Allahabad High Court
Sri Ram Laxmi Narain Marvari Hindu ... vs Assistant Registrar, Firm'S, ... on 19 May, 2000
Equivalent citations: 2000(3)AWC1955, (2000)3UPLBEC2063, 2000 ALL. L. J. 2142, 2000 A I H C 4166, 2000 ALL CJ 2 1277, (2000) 3 ALL WC 1955, (2000) 40 ALL LR 238, (2000) 2 ESC 1467, (2000) 3 UPLBEC 2063
JUDGMENT O. P. Garg, J.
1. The core question involved in the present petition for determination is whether the Assistant Registrar, Firms. Societies and Chits, exercising powers of the Registrar under the Societies Registration Act (Act No. 21 of 1860) (hereinafter referred to as 'the Act') is empowered to recognize the elections of the office bearers of a registered society under the provisions of Section 4(1) of the Act or he has necessarily to refer the matter to the Prescribed Authority under Section 25 of the Act, should there be a dispute or doubt about the elections of office bearers of the committee of management of the society. This controversy has travelled up to this Court by means of a petition under Article 226 of the Constitution of India in the backdrop of the following facts.
2. Sri Ram Laxmi Narain Marwari Hindu Hospital. Godaulia, Varanasi, is admittedly a society registered in the year 1930 under the Act. The office bearers of the last committee of management of the said society were elected in December, 1998. Dr. Ganesh Shankar Mishra- petitioner No. 2 claims himself to be the duly elected Joint Secretary of the Society. The dispute, it appears, arose on account of the constitution of the alleged new committee of management of the society. The respondent No. 2--Gauri Shankar Newar has set up rival committee of management. The grievance of the petitioners is that the claim of respondent No. 2--Gauri Shankar Newar that the new committee of management has come into being is totally unfounded. With a view to thwart the attempts made by the respondent No. 2, the petitioners were compelled to institute Suit No. 19 of 2000 for the relief of permanent injunction. It appears that prior to the filing of the said suit, another Suit No. 13 of 1996 was filed by one Krishna Kumar Singh in a representative capacity in which an ad interim order of injunction was passed. The said order of temporary injunction was made the subject matter of miscellaneous appeal which was allowed, meaning thereby, the order of Injunction passed by the trial court in Suit No. 13 of 1996 stood effaced. In the subsequent Suit No. 19 of 2000 filed by the petitioners, an order of temporary injunction was passed on 10.1.2000 by the trial court. Respondent No. 2--Gauri Shankar Newar went in appeal. The operation of the order of injunction dated 10.1.2000 was stayed by the appellate court on 31.1.2000. The petitioners tried their luck by filing Civil Misc. Writ No. 6531 of 2000 but were not met with success and the writ petition was dismissed as having become infructuous as in the meantime the appeal had already been decided.
3. Respondent No. 2 filed Civil Misc. Writ No. 4943 of 2000 before this Court which was disposed of by order dated 3.3.2000 with the direction that the respondent No. 1 --Assistant Registrar, Firms, Societies. Chits, Varanasi shall pass appropriate orders after hearing the parties and taking into consideration the respective documents, which may be produced before him by them. Accordingly, after affording due opportunity to the parties and fixing a number of dates for the purpose, the respondent No. 1 passed the Impugned order dated 29.3.2000. Annexure-5 to this writ petition. holding that the election as set up by respondent No. 2--Gauri Shankar Newar has to be recognized as being according to law. It was also observed that the petitioner No. 2--Ganesh Shankar Misra had failed to produce the necessary documents in support of his contention. It is in these circumstances that the petitioners have come forward before this Court to challenge the Impugned order passed by the respondent No. 1.
4. Here it would be worthwhile to mention that prior to the filing of the present petition, the petitioners also filed a Writ Petition No. 9390 of 2000 challenging the elections as set up by respondent No. 2. This petition was dismissed by a Division Bench of this Court on 23.2.2000 by observing "that the petitioners cannot be allowed to take recourse of two parallel proceedings one by filing a civil suit as well as by invoking jurisdiction of this Court under Article 226 of the Constitution of India."
5. Heard Sri V. B. Upadhyay, senior advocate for the petitioners and Sri V. B. Singh assisted by Sri P. S. Baghel for the respondent No. 2 as well as learned standing counsel for the respondent No. 1, at considerable length.
6. Learned counsel for the petitioners urged that the respondent No. 1--Assistant Registrar had no jurisdiction to pass the impugned order recognizing the validity of the rival election in favour of the respondent No. 2 as he was not competent to embark upon the enquiry about the validity or otherwise of the dispute pertaining to the rival elections. It was pointed out that a dispute or doubt with regard to the election of the office hearers can be resolved only by referring the matter to the Prescribed Authority under the provisions of Section 25 of the Act. Sri Upadhyay painstakingly and with all emphasis at his command tried to make out a point that in the circumstances of the case, the only option left with the respondent No. 1 was to refer the dispute about the election of the rival committees of management to the Prescribed Authority under Section 25 of the Act. Sri V. B. Singh repelled this submission with equal vehemence and maintained that the impugned order, which is purely of administrative nature, has been passed under Section 4(1) of the Act and, therefore, it cannot be assailed on any ground, whatsoever. It was also urged that the order passed by the respondent No. 1 is not final in nature and since it is subject to the ultimate decision of the civil court the petitioner cannot, time and again, rush to this Court and it would be efficacious and appropriate for him to pursue his remedy before the civil court which he has already availed by filing Suit No. 19 of 2000 which is still pending.
