Allahabad High Court
Banwari Lal Kanchal vs Dr. Bhartendu Agarwal & Ors. on 20 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1929, (2019) 12 ADJ 235 (ALL)
Author: Irshad Ali
Bench: Pankaj Kumar Jaiswal, Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 1 Reserved on : 30.9.2019 Delivered on : 20.11.2019 Case :- SPECIAL APPEAL No. - 372 of 2019 Appellant :- Banwari Lal Kanchal Respondent :- Dr. Bhartendu Agarwal & Ors. Counsel for Appellant :- Rajeiu Kumar Tripathi,Ambrish Singh Yadav Counsel for Respondent :- C.S.C.,Amit Jaiswal,Gaurav Mehrotra,L.P. Misra,Manu Dixit,Vijay Dixit,Vikas Vikram Singh AND Case :- SPECIAL APPEAL No. - 373 of 2019 Appellant :- Banwari Lal Kanchal Respondent :- Laxmi Narain Agarwal & Ors. Counsel for Appellant :- Ambrish Singh Yadav,Rajeiu Kumar Tripathi Counsel for Respondent :- C.S.C.,Amit Jaiswal,Gaurav Mehrotra,L.P. Misra,Manu Dixit,Vijay Dixit,Vikas Vikram Singh Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Irshad Ali,J.
As Per: Hon'ble Irshad Ali,J.
1: Heard Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Rajieu Kumar Tripathi, learned Advocate for the appellant, Sri Sandeep Dixit, learned Senior Advocate assisted by Sri Vijay Dixit, learned Advocate for the opposite party No.1, learned Standing Counsel for opposite party Nos.2 to 4, Sri Gaurav Mehrotra, learned Advocate for opposite party No.5, Sri Amit Jaiswal, learned Advocate for opposite party No.6, Sri Vikas Vikram Singh, learned Advocate for opposite party Nos.7 and 8 and Sri Manu Dixit, learned Advocate for opposite party No.9.
2: These two intra-court appeals have been filed under Chapter-VIII Rule 5 of the Allahabad High Court Rules, 1952, challenging the judgment and order dated 19.8.2019 passed by learned Single Judge in Writ Petition No.5413 (M/S) of 2015 and Writ Petition No.5783 (M/S) of 2015.
3: Factual matrix of the case is that there is a registered society registered on 29.12.1998 under the provisions of Societies Registration Act, 1860. The registration of the society was renewed from time to time and the last renewal was granted vide order dated 29.12.2013 for the period of 5 years i.e., up to 28.12.2018. The object of formation of the society is given under the memorandum of association. The object of the society is to promote practical oriented business management information and computer application, education, training, research and development consultancy etc. It has further been provided to promote and manage educational and vocational institutions, schools/colleges affiliated to any approved educational body/authority within Union of India besides other objects as mentioned in the Memorandum.
4: At the time of registration of the Society, the following were the members of the Executive Committee with whom the management of the affairs of the Society was entrusted:-
i) Mr. Laxmi Narain Agrawal, S/o Late R.S. Agrawal;
ii) Mr. Banwari Lal Kanchhal, S/o Late C.L. Agarwal;
iii) Mr. Nagendra Kumar Agarwal, S/o Shri P.L Agarwal;
iv) Smt. Pooja Agarwal, W/o Shri Pankaj Agarwal;
v) Prof. (Dr.) S.P. Dixit, S/o Late B.V. Dixit;
vi) Dr. Bhartendu Agarwal, S/o Shri L.N. Agarwal; and
vii) Dr. Swati Agarwal, W/o Dr. B. Agarwal 5: Bye-laws of the Society prescribe three kinds of members i.e. (i) Founder Member; (ii) Life Member; and (iii) Honourary Member. Founder Member is Mr. Laxmi Narain Agrawal. He has been authorized to nominate any life-member as founder member, considering the contribution to the cause of the Society in the form of money, besides physical efforts.
6: All the seven members of the Society are also life members of the Society. The President of the Society has right to nominate any person or persons from time to time as honourary member of the Society and likewise to withdraw such nomination at any time.
7: Termination of membership from the Society can happen in the following eventualities:-
i) on resignation;
ii) on death;
iii) on expiry of the term:
iv) insanity or idiosyncrasy;
v) on conviction in any criminal offence, involving moral turpitude;
vi) bodily infirmity or immorality; and
vii) indiscipline.
8: The Society consists of two organs i.e. (i) general body; and, (ii) executive body. The general body consists of all members of the Society. The general body has to meet at-least once in a year. An extraordinary meeting of the general body can be called in case of emergency by the President or on a requisition of 1/3rd of the total members for a specific purpose. Three days notice is required to be given for calling a general body meeting and one day notice in case of extraordinary meeting of the general body. The quorum for calling meeting of the general body is 1/3rd of the total members of the general body of the Society. It is also provided that annual meeting of the Society will be held in the last week of April in every year. The powers and duties of the general body recognize it as the supreme body which will look after overall development of the institute/Society. It is empowered to elect members of the executive body and appoint chief election officer.
9: The executive body consists of all seven members of the Society. The executive body is required to meet at-least once in four months and extraordinary meeting can be called by President/Secretary or on requisition of 1/3rd members of the executive body with three days advance notice for normal meeting and in case of emergency meeting, the telephonic notice would be suffice. The quorum for meeting is 1/3rd of the total members. It is also provided that if a vacancy occurs during a particular year, the executive body is empowered to fill up such vacancy for the remaining period of the year. The powers and duties of the executive body include to manage the institution as per the objectives and regulations of the Society, to approve the terms and conditions of members of the Society. The initial term of the executive body is for ten years and it is provided that after that, elections would be held.
10: The office-bearers of the executive body are:- (i) President, (ii) Vice-President, (iii) Secretary, (iv) Treasurer, and, (v) Executive Members. The President is empowered to preside over the meetings of the general body and perform all functions on behalf of the executive body or the functions which may be delegated by the Society to him. The Secretary is empowered to have all such powers as conferred upon him by the Society in general meeting held under the general direction of the President and is required to perform all functions as are necessary for the management of the Society. Secretary is Chief Executive Officer of the Society. The Secretary is responsible for calling the meetings and various bodies as per the direction of the President of the Society. It is further provided that the constitution and regulation of the Society can be amended only on the decision taken by at-least 2/3rd majority of the total members of the Society and, if it is approved then the necessary amendment would be carried out in the bylaws/regulations of the Society. The accounts were to be operated under the signature of the President or the Secretary with Treasurer. The Secretary is legal representative of the Society in the Court of law. The Finance Committee, which manages the funds of the Society, consists of the President, Secretary and Treasurer of the Society.
11: The President, besides his own vote, has casting vote in case of equality of votes on a decision. It is further provided that any member of the executive body or the committee, who does not attend three consecutive meetings, his membership would stand withdrawn automatically unless there is any specific reason for the absence.
12: Last election of the executive body was held on 28.12.1998. Term of the executive body of the society is defined in the bye-laws as ten years and expired on 27.12.2008 and no fresh election could be held and office bearers of the Committee of Management continued to discharge their duties in the interest of the society without there being any dispute of any nature.
13: A general body meeting was held on 3.4.2009 and it was unanimously resolved for change of registered address of the society, which was presided over by Sri Laxmi Narain Agarwal and attended by Sri Bhartendu Agarwal.
14: The President of the society submitted resolution of the general body dated 3.4.2009 in the office of Deputy Registrar for registration in regard to the change of registered address of the society, which was registered on 21.5.2009.
15: Another meeting of the general body was held on 24.11.2012 under the Chairmanship of Sri Laxmi Narain Agarwal, wherein it was resolved to amend paragraph 11 of the resolution No.9 of the association of regulation/ bye-laws by a quorum of 2/3rd i.e., 8 out of 11 members of the general body.
16: Annual list of the general body of the society and office bearers of the society for the year 2009-10, 2010-11, 2011-12 and 2012-13 were submitted in the office of Deputy Registrar, duly signed by Sri Laxmi Narain Agarwal, Smt. Swati Agarwal (Member of Executive Committee), Smt. Pooja Agarwal (Treasurer) and Sri N.K. Agarwal (Secretary). An office bearers' audited balance sheet for preceding financial years of the society was also submitted along with the list referred hereinabove.
17: The proceeding was duly registered in the office of Deputy Registrar on 5.12.2012. After the death of one life member who was also the member of the Executive Committee namely Professor Dr. S.P. Dixit, the general body unanimously resolved to co-opt Mr. Pankaj Agarwal (Member of general body) as the member of Executive Body on 10.12.2013.
18: A meeting of the general body was held on 20.12.2013, which consisted of 11 members, wherein election of Executive Committee was carried out, wherein Sri Laxmi Narain Agarwal was elected as President, appellant as Vice President, Sri N.K. Agarwal as Secretary, Smt. Pooja Agarwal as Treasurer, Sri Pankaj Agarwal, Dr. Bhartendu Agarwal and Dr. Swati Agarwal were elected as members of the Executive Committee. The minutes of meeting held on 20.12.2013 was confirmed in the meeting of the Executive Body held on 23.12.2013.
19: An application for renewal of registration of the society along with the extract of the general body meeting dated 20.12.2013 and 23.12.2013 and annual list of general body along with Executive Body for the year 2013-14 were submitted in the office of Deputy Registrar.
20: The society was renewed for the period of 5 years from 29.12.2013 vide order dated 30.12.2013.
21: A general body meeting was convened, which was chaired by Sri Laxmi Narain Agarwal on 20.4.2015, wherein decision was taken for making amendment in the bye-laws and a unanimous resolution in this regard was passed.
22: In the meeting of the general body held on 1.5.2015, the resolution dated 20.4.2015 was affirmed and further resolved to raise the member of office bearers of the Executive Committee from 7 to 11 by co-opting Sri Piyush Agarwal and Smt. Sonali Agarwal as members of the Executive Committee.
23: The decision taken on 1.5.2015 by the general body was affirmed in the meeting of the general body held on 10.5.2015.
24: It is the case of the appellant that prior to submission of copy of resolution, list of Executive Body and list of members of general body in the office of Deputy Registrar, the President Sri Laxmi Narain Agarwal started mounting pressure upon office bearers to induct his other two sons namely Sri Neeraj Agarwal and Sri Navin Agarwal in the Executive Body.
25: Sri Laxmi Narain Agarwal issued an agenda notice on 11.5.2015 for convening a meeting of Executive Body on 14.5.2015 mentioning therein, induction of Sri Neeraj Agarwal and Sri Navin Agarwal as members of the Executive Body as one of the subjects of the proposed meeting.
26: Copy of the agenda was e-mailed by Dr. Bhartendu Agarwal from his own e-mail I.D. to the office bearers/ members of the general body.
27: Sri Laxmi Narain Agarwal deliberately did not sign the extract of the meeting dated 20.4.2015, 1.5.2015 and 10.5.2015, however, the same was submitted in the office of Deputy Registrar under the signature of the appellant, Secretary, Treasurer and Executive Committee Member Sri Pankaj Agarwal.
28: The meeting called upon by the President Sri Laxmi Narain Agarwal could not yield any result as per his wishes being detrimental to the interest of the society.
29: By exerting pressure upon the appellant, a letter of resignation from the post of Vice President of the society was obtained by Sri Laxmi Narain Agarwal on the pretext that if appellant resigns from the post of Vice President, the dispute amongst his family members will be resolved.
30: Sri Laxmi Narain Agarwal lodged a complaint on 19.5.2015 before the Deputy Registrar about the affairs of the Management of the society without disclosing the fact of resignation of the appellant.
31: The appellant was not aware of any such complaint and no notices were issued to him, however, upon notice to Secretary, Sri N.K. Agarwal, he submitted reply, to which, replication was submitted by the President Sri Laxmi Narain Agarwal, wherein also, no disclosure of resignation of the appellant was there.
32: Sri Laxmi Narain Agarwal submitted written argument before the Deputy Registrar and ambiguously mentioned resignation of the appellant Banwari Lal Kanchal.
