JUDGMENT Janardan Sahai, J.
1. The Kshettriya Shri Gandhi Ashram, Deoria is a society registered under the Societies Registration Act, 1860. Under the bye law No. 10 of the bye laws of the society the members of the society are to elect members of the prabandh samiti. Under bye law No. 14 ordinary members of the committee of management are to be elected for 3 years. Under bye law No. 21 the Secretary is to be elected by the committee of management. The dispute in the present writ petition relates to the election to the post of Secretary. It appears that a list of members of the committee of management for the year 2001-2002 was filed under Section 4 (1) of the Societies Registration Act and in that list the names of Satya Narain Tripathi petitioner No. 1 in writ Petition No. 33392 of 2006 and the respondent No. 4 Mahendra Nath Dubey were also included. In the year 2003 two rival claims to the post of Secretary were set up one by the petitioner No. 1 Satya Narain Tripathi and the other by the respondent No. 4 Mahendra Nath Dubey. The Assistant Registrar, Firms, Societies and Chits, Gorakhpur passed an order dated 11.7.2003 and approved the proceedings dated 24.4.2003 submitted by Mahendra Nath Dubey and recognised him as the Secretary and directed him to file a list of members of the management committee. The order of the Assistant Registrar dated 11.7.2003 was challenged in Writ Petition No. 32799 of 2003. The writ petition was disposed of by an order dated 4.5.2006 with a direction to the Assistant Registrar to hold the elections for the post of Secretary of the society under his supervision and to follow the procedure in the bye-laws. It was directed that till the elections of the secretary take place the post of Secretary shall be vested in the District Magistrate, Deoria.
2. In pursuance of the order of this Court the Assistant Registrar undertook the exercise of holding the elections. He invited the petitioner No. 1 Satya Narain Tripathi as well as the respondent No. 4 Mahendra Nath Dubey to produce the original records and members list. An election programme was published in the newspaper 'Rashtriya Sahara' dated 16.6.2006 in which the date of publication of the provisional voter list was fixed as 20.6.2006, objections to which were also to be filed later, on the same day. 22.6.2006 was fixed as the date for disposal of the objections and final voter list was to be published on 23.6.2006. The Assistant Registrar found that the Secretary of the society is to be elected by the committee of management of the society, which thus constitutes the electoral body. He also found that the list of members of the committee of management 2001-2002. It filed under Section 4(1) was the authentic list in as much as that list was not challenged while the subsequent elections in the year 2003 were disputed. He, therefore, decided that the election would be held on the basis of the list of members pertaining to the year 2001 -2002. It appears that several sets of objections against the voter list were filed before the Assistant Registrar. One of these objections was filed by the petitioner No. 1 Satya Narain Tripathi. Another objection was filed by the respondent No. 4 Mahendra Nath Dubey. Another objection was filed by Gauri Shanker Mishra petitioner in Writ Petition No. 39368 of 2006. There were 11 members of the committee of management in the list of 2001-2002.
3. While deciding the objections of petitioner No. 1 Satya Narain Tripathi and other persons the Assistant Registrar found that two of the members in the list have died. He, therefore, allowed the objections in this respect and published the final electoral list of nine members. The objections of the petitioner No. 1 Satya Narain Tripathi on other points were rejected by the Assistant Registrar. The objections of this petitioner were (i) Mahendra Nath Dubey was not qualified to be a member in view of the fact that under the bye-law No. 5 only a person who had put in 15 years of service in the Sanstha alone could be a member, a qualification, which according to the petitioner, Mahendra Nath Dubey did not possess; (ii) out of the nine members Mahendra Upadhyay and Vishambher Nath Pandey had already retired; (iii) Durga Prasad Rai had resigned from service on 1.2.2004 and his resignation was approved by the committee; (iv) the services of Som Nath Dubey were terminated on 26.9.2005 and he had left the Sanstha and these persons not being in the service of the Sanstha had ceased to be qualified to be members of the Sanstha and consequently their names were liable to be excluded from the electoral roll.
