Rejoinder affidavit filed on behalf of the petitioner is taken on record.
Heard Sri G.C. Verma, learned counsel for the petitioner and Sri Som Kartik, learned counsel appearing for the respondent nos.2 to 3. Sri Rahul Shukla, learned Additional Chief Standing Counsel for the opposite party no. 1 and 5.
By means of the instant petition, the petitioner assails the impugned orders dated 22.12.2020 and 23.12.2020 passed by opposite parties nos. 2, 3 and 4 which are contained in Annexure Nos. 1 and 2 to the writ petition. A further relief has been sought that the opposite parties be commanded not to interfere in the functioning of the Executive Committee of the petitioner no. 1- Society.
In order to appreciate the controversy for the purposes of interim relief, certain facts giving rise to the aforesaid petition are being noticed first:-
The petitioner no. 1 is a registered society under the provisions of the Societies Registration Act, 1860. It has its separate bye-laws which governs the society and its functioning. Initially the Society came to be registered in the year 2008 wherein the President was by designation and the Managing Director of the U.P. Forest Corporation would be the President by designation and the Society would have a Vice President who would be nominated by the President and the majority vote of the newly elected executive body.
Initially the period of the governing body was for 2 years, however, in the year 2012, the bye-laws of the society were amended and the term was enhanced to 5 years.The petitioner no. 2 who asserts himself to be the General Secretary of the Society and it is stated in paragraph 5 that in terms of the duties entrusted to the Secretary, the petitioner no. 2 has preferred the instant petition against the illegal acts and orders passed by the opposite party nos. 2, 3 and 4.
For the purposes of interim relief, the learned counsel for the petitioner has primarily urged that the term of the society is up to 09.08.2022, inasmuch as, the last election as per the petitioner no. 2 was held on 10.08.2017. It is further submitted that the President on its own showing does not possess any power to call for an elections or to nominate or to appoint any Chief Election Officer. It is in view of the aforesaid it is urged that the order dated 22.12.2020 passed by which the Managing Director/the President of the U.P. Forest Corporation Officers and Employees Welfare Society appointing Sri Atul Jindal as the Chief Election Officer is under challenge, so also the Election Programme dated 23.12.2020 in terms whereof the elections are to commence from 21.01.2021 till 29.01.2021 and the election results are to be declared on 01.02.2021.
The learned counsel for the petitioner further submits by referring to the bye-laws, a copy of which has been annexed as Annexure No. 6 to indicate that only such members who paid Rs. 50/- per month as membership fee shall be the members of the Society. It is further elaborated by Sri Verma that initially the contribution/membership fee was Rs. 5/-, however, after the amendment in the bye-laws in 2012, the said amount stood enhanced to Rs. 50/-.
It is submitted by Sri Verma that in the first place, the President/the Managing Director of the U.P. Forest Corporation acting as the President of the petitioner no. 1- society could not issue any order appointing a Chief Election Officer especially when the term of the Committee had not expired. It is further stated that in terms of the Election Programme, the alleged Chief Election Officer by means of its letter dated 28.12.2020 issued a list of members eligible to vote and further in the same letter liberty was provided that in case if any name is left out, the same be informed to the Chief Election Officer, while no provisions was made for inviting objection against the list of members.
As per the petitioner, the list which has been brought on record as Annexure No. 19 comprises of 1238 members, the same is also assailed by the petitioner no. 2 on the ground that there are only 917 valid members who can be treated to be eligible to vote, inasmuch as, in terms of the amended bye-laws only such members who got Rs. 50/- deducted from their salaries would be the members and for the aforesaid, the petitioner relies upon Annexure No. 20 and 21 to indicate that a sum of Rs. 55,750/- is deducted from the account of 917 members. Thus, the action of the Chief Election Officer of not only issuing the list of 1238 members but also leaving it open that in case any name of a member is left out, the same can be added actually in effect it not only violates the bye-laws but also pollutes the Electoral college, hence, the entire election would stand vitiated. Notwithstanding the fact that the Managing Director had no authority to appoint the Chief Election Officer.
It is further submitted that this Court by means of order dated 12.01.2021 noticing the submission of the learned counsel for the parties earlier had directed the Additional Chief Standing Counsel to complete the instructions from the Deputy Registrar, Firms Societies and Chits.