33: When the appellant gathered that resignation letter from the post of Vice President of the institution has been tried to be misused then the appellant submitted an affidavit before the Deputy Registrar that he is Vice President since the date of inception of the society and he does not want to resign from the post and no cognizance be taken on the aforesaid letter as the same has been obtained under pressure and misrepresentation.
34: The Deputy Registrar passed an order on 27.7.2015, whereby he declared the Committee of Management to be time barred and issued a tentative list of general body members of the society mentioning the name of the appellant at serial No.2 and sought objection on the aforesaid list by mentioning therein the program of fresh election.
35: Corrigendum of the order dated 27.7.2015 was issued by the Deputy Registrar clarifying therein certain typographical errors.
36: Sri Laxmi Narain Agarwal filed Writ Petition No.4377 (M/S) of 2015 without impleading the appellant and without any resolution of the Executive Committee in regard to filing of the writ petition, which was finally disposed of with the direction to file detailed objection on the list of members issued by the Deputy Registrar with the direction to finalize the list of members of the general body within 10 days and thereafter, fresh election program be issued clarifying that the Court has not examined the merit of the controversy involved.
37: Sri Laxmi Narain Agarwal along with the copy of the order dated 30.7.2015 passed by this Court in above referred writ petition, submitted an objection, wherein under paragraph 16, he stated that the appellant-Banwari Lal Kanchal has resigned from life membership of the society on 18.5.2015, which has been accepted by the President. Sri N.K. Agarwal (Secretary) submitted detailed reply on 10.8.2015. Sri Laxmi Narain Agarwal filed rejoinder to the affidavits and objection filed by the appellant and other office bearers of the Executive Committee.
38: An application for summoning the copy of the resolution of the society pertaining to authorization of operation of bank account to Executive Member Dr. Bhartendu Agarwal and Dr. Swati Agarwal from ICICI Bank having account of Public School run by the society was made.
39: During the course of hearing before the Deputy Registrar, copy of the resignation letter dated 18.5.2015 was seen by certain members of the general body of the society and then for the first time, interpolation by handwriting was seen on the resignation letter. The Deputy Registrar granted 10 days' time to the parties to file documents in support of their claim.
40: The appellant after coming to know in regard to the manipulation and interpolation in the resignation letter, submitted affidavit on 26.8.2015 before the Deputy Registrar.
41: Sri Laxmi Narain Agarwal moved an application on 26.8.2015 for making financial arrangement till new managing committee is elected.
42: The Deputy Registrar, Firms, Societies and Chits, Lucknow passed an order on 10.9.2015, whereby he finalized the list of 10 members as well as notified the election schedule for holding the fresh election in exercise of power under Section 25 (2) of the Societies Registration Act, 1860.
43: Sri Laxmi Narain Agarwal filed Writ Petition No.5413 (M/S) of 2015, wherein on 17.9.2015, upon direction issued by this Court, the appellant was arrayed as opposite party No.5 in the array of parties.
44: In the writ petition, this Court was pleased to pass an order on 18.9.2015 that the election of the society shall be held on its schedule i.e., on 19.9.2015, subject to further orders in the writ petition, but the result shall not be declared. The election of the society was held at the office of Deputy Registrar under his supervision on 19.9.2015.
45: Dr. Bhartendu Agarwal also challenged part of the order dated 10.9.2015 passed by the Deputy Registrar in Writ Petition No.5783 (M/S) of 2015 on 21.9.2015 and the writ petition was connected along with Writ Petition No.5413 (M/S) of 2015.
46: Both the writ petitions have been decided by means of a common judgment dated 19.8.2019, whereby the order passed by the Deputy Registrar dated 10.9.2015 has been set aside and the writ petitions have been allowed with the direction that the Deputy Registrar shall call a meeting of the general body of the society of 5 members to induct 2 new members and then hold the election for electing the Committee of Management with the further direction that this exercise needs to be completed within a period of 1 month from the date of passing of the order with the order of restraining Mr. Pankaj Agarwal and Mr. Banwari Lal Kanchal from acting in any manner and participating in the affairs of the Committee of Management. It has further been directed that till the election takes place, after inducting 2 new members, the Deputy Registrar should ensure that the affairs of the Committee of Management are carried out properly.
47: Assailing the judgment passed by the learned Single Judge, submission of Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Rajieu Kumar Tripathi, learned counsel for the appellant is that an objection was made in regard to the maintainability of the writ petition on the ground that plea was based on disputed question of facts, thus, was left open for consideration of exchange of pleadings between the parties, but while deciding the issue, the learned Single Judge has not considered that the dispute of membership of the general body is a highly disputed question of fact, which cannot be gone into in the writ petition, being the matter of leading of evidence is amenable to the civil court.
48: Next submission of learned counsel for the appellant is that it is well established law that once the election process started, it is not amenable to the writ court to interfere with the election process. The election should come to its logical ends and the person aggrieved on any count in holding the election, has right to challenge the same by way of election petition or by filing civil suit before the civil court.
49: Learned counsel for the appellant placed reliance upon certain judgments, which are as under :-
(i) Committee of Management, Maharana Pratap Vidyalaya Prabandh Samiti Vs. State of U.P. & others; 2013 (10) ADJ 532 (DB)
(ii) Uttam Nishad Vs. State of U.P. & others; 2006 (6) AWC 6354
(iii) Fahim Ahmad Vs. State of U.P. & others
(iv) Basant Prasad Srivastava Vs. State of U.P. & others; AIR 1994 All. 112 50: Learned counsel for the appellant next submitted that Committee of Management does not get time barred/ defunct after expiry of its tenure. It is further submitted that the law is settled that till the Deputy Registrar does not exercises his power notifying his jurisdiction under Section 25 (2), holding the Committee of Management to be time barred, the Committee has right to continue to manage the affairs of the society. In support of his submission, reliance has been placed on the following judgments :-
(i) Committee of Management, Dadar Ashram Trust Society & others Vs. Mahatma Gandhi Kashi Vidyapeeth, Varanasi & others; 2017 (1) ADJ 1 (FB)
(ii) Vinod Kumar Varshney Vs. State of U.P. & others
(iii) Committee of Management, Vidyawati Higher Secondary School Vs. Assistant Registrar, Firms, Societies and Chits, Azamgarh; 2005 (1) AWC 927, 2005 (3) UPLBEC 2410
(iv) Committee of Management, AK College Vs. State of U.P. & others; 2000 (18) LCD 1258, 2000 (1) AWC 792 51: Learned counsel for the appellant next submitted that writ petition at the behest of individual member/ dispute of membership/ electoral college under Societies Registration Act is not maintainable. In support of submission advanced, reliance has been placed on certain judgments, which are as under :-
(i) Mahadeo Singh & others Vs. U.P. Jiladhikari/ Prescribed Authority & others; 2015 (3) AWC 2770
(ii) Ram Pyare Lal Vs. State of U.P. & others; 2015 (3) ADJ 577
(iii) Committee of Management, Triveni Sahai Inter College Vs. State of U.P. & others; 2008 (71) ALR 225, 2008 (6) AWC 5976 All
(iv) Ratan Kumar Solanki Vs. State of U.P. & others; 2010 (1) ADJ 262 (DB)
(v) Satya Narain Tripathi Vs. State of U.P.; 2008 (2) AWC 1320
(vi) Sita Ram Rai & others Vs. Additional Registrar, Firms, Societies & Chits; 2003 (5) AWC 4159
(vii) Committee of Management Kisan Shiksha Sadan, Banksahi, District-Basti & another Vs. Assistant Registrar, Firms, Societies & Chits, Gorakhpur region, Gorakhpur & another; 1995 (2) UPLBEC 1242 52: On the basis of submission advanced referred hereinabove, Sri Anoop Trivedi, learned Senior Advocate submitted that the learned Single Judge has not considered the judgment placed before him and submission advanced, thus, has committed manifest error of law in passing the impugned judgment, therefore, the judgment is liable to be set aside.
53: Learned counsel for the appellant further submitted that the learned Single Judge by placing reliance on the interim order dated 7.1.2016, which is tentative in nature, has proceeded to decide the writ petition, is not permissible in law. His submission is that after exchange of affidavits, the prima facie opinion in granting the interim order would not have been taken into consideration.
54: Sri Gaurav Mehrotra, learned Advocate for opposite party No.5 submitted that one member of the general body cannot maintain a writ petition, challenging the order directing holding of election of a Committee of Management of the society. He further submits that the judgment relied upon by the learned Single Judge is in favour of the appellant and by ignoring the subsequent paragraphs of the judgment, the learned Single Judge, has proceeded to pass the judgment, therefore, the judgment suffers from apparent illegality and is liable to be set aside.
55: In regard to exercise of power of the Committee of Management of the society, which continued even after expiry of its tenure, submission of Sri Gaurav Mehrotra, learned Advocate is that till the Deputy Registrar exercises his power to convene the meeting for holding the election of the office bearers of the Committee of Management of the society in exercise of power under Section 25 (2) and 25 (3), the Committee of Management has right to convene a meeting and hold a fresh election. He placed reliance upon a judgment in the case of Vinod Kumar Varshney Vs. State of U.P. & others (Civil Miscellaneous Writ Petition No.54357 of 2016).
56: On the other hand Sri Sandeep Dixit, learned Senior Advocate assisted by Sri Vijay Dixit, learned Advocate submitted that the Committee of Management was elected on 28.12.1998 and the term of the Committee of Management is 10 years, thus, the term of the Committee of Management expired on 27.12.2008, hence, the Committee of Management of the society became time barred, therefore, any nomination made by the President of a time barred managing body is invalid. He further submitted that the President has not nominated any person to be a member of the general body. In support of his submission, he placed reliance upon a judgment in the case of Committee of Management, Munshi Ramsukh Uchhattar Madhayamik Vidyalaya & another Vs. State of U.P. & others.
57: He next submitted that members of the general body of the society have to be inducted as per the provisions of the registered bye-laws of the society and Section 15 of the Societies Registration Act and by following the provisions of the bye-laws, it should be followed strictly and nothing can be added nor can be supplemented in the bye-laws. In support of his submission, he placed reliance upon the following judgments :-
(i) Om Prakash Singh & others Vs. State of U.P. & others; Writ Petition No.1932 (M/S) of 2015
(ii) Radhey Raman Mishra & others Vs. State of U.P. & others; Writ Petition No.3436 (M/S) of 2010
(iii) Committee of Management Church City Junior High School & another Vs. State of U.P. & others; 2013 (4) AWC 3727
(iv) Anand Swarop Agarwal Vs. State of U.P. & others; Writ-C No.55045 of 2011
(v) Rajendra Kumar Agarwal Vs. State of U.P. & others; Special Appeal No.861 of 2015 58: Sri Sandeep Dixit, learned Senior Advocate next submitted that the meeting of the general body of the society called by the Deputy Registrar, by issuing the election program is bad and contrary to the provisions of Section 25 (2) of the Societies Registration Act. He placed reliance upon a judgment in the case of Dayal Chand Jain Vs. Assistant Registrar, Firms, Societies & Chits and others; 2008 (6) ADJ 401.
59: He next submitted that the Deputy Registrar has been empowered by adding Section 4-B in the Societies Registration Act, 1860 to decide and finalize the list of general body members prior to holding of the election on the basis of document referred in Section 4-B. In support of his submission, he placed reliance upon a judgment in the case of Anjuman Farogh-E-Islam & others Vs. State of U.P. & others; 2014 (5) ADJ 673.
60: His next submission is that the meaning of resignation and when it takes effect was explained and it was held that if resignation is unilateral it takes effects upon communication of intention to resign. He placed reliance upon a judgment in the case of Moti Ram Vs. Param Dev & another; (1993) 2 SCC 725.