4. The Assistant Registrar found that there was a dispute regarding the membership of these persons and that there was also a dispute about membership of the petitioner No. 1 Satya Narain Tripathi himself and in respect of three other persons who according to Satya Narain Tripathi were also members. He, therefore, published the electoral roll of nine members excluding out of the list of 11 members pertaining to the year 2001-2002 only the two members who had died. The order of the Assistant Registrar dated 22.6.2006 finalising the electoral list has been challenged by the petitioner No. 1 Satya Narain Tripathi in Writ Petition No. 33392 of 2006 and also by Gauri Shanker Mishra in Writ Petition No. 39638 of 2006. The name of Gauri Shanker Misra does not find place in the list of members 2001-2002 which has been found by the Assistant Registrar to be the valid list and therefore Gauri Shanker Misra is not included in the electoral college. The stand of Gauri Shanker Mishra is that the members list of the year 2001-2002 was not a valid list and that the subsequent list of members of the committee of management on the basis of which elections were held in the year 2003 in which list his name was also included was the valid list. The petitioner Gauri Shanker Mishra claims that he was elected as a trustee member along with 15 others including the Secretary Mahendra Nath Dubey in the election of 2003 and his membership was acknowledged by the respondent No. 4 Mahendra Nath Dubey and that the list of members in which the name of Gauri Shanker Mishra is included was approved by the Assistant Registrar by order dated 11.7.2003 and the said order dated 11.7.2003 has also been relied upon by the Assistant Registrar in his order dated 22.6.2006 finalising the voter's list impugned in this writ petition and as such there was no ground for excluding him from the membership. Several questions of fact are thus involved in this writ petition.
5. The writ petition of Satya Narain Tripathi was presented on 26.6.2006. An interim order was passed by this Court in this writ petition on 28.6.2006 whereunder this Court permitted the elections to be held on 29.6.2006 as scheduled but directed that the results of the elections shall not be given effect to till 7.6.2006. This order was extended from time to time. It appears that the respondent Mahendra Nath Dubey alone had filed his nomination paper for the post of Secretary and he was unopposed.
6. The contention of Sri Radha Kant Ojha, learned Counsel for the petitioners is that Mahendra Nath Dubey was not qualified to be a member as he does not fulfil the requirement of 15 years minimum service in the Sanstha while the other four persons, namely, Mahendra Upadhyay, Vishambher Nath Pandey, Durga Prasad Rai and Som Nath Dubey are also not qualified to be members as they have ceased to be in the service of the Sanstha and are disqualified in terms of bye-law No. 5. On the other hand, Sri Indra Raj Singh, learned Counsel for the respondent No. 4 Mahendra Nath Dubey raised a preliminary objection relating to the maintainability of the writ petitions that it is not open to a member to challenge the election in writ petition. In support of his contention reliance has been placed upon the decision of this Court in Committee of Management, Sri Kachcha Baba Inter College, Varanasi and Ors. v. Regional Committee, Pancham Mandal, Varanasi and Ors. 2007 (4) ESC 2500. It is also submitted that the petitioners have challenged the order of the Assistant Registrar finalising the electoral list, which is a step in the process of election and a writ petition challenging the election process is not maintainable. In support of his contention reliance is placed upon a Division Bench judgement of this Court in Basant Prasad Srivastava and Anr. v. State of U.P. and Ors. 1993 (2) UPLBEC 1333.
7. In so far as the procedure adopted by the Assistant Registrar in deciding the objections against the electoral roll is concerned there nothing to indicate that there was any irregularity. The Assistant A Registrar had invited both the parties to furnish list of members. He also gave opportunity to the members to file objections to the provisional list and has then decided the objections.
8. The question is whether a member can challenge an election of the committee of management. In Committee of Management, Sri Kachcha Baba Inter College, Varanasi and Ors. v. Regional Committee, Pancham Mandal, Varanasi and Ors. 2007 (4) ESC 2500 relied upon by Sri Indra Raj Singh it was held that a writ petition by a member of the general body and not by a rival committee of management is not maintainable. Reliance was placed by the learned judge upon a decision in Writ Petition No. 31886 of 2004 (Bhagwan Kaushik v. State of UP. and Ors.) decided on 30.1.2006 as well as upon the judgement of the Division Bench of the Court dated 19.2.2007 passed in Special Appeal No. 94 of 2007 (Anjani Kumar v. State of U.P. and Ors.) wherein it has been held that member of the society has no right to challenge the result of the election. In that case an order of the regional Committee under Section 16-A (7) of the U.P. Intermediate Education Act was challenged. A dispute under Section 16-A (7) where rival committees of management claim the right of management is to be decided on the basis of effective control of the committee of management. The present is not a dispute decided under Section 16-A (7). The case is therefore distinguishable.
9. In Yogendra Singh and Anr. v. State of U.P. and Ors. Writ Petition No. 54508 of 2006 decided on 7.5.2007 it was held that a member of the general body can also challenge the elections. The case of Bhagwan Kaushik v. State of U.P. and Ors. was distinguished on the ground that that case related to recognition of a committee of management by the Regional Committee in exercise of power under Section 16-A (7) of the U.P. Intermediate Education Act, 1921, which provides that the dispute is to be decided on the basis of effective control. A mere member of the general body cannot claim effective control and, therefore, could not challenge the decision of the Regional Committee recognising a particular committee of management on the basis of effective control and it was only a rival committee of management which could challenge such an order. In Yogendra Singh's case the elections were held by a person who was an imposter and who in a previous decision dated 22.7.2004 in Writ Petition No. 27492 of 2004 had been found to have been wrongly authorised by the District Inspector of Schools to hold the election. It was held in that case that a member has a right to participate in the election and also to contest the election and if he is excluded from the membership and deprived of the right to contest election he could file a writ petition for in such a case it is the member ousted from the electoral body who would be interested to agitate his rights and not the committee of management. In holding this the court was it appears considering the question of maintainability of the writ petition by a member in the context of a person aggrieved.
