ORDER A.P. Misra, J.
1. The petitioner by means of the present writ petition sought for quashing the order dated 13th June, 1988 (Annexure 13) passed by the Deputy Registrar by virtue of which it did not recognise the election dated 23rd Aug. 1987, of the society and further under Section 25(2) of the Societies Registration Act directed for holding fresh elections and appointed one Assistant Registrar, Firms Societies and Chits as an election officer to conduct the same.
2. The petitioners' case is that the petitioner No. 1 is a registered society which was initially registrered in 1957 with the Registrar of Joint Stock Company and thereafter registration has been renewed from time to time under the societies Registration Act. Last renewal was effected by the Assistant Registrar, Firms, Societies and Chits, Meerut on 11-3-1986 for a period of five years from 10th Oct. 1985, which is still in force. By a resolution dated 21st April, 1985, the general body unanimously affected two changes in the bye-laws, one, that instead of Baisakh, April/May the main general body session would be held in the month of August each year, and, second, that the office bearers would be elected for a period of two years instead of one year. Thereafter, the said amendment in the bye laws was communicated to the Assistant Registrar Firms, on 14th June, 1985. In response thereof on 2nd July, 1985, a letter was sent by the Assistant Registrar to the petitioner by means of which it was desired apart from other things to get the aforesaid election proceedings (21st April, 1985) confirmed by the general body and submit the same within fourteen days for confirmation. Thereafter, the general body in its meeting dated 18th August, 1985, confirmed the aforesaid election dated 21st April, 1985. The information of these proceedings was also communicated to the Assistant Registrar on the 25th Sept. 1985, which was received in the office of the Assistant Registrar on the 8th Oct. 1985. In this controversy also a prayer for the renewal of registration as the previous registration was expiring on the 10th Oct. 1985. Thereafter, the Registrar forwarded a renewal certificate under his letter dated 14th March, 1986, enclosing the registration certificate dated 11th March, 1986. Thereafter, since after the aforesaid election dated 18th Aug. 1985, by virtue of amendment of the bye-law period being extended from one year to two years the next election was held in the general body meeting dated 23rd Aug. 1987. According to the petitioner, respondent No. 4 Sri Madan Lal Agarwal, applied to the Assistant Registrar for stopping the proposed election dated 23rd Aug. 1987 by show of hands and the Assistant Registrar on 19th Aug. 1987 sent a letter to the petitioner on the same day asking for the reply to the said objection and the petitioner replied the same on 21st Aug. 1987. Thereafter, the impugned election was held on 23rd Aug. 1987. It is this election which has been held by the Deputy Registrar by means of impugned order to be invalid, on account of it being held after two years instead of one year and also on the ground that the election could not have been held under the amended byelaw as the same was not approved and further according to the old bye-law since last election was held on the 18th Aug. 1985, the election should have been held within a period of one year i.e. by 17th Aug. 1986, and that having not been done the committee of management which was elected on 18th Aug. 1985, its term came to an end. Thus, the Deputy Registrar exercising powers under Section 25(2) of the Societies Registration (hereinafter referred to as Act) appointed the Assistant Registrar as election officer to hold fresh election.
3. The first ground of challenge of the impugned order by the petitioner is that the amendment of Society bye-law 9-Ga by the general body resolution dated 21st April, 1985 was valid and Assistant Registrar has wrongly held it to be invalid. Thus, the election of the office bearer of the committee of management held by the general body on the 23rd Aug. 1987, could not be said to be illegal and a decision to the contrary in the impugned order is liable to. be set aside. It was further urged that, compliance of Section 4-A of the Act is merely directory and its mere non-compliance would not lead to invalidate the action of the society.
4. The main contest on behalf of the respondent has been on behalf of the respondent No. 4 Madan Lal Agarwal. According to him, the impugned order does no suffer from any illegality as the amendment of the byelaw has not been done through any valid resolution, nor for the same any valid meeting was called for and subsequently since the resolution dated 21st April, 1985 was not communicated to the authority concerned within thirty days as stipulated under Section 4-A of the Act and the provision being mandatory in nature the resolution becomes void and is unenforcible as it was time barred. In view of this, if any election was held on the 23rd Aug. 1987, under the amended bye-law could not be said to be valid and the authority rightly held it to be invalid and appointed Assistant Registrar for holding fresh election. From the aforesaid contentions of the parties two questions arise for adjudication by us. Firstly, whether Section 4 A of the Act is mandatory or directory in nature, secondly, whether any such meeting dated 21st April, 1985, was legally called and whether in the same any such resolution for amending the byelaws was passed or not.
