Allahabad High Court
M/S Board Of Trustees Miftah-Ul-Uloom ... vs Registrar, Firms Societies And Chits, ... on 13 October, 2017
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED AFR Case :- WRIT - C No. - 34178 of 2017 Petitioner :- M/S Board Of Trustees Miftah-Ul-Uloom And 2 Others Respondent :- Registrar, Firms Societies And Chits, U.P. Lucknow & 3 Ors. Counsel for Petitioner :- Rahul Srivastava, Mr. Ashok Khare Counsel for Respondent :- C.S.C., Mohammad Hisham Qadeer, Umair Mahmood, Zainul Abdin Hon'ble Manoj Misra, J.
The present petition has been filed against an order dated 12.06.2017 passed by the Assistant Registrar, Firms, Societies & Chits, Moradabad Division, Moradabad (in short Assistant Registrar) by which the Assistant Registrar has disapproved the resolutions dated 06.10.2013, 20.04.2014 and 10.09.2015 allegedly passed by the general body of a Society named M/s. Board of Trustees Miftah-Ul-Uloom, Chandpur Bijnor, and, after declaring the management committee time barred, has directed holding of election under Section 25(2) of the Societies Registration Act, 1860 (in short the Act, 1860). Apart from above, a direction has also been issued to the Secretary of the time barred Committee, namely, Mohammad Rehan (the petitioner no.2), to supply a list of valid members of the general body of the Society to enable holding of election after its verification.
The facts giving rise to the present petition are as follows:-
M/s. Board of Trustees, Miftah-Ul-Uloom, Chandpur, Bijnor (in short the Society) is a society registered under the Act, 1860 which seemingly runs a Madarsa and has also established an Inter College. The last election of the office bearers of the Society, according to the own case of the petitioners, was held on 23.06.2011. According to the petitioners, the petitioner no.2 was elected as Secretary whereas the petitioner no.3 was elected as President. The election proceedings dated 23.06.2011 were forwarded to the Assistant Registrar for registration of list of office-bearers as well as for renewal of the Society. While the matter was pending with the Assistant Registrar, another election dated 21.12.2012 was set up by one Abdul Sami Siddiqui. The Assistant Registrar, vide order dated 27.05.2013, approved the election dated 23.06.2011 and registered the list of office-bearers which was submitted by the petitioners.
A review of the order dated 27.05.2013 was sought which was rejected by the Assistant Registrar by order dated 07.07.2013.
Assailing the orders dated 27.05.2013 and 07.07.2013, Writ C No. 39996 of 2013 was filed which was dismissed by order dated 29.07.2013 with liberty to the aggrieved party to raise its grievance before the Prescribed Authority, under Section 25(1) of the Act, 1860 in accordance with the procedure prescribed therein.
Against the order dated 29.07.2013 passed by the learned Single Judge in Writ C No. 39996 of 2013, Special Appeal No. 1439 of 2013 (in short Special Appeal) was filed before a Division Bench of this Court.
On 04.10.2013, in the Special Appeal, an interim order was passed. The operative portion of the interim order dated 04.10.2013 provided as follows:
"List this matter after six weeks.
On the facts, it is directed that till the next date of listing, operation of the order passed by learned Single Judge dated 29.07.2013 and the order passed by Assistant Registrar dated 27.05.2013 shall remain stayed and in respect to Madarsa Miftahul Uloom status quo be maintained by all concerned."
It is the case of the petitioners, which is also supported by a report obtained from the computer section of this Court, that Special Appeal No. 1439 of 2013 was listed on 29.11.2013 but the interim order dated 04.10.2013 was not extended. Photocopy of various orders passed in Special Appeal No. 1439 of 2013 have been supplied to demonstrate that on 15.05.2015 the Special Appeal was listed before a Division Bench of this Court and the case was passed over on an illness-slip sent by one of the counsels, and, thereafter, on 14.07.2015 the case was again listed whereupon the record of the case was directed to be placed before Hon'ble the Chief Justice for nomination of a Bench. Thereafter, on 20.08.2015, the Special Appeal was dismissed for want of prosecution and the interim order, if any, was discharged. Subsequently, a restoration application was filed, which was allowed by order dated 30.08.2016 whereby the order dated 20.08.2015 was recalled and by a separate order on the Special Appeal, the Special Appeal was dismissed as infructuous on the statement made that the term of the elected office-bearers was going to expire. While dismissing the Special Appeal, on 30.08.2016, the Court passed the following order:
"Heard learned counsel for the parties.