7. It is an indubitable fact that the scope and object of the provisions of Section 4(1) on the one hand and Section 25 on the other are quite separate and distinct. They are invocable and are operational in entirely varying facts and circumstances. The two provisions are mutually exclusive. There is no quarrel about the proposition of law that the Registrar, or for that matter. a Deputy or Assistant Registrar who has been invested with the power to pass orders under Section 4(1) has absolutely no authority to decide the dispute or doubt with regard to the elections of rival committees of management. Such type of dispute has, of necessity, to be decided by the Prescribed Authority under Section 25 of the Act. Powers of the Registrar arc limited and are exercisable within the ambit of Section 4(1) of the Act. Registrar cannot usurp the power of the Prescribed Authority under Section 25 of the Act in any circumstance. The above conclusion stands crystallized and the first oft quoted Division Bench decision of this Court on the point is Vijai Narain Singh v. Registrar, Chits funds, Firms and Societies. U. P., Lucknow and others, 1981 UPLBEC 308. in which it was held that the Registrar himself has no Jurisdiction to hear and decide any doubt or dispute in respect of an election or continuance in office of an office-bearer of a society. Therefore, any decision given by him in this regard will be wholly without jurisdiction, he is in law bound to refer any such dispute to the Prescribed Authority. In the subsequent case in Manet Narayart Pandey and others v. Registrar. Chits, Funds, Firms and Societies, U. P., Lucknow and others, 1984 ALJ 583, it was observed by another Division Bench of this Court that whenever it comes to the notice of the Registrar that a dispute which can be decided by the Prescribed Authority alone has arisen between the parlies, he should refer the matter to the Prescribed Authority instead of assuming jurisdiction in himself to decide the said dispute. The legal position as adumbrated in the aforesaid cases came to be reiterated in the subsequent decisions of this Court in Committee of Management and others v. Zila Basic Siksha Adhikari and others, (1987) 1 UPLBEC 333 ; Purva Bazar Educational Society. Gorakhpur v. Assistant Registrar. Firms Chits and Societies, Gorakhpur, 11988) 1 UPLBEC 515 (DB) ; All India Council and another v. Asstt. Registrar Firms. Societies and Chits. Varanasi Region, Varanasi and another, AIR 1988 All 236 ; Muslim Welfare Society Machlinagar v. Assistant Registrar. Firms. Societies and Chits. 1991 AWC 1311 ; Khoproha Educational Society and others v. Assistant Registrar, Firms Societies and Chits. 1993 (2) UPLBEC 890 and Company Management v. Assistant Registrar, Firms Societies and Chits. 1994 HVD (All) Vol. III 389 (DB). In short, the gamut of all these rulings is that if there is any doubt or dispute about the committee of management or its office-bearers, such a dispute cannot be resolved by the Registrar in exercise of his powers under Section 3A and Section 4 of the Act. The only course left open to him is to refer the dispute for consideration and determination by the Prescribed Authority.
8. Now the question is whether by raising a farce or fake dispute by a rival claimant, can power of Registrar under Sections 3A and 4 of the Act be throttled and rendered otiose. This aspect of the matter came to be considered in the Division Bench decision of this Court in Committee of Management, Kisan Shiksha Sadan Banksahi, District Basti and another v. Asstt. Registrar, Firms, Societies and Chits. Gorakhpur Region Gorakhpur and another, (1995) 2 UPLBEC 1242 ; and, the decision in Shiksha Parishad Nagwa Ballla and another v, Dy. Registrar, Firms, Societies and Chits and others, S.A. No. 22 of 1996, decided on 28.10.1997. The observations made in para 3 of the report in Committee of Management, Kisan Shiksha Sadan Banksahi District Basti and another case (supra) may, for the sake of clarity and better understanding, be extracted below :
".... Section 4 of the Act provides that a list of members of the managing body of a Socieiy 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 for decision and In such a case the Registrar 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 is 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...."
9. A reading of the above observations would indicate that there has been a positive shift from the earlier stand and attempt has been made to reconcile the field of operation of the two provisions, i.e., Sections 4 and 25 of the Act. A slight deviation has come to be made by interpretatory process by this Court that the Registrar has the power under Section 4 to enquire into the question whether the person concerned is 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 not under any obligation or duty to refer the dispute or doubt relating to his election to the Prescribed Authority for decision.
