C/M Bharti Bhawan Sanskrit Pathshala ... vs Registrar Firms Societies & Chits ... on 14 August, 2019

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Allahabad High Court

C/M Bharti Bhawan Sanskrit Pathshala ... vs Registrar Firms Societies & Chits ... on 14 August, 2019

2. These are two writ petitions, the first being writ petition no.2141 (M/S) of 2019, whereby the petitioner has challenged the order dated 11.01.2019 passed by the Deputy Registrar, Firms, Societies and Chits, Ayodhya Division Ayodhya and prayed for a mandamus commanding the opposite party no.2 to forward the list of members of the society submitted by the petitioner to the D.I.O.S. Ambedkar Nagar within the stipulated time framed by this Hon'ble Court. The second writ petition no.9673 (M/S) of 2019 is filed challenging the order dated 15.03.2019 passed by opposite party no.2, whereby the Deputy Registrar, Firms Societies and Chits has directed for holding an election in furtherance of his earlier order dated 11.01.2019. Counsels for both the parties submit that the finality of the first writ petition bearing writ petition no.2141 (M/S) of 2019 would decide the dispute as the second order is only a consequential order to the first order of the Deputy Registrar.

3. Submission of counsel for petitioner is that last election of the society were held on 09.09.2015 and since 2015 the society was managed by the duly elected committee of management. On 17.02.2018 an application was submitted along with the prescribed fees before the Deputy Registrar for renewal. The renewal order was passed on 13.03.2018 and the society was renewed for a period of five years from 10.10.2015. On 05.04.2018 an application was submitted before the Deputy Registrar for registration of committee of management for the year 2018-19, and the committee of management was also registered by order dated 15.05.2018. The list of members of general body was also submitted for registration on which the Deputy Registrar required the petitioner to produce records before him. He also asked for publication of the list of members of general body in newspaper. At this stage, on 28.05.2018, a dispute with regard to election of the year 2015 was raised by opposite party no.3 by filing objections. Parties were required to file their reply/documents and, after hearing the parties impugned order has been passed. Counsel for the petitioner submits that while passing the impugned order the Deputy Registrar has proceeded to hold the validity of election held on 09.09.2015. He further submits that at number of places finding is given by the Deputy Registrar with regard to the validity of the election dated 09.09.2015. It is pointed out by the counsel for petitioner that such a finding can be found at internal page 15, 16, 17, 18, 19, 20 of the impugned order. He further points out that so far as election dated 10.10.2010 is concerned, the same was admitted by both the parties, as is duly noted at internal page 21 of impugned order. Despite the same being admitted by both the parties, still the Deputy Registrar has also gone on deciding the validity of the said elections. In the said background, counsel for petitioner has referred to Section 25(1) of the Societies Registration Act, 1860 which reads:-

"Section 25. Disputes 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 a officer-bearer of such society, and may pass such orders in respect thereof as it deems fit."

4. Relying upon the highlighted portion of the aforesaid provision, counsel for petitioner submits that any doubt or dispute in respect of the elections or continuance in office of the office-bearer can only be decided by the prescribed authority and the only power the Deputy Registrar could exercise, when he finds that there is dispute with regard to the election or continuance in office of the office-bearer is to make a reference under Section 25(1) of the aforesaid Act. He emphatically submits that the Deputy Registrar could not go into the validity of the election of the year 2015 or of the year 2010 and the moment he finds that a dispute with regard to said elections is being raised, he could only refer the matter to the prescribed authority. Learned counsel for petitioner places reliance upon the following judgments:-

(i) C/M Arbia Darool Kuran and another Vs. State of U.P. and Others; (2011) 29 LCD Page 1060,

(ii) Muslim Inter College Vs. Asstt. Registrar, Firms Societies and Chits and Others; (2011) 29 LCD page 2256,

(iii) Mahendra Pratap Singh Vs. State of U.P. and Others; (2011) 29 LCD page 2232,

(iv) C/M Jamiatul Ghausia Arabic College Samiti Utraula and Another Vs. State of U.P, and Others; (2017) 35 LCD page 2080

5. Learned counsel for the respondent on the other hand submits that it is always open for the Deputy Registrar, to ascertain the facts, look into the elections claimed to be conducted earlier. He places reliance upon the paragraphs 11 to 14 of the judgment of this Court in case of C/M Dwarika Prasad Secondary School Vs. Deputy Director of Education, Azamgarh and Others reported in [(1998) 3 UPLBEC (1925)].

6. I have perused the aforesaid judgment. In the said judgment, in paragraph 12 and 13 the Court has stated :

"12. After having thoroughly scanned the various submissions of the learned counsel for the parties and the law on the point, I find that it is not a case in which the Assistant Registrar, while passing order under Section 4 of the Societies Registration Act usurped the power of Prescribed Authority as contemplated under Section 25 of the said Act. At this stage, it would be proper to make a reference to a recent decision of a Division Bench of this Court in Shiksha Prasar Samiti. Allahabad and another v. Registrar Societies Chits, and Firms, U.P. Lucknow and others (1998) 1 UPLBEC 339 in which it was observed that in a case in which both the sides are seeking renewal of registration of the same society, they cannot be said to be aggrieved party, if the renewal of the registration is granted by the authority concerned. The renewal is of the registration of the society and it is for the benefit of all the members and office-bearers of the society. There may be a situation that two rival factions of the same society may apply for renewal separately and the renewal may be granted at the instance of one of them but the ultimate beneficiary shall be the society as a whole and not the individuals alone seeking renewal. In such a situation, after renewal of the registration of the society, the dispute about renewal must be taken to have come to an end. A stranger cannot and should not be allowed to claim renewal of registration of society.