Learned counsel for the petitioner submits that the term of the elected office-bearers is going to expire.
Accordingly, the Special Appeal is dismissed as infructuous.
Interim order, if any, stands discharged."
The case of the petitioners is that on 24.09.2013, an agenda was circulated convening a meeting of the general body of the Society on 06.10.2013 and in pursuance thereof, on 06.10.2013, a meeting was held and a resolution was passed whereby membership of four members was terminated and they were removed from the general body of the Society. It is further the case of the petitioners that as the interim order passed in Special Appeal No. 1439 of 2013 was never extended, an agenda was circulated on 08.04.2014 convening a meeting on 20.04.2014 for filling up the vacancy caused by removal of the members. In pursuance of the said agenda, on 20.04.2014, a meeting was held and a resolution was passed inducting four members. Thereafter, upon dismissal of the Special Appeal, another meeting was convened on 10.09.2015 and a resolution was passed thereby approving amendment in the bye-laws of the Society whereby the term of the Committee of Management of the Society, which, earlier, was three years, was extended to five years.
The resolutions dated 06.10.2013; 20.04.2014; and 10.09.2015 were, thereafter, forwarded to the Assistant Registrar.
By order dated 01.10.2015, the Assistant Registrar registered the amendment made in the bye-laws of the Society and, thereafter, by his order dated 31.12.2015, the annual list of office-bearers of the Society was also registered and registration of the Society was renewed with effect from 10.10.2015 for a period of five years.
Thereafter, it appears a complaint was made to the Assistant Registrar to de-register the list of office bearers as well as the amendments in the bye-laws of the Society. One of the complainants, who is also a life member of the Society, is the respondent no.4.
It is the case of the petitioners that out of the many complainants, three were not even members of the Society. Yet, the Assistant Registrar took cognizance on the complaint and called for reply from the petitioners.
By the order impugned dated 12.06.2017, the Assistant Registrar proceeded to disapprove the resolutions dated 06.10.2013; 20.04.2014; and 10.09.2015 and, after declaring the Committee time barred, directed holding of election under Section 25(1) of the Act, 1860.
A perusal of Annexure No. 17 (at page 145 of the petition) would go to show that the Assistant Registrar while registering the papers as well as amendment in the bye-laws of the Society, vide his order dated 01.10.2015, had specifically observed that if it is found that any material fact has been suppressed or incorrect fact has been placed, then the order registering the amendments in the bye-laws of the Society would be rendered invalid and void.
The order impugned though notices various submissions advanced by the rival parties but proceeds to disapprove the resolutions dated 06.10.2013; 20.04.2014; and 10.09.2015 on the ground that since by order dated 04.10.2013 passed in Special Appeal this Court had specifically directed that status quo shall be maintained in respect of the Madarsa Miftah Ul Uloom (the Society), the meeting held on 06.10.2013 was in the teeth of the interim order passed by this Court and since the subsequent meeting dated 20.04.2014 was also held during the pendency of the aforesaid Special Appeal, which was dismissed for want of prosecution on 20.08.2015, the resolutions dated 06.10.2013 and 20.04.2014 which were passed during the pendency of the Special Appeal were liable to be disapproved; and as the resolution dated 10.09.2015 was an approval of the previous resolution, the same was also liable to be disapproved. The impugned order further proceeds to hold the Committee to have outlived its term. Accordingly, direction to hold election under Section 25(2) of the Act, 1860 was issued.
I have heard Sri Ashok Khare, learned senior counsel, assisted by Sri Rahul Srivastava, for the petitioners; learned Standing Counsel for the respondents 1, 2 and 3; and Sri M.A. Qadeer, learned senior counsel, assisted by Sri M.H. Qadeer, for the respondent no.4.
