Uttarakhand High Court
Swami Devanand Bharat Bhakti Yogashram ... vs Prescribed Authority Sub Divisional ... on 25 July, 2017
Equivalent citations: AIR 2017 (NOC) 1024 (UTR.)
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Special Appeal No. 377 of 2017
Swami Devanand Bharat Bhakti Yogashram Trust
and another ......Appellant
Versus
Prescribed Authority / Sub Divisional Magistrate
and others ...... Respondents.
Present:
Mr. A.S. Rawat, Senior Advocate assisted by Mr. Vikas Bahuguan, Advocate fro the
appellant.
Mr. Gajendra Tripathi, Brief Holder for the State of Uttarakhand.
Mr. Siddhartha Singh, Advocate for the private respondents.
JUDGMENT
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Dated: 25th July, 2017 Per Hon'ble Sharad Kumar Sharma, J.
The appellant who claims himself to be the Society registered under the Societies Registration Act is represented by Mr. Kamlesh Uniyal in the present Special Appeal. The appellant had preferred a Writ Petition before the learned Single Judge of this Court, being Writ Petition No. 1193 of 2016, in which, they have challenged the order dated 25th April, 2016, passed by the Prescribed Authority, while exercising power under Section 25 of the Societies Registration Act, which was registered Case No. 4 of 2014-15, Swami Devanand Bharat Bhakti Yoga and others Vs. Kamlesh Uniyal and other. As a consequence of the said judgment rendered by the Prescribed Authority, while exercising power under Section 25 of the Act, the same was decided by respondent No. 1 and has allowed the application filed by respondent Nos. 2, 3 and 4 of the writ 2 petition. To adorn the helm of the affairs of the society, and simultaneously by the judgment of the Prescribed Authority, it proceeded to cancel the proceedings conducted by the present appellants under so called participation of various members who were inducted from time to time as the members of the society from 1974 to 2009, allegedly, inducted after the resignation of the founding members.
The Prescribed Authority, while exercising the powers under Section 25 of the Act, has validated the list of members provided by the respondent No. 4 to the appeal. Under the normal course of law and as laid down by various judgments of this Court that against an order passed under Section 25 of the Act, it would be an order against which if a party to the lis is aggrieved has to file a Regular Suit for adjudication of its right. But however, the appellants, petitioners, herein, themselves, have chosen the jurisdiction of the Court by filing the writ petition under Article 226 of the Constitution of India.
The sole contention of the appellants in the writ petition "though precisely not necessary for the present appeal but still for better elucidation of facts, the same is given as under".
When Swami Devanand Ji visited Haridwar at Bhopatwala, he aimed at establishing an Ashram for the purposes of the benefit of his disciples including, some of the major purposes of the society were to :-
"1. To provide residence for disciples or Swami Devanand who wish to attain Bhakti for the Supreme through the teaching, guidance, and, speeches of Swami Devanand and who wish to dedicate their lives to the service of their fellow human beings.3
2. To provide free of charge basis-education, to the local poor children of India without any caste and creed.
3. To provide facilities for practical and vocational and higher education to poor.
4. To provide charitable clinic for the benefit of the poor.
5. To provide public Health Education to the poor to enable them to help themselves.
6. To do any other work for Public as decided by Society without any distribution or caste and creed."
For the said purpose, Swami Devanand Ji got a society registered, having its registration No. 508 dated 4th July, 1974. The configuration of the society as it then was Swami Devanand Ji and other members who were primarily foreigners. One of the bone of contentions of the petitioners though not relevant before the learned Single Judge was that a society could not have been constituted under the Societies Registration Act, having foreigners as members, because of the bar created by Article 19 (1) (c) of the Constitution. The appellants lost sight of the fact that the provision of Article 19 (1) (c) has to be read alongwith the provision of Article 19 (4) which contemplates that a foreigner can constitute a society but subject to certain restrictions imposed by the State, but, in any way, this Court should not hold much on this issue, as it was not a bone of contention before the learned Single Judge, not agitated by appellants in this appeal.
The respondent No. 2 alleging that number of members of the Society, who principally constituted it, have submitted their resignation way back in 1974 and onwards, and thus, as a matter of fact by their consistent resignation, the Society itself has become defunct and, accordingly, he 4 claimed that he was inducted as the Secretary of the Society on 25th April, 2008.