13. The object and scope of the provisions of Section 4 and 25 of the Societies Registration Act are quite separate and distinct. The Assistant Registrar, without going into the question of validity or otherwise of the elections, can look into the matter as to who is the person competent to file necessary documents as required by Section 4 of the Societies Registration Act. In Kranti Kumar Chaturvedi and others v. District Inspector of Schools, Kanpur and others 1995 (3) ESC 166 (AID. a Division Bench of this Court has clearly ruled that Section 25 of the Societies Registration Act would be attracted if 'there is dispute between two rival parties each of whom is claiming to be validly elected body' and that the Section ' is also attracted when a party challenges the legality or otherwise of the election of particular act of office bearers of the society on the grounds enumerated in Section 25 of the said Act'.

In another case Shambhu Kumar Tripathi v. Asstt. Registrar Firms, Societies and Chits, AIR 1994 (All) 209. It was observed as follows:-

".... It is evidennt from Section 3A that renewal of the certificate of registration of a society is within that exclusive jurisdiction/domain of the Registrar which term includes Assistant Registrar. Firms, Chits and Societies. The power to renew a certificate of registration being expressly and exclusively conferred upon the Registrar, the Registrar would be deemed to possess all incidental and ancillary powers as may be considered necessary for an effective exercise of the power under Section 3A of the Act.""

7. Both the aforesaid paragraphs clearly distinguishes the power vested in the Deputy Registrar under Section 4 and the power vested in the prescribed authority under Section 25 of the Societies Registration Act. No doubt the Deputy Registrar has sufficient power to look into the documents and their validity, for the purpose of registration under Section 4 but definitely he cannot usurp power of the prescribed authority given to under section 25(1) of the Societies Registration Act. The moment Deputy Registrar finds that he is required to enter upon the dispute of an election, he is bound to refer the dispute to the prescribed authority. To the extent he decides any application with regard to Section 4 of the Societies Registration Act there is no restriction on his power to look upon the genuineness of the document but while deciding the genuineness of a document he cannot look into the manner and the procedure of an election. Since there was no dispute between the parties with regard to elections held on 10.10.2010 the Deputy Registrar could not have used his power upon the said issue. At least no finding could have been given with regard to the election of 10.10.2010 till a notice with regard to its correctness was given by the Deputy Registrar to the parties concerned, as between the parties election dated 10.10.2010 was never a issue. Whenever an authority finds that an issue is required to be decided, which the parties are not raising before it, it is required to fulfill the necessary requirement of natural justice by framing an issue on the same and thereafter giving them an opportunity to file their evidence and make submissions on the same. In the present case, since both the parties were admitting the validity of the election dated 10.10.2010, in case the Deputy Registrar wanted to look into the validity of the said election, the first thing required by him was to frame an issue on the same and require the parties to file their evidence and make their submissions. The said procedure is not followed by the Deputy Registrar and, therefore, the impugned order to the extent is bad. Therefore, all the consequential findings based upon the finding of the election dated 10.10.2010 also cannot stand. Further, the Deputy Registrar has given findings with regard to election dated 09.09.2015, that the proceedings held on different dates for conducting elections as well as elections were contrary to the bye-laws and, therefore, the said proceedings are bad and, thus, the election is also illegal. He has gone into the procedure of issuance of agenda and its service upon the members and found that the same is against bye-laws and, thus, proceedings are bad. Such is not the power of the Deputy Registrar while exercising power under Section 4 of the Societies Registration Act. All these issues, with regard to validity of the procedure of holding elections, can only be looked into by the prescribed authority under Section 25(1) of the Societies Registration Act.

8. Another judgment relied upon by the counsel for respondent is in case of A.P. Aboobaker Musaliar Vs. District Registrar and others reported in [(2004) 11 SCC 247].

The facts of the said case were entirely different. In the said case, in paragraph-1 the Supreme Court has specifically stated :-

"...........In so doing, the Division Bench has taken a view that in case where more than one list was filed of the members of the governing body, prima facie, the District Registrar could accept one list without adjudicating upon the dispute between the parties with regard to who was competent or which governing body was a validly constituted governing body and the final decision as to which is the validly constituted governing body could be left to the appropriate or competent authority to decide.........."

9. In the said case also, the Supreme Court has clearly held distinction between acceptance of list of members under Section 4 of the Societies Registration Act and the decision of the dispute between the parties with regard to election.

10. Looking into the aforesaid facts and circumstances of the case, I find that the Deputy Registrar has wrongly exercised his power in the present case and in the given facts he could only have referred the matter to the prescribed authority under Section 25(1) of the Societies Registration Act. Thus, order dated 11.01.2019 is set aside. Since, order dated 11.01.2019 is set aside, the consequential order dated 15.03.2019 also cannot stand and is set aside.

11. Both the writ petitions are allowed.

12. Consequences to follow.

Order Date :-14.08.2019.

Arti/-

(Vivek Chaudhary,J.)

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