61: His next submission is that there cannot be any estoppel against law and any act performed against the provision of law is liable to be struck down. In support of his submission, he placed reliance upon the following judgments :-
(i) M/s Elson Machines Pvt. Ltd. Vs. Collector of Central Excise; 1989 Supp. (1) SCC 671
(ii) Jalandhar Improvement Trust Vs. Sampuran Singh; (1999) 3 SCC 494
(iii) Rajasthan State Industrial Development & Investment Corporation Vs. Subhash Sindhi Co-operative Housing Society Jaipur & others; (2013) 5 SCC 427 62: His last submission is that when number of valid members are reduced to the extent which are less and not sufficient to constitute Committee of Management, the court is not powerless to issue direction to enroll members. He placed reliance upon the following judgments :-
(i) Committee of Management Sarvodaya Post Graduate College Vs. State of U.P. & others; 2011 (29) LCD 272
(ii) Committee of Management Captain Shankar Dhwaj Audhyogik Vidyalay & another Vs. State of U.P. & others; Writ-C No.30476 of 2016
(iii) Committee of Management Captain Shankar Dhwaj Audhyogik Vidyalay & another Vs. State of U.P. & others; Special Appeal No.193 of 2017 63: Sri Sandeep Dixit, learned Senior Advocate made statement that he does not want to file counter affidavit to the affidavit filed in support of stay application.
64: In view of the above, his submission is that the learned Single Judge has not committed any error in law in passing the judgment. The judgment does not suffer from any infirmity or illegality, thus, his submission is that the special appeals are liable to be dismissed.
65: After having heard the rival contentions of learned counsel for the parties, we perused the judgments relied upon as well as the record placed along with the present special appeals.
66: On perusal of the controversy involved in the present special appeals, there are three questions to be considered by this Court, which are as follows :-
(i) Whether the election process commenced with the finalization of electoral college can be challenged in a writ jurisdiction under Article 226 of Constitution of India ?
(ii) Whether an individual member has locus to challenge the election process or the result thereof ?
(iii) Whether this Court in exercise of power under Article 226 of Constitution of India can examine the disputed question of facts in regard to induction of members of general body of the society or not ?
67: In regard to the issue of maintainability of writ petition after initiation of election proceeding and finalization of electoral college, the learned Single Judge considered the issue and has followed the finding returned by the learned Single Judge while passing an interim order on 7.1.2016.
68: Sri Anoop Trivedi, learned Senior Advocate by relying on certain judgments submitted that the interim order dated 7.1.2016 was tentative in nature and the finding was returned on prima facie satisfaction. Thereafter, the appellant/ respondent brought on record the minutes of meeting bearing signature of the members inducted, list of office bearers, list of members of the general body inasmuch as the cash book. These documents also bear signature of the President, Secretary and other members of the Committee of Management of the society. The learned Single Judge while passing the judgment, has nowhere considered all these documents.
69: In regard to the submission advanced by learned counsel for the appellant that vide impugned order in the writ petition, the Deputy Registrar in exercise of power under Section 25 (2), decided the dispute regarding membership of the general body and notified the final list of general list of general body for the purpose of election, thus, the writ petition under Article 226 of Constitution of India to interfere in the selection process is not maintainable in the light of the judgment relied upon, which are as under :-
(i) Committee of Management, Maharana Pratap Vidyalaya Prabandh Samiti (Supra). Relevant paragraph Nos.7, 9 and 10 :-
7. In the matter of elections the Supreme Court and this Court have consistently taken a view that the Courts should not interfere in the process of elections once the elections have been notified, as the adjudicating authority cannot conclusively decide any dispute in the middle of the process of election nor the fundamental rights of any of the parties are affected as elections have always been held to be statutory right. The parties can always be relegated to the forums of adjudication and election tribunals after the results of the elections are declared.
9. In order to avoid a large number of writ petitions filed for quashing the order passed by the educational authorities during the process of elections and in seeking directions to them, we hereby declare that the principles of law laid down by the Supreme Court in N.P. Ponnuswami v. Returning Officer, AIR 1952 SC 64; Harcharan Singh V. Mohinder Singh and others, AIR 1968 SC 1500; Mohinder Singh Gill and another v. The Chief Election Commissioner, AIR 1978 SC 851; Jyoti Basu and others v. Debi Ghosal and others, AIR 1982 SC 983; Harikrishna Lal v. Babu Lal Marandi, (2003) 8 SCC 613 and Shyamdeo Pd. Singh v. Naval Kishore Yadav, (2000) 8 SCC 46, restraining the Courts from interfering in the process of election after the elections are notified is equally applicable to the elections of the office bearers of the committee of management of the societies as well as the Committee of Management to be elected in accordance with the provisions of the scheme of administration of the educational institutions. The principles of law that the Courts should keep their hand off in electoral matters and that all election disputes must be tried by the Election Tribunal, is also incorporated in the Constitution of India under Article 329 (b) for the elections of the Parliament or to the house or either house of the legislature, under Article 243 O for the elections of Panchayats and Article 243 ZG in the matter of elections of the municipalities.
10. There is no reason as to why these time tested and settled principles should not be made applicable to the elections of the office bearers of the societies and for the Committee of Management under the scheme of administration of the educational institutions."
(ii) Uttam Nishad (Supra). Relevant paragraph Nos.18, 19 and 20 :-
"18. The writ petition has been filed on factual grounds and is not maintainable as such. I am supported in my view by a recent judgment of the Hon'ble Supreme Court in 2006 (109) FLR 223 Himmat Singh v. State of Haryana and Ors. In paragraph 11 of the aforesaid judgment the Hon'ble Supreme Court has held that only question of law can be raised and not statement of fact and it was further held that "whether statements of the appellants or the respondents were correct or not could not ordinarily be decided in a writ jurisdiction. It is well known that in writ petition ordinarily such a disputed question of fact could not be entertained. The High Court arrived at finding of fact on the basis of affidavit evidence.
19. This Court is not inclined to interfere in the writ petition in exercise of powers under Article 226 of the Constitution. The petitioner has an alternative remedy before the Civil Court.
20. For the reasons stated above, without entering in disputed questions of facts, the petition is dismissed on the ground of alternative remedy."
(iii) Basant Prasad Srivastava (Supra). Relevant paragraph No.7 :-
"7. In our opinion the judgment of the learned single Judge does not suffer from any infirmity. The election process having started it must come to its logical conclusion. Once it has to its logical conclusion by declaration of result of the election the aggrieved person may challenge the election by filing election petition or civil suit in accordance with law. In such a proceeding the election may not be set aside if the alleged illegality or irregularity has not materially affected the result of the election. Approach to Court at intermediate stages in the election is bound to result in an office either remaining vacant or being occupied by a person whose entitlement to hold the office has ceased. Neither is a happy situation. It is, therefore, desirable that the election process should end as early as possible and the declaration of result should not be deferred through repeated interim orders passed from time to time. In taking this view we have the support of authorities which may be immediately noticed."
70: We have examined the judgments relied upon by the learned counsel for the appellant in regard to the maintainability of writ petition of initiation of election process by finalizing the electoral college. The law is very much settled that the writ petition under Article 226 of the Constitution of India to interfere in the election process, ordinarily is not maintainable when there are disputed question of facts and the remedy is to avail civil suit after holding of election. We are with the full agreement that ordinarily election process should not be interfered with, but in the facts and circumstances of the present case, the learned Single Judge has recorded finding that the appellant-respondent has not been enrolled as member as the provision contained under the registered bye-laws laws of the society. If the members who have been permitted to participate in the election found their induction to be in utter disregard of the provisions contained under the registered bye-laws of the society and they are not able to establish their induction in consonance with the provisions of the bye-laws, it is always open to this Court in exercise of discretionary power under Article 226 of the Constitution of India to examine the issue of membership and holding of election on the basis of members who are not legally enrolled as members.
71: In view of the provisions contained under the registered bye-laws of the society and in absence of material to establish their induction as members, we are with the full agreement of the finding returned by the learned Single Judge in this regard. We further hold that the electoral college is the essence of an election. The Deputy Registrar without considering the provisions contained under the registered bye-laws of the society, has proceeded to hold four members to be valid members of the general body of the society, therefore, the finding returned in this regard is perverse in nature and contrary to the provisions contained under the registered bye-laws of the society. Once this Court, upon consideration of the point, came to conclusion that members who are going to participate in the forthcoming election are not legally enrolled members, it is open to this Court to interfere in the election process, if the finalization of members who have to participate in the election is found to be not in consonance with the provisions of the registered bye-laws of the society.
72: The learned Single Judge while passing the order placed reliance upon the judgment of Ratan Kumar Solanki Vs. State of U.P. & others; 2010 (1) ADJ 262 (DB).
73: Learned counsel for the appellant submitted that while placing reliance on one paragraph of the judgment in the case of Ratan Kumar Solanki (Supra), the learned Single Judge has ignored certain other paragraphs and submitted that an individual member cannot maintain the writ petition challenging the election process initiated in pursuance to an order passed by Deputy Registrar in exercise of power under Section 25 (2). He placed reliance upon paragraph Nos.21, 22, 23, 24 and 26, which are being quoted below :-
"21. In Committee of Management, Sn Kachcha Baba Inter College, Varanasi and Ors. Regional Committee, Pancham Mandal, Varanasi and Ors. 2007 (4) ESC 2000 (All) the wonder Single Judge (Non ble Tarun Agarwala, followed the decision of this Court in RR Rastogi (supra) and Bhagwan Kaushik (supra) to observe that an dalember has no locus standi to challenge the result of the election by filing ant petition but if he is aggrieved, the remedy lie by filing a civil suit seeking an are relied against the election and for this purpose, he also placed reliance on two Division Bench decisions in Committee of Management, Kisan Shiksha Sadan, Sonakshi, Basti and An Assistant Registran, Firms Societies and Chits, Gorakhpur (1995) 2 UPLBEC 1242and Special Appeal No. 194 of 2007 (Anjani Kumar Mishra State of UR and Ors) decided on 19.2.2007. The above judgment must also be read in the context and in the light of the discussion we already made in the above paragraphs Here also the Hon'ble Single Judge has not said that an individual member on never file a writ petition even if his Individual rights are affected but from the context of the case before his Lordship, we find that the individual member of the Society sought to challenge the election without showing any individual right affected of his own, and, in these circumstances, His Lordship observed that a single member has no locus standi. These observations have to be read with the further observation that he has a remedy of challenging election by filing a civil suit which was an alternative remedy, since it requires investigation into the facts also. The Decision relied upon by His Lordship, Committee of Management Kisan Shiksha Sadan, Banksai, Basti (supra) was for the purpose of alternative remedy. Under the Societies Registration Act, the alternative remedy is provided under Section 25 thereof, hence this Court rightly declined to exercise its jurisdiction under Article 226, Where the matter does not pertain to the election of Society, but to the dispute pertaining to Committee of Management of the College and the Court find that the matter involves investigation into the disputed questions of facts, the parties can be relegated to avail alternative remedy of filing civil suit but that does not mean that the individual can never file a writ petition under Article 226 even if his Individual rights are infringed. All the above decisions, therefore, have to be read in the context of the facts as were up for consideration before this Court.
22. At this stage, we may make it clear that in educational matters there are two types of disputes, one pertaining to the parent body and another pertaining to the Committee of Management entitled to manage the affairs of the College. Both these bodies are governed differently and are supervised by different authorities. In the matter of former, it is governed by the bye-laws of the Society and the provisions of the Societies Registration Act but in later case it is governed by the scheme of administration approved under the provision of 1921 Act and therein the authorities, who have been given certain powers to interfere at different level are the educational authorities like DO or DIE etc.
23. In Satya Narain Tripathi (supra) the question whether a member of the general body can challenge the election by filing a writ petition was considered by the Hon'ble Single Judge (Hon'ble Janardan Sahai, J.) and his Lordship held that participation either by contesting election or exercising right to franchise is not a fundamental right, but merely a common right originating from the statute or the rules and bye-laws of an association etc. A breach of such statutory rights or right under the rules and regulations can be redressed by the available remedy which the statute or bye-laws provide or by a civil suit where such remedy is not otherwise barred. Where the elections are held under statutory provision, the remedy of challenging the election, if provided under the statute, has to be availed as an alternative remedy which would ordinarily bar the maintainability of a writ petition. The infringement of a right under the bye-laws of the society would not make the writ petition maintainable under Article 226 but in such a case the incumbent would have to avail remedy either by filing a civil suit or under Section 25 of the Societies Registration Act. His Lordship also observed if there is a breach of a right of a person affecting his right to form an association, which is a fundamental right under Article 19(1)(c) of the Constitution, in that case or where there is breach of the statute, the writ petition may be maintainable subject to the Court exercising its discretion if an alternative remedy is available. The proposition, therefore, that an individual member cannot challenge an election in any circumstance is not correct. When a writ petition can be maintainable at the instance of an individual member of the general body of the society or the office bearers of the society or by the body itself is a different issue but when an election itself can be challenged is another aspect. Similarly whether a writ petition would be maintainable at the instance of an individual or the collectively and in what circumstances stands on different footing.
