choice and the opportunity to attend every meeting of the committee. If any member considers the matter which is to be discussed or determined in a particular meeting as of such importance that he must make his voice heard and cast his vote, it is open to him and indeed he is entitled to attend the meeting and make his presence felt."
19. In All India Council and another (supra), Division Bench of this Court while explaining the scope of Section 25 of the Act held as follows :
"It will, therefore, be seen that insofar as disputes or doubts in respect of the election or continuance in office of the officebearers of a society registered in Uttar Pradesh are concerned, the Legislature has created a specific forum and laid down an exhaustive procedure for determination of the same under Section 25. There is no other provision, express or otherwise, providing for determination of such disputes specifically. It is settled law that where, as here, the Legislature creates a specific forum and lays an exhaustive procedure for determination of particular class of disputes in respect of matters covered by the statute, such disputes can be determined only in that forum and in the manner prescribed thereunder and not otherwise. If, therefore, a dispute is raised with regard to the election of continuance in office of an officebearer of a society registered in Uttar Pradesh, the same has to be decided only by the prescribed authority under Section 25 (1) and not by the Registrar, save, of course, to the decision of the prescribed authority being subject to the result of a civil suit."
20. In Ram Chandra Keshav Adke (supra) the Hon'ble Supreme Court in para 25 held as follows :
"A century ago, in Taylor v. Taylor, (1875) 1 Ch D 426, Jessel M. R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time."
21. As would appear from a perusal of Section 13A and 13B of the Act, the Registrar himself cannot dissolve or annul the society or the Committee of Management. He may, if required, apply for dissolution in the manner provided in Section 13A if any of the grounds mentioned in clauses (a) to (e) of sub-section (1) of Section 13B exists. The order of dissolution may thereafter be passed by the Court on the application of the Registrar on one or more of the grounds as set out in the application so moved by the Registrar. The impugned order, thus, runs contrary to what is contemplated under Section 13A and 13B of the Act and as such is not in accordance with the provisions of law. Opposite party No. 1, as such, had no power to negate the meeting dated 14.8.2003 and nominate two trustees, which function under the rules is vested with the trustees.
22. Thus the impugned order passed by opposite party No. 1 in the considered opinion of this Court, cannot be sustained, the same being totally without jurisdiction deserves to be set aside.
23. In the circumstances, for what has been said hereinabove, the writ petition succeeds and is allowed. The order dated 28.8.2004 passed by opposite party No. 1, as contained in Annexure-1, is quashed.
24. There will, however, be no order as to costs.