Sri Ashok Khare, learned counsel for the petitioners, assailed the impugned order on the following grounds: (a) that the impugned order proceeds on an assumption that the resolutions dated 06.10.2013 and 20.04.2014 were passed while the interim order was operating therefore those resolutions were invalid, but the said assumption is not legally sustainable because the interim order merges in the final order and when the final order dismisses the writ petition, the interim order stands nullified and, therefore, the cloud, if any, on the resolution dated 06.10.2013, blew away upon dismissal of the Special Appeal thereby reviving the resolution; (b) that there was no interim order in operation at the time when the resolutions dated 20.04.2014 and 10.09.2015 were passed inasmuch as the interim order was operative only till the next date of listing and from the record it is established that the case was listed on 29.11.2013 whereas the interim order was not extended, hence, the Assistant Registrar was not at all justified in annulling the resolutions dated 20.04.2014 and 10.09.2015; and (c) that the Assistant Registrar was not legally justified in holding the Committee to be time barred because though the last election of the Committee was held on 23.06.2011 but the same was accorded approval by the Assistant Registrar on 27.05.2013, therefore, the Committee would be deemed to have taken charge on 27.05.2013 and as such its term would be counted for a period of five years from that date and since from that date five years have not yet expired, there was no legal justification to direct holding of election under Section 25(2) of the Act, 1860.
In support of his submission that the interim order merges in the final order as also that a party cannot be allowed to retain the benefit earned from an interim order, upon dismissal of the petition, the learned counsel for the petitioners has placed reliance on decisions of the Apex Court in Kalabharati Advertising v. Hemant Vimalnath Narichania and others: (2010) 9 SCC 437; Committee of Management, Arya Nagar Inter College, Arya Nagar, Kanpur and another v. Sree Kumar Tiwary and another: (1997) 4 SCC 388; and Abhimanyoo Ram v. State of Uttar Pradesh and another: (2008) 17 SCC 73.
In support of the submission that the interim order passed for a limited period cannot continue to operate, if not extended, learned counsel for the petitioners has placed reliance on a decision of the Apex Court in Ashok Kumar and another v. State of Haryana and another: AIR 2007 SC 1411 wherein the apex court had observed that there is no warrant for the proposition that unless an order of stay passed once even for the limited period is vacated by an express order or otherwise the same would continue to operate.
In support of the submission that the term of the Committee is to be counted from the date the Committee assumes charge, the learned counsel for the petitioners has placed reliance on a Division Bench decision of this Court in Committee of Management, Jangali Baba Intermediate College, Garwar, District Ballia and another v. Deputy Director of Education, Vth Region, Varanasi and others: (1991) 2 UPLBEC 1183.
Per contra, Sri M.A. Qadeer, who has appeared on behalf of the fourth respondent, submitted that the resolution dated 06.10.2013 had allegedly terminated membership of four members of the general body of the Society. Admittedly, this resolution was passed when there was an interim order operating in Special Appeal No. 1439 of 2013 which had specifically directed that status quo shall be maintained in respect of Madarsa, Miftah-Ul-Uloom by all concerned. Meaning thereby that even the members of the general body of the Society were injuncted from altering the status quo. Under the circumstances, holding of a meeting to remove the members from the general body amounted to breach of status quo and as such was a void act. He further submitted that the interim order dated 04.10.2013 was passed in the presence of the petitioners counsel and, therefore, they were fully aware of the interim order. Hence, the resolution was in complete disregard of the order of this Court and as such no approval could be accorded to such a resolution. The subsequent dismissal of the Special Appeal would not revive a void act. Accordingly, the Assistant Registrar was justified in discarding the resolution dated 06.10.2013. He submitted that in so far as resolutions dated 20.04.2014 and 10.09.2015 are concerned, they would automatically fall to the ground if the resolution dated 06.10.2013 is declared void because the resolution dated 20.04.2014 seeks to fill up the vacancy caused in the general body consequent to removal of four members vide previous resolution dated 06.10.2013. It has also been submitted that, otherwise also, the subsequent resolution was without participation of the members who were illegally removed by the previous resolution and as such it was void. Likewise, he submitted, the resolution dated 10.09.2015 also cannot be approved because it gathers support from the newly inducted members and, otherwise also, it is vitiated by non-participation of earlier members, who were illegally removed on 06.10.2013. It is thus his case that if the resolution dated 06.10.2013 is invalid then the subsequent resolutions dated 20.04.2014 and 10.09.2015 would automatically be rendered invalid.