24. What is discernible from the above discussion is where the right of an individual is affected or infringed, and, he has no other effective remedy, if such rights of the individual concerned are borne out from the statute or the provision of bye-laws etc. having the flavour of statute, a writ petition at his instance may be maintainable subject to attracting the condition where the Court may decline to interfere namely availability of alternative remedy, delay, laches etc. but where a legal right of an individual is not directly affected, a writ petition exposing the cause of the collective body or other members of the collective body would not be maintainable at the instance of an individual who himself is not directly affected. We may add here that in a given case, if it is found that an election was held by an imposter and he is supported by DIOS or other educational authorities, such an action of DIOS as also the election can be challenged by the individual member since it cannot be said that he is not a person aggrieved but whether a writ petition at his instance would be maintainable or he can challenge the election by filing a civil suit es would be different aspect of the matter and has to be considered in each and every case considering the facts, relevant provision and other relevant aspects of the matter.
26. We again clarify that our observations are only confined for the purpose the present case to the preliminary objection raised on behalf of the respondents that the petitioner-appellant has no locus standi fe. he is not the person aggrieved. In respect to the wider issue as to when a writ petition can be entertained challenging the validity of an election is a different aspect of the matter and in this respect neither any objection has been raised by the respondents nor the arguments have been advanced, therefore, we are leaving this issue to be considered in some other case at appropriate time."
74: The other judgment under consideration is that whether an individual member of the general body of the society maintain the writ petition or not. The appellant-respondent submits that an individual member cannot maintain a writ petition challenging the election process and finalization of electoral college and in support of his submission, he placed reliance upon the following judgments, relevant paragraphs of the same are quoted as under :-
(i) Mahadeo Singh & others (Supra). Relevant paragraphs Nos.5, 6, 8, 10 :-
"5. Having heard the learned counsel for the parties and having perused the records, this Court finds that the finalisation of the electoral college has been made pursuant to the directions issued by this Court on 26.3.2012. The directions themselves came to be issued, upon this Court finding that no elections had been held in respect of the Society after 1986. The judgment dated 26.3.2012 further required the Registrar to hold the elections within two months from the date of finalization of the electoral college. Since the above process has already been set in motion in light of the directions issued by this Court, this Court is of the firm opinion that no circumstances warrant interference in these sort of matters under Article 226 of the Constitution of India and any interference at this stage would clearly derail the election process which has been set in motion and as has been noticed hereinabove in the facts of this case after more than decades.
6. The second ground on which this Court finds itself unable to entertain the writ petition is that the various contentions advanced by the learned counsel for the petitioner would clearly entail an enquiry into disputed questions of fact. This Court has time and again noted that such questions of facts arising out of and in course of election proceedings for constitution of Committees of Management of Societies/ Educational Institutions cannot be entertained.
8. This specie of disputes was again noticed by the court in Committee of Management Triveni Sahai Inter College Asafpur, Badaun State of U. P. and others, Laws (All) -2008-1-172 : 2008 (6) AWC 1976, wherein this Court held as under :-
"In the instant case, there is series of litigations. The parties have approached the High Court number of times earlier but the factual dispute remains alive and has to be settled by adjudication of findings of facts through civil court. I am supported in my view by judgment rendered in Uttam Nishad v State of U. P. and others, Civil Misc. Writ Petition No.20719 of 2006, wherein it has been held if the parties approach the High Court more than once, disputing election of Committee of Management or the college of the Society, it is a sure indication that litigation has deep roots in disputed facts and in the circumstances the matter should invariably be ordered to be decided in civil courts which can give findings of facts on basis of oral and documentary evidence which is not feasible in writ jurisdiction where courts are already burdened. If there is any grievance to either of the parties regarding election I am of the firm view that they have to approach the civil court and get the dispute settled by findings of facts there. It is not open to them to approach in the writ petition again and again under Article 226 of the Constitution without first getting the dispute settled finally through civil court."
10. The last aspect of the matter and of which this Court must necessarily take notice is with respect to the nature of power which is exercised by the Assistant Registrar or by the Educational Authorities while deciding issues of the electoral college and/or finalising the dispute with respect to rival claim set up during the election process. The Apex Court in A.P. Aboobaker Musaliar v. District Registrar (G), Kozhikode and others, 2004 (11) SCC 247, has held that the powers exercised by the District Registrar while finalising or accepting taken in a particular list as constituting the electoral college is only prima facie Kumbhi and not final. It does not prevent a person from establishing his claim before a competent court."
(ii) Ram Pyare Lal (Supra). Relevant paragraphs Nos.3, 4, 5, 9, 11 and 12:-
"3. However, firstly this Court necessarily needs to consider the preliminary objection raised by Sri Pandey. Sri Pandey, learned counsel appearing for the contesting respondents has submitted that the petitioner is a member of the General Body of the society whose name stands included in the list finalized by the Assistant Registrar. He submits that the petitioner would have no locus standi to challenge or assail the non-inclusion of 54 members. He submits that if there be any cause which may exist against the impugned order, the same would inhere only in those 54 members and not in the petitioner.
4. Learned counsel has further submitted that this Court has on more than one occasion held that the finalization of an electoral college and a challenge thereto, should not be entertained by this Court inasmuch as it would clearly derail the election process and in any view of the mater it is always open to an aggrieved person to challenge the elections as a whole after completion of the process.
5. In support of his above submission, Sri Pandey has relied upon the following judgments of this Court: (i) Ratan Kumar Solanki Vs. State of U.P. & Others 2010 (1) ADJ 262 (ii) Comm. Of Management Maharana Pratap Vidyalaya Vs. State of U.P. 2013 (10) ADJ 532; (iii) Uttam Nishad Vs. State of U.P 2006 (6) AWC 6354.
9. In the judgments referred to above this Court has taken the consistent view that an individual member does not have a right to assail the decision or action taken in respect of a society or association of which he was a member unless his rights personally get effected by the impugned action.
11. In light of the above position, this Court finds that in the facts of the present case, the instant writ petition does not espouse the rights of the petitioner individually. This petition admittedly seeks to espouse and canvass the interest of 54 members whose names have not been included in the Electoral List. The non-inclusion of these 54 members does not directly affect any legal right inhering in the petitioner. The Court must bear in mind the law succinctly summarised in Ratan Kumar Solanki (supra) where this Court held that where a writ petition has been preferred merely for espousing the cause of the collective body or other members of the collective body, by an individual member the same would not be maintainable
12. As noticed above, the name of the Petitioner already stands included in the electoral college. He is therefore not directly affected by the order impugned. In the opinion of the Court, therefore, the Petitioner clearly lacks the locus standi to maintain the writ petition."
(iii) Committee of Management, Triveni Sahai Inter College (Supra). Relevant paragraphs Nos.10, 12, 13 and 14 :-
10. In case the petitioner is aggrieved by the findings of fact recorded by the Joint Director of Education, he has an alternative efficacious remedy to get the findings of fact decided in a suit and not in a writ petition as has been held in MANU/SC/8065/2006 Himmat Singh v State of Haryana and Ors. in which it has been held that only question of law can be raised and not statement of fact and it was further held that "whether statements of the appellants or the respondents were correct or not could not ordinarily be decided in a writ jurisdiction. It is well known that in writ petition ordinarily such a disputed question of fact could not be entertained. The High Court arrived at finding of fact on the basis of affidavit evidence."
12. In case of questions of membership of Committee of Management under Section 25(1) of the Societies Registration Act, the only course open is by adjudication by Civil Court finally Whenever there is a whisper of dispute regarding the electoral college, the Committee of Management elections or election process which requires findings of facts by oral and documentary evidence, Civil Court is the only remedy and writ petition is not maintainable under Article 226 of the Constitution as has been also held by the Division Benches of this court InMANU/UP/0018/1994 : (1993) 2 UPLBEC 1333Basant Prasad Srivastava and Ors. v.State of U.P. and Ors. wherein it has been held that in case of educational institution where election/finalization of election process of Committee of Management is challenged by means of writ petition under Article 226 it would not be maintainable as the only remedy in such cases is by filing election petition or filing civil suit. Paragraph 4 of the aforesaid judgment is as under: The learned Single Judge has observed that it was well settled proposition of law that in proceeding under Article 226 of the Constitution Courts should not Interfere with election process and finalisation of list is not amenable to challenge in writ jurisdiction. It has also been observed that dispute regarding correctness of voters list is a highly disputed question of fact, which can be decided only by Civil Court. With these observations the learned Single Judge directed that the result of the be declared forthwith and further steps be taken in accordance with law.
13. I am also supported in my view by a recent judgment rendered by two Division Benches of this Court in Special Appeal No. 1078 of 2005 Munna Lal Singh and Anr. v. State of U.P. and Ors. And Special Appeal No. 1394 of 2004 Committee of Management v. Regional Joint Director of Education and Anr.
14. It is open to the petitioner to raise all the questions raised in the writ petition as well as their representation in the suit through Civil Court or by filing election petition. For the reasons stated above, without entering into disputed questions of facts the petition is dismissed on the ground of alternative remedy."
(iv) Satya Narain Tripathi (Supra). Relevant paragraphs Nos.12, 13 and 14 :-
12. The question whether any person was validly inducted or elected or continues as a member of the committee of management or whether the person who contests election to the post of Secretary is a member of the committee of management is an election dispute or a dispute relating to his induction as a member of the committee of management. The right of a person claiming to be a member of the committee of management is not a fundamental right. The petitioners do not have any fundamental right to contest the election of Secretary or to challenge the same. The petitioner Satya Narain Tripathi has challenged the candidature of Mahendra Nath Dubey on the ground that he cannot be included in the voters list which consists of members of the committee as he is not qualified to be a member under the bye laws. The bye laws of the society do not have statutory force. The right of a person to contest an election or to challenge it is not a fundamental right nor even a common law right but originates from the statute or from the rules and bye laws of an association. A breach of such a statutory right or right under the rules or bye laws can be redressed by availing the remedy which the statute or the bye laws or rules provide or by a civil court except where in the case of a civil suit unless the remedy of a suit is barred. Even where elections are held under statutory provisions the remedy of challenging the elections if provided under the statute has to be availed of as an alternative remedy which would ordinarily bar the maintainability of a writ petition.
13. In this case the induction of members of the committee of management and the election of Secretary is governed by the bye laws of the society. It is only where an election is set aside or an office bearer is held no longer entitled to continue in office or where the elections are not held within the time specified in the rules of the society that the Registrar can hold the elections under Section 25(2) of the Societies Registration Act. In this case the petitioner Satya Narian Tripathi has challenged the voters list which consists of member of the committee of management primarily on the ground of breach of bye law No. 5. What is being challenged in this case is the wrongful induction of certain persons as member of the committee of management, which constitutes the electoral college. The infringement of the bye laws in such a case would not be a ground to maintain a writ petition when the election or continuance in office of the office bearers can be questioned in the manner provided by the statute under Section 25 of the Societies Registration Act or by a civil suit. The proviso (C) to Section 25 (1) provides;
25. Provided that the election of an office-bearer shall be set aside where the prescribed authority is satisfied.
(c) that the result of the election in so far as it concerns such office-bearer has been materially affected by the improper acceptance of any nomination or by the improper reception, refusal or rejection of any vote or the reception of any vote, which is void or by any non-compliance with the provisions of any rules of the Society.
14. In neither of these petitions has any fundamental right or statutory right of the petitioners been breached. The petitioners have effective alternative remedy to challenge the election by a civil suit or under Section 25 of the Societies Registration Act. The writ petitions are therefore not maintainable. Moreover disputed questions of fact are involved in these petitions and a writ petition is not an appropriate remedy.