10. Article 19 (1)(c) of the Constitution of India confers a fundamental right upon a citizen to form an association. The question whether exclusion of a member from the electoral college or inclusion of a member in the electoral college on the basis of an erroneous determination of the voter list by the Assistant Registrar or other authority can be treated as an infringement of Article 19 (1)(c) giving right to the aggrieved member to maintain a writ petition. The question about the nature of the right of a member to question his exclusion from the electoral college was examined in the context of Article 9(1)(c) of the Constitution of India in Kamla Kant Agrawal v. State of U.P. and Ors. Writ Petition No. 23477 of 2007 decided on 20.7.2007. It was held that a citizen of India has a fundamental right under Article 19(1)(c) of the Constitution of India to form an association. Reliance was placed by the learned judge upon the decision of the apex court in The Hindi Sahitya Sammelan v. Jagdish Swarup and Ors. in support of the proposition that the right to form an association enjoins with it a right to continue to be associated with it as well as to ensure that only those persons are admitted to the association whom they voluntarily admitted. In this background it was held that it is the right of a citizen to challenge his exclusion from the membership by a petition under Article 226and alternative remedy would not be a bar.
11. A member can challenge his wrongful exclusion from membership of the association or the wrongful inclusion into the association of another person as a member if his fundamental rights are breached and in such cases alternative remedy would not bar the maintainability of a writ petition. A member can also file a writ petition on breach of a statutory right but an alternative remedy may bar the maintainability of a writ petition. But a right to form an association on the one hand and the right to be elected to an office of such association or to participate in the elections on the other hand have been held to be distinct rights and the latter can be claimed only in accordance with the provisions of the bye-laws of the association or under a statute while the former can be claimed also as a fundamental right. Under the bye-laws in the present case the right to elect the Secretary has been conferred upon the Prabandh Samiti and not upon the members of the general body. What the Assistant Registrar has decided is that the persons forming the electoral college are members of the committee of management.
12. The question whether any person was validly inducted or elected or continues as a member of the committee of management or whether the person who contests election to the post of Secretary is a member of the committee of management is an election dispute or a dispute relating to his induction as a member of the committee of management. The right of a person claiming to be a member of the committee of management is not a fundamental right. The petitioners do not have any fundamental right to contest the election of Secretary or to challenge the same. The petitioner Satya Narain Tripathi has challenged the candidature of Mahendra Nath Dubey on the ground that he cannot be included in the voters list which consists of members of the committee as he is not qualified to be a member under the bye laws. The bye laws of the society do not have statutory force. The right of a person to contest an election or to challenge it is not a fundamental right nor even a common law right but originates from the statute or from the rules and bye laws of an association. A breach of such a statutory right or right under the rules or bye laws can be redressed by availing the remedy which the statute or the bye laws or rules provide or by a civil court except where in the case of a civil suit unless the remedy of a suit is barred. Even where elections are held under statutory provisions the remedy of challenging the elections if provided under the statute has to be availed of as an alternative remedy which would ordinarily bar the maintainability of a writ petition.
13. In this case the induction of members of the committee of management and the election of Secretary is governed by the bye laws of the society. It is only where an election is set aside or an office bearer is held no longer entitled to continue in office or where the elections are not held within the time specified in the rules of the society that the Registrar can hold the elections under Section 25(2) of the Societies Registration Act. In this case the petitioner Satya Narian Tripathi has challenged the voters list which consists of member of the committee of management primarily on the ground of breach of bye law No. 5. What is being challenged in this case is the wrongful induction of certain persons as member of the committee of management, which constitutes the electoral college. The infringement of the bye laws in such a case would not be a ground to maintain a writ petition when the election or continuance in office of the office bearers can be questioned in the manner provided by the statute under Section 25 of the Societies Registration Act or by a civil suit. The proviso (C) to Section 25 (1) provides;
25. Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied.
(c) that the result of the election in so far as it concerns such office-bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote, which is void or by any non-compliance with the provisions of any rules of the Society.
14. In neither of these petitions has any fundamental right or statutory right of the petitioners been breached. The petitioners have effective alternative remedy to challenge the election by a civil suit or under Section 25 of the Societies Registration Act. The writ petitions are therefore not maintainable. Moreover disputed questions of fact are involved in these petitions and a writ petition is not an appropriate remedy.