Thus, the precise submission is that the President did not have any authority under the bye-laws to appoint a Chief Election Officer. Any such exercise could have been done by the Committee. There is no resolution of the Committee for such election and further the issuance of the Election Programme by the alleged Election Officer is also bad, coupled with the fact that the publication of list of valid members without inviting objections and considering is not only de-hors the settled election process but is violative of the bye-laws rendering election vulnerable, accordingly, the learned counsel for the petitioner prays that the election process be stayed.
Sri Som Kartik, learned counsel for the opposite party nos. 2, 3 and 4 has raised objections regarding the maintainability of the above petition. His submission is that the petitioner no. 2 is not the elected Secretary of the petitioner no. 1-society nor he has any resolution in his favour to maintain the aforesaid petition and in absence thereof, the petition at the behest of the petitioner no. 2 is not maintainable and is liable to be dismissed on this score alone.
Elaborating his submissions, Sri Som Kartik submits that the petitioner prima facie claims the last election to be held on 10.08.2017 in terms whereof the term of the Society is alleged to be uptil 09.08.2022. It is submitted that the petitioner himself has brought the minutes of the alleged election dated 10.08.2017 on record as Annexure No. 15. It is stated that the list of elected members have been shown to be 11 in number and the date of the election is 10.08.2017. Sri Umesh Sharma and Srikant Upadhyay who are shown to be the elected President and Vice President had already repatriated to their parent department on 25.07.2013 and 06.06.2017 respectively. Similarly, it is pointed out that the elected member Sri Parshuram Tripathi and Sri Jagdish Prasad Yadav have also filed their letters indicating that they never participated nor attended any such meeting and the alleged election dated 10.08.2017 was bogus. The alleged letter written by Sri Parshuram Tripathi and Jagdish Prasad Yadav have been filed as Annexure no. CA- 1 and CA- 2 with the counter affidavit filed by the opposite party nos, 2 to 4.
It is further pointed out that another member shown as elected in the election allegedly held on 10.08.2017 namely Ranjeet Singh had retired in February, 2017 and he had seized to be a member thus for all the said reason no sanctity could be attached to the alleged election on 10.08.2017. Further, it is submitted that the elected members as per the alleged election held on 10.08.2017 have never been recognized by the Deputy Registrar, consequently, the petitioner cannot be treated to be the Secretary, in the aforeasaid circumstances, the writ petition a this behest is not maintainable, consequently, no interim order can be passed.
It was also urged by the learned counsel for the opposite parties nos. 2 to 4 that the last undisputed election of the petitioner no. 1-society took place in the year 2011. At the relevant time, the term of the elected body was two years, accordingly, as per the bye-laws, the election ought to have been held in the year 2013 but the election is said to have been taken place on 11.03.2014. It is submitted that even if the Committee which was in charge in the year 2012 could not automatically seek extension of its tenure from 2 to 5 years but only the Committee which would have been elected if the elections were held in the year 2013, their tenure could be of 5 years. Even otherwise the election is said to have been held on 11.03.2014 (though not admitted) yet the term of such Committee would expire in 2019. In this view of the matter also, the Committee as alleged by the petitioner is not valid.
The Additional Chief Standing Counsel on the basis of written instructions, which have been taken on record submits that since the last elections were held in the year 2011 and at the relevant time the term was two years, the elections ought to have have been held in the year 2013, however, no such elections were held and also for the reason that the election was not held in time but after the term was enhanced to 5 years, the election so held itself are vitiated. The instructions also reveal that one Sri Rajeev Kumar Nigam has also filed some complaint and in pursuance whereof it appears that the Committee of the petitioner no.-1-society is apparently time barred and in such a situation the elections can only be held under the supervision of Deputy Registrar in terms of Section 25 (2) of the Societies Registration Act as applicable to the State of U.P.
The Court has heard the learned counsel for the parties at sufficient length and a specific query was put to Sri Som Kartik learned counsel appearing for opposite party nos. 2 to 4 as to if according to the opposite party nos. 2 to 4 the alleged election of 10.08.2017 did not take place and prima facie as per their own contention it was not fair or genuine then in any case, the term of the Committee stood expired and is time barred. Under what circumstances, the opposite party nos. 2 and 3 knowing the aforesaid issued the letter putting in motion the election process and appointing the Chief Election Officer. It was informed by Sri Som Kartik that it is a private society and opposite party nos. 2 and 3 in private capacity as President had passed the order, though, he could not dispute the fact that as per his own submissions if the elections of 10.08.2017 are not genuine then even the opposite party nos. 2 and 3 could not have either appointed an Election Officer nor the election process could have been initiated. Sri Kartik also could not indicate under what provision of the bye-laws or powers did the opposite party no. 2 have the authority to appoint the Chief Election Officer.