(vi) Sita Ram Rai & others (Supra). Relevant paragraph No. 18 :-
"18. The Assistant Registrar has not been given powers to decide the disputes arising out of the elections of the Society. These powers have been given to the presceibed authority authorized by State Government by notification published in official Gazette. It is only when there is a stalemate, or there are rival committees who have set up the elections after the expiry of the term of the outgoing Committee of management and these elections are not found to be valid and there is no provision in Bye-laws to hold elections after expiry of tenure of executive committee, reasonably inferred from the Bye-laws that the Registrar can step in and provide for elections. He, however, cannot decide on the validity of the members, who are entitled to vote. The election disputes, if any, including validity of members entitled to vote can only be decided under Section 25 91) by the prescribed authority, and that any person aggrieved thereafter has a right to approach civil court."
(vii) Committee of Management Kisan Shiksha Sadan, Banksahi, District-Basti & another (Supra). Relevant paragraph No.3 :-
"3. Having regard to the provisions of the Act, we see force in the submission of the learned Counsel for the Respondents. Section 4 of the Act provides that a list of members of the managing body of a Society shall be filed with the Registrar. That list is maintained by the Registrar for the purpose of performing his administrative functions as a Registrar Section 25 of the Act provides that whenever any doubt or dispute is raised regarding the election of members of a managing body of a Society, the Registrar may refer such doubt or dispute to the Prescribed Authority for his decision. But when one fourth members of the Society raise a doubt or dispute relating to the election of the members of managing body or Society, the matter automatically goes to the Prescribed Authority rity for decision and in such a case the Register does not come into the picture. In exercising this power whether to refer or not any doubt or dispute relating to the election of members of the managing body of a Society to the Prescribed Authority. the Registrar has to apply his mind to the facts of the case and take a decision. In taking such a decision, the Registrar will be quite justified to take into account all the relevant circumstances, as he has done in the present case. If an objection raised about the membership of a person. In our view, it is the duty of the Registrar, for his own administrative purpose, to enquire into whether the person concerned is a member of the Society or not. If the Registrar comes to the conclusion that such a person is not a member of the Society then he is under no obligation to refer the dispute or doubt relating to his election to the Prescribed Authority for decision In the present case, the Registrar has applied his mind to the facts of the case to find out whether the second appellant heroin or was not a member of the Shiksha Sadan. He found that he was not even a member of a Society It is a pure question of facts. If any person feels aggrieved by such a decision, the proper course open to him is to approach the Civil Court and seek appropriate relief. The Registrar is bound by the decision of the Civil Court and his decision will be subject to the decree passed by the Civil Court."
75: We have carefully examined the judgments relied upon by learned counsel for the parties and the provisions of the registered bye-laws of the society.
76: On perusal of the finding recorded, we are of the view that bye-law No.5.2 provides that there are 7 members, who are life members of the society. Bye-laws empowers the President to nominate honorary member of the general body of the society. Case of the appellant is that he is inducted as life member of the general body of the society, who are 4 in number.
77: On perusal of the registered bye-laws of the society, it is transpired that there is no provision in regard to the enrollment of life members or general members in the general body of the society nor there is prescribed fee for enrollment of members. The bye-law is also silent on the point of induction of life member of the general body of the society. The President of the Committee of Management has been empowered to nominate honorary member with the power to withdraw the nomination at any time. The learned Single Judge has recorded that the appellant-respondent could not produce the material in regard to his induction as member of the general body. He could not produce meeting of the general body or the Committee of Management resolving to enroll members of the general body of the society nor he could produce receipt of membership neither he is able to establish the date on which they were enrolled as a member of the general body of the society and came to the conclusion that under the impugned order, 10 valid members have been declared to be members to participate in the forthcoming election. Out of 10, 4 members have been disputed to be members of the general body of the society. The learned Single Judge, considering the controversy has recorded that had it been a case where the member ship of the General body was large and only one or two person come to the Court things would have been different but when there are only 7 members of the General body and one of them has died leaving behind 6 out of which one is said to have resigned the induction of as many as 4 members, their claim being based on no material except certain documents bearing their signature, the finding returned by the Deputy Registrar cannot be termed to be a correct finding.
78: It is admitted case of the parties that last undisputed election was held in the year 1998 and the term defined under the bye-laws is 10 years, which expired in the year 2008.
79: On perusal of the bye-laws, it is further established that the general body of the society has not been empowered to induct members of the general body of the society, therefore, the learned Single Judge, considering the entire aspect of the matter, maintained the writ petition by relying the judgment in the case of Ratan Kumar Solanki (Supra) as well as Prem Prakash & others Vs. State of U.P. & others passed in Special Appeal No.307 of 2015.
80: Even after exchange of affidavits, no material was placed by the appellant-respondent in regard to their induction as member as per the provision contained under registered bye-laws of the society, therefore, the submission advanced by Sri Anoop Trivedi, learned Senior Advocate that the learned Single Judge by relying the tentative finding on the basis of prima facie satisfaction has adopted while passing the final judgment. He submits that material placed along with the counter affidavit was not taken into consideration is not acceptable.
81: In the above referred paragraphs, this Court found that there are only 10 members who have been declared to be valid members of the general body of the society to participate in the election scheduled in pursuance to an order passed by the Deputy Registrar. Out of 10 members, 4 members who are disputed, could not establish their rights in terms of the provisions of the registered bye-laws of the society. They could not produce documentary evidence to establish their rights that under which proceeding, they were inducted as members of the general body, nor they could produce the receipt of membership, neither they are able to establish that on what date, they were inducted as members of the general body of the society. Only on the basis of secondary evidence, like certain documents bearing their signatures along with the office bearer of the Committee of Management and certain list of members placed before the Deputy Registrar, they are not able to establish induction of their membership, the Court has examined and found that they were not enrolled as per the registered bye-laws of the society and in case out of 10 members, 4 have been found to be not inducted members of the general body in accordance with the provisions of registered bye-laws of the society, the election, which was scheduled under the order passed by the Deputy Registrar in exercise of power under Section 25 (2) shall materially affect the election, therefore, the ratio of the judgment relied upon by the learned counsel for the appellant are not applicable to the facts and circumstances of the present case.
82: We have also examined the interim order passed by this Court on 7.1.2016 as well as judgment rendered by the learned Single Judge relying upon the interim order passed by the learned Single Judge and in terms of the provisions contained under the registered bye-laws of the society, we find that the finding returned on the membership cannot be termed to be disputed question of fact. It is always open to the court to examine that whether members who have been directed to participate in an election are the members inducted as per the provision of the registered bye-laws of the society or not. The learned Single Judge in the light of the terms and conditions provided under the registered bye-laws of the society have examined and found that four members are not duly inducted members of the general body of the society, thus, by recording cogent reasons and finding in this regard, has proceeded to hold that the order passed by the Deputy Registrar cannot be termed to be valid one and has set aside the order passed in exercise of power under Section 25 (2) of the Societies Registration Act. We are of the view that the finding returned by the learned Single Judge does not warrant interference and is just and valid.
83: We have perused the counter affidavit filed by the appellant in the writ petition, wherein no material whatsoever has been placed establishing the induction of his membership. Only on the basis of certain documents, which bear his signature on the documents, submitted before the Deputy Registrar as well as on the papers in regard to the bank operation, his membership cannot be termed to be in accordance with the registered bye-laws of the society. Under the bye-laws, full fledged procedure in regard to the nomination of honorary members has been prescribed and there is no provision for induction of life member under the registered bye-laws. The claim setup by the appellant is that there are secondary evidence to establish his rights as members of the general body and therefore, his submission is that the order passed by the Deputy Registrar holding them to be valid members of the general does not suffer from any infirmity or illegality.
84: Sri Pankaj Agarwal is claiming to be inducted as life member and the other members are claiming induction of their membership as ordinary or general members. They failed to establish the date of induction as members of the general body of the aforesaid category. On perusal of the order passed by the Deputy Registrar, it is evident that there is no recital that under which provision of the bye-laws, they were inducted as life member, ordinary member or general member of the general body of the society. On perusal of the bye-laws 5.2, it is clearly provided that there are 7 members, who are life members of the society since foundation of the society and the President has been empowered to nominate a person from time to time as honorary member with the power to withdraw the nomination at any time, which clearly demonstrates that honorary membership is at the discretion of the President. The appellant has failed to produce documentary evidence establishing their induction by the President as honorary member and there being no provision under the registered bye-laws of the society for induction of life member, their claim is not liable to be accepted.
85: In regard to the submission that there were secondary evidence bearing signature of the appellant-respondent, this Court records that in absence of material in regard to induction of members as per the provision of bye-laws of the society, mere signature bearing on certain documents cannot be taken into consideration while deciding the dispute of membership by the Deputy Registrar. He would have first examined the provisions contained under the bye-laws to come on the conclusion that four persons are validly enrolled members on deposit of requisite fee, if any, their membership have been approved in the general body meeting and there are sufficient material to establish their induction as members. Mere bearing signature on certain papers cannot be a ground to hold the appellant-respondent to be validly enrolled member of the general body of the society, therefore, the learned Single Judge, after due examination, has rightly recorded finding that the Deputy Registrar has committed manifest error of law in holding the four members to be valid members of the general body of the society, therefore, we are of the view that the judgment of the learned Single on that score does not suffer from any infirmity or illegality.
86: In regard to the submission of learned counsel for the appellant that the Committee of Management does not get time barred/ defunct after expiry of its tenure, he placed reliance upon certain judgments, which are as under :-
(i) Committee of Management, Dadar Ashram Trust Society & others (Supra). Relevant paragraph No.41, 46 and 47 :-
41. The direction issued to the Authorized Controller to hold election of Managing Committee of society, disregarding the power of Registrar under section 25(2) would not be proper for the following reasons:-
(i) It would amount to conferring jurisdiction upon Authorized Controller, which is not vested in it under the Act of 1973.
(ii) The jurisdiction conferred upon the Assistant Registrar, by virtue of Section 25(2) of the Act of 1860 shall stand by-passed.
46. In view of the discussions aforesaid, I am inclined to hold that no mandamus can be issued commanding the Authorized Controller/District Magistrate, appointed under section 58 of 1973 Act, to hold election of office bearers of a society registered under the Act of 1860, to the exclusion of jurisdiction conferred in Registrar by virtue of section 25(2) of the Act of 1860, and a direction can be issued under Article 226 of the Constitution of India, accordingly.
47. Since the determination of members, who are entitled to vote, is a sine qua non for holding a valid election, as such, without getting the issue of membership resolved in accordance with the Act of 1860, no direction can be issued to the Sub Divisional Magistrate for holding election. Even if a direction is issued to the authority constituted under the Act of 1860 to conduct elections, the issue of membership shall have to be resolved, taking aid of amended provision contained in section 4-B & 15 of the Act of 1860, subject to conclusive determination of the issue by a civil court.
(ii) Vinod Kumar Varshney (Supra). Relevant paragraphs are quoted below :-
"We are of the view that upon a conjoint reading of Section 25(2) and Section 25(3) of the Act, the power of the Committee of Management to convene a meeting for the purpose of holding an election gets eclipsed only when the Registrar has assumed jurisdiction and has taken steps to convene a meeting under Section 25(2) of the Act. We make it further clear that so long as an order for convening a meeting and for holding an election is not passed by the Registrar under Section 25(2) of the Act, the power to convene a meeting for the purpose of holding an election continues with the Committee of Management, even after the expiry of its terms unless it is specifically prohibited in the Rules of that society. In this regard, our view is fortified by a decision of a Full Bench of this Court in Committee of Management, Dadar Ashram Trust Society and others Vs. Mahatma Gandhi Kashi Vidyapeeth, Varanasi and others, 2017 (1) ADJ 1, wherein the Full Bench held:-
"As would be evident from a reading of sub-section (3), the power and jurisdiction of any other authority or person to call a meeting for the purpose of elections stands eclipsed only in a situation where a meeting has already been called by the Registrar under sub-section (2). In fact sub-section (3) recognises that a meeting for the purposes of elections may in fact be convened by any other authority or by any other person. The power of that other authority or person to convene such a meeting stands taken away only if the Registrar has assumed jurisdiction and steps under sub-section (2) to convene a meeting."
