JUDGMENT Arun Tandon, J.
1. Heard Sri P.S. Baghel on behalf of the petitioner, Dr. R.G. Padia, Senior Advocate, assisted by Sri P. Padia, Sri D.S.N. Tripathi and Sri P.C. Srivastava on behalf of the respondent Anil Kumar Upadhyaya in both the writ petitions.
2. The dispute giving rise to this case has a checkered history. The relevant fact for decision of dispute are as follows:-
One Sri Bateshwar Nath Upadhyaya was the founder President of the society registered by name of Sansthapak Mandal, duly registered under the Societies Registration Act. There was absolutely no dispute with regard to the office bearer of the said society till the life time of Sri Bateshwar Nath Upathdyaya, who was life President of the society, expired in the year, 1986. On death of Sri Upadhyaya, the petitioner Sri Arun Kumar Upadhyaya, who claims himself to be one of the life member of the society, has set up his claim as President of the society. On the other hand Sri Anil Kumar Upadhyaya respondent No. 2 claims that in accordance with the registered bye laws of the society, under Clause 1D, he was appointed as member to fill the vacancy caused due to death of his father in the Sansthapak Mandal and because of his such appointment he automatically became the President of the Society.
3. The Assistant Registrar, Basti issued a letter dated 20.11.1987 wherein he recognized Sri Anil Kumar Upadhyaya as President of the Sansthapak Mandal. Against the said order of the Assistant Registrar a writ petition No. 23943 of 1987 was filed by Arun Kumar Upadhyaya before this Court. The writ petition was disposed of by this Court after holding that the document dated 20 November, 1987 was only a letter seeking information and the Assistant Registrar was directed by this Court to decide the matter afresh in accordance with law.
4. Surprisingly the Assistant Registrar, despite the aforesaid order of this Court, passed another order on 9th August, 1988 holding therein that earlier letter dated 20th November, 1987 was an order and the said order has been passed rightly recognizing Sri Anil Kumar Upadhyaya as the President of the Society.
5. Against the order dated 9th August, 1988 the present writ petitioner filed writ petition No. 12034 of 1988. The said writ petition was allowed by the Division Bench and the matter was remanded to the Assistant Registrar to decide the dispute afresh after hearing the parties strictly in compliance of the order of this Court dated 28th April, 1988 referred to above.
6. The Assistant Registrar thereafter passed another order dated 9th August, 1988 whereby he again struck to his earlier order dated 28th April, 1987 and held that he had rightly recognized Sri Anil Kumar Upadhyay as the President after the death of Sri Bateshwar Nath Upadhyaya.
7. Against the aforesaid order of the Assistant Registrar the present writ petitioner filed the writ petition No. nil of 1988, which was decided by this Court on 4th October, 1988 itself. The Court after quashing the order dated 9th August, 1988 directed that the matter be decided afresh by an Assistant Registrar other than one who had passed the order dated 9th August, 1988 after nomination from the Registrar. The Assistant Registrar was further directed as follows:-
"In the result this petition succeeds and is allowed. A direction is issued to the Registrar to nominate any other Assistant Registrar than the Assistant Registrar who had decided the dispute, to examine the matter afresh and in case he comes to the conclusion that the dispute relates to election of Committee of Management or continuance of office bearers than he should refer the case to the Prescribed Authority and if he conies to the conclusion that it was not a matter of substitution of Bateshwar Nath Upadhyasya then he could be decide as to who amongst the petitioner and opposite party No. 3 was substituted by an election to be the President of the Society. It should be decided after hearing both the parties. The Registrar shall appoint another Assistant Registrar within a period of two weeks from the date a copy of his order is produced before him. A copy of this shall be produced before him within two weeks from today. The Assistant Registrar shall decide the dispute within two months thereafter."
8. Against the aforesaid order of the Division Bench a special leave petition No. 1290 of 1988 was filed before the Hon'ble Supreme Court of India which was dismissed by the Hon'ble Supreme Court on 27.7.1999 and it was provided that the Assistant Registrar shall decide the question afresh as per the direction of the High Court.