In reply to the submission made on behalf of the petitioners that the Committee had not become time barred because the Committee took over charge on 27.05.2013, Sri M.A. Qadeer submitted that there is no specific plea in the writ petition to demonstrate as to how the Committee was prevented from taking over charge of the affairs of the Society after its election. He submitted that the order of the Assistant Registrar only recognizes the state of affairs, and it does not amount to handing over charge of the Committee and as such the term of the Committee would be counted from the date of its election and not from the date of its recognition by the Assistant Registrar. Hence, the Assistant Registrar was well within his authority in directing election under Section 25(2) of the Act, 1860. It was also submitted that even if it is assumed that the term of the Committee was extended to five years, then too, the term would expire in the month of June, 2016 and as such the Assistant Registrar was, in any case, justified in directing holding of election under Section 25(2) of the Act.
In respect of the submission made on behalf of the petitioners that the interim order stood expired with the listing of the case, particularly in absence of any specific order of extension of stay, Sri M.A. Qadeer placed reliance on a few Single Judge decisions of this Court wherein it has been observed that the words "till the next date of listing" are to be interpreted in a reasonable manner and not in a manner which may lead to absurdity or confusion. It was held therein that the words "till the next date of listing" are to be interpreted in such a manner that the said order continues till any subsequent order is passed by the Court. It has thus been submitted by him that by necessary implication the interim order continued to operate till the appeal was finally dismissed.
At this stage, it may be appropriate to observe that Sri Qadeer challenged the resolutions in question on several other grounds also but since the Assistant Registrar's order is not based on finding returned on those grounds therefore those submissions have not been noticed.
I have given thoughtful consideration to the rival submissions.
Having considered the rival submissions, following issues arise for consideration: (a) Whether in view of the interim order dated 04.10.2013 passed in Special Appeal No. 1439 of 2013 the resolution dated 06.10.2013 cannot be approved and, therefore, would be ineffective? If so, then, what would be its effect on subsequent resolutions dated 20.04.2014 and 10.09.2015?; and (b) Whether the term of the Committee would commence from 27.05.2013 i.e. the date of the order of the Assistant Registrar or from the date of its election?
Before proceeding to address the issue (a), it would be appropriate to examine the applicability of the decisions in the case of Himanshu Kumar Vidyarthi and others (supra); Abhimanyoo Ram (supra); and Kalabharati Advertising (supra) on the facts of the present case. The aforesaid judgments of the apex court relied upon by the learned counsel for the petitioners are based on the principle that no litigant can retain any benefit under an interim order in case the case is ultimately dismissed because the interim order merges in the final order and stands nullified automatically. The said principle is based on a Latin maxim Actus Curiae Neminem Gravabit, which means that the act of the Court shall prejudice no one. The basic underlying principle is that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralized by restoring the status quo ante.
Coming to the facts of the present case, the interim order dated 04.10.2013 passed in Special Appeal No. 1439 of 2013 did not confer any benefit on any party. It only directed that all concerned shall maintain status quo in respect of Madarsa, Miftah-Ul-Uloom, Chandpur, Bijnor. The said interim order was passed in the presence of counsel for both sides and therefore no party can claim ignorance of the interim order. The interim order not only touched the parties to the proceeding but directed all concerned, which means all those related to the Madarsa, to maintain status quo. When seen in the context of the present case, the interim order put restraint even on a member of the Society from altering the status quo. The interim order does not confer any advantage or gain to a party or person which he may have had to surrender consequent to the dismissal of the appeal or upon discharge of the interim order. It only put a restraint. Therefore, the judgments cited by the learned counsel for the petitioners, which run on the underlying principle that on dismissal of the petition or proceeding the benefit obtained under the interim order would have to be restored to bring the parties to their original position, would not apply to the facts of the present case.
