The present petition has been filed assailing the order dated 09.01.2018 passed by the Deputy Registrar, Firms, Societies and Chits, Meerut Region, Meerut (second respondent) by which he has accepted the resolution dated 05.10.2017 of the Board of Management of SPS Residency, a Residents Welfare Association (in short the society/ RWA), registered under the Societies Registration Act, 1860 (in short Act, 1860), in respect of removal of the petitioner from the post of President of the society and has rejected the objection of the petitioner against it.
In nutshell, the society is an association of residents of SPS Residency Apartments situated at 18-B, Vaibhav Khand, Indirapuram, Ghaziabad. The society has its registered bye-laws. The management of the society, as per bye-law No.18, is governed by a Board. The board of management comprises of 10 persons to be elected by the members by simple majority in the general body. The principal office bearers of the society are: President; Vice President; Secretary; and Treasurer, all of whom are elected by and from the Board. Bye-law No.26 provides that the term of the office bearers of the Board shall be one year from the date of assuming office and they would be eligible for re-election. Provided that a person cannot hold the same post continuously for more than two years. Bye-law No.28 provides for removal of office bearers. According to it, at any regular or special meeting duly called, any one or more of the office bearers may be removed with or without cause, by a majority of apartment residents and a successor may then and there be elected to fill the vacancy thus created. It is also provided therein that any office bearer whose removal has been proposed by the residents shall be given an opportunity to be heard at the meeting.
The petitioner indisputably was elected by the Board as President thereof on 11.06.2017. It is the case of the petitioner that her term as President was one year and there is no provision in the Bye-laws other than Bye-law No.28 for removal of office bearers and therefore she could not have been removed till expiry of one year from the date of her election except in the manner provided by Bye-law No.28.
According to the petitioner on 05.10.2017, the Board of Management of the Society had allegedly conducted a meeting to remove the petitioner from the post of President and allegedly passed a resolution of removal in its meeting dated 05.10.2017, which is completely unauthorized and illegal, inasmuch as, removal could only be by a resolution of majority of apartment residents and not by the Board. It is thus the case of the petitioner that the resolution of the Board dated 05.10.2017 is void and contrary to the Bye-laws of the Society and, as such, it could not have been accepted by the Deputy Registrar.
The Deputy Registrar however by the impugned order rejected the claim of the petitioner by holding that removal from the post of President does not amount to removal as an office bearer of the society and, therefore, the provisions of Bye-law No.28 would not be applicable; whereas, since the President is elected by the Board of Management, the Board of Management would have right to appoint another President in place of the petitioner and, as such, the resolution dated 05.10.2017 does not suffer from any legal infirmity.
Assailing the order of the Deputy Registrar (second respondent), the present petition has been filed.
I have heard Sri Ashish Mishra for the petitioners; Sri Gajendra Pratap, learned Senior Counsel, assisted by Sri Gautam Baghel, for the respondents 3 to 7; and the learned Standing Counsel for the respondents 1 and 2.
Before proceeding to notice the rival contentions of the learned counsel for the parties, it would be useful to examine the relevant Bye-laws of the Society.
Bye-law No.2 (b) defines Association as follows:-
"Association means the Association of all the apartment residents constituted by such residents for the purpose of the SPS Residency condominium."
Bye-law No.2 (c ) defines Board as follows:
"Board means the Board of Management consisting of 4-10 office bearers who shall be residents of apartments in SPS Residency condominium."
Bye-law No.4 provides as to who shall be members of the Association, which reads as follows:-
"4. Members of Association:-- (1) All persons who have purchased apartments in SPS RESIDENCY condominium and executed a deed of apartment shall automatically be the members of the Association and will pay the entrance fee of one thousand rupees. Each apartment owner shall receive a copy of the bye-laws.
(2) Upon the sale, bequest or transfer of apartment, the purchaser of the apartment or the grantee or legatee or the transferee shall automatically become the member of the Association and shall be admitted as member on payment of the entrance fee of one thousand rupees.