9. In compliance of the order of this Court referred to above, the dispute was referred to Assistant Registrar Gorakhpur. The Assistant Registrar, Gorakhpur per order dated 29th January, 1990 has held that the controversy involved was with regard to substitution of member in place of Bateshwar Nath Upadhyaya and since Anil Kumar Upadhyaya was held to have been substituted in place of his father, he automatically became the President of the Sansthapak Mandal.
10. In such circumstances, it is held by the Assistant Registrar that there is no question of any dispute being referred to the Prescribed Authority under Section 25 of the Societies Registration Act and he has decided the matter himself in the light of the observations of the judgment of the Division Bench referred to above, in stead of referring the matter to the Prescribed Authority under Section 25 of the Societies Registration Act. Hence the present writ petition.
11. On behalf of the petitioner it has been contended by Sri P.S. Baghel that the order passed by the Assistant Registrar is totally misconceived and is based on misreading of the provisions of Clause 1D of the bye laws. It is stated that the Clause 1D of the registered bye laws remained unamended. Because of the misreading of the provisions of Clause 3D of the bye laws, the Assistant Registrar has misdirected himself in, recording the finding that because of substitution of Sri Anil Kumar Upadhyaya as member in the Sansthapak Mandal in place of his father Sri Bateshwar Nath Upadhyaya, he automatically became the President of the Sansthapak Mandal, It is also contended that the finding recorded by the Assistant Registrar with regards to question marked as 'Gha' that Anil Kumar Upadhyaya alone was eligible member for being substituted in place of his father and there after the question of substitution of Vinod Kumar Upadhyaya (grandson of late Bateshwar Nath Upadhyaya) does not arise, is based on misreading of the judgment of this Court specifically in the paragraph reproduced in the order of the Assistant Registrar itself.
12. On behalf of the respondent it has been submitted by Dr. R.G. Padia that Clause 1C of the bye laws/memorandum of association cannot be altered in view of the provisions of Section 4(a) read with Section 12(b) of the Societies Registration Act. It is further contended that unless and until the change in the memorandum is registered with the Registrar in view of the provisions of Section 12(b)(2) of the Societies Registration Act, the petitioner Arun Kumar, who was not one of the life member of the Sansthapak Mandal, can never claim to be elected as President of the society nor his claim, as such, could be entertained by the Assistant Registrar.
13. It is contended that so far as the appointment of Sri Anil Kumar Upadhyaya, in place of his father Bateshwar Nath Upadhyaya is concerned, the same has gone uncontested and no one has challenged the order of the Assistant Registrar and it is not open to the petitioner Arun Kumar to challenge the said finding and he cannot claim appointment in place of his father Bateshwar Nath Upadhyaya. Lastly it is contended that Clause 1D of the Memorandum of Association/bye laws necessarily contemplates appointment to the office of the nominated person against the office which was held by the deceased member. Meaning thereby that on death of Sri Bateshwar Nath Upadhyaya, who was the President of the society, if the nomination of Anil Kumar Upadhyaya as member is accepted to be legal, it automatically means that Anil Kumar Upadhyaya has been appointed President of the society. I support of the contention it is stated that there is no other provision for election to the post of any office bearer in the bye laws of the society.
14. Sri P.C. Srivastava, who appears on behalf of Anil Kumar Upadhyaya has contended that the bye laws which have been enclosed along with the writ petition are not registered bye laws of the Sansthapak Mandal and the bye laws which have been filed as Annexure CA-2 to his counter affidavit are the true bye laws and in the said bye laws the name of the petitioner is not mentioned as one of the life member. Secondly he cannot claim any right of election to the office of President of the society.