A Society functions on democratic principle. It has a governing body, which performs executive functions, and there is a general body, which performs legislative functions. The main source of power vests in the general body which also in ordinary course elects the governing body. The general body acts through its resolutions. Black's Law Dictionary defines "resolution" as a main motion that formally expresses the sense, will, or action of a deliberative assembly. Advanced Law Lexicon by P. Ramanatha Aiyar, inter alia, provides that "a resolution is a procedural means available to the members of the Parliament or State Legislatures and the Ministers to raise a discussion in a House on a matter of public interest. It is a substantive motion. It is in the form of a declaration of opinion or a recommendation or in the form so as to record either approval or disapproval by the House of...". The underlying principle of a valid resolution is that it must be the expression of collective will of the resolving Body. It is for this purpose that an agenda of the meeting is circulated amongst all members to enable them to participate in the meeting. Invite to all members of the general body to participate in a meeting is essential to ensure that the resolution reflects the collective will. Collective will does not mean that resolution should be passed unanimously or that each member must be present at the time of voting. What it means is that it should be passed with opportunity to all members to deliberate on the issue. A member may, or may not, participate in a meeting that is his choice. But an invite must nevertheless be there for him to attend the meeting so that he has opportunity to deliberate on the issue.
In the instant case, there operated an injunction restraining all concerned with the society from altering the status quo. Accordingly, a law abiding member, despite invite, would not, and should not, have participated in a meeting which seeks to alter the status quo. Once that is the position, how can the resolution dated 06.10.2013 reflect the collective will of the general body.
At this stage, it would be apposite to refer to a decision in the case of Samee Khan v. Bindu Khan : (1998) 7 SCC 59 where the apex court had observed that even if the injunction order was subsequently set aside, the disobedience does not get erased. The apex court, in that case, was dealing with a proceeding under Order 39 Rule 2-A C.P.C. An injunction order was passed in the proceeding of the suit which was violated and therefore proceedings under Order 39 Rule 2-A C.P.C. were drawn. Subsequently, the injunction order was discharged and a plea was raised that on account of discharge of injunction, the proceeding under Order 39 Rule 2-A C.P.C. be dropped. The apex court took the view that if the injunction order was subsequently set aside, the disobedience does not get erased and hence the proceedings under Order 39 Rule 2-A C.P.C. were held to be maintainable. Similar view has been taken by the apex court in another case, namely, Tayabbhai M Bagasarwalla v. Hind Rubber Industries Pvt. Ltd. : (1997) 3 SCC 443.
Further, it is well settled that a contemnor should not be allowed to enjoy or retain the fruits of his contempt. On this principle, it would be apposite to notice the decision of the apex court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622, the relevant portion is extracted herein below:
"17. The principle that a contemner ought not to be permitted to enjoy and/or keep the fruits of his contempt is well settled. In Mohd. Idris v. Rustam Jehangir Babuji this Court held clearly that undergoing the punishment for contempt does not mean that the court is not entitled to give appropriate directions for remedying and rectifying the things done in violation of its orders. The petitioners therein had given an undertaking to the Bombay High Court. They acted in breach of it. A learned Single Judge held them guilty of contempt and imposed a sentence of one month's imprisonment. In addition thereto, the learned Single Judge made appropriate directions to remedy the breach of undertaking. It was contended before this Court that the learned Judge was not justified in giving the aforesaid directions in addition to punishing the petitioners for contempt of court. The argument was rejected holding that "the Single Judge was quite right in giving appropriate directions to close the breach (of undertaking)".
18. The above principle has been applied even in the case of violation of orders of injunction issued by civil courts. In Clarke v. Chadburn Sir Robert Megarry V-C observed:
"I need not cite authority for the proposition that it is of high importance that orders of the court should be obeyed. Wilful disobedience to an order of the court is punishable as a contempt of court, and I feel no doubt that such disobedience may properly be described as being illegal. If by such disobedience the persons enjoined claim that they have validly effected some charge in the rights and liabilities of others, I cannot see why it should be said that although they are liable to penalties for contempt of court for doing what they did, nevertheless those acts were validly done. Of course, if an act is done, it is not undone merely by pointing out that it was done in breach of the law. If a meeting is held in breach of an injunction, it cannot be said that the meeting has not been held. But the legal consequences of what has been done in breach of the law may plainly be very much affected by the illegality. It seems to me on principle that those who defy a prohibition ought not to be able to claim that the fruits of their defiance are good, and not tainted by the illegality that produced them."