The opposite party nos. 2 and 3 could not justify the action of issuing the letter appointing the Chief Election Officer as well as the initiation of the election process by the Chief Election Officer, coupled with the fact that the election process is having an impact over the the members of the petitioner-society who spread out in the entire State of Uttar Pradesh.
As per the parties, the last undisputed election was held in the year 2011 at the relevant time the term was of two years which would have expired in 2013. Even assuming if the bye-laws were amended in 2012 and even automatically the term of the aforesaid Committee which was in charge in the year 2012 stood extended to 5 years meaning thereby that the term of the Committee which otherwise would have expired in 2013 would post the amendment would expire in the year 2016, however, as per the petitioner no. 2, the election took place on 10.08.2017.
Sri G.C. Verma on being confronted to the fact regarding the alleged election of 10.08.2017, as relied upon by him, indicated the name of Sri Umesh Sharma who is shown to be elected as the President being the Managing Director of the Corporation. He could not dispute the fact that Sri Umesh Sharma had already repatriated to his parent department on 25.07.2013 i.e. 4 years prior to the date of the alleged election. Similarly in case of Srikant Upadhyay who is shown as the Vice President, he also stood repatriated on 06.06.2017 i.e. about 2 months prior to the date of the alleged election. Leaving aside for a moment the plea that Sri Parshuram Tripathi and Jagdish Prasad Yadav have submitted letters as referred and brought on record as Annexure No. CA-1 & CA-2 with the counter affidavit filed by the opposite party nos. 2 to 4 that they did not participate. Nevertheless, Sri Verma could not dispute the fact that Sri Ranjeet Singh who is shown as a member elected in the election allegedly held on 10.08.2017 had retired in the month of February, 2017. This does prima facie casts a doubt over the alleged election of 2017.
Having heard the learned counsel for the respective parties at sufficient length and considering the rival submissions and the material available on record, apparently, on one hand neither the petitioner no. 2 nor the respondent nos. 2, 3 and 4 could justify their own conduct. On the other hand, as per the instructions of the Deputy Registrar, the society appears to be time barred. Even the respondent nos. 2 to 4 could not dispute the fact that as per their own contention, the Committee is time barred. In the aforesaid situation the opposite party nos. 2 to 4 have precipitated the debacle by issuance of letter dated 22.12.2020 in pursuance of which the election programme has been initiated.
This Court finds that elections of a society is a democratic process and has a lot of sanctity attached to the process. if any action is conceived in illegality, the result cannot be any different. This Court exercising powers under Article 226 of the Constitution of India also cannot shut its eyes to an illegality brought to its notice nor the order of the Court should perpetuate an illegality either way considering the purpose of election to bring in a democratically elected Committee which would spouse for the welfare of its members.
In peculiar facts and circumstances of this case, the elections of the society which will have an impact on its members who are spread out over the entire State of Uttar Pradesh putting the man power as well as the finances at risk also considering that large number of members of the society are Class- III and Class - IV employees of the Forest Corporation apart from the officer who contribute their membership/subscription, not to be wasted on such illegal exercise, hence, where there is impeachment to the authority to initiate election in the first place clouding the electoral college by persons who apparently do not have the authority to proceed, this Court finds that the nature and gravity of the violation of law is such that would justify this Court to interfere under Article 226 of the Constitution of India as well as to avoid the waste of time, finances and manpower including the inconvenience caused to the members of the society, accordingly the alleged elections being held in pursuance of the impugned letters dated 22.12.2020 and 23.12.2020 are stayed as the same would also arrest the illegality from being perpetuated any further.
Having said so, this Court directs that the Deputy Registrar shall look into the affairs of petitioner no. 1-society by exercising his powers conferred on him under the Societies Registration Act, 1860 and call upon the office bearers/members of the society and after affording an opportunity of hearing shall ascertain the validity and status of the office bearers/members of the society and submit its report within a period of four weeks so that the elections if at all are to be held, the same can be done under the supervision of the Deputy Registrar in terms of Section 25 (2) of the Societies Registration Act, 1860.
List this matter in the first week of March, 2021 to enable the Deputy Registrar to conduct the inquiry as mentioned above and furnish its report before the Court.
Order Date :- 21.1.2021 Asheesh