Bye-law No.18 provides for Management of Association, which is extracted herein below:-
"18. Management of Association - The affairs of the association shall be governed by a Board. The Board of Management shall comprise of 10 persons to be constituted and elected by the members by simple majority in the General Body Meeting. The principal office bearer of the Association shall be a President, a Vice President, a Secretary and a Treasurer, all of whom shall be elected by and from the board. The Board may appoint an Assistant Secretary and an Assistant Treasurer and such other office bearer as the Board may consider necessary.
Bye-law No.24 provides as follows:-
"24. Power and Duties of the Board - The Board shall have power and duties necessary for the administration of the affairs of the Association."
Bye-law No.26 provides as follows:-
"26. Election and terms of office: - (a) The annual general meeting of the Association, to be held in the first quarter of each financial year, shall elect neither less than 4, nor more than 10 Members including the President, Vice President, Secretary, and Treasurer from Members of the Association. Provided that no member shall be eligible for election if he has been found guilty of misusing the post during the previous terms. The terms of office of the office bearers of the Board shall be one year from the date of assuming office and they will be eligible for re-election. Provided that a person cannot hold the same post continuously for more than 2 years.
(b) An arrangement shall be made by the Board to ensure that one third of members of the board retire annually.
(c) The office bearers shall hold office until their successors have been elected and hold their first meeting."
Bye-law No.27 provides as follows:-
"27. Vacancies - The vacancies in the Board caused by any reason other than the removal of an office bearer by a vote of the Association shall be filled by vote of the majority of the remaining office bearers, even though they may constitute less than a quorum and each person so elected shall be a office bearer until a successor is elected at the next annual meeting of the Association."
Bye-law No.28 provides as follows:-
"28. Removal of office bearers - At any regular or special meeting duly called, any one or more of the Office bearers may be removed with or without cause, by a majority of apartment residents and a successor may then and there be elected to fill the vacancy thus created. Any Office bearer whose removal has been proposed by the residents shall be given an opportunity to be heard at the meeting."
The contention of the learned counsel for the petitioner is that Bye-law No.26 provides for the term of the office bearers and Bye-law No.28 provides for removal of office bearers. The removal of office bearers can only be made by a majority of apartment residents and not by members of the Board of Management and therefore the resolution dated 05.10.2017, which has been passed by the Board of Management, removing the petitioner, who had not even completed one year in office as President, was illegal and void. In support of his contention, the learned counsel for the petitioner has placed reliance on Division Bench decision of this Court in Amir Alam Khan Vs. State of U.P. and others: 2002 (1) AWC 266 (LB); a decision of the Delhi High Court in Sri Anil Agarwal and others Vs. The Institute of Chartered Accountants and others: ILR (2000) 1 Delhi 340; a Full Bench decision of the Punjab and Haryana High Court in Jagdev Singh Vs. The Registrar, Cooperative: AIR 1991 Punjab and Haryana 149; a decision of Full Bench of Kerala High Court in S. Lakshmanan Vs. V. Velliankeri: AIR 2002 Kerala 325. All the above decisions are to the effect that in absence of a specific provision for bringing a no confidence motion, the no confidence motion cannot be brought on any basic principle of democracy.
Sri Gajendra Pratap, learned counsel for the contesting respondents, contended that Bye-law No.28 applies in a case where there is removal of an office bearer from the Board of Management and would not apply to a case where there is no removal from the Board of Management though there may be removal of a person from the office of President. It has been contended that the resolution of the Board of Management does not remove the petitioner from the Board of Management but only removes her from the post of President by electing another person as President in her place. It has been contended that the Board, as per definition, consists of 4 to 10 office bearers and the members of that Board thereafter elect, by simple majority, a President, a Vice President, a Secretary and a Treasurer, as per bye-law no.18. It has been contended that since the Board elects the President, Vice President, Secretary and Treasurer, it would have power to remove them in absence of any specific provision to the contrary in the Bye-laws of the Society as regards their removal because the body that elects has power to remove as per general democratic principles on which a society functions. Reliance has been placed on decision of the Apex Court in the case of Vipulbhai M. Chaudhary Vs. Gujarat Cooperative Milk Marketing Federation Limited and others: (2015) 8 SCC 1 (para 51). Reliance has also been placed on a Division Bench decision of this Court in the case of Anil Pratap Singh Vs. Bar Council of India and others: 2017 (3) UPLBEC 2004 wherein, following observations of the apex court in Vipulbhai M. Chaudhary's case (supra), certain directions were issued.