15. After hearing counsel for the parties and after going through the records of the writ petitions, this Court is satisfied that the contention raised on behalf of the petitioner has force. For appreciating the controversy involved, it would be necessary to refer Clause 3C and 3D of the Rules and Regulation of the Sansthapak Mandal, which are not in dispute between the parties. It is pointed out that Clause 3C and 3D of the Rules of the Sansthapak Mandal as enclosed by the petitioner as Annexure-1 and Clause 3C and 3D of the Rules of the Sansthapak Mandal as enclosed by the respondent No. 3 alongwith his counter affidavit arc identical in nature. However, there is only change of the names of the persons attached to the memorandum as life member between the two set of bye laws, which have been filed separately. Clause 3C, 3D, 4G, 4H and Clause 7 of the memorandum also have relevance. Clauses are quoted below :-
3C. The persons named in the attached memorandum shall be life members of sansthapak Mandal which itself shall be a permanent Board of the founders of the Institution and shall not be subject to alteration so long as institution exist.
3D. The vacancy caused by death of any of the members of the Sansthapak Mandal shall be filled in by any capable members of his family.
4G. Vacancy caused by the resignation of any member of the Sansthapak Mandal shall be filed by one of the life trustees of the Kisan National Education Trust, Pratapganj, Jaunpur, He shall be accepted by two third majority of the members of the Sansthapak Mandal.
4H. Vacancy caused by the resignation of any of the office bearers of the Sansthapak Mandal shall be filled by any one of the members of the Sansthapak Mandal by two third Majority of the members of the Sansthapak Mandal from its own members by co-option.
7-Votes:- All question at a meeting shall be decided by majority of votes but in case of equality the vote, President shall have a second vote. Vote by proxy shall not be allowed but the president shall put up for consideration of the members any written opinion of the absent member on any subject on the agenda."
16. It is not in dispute between the parties that there is absolutely no rules under the bye laws providing for procedure for election of the office bearer of the Sansthapak Mandal.
17. Clause 3C of the bye laws of the Sansthapak Mandal referred to above provides that life member of the Sansthapak Mandal shall be the permanent member of the institution and will not be subject to alteration so long as to institution exists. Clause D referred to above contemplates filling of the vacancies caused due to death of any of the member of the Sansthapak Mandal.
18. The member of the Sansthapak Mandal can also be one of the office bearer of the Sansthapak Mandal. Reading of Clause D, as is exists, leave no room to doubt that nomination of a family member on the death of member of Sansthapak Mandal would only be as member of the Sansthapak Mandal. The provisions of Rule 3D cannot be extended to read in the manner suggested by the respondents, that if member of the Sansthapak Mandal, who was also one of the office bearer, expires then the family member appointed in his place would automatically become the office bearer. If such interpretation is accepted, it would mean that the office bearer of the Sansthapak Mandal can always be replaced by family member of the earlier office bearers of the said Sansthapak Mandal only Such interpretation would lead to absurdity inasmuch as in a given case the office bearer, who is also a member of the Sansthapak Mandal, expires and there is no other person in his family available or willing to fill up the vacancy so caused, it would mean that the office would go unattended and there would be no person to be appointed as office bearer after his death.
19. Logically it follows that if one member of the Sansthapak Mandal expires, he may or may not be an office bearer, any member of his family can only be substituted in his place as member of the Sansthapak Mandal. Such a substituted member cannot automatically become the office bearer of the Sansthapak Mandal against the post which was held by the member, who had since expired.