15. In the present case Satya Narain Tripathi was not excluded from participating in the elections. The elections were also not held by an imposter as was done in the case of Yogendra Singh. The elections in the present case have been held by the Assistant Registrar who has been authorised by the Court to hold the elections. In the peculiar facts of the case of Yogendra Singh the court was not called upon to decide in that case the question of alternative remedy. The decision in Yogendra Singh is, therefore, also distinguishable. In the present case there appears to be a dispute raised by Gauri Shanker Mishra the petitioner in Writ Petition No. 39638 of 2007 that the elections could not have been held on the basis of the electoral roll of 2001-2002 but by another list. The membership of Satya Narain Tripathi himself was challenged before the Assistant Registrar so also the membership of Mahendra Nath Dubey. The High Court had not directed the Assistant Registrar to hold the elections on the basis of any particular list of members. The entire exercise was required to be conducted by the Assistant Registrar. Several disputed questions of fact, therefore, arise in the present writ petition.
16. There is an additional reason why the elections which have been held in this case cannot be challenged in writ petition. It is not in dispute that Mahendra Nath Dubey the respondent was the only person who had filed his nomination paper for the post of Secretary. He was thus unopposed. In these circumstances the main question for testing the validity of his election in this case is about the validity of the membership of Mahendra Nath Dubey. As there was no other candidate for the post of Secretary the question of validity of membership of some of the members of the electoral list is not of any significance because Mahendra Nath Dubey's election as Secretary would be valid even if some of the members were wrongly inducted in or excluded from the voter list as the result of the election would not be materially affected. In fact Gauri Shanker Mishra the petitioner in one of the petition has not challenged the membership of Mahendra Nath Dubey. He has rather alleged that Mahendra Nath Dubey was elected Secretary in the meeting held on 24.4.2003. On the point of membership of Mahendra Nath Dubey it is not in dispute that Mahendra Nath Dubey was included in the list of members of the committee of 2001-02 filed under Section 4 (1). In paragraph 3 of the counter affidavit of Mahendra Nath Dubey in the writ petition of Satya Narain Tripathi it is stated that Mahendra Nath Dubey was enrolled as a Member on 24.2.2000. A copy of the minutes of the meeting dated 24.2.2000 in which 11 members participated is Annexure 1. A list of members it is stated was prepared on 16.6.2001 in which the name of Mahendra Nath Dubey is at serial No. 12. Mahendra Nath Dubey it is said participated in the meeting of 28.10.2001 and 24.4.2003. A copy of the minutes have been filed as Annexure C.A.3 and C.A. 5. In the meeting dated 28.10.2001 and 24.4.2003 it is alleged the petitioner Satya Narain Tripathi also participate.
17. The Assistant Registrar was required to decide the question about the validity of the members in a summary manner. The Assistant Registrar has given good reasons for relying upon the list of members of the committee of the year 2001-2002, which had never been challenged before objections were filed in the present case whereas the subsequent elections of the year 2003 were disputed. The finding on the point given by the Assistant Registrar is not perverse and does not suffer from any illegality, which may call for interference under Article 226 of the Constitution of India. As regards, the membership of Vishambher Nath who is said to have retired on 1.6.2003 and Mahendra Nath Upadhyay who is said to have retired on 30.9.2005 the Assistant Registrar has recorded a finding that a person's membership does not cease on retirement unless he has resigned or he is disabled. In support of this stand, the Assistant Registrar in paragraph 10 of his counter affidavit has relied upon Rule 7(b) and has annexed with the counter affidavit the resolution of the general body of the society dated 15.7.1997. The finding recorded by the Assistant Registrar upon the membership of Som Nath Dubey is that the petitioners themselves have taken a contradictory stand and that at one place it was alleged that the termination order of Som Nath Dubey was set aside. About the resignation of Durga Prasad Rai the finding recorded by the Assistant Registrar is that it has been disputed. Disputed questions of fact cannot be decided in a writ petition.
18. Moreover, in the facts of this case that Mahendra Nath Dubey's election was unopposed the question of the validity of the membership of some of the persons is not of much importance. The petitioner Satya Narain Tripathi did not contest the election of Secretary. I have already held that the order finalising the list of members passed by the Assistant Registrar in the summary proceedings is neither perverse nor suffers from any illegality. The petitioners are at liberty to challenge the elections and membership of Mahendra Nath Dubey and others either by way of civil suit or under Section 25 of the Societies Registration Act. The finding regarding the validity of the electoral roll or about the claim of Mahendra Nath Dubey shall not be binding in the suit or in the other remedy that the petitioners may avail.
19. In view of the findings above recorded both the writ petitions are dismissed.