In the light of the aforesaid, the answer to question no.1 is, that the Committee of Management even after the expiry of its term can convene a meeting for the purpose of holding an election unless it is specifically barred under the Rules of its society. Such right continues till such time the Registrar passes an order under Section 25(2) of the Act after which no further meeting could be convened thereafter by the Committee of Management in view of sub-Section (3) of Section 25 of the Act.
In so far as the second question is concerned, we are of the opinion that the said question has been answered squarely by the Full Bench of this Court in Committee of Management, Dadar Ashram Trust Society (supra). The relevant portion is extracted hereunder:-
"In our considered view, the conclusion reached by the Division Bench is based upon the assumption that Section 25(2) is firstly of a mandatory character, and secondly that the same confers exclusive jurisdiction and authority on the Registrar alone. Here it becomes pertinent to note that the powers exercisable by the Registrar in terms of sub-section (2) by the very nature of the power conferred is apparently directory in nature. The power conferred on the Registrar becomes exercisable upon him being satisfied that an election of office bearers of a society has not been held within the time specified under its rules or bye laws. The provision then prescribes that upon such satisfaction being arrived at, the Registrar "may" call a meeting of the general body of such society for election of its office bearers. It becomes further relevant to note that all further actions that the Registrar takes from this point onwards has to be in accordance with the provisions of the rules of the society relating to meetings and elections. The very language of the provisions indicates that the power vested in the Registrar under sub-section (2) is directory and permissive. Sub-section (2) in our considered opinion, is neither couched in mandatory terms nor is it liable to be interpreted in a manner where we may be compelled to hold that the Registrar must necessarily convene a meeting of the general body of the society immediately upon the term of the erstwhile committee having come to an end or fresh elections having not been held. This we so hold in light of the fact that there may be varied circumstances in which elections of office bearers of a society may not come to be held within the time specified under its rules. It cannot be said that in all situations where elections of office bearers of the society have not been held, the same is attributable to a deliberate default on the part of the existing office bearers. A stark example is the present case itself where on account of the appointment of the Authorised Controller as far back as in 1988, the elected office bearers stood removed and were unable to hold any elections whatsoever. These and other similar situations may result in elections of office bearers not being held within the time specified under the rules of the society. It is in this sense that we have found the powers of the Registrar to be directory and permissive. On a thoughtful consideration of the nature of the power conferred, the circumstances in which it is liable to be exercised, it is apparent that sub section (2) confers a discretionary power upon the Registrar to convene a meeting of the general body of the society. Our conclusion on this aspect is further buttressed by the use of the word "may" in sub-section (2) insofar as the power of the Registrar to convene a meeting of the general body is concerned."
In view of the aforesaid, the answer to question no.2 is that the expression "may" is directory in nature and is not mandatory.
In the light of the aforesaid, our answer to question no.3 is, that the judgment in Committee of Management, Shiksha Prasar Samiti Dharai Mafi, District Sultanpur and others Vs. State of U.P. and others, 2012 (2) ADJ 263 (LB) and in Gyanodaya Association Sansaripur and another Vs. State of U.P. and others, 2015 (8) ADJ 155 (LB) does not lay down the correct law.
We hold that the decision of the learned Single Judge in Committee of Management, Vidyawati Higher Secondary School, Shahpur, Sarain, Azamgarh (supra) lays down the correct law and we approve the same. We further approve the decision of the learned Single Judge also in Prabandh Karini Samitee and another Vs. State of U.P. and others, 2007 (8) ADJ 147. We are also of the opinion that the decision of the Division Bench in Committee of Management, Adarsh Shiksha Niketan, Renukoot Vs. The Assistant Registrar, Firm, Societies and Chits, Varanasi and others, 2000 (2) UPLBEC 1600 stands impliedly overruled in view of the decision of the Full Bench in Committee of Management, Dadar Ashram Trust Society (supra).
The questions referred by the learned Single Judge are answered accordingly.
Registry is directed to place the papers of the case before the learned Single Judge for further orders."
(iii) Committee of Management, Vidyawati Higher Secondary School (Supra). Relevant paragraph No.7 and 8 :-
7. A bare reading of the aforesaid section would establish that the right to convene a meeting for the purposes of holding elections of the office bearers of the outgoing Committee of Management and after expiry of the term of the office bearers the society is lost only when the registrar passes order under Section 25 (2) of the Act for convening a meeting of the geenral body of the society for the purposes of holding fresh election of the Committee of Management. It is at that stage only that outgoing office bearers are debarred from convening any meeting for the said purpose.
8. In the facts of the present case it is admitted position that no such order was passed by the Registrar under Section 25 (2). Thus, the power to convene a meeting of General Body for holding fresh elections was not lost and there is no bar either in the bye-laws of the society or under the Societies Registration Act in holding of fresh elections by the outgoing office bearers. In such circumstances the elections which have been held on 2.3.2003, even after expiry of the term of the office bearers of the society, cannot be said to be illegal or invalid in any manner and the objections raised in that regard cannot be legally sustained."
(iv) Committee of Management, AK College (Supra). Relevant paragraph No.20 to 22, 26, 27, 29, 30, 32, 35, 39 to 41, 44, 46, 53 to 55 :-
"20. The State University Act or the Statutes or the Regulations framed thereunder do not contain as detailed procedure as in the Intermediate Education Act. There is no separate scheme of administration. Normally the college is governed by the rules of the Society. The governing body [Committee of Management) of a society is also the governing body (Committee of Management) of the college. The Societies Registration Act or the rules of the society govern the elections to its governing body (Committee of Management).
21. In the present case, we are dealing with the Agra University. The relevant provisions regarding Committee of Management are dealt in Statute 12.05' of the Agra University. It provides that the principal of the college shall be ex officio member of the Committee of Management, and twenty five per cent of members of management will be teachers of the college. It places restrictions that members of management will not be related to each other, and its constitution will not be changed without prior permission of the Vice-Chancellor. Rules of every society including the present one conform to these provisions. The addition of these ex officio members, or placing restrictions, does not mean that there are two different governing bodies (Committee of Management) : one for the society and another for the college, or there are separate elections. There is only one set of elections. The office bearers are one. The governing body (Committee of Management) of a society and the college (run by that society) is elected under the rules of the society. The effect of Statute 12.05 is only this that there are few other ex officio members. This difference, between an Intermediate College and a Degree College has material bearing so far as the term and other consequences relating to their Committees of Management are concerned.
22. In the present case, following facts are admitted :
(i) There is no separate scheme of administration for the A. K. College.
(ii) The Committee of Management of the A. K. Society and the A. K. College is the same.
(iii) The rules of the society conform to the Statute 12.05 of the Agra University.
The paragraph 1 of the writ petition asserts it and the contesting respondents have chosen not to file any counter-affidavit. It is on this basis that, there is a Committee of Management for both of them, rest of the points in this writ petition may be considered.
26. A common thread, in the decisions cited at the Bar (mentioned in the footnotes 1 and 2 at p. 799), is that the term of Committee of Management is governed by the Act and the rules that are applicable for the elections. I am not referring to the rulings in detail in this judgment ; they were relevant only to the extent or finding this thread. If we stitch the facts of this case with this thread then the provisions of the Societies Registration Act and the rules of the A. K. Societies should govern the term of its Committee of Management (the petitioner here). Let's consider when the term of the present Committee of Management started in accordance with the Societies Registration Act and the rules of the A. K. Society.
27. The rules of the A, K. Society (Annexure-1 to the writ petition) amongst the other provided the following :
(i) The categories of members,
(ii) Meeting to be called by them.
(iii) The general body of the A. K. Society to elect the Committee of Management,
(iv) The period of the Committee of Management to be 5 years.
29. The term of a Governing body (Committee of Management) of a society starts from the date when it gets charge of that society. In a society, if elections take place before expiry of period, then its Committee of Management may get charge of the society after the term of the earlier one is over or on the same day and in any other case on the same day. It varies from case to case. The Societies Registration Act governs the A. K. Society. The term of the petitioner is of five years. It should start from the day the petitioner took charge of the A. K. Society. Let's see on what date the petitioner got charge "f the A. K. Society.
30. There were admitted elections in the year 1980. Fresh elections were held In 1984 but were disputed and the Committee of Management was de-recognised by the Vice-Chancellor. It appears that some other elections were held but were disputed, The last approved elections were held on 4.9.1994 and the petitioner took charge of the A. K, Society on that date. There was no prohibition for the petitioner for not taking charge of the A. K. Society. The petitioner moved an application on 6.1.1995 for its recognition, it was recognised by the Vice-Chancellor on 24.4.1995. If the petitioner was given charge of the A. K. College on 6.5.1995, then it does not mean that the petitioner did not take charge of the A. K. Society on 4.9.1994. It took charge of the A. K. Society on the date of the election and its term under the Societies Registration Act and rules of the society is five years. It expired on 3.9.1999.
32. The term of the petitioner was 5 years. It began from 4.9.1994 and expired on 3.9.1999. This does not mean that after 3.9.1999, the petitioner has become defunct. The decisions cited by the contesting respondents (in footnote 2 at p. 799) to show that a Committee of Management cannot function after expiry of its period, are under the Intermediate Education Act. They turn upon the peculiar wordings of the scheme of administration that normally so provides. The scheme of administration under the Intermediate Education Act also provides for appointment of an administrator (Prabandh Sanchalak), one month after completion of the A.w.c. 51 term of a Committee of Management. This does not mean that the Committee of Management governing a society or a degree college under different provisions will also become defunct or an administrator can be appointed.
35. No provision has been brought to my notice for appointment of an authorised controller or Prabandh Sanchalak or for suspending a Committee of Management--in a society or a degree college--merely for the reason that the term of the Committee of Management has expired and no fresh elections are held. Still, should this interpretation be accepted that a Committee of Management becomes defunct after expiry of its term? Such an interpretation will lead to a vacuum. A society works through its Committee of Management. It will not be able to function and will become rudderless. Such interpretation will not only be impractical but unreasonable. A Committee of Management does not become defunct merely for the reason that its term has expired. The petitioner has not become defunct on 3.9.1999. It will continue till new Committee of Management takes charge of the A. K. Society. However, this does not mean that office bearers can continue indefinitely. I will come back to this aspect again (paragraphs 40, 45 to 47).
39. The Agra University had initially granted recognition to the petitioner on 6.8.1996. This was extended till 3.9.1999 on 24.10.1996. It is true that the petitioner did not immediately do any thing against the same. However, the petitioner filed an application for extension of the approval on 20.7.1999 before the end of expiry of its recognition. The Vice-Chancellor rejected it on the ground that the term of the petitioner has expired. This was irrelevant.
40. The Vice-Chancellor was unduly worried about holding of fresh elections. This is within the domain of the A. K. Society or the Societies Registration Act. This Act takes into account such exigencies and provides solutions for the same. If the elections are not held in time, then the Registrar may :
(i) Call a meeting for elections (Section 35 (2)) :
(ii) investigate the affairs of a society and give directions to a society for removing the defects ;
(iii) proceed for de-registration or dissolution on society's failure to remove the defects. (Section 24).
There is no material to assume that the Registrar will not perform its statutory duties.
41. The A. K. Society is still a registered society ; its registration is valid till 6.8.2001. The petitioner has not become defunct : it is entitled to function till new committee is elected or it is suspended under the law. The Vice-Chancellor did say that there was some dispute about the membership of the parent body, but no notice was given to the petitioner, despite such permission being granted in the earlier order of the High Court. There was no justification to reject the application of the petitioners for extension of its recognition. In the facts and circumstances of the case, the Vice-Chancellor ought to have extended its approval. This may be time bound but the rejection of the application was wrong.
44. The counsel for the contesting respondents has cited a decision in SBM v. Vice-Chancellor, to show that no opportunity need be given if there is no valid Committee of Management. This case is not applicable to the facts of the present case. In the present case, I have held that:
(i) The A. K. Society is still a registered society ;
(ii) The petitioner has not become defunct. It is still governing the A. K. College ;
(iii) The order of the Director is based upon the order of the Vice-Chancellor dated 2.9.1999 that was set aside on 13.9.1999 before the Director passed his order.