This mode of induction as Secretary of the Society has not been substantiated by any authoritative document by the appellant, on record and, on being posed with the question as to whether as the consequence of the resignation of members since 1974, what action has been taken by the so claimed Secretary of the society, no plausible answer was extended. That even otherwise also, under the Societies Registration Act, the configuration of the members of the society has to be notified anomaly to the registered society under Section 4 of the Act. It is not a case of the appellant that such process contemplated under Section 4 was ever followed which gives the bonafide doubt about the credibility with which the appellants Society have come into existence.
To put forward their case before the Registrar Society, they placed reliance on the resignation said to have been submitted by the original members, who constituted the Society between 1974 till 2010-11.
If the original Members resigned in 1974, and its registration remain un-extended, then why the impact of the resignation made in 1974, was not enforced or taken recourse before the Court of law or before any competent Authority and why it was brought into effect for the first time in 2010- 11, creates a doubt about the conduct of the petitioners, and theory of resignation.
The learned Single Judge, while considering the writ petition, preferred by the appellants against the order passed Under Section 25, has also taken note of the fact that the theory of resignation which was tried to be pressed upon by 5 the appellant to show that the respondents have lost their rights and interest was not accepted for the reason that during the intervening period since 1974 to 2010-11, the Society continued to enjoy the benefit of the funds which was extended by the Members as inducted in 1974. In such an eventuality, once the benefit of funds was being utilized by the Society and it continued to function under the said membership and by funds provided by them, the theory of resignation was rightly not accepted by the learned Single Judge. Thus, the Prescribed Authority, in its impugned order in the writ petition, has held that the resignation was nothing but a consequence of the fraud which was committed by the appellants, by ante dating the resignation.
It was only for the first time in 2010-11, when the appellants applied for the renewal for the registration of the Society, where they have, for the first time, placed reliance and brought on record the resignation pertaining to the period from 20th July, 1994 till 2010-11 for the first time.
There is one another aspect which has been taken into consideration both by the Prescribed Authority as well as by the learned Single Judge while deciding the writ petition against the impugned order. The appellants contend that there was an audit conducted from 2001 to 2007, and on the basis of this audit, they claimed their right that they were in the helm of the affairs of the Society. As far as the claim is concerned, it is untenable as it has been rightly observed by the learned counsel for the respondent, herein, and also by respondent before the learned Single Judge, that the audit report which they have placed reliance refers to State as to be 'Uttarakhand' whereas during the said period of audit, the State of Uttarakahnd has not yet come into existence and at 6 that point of time, it was Uttaranchal, wrong reference of name of State in Audit report creates doubt to its propriety.
Hence, the Court has held that the audit report as placed reliance to show the genuineness of their existence by the appellants was misconceived and fraudulent document prepared by them. Even we have considered the propriety of the order passed by the Prescribed Authority and we are also of the considered opinion that on perusal of the order, passed by the Prescribed Authority on 25th April, 2016, annexure No 1 to the writ petition, the Registrar has given a considered opinion about the inter se claims and thereby it is rightly observed in the operative portion as under :-
