The petitioners are two in number. They claim to be the member of the Society namely Chak Chaubey Palya Development Block Higher Education Expansion Association, Pakardiha , district Azamgarh, which is registered under the Societies Registrar Act, 1860 (Act No. 21 of 1860) (for short 'Act,1860').
Petitioners are aggrieved by the order of the prescribed Authority whereby he has granted an interim order. The grievance of the petitioners is that under section 25 (1) of the 'Act 1860'. the Prescribed Authority does not have power to pass an interim order.
Brief reference to the factual aspects would suffice.
A Society namely Chak Chaubey Palya Development Block Higher Education Expansion Association, Pakardiha , district Azamgarh ( hereinafter referred for the sake of brevity as Society) was registered in the year 1975. It has established an educational institution namely Junior High School, Chak Chaubey (Palya) Pakardeeha, district Azamgarh. It is recognized by the U.P.Basic Education Act, 1962. The institution does not receive any aid out of State Fund.
It is stated that the last renewal of the Society was made on 8.12.2010 for five years on the papers submitted by one Sri Ram Dayal Yadav. Earlier one Lalji Yadav had also moved application for renewal claiming himself as the Manager of the Society. In view of the conflicting claim by two rival factions the Assistant Registrar, Firms, Societies and Chits referred the matter to the Prescribed Authority under section 25 (1) of the 'Act 1860'. The Prescribed Authority vide his order dated 26.4.2010, recognized the election of the faction headed by Ram Dayal Yadav. It is avered in the writ petition that the last election of the Managing Committee was held on 10th August, 2008. The next election was due in the year 2011. Due to the rival claims the election could not be held, therefore, the Assistant Registrar exercising his power under section 25(2) of the 'Act 1860' published a tentative list of members of the general body and he invited objection by 28.2.2014.
It is stated that after receiving the objection he determined the list of the office bearers and 32 members were found to be valid members. The Assistant Registrar vide order dated 6.3.2014 also deputed the District Basic Education Officer, Azamgarh as the Election Officer to hold the fresh election. It is stated that one of the alleged member with a view to delay the election proceedings moved an application before the Prescribed Authority under section 25(1) of the 'Act 1860' challenging the order of the Assistant Registrar dated 23.1.2014. On the same reference the Prescribed Authority has stayed the order of the Assistant Registrar dated 23.1.2014 inviting application of the tentative list and 6.3.2014 whereby he had determined 32 members as valid members of the general body.
I have heard Sri S.M.Mishra, learned counsel for the petitioner, Sri B.P. Singh learned counsel for the respondent no.4 and Sri S.N.Singh, learned counsel appearing for respondent no.5. Learned Standing Counsel has accepted notice on behalf of the State authorities.
In view of the fact that no factual controversy is involved in the writ petition. Only question of law has been raised by learned counsel for the petitioner. No counter affidavit is needed in the matter. The writ petition is accordingly being finally disposed of in terms of the Rules of the Court.
Sri S.M.Mishra, learned counsel for the petitioner submits that under section 25 (1) of the Societies Registration Act, 1860 (Act No. 21 of 1860) (for short 'Act,1860'), the Prescribed Authority has no power to grant any interim order. He submits that under section 25 (1) the Prescribed Authority has been empowered only to decide the dispute in regard to election of the office bearers which is referred to him by the Registrar or by atleast ¼ members of the Society.
Learned counsel for the respondents submits that it shall be deemed that Prescribed Authority has ancillary power to pass an interim order also.
I find it helpful to extract section 25(1) of the 'Act 1860' hereunder below:-
"25.Dispute regarding election of office bearers.-(1) The prescribed authority may, on a reference made to it by the Registrar or by at least one-fourth of the members of a society registered in Uttar Pradesh, hear and decide in a summary manner any doubt or dispute in respect of the election or continuance in office of an office bearers of such society, and may pass such orders in respect thereof as it deems fit :"
From a careful reading of the said section it is evident that Section 25(1) of the 'Act 1860' confers power to the Prescribed Authority to decide the dispute of the office bearers of the Society. He is required to decide the matter summarily. The State Government has not framed any rule to lay down the procedure for hearing and decide the dispute. He is required to decide any doubt or dispute in respect of the election of an office bearers. The proviso and explanation provides the ground on which the election can be set aside.
It is true that Section 19-A of the General Clauses Act , 1904 provides an ancillary power to a person/ Officer or Functionaries to enforce doing all such acts, or thing. All such powers shall be deemed to be given as necessary to enable the person to do or enforce the doing of act or thing. From perusal of Section 25(1) of the 'Act 1860' it is not discernable any such power conferred on the Prescribed Authority. This issue fell for consideration of a Division Bench of this Court in Meerut Collegiate Association, Meerut and others v. Sri Arvind Nath Seth and others, reported (1982 UPLBEC 82). The Division Bench has considered the effect of Section 19-A of the U.P. General Clauses Act, 1904 and has also considered the similar provision under section 95 of the U.P. Panchayat Raj Act, 1947 and section 17 of the Arms Act, 1959. The Division Bench has also considered Section 7-F of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 and Section 254 of the Income Tax Act, 1961. After considering the said provisions of the Act and the power of Section 25(1) of the 'Act 1860', the Court came to hold that Prescribed Authority while deciding the dispute under section 25(1) of the 'Act 1860' has no power to pass an interim order. The Court has held as under :-
"Applying the principles enunciated in the decision referred to above, it is not possible to say that for hearing and deciding any doubt or dispute in regard to the election of the office bearer of the petitioner committee it was absolutely necessary for the Prescribed Authority to stay the functioning of the committee pending decision of the reference and further more so when the proceeding are summary in nature. The impugned order, therefore, is liable to be quashed."
The Supreme Court in the case of Morgan Stanley Mutual Fund v. Kartick Das reported (1994) 4 SCC 225, has considered the issue whether the Consumer Dispute Redressal Forum has power to pass an interim order. The Court analyzing the provisions of Section 14 of the Consumer Protection Act, 1986 found that the said section does not empower the Tribunal to pass any interim relief. Paragraph 44 of the judgment reads as under :-
" A careful reading of the above discloses that there is no power under the Act to grant any interim relief of (sic or) even an ad interim relief. Only a final relief could be granted. If the jurisdiction of the Forum to grant relief is confined to the four clauses mentioned under section 14, it passes our comprehension as to how an interim injunction could ever be granted disregarding even the balance of convenience."
In view of the aforestated legal position, I am of the view, that Prescribed Authority does not have any power to pass an interim order.
In the present case reference was made under section 25(1) of the 'Act 1860' by a member. The Prescribed Authority on the reference itself has passed an exparte and cryptic order staying the operation of the order passed by the Assistant Registrar dated 23.1.2014 and 6.3.2014. In absence of power to grant an interim order, the order of the Prescribed Authority is without jurisdiction. It is liable to be set aside. Accordingly, it is set aside.
Writ petition is allowed.
The Prescribed Authority is directed to decide the Reference in accordance with law. The order is also without prejudice to the rights and contention of the parties.
No order as to costs.
Order Date :- 2.4.2014 ssm