There was a Committee of Management and it was necessary for the Director to afford reasonable opportunity to the petitioner.
VIIth POINT : REGISTRAR SHOULD HOLD ELECTIONS
46. It is admitted case here that the last elections were held on 4.9.1994. The term of the Committee of Management is five years. It should have held fresh elections by 3.9.1999. Fresh elections have not been held so far. The facts that entitle a Registrar to call for election meeting are present. It is a fit case, where the Registrar or any other officer to whom the powers under Section 25 (2) are delegated should call for a meeting to hold elections in accordance with law.
53. The Vice-chancellor had wrongly rejected the application of the Committee of Management (the petitioner) for extension af recognition. The order of the Vice-Chancellor dated 16.11.1999 is quashed. He should reconsider it in accordance with law. The petitioner will be entitled to manage the college until the matter is reconsidered by the Vice-Chancellor. However, it will be open to State Government to proceed for appointment of an authorised controller in accordance with law.
54. The order of the Director dated 16.11.1999 and that of the DIOS dated 27.10. 1999 for single operation of the accounts is illegal and is quashed. The respondents will be at liberty to proceed for single operations of the accounts in accordance with law.
55. The term of the Committee of Management (the petitioner) of the A. K. Society has expired. It is a fit case, where the Registrar under the Societies Registration Act or the officer to whom the powers under Section 25 (2) are delegated should take suitable action for holding fresh election in accordance with law."
87: On careful consideration of judgments relied upon by the learned counsel for the parties. For determination of the question it is not necessary to state in detail the history of the litigation which has been narrated in above referred paragraphs.
88: Section 25 of the Act, 1860 deals with disputes regarding election of office bearers. Sub-section (1) of Section 25 may not be relevant for our purpose and, hence, without making further reference thereto, we would like to reproduce sub-sections (2) and (3) of Section 25 for better appreciation of the submissions advanced by learned counsel for the parties and for addressing the questions, more particularly the first question, that falls for our consideration:
"25. Disputes regarding election of office-bearers:(1).............
(2) Where by an order made under sub-section (1), an election is set aside or an office-bearer is held no longer entitled to continue in office or where the Registrar is satisfied that any election of office-bearers of a society has not been held within the time specified in the rules of that society, he may call meeting of the general body of such society for electing such office-bearer or office-bearers, and such meeting shall be presided over and be conducted by the Registrar or by any officer authorised by him in this behalf, and the provisions in the rules of the society relating to meetings and elections shall apply to such meeting and election with necessary modifications.
(3) Where a meeting is called by the Registrar under sub-section (2), no other meeting shall be called for the purpose of election by any other authority or by any person claiming to be an office-bearer of the society.
Explanation. - For the purposes of this section, the expression 'prescribed authority' means an officer or court authorised in this behalf by the State Government by notification published in the Official Gazette."
89: From bare reading of Sub-section (2) of Section 25 of the Act, 1860, it appears to us that there are three situations in which the Deputy Registrar is empowered to call a meeting of the general body of such society for electing such office-bearer or office-bearers, and such meeting shall be presided over and be conducted by the Registrar or by any officer authorised by him in this behalf, and the provisions in the rules of the society relating to meetings and elections shall apply to such meeting and election with necessary modifications.
90: The three situations which are contemplated by this provision are where (i) Where by an order made under sub-section (1), an election is set aside, (ii) where an office-bearer is held no longer entitled to continue in office, and (iii) where the Registrar is satisfied that any election of office-bearers of a society has not been held within the time specified in the rules of that society.
91: Admittedly in the present case, we are not concerned with the first two situations and according to the appellant, it is the third situation which is attracted and as a result thereof, it is only a Registrar, who may call meeting of the general body of such society for electing such office-bearer or office-bearers, and such meeting shall be presided over and be conducted by the Registrar or by any officer authorised by him and to hold the elections.
92: The Deputy Registrar exercised his power on the ground that the last election of the present society was held in the year 1998 and as per the bye-laws of the society, the term of the Committee of Management is 10 years and that expired in the year 2008. It has further been recorded that thereafter, no election was held to elect the validly elected Committee of Management, therefore, by holding that the tenure of the Committee of Management has expired in 2008, has proceeded to exercise his power under Section 25 (2) of the Act, 1860.
93: In regard to the finding recorded by the learned Single Judge that the Committee of Management upon expiry of term of 10 years became time barred automatically in 2008, we refer the judgments in the case of Vinod Kumar Varshney (Supra). The relevant paragraph of the same is quoted herein below :-
"Having given our thoughtful consideration in the matter and upon considering the language of Section 25(2) and 25(3) of the Act and upon a conjoint reading of Section 25(2) and 25(3) of the Act, it is apparently clear that the Registrar has the power and jurisdiction to call a meeting for the purpose of holding an election if he is satisfied that the election has not been held within the time specified in the rules of the society. However, Section 25(3) of the Act recognises that a meeting for the purpose of holding an election can be convened by any other authority or by any other person claiming to be an office bearer of the society, meaning thereby that if the term of the Committee of Management expires, the Committee of Management can still convene a meeting and hold an election unless an order is passed by the Registrar under Section 25(2) of the Act for holding an election.
We are of the view that upon a conjoint reading of Section 25(2) and Section 25(3) of the Act, the power of the Committee of Management to convene a meeting for the purpose of holding an election gets eclipsed only when the Registrar has assumed jurisdiction and has taken steps to convene a meeting under Section 25(2) of the Act. We make it further clear that so long as an order for convening a meeting and for holding an election is not passed by the Registrar under Section 25(2) of the Act, the power to convene a meeting for the purpose of holding an election continues with the Committee of Management, even after the expiry of its terms unless it is specifically prohibited in the Rules of that society. In this regard, our view is fortified by a decision of a Full Bench of this Court in Committee of Management, Dadar Ashram Trust Society and others Vs. Mahatma Gandhi Kashi Vidyapeeth, Varanasi and others, 2017 (1) ADJ 1, wherein the Full Bench held:-
"As would be evident from a reading of sub-section (3), the power and jurisdiction of any other authority or person to call a meeting for the purpose of elections stands eclipsed only in a situation where a meeting has already been called by the Registrar under sub-section (2). In fact sub-section (3) recognises that a meeting for the purposes of elections may in fact be convened by any other authority or by any other person. The power of that other authority or person to convene such a meeting stands taken away only if the Registrar has assumed jurisdiction and steps under sub-section (2) to convene a meeting."
In the light of the aforesaid, the answer to question no.1 is, that the Committee of Management even after the expiry of its term can convene a meeting for the purpose of holding an election unless it is specifically barred under the Rules of its society. Such right continues till such time the Registrar passes an order under Section 25(2) of the Act after which no further meeting could be convened thereafter by the Committee of Management in view of sub-Section (3) of Section 25 of the Act.
In so far as the second question is concerned, we are of the opinion that the said question has been answered squarely by the Full Bench of this Court in Committee of Management, Dadar Ashram Trust Society (supra). The relevant portion is extracted hereunder:-
"In our considered view, the conclusion reached by the Division Bench is based upon the assumption that Section 25(2) is firstly of a mandatory character, and secondly that the same confers exclusive jurisdiction and authority on the Registrar alone. Here it becomes pertinent to note that the powers exercisable by the Registrar in terms of sub-section (2) by the very nature of the power conferred is apparently directory in nature. The power conferred on the Registrar becomes exercisable upon him being satisfied that an election of office bearers of a society has not been held within the time specified under its rules or bye laws. The provision then prescribes that upon such satisfaction being arrived at, the Registrar "may" call a meeting of the general body of such society for election of its office bearers. It becomes further relevant to note that all further actions that the Registrar takes from this point onwards has to be in accordance with the provisions of the rules of the society relating to meetings and elections. The very language of the provisions indicates that the power vested in the Registrar under sub-section (2) is directory and permissive. Sub-section (2) in our considered opinion, is neither couched in mandatory terms nor is it liable to be interpreted in a manner where we may be compelled to hold that the Registrar must necessarily convene a meeting of the general body of the society immediately upon the term of the erstwhile committee having come to an end or fresh elections having not been held. This we so hold in light of the fact that there may be varied circumstances in which elections of office bearers of a society may not come to be held within the time specified under its rules. It cannot be said that in all situations where elections of office bearers of the society have not been held, the same is attributable to a deliberate default on the part of the existing office bearers. A stark example is the present case itself where on account of the appointment of the Authorised Controller as far back as in 1988, the elected office bearers stood removed and were unable to hold any elections whatsoever. These and other similar situations may result in elections of office bearers not being held within the time specified under the rules of the society. It is in this sense that we have found the powers of the Registrar to be directory and permissive. On a thoughtful consideration of the nature of the power conferred, the circumstances in which it is liable to be exercised, it is apparent that sub section (2) confers a discretionary power upon the Registrar to convene a meeting of the general body of the society. Our conclusion on this aspect is further buttressed by the use of the word "may" in sub-section (2) insofar as the power of the Registrar to convene a meeting of the general body is concerned."
In view of the aforesaid, the answer to question no.2 is that the expression "may" is directory in nature and is not mandatory.
In the light of the aforesaid, our answer to question no.3 is, that the judgment in Committee of Management, Shiksha Prasar Samiti Dharai Mafi, District Sultanpur and others Vs. State of U.P. and others, 2012 (2) ADJ 263 (LB) and in Gyanodaya Association Sansaripur and another Vs. State of U.P. and others, 2015 (8) ADJ 155 (LB) does not lay down the correct law.
We hold that the decision of the learned Single Judge in Committee of Management, Vidyawati Higher Secondary School, Shahpur, Sarain, Azamgarh (supra) lays down the correct law and we approve the same. We further approve the decision of the learned Single Judge also in Prabandh Karini Samitee and another Vs. State of U.P. and others, 2007 (8) ADJ 147. We are also of the opinion that the decision of the Division Bench in Committee of Management, Adarsh Shiksha Niketan, Renukoot Vs. The Assistant Registrar, Firm, Societies and Chits, Varanasi and others, 2000 (2) UPLBEC 1600 stands impliedly overruled in view of the decision of the Full Bench in Committee of Management, Dadar Ashram Trust Society (supra).
The questions referred by the learned Single Judge are answered accordingly.
Registry is directed to place the papers of the case before the learned Single Judge for further orders. "
94: Sri Sandeep Dixit, learned Senior Advocate has also placed reliance upon certain other judgments which are as under :-
(i) T.P. Singh, Senior Advocate Vs. Registrar/ Assistant Registrar, Firms, Societies & Chits, Teliyarganj & others; 2018 (11) ADJ 586. Relevant paragraph Nos.17, 19, 23 to 25, 53 to 55 are quoted below :-
"17. First question up for consideration before this Court is, "whether the objections raised by petitioner before Assistant Registrar are within the ambit of inquiry under Section 4-B of Act, 1860 or not".
19. Whether, Assistant Registrar can look into aforesaid issues and prayer made by petitioner before Assistant Registrar could have been addressed by him while exercising powers under Section 4-B of Act, 1860, is the moot question.
23. The reason for insertion of Section 4-B mentioned in "Statement of Objects and Reasons", of U.P. Act No. 23 of 2013 is that there is no provision of filing of list of General Body of Society and a large number of disputes in Societies are raised due to non existence of correct list of General Bodies with Registrar. In several cases an illegal person fraudulently produces before Registrar incorrect list of General Body of Society and claims to be the member and office bearer of such Society.
24. In order to avoid such situation it was decided to amend Act, 1860 for its application to State of U.P. and that is how Section 4-B came to be inserted in Act, 1860. List of members of General Body of Society has to be filed at the time of registration or renewal of Society. List must mention names, father's name, address and occupation of members. Registrar is under a statutory duty to examine correctness of list of members of General Body of such Society on the basis of register of members of General Body and minutes thereof, cash book, receipt book of membership fee and Bank pass book of Society. Apparently it shows that members included in the list, whether included correctly, has to be examined by Registrar. If a member is not included in list, whether such non inclusion also can be examined by Registrar is not very clear from Section 4-B(1) of Act, 1860 but this is made clear by sub-section (2) which says that if there is any change of list of members of General Body of Society referred to in sub-section (1) on account of induction, removal, registration or death of any member, a modified list of members of General Body shall be filed with Registrar within one month from the date of change.