10. In Kranti Kumar Chaturvedi and others v. District Inspector of Schools Kanpur and others, 1995 (3) ESC 166 (All), a Division Bench of this Court has clearly ruled that Section 25 of the Act would be attracted If 'there is dispute between two rival parties each of whom is claiming to be validly elected body' and that the Section 'is also attracted when a party challenges the legality or otherwise of the election of particular act of office-bearer of the Society on the grounds enumerated in Section 25 of the Act.' The Division Bench has further ruled that Section 25 would be attracted to a dispute of the nature aforesaid, 'only when there is no dispute in respect of registration of Society or its renewal of certificate of registration.' A reference may also be made to another decision of the Division Bench in Shambhu Kumar Tripathi v. Assistant Registrar. Firms, Socielies and Chits, AIR 1994 All 209, in which it was observed :
".....It is evident from Section 3A that renewal of the certificate of registration of a society is within the exclusive jurisdiction/ domain of the Registrar which term includes Assistant Registrar. Firms. Societies and Chits. The power to renew a certificate of registration being expressly and exclusively conferred upon the Registrar, the Registrar would be deemed to possess all, incidental and ancillary powers as may be considered necessary for an effective exercise of the power under Section 3A of the Act."
There are plethora of decisions delving on the consideration which would apply for invoking the powers by two independent authorities under Section 4 as well as Section 25 of the Act. It would be a mere tautology to refer all such decisions. The law as it stands is that the Registrar has to take a workable administrative decision to recognize the newly constituted committee of management or its office-bearers so that smooth functioning of the Society is not hampered. This determination is. of course, subject to the ultimate decision by the civil court. Nevertheless, if a bona fide dispute or doubt with regard to the election of the rival committees of management or the office-bearers is raised, in that event the Registrar would keep his hands off and relieve himself by performing statutory duty of making a reference under Section 25 of the Act. Should the Registrar fail to make a reference on account of his callousness, obstinacy or on account of his being imbued with a feeling to usurp the Jurisdiction of another authority, in that event the Legislature has. with a view to guard against such arbitrary action, made a provision that the dispute, apart from the power of reference by the Registrar, may be taken by rival claimants before the Prescribed Authority for decision provided the aggrieved persons are in a position to muster the strength of one-fourth of the members of the registered society. If the dispute raised by the petitioners is really bona fide, in that event, there is nothing to prevent them from approaching the Prescribed Authority to decide the dispute between the rival parties.
11. The Assistant Registrar, respondent No. 1 got the authority to embark upon the enquiry and to pass order purporting to be under Section 4(1) of the Act pursuant to the order dated 3.3.2000 passed by this Court in Civil Misc. Writ No. 4943 of 2000. As a matter of fact, the Assistant Registrar was bound to pass an order in compliance with the direction of this Court. The impugned order indicates that the Assistant Registrar afforded a number of opportunities to the petitioners to place their point of view and produce supporting documents but for the reasons best known to the petitioners, they did not avail of the opportunity and allowed the matter to go against them. Since the matter is yet to be decided by the civil court, where the petitioners have laid Suit No. 19 of 2000, 1 would do better to refrain from making any observations touching the merits of the case lest it may prejudice the civil court, one way or the other. There appears to be great force and substance in the submission that the petitioners cannot be permitted to rake up the controversy time and again before this Court, particularly, when civil court is seized of the matter. To say that the relief claimed before the civil court is merely for injunction, is nothing but moving in the same circle. Relief of injunction is to be granted or refused depending upon validity or otherwise of the election, as set up by the respondent No. 2 and which has been challenged by the petitioners. A finding has to be recorded by the trial court with regard to the validity or otherwise of the election before granting or refusing the order of injunction. Therefore, in substance, the controversy which has been raised in this petition as well as in the earlier Writ Petition No. 9390 of 2000 is similar to the controversy which has to be canvassed before and decided by the civil court in the pending Suit No. 19 of 2000, It is true that the impugned order dated 29.3.2000 has been passed after filing of Suit No. 19 of 2000 but the fact remains that the subsequent order which flows from the controversy raised in the Court can also be specifically challenged by making necessary amendment.
12. In the result, the controversial facts, which are subject-matter of decision in Suit No. 19 of 2000 cannot be gone into and sifted in the writ jurisdiction and certainly the petitioner cannot be permitted to raise the bogey of the jurisdiction of the respondent No. 1 to pass the impugned order in this petition. The appropriate remedy of the petitioner is to pursue the suit which is pending before civil court and obtain a decision on the highly disputed facts.
13. In the facts and circumstances stated above, the present writ petition is not maintainable and is accordingly dismissed.
14. It is, however, directed that looking to the nature of the controversy, the trial court shall ensure that original Suit No. 19 of 2000 is decided with all expedition, subject to the effective co-operation and regular participation of the parties. By way of abundant precaution, it is clarified that the observations made above shall not prejudice the rights of the parties and shall not come in the way of the trial court to take his own and independent decision in the matter according to law.