5. Coming to the first question on facts it is not in dispute that the alleged resolution dated 21st April, 1985, was communicated to the Assistant Registrar on 14th June, 1985, which admittedly was beyond thirty days as contemplated under Section 4-A of the Act. It is further significant while replying to the said communication on the 2nd July, 1985 (Annexure 3 to the writ petition) the Assistant Registrar desired confirmation of the election of the executive held on 21st April, 1985, which according to the petitioner, was confirmed in the general body meeting dated 18th Aug. 1985, in which the office bearers are alleged to have been elected for a period of two years under the amended byelaw. According to the petitioner, information of these proceedings was also communicated to the Assistant Registrar by the application dated 25th Sept. 1985, which is received in the office of the Assistant Registrar, on 8th Oct. 1985 (Annexure 5 to the writ petition). In this application, where was a further prayer for the renewal of the registration of the society. Respondent No. 4 in this regard has specifically denied that Annexure 5 to the writ petition speaks about any confirmation of resolution dated 21st April, 1985. It was also not in dispute that the election dated 18th Aug. 1985, was held after the aforesaid alleged amendment of the byelaw on the 21st April, 1985, and the society continued with the said office bearer and held another election on the 23rd Aug. 1987, which is the subject matter in the present writ petition. This latter election was held in view of the aforesaid amendment which extended the period of the committee of management from one year to two years and further instead of general body meeting in April/May it was to be held in August.
Section 4-A of the Act is quoted below : --
"Changes etc. in rules to be intimated to Registrar. --
A copy of every change made in rules of the Society and intimation of every change of address of the society, certified by not less than three of the members of the governing body shall be sent to the Registrar within thirty days of the change."
According to this, it was incumbent on the society to have sent to the Registrar of Societies the amendment or alteration in the rules or bye-laws within thirty days. It is this later part which is the foundation of argument on behalf of the respondent that since the amendment was not communicated within thirty days of its being passed, namely, on 21st April, 1985, to the Registrar the said resolution would be invalid in view of Section 4-A being mandatory in nature. The emphasis was on the use of the word "shall" in the section. Section 27 in the said amendment of Uttar Pradesh provides for penalty for the non-compliance of Section 4-A Relevant portion of Section 27 is quoted below : --
"Penalties -- Any person who --
(a) fails to furnish the list of managing body or other information required to be furnished under Section 4 or 4-A or wilfully makes or causes to be made a false entry in, or any omission from, the list or any statement or copy of rules or of alteration in rules or other information sent to the Registrar under the said Section 4 or Section 4-A shall be punishable with fine which may extend to two thousand rupees."
On this basis it is urged that since penalty is provided for non-compliance of Section 4-A the said provision is to be treated as mandatory.
6. The principle whether a section is mandatory or directory has been a matter of consideration by various courts by catena of authorities. Lord Compbell in a passage said. "No Universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered." To the same effect is the decision of Supreme Court (State of U.P. v. Manbodhan Lal Srivastava), (AIR 1957 SC 912), AIR 1961 SC 751 (State of U.P. v. Babu Ram Upadhya), AIR 1976 SC 263 (Govindlal Chaganlal Patel v. Agriculture Produce Market Committee).
7. On behalf of the respondent strong reliance was placed in the case Sant Prasad Singh v. Dasu Sinha, AIR 1964 Patna 26. The relevant portion of the judgment is quoted below :
"Where a specific penalty has been provided for in a Statute for non-compliance with the particular provision in the Act itself, no discretion is left to the court to determine whether such a provision is directory or mandatory."
The aforesaid decision was given in an election petition while interpreting that Section 81(3) of the Representation of the people Act, 1951, is mandatory in nature. Under Section 81(3), the petitioner was required to attest the copy to be given to the respondent under his own signature to be true copy of the original and it was to be accompanied by an affidavit in the prescribed form in respect of the allegations of corrupt practice and particulars thereof, which was not done in the aforesaid case. The Supreme Court held the aforesaid provision to be mandatory as its non-compliance makes the election petition liable to be dismissed in terms of Section 90(3) of the said Act. Particular manner and that where a statute invalidates a thing on account of not being done in that manner then there is no room for doubt that the legislature intended to make it mandatory.
8. In Sharif-ud-din v. Abdul Gani Lone, AIR 1980 SC 303 (para 9) it was held :--
"The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted, whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow. Test to determine whether a provision is directory or mandatory pointed out."
In this case it was also held : --
".....A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened."
9. In Mannalal Khetan v. Kedar Nath Khetan, AIR 1977 SC 536 it was held :--
"Negative, prohibitory and exclusive words are indicative of the legislative intent when the statute is mandatory. Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statutory provision imperative. The words 'shall not register', are mandatory in character. The mandatory character is strengthened by the negative form of the language. It cannot be said that provisions contained in Section 108 are directory because non-compliance with the section is not declared an offence. Section 629-A of the Act prescribes the penalty where no specific penalty is provided elsewhere in the Act. It is a question of construction in each case whether the legislature intended to prohibit the doing of the act altogether or merely to make the person who did it liable to pay the penalty. The provisions contained in Section 108 are mandatory."
10. It is now well settled that merely imposition of penalty for non-performance of an action cannot necessarily lead to the conclusion that the provision is mandatory in nature. It is also now well settled by various authorities that where a statute does not expressly provide for nullification of consequences of the non-compliance of a statutory provision but imposes expressly some other penalty then it is a question of construction in each given case whether the legislature intended to lay down an absolute prohibition or merely makes the person offending liable for penalty.