25. A plain reading of above provision shows that at the time of registration or renewal, a list of members of General Body of Society has to be filed by Assistant Registrar. Thereafter whenever there is any change in said list, same has to be informed to Registrar by submitting a modified list of members of General Body. When such a modified list is submitted to Registrar, in our view, examination allowed to be made by Registrar in respect of correctness of list of members of General Body in sub-section (1) would also include removal of member(s) for the reason, when modified list is communicated to Registrar, whether modification is on account of induction or removal in any manner, both aspects and correctness thereof can be and must be examined by Registrar.
53. The discussion made by us and facts stated above show that Society in question, in the present case, held a meeting with agenda to consider letters of petitioner and thereupon read those letters as constituting a misconduct, justifying termination of membership and resolved to terminate membership of petitioner. This resulted in change in in the list of members of Society and hence was communicated to Assistant Registrar. Petitioner filed objection raising various issues including issue of membership of some other persons as well as some office bearers of Society. It may be noticed that a person, filing objection before Assistant Registrar, may raise a whole gamut of issues to Assistant Registrar which may be a combination of issues, some within jurisdiction of Assistant Registrar and some beyond but then the Registrar/ Assistant Registrar can always discern substantive issues which are within the scope of scrutiny and within his jurisdiction and can respond to those aspects. It is the substance and not the tenor of language or draft of letter by Objector, which has to be seen by Assistant Registrar/ Registrar who is a statutory authority supposed to look into the matter in exercise of statutory power conferred under Section 4-B of Act, 1860. It is true that Registrar/Assistant Registrar may not go into a detailed adjudication of a disputed question of fact like a Civil Court and remedy obviously would be available to the party concerned to take recourse to Civil Court but the mandate contained in the Statute regarding scrutiny, to the extent it is provided, has to be observed and discharged. Registrar/ Assistant Registrar is obliged to examine the question of correctness of alteration or change or modification in the list of members when an objection is taken. Cancellation /termination / removal of membership is a mode of alteration of list of General Body of Society. Section 4-B of Act, 1860 talks of correctness of list of members, which can be examined by Registrar/Assistant Registrar. Documents, which are supposed to be furnished to Registrar/Assistant Registrar are also specifically mentioned therein and from those documents whatever facts discern, may be seen to find out whether Society, in a bona fide manner has followed its own procedure laid down in Bye laws. For example, if abruptly a resolution is passed without there being any agenda on a particular issue and bye-laws require circulation of agenda to the members before meeting containing subject, it is apparent that action taken by Society is not in accordance with bye-laws and thus its decision would not be correct and can be interfered by Registrar/Assistant Registrar. Similarly, from documents relating to fee, if it is found that requisite fee has not been paid by a person inducted as member though deposit of fee is one of the conditions to become a member of Society, Registrar/Assistant Registrar can interfere and declare induction of such member to be illegal and declare resolution to this effect, bad in law. Similarly, if Society claims that fee has been deposited but from bank passbook, this claim is not found correct, Registrar/Assistant Registrar can again interfere. These are a few illustrations only. This interference includes declaration of resolution bad or illegal, and, mere fact that request has been made that resolution should be cancelled or be declared illegal, by itself, would not deprive Registrar/ Assistant Registrar from entering into scrutiny to the extent it is mandated by Section 4-B of Act, 1860 otherwise the very objective and purpose of insertion of Section 4-B of Act, 1860 would stand defeated.
54. The legislature intended to curtail litigation on account of frivolous induction or removal of members and alteration in the list of members of Society, being aware of the fact that remedy available in common law is time consuming and if disputes remain pending for long time, interest of Society in many cases suffer seriously. To give effect to the intention of legislature completely, Registrar/ Assistant Registrar is obliged to examine correctness of any inclusion, alteration, change etc. in the membership of Society particularly when an objection is raised. It must examine relevant record and find out the facts evident from record as to whether decision has been taken in accordance with procedure prescribed in bye-laws, bona fide and genuine.
55. In the present case, Assistant Registrar in observing that it has no authority to consider objection of petitioner that he has been removed from membership of General Body of Society without following procedure laid down in bye-laws, has failed to exercise statutory jurisdiction vested in it and, therefore, impugned order to this extent cannot be sustained."
(ii) Babu Verghese & others Vs. Bar Council of Kerala & others; (1999) 3 SCC 422. Relevant paragraph Nos.31 and 32 are quoted below :-
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor vs. Taylor (1875) 1 Ch.D 426 which was followed by Lord Roche in Nazir Ahmad vs. King Emperor 63 Indian Appeals 372 = AIR 1936 PC 253 who stated as under :
"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh & Anr. vs. State of Vindhya Pradesh 1954 SCR 1098 = AIR 1954 SC 322 and again in Deep Chand vs. State of Rajasthan 1962(1) SCR 662 = AIR 1961 SC 1527. These cases were considered by a Three-Judge Bench of this Court in State of Uttar Pradesh vs. Singhara Singh & Ors. AIR 1964 SC 358 = (1964) 1 SCWR 57 and the rule laid down in Nazir Ahmad's case (supra) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law.
Now, the BCI could act in the matter in three ways :
(a) It could convene its meeting by giving 14 days' notice to all its members under Rule 1 and pass a resolution extending the term of Kerala Bar Council.
(b) It could convene the meeting on a short notice under Rule 1 and pass the above resolution.
(c) It could act under Rule 6 by circulating the resolution to all its members and on obtaining the opinion of the majority, extend the term of the Kerala Bar Council subject to confirmation at the next meeting."
(iii) Zuari Cements Ltd. Vs. Regional Director, Employees State Insurance Corporation, Hyderabad & others; (2015) 7 SCC 690. Relevant paragraph Nos.14 and 15 are quoted below :-
"14. As per the scheme of the Act, appropriate government alone could grant or refuse exemption. When the statute prescribed the procedure for grant or refusal of exemption from the operation of the Act, it is to be done in that manner and not in any other manner. In State of Jharkhand and Others vs. Ambay Cements and Another, (2005) 1 SCC 368, it was held that "26. ......It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way".
15. In Babu Verghese and Others vs. Bar Council of Kerala and Others, (1999) 3 SCC 422, it was held as under:
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor, (45 LJCH 373) which was followed by Lord Roche in Nazir Ahmad v. King Emperor, (AIR 1936 PC 253) who stated as under:
"[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of V.P., (AIR 1954 SC 322 and again in Deep Chand v. State of Rajasthan (AIR 1961 SC 1527). These cases were considered by a three- Judge Bench of this Court in State of U.P. v. Singhara Singh (AIR 1964 SC
358) and the rule laid down in Nazir Ahmad case (AIR 1936 PC 253) was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law."
(iv) C/M Janta Inter College, Aligarh and another Vs. State of U.P. & others; 2017 (6) AWC 5558. Relevant paragraph Nos.31 to 37 are quoted below :-
"31. We also have no hesitation to record that every member of the general body and every office bearer of the Committee of Management which had been superseded has a right to see that the institution is run and managed in accordance with the statutory provisions applicable and if he finds that the Committee of Management, authorized controller or educational authorities are violating the statutory provisions with impunity then such a person can always approach this Court for ensuring that the Committee of Management, authorized controller and educational authorities act in conformity with the statutory provision while dealing with the institution and not otherwise.
32. A member of general body cannot be permitted to suffer at the hands of the Committee of Management or the authorized controller or the educational authorities for their inaction and thereby rendered a mere spectator in the mismanagement of the institution, which would ultimately result in the quality of education to be imparted in Institution itself being degraded.
33. Members of general body get themselves enrolled for the purpose of ensuring equal participation in the management and smooth running of institution. They are not mere spectators who are appointed only to watch the acts of Committee of Management or the authorized controller or the DIOS or the educational authorities.
34. Every member has right and obligation to ensure that the institutions are run and managed in accordance with the statutory provisions and not de horse the same. For example, if it is found that the Committee of Management of the institution in collusion with the DIOS is proceeding to sell the property of the institution or its assets or is involving itself in the mass-copying etc. a member can approach the writ court asking for appropriate action against the person guilty. Likewise, if a Prabhand Sanchalak appointed for holding fresh elections of the Committee of Management of an Institution fails to hold elections, an ordinary member would have the cause to approach the writ Court for asking the Prabhand Sanchalak to discharge the function for which he was appointed by the statutory authority.
35. It has to be kept in mind that the general body and the Committee of Management of a recognized Intermediate College is constituted under the Statutory provisions of Section of 16-A Act 1921 read with Section 16-CC and IIIrd Schedule thereunder. The enrolment of members to the general body also takes place as per the scheme of administration which needs to be approved by the Regional Joint Director of Education.
36. Therefore, the Committee of Management has a statutory background and the members of the general body can never be termed as stranger who have nothing to do with management of the Institution. The lawful members cannot be termed as rank outsider with no interest in the management of the Institution or to have no right to interfere if there is mismanagement of the Institution in violation of the Statutory provisions.
37. There cannot be any hard and fast rule that in no case a member of the general body, or a superseded office bearer cannot approach this court for relief under writ jurisdiction whatever the cause may be.
(v) Mehdi- Ul- Hasan Abadi & others Vs. State of U.P. & others; 2011 (3) ADJ 125. Relevant paragraph No.9 is quoted below :-
"9. However, normally when the election of office bearers is notified under Section 25, the Court says that after the election is over, the matter can be adjudicated in accordance with law. Though divergent opinions as to whether the election of office bearers can be equated with the general elections or not, is there but normally Courts of law become reluctant to interfere with any election after due notification of the election. But Section 4 contemplates a pre-existing dispute with regard to members of the society, which can not be equated with the dispute under Section 25 nor in the facts and circumstances it can be said to be a post-electional dispute of the office bearers"
(vi) Bhawandeen Yadav & others Vs. State of U.P. & others; Special Appeal No.176 of 2019. The relevant paragraphs are as under :-
"The submission of Shri G.K. Singh, learned Senior Counsel is, once an election programme was declared, minimum of interference was required by the Court, especially the writ Court, inasmuch as the validity of the voters or the illegal acceptance or refusal of votes can always be a ground to challenge the elections held pursuant to the election programme, before the civil court. He further submits that in this regard he had relied upon various decisions but none of them were considered and referred to while passing the impugned interim order.
No doubt, once an election programme is announced, there is very little scope for interference by the High Court and ordinarily the High Court refuses to exercise its discretionary jurisdiction in such a situation but in a case where, on the face, principles of natural justice may not have been followed and the finalisation of the voters' list is thus patently illegal as may affect the entire election, the writ Court in its discretion may interfere in such matters."
95: On due consideration of the judgment referred hereinabove and in view of the provision contained under Section 25 (2) and 25 (3) of the Act of 1860, it is clearly established that the right to convene a meeting for the purpose of holding of an election by the Committee of Management after expiry of its term is lost only when the Registrar passes an order under Section 25 (2) of the Act, 1860, so long as an order is not passed by the Registrar under Section 25 (2) of the Act, 1860, the power to convene a meeting of the general body is with the outgoing Committee of Management, therefore, we are of the view that finding returned by the learned Single Judge and the submission advanced by Sri Sandeep Dixit, learned Senior Advocate is not acceptable in law. We hold that the Committee of Management of the society was empowered to continue to act as validly elected Committee of Management till exercise of power under Section 25 (2) of the Societies Registration Act, 1860. The judgment in the case of Vinod Kumar Varshney (Supra) fully supports the submission advanced by learned counsel for the appellant only to the extent as referred hereinabove.
96: Accordingly, the special appeals are partly allowed and the judgment and order passed by the learned Single Judge on 19.8.2019 in Writ Petition No.5413 (M/S) of 2015 and Writ Petition No.5783 (M/S) of 2015 is modified to the extent indicated above.
97: However, it is clarified that the direction contained under the judgment and order passed by the learned Single Judge shall be completed within a period of one month from today.
98: No order as to costs.
[Irshad Ali, J.] [Pankaj Kumar Jaiswal, J.] Order Date :- 20.11.2019 Gautam