I have given thoughtful consideration to the submissions of the learned counsel for the parties.
The decision of the Apex Court in Vipulbhai M. Chaudhary's case (supra) has been rendered in the context of 97th constitutional amendment by which Part-IX-B on cooperative societies has been introduced. The Apex Court had come to the conclusion that all laws on cooperative societies were bound to be in consonance with the 97th amendment to the Constitution of India and any provision in the Act or Rules or Bye-laws inconsistent with the constitution would be rendered inoperative. In that context, the Apex Court, after examining the various Articles of Part IX-B of the Constitution, as introduced by 97th constitutional amendment, came to a conclusion that a cooperative society would have to function on democratic principles. And, in that context, in paragraph 51 of Vipulbhai M. Chaudhary's case (supra) the Apex Court had observed as follows:-
"51. The cooperative society registered under the Central or the State Act is bound to function as a democratic institution and conduct its affairs based on democratic principles. Democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or bye-laws both on the principle and procedure. If not, it is for the court to read the democratic principles into the Act or Rules or bye-laws. If a procedure is prescribed in any Act or Rule or bye-law regarding election of an office-bearer by the board, as defined under Article 243-ZH(b) of the Constitution of India, and for removal thereof, by way of a motion of no-confidence, the same procedure has to be followed. In case there is no express provision under the Act or Rules or bye-laws for removal of an office-bearer, such office-bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to office."
Emphasis Supplied A Residents Welfare Society (the Society in question) is not a cooperative society and therefore the law laid down by the Apex Court in Vipulbhai M. Chaudhary's case (supra) would not be squarely applicable to it. Otherwise, a member elected as an office bearer of a society cannot be removed from office by way of no confidence in absence of a specific provision in that regard by taking recourse to democratic principles. Because the general principle that the authority which has power to appoint has power to remove is not applicable to elected representatives. In this regard, it may be apposite to notice observations of the Apex Court in the case of Mohan Lal Tripathi Vs District Magistrate, Rai Bareilly and others: (1992) 4 SCC page 80 where, in paragraph 2, it was observed as follows:-
"(2.) Democracy is a concept, a political philosophy, an ideal practised by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a 'fundamental right' nor a 'common law right' but a special right created by the statutes, or a 'political right' or 'privilege' and not a 'natural' 'absolute' or 'vested right'. 'Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied.' Right to remove an elected representative, too, must stem out of the statute as 'in the absence of a constitutional restriction it is within the power of a legislature to enact a law for the recall of officers'. Its existence or validity can be decided on the provision of the Act and not, as a matter of policy. In the American Political Dictionary the right of recall is defined as, 'a provision enabling voters to remove an elected official from office before his or her term expired'. American jurisprudence explains it thus, 'Recall is a procedure by which an elected officer may be removed at any time during his term or after a specified time by vote of the people at an election called for such purpose by a specified number of citizens. It was urged that recall gives dissatisfied electors the right to propose between elections that their representatives be removed and replaced by another more in accordance with popular will' therefore the appellant could have been recalled by the same body, namely, the people who elected him. Urged Shri Sunil Gupta, learned counsel, that since, 'A referendum involves a decision by the electorate without the intermediary of representatives and, therefore, exhibits form of direct democracy' the removal of the appellant by a vote of no-confidence by the Board which did not elect him was subversive of basic concept of democracy. Academically the submission appeared attractive but applied as a matter of law it appears to have little merit. None of the political theorists, on whom reliance was placed, have gone to suggest that an elected representative can be recalled, only, by the persons or body that elected him. Recall expresses the idea that a 'public officer is indeed a "servant of the people" and can therefore be dismissed by them'. In modern political set up direct popular check by recall of elected representative has been universally acknowledged in any civilised system. Efficacy of such a device can hardly admit of any doubt. But how it should be initiated, what should be the procedure, who should exercise it within' ambit of constitutionally permissible limits falls in the domain of legislative power. 'Under a constitutional provision authorizing municipalities of a certain population to frame a charter for their own Government consistent with and subject to the Constitution and laws of the State, and a statutory provision that in certain municipalities the mayor and members of the municipal council shall be elected at the time, in the manner, and for the term prescribed in the charter, a municipal corporation has authority to enact a recall provision'. Therefore, the validity of otherwise of a 'no-confidence motion for removal of a President, would have to be examined on applicability of statutory provision and not on political philosophy. The Municipality Act provides in detail the provisions for election of President, his qualification, resignation, removal etc. Constitutional validity of these provisions was not challenged, and rightly, as they do not militate, either, against the concept of democracy or the method of electing or removing the representatives. The recall of an elected representative therefore, so long it is in accordance with law cannot be assailed on abstract notions of democracy."