20. In view of the said conclusion it would be seen that the findings recorded by the Assistant Registrar in the impugned order to the effect that because of appointment of Sri Anil Kumar Upadhyaya as member of the Sansthapak Mandal in place of his father Bateshwar Nath Upadhyaya he automatically became the President of the Sansthapak Mandal, is totally misconceived and unsustainable in the eye of law. The Assistant Registrar has misread the provisions of Clause 3D of the bye laws and as such the order passed by him cannot be sustained. The further finding recorded by the Assistant. Registrar with regard to the appointment of Sri Anil Kumar Upadhyaya as member, of the Sansthapak Mandal on the basis of the part of the paragraph of the judgment of this Court, reproduced in the order, is also based on misreading and complete non-consideration of the judgment of the High Court. The relevant paragraph of the judgment of this Court reads as follows:-
"Admittedly Bateshwar Nath Upadhya, the founder member and President of the society died in 1986, Under bye-law the vacancy caused due to his death could be filled by any capable member of his family. He is survived by petitioner, who is Principal of the college. Opposite party No. 3, a Lecturer and other sons, two of whom are in judicial service. There was thus no derth of capable members. Dispute however, arose between the two brothers and both claimed to have been elected on death of their father. The petitioner claims to have been elected in meeting held in 1986 whereas opposite party claimed to have been elected in 1987. Both sent their list for registration under Section 4 of Societies Registration Act. On 20th November, 1987, the Assistant Registrar issued a Setter against which petitioner came to this court by way of Writ Petition No. 23943 of 1987. It was disposed of on 11th April, 1988 and Assistant Registrar was directed to look into the matter and decide dispute after hearing. It was observed that the letter dated 20th November, 1987 was not an order but only a letter seeking certain information. Despite this the Assistant Registrar on 16th June, 1988 observed in an I answer given to opposite parties on the query made by him about renewal of registration certificate that the order dated 20th November, 1987 recognising the list submitted by him was still operative. This was act of impropriety on part of Assistant Registrar as this court having constructed the letter as seeking certain information and not an order recognising the opposite party. List which after explanation given by opposite party has been accepted, Prima-facie a list which contained not only name of opposite party who claims to have been elected after the death of his father but was a list of different persons than the person who were members of the Committee of Management as shown in the earlier list could only establish that opposite party was claiming that fresh elections had taken place in which the new office bearers had been elected. Such a dispute could not have been decided by the Assistant Registrar Under Section 35 and it could have been referred to the sub-divisional Magistrate only."
21. The Assistant Registrar has only reproduced underlined portion of the said judgment for the purposes of recording finding that Sri Anil Kumar Upadhyaya was alone the eligible person for being appointed in place of his father. This Court had not recorded any such finding as suggested in the order of the Assistant Registrar. The High Court while referring to the sons of Bateshwar Nath Upadhyaya ad only illustrated the eligible person amongst other who were available for such an appointment. The High Court did not confine the illegibility to the person mentioned in the judgment of the High Court only.
22. In such circumstances even grandson of Sri Bateshwar Nath Upadhyaya namely Vinod Kumar could also be appointed as one of the member of the Sansthapak Mandal after the death of Sri Bateshwar Nath Upadhyaya and Sri Anil Kumar alone was not the eligible candidate. It is further relevant to note that the Assistant Registrar has not noticed as to in what manner Sri Anil Kumar has been appointed in place of his father.
23. The Assistant Registrar has failed to take into consideration scope of the Clause 7 of the bye laws, which provides that all decisions of the Sansthapak Mandal shall be taken on the basis of majority votes. Thus, if there were more that one eligible family member of Sri Bateshwar Nath Upadhyaya for appointment after his death as member of the Sansthapak Mandal, it was necessary for the Assistant Registrar to have looked into the record and to have recorded a finding as to whether Anil Kumar has been appointed by any decision of the Sansthapak Mandal by any majority vote or not.
24. In absence of any such fact having noticed and in absence of any finding having been recorded, the order holding Sri Anil Kumar as President, appointed in place of his father Sri Bateshwar Nath Upadhyaya, cannot be legally sustained.
25. From the finding recorded above, it would be apparent that the issue with regard to appointment of the President, as claimed by the petitioner and as that set up by Sri Anil Kumar Upadhyaya on the strength of his nomination as member of the Sansthapak Mandal requires adjudication by a Prescribed Authority under Section 25 of the Societies Registration Act.