"oknhx.k ekjtjh LVkVu] bZLFkjQzhM vkfn dk okn Lohdkj fd;k tkrk gS Lokeh nsokuUn Hkkjr HkfDr ;ksxkJe VªLV lfefr] Hkwirokyk gfj}kj dh dk;Zdkjfj.kh esa o'kZ 2010+&2011 esa lc jftLVkªj dk;kZy; es nkf[ky izi=ksa esa nf"kZr fu;qfDr;ksa fnukad 21-07-1974 esa iSuh ikdZj] cpu flag jk.kk] xksdqypUn] mejko flag] /kekZuUn lseoky] Jh uUn HkVV] xksfoUnjke mfu;ky ,oa Hkkjrykky ik.Ms dh fu;qfDr;kW o fnukad 08-02-1977 esa uhy ysgesu dh fu;qfDr o fnukad 23-11-1979 esa izse dywM+k] jkds"kcxk"kh] ,oa eksgj flag iaokj dh fu;qfDr;kWa o fnukad 04-11-1982 esa v"kksd ferry ds fu;qfDr o fnukad 11-11-1984 esa ljnkj mtkxj flag dh fu;qfDr o fnukad 04-02-1997 esa fn;knr lseoky dh fu;qfDr o fnukad 14-04-2005 esa vPNw flag dyM+k] jfoUnzdywM+k] ok;qjktflag ,oa euh'kk [kaMwjh dh fu;qfDr op fnukad 30-12-2006 esa ds"ko tks"kh dh fu;qfDr o fnukad 25-04-2008 esa deys"k mfu;ky dh fu;qfDr o fnukad 21-03-2009 esa fxjh"k HkVV dh fu;qfDr n"kkZ;s gq, cukbZ xbZ reke lnL;ksa dh dk;Zokgh lwfp;ksa dks fujLr fd;k tkrk gS rFkk bLVj QzhM laLFkkid lfpo Lokeh nsokuUn HkfdDr ;ksxkJe VªLV }kjk lsklk;Vh jftLVkj dk;kZy; izLrqr laLFkk dh lwfp dks oS/kkfud ?kksf'kr fd;k tkrk gS lLFkk dk orZeku fdz;kdyki Hkh lsdsVªh bLVj QzhM }kjk fd;k tk jgk gS vkSj orZeku esa Hkh Lokeh nsokuUn Hkkjr HkfDr ;ksxkJe VªLV lEifRr ij dkfct gS"
It is an established proposition of law that fraud vitiates everything. The Hon'ble Apex Court in the cases of 7 Indian Bank Vs. M/s Satyam Fibres (India) Pvt. Ltd. reported in JT 1996 (7) SC 135 has held as under :-
"22. The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent power are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behavior. This power is necessary for the orderly administration of the Court's business.
23. Since fraud effects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to be an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.
25. Forgery has its origin in the French word "Forger", which signifies:
"to frame or fashion a thing as the smith doth his worke upon the anvill. And it is used in our law for the fraudulent making and publishing of false writings to the prejudice of another mans right (Termes da la Ley) (Stroud's Judicial Dictionary, Fifth Edition Vol. 2)."
26. In Webster's Comprehensive Dictionary, International Edition, "Forgery" is defined as :
"The act of falsely making or materially altering, with intent to defraud; any writing which, if genuine, might be of legal efficacy or the foundation of a legal liability."8
27. This Definition was adopted in Rembert v. State, 25 Am. Rep. 639. In another case, namely, State v. Phelps, 34 Am. Dec. 672, it was laid down that forgery is the false making of any written instrument, for the purpose of fraud or deceit. This decision appears to be based on the meaning of forgery as set out in Tomlin's Law Dictionary.
28. From the above, it would be seen that fraud is an essential ingredient of forgery.
29. Forgery under the Indian Penal Code is an offence which has been defined in Section 463, while Section 464, deals with the making of a false document. Section 465 prescribes punishment for forgery. "Forged document" is defined in Section 470 while Section 471 deals with the crime of using as genuine, the forged document.
30. Forgery and Fraud are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts.
31. The Privy Council in Satish Chandra Chatterjee v. Kumar Satish Kantha Roy and Ors. AIR (1923) PC 73, laid down as under :
"Charges of fraud and collusion like those contained in the plaint in this case must, no doubt, he proved by those who make them -
proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unravelled and cleared up and made plain before a verdict can be properly found against him. If this were not so, many a clever and dexterous knave would escape."
32. The above principle will apply not only to courts of law but also to statutory tribunals which, like the Commission, are conferred power to record evidence by applying certain provisions of the CPC including the power to enforce attendance of the 9 witnesses and are also given the power to receive evidence on affidavits. The Commission under the Consumer Protection Act, 1986 decides the dispute by following the procedure indicated in Section 22 read with Section 13(4) and (5) of the Act."
Yet again in another judgment of the Apex Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs., Vs. Jagannath (dea) by L.Rs. and others reported in AIR 1994 SC 853, the Court has held in paragraph 7 as under :-
".....The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation."
Apparently, in view of the concurrent findings recorded by the Prescribed Authority under Section 25 of the Act and by the learned Single Judge and, on being asked during the course of argument, the learned counsel for the appellants was unable to substantiate his stand as to what legal sanctity they have got to control the affairs of the society. This Court feels that fraud since vitiates all the actions, the appellant has got no legs to stand.
Thus, the Special Appeal fails and is dismissed.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 25.07.2017 25.07.2017 Shiv 10