Following the decision of the Apex Court in Mohan Lal Tripathi's case (supra) and a Full Bench decision of Punjab and Haryana High Court in Jagdev Singh's case (supra), a Division Bench of this Court in Amir Alam Khan's case (supra) had held that fixed term of the chairperson can be curtailed by a specific provision or could be cut short by exercising power of a motion, if the act or the bye-laws had provided but in absence of any any specific provision in the act or bye-laws, the term cannot be curtailed either by taking recourse to the provision of the general clauses act or the principle of democracy.
The Delhi High Court following the decision of the Apex Court in the case of Mohan Lal Tripathi's case (supra) and of the Punjab and Haryana High Court in Jagdev Singh's case (supra) and thereafter the decision of the Apex Court in Ram Beti Vs. Distirct Panchayat Raj Adhikari and others: (1998) 1 SCC 680, in Sri Anil Agarwal's case (supra) had held that elected representatives cannot be removed by using implied and inherent powers which do not spell out from the Statute or the Rules framed thereunder.
Similar had been the view of the Kerala High Court in S. Lakshmanan's case (supra).
No doubt, the decision of the Punjab and Haryana High Court and the Kerala High Court have been held no longer applicable, pursuant to the 97th constitutional amendment, in Vipulbhai M. Chaudhary's case (supra) but that was in the context of a cooperative society, keeping in mind that the laws governing a cooperative society would have to meet the constitutional mandate. However, since a Residents Welfare Society is not a cooperative society but just a society registered under the Act, 1860, for which there is no constitutional mandate upon the legislature or rule making body, in absence of any specific provision for no confidence motion against an office bearer, the no confidence motion cannot be brought and given effect to on the basis of general democratic principles.
Under the circumstances, since the only provision in the bye-laws of the Society to remove an office bearer of the society is contained in bye-law no.28, which empowers the majority of apartment residents to remove any one or more of the office bearers at any regular or special meeting, the removal of the petitioner by the Board, in absence of any resolution by the apartment residents, is void and therefore cannot be legally sustained.
The contention of the learned counsel for the petitioner that this Court in Anil Pratap Singh's case (supra) had relied upon the observations of the Apex Court in Vipulbhai M. Chaudhary's case (supra) and had made it applicable to Bar Council would indicate that these democratic principles have to be applied even to a society, cannot be accepted because from the judgment of this Court in Anil Pratap Singh's case (supra) it appears that a notification providing guidelines for no confidence motion had been issued. That apart, the Division Bench of this Court in Anil Pratap Singh's case (supra) nowhere categorically held that the principles governing no confidence motion as provided by the Apex Court in Vipulbhai M. Chaudhary's case (supra), in respect of cooperative societies, would apply even to a Society registered under the Act, 1860.
In view of the above, this Court finds merit in the contention of the learned counsel for the petitioner that the no confidence motion brought by the Board of Management against the petitioner was void and the order of the Deputy Registrar recognizing such no confidence motion was illegal.
The petition is, accordingly, allowed. The order dated 09.01.2018 passed by the Deputy Registrar, Firms, Societies and Chits, Meerut Region, Meerut (second respondent) is hereby set aside and the minutes of the meeting dated 05.10.2017 to the extent it removes the petitioner from the office of the President of SPS Residency, RWA is declared illegal and void.
Order Date :- 31.5.2018 AKShukla/-