19. To the same effect are the decisions of the Madras and Calcutta High Courts in Century Flour Mills Ltd. v. S. Suppiah and Sujit Pal v. Prabir Kumar Sun. In Century Flour Mills Ltd. it was held by a Full Bench of the Madras High Court that where an act is done in violation of an order of stay or injunction, it is the duty of the court, as a policy, to set the wrong right and not allow the perpetuation of the wrongdoing. The inherent power of the court, it was held, is not only available in such a case, but it is bound to exercise it to undo the wrong in the interest of justice. That was a case where a meeting was held contrary to an order of injunction. The Court refused to recognise that the holding of the meeting is a legal one. It put back the parties in the same position as they stood immediately prior to the service of the interim order."
In the decision of the apex court noticed herein above, decision of a Full Bench of the Madras High Court in the case of Century Flour Mills Ltd. v. S. Suppaih and others, AIR 1975 Madras 270 (FB) was noticed with approval. In that decision the Madras High Court had held that if a meeting was held in violation of the restraint order passed by the court then the court would refuse to recognize such a meeting.
For the reasons recorded above, this Court is of the firm view that the resolution dated 06.10.2013 was in the teeth of the injunction order passed by this Court and as such it cannot be accorded approval notwithstanding subsequent dismissal of the special appeal in which the injunction was granted. Moreover, the resolution cannot be taken as a collective will of the general body because the law abiding members would have had abstained from participating in the meeting to avoid defiance of the injunction order passed by this court. The Assistant Registrar was therefore justified in holding that the resolution dated 06.10.2013 being in the teeth of the injunction order was invalid.
Once, this Court comes to the conclusion that the resolution dated 06.10.2013 was invalid, the subsequent resolutions dated 20.04.2014 and 10.09.2015 cannot be said to be reflective of the collective will of the members of the general body inasmuch as they were without invite to the four members allegedly removed in the previous meeting dated 06.10.2013, which has been held to be invalid. More over, the resolution dated 20.04.2014 seeks to fill up the vacancy caused on account of removal of members vide invalid resolution dated 06.10.2013. Hence, if the resolution dated 06.10.2013 is invalid, the subsequent resolution dated 20.04.2014 cannot be sustained. Likewise, the subsequent resolution dated 10.09.2015 cannot be sustained because it is with participation of those members who were invalidly inducted and it is also vitiated by non-participation of those members who were illegally removed. As a result, the resolutions dated 20.04.2014 and 10.09.2015 have rightly been disapproved. The issue (a) is answered accordingly.
Having come to the conclusion that the resolutions dated 06.10.2013, 20.04.2014 and 10.09.2015 were invalid, the term of the committee would be only three years and as such the Assistant Registrar was justified in directing election under section 25 (2) of the Act, 1860. Even otherwise, the contention of the learned counsel for the petitioners that since the Assistant Registrar had registered the list of office-bearers returned in election dated 23.06.2011 on 27.05.2013, the term of the Committee would deem to commence from 27.05.2013 is not acceptable because there is no specific averment in the writ petition to demonstrate that there was any restraint put upon the Committee elected on 23.06.2011 from taking over charge of the affairs of the Society. Unless specifically demonstrated that the Committee had not been able to assume charge or that there is some provision under which the term commences upon happening of a specified event but that event did not occur, the term of the Committee would commence from the date of its election. Under the circumstances, since the Committee was admittedly elected on 23.06.2011, its term, which was three years, had expired by the date the Assistant Registrar decided the issue. It is for this reason that the Division Bench of this Court dismissed the Special Appeal No. 1439 of 2013 as infructuous. The issue (b) is decided accordingly.
In view of the conclusions drawn herein above, this Court finds no merit in the petition. The petition is dismissed. Interim order stands discharged. There is no order as to costs.
Order Date :- 13.10.2017 Sunil Kr Tiwari