26. The issue as to whether the petitioner has been validly elected in accordance with the bye laws of the society as President of the society on the death of Sri Bateshwar Nath Upadhyaya and the issue as to whether Anil Kumar Upadhyaya was the only eligible person entitled to appointment as member on death of Sri Bateshwar Nath Upadhyaya requires decision, on the basis of evidence to be led by parties, by Prescribed Authority under Section 25 of the Societies Registration Act.
27. Since it has been held that merely on the strength of appointment as member of the Sansthapak Mandal Anil Kumar cannot claim himself to be the President of the Committee of Management to the Sansthapak Mandal, the said issue is no more open and stands decided against Anil Kumar Upadhyaya. However, if Anil Kumar Upadhyaya sets up any independent election for the post of President, the said issue may also be adjudicated upon by the Prescribed Authority.
28. The contention raised on behalf of the respondent to the effect that amendments in Clause 3C of the bye laws of the society was legally not permissible is not correct. Clause 3C has already been quoted hereinabove. This Court fail to appreciate the bald general statement made on behalf of the respondent in alleging that the said clause cannot be amended. Section 2 read with Section 4A and Section 12 of the Societies Registration Act leaves no room of doubt that provisions of memorandum of association including by laws, which are attached there to, can be amended from time to time. It is always open to the members of the society to make such amendment, if necessary, including change in the name of life members in the interest of the society.
29. The contention of the respondents that the amendment in the bye laws/3C of the Sansthapak Mandal cannot take effect unless the said amendments was registered with the Registrar in view of the Section 12B(2) of the U.P. Societies Registration Act, proceeds on non-consideration of the fact that Section 12A to 12D, including Section 12B, were added by U.P. Act No. 52 of 1975 and they have prospective application only. In such circumstances the amendments made in the bye laws of the society/memorandum of association on 28th may, 1970, whereby Clause 3C has been amended, cannot be said to be unenforcible because of its non-registration with the Registrar under Section 12B(2) of the Societies Registration Act.
30. It is further pointed out that the issue as to which of the bye laws, one relied upon by the petitioner and another relied upon by the respondent No. 3, are genuine bye laws will also be a subject matter of consideration before the Prescribed Authority and while deciding the issue as to whether the election of the petitioner on the post of the President of the society is valid, the Prescribed Authority shall also record finding with regard to genuineness of the bye laws as set up by the parties.
31. In such, circumstances, the dispute with regard to the election on the post of President of the Sansthapak Mandal should necessarily be decided by the Prescribed Authority under Section 25 of the Societies Registration Act and Assistant Registrar is directed to refer the said] dispute for adjudication to the Prescribed Authority within a period of one month from the date a certified copy of this order is produced before him and the Prescribed Authority in turn shall decide the dispute within four months thereafter, after affording opportunity of hearing to the parties.32. For the reasons stated above, the writ petitions filed by the petitioner deserves to be allowed. The order dated 29.1.1990 is hereby set aside. Under interim order passed by this Court dated 26th April, 1990 there was a restrained order, whereby Anil Kumar Upadhyaya was restrained from working as President of the Sansthapak Mandal and further liberty was given to the Sansthapak Mandal to hold fresh election in pursuance of the interim order of this Court.
32. It is alleged by the petitioner that fresh election was held on 12th August, 1990 in which the petitioner has again elected as President. It is further stated that the petitioner is continuously working as President. On behalf of the respondent Anil Kumar Upadhyaya election for the post of President is also alleged to have taken place in pursuance of the interim order of this Court dated 30th April, 1990. The validity of the aforesaid fresh elections would depend upon the judgment of the Prescribed Authority with regard to the original election set up by the parties, which have been referred under order of this Court to the Prescribed Authority under Section 25 of the Societies Registration Act. The fresh election held by the petitioner and the respondent shall abide by the decision of the Prescribed Authority referred to above.
33. In such circumstances, writ petition is allowed. The order dated 29.1.1990 is hereby quashed. Interim order, if any, stands discharged.
34. Till the decision of the Prescribed Authority, referred to above, parties shall maintain status quo as prevailing till date with regards to office of President of the Sansthapak Mandal.