11. In Banarasi Das v. Cane Commr., Uttar Pradesh, AIR 1963 SC 1417 at p. 1424 it has been held that a statute having regard to its object, purpose and scope "is found to be directory a penalty may be incurred for non-compliance but the act or thing done is regarded as good." Thus, in this light, we examine whether provisions of Section 4-A is mandatory or directory in nature.
12. In the present case, the only allegation of non-complianee of Section 4-A is noncommunication of the resolution passed by the general body within thirty days. It cannot be doubted it is merely a procedural difficulty and unless this defect leads to invalidate the resolution itself by some provision of the same statute it cannot be said to be mandatory in nature. It is significant Section 27 which provides for penalty confines to the non-communication, of the papers as required under Section 4-A leading to the penal consequences, but does not further specify of penal consequences even if the same was communicated to the authorities concerned but beyond the period as stipulated under Section 4-A. Further, it is not in dispute that any bye-law could be amended by the general body and the communication is only done by the person who is authorised by the general body and mere failure of a person authorised by the general body to communicate to an authority under the statute would not lead to invalidate the action of the whole of the general body. It may be in order that a proper supervision and checks are made by the authorities under the statute period is provided and persons who are liable to communicate, if fail, are made liable for penalties, but, in our opinion, this cannot be stretched to make even the action of the general body to be invalid. The statute is meant for the proper functioning of a society and provisions are made to see the benefit which accrues to the said society are not whittled out and a statute is to be interpreted to give benefit to the subject for which it has been enacted. In fact, it is in cases where on account of default the very purpose is defeated and penal consequence is provided for and such a statute is to be read as mandatory in nature. It is not in all cases where penalty is provided, it is neither on account of merely of penal consequences provided for or use of word "shall" could lead to a conclusion that a particular statute is mandatory in nature. In the present case, we find the only ground on which it has been urged, to which we are concerned is whether mere noncommunication of the resolution of the general body within thirty days as required under Section 4-A would lead to invalidate the very resolution on account of the said section being mandatory in nature in view of penalty provided for under Section 27. As we have said above, the penalty is on account of its non-communication to the authority concerned and the liability is fastened on the person who is responsible to communicate. However, it cannot be read further that if the said resolution was communicated to the authorities after the said period would also lead to invalidate the valid resolution passed by the said body. Thus, we are of opinion that Section 4-A of the aforesaid Act to the extent it requires a resolution to be communicated within a specified period if not communicated within such a period cannot lead to invalidate the said resolution.
If such a provision is made as mandatory then mere mischief of one, who isauthorised to communicate, by delaying within the said period would frustrate the action of the whole general body, which could not be the intention of the Legislature. In view of this the finding of the Deputy Registrar, contained in Annexure 13 to the writ petition, that the election dated 23rd August, 1987, would be invalid on account of the resolution dated 21st April, 1985, not being communicated to the authorities within thirty days cannot be upheld.
13. However, the second question which arises in the present case and which has been raised on behalf of the respondent is that the aforesaid resolution dated 21st April, 1985, was not passed at all and the said meeting was not validly called and further even if it is held it was called and the meeting was held the resolution amending the bye-law was only passed after the meeting was adjourned and thus there is no question of amendment of the bye-law in fact and on this ground the election held by the petitioner on 23rd August, 1987, on the basis of the said amendment in the bye-law could not be said to be valid.
14. It is significant in the impugned order the case of the respondent No. 4 has been recited by the authority by saying that an objection has been raised by Sri Madan Lal and others that no resolution for amending the bye-law was ever proposed nor it was passed, but no adjudication was made by the authorities. It was strongly contended by the learned counsel for the respondent No. 4 that since no such resolution was passed, nor it was proposed, therefore, there was no amendment of the bye-law. After careful consideration we are of opinion that this question requires consideration by the authority concerned. Since this was a question specifically raised even before the authority by the respondent No. 4and if a conclusion is drawn on the basis of record there was no such resolution passed, or there was no such meeting held or if held it was illegal then there would be no question of any amendment of the bye-law. Since this raises pure question of fact it would not be right for this Court exercising its extra-ordinary jurisdiction under Article 226 of the Constitution to adjudicate on the same. We, therefore, direct the respondents to decide afresh the latter question after giving opportunity to the parties on the basis of relevant records of the case. In case the authority comes to the conclusion that such a resolution was passed by the said general body on 21st April, 1985, then such an amendment is liable to be treated to be valid and in case it is held otherwise there will be no amendment of the bye-law and thereafter in either case after coming to the conclusion it may then pass a consequential order either to treat the existing petitioner-committee to be validly elected or hold fresh elections in accordance with law treating the bye-law to be unamended if such a finding is recorded.
15. In view of the aforesaid, the present writ petition is allowed, the impugned order dt. 13th June, 1988, is hereby quashed and the case is sent back to the authority to decide afresh in accordance with the observations made above. Costs on parties.